Italy, Tribunal of Turin, 5 August 2015

Identification of the case

• Legislative Decree n. 206/2005 (“Consumer Code”) – Article 140
• Legislative Decree n. 385/1993 (“Consolidated text of the laws concerning banking matters”)-Articles 120 and 161

• Directive n. 98/27

Summary of the case

A consumer association (the AMC) challenged before the court the practice, engaged in by banks, of applying compound interest (interest on interest) in contracts involving consumers. The AMC claimed, in first place, that such a practice constituted an unfair practice under Article 20 of the Consumer Code and, in second place, that the banks had violated their information duties. On such grounds, the association asked, by means of interim relief, for the court to order the banks to restrain from further engaging in such practices. 

• Civil judicial enforcement

Interim relief

The Court, ascertaining the requirements to be fulfilled in order to be able to access the interim relief measures – laid out, as far as consumer associations’ actions are concerned, in Art. 140 of the Consumer Code – carries out a systematic interpretation of the requirement of “urgency reasons” by posing the question whether or not an effective protection of the consumers implies that the guaranteed protection is the promptest available. In doing so the Court follows the line of thought already upheld by the same Turin Tribunal in its decision of June, 16, 2015 and states that ensuring an effective protection to consumers’ does not necessarily lead to the concession of interim relief. In particular, the Court points out that even Directive n. 98/27 – in its Article 2 – does not seem to consider effectiveness as implying timeliness. This Article, the Court highlights, states that Member States are required to designate “courts or administrative authorities competent to rule on proceedings commenced by qualified entities within the meaning of Article 3 seeking: a) an order with all due expediency, where appropriate by way of summary procedure, requiring the cessation or prohibition of any infringement”. Such provision, according to the deciding Court, means that summary procedures, such as the interim relief one, are to be available only when an effective protection of the consumers’ rights is not achievable otherwise. Then the Court points out that only should the ordinary procedure delay the decision for a period incompatible with the right infringed, then the summary procedure could be accessible. In order to ascertain whether such circumstance occurs, the judge has to look at the essence of the rights infringed, since the urgency reasons must also be justified. Therefore, since Article 2 of the Directive n. 98/27, at its § 2, also states that “This Directive shall be without prejudice to the rules of private international law, with respect to the applicable law, thus leading normally to the application of either the law of the Member State where the infringement originated or the law of the Member State where the infringement has its effects”, the Court highlights that reference should be made to the criteria set by the internal law in order for an interim relief remedy to be admissible, that are the fumus boni iuris and the periculum in mora. Since, in the Court’s opinion, these two requirements are not fulfilled, then any remedy toward the infringement of the consumers’ rights should be sought by means of an ordinary procedure, the effectiveness of the protection not being impaired or diminished on account of such provision.

Role of the Charter and role of the general principles on enforcement

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)

The Court does not directly draw the principles at the basis of its reasoning from a specific national provision. Notwithstanding, it points out that, in order to justify an interim relief remedy, according to the effectiveness of the protection to be guaranteed, the judge must look at the requirements laid out by the national law for the concession of interim measures. The relevant provision should then be Article 700 of the Italian Civil Procedure Code, which is not explicitly mentioned in the decision but reference is made to its content.

Either the CFREU and the ECHR are not applied in this decision. Notwithstanding, the core issue addressed by the judge is the concept of “effectiveness” of the remedy in light of the its timeliness. 

• Effectiveness

No explicit reference to the CFREU. The court, notwithstanding, regards the right to an effective judicial remedy as the conceptual basis for its reasoning.

In fact, the concept of “effectiveness of the protection” is at the very core of the whole reasoning developed by the deciding Court. Such decision is to be read in the framework of an evolving case-law which gave rise to different views concerning the equation effectiveness=timeliness of the remedy. In the decision here analysed, the Court upheld the view according to which the European Law then applicable in matters of Consumers’ protection does not regard the effectiveness as implying the timeliness of the remedy. According to the deciding Court, such statement could be supported by two arguments: i) Directive n. 98/27 explicitly mentions (Article 2) that summary procedures could be available “where appropriate”, meaning only where ordinary procedures cannot ensure an adequate level of protection, as it also seems to be highlighted by the 2nd whereas of Directive n. 98/27; ii) the Member States, under the relevant EU Law, are to designate Courts/Authorities empowered to offer protection in case of an infringement of consumers’ rights. Apart from that, Member States’ law is to be applied and its requirements and criteria are to be followed. Therefore, since the Italian Civil Procedure Code provides for requirements to be fulfilled in order to access interim relief, the deciding Court seems to uphold that only when such criteria (i.e. fumus boni iuris and periculum in mora) are met then it means that the ordinary procedure could not ensure adequate protection, thus rendering it necessary to give interim relief.  

Elements of judicial dialogue

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

The deciding Court points out that its decision upholds a certain view of the relationship between effective protection and interim relief which is instead turned down and criticized by other Courts. The deciding Court explicitly mentions another decision (Milan Tribunal, decision of March 25, 2015) which identified the urgency reasons with the necessity to ensure a timely protection to the consumers and granted interim relief in a similar case. The deciding Court acknowledges that different opinions are upheld by Courts, but firmly criticizes the reasoning behind them, motioning instead for a separation between the concept of effective protection and the one of timely protection.

Additional notes on the decision

After the Turin Tribunal decision of June 16, 2015 and August 5, 2015, the debate between Courts with regard to the concession of interim relief measures in light of the principle of the effectiveness of the remedy carried on and led to at least another two important decisions which upheld opposite views over the issue. The first one – Rome Tribunal, decision of October 20, 2015 – rejected the reasoning laid out in the decision here examined and instead embraced the perspective already adopted by the decision of the Milan Tribunal on March 25, 2015 as well as the Cuneo Tribunal (June 19, 2015), thus identifying the urgency reasons with the necessity to ensure an effective and timely protection to consumers and conceding the interim relief measures. A few months later, the Rimini Tribunal – decision of February 17, 2016 – instead followed the path traced by the Turin Tribunal, pointing out that an effective remedy cannot be identified with a timely remedy and that, case by case, the judge should decide whether or not an ordinary procedure could ensure an adequate level of protection to the consumers.