Case C-769/26, Banca Sistema – a shield the consumer wants to use as a sword
A consumer who wants an unfair term struck out and the money returned first has to know whom to sue. When the loan has been sold, that is not obvious — and an Italian justice of the peace asks whether EU law allows the consumer not to care.
Facts
PJ is suing Banca Sistema SpA before the Ufficio del Giudice di Pace di Nocera Inferiore. PJ seeks a declaration that a term of a consumer credit agreement is unfair, and repayment of sums unduly paid under it. The rights under the agreement — or the agreement itself — have been assigned, so two professional parties stand behind the loan: the original lender and the assignee. Under national legislation or case law, as the referring court describes it, only the party that legally received the sums may be sued for their recovery, so the consumer must first establish the nature and type of the assignment between the two in order to identify the right defendant. The court asks whether Article 17 of Directive 2008/48/EC, read with recital 41, instead allows the consumer to sue either at his or her choice, leaving the professionals to settle between themselves. (The case name is the Court’s; the notice gives no further detail of the objections raised against the consumer, which are set out only in the order for reference.)
Questions Referred
(i) Can and must recital 41 and Article 17 [of] Directive [2008/48] be interpreted as meaning that a consumer who is subject to an assignment (whether of the claim or the credit agreement) may, at his or her sole discretion, seek redress from both the assignor and the assignee in the event that he or she seeks a declaration of invalidity in respect of an unfair term and consequently the recovery of sums unduly paid, leaving it to the professional parties to seek recourse against the other for the sums paid to the consumer;
(ii) accordingly, must the phrase ‘shall be entitled to plead’ in Article 17 [of] Directive 48/2008/EEC (‘…the consumer shall be entitled to plead against the assignee …’) be interpreted as precluding legislation or judicial interpretation in a Member State which requires the consumer to investigate the nature and type of assignment of the claim or contract between the professional parties in order to identify the party against whom an action for the invalidity of a term on the grounds of its unfairness and a consequent claim for the recovery of sums unduly paid may be brought;
(iii) lastly, does the provision in question preclude legislation or judicial interpretation in a Member State which establishes that only the legal recipient of the sums has the exclusive capacity to be sued, thereby exposing the consumer to the objections set out in the order for reference.
Sources
OJ notice C/2026/4784 (EUR‑Lex) · Case file on CURIA · Directive 2008/48/EC · Directive (EU) 2023/2225
Comment
The difficulty is in the provision’s grammar. Article 17(1) provides that, on assignment, “the consumer shall be entitled to plead against the assignee any defence which was available to him against the original creditor, including set-off”. That is the language of a shield: whatever the consumer could have said to the lender when it came to collect, he can say to whoever bought the debt. The referring court wants it to work as a sword — as a basis for bringing an action, for invalidity and restitution, against either professional party at the consumer’s election. The second question puts the point directly by asking what “shall be entitled to plead” requires, and the literal answer is that it concerns defences to the assignee’s claim, not the choice of defendant for the consumer’s own.
The stronger foothold is the recital. Recital 41 states that assignment “should not have the effect of placing the consumer in a less favourable position”. Measured against that, the rule the referring court describes has an obvious problem: before the assignment the consumer had one counterparty and knew who it was; after it, he must reconstruct a transaction between two banks, to which he was not party and about whose terms he may have been told nothing — Article 17(2) does not even require notice where the original lender goes on servicing the loan. A procedural rule that makes an unfair-terms claim depend on information held only by the professionals sits uneasily with the principle of effectiveness, which the Court applies to consumer remedies with some rigour. That is probably where the answer lies: not in reading Article 17 as a free choice of defendant, but in asking whether national rules on standing make the consumer’s claim excessively difficult in practice.
The Court has read Directive 2008/48 generously before. In Case C‑383/18, Lexitor (ECLI:EU:C:2019:702) it held that the right to a reduction in the total cost of credit on early repayment “includes all the costs imposed on the consumer” — a ruling that turned consumer-credit refunds into mass litigation, and with it the question of which of several banks has to pay. Banca Sistema is that question in its purest form, and the answer will outlive the Directive it interprets. Directive (EU) 2023/2225 repeals Directive 2008/48 with effect from 20 November 2026 and reproduces Article 17 almost word for word as its Article 39; but the old Directive “shall continue to apply to credit agreements existing on 20 November 2026 until their termination” — which, for long-term consumer loans, means years.
Two limits on the reference are worth flagging. Unfairness is a concept of Directive 93/13, not of Directive 2008/48, and the questions do not cite it; the Court may well reach for it anyway, as the natural home of both the unfair-terms claim and the effectiveness principle. And the third question depends on “the objections set out in the order for reference”, which the published notice does not reproduce — so its full reach will only be visible once the order itself is available.