INTRODUCTION
Council Directive 93/13/EEC (1) is a principle-based directive. It protects consumers against unfair terms in all types of business-to-consumer contracts. In this way, it is a central instrument in order to achieve fairness in the Internal Market. Since its adoption 26 years ago, the UCTD has been interpreted through numerous decisions of the Court of Justice of the European Union (‘the Court’), in particular preliminary rulings, through which the Court has further developed many of the general principles laid down in the UCTD. The Court's interpretation is not limited to the criteria for the substantive assessment of contract terms and to the consequences to be drawn from the unfairness of contract terms, but also has implications for the national rules of procedure insofar as those rules are relevant to the effective protection against unfair contract terms. The Fitness Check of 2017 (2) in the areas of consumer and marketing law included a comprehensive evaluation of the UCTD. It found that the principle-based approach of the UCTD is effective and contributes to a high level of consumer protection. However, the evaluation also identified a certain lack of clarity concerning the interpretation of this Directive and its application as regards for example: (i) the scope of exemptions for terms concerning price and the main subject matter; (ii) the legal consequences of the non-binding nature of unfair contract terms; and (iii) the obligation of national courts to take an active role in applying the UCTD in individual cases. Therefore, the Fitness Check Report recommended addressing these issues through specific Commission guidance. Against this background, the Commission proposal of 11 April 2018 (3) amending different consumer protection directives is, as regards the UCTD, confined to proposing the insertion of a provision on penalties. At the same time, the Commission Communication ‘A New Deal for Consumers’ of 11 April 2018 (4) announced that the Commission would adopt guidance on the UCTD in 2019 to clarify questions that have arisen in the application of the Directive. The main purpose of this Guidance Notice (hereinafter referred to as ‘this Notice’) is to present, in a structured way, the interpretation which the Court has provided on the key concepts and provisions of the UCTD, in light of specific cases dealt with by the courts of the Member States. In this way, the Commission would like to increase awareness of this case law amongst all interested parties, such as consumers, businesses, the authorities of the Member States, including national courts, and legal practitioners, across the EU, and, thereby, facilitate its application in practice. Although the UCTD has achieved a high level of consumer protection and the harmonisation of key concepts in the protection against unfair contract terms in the internal market, there are specificities in the Member States that market participants and legal practitioners will also have to take into account. Such specificities may relate to a broader scope of the national rules transposing the UCTD, or may consist in more detailed or stricter rules regarding the unfairness of contract terms. Examples include a black list of contract terms that are always considered as unfair, lists of contract terms which are presumed to be unfair, the assessment also of contract terms that have been negotiated individually, the assessment of the unfairness of contract terms defining the main subject-matter or of the adequacy of the price or remuneration even where such terms are transparent. There may also be less demanding requirements for considering a contract term to be unfair under the general unfairness provision, for instance where the national transposition does not require that the imbalance in the rights and obligations of the parties is significant or that that the imbalance in the rights and obligations is contrary to the requirements of good faith. Such rules are possible, in principle, under the minimum harmonisation provision in Article 8 UCTD (5). Annex II to this Notice contains an overview of the notifications made by the Member States under Article 8a UCTD (6), which reflect deviations from the UCTD. This Notice is based on the minimum standard provided by the UCTD and cannot provide a comprehensive picture of the application of the UCTD in the individual EU Member States, including the decisions of national courts and other competent bodies on the assessment of specific contract terms. In addition to different information sources available in the Member States, information on the national provisions transposing the UCTD, on case law and on legal literature is available in the Consumer Law Database which is accessible via the E-justice portal (7). Where not specified otherwise, articles referred to in this Notice are those of the UCTD. Where the notion ‘contract term’ or ‘term’ is used it refers to ‘not individually negotiated contract terms’ within the meaning of Article 3(1) UCTD. Where quotations from the text of the UCTD or from Court rulings contain visual highlighting, such emphasis has been added by the Commission. This Notice covers in Section 1 the objectives and the scope of the UCTD, while Section 2 relates in particular to the principle of minimum harmonisation and the relationship with national law in general. Section 3 discusses the assessment of the transparency and (un)fairness of contract terms under Articles 3, 4 and 5. Section 4 explains the implications of the unfairness of contract terms for the rights and obligations of the parties under Article 6(1). Section 5 covers in detail the procedural requirements for the assessment of contract terms, including the obligation for national courts to take an active role in the assessment of contract terms. Finally, Section 6 discusses some particularities of injunction proceedings. The principles developed by the Court in relation to procedural guarantees under the UCTD, including the principle of ex officio control, apply mutatis mutandis to other pieces of EU consumer legislation (8). Likewise, this Notice takes into account certain rulings concerning other consumer protection directives insofar as they are relevant also to the UCTD. While preliminary rulings are addressed to the referring court and to national courts at large, which are obliged to apply them directly, they concern all national authorities dealing with unfair contract terms, including administrative authorities enforcing the UCTD and ministries responsible for proposing legislation. It is for the Member States to examine to what extent their rules and practices comply with the UCTD as interpreted by the Court and, where relevant, how compliance can be improved in order to protect consumers effectively against unfair contract terms. This Notice is addressed to the EU Member States and to Iceland, Liechtenstein and Norway as signatories of the Agreement on the European Economic Area (9) (EEA). References to the EU, the Union or the Single Market should therefore be understood as references to the EEA or to the EEA market. This Notice is intended purely as a guidance document — only the text of the EU legislation itself has legal force. Any authoritative reading of the law has to be derived from the text of Directive 93/13/EEC and directly from the decisions (10) of the Court as they have been handed down to date and will be handed down in the future. This Notice takes into account rulings of the Court published until 31 May 2019 and cannot prejudge further developments of the Court's case law. The views expressed in this Notice cannot prejudge the position that the European Commission might take before the Court. The information contained in this Notice is of a general nature and does not specifically address any particular individuals or entities. Neither the European Commission nor any person acting on behalf of the European Commission is responsible for any use that may be made of the following information.
Source: EUR-Lex (Cellar) · retrieved 2026-09-07