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Case Details

Case Details
National ID n. 19591/2004
Member State Italy
Common Name Credito Emiliano S.p.A. v. Pugliese Vincenzo
Decision type Other
Decision date 29/09/2004
Court Corte di cassazione (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 3, 2. Unfair Contract Terms Directive, ANNEX I, 1.

1. In order to overcome the presumption of unfairness of a contractual term which establishes the competent judge is not the one of the place where the consumer is resident or domiciled (art. 1469 bis, paragraph 3, n. 19 c.c.), the professional has the burden to prove that such a term prescribing a different Court from the alternative forum for contractual obligations (under article 20 of the Italian Code of Civil Procedure) has been individually negotiated with the consumer (art. 1469 ter, para 4 and 5, c.c.).
The bank Credito Emiliano S.p.A. has brought an action before the Corte di cassazione asking the judges to determine the competence of the Court (i.e. regolamento di competenza”).
As to the decision of the Tribunale di Reggio Emilia, the injunction for payment obtained by Credito Emiliano S.p.A. against Pugliese Vincenzo has been declared null for territorial incompetence of such a Court, having the Tribunale di Reggio Emilia declared the competence of the Tribunale di Roma.
The Corte di Cassazione clarified that, according to Art. 1469 bis, para 3, n. 19 c.c., a contractual term which establishes the competent judge is not the one of the place where the consumer is resident or domiciled is presumed unfair (Corte di Cassazione S.U., 1/10/2003, no. 14669) even if the place is coinciding with the forum provided by the rules of civil procedure, such as alternative forum at Art. 20 c.p.c..
Moreover, the Supreme Court declared that in any case the parties have not expressly agreed another competent judge, under Art. 1469-ter c.c.
In consequence of that, the Corte di Cassazione confirmed the decision on competence of the Tribunale of Reggio Emilia.
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