« NULLITÀ DI PROTEZIONE » E POTERI DEL GIUDICE TRA CORTE DI GIUSTIZIA E SEZIONI UNITE DELLA CORTE DI CASSAZIONE

ABSTRACT The “nullità di protezione” in the rulings of the European Court of Justice and in the recent judgments of the Joint Sections of the Italian Supreme Court. The Italian legislator provides, as a consequence of the unfairness of a term in consumers contracts, the remedy of nullity, which can only occur to the advantage of the consumer, whereby the court has jurisdiction to declare the term void on its own motion. This is the concept of “protective nullity“ (nullità di protezione) adopted in article 36 of the Italian Consumer Code, and framed by the European Court of Justice. It remains unclear, in such a rule especially when read in the framework of Italian law, whether the court is entitled to declare the term void even if the consumer expressly wishes to be bound by the clause. Moreover, in Italian law, several rules provide the nullity to the advantage of one party, but they generally state thatthe clause or the contract as a whole can be declared void only upon the weaker ’s party request, without saying anything about the ex officio declaration. Thus, it remains controversial whether the court can declare the nullity on its own motion and the regime of art. 1421 c.c. applies, where the rule is silent. The essay focuses on the general question whether the interest of the consumer — with no doubt at the basis of the remedy under consideration — is compatible with the general, public interest and with the duty of the court to declare the nullity ex officio, perhaps in contrast with the individual interest of the “protected” party; particularly where the remedy occurs beyond the special case of the (partial) nullity of the unfair clause, and the alternative between total nullity or maintenance of the contract is concerned. The question isnowaddressed by two recent judgments of the Joint Sections of the Italian Supreme Court, concerning the powers of the courts when dealing with the nullity provided to the interest of one party. The main question referred to the Supreme Court concerned the duty of the court to declare the contract void on its own motion even if the party had claimed only the judicial termination in case of non performance. emarkably, theSupremeCourt, in both the decisions (of 2012 and 2014), assumes a general approach and also considers the role of 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 the contract, the court has no jurisdiction to declare it on its own motion. Thiswouldbe the only exception to the general principle which requires the ex officio declaration of the nullity. In themorerecent decision, Cass. n. 12642 del 2014, the Joint Sections completely revise their view and hold 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 court must (only) point out the nullity and not declare it if the party (the consumer) opposes to that. The paper criticizes this approach and the following principle which applies the “Pannon ruling”, and points out how the morerecent Banif Plus has refined that ruling even when the partial nullity is concerned. If, as in the reasoning of the Supreme Court, the duty of the court to declare the nullity ex officio aims to guarantee a general interest and even the values held by the Constitution — the A. argues— there is no way the party can “oppose” to the ex officio declaration and express her own (private) interest to preserve the contract. The paper concludes that the regime of the “protective nullity” provided in art. 36 Italian Consumer Code, and shaped by the European Court of Justice, fits (only) to the partial nullity in case of unfairness assessment, and cannot be assumed as a general rule. Perhaps, the A.suggests, a different remedy would appear to be an ‘appropriateconsumer protection measure’, in case of violation of imperative rules devoted to the protection of the weaker party: as Eva Martín Martín clarifies, the “non-binding nature” of the clause or of the contractviolating statutes for the protection of only one of the parties to thecontract, which the Directives require, should be achieved without calling in question the concept of nullity.