Relationship between unfair contract terms and unfair commercial practices
The UCTD applies to business-to-consumer contracts in all sectors of economic activity, meaning that it may apply in parallel to other provisions of EU law, including other consumer protection rules such as the UCPD. The Court has clarified certain elements of the relationship between these two Directives in the Pereničová and Perenič case, which concerned a credit agreement where the annual percentage rate of charge indicated was lower than the actual rate (56). The Court concluded that such erroneous information about the total price of the credit provided in the contract terms is ‘misleading’ within the meaning of the UCPD if it causes, or is likely to cause, the average consumer to take a transactional decision that they would not have taken otherwise. The fact that a trader resorted to such an unfair commercial practice is one of the elements to be considered in the assessment of unfairness of contractual terms under the UCTD (57). In particular, this element may be used to establish whether a contract term which is based on it creates a ‘significant imbalance’ in the rights and obligations arising under the contract, to the detriment of the consumer, under Article 3(1) and Article 4(1) of the UCTD. Similarly, this element could be relevant in assessing whether a contract term is transparent under Articles 4(2) and 5 of the UCTD (58). At the same time, a finding that a trader resorted to an unfair commercial practice has no direct effect on whether the contract is valid under Article 6(1) of that Directive, without prejudice to any national rules pursuant to which the contract entered into on the basis of unfair commercial practices is void as a whole (59). The Court has not ruled directly on whether, in reverse, the use of unfair contract terms under the UCTD is to be regarded as an unfair commercial practice under the UCPD. It can be argued nevertheless that the use of such unfair contract terms, that are non-binding on the consumer as a matter of law, may in some cases be relevant for the identification of an unfair commercial practice. In particular, it can be the mark of a misleading action pursuant to Article 6 of the UCPD, insofar as it results in false information or in misleading the average consumer about the rights and obligations of the parties under the contract. In addition, the recourse to non-transparent contract terms, which are not drafted in plain and intelligible language as set out in Articles 4(2) and 5 of the UCTD, should be taken into account when assessing the transparency of material information and the existence of a misleading omission pursuant to Article 7 of the UCPD (60). Furthermore, the use of unfair contract terms could indicate that a trader has failed to meet the requirements of professional diligence under Article 5 of the UCPD. Only a few Member States’ consumer protection authorities have specific powers in the area of contract terms to prohibit the use of non-negotiated standard contract terms which they consider to be unfair without having to take the trader to court (61).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.