# Unfair contract terms and unfair commercial practices

Status as at 2026-08-05.

**Directive 93/13/EEC** on unfair terms in consumer contracts, amended twice: by Directive 2011/83/EU (inserting Art 8a) and by Directive (EU) 2019/2161 (inserting Art 8b, penalties, applicable 28.05.2022).

**Directive 2005/29/EC** on unfair commercial practices, amended twice: by Directive (EU) 2019/2161 and by **Directive (EU) 2024/825**, whose changes apply from **27.09.2026**.

Both are Directives. 93/13 is **minimum harmonisation** (Art 8) — member states may go further, and several maintain blacklists of terms that are void without a fairness test. The UCPD is in principle full harmonisation with the flexibility clauses in Art 3(5)–(6). This asymmetry matters: a term that survives the 93/13 test can still be void under a national blacklist.

## Directive 93/13/EEC — unfair terms

### The test

**Art 3(1)**, verbatim: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer."

**Art 3(2)**: a term is always regarded as not individually negotiated where it was drafted in advance and the consumer could not influence its substance, particularly in a pre-formulated standard contract. Negotiating one term does not immunise the rest. **The burden of proving individual negotiation is on the seller or supplier.**

Standard website terms, checkout terms, SaaS terms and privacy-adjacent contractual clauses are by definition not individually negotiated.

**Art 4(1)**: assessed by reference to the nature of the goods or services, **at the time of conclusion**, to all circumstances attending conclusion, and to all the other terms of that contract or of a dependent contract.

**Art 4(2) — the core-terms carve-out**: the assessment relates neither to the definition of the **main subject matter** nor to the **adequacy of the price** as against the goods or services — **but only in so far as those terms are in plain intelligible language**. Opaque pricing loses the carve-out and becomes reviewable.

**Art 5**: written terms must always be drafted in **plain, intelligible language**; where there is doubt about the meaning, **the interpretation most favourable to the consumer prevails**. That contra proferentem rule does not apply in Art 7(2) collective proceedings.

**Art 6(1)**: unfair terms are **not binding on the consumer**; the contract continues to bind the parties on the remaining terms **if it is capable of continuing in existence** without the unfair term. Art 6(2): the protection is not lost by a choice-of-law clause pointing at a third country where the contract has a close connection with member-state territory.

### Ex officio review — settled CJEU case law

- **Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores, judgment of 27.06.2000** — the national court **may** determine of its own motion whether a term is unfair when making its preliminary assessment, and must decline jurisdiction conferred by an unfair jurisdiction clause.
- **Case C-243/08 Pannon GSM, judgment of 04.06.2009** — this becomes a **duty**: the court is required to examine of its own motion the unfairness of a term where it has the legal and factual elements necessary, and must disapply it **except if the consumer opposes that non-application**.
- **Case C-618/10 Banco Español de Crédito, judgment of 14.06.2012** — ex officio assessment must be possible in order-for-payment proceedings *in limine litis*, even absent consumer objection; and **Art 6(1) precludes national rules allowing the court to revise or moderate an unfair term**. There is no saving reduction to the permissible maximum. An overreaching clause is struck out entirely, not read down.

The practical consequence for drafting: an aggressive clause does not get trimmed to the legal limit by a court. It disappears, leaving the default statutory rule.

### Annex — the indicative list (Art 3(3))

Non-exhaustive. Terms having the object or effect of:

(a) excluding or limiting liability for death or personal injury caused by the trader's act or omission · (b) inappropriately excluding or limiting the consumer's rights on total or partial non-performance or inadequate performance, including set-off · (c) binding the consumer while the trader's performance depends on the trader's will alone · (d) allowing the trader to retain sums paid where the consumer cancels, without reciprocal compensation when the trader cancels · (e) requiring disproportionately high compensation for default · (f) authorising the trader to dissolve the contract on a discretionary basis where the consumer has no equivalent right, or to retain sums for services not yet supplied where the trader dissolves · (g) enabling the trader to terminate an indefinite contract without reasonable notice, save on serious grounds · (h) automatically extending a fixed-term contract where the consumer's opt-out deadline is unreasonably early · (i) irrevocably binding the consumer to terms he had no real opportunity of becoming acquainted with before conclusion · (j) enabling the trader to alter the terms unilaterally **without a valid reason specified in the contract** · (k) enabling the trader to alter unilaterally the characteristics of the product or service without a valid reason · (l) providing for the price to be determined at delivery, or allowing a price increase without giving the consumer a corresponding right to cancel · (m) giving the trader the right to determine whether the goods or services conform, or the exclusive right to interpret any term · (n) limiting the trader's obligation to respect commitments undertaken by its agents · (o) obliging the consumer to perform where the trader does not · (p) allowing assignment that may reduce the consumer's guarantees without consent · (q) excluding or hindering the consumer's right to take legal action, particularly by requiring recourse to non-statutory arbitration, unduly restricting evidence, or shifting the burden of proof.

Point 2 of the Annex restricts (g), (j) and (l) for financial services, securities and FX transactions, and lawful price indexation.

Points (i), (j), (k) and (q) are the ones a SaaS or platform terms document breaches most often: "we may change these terms at any time", "we may modify or discontinue any feature", "you agree to arbitration", "by using the service you accept the terms".

### Penalties — Art 8b

Criteria in 8b(2). **8b(4): for penalties imposed under Art 21 of Regulation (EU) 2017/2394 on widespread infringements, member states must provide for maximum fines of at least 4 % of the trader's annual turnover in the member states concerned; 8b(5): where turnover figures are unavailable, at least EUR 2 million.** This is the widespread-infringement ceiling, not a general per-breach maximum.

## Directive 2005/29/EC — unfair commercial practices

Two live consolidations. The version applicable **today** is the 28.05.2022 consolidation. The 27.09.2026 consolidation carries Directive (EU) 2024/825 and is not yet applicable.

### Structure

**Art 5** (unamended base text): a practice is unfair if (a) it is contrary to the requirements of **professional diligence** and (b) it materially distorts, or is likely to materially distort, the economic behaviour of the **average consumer** it reaches or is addressed to, or of the average member of a targeted group. Art 5(3) applies a vulnerable-group benchmark where a practice is likely to materially distort the behaviour of a clearly identifiable group vulnerable by reason of mental or physical infirmity, age or credulity, with a reservation for common and legitimate exaggeration. Art 5(4): unfair practices are in particular misleading (Arts 6, 7) or aggressive (Arts 8, 9). **Art 5(5): Annex I contains the practices unfair in all circumstances — the same single list in all member states, modifiable only by revision of the directive.**

**Art 6 misleading actions**: false information, or information that deceives or is likely to deceive the average consumer **even if factually correct**, as to existence or nature of the product, main characteristics, the trader's commitments, price or the manner of calculating it, need for a service or repair, the trader's nature and attributes, or the consumer's rights — where it causes or is likely to cause a transactional decision not otherwise taken. Art 6(2)(a) confusion with a competitor's marks; (b) non-compliance with firm, verifiable commitments in a code of conduct the trader invokes; (c) dual quality of goods marketed as identical in different member states.

**Art 7 misleading omissions**: omitting material information the average consumer needs, or providing it in an unclear, unintelligible, ambiguous or untimely manner. **Art 7(4)** lists what is material in an **invitation to purchase**: (a) main characteristics; (b) the trader's geographical address and identity, and that of any trader on whose behalf he acts; (c) the price inclusive of taxes plus freight, delivery or postal charges, or notice that they may be payable; (d) payment, delivery and performance arrangements departing from professional diligence; (e) the existence of a right of withdrawal or cancellation; **(f) on online marketplaces, whether the third party offering the product is a trader**.

**Art 7(4a)** ranking parameters; **Art 7(6)** review-verification information. Both covered in `consumer-distance.md`.

**Art 8 aggressive practices**: harassment, coercion including physical force, or undue influence that significantly impairs the average consumer's freedom of choice or conduct. **Art 9** factors include "**onerous or disproportionate non-contractual barriers … to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader**". This is the clause that catches a cancellation flow deliberately made harder than the signup flow.

**Art 11a** (Omnibus): consumers harmed by unfair commercial practices must have access to proportionate and effective remedies, **including compensation for damage and, where relevant, price reduction or termination of the contract**.

### Annex I — the blacklist

Originally 31 points; **35 today** after the Omnibus added 11a, 23a, 23b, 23c; **47 from 27.09.2026** after Directive (EU) 2024/825 adds twelve points — 2a, 4a, 4b, 4c, 10a, 23d, 23e, 23f, 23g, 23h, 23i and 23j — including the ban at **4c** on claiming a product is climate neutral on the basis of emissions offsetting, and the point at **23j** on restricting the use of non-original consumables.

Points on the blacklist are unfair **in all circumstances**. There is no balancing, no average-consumer analysis and no de-minimis.

### Dark patterns

The UCPD is the general instrument for deceptive interface design in a **commercial** context. Three other regimes overlap and must not be conflated:

| Regime | Reach |
|---|---|
| UCPD Arts 5–9 and Annex I | any business-to-consumer commercial practice |
| DSA Art 25 | online platform interfaces, with a carve-out for practices already covered by the UCPD or the GDPR |
| GDPR Arts 5(1)(a), 7, 25 and EDPB Guidelines 03/2022 v2.0 (14.02.2023) | interfaces steering a data-protection choice |
| Directive 93/13 Annex points (i), (j), (q) | the contractual terms behind the interface |

A finding under one does not dispose of the others. When assessing a pattern, say which regime it fails under.

### Commission guidance

**Commission Notice — Guidance on the interpretation and application of Directive 2005/29/EC, 2021/C 526/01, OJ C 526, 29.12.2021**, adopted 17.12.2021. It replaces the 2016 guidance and covers the Omnibus changes applicable from 28.05.2022. **It predates Directive (EU) 2024/825 and does not cover the green-transition amendments.** [[UNVERIFIED: whether updated guidance covering 2024/825 has been issued ahead of 27.09.2026 — check the DG JUST consumer-law page]]

## Terms review — the clauses to strike first

| Clause | Why it fails |
|---|---|
| "We may amend these terms at any time; continued use constitutes acceptance" | Annex point (j): unilateral alteration without a valid reason specified in the contract; also point (i) |
| "We may suspend or terminate your account at any time for any reason" | Annex points (f), (g) |
| "All disputes shall be settled by arbitration in [non-EU seat]" | Annex point (q); Art 6(2) on choice of law |
| "Liability is excluded to the maximum extent permitted by law" | Annex points (a), (b); and under C-618/10 the clause is struck, not read down to the permitted maximum |
| "Fees are non-refundable in all circumstances" | Annex point (d); conflicts with the withdrawal and conformity regimes |
| "The subscription renews automatically unless cancelled 90 days in advance" | Annex point (h) |
| "We determine in our sole discretion whether the service conforms" | Annex point (m) |
| "Cancel by writing to our postal address" while signup is one click | Art 9 UCPD; and Art 11a CRD for withdrawal |

## Checkpoints

- [ ] Every standard term treated as not individually negotiated; no reliance on a "you negotiated this" argument (Art 3(2))
- [ ] Terms in plain intelligible language — including price terms, or the Art 4(2) carve-out is lost
- [ ] No unilateral change clause without a valid reason specified in the contract (Annex (j))
- [ ] No non-statutory arbitration or forum clause disadvantaging the consumer (Annex (q))
- [ ] No blanket liability exclusion; drafted so that striking it leaves a workable contract (Art 6(1))
- [ ] Auto-renewal notice periods reasonable and disclosed (Annex (h), CRD Art 6(1)(o))
- [ ] Cancellation no harder than signup (Art 9 UCPD)
- [ ] No Annex I blacklisted practice anywhere in marketing, including countdown timers with no real deadline and fake scarcity
- [ ] Environmental claims re-checked against the 12 new Annex I points before 27.09.2026, in particular offsetting-based carbon-neutrality claims (point 4c)
- [ ] Dark-pattern findings attributed to the correct regime — UCPD, DSA Art 25, GDPR, or 93/13
- [ ] National blacklists checked; 93/13 is minimum harmonisation (Art 8)
- [ ] All `[[…]]` placeholders resolved or reported as open