Bank omnibus surety bond and nullity of clauses for violation of antitrust regulation
Orientation of the United Section: ruling December 30, 2021, no. 41994
Summary: 1. Introductory notes – 2. The case – 3. Legal and Jurisprudential framework – 4. The orientation of the United Section: ruling December 30, 2021, no. 41994. – 5. Conclusion
Abstract: The contribution, after retracing the doctrinal and jurisprudential guidelines on nullity, so-called ”antitrust” on individual ” downstream ” guarantors’ contracts, aims to highlight some critical remarks to the ordinance, principally related palpably the juridical nature of the nullity de qua; the same aims to retrace – in a critical and practice – the various hermeneutic reconstructions on the subject of the scope of application of Law 287.1990, with particular with regard to the nullities de quibus. The fallibility of attempts at settlement of the findings in the insurance field to banking agreements, the United Sections will have to rule on the admission sibility of an action for invalidity, also recognized by the individual private contractor, to be supported, possibly, to the claim for compensation, and to define its nature and consistency.
1. Introductory notes
The topic under consideration concerns the fate of the surety contracts omni-buses stipulated in compliance with agreements having content compliant with some rules of the ABI model, assessed as restrictive of competition and, as such, prohibited pursuant to art. 2, Law 10 n. 287/1990 (so-called “antitrust” law).
The issue was the subject of extensive jurisprudential debate, ultimately leading to the ruling of the United Sections of the Court of Cassation, with sentence no. 41994, the subject of this study.
The central issue, addressed by the United Sections, consists in identifying the most suitable instrument to ensure the protection of the guarantor between compensation protection, total nullity of the “downstream” contract, or partial nullity of this contract.
2. The case
The case on which the United Sections expressed their opinion concerned a company and a credit institution, which had stipulated a current account contract and subsequently a loan agreement, in the form of a loan, as guarantee for which the bank requested the release of two separate guarantees.
Subsequently, the credit institution communicated the termination of the contracts to the principal debtor and obtained an injunction, which condemned the guarantor to pay the sums due in relation to the two sureties.
The guarantor took legal action so that the surety contracts were declared totally null, for violation of Law no. 287/1990, art. 2, co. 2, lett. a), or, subordinately, partially null, limited to the clauses contained in Articles 2, 6 and 8 of the aforementioned contracts.
Finally, the dispute was submitted to the scrutiny of the Court of Cassation, whose First Civil Section, having acknowledged the unresolved debate on the protection recognizable to the subject who has entered into a surety contract reproducing clauses contained in agreements recognized as void for violation of the law antitrust, put the issue in the United Sections.
3. Legal and Jurisprudential framework
In order to frame the issue by law, it is noted that, pursuant to Law no. 87/1990, art. 2: “1. Agreementsand / or practices agreed between companies, as well as resolutions, even if adopted pursuant to statutory or regulatory provisions, of consortia, business associations and other similar bodies are considered to be understood.
Agreements between companies which have the object or effect of preventing, restricting or
substantially distorting competition within the national market or in a significant part of it are
prohibited (…). Prohibited agreements 1 are void for all purposes “.
In October 2002, ABI (Italian Banking Association) proposed a model negotiation scheme for the surety to guarantee banking operations, which – before its diffusion among credit institutions – was communicated to the Bank of Italy (at the time Competition Authority between Credit Institutions), which, in November 2003, started an investigation aimed at verifying the compatibility of the contractual scheme of “bank guarantee guarantee of banking operations “, prepared by ABI, with the rules dictated in the matter of restrictive agreements on competition. To this end, the Bank of Italy consulted – in consultative way – the Antitrust Authority, which – in opinion no. 14251 – highlighted how the discipline of the “omnibus surety”, as per the scheme prepared by ABI, presented clauses suitable for restricting competition, since generally acceptable “to determine an indirect economic burden, in terms of less ease of access to credit”, as well as, in cases of paid sureties, “to increase the overall cost of the loan for the debtor, which should also remunerate the greater risk assumed by the guarantor ».
The critical remarks of the Guarantor Authority concerned, in particular, clauses nos. 2, 6 and 8 of the aforementioned contractual scheme: the “revival clause” (pursuant to art. 2), according to which the guarantor is required “to repay the bank the sums that the bank itself had collected in payment of covered bonds and that should be returned following cancellation, ineffectiveness or revocation of the payments themselves, or for any other reason “; the “waiver clause of the terms pursuant to art. 1957 of the Italian Civil Code” (ex art. 6), by virtue of which “the rights deriving from the bank guarantee remain intact until all its credit is fully extinguished. to the debtor, without it being required to enforce the debtor or guarantor themselves or any other co-obligator or guarantor within the time limits, depending on the cases, from art. 1957 of the Italian Civil Code, which is intended to be waived “; the “survival clause” (pursuant to art. 8), under which “if the obligations guaranteed are declared invalid, the surety guarantees in any case the obligation of the debtor to return the sums paid to him “.
On the basis of this opinion, it was also noted that the investigation carried out showed that several banks had now adopted the scheme prepared by the ABI and that the data collected also showed that most of the clauses examined had been considered by the banks to be applicable also to contracts stipulated by private subjects, as guarantors, the Bank of Italy issued the aforementioned provision no. 55 of 2 May 2005.
In the provision, the Guarantor Authority first of all observed that “the general contract conditions communicated by ABI in relation to the” surety guaranteeing banking operations “, as resolutions of an association of companies, fall within the scope of application of the Law . n. 287/1990, art. 2, co. 1, where it states: “Agreements and / or practices agreed between companies as well as the resolutions, even if adopted pursuant to statutory or regulatory provisions, of consortia, business associations and other similar organisms”.
The Authority therefore found that the decisions of an association of companies, constituting element of evaluation and reference for the choices of the individual associates, they can contribute to coordinate the behavior of competing companies: “with regard to the latter profile, the restriction of competition resulting from such an agreement would be significant in the relevant market, given the large number of banks associated with ABI”. Finally, the provision placed emphasis on the fact that, while other clauses contained in the scheme examined do not involve an unjustified increase in the position of the guarantor, as they are functional to guarantee access to bank credit, «due to the clause relating to the waiver of the guarantor under the terms of art. 1957 of the Italian Civil Code and for the so-called “survival” clauses of the surety no elements have emerged that demonstrate the existence of an equally close functional link; these clauses, in fact, have the primary purpose of blaming the guarantor with the negative consequences deriving from non-compliance with the the due diligence obligations of the bank or the invalidity or ineffectiveness of the main obligation and the extinguishing acts of the same ».
In conclusion, the provision provided for: «a) Articles 2, 6 and 8 of the contractual scheme prepared by ABI for the surety to guarantee banking operations (surety omnibus) contain provisions which, to the extent that they are applied uniformly, are in contrast with Law no. 287/1990, art. 2, co. 2, lett. to); b) the other provisions of the contractual scheme are not detrimental to competition “.
As a result of these facts, the question regarding the effects that the antitrust offense has produced on the sureties detected, upstream, by the provision of the Bank of Italy, was therefore raised in the judgment in question, submitted to the consideration of the United Sections, or if, in the case of sureties issued by the bank’s customer, in which the aforementioned clauses have been inserted (the anticompetitive nature of which has been ascertained by the tente), the guarantor is entitled to a “real” protection, ie a “demolition” one, or a protection exclusively for compensation.
In this regard, it is necessary to start from the observation that, if pursuant to art. 41, Co. 1, Const. “Private economic initiative is free”, however the same rule takes care to specify, in co. 2, that the economic initiative “cannot take place contrary to social utility”, while in co. 3 adds that “the law determines the appropriate controls so that public and private economic activity can be directed and coordinated for social purposes”. By virtue of the constitutional provision, therefore, competition between companies is characterized as a situation market development that postulates a great freedom of access to economic activity by entrepreneurs, but also an equally wide possibility of free choice for buyers and, in general, the possibility for everyone to seize the best opportunities available on the market, or propose new opportunities, without impositions by the state or pre-determined constraints by coalitions of companies.
Hence the introduction, in almost all Western countries, of the antitrust discipline, which regulates relations between entrepreneurs and allows for the correct conduct of competitive relations.
The Antitrust Law n. 287 of 1990, whose art. 2 considers, as specified above, to be prohibited the agreements between companies which have the object or effect of preventing, restricting or distorting – in any form and in a substantial manner – the game of competition within the national market or in a relevant part of it. . In the same sense, art. 101 of the Treaty on the Functioning of the European Union (original art. 81 of the EC Treaty and, even earlier, art. 85 of the Treaty of Rome) – in application of art. 3, according to which “The Union has exclusive competence in the following areas”: (…) b) definition of the competition rules necessary for the functioning of the internal market; (…) “- provides:” 1. They are incompatible with the internal market and all agreements between undertakings, all decisions by associations of undertakings and all concerted practices which may affect trade between Member States and which have the object or effect of preventing, tighten or distort competition within the internal market and in particular those consisting in: a) directly or indirectly fixing purchase or sale prices or other transaction conditions; (…). “Agreements or decisions prohibited by virtue of this article are automatically void”.
Starting from the national and European regulatory framework outlined so far, however, the domestic debate has given rise to jurisprudential contrasts, outlining from time to time ondivine orientations on the subject.
The complex jurisprudential framework has led to the enucleation of three possible solutions: 1) recognition of compensatory protection for guarantors; b) 1 See Cass. Civ., Sec. I, Dec. 9, 2002, no. 17475: the Supreme Court, in addressing the problem of the protections that can be activated by the private party who has entered into a surety reproducing the content of an agreement contrary to antitrust law, radically excluded the consumer’s legitimacy to bring any action 2 .
In particular, the judgment cited above notes that the rules protecting free competition set forth in Law No. 287 of 1990 are addressed not only to entrepreneurs, but also to other market players, i.e., anyone who has a relevant interest in the preservation of free competition, so much so that they can assert in court a specific prejudgment resulting from the disruption or diminution of the competitive character of the market as a result of a prohibited cartel.
Indeed, the consumer, in the presence of an agreement restricting competition, sees his or her right to an effective choice between products offered in a competitive market regime circumvented. In the same sense, see Cass. Civ., Sec. I, Aug. 23, 2005, No. 17112 in Obbl. e contr., 2006. Total nullity of the “downstream” contract; c) partial nullity of the “downstream” contract, limited to the clauses that reproduce the conditions of the null “upstream” agreement.
Earlier pronouncements sometimes ruled out altogether that the matter had private relevance in the relations between companies and consumers, often did not find profiles of nullity of the contracts “downstream” of the anticompetitive agreement (on the assumption that they did not result in a violation of antitrust law,since Art. 2 , Law No. 287/1990, expressly refers to “agreements” – sanctioning their nullity when contrary to competition – but not also to contracts “downstream” of the agreements themselves).
On the basis of the latter orientation, it had been assessed that the only possible consequences arising from the use, in individual surety contracts, of clauses whose content conformed to the understandings referred to in the ABI model de quo, could only be of a compensatory nature.
In 2005, the United Sections of the Supreme Court of Cassation, in ruling No. 2207 of February 4, marks a turning point in the framing of the issue, recognizing “real” protection for the consumer: specifically, not only does it identify an active legitimacy of the same but also highlights that the so-called “downstream” contract constitutes nothing more than the outlet of the prohibited cartel, which is essential to realize its effects, and that, therefore, the consumer, even if he or she is not a participant in a competitive relationship with the entrepreneurs autors of the collusion – having suffered an injury due to a “downstream” contract, which represents the fruit of a prohibited “upstream” cartel – can exercise not only the action for damages (under Article 2043 of the Civil Code), but also that of ascertaining the nullity of the cartel pursuant to Law No. 287/1990, it is in fact with the “upstream” cartel that is harmed the consumer’s right to effective choice between competing products, an injury that the “downstream” agreement only serves to make manifest.
In this way, case law has embraced the theory of the so-called “functional link” between the “upstream” anticompetitive understanding and the “downstream” contracts, so that the nullity of the anticompetitive understanding also extends to the contracts reproducing the terms of the same understanding. A further key passage in the antitrust framework is highlighted by the Supreme Court’s ruling No. 29810 of Dec. 12 2017, in which it was clarified that distortion of competition can also occur through conduct that is not of a negotiated nature.
This implies that, for the purposes of the application of antitrust law, all conducts are relevant, even those carried out in non-negotiated forms, including cases in which the cartel represents, in fact, the result of the use of “unilateral” legal schemes, as in the case under consideration in the judgment under review.
The case examined by the United Sections in 2005, which dealt with a contract entered into by an insurance company that had participated in the prohibited cartel, does not perfectly overlap with the case that is the subject of the judgment under review, in which the credit institution that entered into a “downstream” contract with the consumer did not participate in the “upstream” cartel (found to be anticompetitive) and yet incorporated its contents. Nevertheless, the aforementioned ruling of the United Sections has had considerable influence on subsequent jurisprudence on bank surety bonds, since the prevailing trend today seems now to be oriented toward admitting, alongside compensatory protection, also “real protection.”
Also in this case, in the surety bond contract entered into between the bank and the customer, there were clauses Nos. 2, 6 and 8, reproducing the content of the ABI clauses declared illegitimate by the Guarantor Authority, and the Court held that (given the prerequisites) Article 1419 of the Civil Code may be applied, where the arrangement of interests at stake is not affected by a pronouncement of partial nullity, i.e., limited only to the clauses reproducing the illicit understandings. In a concordant sense, Cass. Civ., Sec. III, ord., Feb. 13, 2020, No. 3556 (not in full), again with reference to the hypothesis of the inclusion in the surety contract “downstream” of clauses resulting from anticompetitive agreements, noted that it cannot be taken for granted that the nullity of those specific clauses would entail the integral nullity of the surety contract, since, pursuant to Art. 1419 Civil Code, the integral nullity of the contract as a result of the nullity of individual clauses is determined only if it turns out that the contractors would not have entered into the contract in the absence of those clauses.
Understandings, it refers not only to the possible “upstream” legal transaction (placed at the origin of the subsequent behavioral sequence), but to the case as a whole, even subsequent to the original transaction, which realizes an obstacle to free competition: consequently, the violation of antitrust regulations would determine the total nullity of both the “upstream” understanding and the subsequent “downstream” surety. On this point, the Supreme Court of Cassation Civ., Sec. I, in judgment No. 24044 of September 26, 2019, deciding in a case similar to the one at issue here, outlined a partially different orientation, developing the thesis of the partial nullity of the surety agreement “downstream” of the prohibited cartel: according to this approach, surety contracts reproducing clauses contained in a prohibited “upstream” cartel would not be null and void in their entirety (as the full nullity of them could not be inferred from any express regulatory provision, nor based on teleological grounds), but only limited to the clauses reproducing the cartel detrimental to free competition.
4. The orientation of the United Section: ruling December 30, 2021, no. 41994
With the ruling in comment, the United Sections of the Supreme Court reject, for several orders of reasons, the thesis according to which the consumer who has signed a surety “downstream” of an anticompetitive agreement “upstream” would be entitled only to compensation protection, to the exclusion of “real” protection.
This is, in the first place, in application of the principle of effectiveness, on the basis of which it is necessary to eliminate any incentive for companies (in the present case, banks) to form anticompetitive agreements, depriving them of any possible advantage related to the transactions carried out in execution of them.
From this perspective, the thesis of the nullity of surety contracts “downstream” of the anticompetitive agreement must be preferred over the one that admits only its compensatory protection, since the declaration of the nullity of the “downstream” contract also results in the ex tunc elimination of all its effects, with consequent obligations of restitution.
Nullity: this excludes any possible beneficial effect arising from the contract for the company. In this context, the only compensatory remedy, deputed to protect the individual consumer who has concretely suffered damage, is considered unsuitable to guarantee the full realization of the ratio legis, taking into account that not all injured parties take legal action and that in any case not all those who take legal action succeed in obtaining the acceptance of their compensation claim, with the consequence that the mere obligation to compensate the damages suffered by the individual consumer could not have an effective deterrent effect on the companies that have incorporated the offending clauses into the “downstream” surety bonds.
Related to this point is the underlying rationale of the antitrust law, constituted by its teleological scope, which is embodied in the fact that it possesses the sole purpose of protecting not only and not so much the individual interest of the individual contracting party harmed by the anticompetitive tort, but also and above all the general interest in the proper functioning of the market, according to the principle of free competition. Starting from this ratio legis, the admission of the “real” protection alongside the compensatory one, i.e., the recognition of the right of action for the ascertainment of the nullity of the contract, represents the only form of protection suitable for realizing that general interest in the trasparence and fairness in the market that underlies antitrust law.
Given the above-namely, that the nullity of the “downstream” contract is a more suitable remedy for realizing the rationale of antitrust law than a merely compensatory one-the question arises as to what is the normative basis of said nullity. In other words, the question is whether we are talking about a “special” nullity, which finds its discipline in the antitrust legislation (on the basis of a teleological and systematic interpretation), or the traditional civil nullity, which finds its discipline in the rules in Articles 1418 Civil Code et seq. On this point, the United Sections come out in favor of the first solution and expressly define the invalidity in question as a “special nullity,” that is, deriving from the antitrust law itself and placed to protect a public interest, the so-called “economic public order,” which is protected by the imperative national and European antitrust rules. This nullity is characterized by having a broader scope than the codified one in Article 1418 of the Civil Code and the others already known to the legal system, such as, for example, “protective nullity” in consumer contracts and nullity in business-to-business relations (so-called third contract), insofar as it also affects acts, or combinations of acts, bound by a “functional nexus,” not all of which can be traced back to cases of a contractual nature.
The rationale behind this conclusion is that the antitrust tort turns out to consist not only of the “upstream” anticompetitive agreement, but also of the subsequent “downstream” contracts, through which the initial agreement is given concrete effect. In other words, the antitrust offense endures over time and it is through the “downstream” contracts that the economic purpose of the anticompetitive understanding is realized.
From this perspective, applying this conclusion to the case at hand, the individual sureties (“downstream” contracts) must be considered an integral part of the anticompetitive cartel, since it is through these that the firm participating in the “upstream” cartel gives economic effectiveness to the wrongful act committed. The system, therefore, according to the line drawn by the United Sections, must reprove the entire anticompetitive affair, resulting in the nullity of the “downstream” surety agreement.
Having defined the approach on the subject of the United Sections, one cannot avoid pointing out that part of the doctrine has taken a critical stance towards this orientation, asserting that, while it seems correct to affirm that the “downstream” contract represents an executive moment of the “upstream” anticompetitive agreement, the second argumentative step would not seem to be as obvious, namely the conclusion that from the qualification of the conduct of the cartel participating enterprise as unlawful also follows the nullity of the “downstream” contract.
This conclusion, which is the crux of the discussion on the subject, is based on an inference that some of the doctrine has found to be excessively sloppy. Indeed, there is no doubt that entering into “downstream” contracts that comply with antitrust agreements constitutes unlawful conduct on the part of the enterprise, however, the very circumstance that a “rule of conduct” (and not a “rule of validity”) is violated in the case at hand leads to the exclusion of the invalidating remedy, also in light of the fact that the violation of this rule is punished with an administrative sanction, which could lead to the conclusion that integrateful the final parenthesis of Art. 1418 , co. 1, Civil Code (i.e. Such logic is already derived from Cass. Civ., SS.UU., Feb. 4, 2005, no. 2207 cit., recalled by the ruling in comment, which shows adherence to it. In detail, the 2005 United Sections affirmed that contracts “downstream” of agreements contrary to antitrust regulations constitute “the outlet of the prohibited agreement, essential to realize and implement its effects”; therefore, they participate in the same anticompetitive nature as the “upstream” act and come to be affected by the same form of invalidity that affects the former.
It has been pointed out in the doctrine that the violation of a mandatory rule determines the nullity of the contract only when the conclusion of the contract in its typical configuration is prohibited or when the prohibition affects the contract in its entirety,as an act attributable to both parties, and not also when the violation of mandatory rule concerns only the pre-negotiation conduct of one of the parties. In this case, the will that underpinned the wrongful conduct should be configured as a unilateral motive, as such not invalidating the contract. (For further discussion, see M. Libertini, Gli effetti delle restrictive competition agreements on so-called “downstream” contracts).
Moreover, traditionally, the unilateral tort does not result in the nullity of the contract, but may result, if anything, in its nullity (as in the case of a contract concluded by a person who is the victim of violence or malice on the part of the other contracting party), or it may not affect the validity of the contract (as in the case where the unlawful motive is unilateral, that is, it subsists only in the hands of one of the parties), nor, from an examination of the jurisprudential landscape, would it seem possible to derive a general principle on the subject of interference between rules of conduct and rules of validity.
As for the traditional cases related to Roman-derived defects of will, jurisprudence has followed a “double track,” stating on the one hand that a contract concluded sefraud is voidable for fraudulent intent (and not void for violation of a mandatory rule12) and, on the other hand, that contracts concluded as a result of circumvention of an incapacitated person are affected by nullity: this is a difference in treatment that in case law is justified on the basis of the greater seriousness of the crime of circumvention of an incapacitated person compared to that of fraud, given that in the latter the legal asset protected is only the patrimony,while in the former the protection would have as its object the freedom of self-determination of a de- bole and disadvantaged subject.
Another well-established jurisprudential orientation affirms the validity of leases entered into by the owners of unauthorized buildings (perpetrators of a permanent tort, which lasts until the building is demolished), since the tort is located “upstream” of the overall affair and is unilateral in nature, affecting only one of the parties, namely the one seeking to derive an economic advantage from its unauthorized construction, but does not present a gravity comparable to that of the crimes of extortion or circonvention of incapacitation Ultimately, the considerations made so far make it possible to affirm that, should one attempt to base the nullity of “downstream” contracts on the particolar social disapproval of the conduct (albeit unilateral) of the company, many doubts would remain: case law has differentiated the consequences in terms of the invalidity of the contract by applying the criterion of the greater or lesser seriousness of the criminally relevant conduct, however, the antitrust offence is configured in the presence of conduct that normally has no criminal relevance, but is sanctioned only as an administrative tort.
This, given the need to maintain a certain internal coherence in the overall system of law, makes a hypothetical assimilation of anticompetitive offenses to the criminally relevant cases of extortion or circumvention of an incapable rather complicated.
That said, and returning to the position of the United Sections, it is worth noting that the latter resort to two additional arguments in support of the thesis that admits, alongside compensatory protection, also “real” protection.
According to the first argument, “real” protection is to be discerned on the basis of the read-ral of Article 2, para. 3, Law No. 287/1990, which provides that prohibited agreements are “null and void to all effects.” This literal wording must, according to the Supreme Court, be understood in an extensive sense, in light of the teleological ratio of the antitrust regulations (aimed at protecting the system and not only the individual contracting party), with the consequence that the nullity provided for in relation to agreements would extend to “downstream” contracts. It is worth point out that some of the doctrine has also made some criticisms on this point, asserendering that the logical procedure followed by the SS.UU. would imply a forcing, since, from a syntactical point of view, the proposition of the normative text refers to “cartels,” i.e., acts or facts by which multiple enterprises coordinate their behavior in the market, but “downstream” sureties are contracts that have a different function (a lawful cause) and certainly cannot be made to fall within the notion of “cartels” under the antitrust.
As a further argument in favor of the admissibility of “real” protection, the United Sections. Referred to Euro-Unitarian law and, more specifically, to the rules that sanction the “nullity as of right” of anticompetitive agreements and that provide that the agreement contrary to antitrust law is null and void in the relations between the contracting parties and cannot be opposed to third parties. Said absolute nullity would be nothing but that “nullity to all effects” of the anticompetitive agreement, which is referred to in the national legislation and which extends to contracts entered into “downstream” of the prohibited agreement even with third parties, that is, unrelated to the “upstream” act, to whom such an act would not be enforceable in any case. On this point, too, part of the doctrine has sought to criticize the Supreme Court’s approach, asserting that the cited European legislation should refer only to “upstream” agreements, but not also to “downstream” contracts concluded by the cartel participants with third parties. Indeed, the Court of Justice has clarified that Euro-Union law requires member states to guarantee consumers the right to enforce the nullity of the “upstream” cartel and obtain compensation for damages suffered, but the effects of the nullity of anti competition on “downstream” contracts do not depend on EU law, instead having to be identified by national courts under national law. Ultimately, it is compensatory protection that is the minimum and mandatory form of protection for the entire European space,without prejudice to the fact that the individual member state may provide enhanced protection to the consumer; thus, certainly contracts “downstream” of antitrust antitrust are not automatically overwhelmed by the nullity of the “upstream” agreement under Euro- Union law.
After identifying “real” protection, to be flanked by “compensatory” protection, as the appropriate means of ensuring the realization of the ratio legis of antitrust law, thus enabling the protection of both the individual contracting party and the general interest in free competition, the United Sections had to address the issue of the producted by the nullity of the “upstream” anticompetitive agreement on the “downstream” contract. In more detail, the Supreme Court was faced with the need to choose between the two alternatives of total nullity and partial nullity.
The thesis of total nullity of the surety bond was considered to be inconsistent with the underlying purposes of antitrust law, on the basis that only the individual clauses of the “downstream” surety bond–reporting the “upstream” anticompetitive understanding–are anticompetitive in nature and not also the other parts of the contract. Therefore, it would not make sense to invalidate the entire contract, being, if anything, necessary to strike only those specific clauses that violate the rules of free competition.
After all, as pointed out in doctrine, certainly the solution of full nullity would easily lend itself to opportunistic operations of the guarantors, who, although having had (at the time of the stipulation) a concrete interest in concluding the contract (regardless of the disputed clauses) and although benefiting from the overall financing transaction in light of their subjective position (in the case in point, the guarantor, as a shareholder of the principal debtor, had every interest in the granting of the financing), could, in the event of the principal debtor’s crisis, take legal action to enforce the full nullity of the contract and,thereby, release themselves from any personal obligation,depriving the bank of the guarantee of its credit.
Said danger would be avoided, on the other hand, if only the remedy of indemnification or the remedy of partial nullity of the surety were allowed against the guarantor. The United Sections adheres to the view that sees in the case at hand a case of “partial nullity.
Ziale,” i.e., limited to the unlawful contractual clauses, observing, first, that current European law, in concrete applications of the rule on the full nullity of cartels, admits that the nullity of the “upstream” cartel is normally a partial nullity, in order to safeguard any contractual aspects not distorting free competition contained in the agreement of cooperation between companies. Consequently, if the “upstream” anticompetitive understanding is affected by only partial nullity, then it is not rinullity of the “downstream” surety agreement can be affirmed in its entirety, since it is certainly less socially reprehensible than the cartel.
Further argument in support of the partial nullity of “downstream” surety bonds is based on the principle of preservation of the legal transaction. This solution, in fact, allows, on the one hand, to ensure compliance with the interest of the lending institutions in keeping the guarantee alive, once the illegal contractual clauses have been expunged, and, on the other hand, to safeguard the parts of the legal transaction not affected by nullity. On the subject, case law has pointed out that the nullity of the individual contractual clause (or of some clauses) invalidates the entire legal transaction, only in the hypothesis that the negotiated content is inseparable in its various parts; on the contrary, the principle of preservation of the legal transaction must operate in all hypotheses in which the negotiated content is divisible into its various parts, preserving its usefulness in relation to the interests pursued with it, even after being purified of the individual invalid clauses (utile per inutile non vitiatur).
The Supreme Court holds that in cases such as the one under consideration it is probable, subject to strict allegation and proof to the contrary, that the contracting parties would still have concluded the contract even without the clauses affected by nullity. Indeed, on the one hand, the position of the guarantor would be relieved by the absence of the clauses within the contract, as they impose greater obligations without recognizing any corresponding rights; moreover, the guarantor is a person related to the principal debtor (in the present case, a shareholder of the company) and, therefore, itself the bearer of an economic interest in the granting of the bank loan. On the other hand, the bank would still have an interest in maintaining the surety, even without the null clauses favorable to it, since the nullity of the entire contract would result in the total lapse of the guarantee, resulting in a reduced possibility of realization of its claims.
In conclusion, in light of the above, on the basis of the current state of jurisprudence, surety contracts “downstream” of agreements declared partially null and void by the Antitrust Authority, because they conflict with Art. 2 co. 2 lett. a), L. 287/90 and Art. 101 of the Treaty on the Functioning of the European Union,are partially null 4 and void, in relation only to the clauses that reproduce those of the unilateral scheme unilateral scheme constituting the prohibited agreement, unless a different intention of the parties can be inferred from the contract, or is otherwise proven.
1. C. SCOGNAMIGLIO, Il giudice e le nullità: punti fermi e problemi aperti nella giurisprudenza della Corte di Cassazione, in La nuova giurisprudenza civile commentata, 1/2013; ID, Presupposizione e comune intenzione delle parti, in Riv. dir. comm., 1985, II, 130; ID, Interpretazione del contratto e interessi dei contraenti, Padova, 1992; ID, Principi generali e disciplina speciale nella interpretazione dei contratti dei consumatori, in Riv. dir. comm., 1997, in Studi in onore di R. SCOGNAMIGLIO; ID, L’interpretazione del contratto, in Il contratto, Trattato a cura di P. Rescigno, Torino, 1999; ID., L’integrazione del contratto, in Il contratto, Trattato a cura di P. RESCIGNO, Torino, 1999; ID, Buona fede e responsabilità civile, in Europa e diritto privato, 2/2001, 343 – 365;
2 Cass. Civ., Sec. III, June 11, 2003, No. 9384, according to which the declaration of nullity of a cartel between companies for infringement of free competition does not automatically entail the nullity of all the contracts put in place by the adhering companies, which retain their validity and can only give rise to an action for damages against the companies by customers. Thus, while recognizing the standing of consumers who have entered into contracts “downstream “of an anticompetitive agreement, case law admitted only compensation protection. In the aforementioned ruling, this conclusion was based on a literal argument, namely the consideration that Article 33, Law No. 287 of 1990 does not provide, among the remedies available, for the nullity of “downstream” contracts, but only for the nullity of “upstream” agreements and compensation for damages. However,it has been pointed out in the doctrine that this assumption (based on the assumption of the taxability of civil antitrust remedies) is not supportable, since “it is systematically unacceptable the thesis that Article 33 of the national antitrust law, which is a rule on jurisdiction, intended to circumscribe and delimit the recourse to private antitrust enforcement with respect to what is stated therein, to the exclusion of remedies arising from the application of general rules of private law. In addition to this, the textual datum is inherently weak: Article 33, Law No. 287/1990 refers, generically, to nullity actions arising from violation of the prohibition of anticompetitive agreements. Nothing in itself leads one to think that the scope of application-nullity action, textually admitted, should be constructed with restrictive criteria and cannot extend to cases of derivative nullity as well” (thus M. Libertini, Gli effetti delle intese restrittive della concorrenza sui c.d. contratti “a valle”. A commentary on the state of case law in Italy, cit., 379).
3 In this regard, ex plurimis, see Cass. Civ., Sec. III, January 21, 2010, no. 993 in CED, 2010; Cass. Civ., Sec. I, July 13, 2005, no. 14716 in Mass. Jur. it., 2005. Cass. Civ., SS.UU., Nov. 29, 1999, no. 827 in Mass. Giur. it., 1999. In detail, the Supreme Court pointed out that Article 2 of Law No. 287 of 1990 when it provides that “agreements” between enterprises that have as their object or effect the prevention, restriction or substantial distortion of competition within the national market or in a relevant part thereof, it did not intend to refer only tocontracts in the technical sense, that is, to legal transactions consisting of manifestations of wills tending to achieve a specific function through a particular “will.” On closer inspection, in fact, the legislature intended, in a broader sense, to prohibit the distortion of competition as a consequence of a pursued objective of coordinating, toward a common interest, economic activities. And such a distortion sion can also be the result of “non-contractual” or “non-negotiated” conduct.
4 P. TRIMARCHI, La responsabilità civile: atti illeciti, rischio, danno, Giuffrè, 2021; P. TRIMARCHI, Rischio e responsabilità oggettiva, Giuffrè, 1961; G. CALABRESI, Il futuro dell’analisi economica del diritto, 32-39, 1999; A. NICITA. e V. SCOPPA, Economia dei Contratti, Cacucci Editore, 2005; A. NICITA – M. VATIERO, Towards a broader notion of transaction?, in Studi e note di economia 7-22, 2007; L. A. FRANZONI – D. MARCHESI, Economia e politica economica del diritto, Il Mulino, 2006; E. A. POSNER, Economic Analysis of Contract Law after Three Decades: Success or Failure?, The Yale Law Journal Vol. 112, No. 4, 2003, 829-880; N. MERCURO e S.G. MEDEMA, Economics and the law. From Posner to postmodernism and beyond, Princeton University Press, 2006; N. IRTI, L’ordine giuridico del mercato, Roma-Bari, Editori Laterza, 2009
Giuseppe Maria Marsico
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