Ex officio assessment
The Court has consistently held that national courts are under an obligation to assess unfair contract terms of their own motion (ex officio) (62), i.e. even if the unfairness of contract terms is not raised by the consumer. The obligation stems from Article 6(1) of the UCTD, which provides that unfair terms are not to be binding on the consumer, as well as from the principle of effectiveness which requires that national implementing measures do not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (63). The requirement of an ex officio control has been justified by the consideration that the system of protection established by the UCTD is based on the idea that the consumer is in a weak position vis-à-vis the trader as regards both the bargaining power and level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the trader without being able to influence the content of those terms (64). Therefore, there is a real risk that consumers, particularly because of a lack of awareness, will not rely on the legal rule that is intended to protect them. The Court recalled in the Bankia case (65) that a national court which assesses the fairness of contract terms in the light of the UCTD, including of its own motion, has the possibility to assess, in the context of that review, the unfairness of a commercial practice on which that contract was based (66). By contrast, the Court ruled that, in the other cases, national courts are not obliged to assess ex officio whether a particular contract or any of its terms has been concluded under the impact of unfair commercial practices (67). In particular, the Court found that, during mortgage enforcement proceedings, it is not necessary for national courts to be able to review whether the enforceable instrument breaches the UCPD because this directive does not place such an obligation on the national courts. This interpretation has been justified by the fact that the UCPD does not provide for contractual consequences, unlike Article 6(1) of the UCTD. Moreover, the Court explained that the UCPD, in particular its Article 11, does not contain requirements similar to Article 7(1) of the UCTD, which precludes national legislation that does not provide for the possibility of interim measures in enforcement procedures. The absence of interim relief would limit the remedies available to consumers under the UCTD to a mere subsequent protection of a purely compensatory nature if the enforcement is carried before the judgment of the court declaring unfair the contract term on which the mortgage is based and annulling the enforcement proceedings (68). However, Directive (EU) 2019/2161 on better enforcement and modernisation of Union consumer protection rules introduces individual remedies for victims of breaches of the provisions of the UCPD in a new Article 11a of the UCPD, applicable as from 28 May 2022. Under this new provision consumers harmed by unfair commercial practices should have access to proportionate and effective remedies, including compensation for damage suffered by the consumer and, where relevant, a price reduction or the termination of the contract (see section 1.4 for additional information). The addition of that clear and unequivocal new provision may entail an extension of the requirement of an ex officio control to the unfair commercial practices under the UCPD (to be confirmed by the Court).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.