Not individually negotiated contract terms (Article 3(1) and (2) UCTD)

According to Article 2(a) in conjunction with 3(1), only contract terms which have not been negotiated individually are subject to the UCTD. Article 3(2) contains certain presumptions and provisions on the burden of proof for the question of whether a given contract term has not been negotiated individually. Along with Recitals 9 and 11, Article 3(2) also gives examples of what kind of contract terms are covered. Typically, but not exclusively, ‘standard’ (62), standardised (63) or pre-formulated (64) contract terms, often found in so-called ‘terms and conditions’ will be covered. It is not decisive in which form the terms are set out, e.g. printed, online or off-line, handwritten or even oral (65), in what way the contract was concluded, e.g. privately or in the form of a notarial deed, in which part of the contract the terms are placed or whether they are contained in one or in different documents. What matters is that they contribute to defining the rights and obligations of the parties and that no individual negotiations have taken place on the specific term(s) in question. Whether individual negotiations have taken place on a particular contract term is a matter of facts to be assessed by the national courts. According to the first paragraph on Article 3(2), where a contract term has been drafted ‘in advance’, for instance in the case of a ‘pre-formulated standard contract’, the term is ‘[is] always [to] be regarded as not individually negotiated’. The third subparagraph of Article 3(2) provides that, where a seller or supplier considers that ‘a standard term’ has been negotiated individually, the burden of proof is incumbent on such seller or supplier. According to the second paragraph of Article 3(2), where certain aspects of a term or a specific term have been negotiated individually, this does not mean that the other contract terms have been negotiated individually. The consumer's signature at the end of the contract or in order to confirm individual clauses does certainly not indicate that contract terms were negotiated individually. The Court may give further guidance on this criterion and on the concept of ‘negotiation’ (66). When this Notice refers to ‘unfair contract terms’ or ‘contract terms’, such references relate to ‘not individually negotiated contract terms’ even where the words ‘not individually negotiated’ are not repeated. This is without prejudice of the fact that in some Member States the protection of the UCTD applies also to individually negotiated contract terms (67).

← 1.2.1.2 · All articles · 1.2.3 →

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