The dynamic between consumers and professionals in commercial transactions has long been a complex field where power and protection balances are at play. European jurisprudence, aware of an asymmetry to the detriment of the consumer, has embarked on a path aimed at strengthening consumer rights, particularly concerning abusive clauses in contracts.
This commitment was highlighted by a series of judgments delivered on May 17, 2022, by the Luxembourg Court in cases C-693/19, C-831/19, C-725/19, C-600/19, and C-869/19. These decisions were taken in application of European Directive 93/13/EEC, which aims to protect consumers against abusive clauses in contracts with professionals. The European perspective is based on the idea that, when a consumer and a professional enter into an agreement, the consumer is often less informed and less powerful in negotiations. Therefore, it is necessary to establish rules at the national level to prevent abuse and ensure adequate judicial protection for consumers, namely in the payment order and enforcement procedings initiated by professionals against consumers.
In this context, the Italian Court of Cassation issued ruling No. 9479 on April 6, 2023, providing clarifications on the national implications of this European jurisprudence. This ruling sparked a debate on the role of the Italian Judges in consumer protection, particularly regarding their duty to detect abusive contractual clauses ex officio.
This article examines the various aspects of this issue by analyzing the European position, the Italian Court of Cassation’s decision, and the practical implications for the national legal system. In particular, it explores the solutions formulated by the Court of Cassation depending on the stage of the payment order and enforcement procedures in Italy, highlighting the challenges related to protecting consumer rights and preserving the authority of enforceable titles against them.
Directive 93/13/EEC: Abusive Clauses
Council Directive 93/13/EEC aims to protect consumers against abusive clauses in contracts concluded with professionals. Article 3 defines an abusive clause as one that causes a significant imbalance between the contracting parties, to the detriment of the consumer, and contravenes the obligation of good faith. Furthermore, clauses must be clear and understandable, and in case of doubt, an interpretation favorable to the consumer must be adopted. Additionally, the directive includes an indicative list of potentially abusive clauses and obliges member states to prevent their continued use. Article 4 specifies that the abusive nature of a clause is assessed considering the nature of the goods or services, as well as all the circumstances surrounding the conclusion of the contract. Moreover, Article 6 states that abusive clauses do not bind the consumer, but the contract remains valid without them. Finally, member states can adopt stricter measures to enhance consumer protection.
As with all European directives, Directive 93/13/EEC requires member states to take measures to protect consumers against abusive clauses in contracts and to ensure the effective implementation of these measures in their national legislation.
Italy: Rules Implemented in the Context of the Payment Order (Ruling No. 9479/2023)
The Payment Order and Its Power in the National Procedure
A payment order is a request addressed to the Italian judge that allows a creditor to recover a debt without going through a full judicial process. In other words, it allows the creditor to quickly obtain an enforceable title to recover an owed sum of money. Article 633 of the Italian Civil Procedure Code sets out the conditions for obtaining a payment order. According to this article, the creditors can request the court to issue a payment order when they have a written document justifying the claim and when this claim is certain, liquid, and due. Once a payment order is issued by the court, if the debtor does not contest it within the specified time limits, it becomes final, thus granting the creditor an enforceable title. This procedure is vital for the creditor in Italy, as it transforms an uncontested payment order in an enforceable title allowing the creditor to seize the debtor’s assets without needing to resort to other judicial procedures.
Ruling No. 9479/2023: The Court of Cassation Takes the Lead
On April 6, 2023, ruling No. 9479/2023 of the United Chambers of the Italian Court of Cassation aligned with the European judgment of May 17, 2022, rendered in joint cases C-693/19 and C-831/19 concerning the interpretation of Directive 93/13/EEC. EU Court of Justice is definitive: a national law preventing the judges from checking if the contract clauses are abusive hampers the due protection of the consumer. Thus, the national rule which transforms an uncontested order of payment in a final and enforceable title against a consumer, thus limiting the judge’s power in cases of abusive contract clauses, cannot be maintained.
In its ruling No. 9479/2023, to align with European standards, the Italian Court outlines the procedure for judges tasked with handling requests for payment orders, and for enforcement judges against consumers. The initial step includes a thorough preventive review by the judge to assess potential abuses in the contractual clauses.
It is important to note that ruling No. 9479/2023 applies only when the abusive clauses are covered by Article 33 of the Consumer Code and have not been contested by the consumer debtor. They must be detected within the procedural time limits.
- Judge Seized with a Payment Order Request:
If the credit is certain, liquid, and due:
- Initial Verification:
The judge must examine ex officio whether the contract between a professional and a consumer contains potentially abusive clauses, i.e., unfair to the consumer. - Verification Procedure:
– The judges rely on the legal and factual information available to them.
– If necessary, they can request the complainant to provide the contract and additional details to clarify the situation, especially to understand if the person concerned is indeed a consumer.
– If the examination is too complex to be handled simply within the payment order procedure, the judge must reject the request. - Decisions Following the Verification:
– If a clause is deemed abusive, the judge can totally or partially reject the request.
– If no abusive clause is detected, the judge issues a reasoned decision explaining why they accept the request and issue the payment order .
– The judge will also warn that if the debtor does not contest this decision, the latter will no longer be able to contest the abusiveness of the clauses later and the court’s payment order will become final.
- Enforcement Judge:
If the payment order is uncontested within the specified time limits:
- Initial Verification:
The judge which is asked by a professional to enforce a payment order against a consumer must verify if the previous judge who issued that decision verified the presence of abusive clauses in the contract with the consumer that could affect the existence or amount of the credit mentioned in the order. If such verification is absent, the enforcement judges must conduct their own check for the presence of abusive clauses. - Verification Procedure:
– The judges rely on the legal and factual elements already present in the records.
– If they cannot conduct this assessment, they must quickly look for available elements within the framework of the enforcement procedure. - Decisions Following the Verification:
– If they find potentially abusive clauses, they will inform the parties and give the debtor a 40-day deadline to contest the payment order by only invoking the clause abuse.
– The judge will suspend the sale or allocation of the good or credit until the judge decides on the opposition to the payment order.
This procedure aims to ensure a double-check of abusive clauses within the payment order procedure and subsequent enforcement asked by the professional against the consumer’s assets.
Conclusion
The consolidation of consumer rights, in line with European directives such as Directive 93/13/EEC and Italian ruling No. 9479/2023, represents a significant step forward in ensuring fair transactions. However, this improvement raises legitimate concerns. While some consumers may welcome enhanced protection against abusive clauses in contracts, questions remain about its impact on the debt recovery process. Indeed, challenging the authority of the enforceable title in Italy, namely the uncontested payment order within the stipulated time limits, may create uncertainty. Additionally, the introduction of new procedures, such as those envisaged in ruling No. 9479/2023 of the United Chambers of the Italian Court of Cassation, risks complicating the payment order procedure, potentially compromising the efficiency and speed of judicial remedies. It is, therefore, imperative to find a balance between strengthened consumer protection and maintaining effective and rapid judicial procedures.
Foto di Christian Lue su Unsplash
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