Italy, Court of Cassation, 31 August 2021 23655

Identification of the case

• Consumer protection (art. 38 CFREU)

• Art. 37-bis Italian Consumer Code
• § 33 Gesetz gegen Wettbewerbsbeschränkungen (GWB)

• Artt. 101-102 TFEU
• Artt. 3, 4, 5, 6 Directive 1993/13/CEE

Summary of the case

The litigation concerns the unfairness of an indexation clause to the Swiss franc in a credit agreement (also known as “double indexation” or “Exchange Rate Risk Clause”). As a result of the contractual term, the borrower is required to repay the amount of credit on the basis of the difference between the exchange rate at the time the relationship was established and the exchange rate at the time of payment. In exercising its supervisory competence, the Italian antitrust authority (AGCM) had previously fined the concerned bank for the lack of clarity and comprehensibility of the foreign currency indexation clause in a credit agreement. According to the antitrust authority, the contract does not make it clear to the consumer that he bears the full exchange rate risk of the transaction and that the amount of the loan instalments may vary significantly if the Swiss franc appreciates against the euro. The consumer is therefore taking action before the civil courts claiming that the clause shall be declared unfair, and payments made on its basis shall be returned. In particular, the case concerns the evidentiary effect of the antitrust authority's findings in civil proceedings.

• Civil judicial enforcement

Declaration of the unfairness of a contractual term and reimbursement of the consumer.

In the Italian legal system, the case-law regarding the evidentiary effect of the antitrust authority's findings in civil proceedings is currently divided into two opposite positions. According to the Conseil d'État, public enforcement measures have a typically afflictive function, as they are intended to protect a public interest in the competitiveness of the market. Therefore, the investigation carried out by the antitrust authority does not have the full scope required for the protection of individuale rights to damages. The Court of Cassation had however affirmed, on several occasions, that the measures taken by the Antitrust authority and the administrative court constitute privileged evidence in relation to the existence of the undertaking's conduct, the position it holds on the market and its abuse. The consumer, in the context of the action for damages, can therefore proof its claim and, in particular, the causal link between the miss-conduct and the individual damage, by relying on the Authority's investigation, in accordance with the model of a presunction iuris tantum. The existence of a finding by the antitrust authority as to the existence of the fact and of the abusive conduct reverses the burden of proof on the undertaking. The professional is entitled to prove that the damage to the consumer did not result from his own conduct. The Court of Cassation, in the case under consideration, not only considers that the same reasons exist to confirm the abovementioned orientation, but to go even further. The same principle applies, mutatis mutandis, when the Authority's measure does not only cover the ascertainment of the historical fact, but also the assessment of its unlawfulness, such as the judgement formulated on the lexical content of the contractual document and on its aptitude to clarify to the common contractor the meaning of the commitments undertaken. Where, therefore, the Antitrust Authority has ascertained the unfairness of a clause entailed in a standard contractual model, this findings operates in civil proceedings with the effect of privileged evidence. The civil court intending to depart from the antitrust finding shall provide reinforced reasons and specific rebuttal in relation to the contract that allow to exclude the unfairness of the contractual term.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-125/18, Gómez del Moral Guasch

Conform interpretation with EU law as interpreted by the CJEU.

Confirm the Court of Justice's interpretation of Article 4 of the Unfair Terms Directive as regards the requirement of clarity and intelligibility of a price clause in a consumer contract (not only comprehensibility of the clause in terms of grammar and vocabulary, but concrete comprehension of the economic consequences arising from the conclusion of the contract). Review the second instance decision (Court of Appeal Milan) on grounds of conflict with European law.

Additional notes on the decision

On the horizontal dialogue: This case involved dialogue among same level national courts within the same Member State as well as among administrative and judicial bodies.

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