This contribution is authored by attorneys Niccolò Medica and Giovanni Torielli.

With judgment no. 41994 filed on December 30, 2021, the Court of Cassation in United Sections resolved the long-standing conflict in case law and legal doctrine regarding the fate of omnibus guarantee contracts executed in accordance with anti-competitive agreements.
In particular, following the measure issued by the Bank of Italy no. 55 of May 2, 2005, which identified the anti-competitive nature of certain contractual clauses inserted in the omnibus guarantee scheme prepared by the A.B.I. (Italian Banking Association), and specifically the so-called “revival clause”, the so-called “waiver of terms clause pursuant to art. 1957 of the Civil Code” and the so-called “survival clause”, as being in breach of art. 2 of Law no. 287/1990 (“provisions for the protection of competition and the market”), case law and legal doctrine have long debated the remedies available against guarantee contracts drafted by banks in conformity with such model and therefore including the clauses declared null by the Bank of Italy.
Indeed, in summary, a consolidated approach that supported the radical nullity of the omnibus guarantee contract strictly conforming to the ABI scheme, and therefore including the unlawful clauses, was opposed by a different view, which instead identified the nullity of such contracts with exclusive reference to the clauses conforming to those declared unlawful, considering that the bank would have granted the guarantee in any case, even in the absence of the three clauses in question. To these approaches was added another that, while maintaining the contract intact and unmodified, identified in damages compensation the only remedy available to the party remaining outside the anti-competitive agreement, from which it had nevertheless suffered prejudice.
Therefore, the United Sections of the Court of Cassation, called upon to settle this long-standing dispute by interlocutory order of April 30, 2021 (no. 11486/2021), after conducting, with the judgment under discussion, a thorough examination of national and EU legislation on the matter, established the nullity of guarantee contracts drafted in conformity with the model prepared by the ABI, albeit limited to the clauses that constitute a strict transposition of the three articles of the ABI scheme declared null by the Bank of Italy measure no. 55 of May 2, 2005, except in the case where a different intention of the parties can be inferred from the contract or is otherwise proven.
On the basis of this thesis, the Supreme Court notes that the sanction of partial nullity of the defective guarantee contract achieves, compared to other options, results more in line with the purposes and objectives of antitrust legislation, in addition to being capable of safeguarding the general principle of “preservation” of the contract.
Moreover, according to the Supreme Court, the victim of the anti-competitive violation may in any case pursue damages compensation, which naturally remains available “not exclusively, but together with the action for nullity“; and indeed, the Court of Cassation continues, the recognition in favor of such party of the right to assert the nullity of the contract, in addition to damages compensation, constitutes an adequate completion of the system of remedies, not only in the exclusive interest of the individual, but also in that of transparency and market fairness, which forms the basis of antitrust legislation.
Finally, as a corollary to the partial nullity of the guarantee contract resulting from the prohibited agreement, the United Sections reaffirm i) the full validity and effectiveness of guarantees purged of the clauses drafted in conformity with those declared null by the Bank of Italy, ii) the ex officio relevance of such nullity by the judge, iii) the imprescriptibility of the action for nullity, and iv) the admissibility of a claim for unjust enrichment by the customer pursuant to art. 2033 of the Civil Code (where the requirements are met), as well as an action for damages compensation.