The case, explained
Banking transparency and floor clauses in the orientation of the Joint Sections
6 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa
According to reports from the specialized press, the recent evolution of case law in September 2024 confirms the significance of the Joint Sections' intervention regarding the nature of floor clauses. The issue, which pitted consumers against credit institutions for over a decade, has now found a clear definition concerning the technical classification of these minimum interest rate thresholds applied to variable-rate mortgages, strictly separating banking regulations from those governing financial investments. This article explores the qualification of the clause as a rate-setting element, distinguishing it from the aspects related to the ius variandi and Euribor manipulation discussed elsewhere. Through the twin case of Gaio Sventura, we will see how the transparency obligation translates into a duty of clarity that is not merely formal but economic, enabling the client to understand the risk of a contractual imbalance.
In brief
The Joint Sections of the Supreme Court ruled that a floor clause does not constitute an implicit derivative instrument, but rather a clause determining interest rates. This excludes the application of the TUF (Consolidated Law on Finance), but imposes strict transparency standards under the TUB (Consolidated Banking Act) and the Consumer Code. The bank must ensure that the client understands the economic impact of the minimum threshold, providing a level of clarity that allows for the assessment of contractual imbalance in the absence of compensatory protection mechanisms.
The facts
The case brought before the Supreme Court originates from a long-standing dispute between a borrower and a major banking institution regarding the legitimacy of a floor clause included in a variable-rate mortgage contract. According to reports from specialized legal press, the client complained that this clause, by preventing the rate from falling below a certain threshold despite the decline in market indices, acted as a hidden put option sold to the bank. The proceedings concluded with the ruling of the Joint Sections, called upon to resolve a conflict of interpretation over the nature of such provisions. Other aspects of the case, such as those related to Euribor manipulation, are addressed in dedicated articles in this column.
The rules in play
- Article 1 of the TUF defines financial derivative instruments, the application of which entails disclosure obligations regarding risk levels and value measurement.
- Article 117 of the TUB sets out form and content requirements for banking contracts, penalizing with nullity any clauses that fail to correctly determine the interest rate.
- Articles 33 and 34 of the Consumer Code govern unfair terms, providing that clauses relating to the main subject matter of the contract must be drafted in a clear and comprehensible manner to avoid findings of contractual imbalance.
What the case law says
Case law from the court of last resort has definitively clarified that a floor clause is not an implicit derivative instrument, as it lacks a speculative purpose independent of the cause of the mortgage contract. The Supreme Court ruled that it represents a mere price-determination mechanism for credit. However, it specified that enhanced transparency must be guaranteed: the client must be placed in a position to comprehend the concrete economic impact of the clause, particularly in the absence of a cap clause limiting the maximum interest rate, so as to avoid a breach of the duty of contractual good faith.
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What it teaches professionals
- It is advisable not to base the defense strategy solely on the alleged derivative nature of the clause, but rather to focus on the breach of disclosure obligations under the TUB.
- It is essential to submit expert technical reports demonstrating the concrete economic imbalance resulting from the floor clause compared to market conditions at the time of execution.
- Practitioners should always verify whether compensatory mechanisms exist, as the absence of a cap clause strengthens arguments regarding unfairness and breach of good faith.
References: D.Lgs. 58/1998 (TUF)D.Lgs. 385/1993 (TUB)D.Lgs. 206/2005 (Codice del Consumo)Art. 1346 Codice CivileArt. 1418 Codice Civile
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Frequently asked questions
Can I ask for a refund if my mortgage has a floor clause?
A refund claim is permissible if the clause was not drafted in a clear and comprehensible manner or failed to allow an assessment of the actual cost of the loan. However, each case requires a specific analysis of the contract and pre-contractual documentation.
Is a floor clause always void if there is no cap clause?
No, the absence of a maximum limit (cap) does not result in the automatic nullity of the clause, but it serves as a factor that judges evaluate to determine whether a contractual imbalance exists between the bank and the client.
What is the statute of limitations for contesting the clause?
An action seeking to declare the clause void is not subject to a statute of limitations; however, claims for the restitution of excess interest paid are generally subject to a ten-year limitation period, running from individual payments or from the termination of the credit relationship.
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