Prepared by Cristian Sgaramella, Raffaele Gentile, Corrado Pisacane and Valeria Saponaro
On 30 December 2021, the Court of Cassation, in its Joint Sections, pronounced judgment no. 41994, which resolved the jurisprudential contrast formed on the issue of sureties drawn up according to the ABI scheme, which had already been judged to be contrary to the antitrust competition rules, since it was the result of a restrictive agreement. With the long-awaited ruling, the Court of Appeal has affirmed the principle of law according to which the clauses complying with the standard contract are partially invalid, therefore the guarantee remains in force and valid.
Let us proceed with a brief excursus of the facts, before mentioning the aforementioned judgment of the United Sections of the Court of Cassation.
As is well known, in March 2003, the Italian Banking Association (hereinafter, “ABI”) submitted to the Bank of Italy the scheme relating to the typical content of the “surety to guarantee banking transactions“, composed of thirteen articles. These articles governed: the subject matter of the guarantee (Article 1), the obligations of the guarantor (Articles 2, 3, 4, 6, 7, 8 and 10), the obligations and powers of the Bank (Articles 5, 9, 11 and 12), and finally, the clauses considered inapplicable to the guarantee provided by a person who is a consumer pursuant to Article 1469-bis, paragraph 2, of the Italian Civil Code in favor of a person of the same capacity (Article 13).
The above-mentioned scheme, characterized by the so-called omnibus clause, provided that the guarantor would have guaranteed the debtor for all the obligations assumed with a credit institution at the time of the subscription, as well as for any other obligation which might arise, directly or indirectly, in the course of the relationship with the Bank.
In November 2003, the Bank of Italy, which at that time was the competition authority for credit institutions, launched an investigation to ascertain whether the contractual scheme proposed by the ABI might constitute an agreement restricting competition. To this end, the Antitrust Authority was involved, which pointed out that the rules of the omnibus guarantee (as set out in the above-mentioned scheme) contained clauses capable of restricting competition; in particular, with reference to nos. 2, 6 and 8, i.e. the so-called “revival“, “waiver of terms pursuant to Article 1957 of the Civil Code” and “survival” clauses. It states that ‘ultimately, the competitive assessment of the scheme in question is not based, as repeatedly argued by the ABI, on the finding that it does not comply with the rules of the Italian Civil Code, which is irrelevant from an antitrust point of view, but rather, it should be reiterated, on the uniform provision by the trade association of detailed rules that aggravate the position of the guarantor, affecting the characterization of the banking services offered‘ (point 36 of the opinion), concluding that ‘(…) the scheme of arrangement in question (which is not in line with the Italian Civil Code, but rather with the provisions of the Italian Civil Code) is not based on the rules of the Italian Civil Code‘ (point 36 of the opinion). ), concluding that ‘(…) the type of contract under consideration (the omnibus guarantee contract, ed. ) contains clauses likely to restrict competition within the meaning of Article 2(2) of Law No. 287/90‘ (point 50 of the opinion).
By order No. 55/2005, the Bank of Italy therefore declared null and void the aforementioned clauses that constituted the consequent application of the ABI scheme, without prejudice to all the others.
In recent years, legal cases have recorded numerous disputes aimed at obtaining real protection from guarantors precisely because of the administrative decisions.
On this point, the jurisprudence of both merit and legitimacy has not expressed an unequivocal opinion: in fact, there have been different and numerous orientations on the fate of sureties containing provisions complying with the ABI scheme. A first orientation sustained that the surety given in compliance with the scheme laid down by the ABI did not imply the entire invalidity of the guarantees themselves. On the contrary, another and shared orientation was inclined to consider as invalid, under certain conditions, the guarantees conforming to the scheme at issue; distinguishing, moreover, between those who sustained total invalidity and those, with less rigidity, possible partial invalidity.
An initial orientation dealt with the specific issue of the protections that can be brought by private individuals, radically excluding the legitimacy of consumers to bring any form of action on account of the jurisdiction attributed exclusively to the Court of Appeal in a single level of judgment on the merits, not providing for the active legitimacy of consumers (Court of Cassation no. 17475/2002). Subsequently, the Supreme Court, in a second ruling, extended the legitimacy also to private individuals, not entrepreneurs, however, recognizing them only the compensation action to the detriment of the real one (Court of Cassation no. 9384/2003). A significant ruling in this matter was Court of Cassation’s decision no. 2207 in United Sections on 4 February 2005, under which both the claim for damages and the action for nullity were admitted. Finally, the orientation of the Supreme Court in judgment no. 2404/2019 was to consider applicable a pronouncement of partial nullity only of the clauses deriving from the unlawful agreements.
The legal solutions, which are not always homogeneous, have contributed to creating the situation described in the Interlocutory Order no. 11486 of 30.04.2021 “where the situation of jurisprudential confusion is described and it is stated that “there is no agreement as to the identification of the type of invalidity, given that, in addition to the already mentioned invalidity due to non-compliance with mandatory rules or illegality of the cause, there is a nullity due to illegality of the object (limited to the advantage that the company has gained from entering into the downstream contract), a derivative nullity (referable to that of the upstream agreement, due to the functional connection existing with the downstream contract) or a protective nullity (provided for the protection of the party damaged by the agreement). a derivative nullity (referable to that of the upstream agreement, by virtue of the functional link with the downstream contract) or a protective nullity (provided for the protection of the party harmed by the agreement, and therefore deductible only by the latter). It is also debatable whether a partial nullity, such as that found in the case at hand by the judgment appealed against, can be found, and this because of the difference between the parties to the downstream contract and those to the upstream agreement, and the consequent difficulty in establishing whether the former would also have given their consent, in the absence of the clauses reproducing the content of the agreement: This investigation, which in the case of a bank guarantee, may be superfluous, if one considers that, notwithstanding the removal of the aforementioned clauses, the bank may have an interest in retaining the guarantee, since it is not certain that the debtor is able to offer others in substitution“.
The successive rulings of the Supreme Court on the subject were certainly not decisive, which therefore made it necessary to refer the matter to the First President for possible assignment of the case to the United Civil Sections”. In particular, the questions considered were as follows: “(i) whether the total or partial coincidence with the aforementioned conditions justifies the declaration of invalidity of the clauses accepted by the guarantor or only justifies the exercise of the action for damages, (ii) in the first case, what is the regime applicable to the action for invalidity, from the point of view of the type of defect and the legitimacy to enforce it (iii) is a declaration of partial nullity of the surety permissible, and (iv) must the enquiry to that end concern not only the abovementioned coincidence but also the potential intention of the parties to give their consent to the issue of the guarantee in any event, or the exclusion of a change in the structure of interests resulting from the contract” (cf. Cass, 30 April 2021, no. 11486).
The Court of Cassation, in the judgment under comment, expressed the principle of law according to which the “contracts of surety following agreements declared partially null and void by the Guarantor Authority, in relation only to the clauses contrasting with Articles 2, paragraph 2, letter a) of Law no. 287 of 1990 and 101 of the Treaty on the Functioning of the European Union, are partially null and void, pursuant to Article 2, paragraph 3 of the above mentioned law and Article 1419 of the Civil Code, in relation only to those clauses which reproduce those of the unilateral scheme constituting the prohibited agreement, unless a different intention of the parties can be inferred from the contract, or is otherwise proven“.
The assumption of the Court of Cassation, on the basis also of what has been affirmed by the Simple Sections, would imply that the violation of the “national and EU Antitrust Law” is found whenever, between the upstream act and downstream contract, there is a functional link such as to produce an anti-competitive effect. In particular, when the downstream contract is wholly or partially reproductive of the upstream “cartel”, declared void by AGCM, it constitutes the instrument for implementing the anti-competitive agreement.
Therefore, although the clauses considered to be restrictive of competition were reproduced in the proposed surety bond scheme, nevertheless, on the basis of the principle of preservation of negotiated acts, which is a general rule of the Italian law, the Court opted for the partial nullity of only the clauses reproducing the unlawful scheme. Unless the documents show that the parties’ intentions were different, i.e. that they would not have concluded the contract in the absence of the aforementioned conditions, as provided for under Article 1419(1) of the Civil Code, the Court ruled that the clauses reproducing the unlawful scheme were partially void.
In view of the above, all the other clauses of the surety agreement – “in so far as they are aimed, through the guarantee obligation assumed by the guarantor, at facilitating access to bank credit – are immune from findings of invalidity, as established by the Bank of Italy, which has expressly set aside all the other clauses of the ABI agreement” (see provision no. 55/2005, already mentioned above).
In view of the conclusions reached by the Supreme Court of Cassation in United Sections, one of the critical aspects that could affect banking litigation would concern the revival of the conditions set out in Art. 1957 of the Civil Code, namely
- within six months of the maturity of the principal obligation, the creditor has brought its claims against the debtor and has diligently pursued them
- within two months of the expiry of the principal obligation, where the guarantee assumed by the guarantor is expressly limited to the same term as the principal obligation;
with the consequent loss of the Credit Institutions in the proceedings instituted against the guarantors, with respect to whom the conditions of the regulations have not been respected.
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