With its decision no. 29810 of 12 December 2017, the Italian Supreme Court ruled over the nullity of guarantees executed on the basis of the model drafted by ABI (the Italian banking association).
As customary for banking contractual models ABI drafted a scheme of guarantees which banks may use with their clients; the Bank of Italy, with its measure no. 55 of 2 May 2005, declared that some of the clauses contained in such model conflicted with Italian antitrust law, given that they were able to worsen the contractual position of the guarantor, and that they were uniformly applied by the banks.
The case decided by the Supreme Court related to a guarantor who had requested to the Court of Appeal of Venice to declare the nullity of the personal guarantee he had signed, which was undisputedly based on the model drafted by ABI.
However, the Court of Appeals dismissed the claim of the guarantor on the assumption that the measure 55/2005 of the Bank of Italy could not apply to contracts perfected prior to its enactment, as such measure could not affect the validity of clauses but only their contrast with art. 2 of the antitrust law, according to which any arrangements aimed at, or having the effect of, hindering or restricting the competition within the national market, due to their uniform application, are void.
The guarantor challenged the decision before the Supreme Court.
In 2005, the Supreme Court had already pointed out that the antitrust law was addressed not only to entrepreneurs, but also to anyone bearing interest in maintaining the competition in the market, being damaged by the reduction of such competition pursuant to invalid arrangements.
As a consequence, also the final consumer would be damaged by the lack of real choice between products/services in competition, even by means of a contract (the guarantee) which represents the natural consequence of an invalid arrangement (the model drafted in violation of antitrust law).
The Bank of Italy had indeed ascertained the voidness of such arrangements and ordered that they were corrected, but the Court of Appeal of Venice deemed that invalidity would arise only in case of non-compliance to such order.
On the contrary, the Supreme Court deemed that the invalidity lays in the mere ascertainment of anti-competition behaviours and that the Court of Appeal should have not dismiss the request of nullity of the guarantee just because it was executed prior to the measure of the Bank of Italy. Indeed, if the violation (restricting the market competition) occurred prior to the descending contractual agreement (the guarantee), the anti-competition behaviour will definitely overwhelm the guarantee contract.
Therefore, the Supreme Court stated the contracts which de facto are a consequence of invalid arrangements, include also the contracts executed prior to the ascertainment of the measure by the Bank of Italy, provided that the unlawful arrangement occurred prior to the contract which is deemed null and void.
The matters have been now sent to the Court of Appeal, which shall again decide on the basis of the principle of law ruled by the Supreme Court.
In this regard, it is not yet clear if the nullity of the personal guarantees executed on the basis of the model drafted by ABI will affect the whole contract or just the invalid clauses, and the latter solution would allow the preservation of the guarantee contract.
However, if the decision will state the nullity of the whole contract, the consequences will be of paramount importance, both for the guarantors, which will be released of their obligations and would even be entitled to damages compensation in case the guarantee was already enforced, and for the banks, which will see their credit no-longer assisted by a guarantee.