The Italian Supreme Court states the nullity of “downstream” agreements that are application of anticompetitive “upstream” agreementsdi Giovanni Scoccini e Andrea Baldi pubblicato in e-Competitions Bulletin del Giugno 2018 di www.cocurrences.com. Nota alla decisione della Corte di Cassazione n. 29810/2017 del 12/12/2017
By its decision No. 29810 of 12/12/2017, the Italian Supreme Court overruled the judgement of the Court of Appeal of Venice that had rejected the claim for nullity of a personal guarantee in violation of the antitrust regulation.
The dispute submitted to the Court of Appeal of Venice - as a judge of first instance - concerned a personal guarantee of an individual to a bank. The guarantor claimed the nullity of the guarantee because it was the result of the agreement reached "upstream" within the trade association of the Italian banks (hereinafter ABI) in violation of competition law. The “upstream” agreement reached within the ABI established the standard clauses of the personal guarantee agreements that Italian banks were suggested to use. The personal guarantee agreement signed by the claimant contained the standard clauses drafted by the ABI. The appeal of the claimant (the guarantor) was supported by the decision n. 55 of 2 May 2005 of the Bank of Italy (as Antitrust Authority for financial institutions - a function which exercised until 12 January 2006) that held that 3 of the standard clauses ( i.e. Article 2 , 6 and 8 relating to "survival" clauses, "reviviscence" and waiver of the terms under Article 1957 of the Italian Civil Code) would have resulted in a restriction of competition if they had been applied uniformly by Italian banks. The decision was adopted at the end of a regulatory proceedings. ABI, which, as customary for banking contractual models, used to draft standard templates for the convenience of Italian banks, had submitted the standard clauses to the Bank of Italy for its approval. The Bank of Italy order ABI to amend the 3 clauses for the approval and ultimately ABI complied.
The Court of Appeal of Venice, which did not consider the Bank of Italy decision as an infringement decision, rejected the claim because the personal guarantee was signed before the decision of the Bank of Italy. According to the Court of Appeal only the failure of the ABI to comply with the order to amend the clauses would have amounted to an infringement and caused the nullity of the guarantee.
The Supreme Court overruled the judgment of the Court of Appeal of Venice arguing on the effectiveness of antitrust protection. The Supreme Court stated the following principle of law that shall be observed by the Court of Appeal of Venice that was ordered to reassess the case : "(...) the downstream agreements that constitute an application of those illegal agreements concluded upstream also include the agreements executed before the ascertainment of an antitrust violation by an antitrust authority, provided that the violation was committed before their formation (...) ".
The judgment of the Supreme Court can be summarized in the following points:
1. The decision n. 55 of 2 May 2005 of the Bank of Italy constitutes an ascertainment of an antitrust infringement. According to the Supreme Court, the aforementioned decision established that the ABI‘s decision to set certain anti-competitive clauses in the contractual guarantee scheme, constitutes an antitrust infringement;
2. The derived nullity of "downstream" contracts. The antitrust infringement represented by the decision of the Italian banking association – ABI - to provide for certain anti-competitive clauses in the guarantee scheme determines the nullity of the contracts executed "downstream" in application of the illicit upstream agreement;
In previous similar cases concerning the alleged nullity of a personal guarantee agreements containing the 3 clauses of the ABI’s scheme that the Bank of Italy held anticompetitive, the Court of Milan rejected the claims for nullity of the guarantors because of the lack of proof of the existence of the antitrust infringement. According to the Court of Milan, the Bank of Italy’s decision does not constitute an ascertainment of an antitrust violation, but it is only an order to amend some clauses of the scheme drafted by ABI, which promptly complied with this order. The court concluded that "the mere fact that a bank (...) has proposed to customers a contract containing these clauses cannot be considered by itself proof of an anticompetitive agreements among the banks. Therefore, the personal guarantees were valid and enforceable.
The principles expressed by the Supreme Court if they do not contradict, at least diverge from the motivational path tracked by the Court of Milan, which today appears less viable.