Almost nine years after the entry into force of Law No. 2 of 2009, which modified, among other things, the regime of the maximum overdraft fee (now called the commission for making funds available), in its ruling No. 16303 of June 20, 2018, the United Civil Sections of the Supreme Court again intervene on the issue of the relevance of the CMS in the calculation of the overall effective rate in the period before the reform came into force.
The decision under comment puts an end, we do not know if definitively, to that strand of case law inaugurated by Judgment No. 12208 of 2010 in which the Criminal Supreme Court expressly affirmed that, despite the Bank of Italy’s instructions excluding it, the CMS had to be considered in the calculation of the TEG.
According to this orientation, the literal tenor of Article 644, paragraph 4, of the Criminal Code, according to which “for the determination of the usurious interest rate, account shall be taken of commissions, remuneration for any reason whatsoever and expenses, excluding those for taxes and fees, connected with the provision of credit,” requires that all charges that a user bears in connection with the use of credit be considered relevant for the determination of the case of usury. These undoubtedly include the maximum overdraft fee, since it is a cost connected with the provision of credit.
The inclusive thesis of the CMS in the calculation of the TEG would also find confirmation for the past with the approval of Law No. 2 of Jan. 28, 2009, converting Decree Law No. 185 of Nov. 29, 2008, whose Art. 2 bis, in the opinion of the Supreme Court, “can be considered as a rule of authentic interpretation of Art. 644, par. 4, of the Criminal Code. ».
Decision No. 16303 stands, albeit with some distinctions, in the wake of the orientation upheld by the civil sections of the Supreme Court. Although the argument is considered by the judges to be non-decisive, it is affirmed that the provision in Article 2 bis of Decree Law No. 185 of 2008 cannot be qualified as a rule of authentic interpretation of Article 644, paragraph 4, of the Criminal Code. The provision, on the one hand, does not contain any element that would depict this and, on the other hand, provides for transitional rules that are consistent with its innovative nature. The supreme judges rule out that the interpretative nature of the rule can be referred to Paragraph 4 rather than Paragraph 3 of Article 644 of the Criminal Code. In other words, it is not possible, except to create an impermissible asymmetry, to take into account the CMS in the detection of the TEG concretely applied and not in the identification of the average rate (TEGM) and thus in the usurious threshold.
However, the exclusion of the interpretative, and therefore retroactive, nature of Article 2 bis of Decree Law No. 185 of 2008 is not decisive in determining the relevance or otherwise of maximum overdraft fees for the purpose of verifying whether the usurious threshold rate has been exceeded. The CMS, according to the United Sections, is undoubtedly among the costs related to the disbursement of credit mentioned in Article 644, paragraph 4, of the Criminal Code, and it must be taken into account even if successive ministerial decrees over the years excluded it from the calculation of the TEGM and therefore from the threshold rate. Nonetheless, the ministerial decrees issued in the period prior to the entry into force of Decree Law No. 185 of 2008 are not illegitimate, because they do not exclude the relevance of maximum overdraft fees from the calculation of the TEGM, since they are reported separately and expressed in percentage terms: “The circumstance that this entity is reported separately, and is not included in the TEGM strictly understood, is a formal fact not affecting the substance and completeness of the detection provided for by law.”
The judgment recalls the methods of detection indicated by the Bank of Italy in its Supervisory Bulletin No. 12 of December 2005: the amount of the CMS in excess of the threshold is to be compared with the amount of interest (in addition to that actually charged) that the bank could have charged up to the thresholds in force from time to time (“margin”). If the excess of the fee over the “threshold CMS” is less than this “margin,” there is no exceeding of the legal thresholds.
In conclusion, with reference to relationships prior to the entry into force of the provisions set forth in Conversion Law No. 2 of 2009 – a law that is not interpretative but innovative in nature – for the purposes of verifying whether the usurious threshold rate has been exceeded, a separate comparison must be made of the actual global rate of interest practiced in practice and the maximum overdraft fee that may be applied, respectively, with the threshold rate and the “threshold CMS”. This verification should be carried out in accordance with the provisions of the Bank of Italy and, in particular, in the manner set out in the Supervisory Bulletin No. 12 of December 2005.
This is the abstract of an article devoted entirely to this topic written by attorney Andrea De Carlo that will be published in the August issue of the online magazine. Diritto ed economia dell’impresa.
