Rimedi civilistici in funzione pro-concorrenziale nel settore bancario. Spunti dalle discipline sulla «portabilità» dei mutui e dei servizi di pagamento [Pro-Competitive Effects of Private Law Remedies in the Banking Sector: Hints from the Payment Services and Loan Portability Regulations]

The new remedies envisaged by article 120 quater, paragraph 7, t.u.b. (on loan portability) and by article 2, paragraph 16, decree n. 3 of 2014 (on the transfer of payment services), lie at the uncertain intersection of sanction, indemnification and full compensation. Contrary to the majority opinion, and more to the point of the rules' pro-competitive aims, the author argues that, in spite of the wording of article 120 quater t.u.b. (providing that the original lender is «in any case» expected to indemnify the client), the plaintiff may legitimately enforce his right against any intermediary responsible for the delayed execution of the service (hence, even against the new lender, if the delay is attributable to him). In the neighboring context of the transfer of payment services a different problem has arisen: one the one hand, the legislator introduced an indemnity in favor of the client «proportionate to the length of the delay and to the balance available on the account»; on the other, it cautioned that the criteria necessary to quantify the said indemnity will be provided by secondary regulation, which has not yet been enacted. The solution proposed in this paper is to let the judge quantify the indemnity based on mere equity, thus safeguarding the fundamental deterrent effect originally envisaged by the legislator.