When the ABI scheme is reproduced, the surety clauses are null and void due to a violation of competition law. The Cassation puts a point
The surety clauseswhich reproduce the ABI scheme sanctioned by the Bank of Italy in 2005, are void for violation of competition law. The Cassation intervened to put the point on the matter, with a decision taken in United Sections, in 2021. The case law on the merits, however, went further and established that, when in dispute are surety contracts drafted long after 2005, the nullity is not automatic. We have delved into the salient features with the lawyer Nicola Ferraro, founder partner of de Tilla Studio Legale.
Attorney Ferraro, first of all what are the null and void clauses?
They are those that reproduce the clauses contained in articles 2, 6 and 8 of the ABI uniform scheme adopted by banks until 2005 and, precisely:
– the “revival clause” (art. 2), according to which the guarantor is required “to repay to the bank the sums that the bank itself had collected in payment of covered bonds and which should be returned following cancellation, ineffectiveness or revocation of the payments themselves, or for any other reason”;
– the waiver clause pursuant to art. 1957 of the Italian Civil Code (art. 6), by virtue of which “the rights deriving from the bank guarantee remain intact until all its credit towards the debtor is fully extinguished, without the bank being required to enforce the debtor or the guarantor themselves or any other co-obligor or guarantor within the time limits established, depending on the case, by the 1957 civil code, which is understood to be waived”;
– the survival clause (art. 8), according to which “should the guaranteed bonds be declared invalid, the surety still guarantees the debtor’s obligation to repay the sums disbursed to him.
What has the jurisprudence established in this regard?
First the Bank of Italy, the jurisprudence of the merits and that of the Court of Cassation later, decreed its nullity because the clauses in question constitute the application of the bank’s participation in an anti-competitive agreement between credit institutions. Basically, because the reproductive clauses of those contained in articles 2, 6 and 8 of the 2005 ABI uniform scheme are restrictive of free competition.
Does the nullity concern the contract or the clauses?
The nullity affects only the clauses and not the surety contract as a whole. The Cassation was clear on the point. Subsequent jurisprudence on the merits has adapted. So it can be said that, today, the jurisprudential approach is uniform. This also applies if the surety was issued prior to the time in which the ABI anti-competitive scheme was prepared because, as the Bank of Italy had already had the opportunity to ascertain in 2005, before its preparation, identical clauses were used by the banks already in a uniform and standardized way. Then they were transfused into the ABI scheme.
Avvocato Ferraro, is nullity automatic?
No. The bank’s anti-competitive conduct must be proven. With one caveat, though. If anti-competitive conduct can be presumed due to the clauses inserted in the surety texts drafted close to the 2005 ABI scheme, because the investigation carried out by the Bank of Italy covered the period between 2002 and May 2005, a similar presumption it cannot apply to those clauses inserted in contracts drafted long after 2005. In these cases it must be proved in a specific and timely manner by whoever contests its validity. In court, the burden of proof of the violation of art. 2, Law no. 287/1990.
What must the interested party prove in order to assert the nullity?
The party who pleads the nullity of the surety due to violation of the antitrust law is required to produce the disputed surety agreement before the court, the provision of the Bank of Italy which, in 2005, ascertained the illegitimacy of the agreement for violation of the ‘art. 2, Law no. 287/1990; and this is because administrative provisions (as, precisely, is the decision of the Bank of Italy) cannot be assessed by the judge unless promptly produced in court. But that’s not enough. Since the existence of the competitive agreement, in which the bank is assumed to have participated, must be specifically proven, the proof also extends to the production in court of a considerable number of surety texts drawn up by other banks which, in content, are comparable to the disputed one.
And what is the orientation of Banking and Financial Arbitration on the question?
Adherence to the majority jurisprudential address. Just recently, the ABF clearly ruled out that the assessment carried out by the Bank of Italy in 2005 could extend de plano to sureties concluded in a period after 2005 since, for this purpose, the interested party must demonstrate the persistence of the antitrust agreement. Therefore, in the absence of a specific demonstration of the anti-competitive case reported, the request for relative nullity of the surety cannot be accepted.
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