The question raised by the judgment of the Court of Justice of the European Union of 11 March 2020 is whether, in consumer contracts, the national court must examine of its own motion the unfairness of all the terms contained therein, even if they have not been duly contested in the consumer’s application. That is to say, whether the scope of the ex officio examination of the terms can also cover those which have not been included in the application lodged by the consumer.

To answer this question, the ECJ has interpreted Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. This provision states the following:
“The Member States shall provide that unfair terms contained in a contract concluded between a consumer and a seller or supplier shall not be binding on the consumer, under the conditions laid down by their national law, and shall provide that the contract shall continue to be binding on the parties under the same terms, if the contract can stand without the unfair terms.

According to the ECJ, this article must be interpreted as meaning that a national court must examine only those terms which could be considered unfair which are linked to the subject-matter of the dispute and is therefore not obliged to examine all the others.

This interpretation has the following consequences:

1. The court may act of its own motion only on the facts and points of law brought to its attention.

2. The ex officio control review must not go beyond the subject matter of the dispute.
In conclusion, what the ECJ has stated in its judgment is that only those contractual terms which have been expressly contested by the consumer or which, where appropriate, are linked to the subject matter of the dispute are subject to ex officio review.

This same criterion is followed by the Supreme Court in its ruling 52/2020 of 23 January, which states that the judge cannot assess ex officio the unfairness of a term that is completely independent of the terms contested in the application. The only exception is that the court may examine of its own motion when the uncontested term is relevant to the claims made by the parties.

The interpretation made by both the TJUE and the SC is made to avoid that the sentences incur in “extra petitum” incongruence and could violate Article 24 of the Spanish Constitution to the defendant and the dispositive principle that governs civil jurisdiction.


Author: Juan Antonio Soto Martínez

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