LORENZO NENCINI, From Lexitor to UniCredit via the decision no. 263/2022 of the Italian Constitutional Court: a judicial short-circuit?

ABSTRACT – The article reviews the UniCredit judgment of 9 February 2023, in which the ECJ ruled that, in the case of early repayment of a consumer credit in the real estate sector, Member States are free to limit the refund of total costs to the recurring ones only, excluding the upfronts. Other than reassessing the Lexitor judgment of 2019, which had affirmed the indivisibility of the reimbursable total costs, the rationale of the UniCredit judgment seems incompatible with Italian Constitutional Court’s decision no 263/2022. The stages of the above-said case law are retraced. Then, the contribution focuses on the UniCredit ruling: if doubts remain as to the logical path of the motivations, the solution put forward can be endorsed. This does not detract from the fact that the position taken by the Italian Constitutional Court in the decision no 263/2022 was inevitable. In any event, the consequences of the UniCredit judgment on the Italian legal system do not appear to be fatal, as an interpretation of the national law in conformity with EU law can certainly be configured. The question of whether we are confronted with a judicial review remains open. A subsequent preliminary ruling, in which the ECJ would most likely attempt a synthesis of the Lexitor and UniCredit solutions, could provide clarity.


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