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Case Details

Case Details
National ID no. 16336/2004
Member State Italy
Common Name Soc. Tegola Canadese v. Concato Lida
Decision type Other
Decision date 20/08/2004
Court Corte di cassazione (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, ANNEX I, 1.

1. In the contracts between professionals and consumers, Art. 1469 bis , paragraph 3, n. 19 CC provides the presumption of unfairness of the clauses establishing that the competent judge is not the one of the place where the consumer is resident or domiciled.
This article provides a special exclusive forum that may be derogated only by the clauses individually negotiated. Therefore a contractual term referring to the general or the alternative forum under Art. 18 and Art. 20 c.p.c., if the place is another from that of residence or domicile of the consumer, must be presumed as unfair, because Art. 1469 ter , para 3, c.c. – the exemption for provisions of law – cannot be interpreted in a way that may diminish the consumer’s protection such as in the case in which the forum destinatae solutionis is coinciding with the residence of the professional. In consequence of that, Art. 18 and Art. 20 cannot be applied for Art. 1469 quinquies, paragraph 3, c.c., but also for the principle of the succession of Laws in time.
The company Tegola Canadese S.p.A. has brought an action before the Corte di Cassazione asking the judges to determine the jurisdiction (i.e. regolamento di giurisdizione”).
As to the decision of the Giudice di pace di Conegliano, the injunction for payment of Tegola Canadese S.p.A. against Lida Concato has been declared null for territorial incompetence of such a Court, because the contract was concluded in Vicenza at the domicile of Lida Concato and had been executed in Agordo, while the contractual term derogating the competence had not been expressly undersigned under Art. 1341 and Art. 1469 bis, Art. 1469 ter, c.c.. The Giudice di pace of Conegliano declared the alternative competence of the Giudice di pace di Vicenza or the Giudice di pace di Agordo.
According to the decision of Cassazione Sezioni Unite that clarified the precise interpretation of Art. 1469 bis, para 3, n. 19, such an article introduced a special exclusive forum which may be derogated by the parties through individual negotiation. Therefore the contractual term establishing a place coinciding to one of the forum under Art. 18 and Art. 20 c.p.c., if different from that of the consumer, must be presumed as unfair. Therefore, Art. 1469 ter , para 3, c.c. - which provides the fairness of the clauses reproducing provisions of law – cannot be interpreted in a way that may diminish the consumer’s protection such as in the case in which the "forum destinatae solutionis" is coinciding with the residence of the professional. In consequence of that, other than the ineffectiveness of the clause under Art. 1469 quinquies, para 3, Art. 18 and Art. 20 c.p.c. cannot be applied even for incompatibility with the principle of the succession of laws in time (Cass. 28.8.01 n. 11280; 1.1.03 n. 14669; 28.11.03 n. 18290).
Moreover, the Supreme Court declared that in any case the Tegola Canadese S.p.A has not proven in any way that the signature of the consumer under the general clauses of the contract (in which the clause derogating the competence was present) was the outcome of an individual negotiation, under Art. 1469-ter c.c.
Accordingly, the Corte di Cassazione confirmed the decision of the Giudice di pace di Conegliano.
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