1) Italian Supreme Court: on the right of the consumer, in the event of early repayment of a consumer credit agreement (even if executed before 25 July 2021), to receive the pro rata restitution of all costs incurred at the time of execution

In the event of early repayment of a consumer credit agreement, the consumer is entitled to the pro rata restitution of all costs incurred at the time of execution, including not only recurring costs but also up-front costs, even if the agreement has been executed before 25 July 2021.

By the order no. 13328/2026, published on 8 May 2026, the Italian Supreme Court ruled on the right of the consumer to a reduction of the total cost of credit in the event of early repayment of a consumer credit agreement executed before 25 July 2021, i.e. the date of entry into force of the new formulation of Article 125-sexies of the Consolidated Banking Act (“TUB”).

The dispute originated from the early repayment of a salary-backed loan (contratto di finanziamento contro cessione di quote della pensione), on the occasion of which the bank had recognized in favour of the consumer a reduction limited to the costs referable to the residual life of the agreement, excluding the pro rata reimbursability of distribution network commissions, as they could be characterized as up-front costs. The consumer had accordingly brought proceedings to obtain restitution of the unaccrued portion of those up-front commissions, obtaining a favourable outcome at both stages of the proceedings on the merits. In support of their decisions, the lower courts had referred to the principle, affirmed by the Court of Justice of the European Union in the Lexitor judgment (Case C-383/18), according to which the reduction of the total cost of credit provided for under Article 16(1) of Directive 2008/48/CE must be extended to all costs charged to the consumer, and therefore not only to recurring costs but also to up-front costs.

The financing bank filed an appeal on a point of law, arguing that, by virtue of the transitional provision under Article 11-octies, paragraph 2, of Decree-Law No. 73/2021, the former Article 125-sexies of the TUB should continue to apply to agreements concluded before 25 July 2021, with the consequence that only recurring costs would be reimbursable.

Seized of the matter, the Italian Supreme Court first referred to the Lexitor judgment, emphasizing that that ruling of the Court of Justice “enshrined the principle of reimbursability of all costs connected with the extension of credit”.

The Court then examined the transitional provision under Article 11-octies, paragraph 2, of Decree-Law No. 73/2021. Noting that the original formulation of that provision was declared constitutionally illegitimate by the Constitutional Court in judgment No. 263 of 2022, it drew from the latter confirmation of the principle that “in the event of early repayment of a consumer credit agreement, the consumer is entitled to the pro-rata restitution of all costs incurred at the time of execution, even where that took place before 25 July 2021, the date of entry into force of the new Article 125-sexies of the TUB”, with reference to “each individual cost item incurred by the [consumer] in connection with the financing granted, whether up front or recurring”.

The Supreme Court then excluded that the subsequent amendment of the same transitional provision, made by Law No. 103/2023, could justify a different conclusion, observing that the provision now makes “literal reference to compliance with EU law and the rulings of the Court of Justice of the European Union: if the legislature wished to emphasize that for agreements executed before 25/07/2021 the former text of Article 125 sexies of the TUB applies in compliance with EU law as interpreted by the CJEU, it is evident that that article must still be interpreted in accordance with the dictates of the “Lexitor” judgment, with consequent reimbursability also of up-front costs in proportion to the actual duration of the financing”. It further specified that distribution commissions must be included among up-front costs, even where reversed by the credit institution to the financial intermediary, since “among the components of the total cost of credit to be reimbursed in the event of early repayment there must also be included (as being a «total cost») the charges borne by the financier towards third parties”.

In the light of those considerations, the Italian Supreme Court enunciated the following principle of law: “in the event of early repayment of a consumer credit agreement, the consumer is entitled to the pro-rata restitution of all costs incurred at the time of execution, even where that took place before 25 July 2021, the former text of Article 125 sexies of the TUB also having to be interpreted in the light of the ruling of the CJEU of 1 September 2019, Case C-383/18 (the so-called Lexitor judgment), and of the interpretation given by Constitutional Court judgment No. 263 of 22/12/2022, with the consequent subjection to reduction also of so-called up-front costs, including intermediation costs”.

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2) Italian Supreme Court, Joint Sections: on contractual expert determination (perizia contrattuale) (and on the conditions necessary for it to assume the nature of arbitration)

Contractual expert determination is distinguished from arbitration where neither party is precluded from bringing judicial proceedings in respect of the dispute or the portion of the dispute entrusted to the expert, and its activation produces an interrupting effect, day by day, for the entire duration of the expert determination proceedings.

By the judgment no. 11959/2026, published on 30 April 2026, the Joint Sections ruled on the nature of contractual expert determination (perizia contrattuale), clarifying its relationship with the parties’ right to bring judicial proceedings and with the running of limitation periods.

The dispute originated from the action brought by an insurer to obtain, among other things, a declaration that the insured’s right to indemnification had become time-barred. The insured had raised a plea of lack of jurisdiction, arguing that questions relating to the identification and quantification of the damage should be referred, by virtue of the general policy conditions, to an arbitral tribunal. At the stages on the merits, the insurer’s claim had been upheld on the ground that the contractual remedy had been invoked after the expiry of the two-year limitation period. Furthermore, the Court of Appeal had identified in the general policy conditions not an arbitration clause, but a framework for the possible recourse to a contractual expert determination in the event of disagreement on the identification and quantification of the damage, without any renunciation by the parties of the right to exercise their rights before the ordinary courts.

Seized of the appeal brought by the insured, the Joint Sections proceeded from the plurality of forms that contractual expert determination may assume in practice and from the observation that, whilst it finds its basis “in a contractual stipulation that employs the scheme of the collective mandate”, its nature “does not lend itself to being defined in general and absolute terms, but is necessarily correlated to the characteristics of the stipulation that the contracting parties intended to perfect and comes into consideration on a case-by-case basis”.

The Court then referred to the distinguishing features of arbitration, observing that “[t]he referral of the dispute to arbitrators is configured as a renunciation of the exercise of judicial action and of the jurisdiction of the State, through the choice of a resolution of the dispute by means of an instrument of a private-law nature”.

It follows, according to the Court, that only in the presence of such a renunciation “may the contractual expert determination assume, by reason of its particular content and where that content is referable to the provisions of Article 808-ter of the Code of Civil Procedure, the nature of irritual arbitration (arbitrato irrituale) and preclude the ordinary court, resort to which the parties have renounced, from ruling on the dispute”.

Conversely, in the absence of such renunciation, “the contractual expert determination (so to speak «pure») does not have the nature of arbitration, but constitutes a fully atypical contractual arrangement […] [which] gives rise to a contractual obligation to give effect to the result of the contractual expert determination only where the same has been carried out and brought to completion, but not to a renunciation of jurisdiction”.

With reference to “pure” contractual expert determination, the Joint Sections therefore excluded that there could be “a suspension of the limitation period for inexigibility of the claim, with the consequent inadmissibility of the claim”, given that “in the case of (so-called «pure») contractual expert determination, there is no renunciation of judicial protection, so that there is no impediment whatsoever to the judicial assertion of the credit claim”. On the contrary, the commencement and continuation of the expert determination proceedings “is incompatible with the normative assessment of inertia on the part of the holder which, pursuant to Article 2934(1) of the Civil Code, […] justifies the running of the limitation period and means that the interrupting effect is reproduced for the entire duration of the operations constituting the contractual expert determination”, day by day.

The Joint Sections accordingly enunciated the following principles of law:

• “contractual expert determination consists, in general, in a contractual clause whereby the contracting parties wish a third party, chosen for his specific technical knowledge and the trust they repose in him, to intervene on one or more questions relevant to a legal relationship subsisting between them, for the clarification of which the application of the rules of experience of a certain sector is necessary, and they agree to subject themselves to a twofold obligation, that arising from the agreement by virtue of which they undertake to entrust to a third-party expert the resolution of a certain question and that arising from the expert determination that the third-party expert will carry out”;
• “contractual expert determination may assume, where its content is referable to the provisions of Article 808-ter of the Code of Civil Procedure and provides for a definitive renunciation by the parties of the right to exercise their rights before the ordinary court, the nature of irritual arbitration (arbitrato irrituale); in the absence of such a renunciation, contractual expert determination constitutes a fully atypical arrangement having the nature of a contractual obligation by which the parties identify a mechanism that, if used and brought to completion, enables them to overcome in a binding manner a portion of the existing dispute through the creation of a new arrangement of interests dependent on the opinion of the third party, which the contracting parties undertake to observe”;
• “pure contractual expert determination has a merely obligatory nature and does not preclude either party from bringing judicial proceedings in respect of the portion of the dispute entrusted to the expert; such conduct constitutes a breach and exposes the party to all the consequential damages claims”;
• “the exercise of the right effected through the act of «calling» the pure contractual expert determination (atto di “chiamata” della perizia contrattuale pura) and the consequent commencement of proceedings that develops into a protracted and continuous series of operations, in accordance with the contractually agreed modalities, constitute conduct (of protracted performance of this contractual obligation) incompatible with the normative assessment of inertia on the part of the holder which, pursuant to Article 2934 of the Civil Code, justifies the running of the limitation period and produces an interrupting effect de die in diem for the entire duration of the operations constituting such expert determination, until its conclusion or the expiry of the time limit contractually established for that purpose”.

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