Tribunale di Matera
National case details
Registration ID: Decision n. 933/2015
Instance: 1st Instance
Area of law
Relevant principles applied
26 September 2008
Court of Cassation, Decision n. 24262
13 October 2015
Decision by Tribunal of Matera
Identification of the case
- Article 33 of Legislative Decree n. 206/2005 (Consumer Code)
Summary of the case
The plaintiff had concluded with the defendant a mediation contract, pursuant to which (Art. 10 of the contract) the plaintiff, in case of early withdrawal from the contract, should have paid the defendant the amount of 4.000 Euros. On the basis of such provision, the defendant had later obtained a payment injunction, which was consequently challenged by the plaintiff before the Justice of Peace, who revoked the injunction, stating that the Article 10 of the Contract was indeed an unfair term and thus had to be regarded as null and void. Therefore the defendant appealed before the Tribunal.
- Civil judicial enforcement
In the proceeding before the Justice of Peace the plaintiff requested that the payment injunction was revoked.
it must be pointed out how the judge deals with the issue of the nullity of Article 10 of the contract. In first place the Tribunal points out that such provision constitutes an unfair term pursuant to Article 33 of the Italian Consumer Code, since it imposes on the plaintiff an excessive penalty to pay in case of early withdrawal, not counterbalanced by any other provision imposing similar obligations to the defendant; nevertheless, the defendant claims that, since Article 10 had been explicitly approved by the plaintiff by means of written signature, it was to be considered valid. In order to dismiss this line of defense, the Tribunal refers to an important decision of the Italian Court of Cassation (Decision n. 24262 of September 26, 2008) which ruled that, while it is true that in case of specific and individual bargaining and agreement an unfair term can be considered valid, it is nonetheless to be noted that the bargaining leading to the agreement must be individual, earnest and effective, meaning that both parties have to respect the other’s contractual freedom and power to determine the content of the agreement concluded. In other words, it could be argue that the Court of Cassation emphasized the effectiveness of the contractual bargaining between the parties, in order to ensure that an effective level of protection could be guaranteed to the consumers. Indeed, if an unfair term, although explicitly approved (e.g. by signature) does not result from an effective bargaining process, then, in light of the principle of effectiveness of the protection, the term must be declared null and void. In the decision here examined, the Matera Tribunal refers to the case-law of the Court of Cassation and points out that a simple written agreement, sealed by a signature, does not suffice to exclude the application of Article 33 of the Consumer Code, since it does not provide with sufficient proof of an effective bargaining between the parties. Moreover, the Tribunal states that it is the defendant’s duty to give proof of an individual, earnest and effective bargaining, and not the consumer’s. Therefore, the Tribunal rejects the appeal.
Role of the Charter and role of the general principles on enforcement
Neither the CFREU nor the ECHR were applied in this case. Notwithstanding, it could be argue that the Tribunal, by referring to the case-law of the Court of Cassation, indirectly pointed out that an effective bargaining between the parties must occur in order to ensure that an effective level of protection is guaranteed to the consumers.
In this decision, it could be argued that the principle of effectiveness plays a double role:
i) In first place, it constitutes the legal basis to require that the bargaining between the parties concerning an unfair term is individual, earnest and effective. Indeed, a bargaining lacking one or more of such requirements, even if leading to a specific written agreement over an unfair term, still leads to the declaration of nullity of the term. Otherwise, the judge would not ensure an adequate level of protection to the consumers, whose will and contractual power could be easily coerced by the counterpart. On such grounds, although not explicitly, the Court of Cassation had drawn a connection between the effectiveness of the bargaining and the effectiveness of the protection guaranteed to the consumers. The Tribunal of Matera, in this decision, follows such reasoning;
In second place, it can be noted that the principle of effectiveness also plays a role when the Court deals with the burden of proof sharing and states that the occurrence of an individual, earnest and effective bargaining over an unfair term must be proved (by the defendant/non-consumer party) and thus cannot be object of a presumption. Otherwise, it could be argued, the protection guaranteed to the consumer would not be effective.
Elements of judicial dialogue
- Dialogue between high court - lower instance court at national level
The Tribunal simply referred to a previous landmark decision of the Court of Cassation, in order to strengthen its own reasoning.
To strengthen the reasoning embraced and upheld by the Tribunal. It must be mentioned that this decision fits within a trend developed in Italian Case Law after the landmark decision n. 24262/2008 of the Court of Cassation. Many local courts’ decisions, in order to reinforce their reasoning, referred to decision n. 24262/2008 – e.g. Latina Tribunal, 22 July, 2010; Catania Court of Appeal, 10 February 2010 – and the same Court of Cassation referred to its previous case law in decision n. 18785/2010.