The immediate application of the new section no. 120 TUB and the scope of its anatocism prohibition is the centre of a case-law dispute which originated from a series of inhibitory proceedings promoted by a consumer association in order to make ascertain the unlawful capitalization practiced by Banks of the passive interests in bank accounts. Now that said interim proceedings has been defined a first summary can be drawn.
Two main interpretative options so far emerged:
- on the one side, the majority of the case law recognizes that an immediately applicable anatocism prohibition has been introduced by the reform;
- on the other side, a minority of case law differs such prohibition to the issue of the resolution by CICR (interministerial committee of credits and savings), which should define and implement the law.
According to the Court of Milan, notwithstanding the fact that section no. 120 TUB, delegates to CICR to rule the various technical application, it clearly establishes a complete anatocism prohibition which, by itself, has to be considered as immediately compulsory from the date of entry into force of the reform act (Law no. 147/2013). The Immediate application of the prohibition, reintroduced in the text of section no. 120, second paragraph, TUB by the law of reform, is motivated by the Court of Milan foremost on the basis of a straight interpretation of the section. The provision pursuant to which “periodically capitalized interests can not produce further interests” should be read, in the opinion of the Court, so as to absolutely exclude the practice of anatocism, with the result that interests could be calculated only on the capital. In the same sense conveys - continues the Court of Milan - also the comparison with the previous version of this rule: in fact the old second paragraph of section no. 120 TUB remitted the CICR to establish procedures and criteria “for the production of interests on overdue interests”, an expression - this latter - no longer used in the current version, which refers only to “production of interests”, a choice that would reveal the law-maker intention to introduce a general prohibition of anatocism, without, for the actualization of this rule, being required the intervention of CICR. On this point, however, the Court of Milan sustains a non-technical interpretation of section no. 120 TUB, according to which this reference to interests “periodically capitalized” has to be read in the sense of simple accrual of interests on current accounts. One last argument, is derived from the accompanying report of the project of law to the Parliament, where it is expressly stated that the project’s aim is to establish the illegality of the anatocism Banks’ practice, introducing a clear cut with the past, in which such practice was justified by the previous formulation of section no. 120 TUB. These elements would allow, according to the Court of Milan, to disregard the interpretative option suggested by Banks and to consider that the regulation of CICR would be limited to the issue of CICR regulations concerning interest capitalization on current account, without, however, being allowed to derogate from the prohibition, which has to be considered therefore “in force from 1 January 2014” ( 1 ).
Other Courts, judging the claims brought by the banks essentially on the basis of procedural arguments ( 2 ), reached different conclusions. However, they made qualifying remarks also on the topic of the immediate effect of section no. 120 TUB, largely disregarding the assumptions of the Court of Milan ( 3 ).
In particular, the Court of Turin, “leader” of this case-law opinion, states that a literal interpretation of the article excludes its immediate effect:. in fact, section no. 120 TUB expressly refers to CIRC resolution to establish procedures and criteria for the accrual of interests; furthermore, other literal arguments forbids at this stage an interpretation in the sense of an immediate and complete anatocism prohibition: in particular, the fact that section 120 TUB refers to interest periodically capitalized and subsequent capitalization operations; said expressions, if considered in a strictly technical sense, does not exclude the possibility of anatocism. According to the Court of Turin there would be further evidence supporting the thesis of the banks: for example, the provisions of section no. 161, paragraph 5, TUB, according to which "the rules issued by the credit authorities pursuant to provisions repealed or replaced shall continue to be applied until the date in which regulations issued in force of this decree will be applied", and also the possible conflict with the European legislation of the interpretation proposed by the opposite case law. The prohibition of anatocism would in particular constitute a breach to the establishment right and freedom of movement for the European companies operating in other member state other than Italy, where the anatocism apply.
This situation will be clarified by the next CICR resolution. In this regard it should be noted that the Bank of Italy, on 24th of August 2015, opened the consultation for the draft of the CIRC resolution, implementing section no. 120, paragraph 2,, TUB.