The Court of Brindisi, with an order dated 22 October 2024, referred to the Court of Justice of the European Union (CJEU) a series of crucial questions concerning the assignment of bad debts, placing emphasis on the compatibility of the Italian system with EU legislation on anti-money laundering and consumer protection.
The proceedings originate from a dispute relating to a transaction credit securitization, a financial mechanism that, although assuming increasing relevance, presents several grey areas from a regulatory point of view. In this specific case, the Court questions the validity of the transfer of impaired loans from a bank to a company not registered in the register pursuant to art. 106 of the Consolidated Banking Act (TUB), analyzing the possible conflicts between anti-money laundering regulations and consumer protection.
The ordinance highlights several critical issues of the Italian regulatory framework:
- Lack of a univocal definition on the legal nature of the assignment of credits in bulk, leaving open the question of whether this operation should be classified as a financial activity.
- Evidentiary difficulties regarding the actual assignment of credits, given the lack of a specific form and an obligation to advertise, with the exception of publication in the Official Journal for transfers resulting from securitisation.
- Uncertainty about the consequences arising from the failure to register the transferee in the register pursuant to art. 106 TUB, with particular reference to the validity of the transfer contract and the possible application of administrative sanctions.
In light of these doubts, the Court of Brindisi formulated two specific questions to be submitted to the CJEU:
- What are the limits and conditions imposed by EU law on internal legislation regarding the bulk transfer of impaired loans? The Court wonders whether the applicable domestic legislation on the bulk transfer of impaired loans – prior to the approval of Legislative Decree no. 116 of 30 July 2024 – in order not to conflict with Community law, and to comply in particular with anti-money laundering legislation, as well as with the principles borrowed from the law of effective protection, transparency and objective good faith, must provide for the written form. to the substance or for probation, especially when the transferred contractor is a consumer.
- Does the need to comply with Community law include the obligation for operators in the sector to register in supervised registers? Until the entry into force of the aforementioned Legislative Decree no. 116/2024, and always in line with the principles that can be derived from the legislation of European Union source, the referring judge questions whether or not there is an obligation to register in the supervised registers also for those entities that carry out bulk credit transfer activities, but which - not being among the operators carrying out financial activities - would in themselves be exempt from the rules on anti-money laundering, also taking into account the absence of an obligation to stipulate contracts by public deed.
The Court, with its order, raises a important debate on the adequacy of the Italian regulatory framework on the transfer of bad loans, in particular with regard to the need to ensure a balance between the fight against money laundering, consumer protection and the efficiency of the credit market.
The wait is now for the CJEU ruling, which could have a significant impact on the Italian system and provide useful indications for a uniform interpretation of the Community legislation on the assignment of impaired loans. The decision of the Court of Justice could, in fact, open up new interpretative scenarios by national judges and push the Italian legislator to intervene further, in order to ensure greater legal certainty and more effective protection of all the actors involved in such operations.
Content by the Lawyer. Claudio Bonora and of the lawyer. Marco Mancinelli.
