Partial nullity of the clauses compliant with the Italian Bank Association 2003 scheme included in the ” open-end guarantee “

Milan’s Company Court, with judgement of January 19th, 2022, in response to the request for verification of the nullity of the clauses of an “open-end guarantee” (issued in 2010, on the basis of the contractual scheme prepared by the Italian Bank Association, ABI, in 2003) and of damage refund, rejected the applications in the absence of proof of the constituent elements of the anticompetitive offense.

The Supreme Court, with the recent ruling no. 41994/2021, United Sections, intervened to settle the jurisprudential conflict that arose, in terms of protection recognizable to the person who has stipulated an “open-end guarantee “, following the publication of the provision of the Bank of Italy no. 55/2005 (referring to the Italian Bank Association 2003 contractual scheme), with which it was established that clauses no. 2, no. 6 and n. 8 (respectively “reviviscence”, “waiver of the terms of art. 1957 of the Italian Civil Code” and “survival”) are detrimental to competition.

In case of nullity of the conditions established in the agreements between “upstream” companies, for violation of art. 2, paragraph, 2, lett. a) of the Law no. 287/1990, in addition to the compensation protection, two different solutions were outlined: i) total nullity of the “downstream” contract (the “open-end guarantee”); ii) partial nullity of this contract (limited to the clauses that reproduced the conditions of the “upstream” agreement).

In this regard, the Supreme Court (United Section no. 41994/2021) stated that the “open-end guarantees”: “are partially void, pursuant to art. 2, paragraph 3 of Law 287/1990 and of art. 1419 of the Civil Code, in relation only to the clauses that reproduce those of the unilateral scheme constituting the prohibited agreement, unless a different will of the parties can be inferred from the contract or is otherwise proven “.

The Court of Milan, recalling this judgement, indicated that it is the responsibility of those who have an interest in completely dropping the planned interest structure to demonstrate that “the null clause is inextricably linked with the rest (of the contract), in the sense that the contractors would not have concluded the contract without that part of its content affected by nullity (par. 2.15.2 Cass. n. 41994/2021) “.

In particular, in the case submitted to the Court, it was not proved that in 2010 (a period of time outside that examined by the Bank of Italy with provision no. 55/2005) “a significant number of credit institutions, within the same market, would have coordinated their action in order to submit to customers, uniform models of sureties for specific transactions (…) “.

The decision examined also clarified that the knowledge on the subject of violation of the right to choose between products, deriving from an agreement restricting the freedom of competition, is left to the exclusive competence of Milan’s Company Court, (in this sense, see Cass . 10.03.2021, no. 6523).

Note by Mr. Davide Colombo