The particular way in which the system for reporting risks to the Central Credit Register (Centrale Rischi) managed by the Bank of Italy operates points towards excluding a general obligation to give prior notice of a report.
The Bank is not required to give any prior notice to the customer if the latter is not a consumer and, additionally, where the report concerns not a “bad loan” (a sofferenza) but an exposure “at maturity”, for a debt of EUR 30,000 or more, since in such a report the institution has no margin of discretion.
The provision of Article 4(7) of the Code of Ethics and Good Conduct for information systems managed by private entities, which imposes on the Bank an obligation to give notice to the customer, does not apply to the Bank of Italy’s Central Credit Register, by reason of the public-law nature of the institution.
These are the principles stated by the Court of Napoli Nord, Pres. Caria – Rel. Satta, in an order filed on 16.04.2015.
In the case at hand, a customer of a credit institution brought an application under Article 700 of the Code of Civil Procedure to obtain the deletion and/or suspension of his name from the Bank of Italy’s Central Credit Register, claiming that the report was unlawful for breach of Article 4(7) of the intermediaries’ self-regulation code, and also asserting that the Bank that had made the report “had on discount securities in favour of the applicant for several tens of thousands of euro”. The Court granted the application, ordering the respondent Bank to immediately suspend the periodic reporting to the Central Credit Register.
Against that order, the credit institution lodged a complaint under Article 669-terdecies of the Code of Civil Procedure, challenging on the merits the rulings of the urgent measure and pointing to the unlawful application, by the judge of first instance, of Article 4(7) of the Code of Ethics and Good Conduct for IT systems managed by private entities, since it is not applicable to the Bank of Italy’s Central Credit Register by reason of the public-law nature of the institution.
In upholding the complaint brought by the credit institution, the Court identified in detail the – residual – cases in which a financial intermediary making a report to the Central Credit Register at the Bank of Italy is required to give prior notice to the person concerned.
In particular, the judge excluded the operation of the aforementioned code of ethics, arguing on the basis of point 6 of its preamble, according to which “this code does not concern information systems held by public entities and in particular the central credit register service managed by the Bank of Italy”.
Furthermore, the judge hearing the complaint also observed that “it is the particular way in which the system for reporting risks to the register managed by the Bank of Italy operates that points towards excluding a general obligation to give prior notice of the report”. Against this general principle, the Court then identified the limited regime of cases in which, by way of exception, the obligation to give prior notice does apply.
The order under examination first of all clarified that reports to the Central Credit Register must necessarily be preceded by notice to the person concerned where the latter is a consumer, in compliance with Article 123 TUB (“lenders shall inform the consumer in advance the first time they report to a database the negative information provided for by the relevant rules. The notice is given together with the sending of reminders or other communications, or on a stand-alone basis”).
Where, on the other hand, the customer is not a consumer, the Bank’s obligation to give prior notice exists only where the report concerns “bad loan” receivables – those whose collection is, that is, uncertain, the debtor being in a situation of insolvency or in another situation equivalent to it – “in relation to which the Bank must make a discretionary assessment of the customer’s overall financial situation, to be carried out on the basis of the factual elements in its possession” (as per Circular no. 139/2011). It is precisely from this discretionary assessment that the obligation to give prior notice to the customer derives.
There is, by contrast, no obligation to inform on the part of the Bank where the report concerns a credit position for an amount equal to or greater than EUR 30,000.00 (as per Circular no. 139/1991, Chapter II, Section I, para. 5) that is not a “bad loan”. In that case, since the credit institution makes no discretionary assessment, the obligation to report to the Bank of Italy is not associated with any obligation to give prior notice.
The circular cited, in fact, provides that “intermediaries are obliged to report the entire credit position towards the individual customer only if, on the reference date, that is the last day of the month, it is equal to or greater than EUR 30,000”.
Applying these principles to the case at hand, the Court, having excluded that the reported customer was a consumer and having established that the credit reported was not a “bad loan” but “at maturity”, for an amount above EUR 30,000, excluded any obligation on the Bank to inform the customer, holding therefore that “the report to the Bank of Italy’s Central Credit Register had to be regarded as lawful, with the consequent granting of the complaint”.
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