§6 INJUNCTIONS IN THE COLLECTIVE INTEREST OF CONSUMERS (ARTICLE 7(2) AND (3) UCTD)

Article 7 1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. 2. The means referred to in paragraph 1 shall include provisions whereby persons or organizations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms. 3. With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms. Article 7(2) and (3) UCTD complement Directive 2009/22/EC on injunctions for the protection of consumers' interests (510) with particular regard to injunctions in the collective interest of consumers in order to prevent the continued use of unfair contract terms by individual sellers or suppliers or groups of them. Pursuant to Article 7(1), also injunction proceedings have to be adequate and effective (511). In light of the deterrent and dissuasive purpose of such actions, as well as their independence from any particular dispute, authorised persons or organisations, such as consumer associations, may bring injunction proceedings even though the relevant terms have not yet been used in specific contracts (512). Conversely, the Court held that Article 7(1) and (2) and Article 47 of the Charter do not oblige Member States to allow a consumer organisation to intervene in support of individual consumers in proceedings concerning the enforcement of potentially unfair contract terms (513), unless this is required by the equivalence principle (514). The principles of equivalence and effectiveness and ex officio control, as well as Article 47 of the Charter, apply equally to injunctions in the collective interests of consumers, while their particular nature has to be taken into account. In particular, Article 6(1), read in conjunction with Article 7(1) and (2), requires that contract terms which are declared unfair in an action for an injunction are neither binding on the consumers who are parties to the action nor on those who have concluded with the same seller or supplier a contract to which the same terms apply (515). A term deemed to be unfair in such a procedure is considered to be unfair also in all future contracts between that trader and consumers (516). National courts adjudicating individual cases are obliged to take this effect of injunctions into account as part of their ex officio duties and may not consider the relevant term to be fair and valid. The Court has also recognised, in principle, the possibility to increase protection against unfair contract terms under Article 8 by creating a national register of contract terms found to be unfair in final court rulings based on which an enforcement authority may fine also other sellers or suppliers using equivalent terms. However, in light of Article 47 of the Charter, such sellers or suppliers have to have an effective judicial remedy against the decision declaring the terms to be equivalent and against the decision fixing the amount of the fine (517). Despite the clear benefits of collective actions under Article 7(2), such actions must not undermine the right of consumers who bring parallel individual actions seeking a declaration of the unfairness of a contract term to dissociate themselves from the collective action regarding similar terms used in contracts of the same type. As explained by the Court (518), individual and collective actions under the UCTD are complementary and have different purposes and legal effects. A collective action for an injunction aims at the abstract, general assessment of whether a contract term is unfair, whereas an individual action entails a specific examination of the contract term in the light of the particular circumstances of the case (519). Consequently, collective actions can have only a limited procedural impact on individual actions, justified in particular by the sound administration of justice and the need to avoid incompatible judicial decisions. Thus, Article 7 precludes a national rule requiring a court automatically to suspend an individual action brought before it by a consumer until a final judgment in a parallel collective action brought by an association is handed down (520). In this context, interim measures should be available within the individual action, both at the consumer's request and of the court's own motion, for as long as appropriate, pending a final judgment in an ongoing collective action (521). This is relevant especially when interim relief is necessary to ensure the full effectiveness of the judgment in the individual action. Regarding jurisdiction rules, the Court has accepted that a national rule under which actions for an injunction brought by consumer protection associations must be brought before the courts where the defendant, i.e. the seller or supplier, is established or has its address do not infringe the effectiveness principle (522). The Court considered that consumer associations are not in the same weak position as individual consumers when requesting injunctions against sellers or suppliers, and referred to Article 4(1) of Directive 2009/22/EC (523). The Court has further held that the Union rules on jurisdiction mean that an action for an injunction brought by a consumer protection association for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals is a matter relating to tort, delict or quasi-delict within the meaning of the Brussels Convention (524). That interpretation is valid also for the Brussels I Regulation (525). This implies that the jurisdiction can be attributed to a court where the harmful event took place, which is to be understood broadly with regard to consumer protection, covering not only situations where an individual has personally sustained damage but also, in particular, the undermining of legal stability by the use of unfair terms (526). The law applicable to such an action must be determined in accordance with Article 6(1) of the Rome II Regulation (527), whereas the law applicable to the assessment of a particular contractual term must always be determined pursuant to the Rome I Regulation (528), whether that assessment is made in an individual action or in a collective action (529). ‘46 Consequently, a finding that a commercial practice is unfair has no direct effect on whether the contract is valid from the point of view of Article 6(1) of Directive 93/13. 47 […] A finding that such a commercial practice is unfair is one element among others on which the competent court may, pursuant to Article 4(1) of Directive 93/13, base its assessment of the unfairness of the contractual terms relating to the cost of the loan granted to the consumer. Such a finding, however, has no direct effect on the assessment, from the point of view of Article 6(1) of Directive 93/13, of the validity of the credit agreement concluded.’ ‘40 A national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means […]’ (reference to Case 106/77 Simmenthal, paragraphs 21 and 24, and, Case C-112/13 A, paragraph 36). ‘41 Any provision of a national legal system and any legislative, administrative or judicial practice that might impair the effectiveness of EU law by withholding from the national court with jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions that might prevent EU rules from having full force and effect are incompatible with those requirements, which are the very essence of EU law […]’ (reference to Case 106/77 Simmenthal, paragraph 22, and Case C-112/13 A, paragraph 37). — whether the contract sets out in transparent fashion the reason for and method of the variation of those charges, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges. The lack of information on the point before the contract is concluded cannot, in principle, be compensated for by the mere fact that consumers will, during the performance of the contract, be informed in good time of a variation of the charges and of their right to terminate the contract if they do not wish to accept the variation; and — whether the right of termination conferred on the consumer can actually be exercised in the specific circumstances. […]’ — whether the contract sets out in transparent fashion the reason for and method of the variation of those charges, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges. […]; and — whether the right of termination conferred on the consumer can actually be exercised in the specific circumstances. ‘terms which have the object or effect of “excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract”’. ‘13 Where, by virtue of domestic law, courts or tribunals must raise of their own motion points of law based on binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules are concerned (see, in particular, the judgment in Case 33/76 Rewe v Landwirtschaftskammer für das Saarland, paragraph 5). 14 The position is the same if domestic law confers on courts and tribunals a discretion to apply of their own motion binding rules of law. Indeed, pursuant to the principle of cooperation laid down in Article 5 of the Treaty, it is for national courts to ensure the legal protection which persons derive from the direct effect of provisions of Community law (see, in particular, the judgment in Case C-213/89 Factortame and Others, paragraph 19).’

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07