Court Declares Partial Nullity of “Post 2005” Omnibus guarantees

In a important ruling (sentence no. 794 of February 26, 2025), the Court of Appeal of Milan, presided over by Judge Arcere with Judge Rizzi as rapporteur, addressed the partial nullity of omnibus guarantees issued after 2005. These guarantees fall within the period investigated by the Bank of Italy for antitrust violations in 2006. The court found that these guarantees replicated clauses previously flagged by the supervisory authority.

The Lingering Effects of Antitrust Violations

The core issue revolves around the nullity of these omnibus guarantee contracts due to violations of Article 2 of Law 287/1990,Italy’s antitrust law.While the court acknowledged the Bank of Italy’s provision no. 55/2005, it emphasized that even guarantees signed after the initial investigation period (post-March 2006) could still be problematic. Referencing the United Sections ruling no. 41994/2021, the court recognized the persistence of a mechanism violating national and European Union antitrust legislation commonly employed by credit institutions.

This mechanism,the court elaborated,originates from various interconnected acts,including upstream agreements deemed void by the supervisory authority.The reproduction of these problematic clauses in guarantee contracts after 2005 creates a strong presumption of a functional link between the initial violation and the resulting anti-competitive effect.

Burden of Proof Shifts to the Bank

The court of appeal underscored that this presumption is only legally rebuttable.The onus falls on the bank to prove that, despite the identical wording of the clauses, the anti-competitive agreement among credit institutions no longer existed when the guarantee was issued. This aligns with the principle of proximity of evidence, placing the burden on the party with easier access to the relevant details.

In the specific case before the court, the appellants successfully presented the “Post 2005” omnibus guarantee contract, demonstrating the correspondence between its clauses and those previously sanctioned by the Bank of Italy. However, the bank failed to provide sufficient evidence to overcome the presumption of continued illegal intent at the time the guarantee was issued (March 2016).

Lack of Concrete Interest Leads to Dismissal

Despite acknowledging the abstract nullity of the replicated contractual clauses (Articles 2, 6, and 8 of the contract), the court of Appeal noted that these clauses had not been applied in the specific case. The beneficiary bank had not benefited from them. Consequently,the court ruled that the appellants lacked a concrete interest in obtaining a declaration of validity for the clauses in question.

The guarantors had not objected to the bank within the six-month timeframe stipulated by Article 1957 of the Italian Civil Code, nor did they reiterate their initial compensation request on appeal. Furthermore, they failed to demonstrate a legally relevant interest in obtaining a nullity declaration. For these reasons, the Court of Appeal ultimately rejected the appeal.

Implications and Future Outlook

This ruling serves as a reminder of the long-lasting consequences of antitrust violations in the financial sector. While the specific appeal was rejected due to a lack of demonstrable harm, the court’s reaffirmation of the presumption of continued anti-competitive behavior in “Post 2005” omnibus guarantees could have broader implications for similar cases. Banks must be prepared to demonstrate the absence of anti-competitive agreements when relying on these guarantees.

According to recent data from the Bank of Italy, outstanding guarantees in Italy amount to over €500 billion, highlighting the significant financial implications of these legal challenges.The ongoing scrutiny of these financial instruments underscores the importance of compliance with antitrust regulations and the need for clarity in banking practices.