I. Introduction.
The aims aimed at by our legislator in introducing also into our civil procedural system (as in other European countries, albeit with different peculiarities) the institution of the “preliminary reference” pursuant to art. 363 bis cpc, i.e. achieving greater jurisprudential uniformity as early as possible (and thus a related reduction in litigation), does not seem to me to be said to have been achieved, not even in part, reading the recent ruling – precisely on a preliminary ruling – issued by the United Sections of the Supreme Court n. 15130 of May 29th.
As everyone knows and can see by reading the law, the conditions envisaged ex law for the admissibility of the preventive screening by the apical judges, are that the question is of “pure” law, is relevant for the decision of the case and is likely to arise in numerous judgments (that is, has “serial” characteristics) . The admissibility screening is up to the First President of the Court of Cassation and, having passed this screening, the Court, in addressing and deciding the issue, issues a sentence that “ties the hands” of the judge a quotherefore decides the dispute in whole or in part, issuing a “ruling” binding for that specific case, even if the case were to be extinguished and the application was re-proposed (according to the already tested model of art. 393 cpc).
Principle, capable (as indeed were the intentions of the legislator) of “making jurisprudence” also in all those others in which the same question arises again. It is common ground, in fact, that despite the absence of an obligation on the part of the judges to “stay decisive”, as in the countries of common lawhowever, the legislator’s orientation is to attribute growing importance to the authoritative precedent, such as the one in question, to the extent that the arguments developed also appear relevant in the new cases being decided and are endowed with persuasive effectiveness, such as to justify the adhesion to them.
II. The (limited) impact that the pronunciation has in light of the “caveats” it contains.
Let it be clear from the outset that the purpose of this brief comment, which occurs close to the ruling, is not an examination aimed at sharing or criticizing the part of the decision that expresses the principle of law (for which a more detailed analysis is necessary). thoughtful reflection), but to highlight an aspect that seems equally (or perhaps even more) interesting, which concerns the scope of the pronunciation and its susceptibility to acting as a “precedent”.
Given these general coordinates, going into the concrete, it almost portrays a note of disappointment from the apical judges, who seem to have had reason to regret the circumstance that the question, perhaps, passed the admissibility screening with too much benevolence.
Before coming to enunciate the principle of law, the Supreme Court felt the need to clarify some non-negligible “caveat” which contribute to eliminating many cases from the scope of relevance of the decision (and, for this reason, it is doubtful whether the instrument, at least in its use in the particular case under examination, can achieve that objective of reducing litigation and contrasting to the unreasonable length of the civil trial, which justified its introduction into our system). These warnings are perceived when reading the entire sentence which, moreover, unlike the treated sentences to which the Supreme Court has accustomed us for a decade now, is rather streamlined and easy to read (and, for this, we thank the ‘Extender).
The first “notice to seafarers” is included in point 8 of the sentence, where the Supreme Court begins and outlines the perimeter of the ruling, highlighting what does not fall (and will not fall) within its scope:
- The dictumfirst of all, it does not concern variable rate mortgages and the related repayment plans;
- it does not concern the problems that arise in the event of early termination of the relationship;
- does not concern the consequences of failure to insert or attach the amortization plan to the contract.
This “surgical” approach of the extended Panel is also accompanied (para. 12 of the sentence) by what appears to be a note of “blame” towards the Judge a quo (which, on the other hand, certainly acted with the intention of giving an accelerating push to the judgement, even if, according to the referring judge’s own reflections, perhaps “too soon”). The United Sections highlight (not by chance) that the Court considers it to be an “acquired” fact that the French repayment plans produce an interest multiplier effect, but, at the same time, they are keen to clarify that, on this point “decisive” (this is how the Extended Panel describes it), “the Court did not carry out any factual findings”. This is a shortcoming that the Court feels is very limiting decisumis confirmed by the subsequent sentence in which it recalls (or invokes) the jurisprudence on the subject of “lack of specificity” of the complaint relating to the compound interest effect of French depreciation (Cass. 13144/2023), which exists where the complaint is merely assertive, i.e. not “accompanied by specific deductions and arguments aimed at demonstrating the concrete production, in this case, of such a result”.
If we examine the reasons further, there is no doubt that the underlying theme of the ruling is the need for factual investigations to be carried out “case by case”. In fact, the Supreme Court emphasizes once again: «It could not be excluded in abstract that the financing operation is carried out through the production of interest on interest as a result of which the effective rate is higher than the nominal one and escapes recognition in the APR, but this eventuality would be a pathology to be addressed on a case-by-case basis , in the framework of the questions and exceptions of the parties, through accounting investigations aimed at verifying whether in the individual case interest higher than that agreed upon has been claimed or has been paid (the statement by which to concretely establish whether or not there is production of interests upon interests, is a question of fact that cannot be censored in terms of legitimacy, cf. Cass. n. 9237/2020, n. 8382/2022, n. 13144/2023 cit.). Therefore, the principle that is asked to be enunciated, in the sense of generally declaring the invalidity of “French-style” repayment plans, can be answered by taking into account traditional standardized plans, with respect to which the pathological situation described above must be excluded. described”.
In these passages lies the meaning and measure of a pronunciation which (implicitly, but also not so much) highlights how the question from here act was not of pure law, but, at least, it was a “mixed” question, that is, a melange between fact and law. It is believed that this is the reason why the United Sections made a necessary methodological premise by highlighting what was “possible” for them to do, i.e. giving a response regarding a “standard sample”, which however will never be able to cover the varied cases that Mortgage litigation presents and lends itself to equally diversified solutions. However, once the question was deemed eligible and admissible for preliminary ruling, the United Sections, as they expressly declared, could not do anything other than give an abstract response regarding “traditional standardized plans”.
As mentioned at the beginning, this contribution (for now at least) stops here, highlighting that, in all likelihood, the jurisprudence of merit and legitimacy, but above all the lawyers and technical consultants, will make the difference for all those cases which will not have the characteristics of the “standard model” on which the United Sections were “necessarily” able to express themselves (in the absence of those decisive factual investigations that should have been carried out before consulting the apex judge).
III. Conclusions.
The famous comedy by W. Shakespeare comes to mind “Much ado about nothing” (Much Ado About Nothing), being the natural fallout of caveat of pronunciation de quo that the “fate” of mortgages (which do not fall within the standard object of preliminary scrutiny, which is also not easy to identify as a “sample”) will continue to necessarily pass through the gauntlet of the accounting CTU (which will be monitored by the astute lawyers and the valid technical consultants they will employ).
Finally, I believe that this first experience of the institution of preliminary ruling is also an important indication for the parties and for the judges of the merits, not to appear too enthusiastic in asking for clarification from the apex judge, because, often the questions of “pure right” are very rare, or at least they are until the fact has been well established and, rushing to request the intervention of the Court of Cassation as a preliminary ruling, can prove to be very dangerous and limiting, because the process a quorisks resulting in an a priori judgment, devoid of the defensive guarantees of an essential complete preliminary investigation.
Francesco Orestano, a famous exponent of philosophical realism, used to repeat to his son: “concepts can be good servants, but they are always bad masters”.
