NULLITÀ DI PROTEZIONE »E POTERI DEL GIUDICE TRACORTE DI GIUSTIZIA E SEZIONIUNITE DELLA CORTE

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Abstract

The “nullità di protezione” in the rulingsof the European Court of Justice and in the recent judgmentsof the Joint Sections of the Italian Supreme CourtThe Italian legislator provides, as a consequence of the unfairnessof a term in consumers contracts, the remedy of nullity, which canonly occur to the advantage of the consumer, whereby the court hasjurisdiction to declare the term void on its own motion. This is theconcept of “protective nullity“ (nullità di protezione) adopted inarticle 36 of the Italian Consumer Code, and framed by the EuropeanCourt of Justice. It remains unclear, in such a rule especially whenread in the framework of Italian law, whether the court is entitled todeclare the term void even if the consumer expressly wishes to bebound by the clause. Moreover, in Italian law, several rules providethe nullity to the advantage of one party, but they generally state thatthe clause or the contract as a whole can be declared void only uponthe weaker ’s party request, without saying anything about the exofficio declaration. Thus, it remains controversial whether the courtcan declare the nullity on its own motion and the regime of art. 1421c.c. applies, where the rule is silent.The essay focuses on the general question whether the interest ofthe consumer — with no doubt at the basis of the remedy underconsideration — is compatible with the general, public interest andwith the duty of the court to declare the nullity ex officio, perhaps incontrast with the individual interest of the “protected” party; particularlywhere the remedy occurs beyond the special case of the (partial)nullity of the unfair clause, and the alternative between total nullity ormaintenance of the contract is concerned.The question isnowaddressed by two recent judgments of the JointSections of the Italian Supreme Court, concerning the powers of thecourts when dealing with the nullity provided to the interest of oneparty. The main question referred to the Supreme Court concerned theduty of the court to declare the contract void on its own motion evenif the party had claimed only the judicial termination in case of nonperformance.Remarkably, theSupremeCourt, in both the decisions (of2012 and 2014), assumes a general approach and also considers the roleof the court when the “protective nullity” is concerned. In the first decision—Cass. SS.UU. n. 2012 n. 14828—the Supreme Court held that,when the nullity can only occur to the advantage of one party to thecontract, the court has no jurisdiction to declare it on its own motion.Thiswouldbe the only exception to the general principle which requiresthe ex officio declaration of the nullity. In themorerecent decision, Cass.n. 12642 del 2014, the Joint Sections completely revise their view andhold that the court must always declare the nullity by its own motion,but when the nullity is provided in the interest of one party the courtmust (only) point out the nullity and not declare it if the party (theconsumer) opposes to that.The paper criticizes this approach and the following principlewhich applies the “Pannon ruling”, and points out how the morerecent Banif Plus has refined that ruling even when the partial nullityis concerned. If, as in the reasoning of the Supreme Court, the duty ofthe court to declare the nullity ex officio aims to guarantee a generalinterest and even the values held by the Constitution — the A. argues— there is no way the party can “oppose” to the ex officio declarationand express her own (private) interest to preserve the contract. Thepaper concludes that the regime of the “protective nullity” p
Lingua originaleItalian
pagine (da-a)1141-1189
Numero di pagine49
RivistaEUROPA E DIRITTO PRIVATO
Stato di pubblicazionePublished - 2014

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