Information;Judgment — ECLI:EU:C:2023:814
Date: 2023-10-26
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling - decision unnecessary
Origin: Italy

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Translation C-610/22 ‒ 1 
Case C-610/22 
Request for a preliminary ruling 
Date lodged: 
23 September 2022 
Referring court: 
Tribunale di Pistoia (Italy) 
Date of the decision to refer: 
27 August 2022 
Applicant: 
QX 
Defendant:  
Agos Ducato S.p.A. 
  
… 
Tribunale di Pistoia (District Court, Pistoia, Italy) 
[…] 
The Court […] 
in the proceedings […] brought by 
QX […] 
APPLICANT 
against 
AGOS DUCATO S.P.A. […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 8. 2022 – CASE C-610/22 
 
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DEFENDANT 
refers to the Court of Justice of the European Union, pursuant to Article 267 of the 
Treaty on the Functioning of the European Union, a 
REQUEST FOR A PRELIMINARY RULING 
on the correct interpretation of Directive 87/102/EEC, in particular, Articles 3 and 
14 thereof, on the following 
GROUNDS 
I. Subject matter of the action before the national court 
QX brought an action before the District Court, Pistoia, concerning agreement 
No 049405486 which it entered into with Agos Ducato S.p.A. on 7 March 2011, 
for a personal loan in the amount of EUR 35 054.28 (including interest and 
ancillary charges) repayable in 36 monthly instalments of EUR 973.73 […] 
[amortisation information]. Arguing that the APR specified in the agreement, 
namely 8.94%, was lower than the rate actually applied, namely 11.017%, QX 
seeks a declaration ‘that the defendant institution has applied a real interest rate 
higher than the rate specified as the APR in the agreement, in clear breach of 
Article 125bis [of the Testo Unico Bancario (the Italian Consolidated law on 
banking, ‘the TUB’)] as well as of Article 1284 of the [codice civile] (Italian Civil 
Code), and Article 117(6) and Article 121(1)(c) of the TUB’, and consequently an 
order requiring the defendant institution to reimburse the sums paid ‘by way of 
ordinary interest agreed in the contract amounting to EUR 11 218.36 less the 
interest due at the rate of return on ordinary Treasury bonds outstanding in the 
year preceding the date of the loan, as provided for by Article 125bis of the TUB, 
together with interest at the statutory rate from the date of each individual 
payment to the date of reimbursement, with annual capitalisation of the periods’, 
pursuant to the provisions of Article 125bis of Decreto legislativo n. 385/1993 
(Legislative Decree No 385/1993), the so-called Consolidated law on banking 
(TUB), paragraph 6 of which expressly provides that ‘Contractual terms 
concerning costs to be borne by the consumer which, contrary to the requirements 
of Article 121(1)(e), have not been included in, or have been incorrectly included 
in the APR advertised in the documentation drawn up in accordance with 
Article 124 shall be null and void. The invalidity of a contractual term shall not 
render the agreement null and void.’ 
Agos Ducato S.p.A. lodged a defence in those proceedings. Among other things, it 
disputes the applicability to the present case of Article 125bis of the TUB, 
pursuant to which the relevant contractual term will be null and void in the event 
that the APR is incorrectly stated, or where the APR stated in the agreement is not 
the rate actually applied during the currency of the agreement, which is precisely 
what the applicant claims. That is because that provision entered into force after 
the date on which the personal loan agreement at issue was concluded (7 March 
2011), having been introduced by Decreto legislativo n. 141/2010 del 13 agosto 
AGOS DUCATO 
 
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2010 ‘Attuazione della direttiva 2008/48/CE relativa ai contratti di credito ai 
consumatori, nonché modifiche del titolo VI del testo unico bancario (decreto 
legislativo n. 385 del 1993) in merito alla disciplina dei soggetti operanti nel 
settore finanziario, degli agenti in attività finanziaria e dei mediatori creditizi’ 
(Legislative Decree No 141/2010 of 13 August 2020 implementing Directive 
2008/48/EC on credit agreements for consumers and amending Title VI of the 
Consolidated law on banking (Legislative Decree No 385 of 1993) as regards the 
rules applicable to operators in the financial sector, financial intermediaries and 
credit brokers; ‘Legislative Decree No 141/2010’), which, for financial 
intermediaries, entered into force on 1 June 2011, following the enactment of 
secondary implementing legislation. Accordingly, in accordance with the general 
principle that laws cannot apply retroactively, that provision is not applicable to 
an agreement concluded on an earlier date, such as that at issue in this case. 
In reply to the arguments in defence put forward by the lender Agos Ducato 
S.p.A., the applicant has argued (inter alia and in so far as is relevant here) that 
even the ‘old’ Article 124 of the TUB, in the version in force prior to the entry 
into force of Article 125bis of the TUB and thus unquestionably applicable to the 
loan agreement of 7 March 2011, contemplated incorrect statement of the APR in 
an agreement as a ground of invalidity, albeit not expressly stipulated, by virtue of 
the fact that that provision (Article 124 of the TUB in the version in force prior to 
the amendments made by Legislative Decree No 141/2010) provided, in 
paragraph 5 thereof, for the replacement, by operation of the law, of contractual 
terms (in accordance with the criteria specified in paragraph 5 of Article 124 of 
the TUB) both in the event that a contractual term is ‘missing’ and in the event 
that a contractual term is ‘null and void’ and, in paragraph 2 thereof, mentioned, 
as one of the matters which must be set out in a consumer credit agreement, the 
APR (point (c)). 
It is therefore of decisive importance to the decision in the case before the national 
court to establish whether or not incorrect statement of the APR in an agreement 
(which is to say, the statement, in an agreement, of an APR different from that 
which is actually applied during the currency of the agreement) is a ground of 
invalidity of the relevant contractual term and the consequential application of the 
replacement criteria, which apply by operation of the law, for the calculation of 
interest, even under the ‘old’ Article 124 of the TUB, prior to the entry into force 
of Article 125bis of the TUB, which, by contrast, expressly contemplates incorrect 
statement of the APR as a ground of invalidity of the relevant contractual term. 
II. Grounds of the reference to the Court of Justice for a preliminary ruling 
pursuant to Article 267 TFEU 
In view of the foregoing and given also that there remains a clear conflict in 
domestic case-law 1 as regards the legal issue just explained, it appears necessary 
 
1 … [national case-law according to which a contractual term will be null and void in the event 
that the APR is stated incorrectly] 
REQUEST FOR A PRELIMINARY RULING OF 27. 8. 2022 – CASE C-610/22 
 
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to seek an interpretation of Article 124 of the TUB, in the version prior to the 
entry into force of Legislative Decree No 141/2010, which is consistent with the 
ratio legis of that law. 
Because Article 124 of the TUB which predates the entry into force of Legislative 
Decree No 141/2010 was enacted in order to implement Council Directive 
87/102/EEC of 22 December 1986 for the approximation of the laws, regulations 
and administrative provisions of the Member States concerning consumer credit, it 
seems all the more important and appropriate to make use of the mechanism 
provided for by Article 267 TFEU in order to request from the Court of Justice of 
the European Union a preliminary ruling on the correct interpretation of Directive 
87/102 and, in particular, on the question of whether ‘[ensuring] that the 
provisions which [Member States] adopt in implementation of [Directive 87/102] 
are not circumvented as a result of the way in which agreements are formulated’, 
as is required by Article 14(2) of that directive, only concerns failure to state the 
APR in an agreement, or also concerns incorrect statement of the APR in an 
agreement. 
III. Relevant legal provisions 
‒ Domestic Italian law 
Article 124 of decreto legislativo n. 385/1993 del 1o settembre 1993, Testo unico 
delle leggi in materia bancaria e creditizia (Legislative Decree No 385/1993 of 
1 September 1993 ‒ the consolidated law on banking and credit (Gazzetta 
Ufficiale No 230 of 30 September 1993, Ordinary Supplement No 92), which 
entered into force on 1 January 1994 
‘Article 124 (Agreements) 
1. Article 117(1) and (3) shall apply to consumer credit agreements. 
2. Consumer credit agreements shall state: 
(a) the amount of the loan and the method of financing; 
(b) the number of instalments, together with the amount and due date of each 
instalment; 
(c) the APR; 
(d) details of the analytical conditions in accordance with which the APR may 
be changed; 
(e) the amount and basis of the charges which are not included in the 
calculation of the APR. In the event that it is impossible for these charges to be 
stated precisely, a realistic estimate thereof shall be given; the consumer shall not 
be liable to pay any charges other than these; 
AGOS DUCATO 
 
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[…] 
3. Consumer credit agreements relating to the purchase of certain goods and 
services shall contain, in addition to the matters set out in paragraph 2, and in the 
absence of which the agreement will be null and void, the following: 
(a) an analytical description of the goods or services; 
(b) the cash purchase price, the price fixed in the agreement and the amount of 
any down payment or deposit; 
(c) the conditions which determine the transfer of ownership, where the transfer 
of ownership is not immediate. 
4. No sums may be demanded from or charged to the consumer except on the 
basis of express contractual provisions. Terms which refer to custom for the 
purpose of determining the economic conditions applied shall be null and void 
and shall be deemed not to have been included. 
5. In the event that a contractual term is missing or is null and void, that 
term shall be replaced, by operation of the law, in accordance with the following 
criteria: 
(a) The APR shall be equivalent to the minimum nominal rate for annual 
Treasury bonds or such other similar securities as may be specified by the 
Minister for the Economy and Finance … issued in the twelve months preceding 
the conclusion of the agreement; 
[…]’ 
[For the purposes of comparison, Article 125bis of the TUB, introduced by 
Legislative Decree No 141/2010 of 13 August 2010, is set out below […] 
‘Article 125bis (Agreements and communications) 
[…] [provisions not relevant to the present case] 
5. No sums may be demanded from or charged to the consumer except on the 
basis of express contractual provisions. 
6. Contractual terms concerning costs to be borne by the consumer which, 
contrary to the requirements of Article 121(1)(e), have not been included in, or 
have been incorrectly included in the APR advertised in the documentation 
drawn up in accordance with Article 124 shall be null and void. 
The invalidity of a contractual term shall not render the agreement null and void. 
7. In the event that the relevant contractual term is missing or is null and void: 
REQUEST FOR A PRELIMINARY RULING OF 27. 8. 2022 – CASE C-610/22 
 
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(a) The APR shall be equivalent to the minimum nominal rate for annual 
Treasury bonds or such other similar securities as may be specified by the 
Minister for the Economy and Finance issued in the twelve months preceding the 
conclusion of the agreement. No other sums shall be payable by the consumer by 
way of interest, commissions or other charges; 
[…] [provisions not relevant to the present case]] 
- European Union law 
Council Directive 87/102/EEC of 22 December 1986 for the approximation of the 
laws, regulations and administrative provisions of the Member States concerning 
consumer credit (OJ 1987 L 42, p. 48) 
‒ ninth recital: ‘Whereas the consumer should receive adequate information 
on the conditions and cost of credit and on his obligations; whereas this 
information should include, inter alia, the annual percentage rate of charge for 
credit, or, failing that, the total amount that the consumer must pay for credit; 
whereas, pending a decision on a Community method or methods of calculating 
the annual percentage rate of charge, Member States should be able to retain 
existing methods or practices for calculating this rate, or failing that, should 
establish provisions for indicating the total cost of the credit to the consumer’; 
‒ tenth recital ‘Whereas the terms of credit may be disadvantageous to the 
consumer; whereas better protection of consumers can be achieved by adopting 
certain requirements which are to apply to all forms of credit’; 
‒ fifteenth recital ‘Whereas the provision of information on the cost of credit 
in advertising and at the business premises of the creditor or credit broker can 
make it easier for the consumer to compare different offers’; 
‒ sixteenth recital ‘Whereas consumer protection is further improved if credit 
agreements are made in writing and contain certain minimum particulars 
concerning the contractual terms’; 
‒ twenty fourth recital ‘Whereas credit agreements should not derogate, to the 
detriment of the consumer, from the provisions adopted in implementation of this 
directive or corresponding to its provisions; whereas those provisions should not 
be circumvented as a result of the way in which agreements are formulated’; 
‒ Article 3 
‘Without prejudice to Council Directive 84/450/EEC of 10 September 1984 
relating to the approximation of the laws, regulations and administrative 
provisions of the Member States concerning misleading advertising, and to the 
rules and principles applicable to unfair advertising, any advertisement, or any 
offer which is displayed at business premises, in which a person offers credit or 
offers to arrange a credit agreement and in which a rate of interest or any figures 
AGOS DUCATO 
 
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relating to the cost of the credit are indicated, shall also include a statement of 
the annual percentage rate of charge, by means of a representative example if no 
other means is practicable’; 
‒ Article 4 
‘1. Credit agreements shall be made in writing. The consumer shall receive a 
copy of the written agreement. 
2. The written agreement shall include: 
(a) a statement of the annual percentage rate of charge; 
(b) a statement of the conditions under which the annual percentage rate of 
charge may be amended. 
In cases where it is not possible to state the annual percentage rate of charge, the 
consumer shall be provided with adequate information in the written agreement. 
This information shall at least include the information provided for in the second 
indent of Article 6(1). 
3. The written agreement shall further include the other essential terms of the 
contract. 
By way of illustration, the annex to this directive contains a list of terms which 
Member States may require to be included in the written agreement as being 
essential’; 
‒ Article 14 
‘1. Member States shall ensure that credit agreements shall not derogate, to the 
detriment of the consumer, from the provisions of national law implementing or 
corresponding to this directive. 
2. Member States shall further ensure that the provisions which they adopt in 
implementation of this directive are not circumvented as a result of the way in 
which agreements are formulated, in particular by the device of distributing the 
amount of credit over several agreements’. 
IV. The question referred for a preliminary ruling 
In conclusion, the question referred to the Court of Justice of the European Union, 
pursuant to Article 267 TFEU and concerning the correct interpretation of 
Articles 3, 4 and 14 of Directive 87/102, is the following: ‘Does ensuring “that the 
provisions which [Member States] adopt in implementation of [Directive 87/102] 
are not circumvented as a result of the way in which agreements are formulated”, 
as is required by Article 14(2) of that directive, concern only failure to state the 
APR in an agreement, or does it concern also incorrect statement of the APR in an 
agreement?’ 
REQUEST FOR A PRELIMINARY RULING OF 27. 8. 2022 – CASE C-610/22 
 
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Pistoia, 27 August 2022 
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