The validity of the omnibus sureties to guarantee banking transactions, issued on the basis of the scheme prepared in 2003 by the ABI – Italian Banking Association – is still the subject of discussion among insiders.

Our Francesco Resta has analyzed and selected for us the main rulings as well as the comments on the matter which focus in particular on articles 2,6 and 8 of the contractual scheme and on the nullity of the downstream contracts.

Last, in chronological order, came the ordinance of 30 April 2021 which referred the matter to the United Sections to evaluate the legal consequences of a bank guarantee for which the nullity for violation of art. 2 of the Antitrust Law.

Omnibus guarantees: the United Sections decide

In the matter of omnibus sureties, a recent order of the Supreme Court of April 30, n. 11486 referred “the documents to the First President, so that he can evaluate the existence of the conditions for assigning the case to the United Sections for a reconsideration of the principles enunciated by the jurisprudence of legitimacy on the subject of nullity of contracts stipulated in accordance with agreements restricting competition , aimed at verifying their applicability to bank sureties given in compliance with the uniform conditions prepared by the ABI”.

In particular, the aforesaid ruling calls for an adequate evaluation in order to establish “… a): if the total or partial coincidence with the aforesaid conditions justifies the declaration of nullity of the clauses accepted by the guarantor or legitimates exclusively the exercise of the action of compensation for damages, b) in the first case, what is the regime applicable to the action for nullity, in terms of the type of defect and the legitimacy to assert it, c) whether a declaration of partial nullity of the surety is admissible, and d) whether the investigation required for this purpose should concern, in addition to the aforementioned coincidence, the potential willingness of the parties to equally give their consent to the release of the guarantee, or the exclusion of a change in the structure of interests deriving from the contract ”.

Perhaps the United Sections will untie the knots of the well-known question relating to the identification of any profiles of invalidity of the guarantor contracts containing contractual provisions having the same content – and often the same literal content of clauses 2, 6 and 8 of the contractual scheme prepared by the ABI in 2002-2003, relating to the “guarantee to guarantee banking transactions”, which governs the provision of the guarantee provided by a person (guarantee) for the benefit of any obligation, present or future, of the debtor of a bank (so-called . omnibus surety).

In particular, the art. 2 of the aforementioned ABI scheme contains the cd clause “revivescence”, as follows: “the guarantor also undertakes to reimburse the bank for 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 art. 6 derogation from art. 1957 of the Civil Code, establishing that “the rights deriving from the surety remain intact until the total extinction of all its credits towards the debtor, without the bank being required to enforce the debtor or the surety or any other co-obligor or guarantor within the set times depending on the case, by art. 1957 cod. civ., which is intended as waived”; and finally, the art. 8 of the aforementioned scheme contains the cd clause “survival”, as follows: “should the covered bonds be declared invalid, the surety still guarantees the debtor’s obligation to repay the sums disbursed to him”.

The contractual model – and in particular the aforementioned clauses – prepared by the ABI was subjected to examination, control and verification by the Bank of Italy – as (at the time) Authority for competition between credit institutions (pursuant to articles 14 and 20 of Law No. 287 of 10.10.1990, Antitrust Law, in force until the transfer of powers to the AGCM with Law No. 262 of 12.28.2005) – concerning the reported contrast between the aforementioned contractual scheme of omnibus surety prepared by the ABI and art. 2 of the aforementioned Law no. 287/1990 (enumerated agreements restricting the freedom of competition) by virtue of which “agreements and/or concerted practices between companies are considered agreements as well as the resolutions, even if adopted pursuant to statutory or regulatory provisions, of consortia, associations of companies and other similar bodies. Agreements between companies which have as their object or effect the prevention, restriction or distortion in a consistent manner of competition within the national market or in a significant part of it are prohibited, including through activities consisting in: a) directly or indirectly the purchase or sale prices or other contractual conditions […] The prohibited agreements are null and void for all purposes“.

Upon completion of the preliminary investigation, the Bank of Italy, with the articulated provision no. 55 of 2.5.2005, established that “articles 2, 6 and 8 of the contractual scheme prepared by the ABI for sureties to guarantee banking transactions (omnibus surety) contain provisions which, to the extent that they are applied in a uniform manner, are in contrast with article 2, paragraph 2, letter a), of law no. 287/90 […]”, clarifying that “the checks carried out during the preliminary investigation showed, with reference to the clauses examined, the substantial uniformity of the contracts used by the banks with respect to the standard scheme of the ABI. This uniformity derives from a consolidated banking practice that pre-existed with respect to the ABI scheme (not yet widespread among the associates), which however could be perpetuated by the effective introduction of the latter” (paragraph 93).

In particular, “with reference to the derogation from art. 1957 cod. civ. configured by art. 6 of the ABI scheme, it should be noted that it has the function of exempting the bank from proposing and diligently pursuing its claims, against the debtor and the guarantor, within the terms set by the aforementioned law. Therefore, this clause appears likely to bring a significant advantage not so much to the debtor in difficulty – as the ABI believes – but rather to the creditor bank, which in this way would have a very long term (coinciding with that of the limitation of its rights towards the guaranteed) to enforce the guarantee. This could result in a disincentive for the bank’s diligence in proposing its requests and consequently unbalance the position of the bank itself to the detriment of the guarantor. The clause which provides for the “revival” of the guarantee after the extinction of the principal debt (art. 2 of the scheme) commits the guarantor to indemnify the bank from events subsequent to the fulfillment, even when he has trusted in the extinction of the guarantee following the payment of the debtor and has consequently neglected to protect his reasons for recourse against the latter (see art. 1953 of the civil code). This gives rise to particularly prejudicial consequences for the guarantor when the bank’s obligation to repay is determined by the declaration of ineffectiveness or by the revocation of payments made by the debtor following his bankruptcy […]” (paragraphs 83 and 84); and finally, in relation to the cd clause. “survival”, he underlined among other things that “art. 8 of the scheme also extends the guarantee to the repayment obligations of the debtor, deriving from the invalidity of the principal relationship. These obligations are additional and different from those guaranteeing the fulfillment of the obligations assumed by the debtor by virtue of the credit relationships covered by the surety. Therefore, such a provision does not appear inherent in the essence of the guarantee relationship and could, conversely, lead the bank, when granting credit, to pay less attention to the validity or effectiveness of the relationship established with the principal debtor ; in fact, it could in any case count on the permanence of the guarantee obligation for the omnibus guarantor in order to obtain reimbursement of the sums disbursed for whatever reason” (paragraph 86).

On the basis of the aforementioned provision, the Court of legitimacy, with an extended ruling made in 2017 (Cass., 12.12.2017, n. 29810), on the one hand, clarified that the aforementioned provision pursuant to art. 2 of the Antitrust law must not exclusively refer to “agreements” such as contracts in the technical sense, as said provision intended, in reality and in a broader sense, to prohibit the fact of distortion of competition, insofar as it is a consequence of a pursued objective to coordinate, towards a common interest, economic activities (which can also be the result of “non-contractual” or “non-negotiation” behavior), resulting from what “when the article in question establishes the nullity of the “agreements” , did not intend to give relevance exclusively to any original legal transaction which gave rise to the subsequent behavioral sequence, but to the whole more complex situation – even subsequent to the original transaction which – as such – creates an obstacle to the game of competition. Therefore, any form of distortion of market competition, in whatever form it is put in place, constitutes relevant behavior for the purposes of ascertaining the violation of art. 2 of the antitrust law”. On the other hand, it established that “[…] in terms of ascertaining the existence of anti-competitive agreements prohibited by Law no. 287 of 1990, art. 2, the “downstream” stipulation of contracts or transactions which constitute the application of those unlawful agreements concluded “upstream” (in this case: relating to the ABI uniform banking rules on surety contracts, as they contain clauses contrary to imperative) also include contracts stipulated prior to the ascertainment of the agreement by the independent Authority responsible for the regulation or control of that market (in this case, for the banking market, the Bank of Italy, with the functions of Authority guaranteeing the competition between credit institutions, pursuant to Law no. 287 of 1990, articles 14 and 20 (in force until the transfer of powers to the AGCM, with Law no. 262 of 2005, starting from 12 January 2016 ) on condition that the agreement was materially implemented before the transaction denounced as void, also considering that all the subsequent events of the relationship which constitute the creation of profiles of distortion of competition fall under that anti-competitive discipline”.

The Court of legitimacy therefore seems to hold that the nullity of the illicit agreement “upstream” also affects and involves contracts concluded “downstream”, implementation manifestations of that (illegal) agreement.

Subsequent to the aforementioned ruling, a jurisprudence has developed that is in no way univocal and coherent, indeed, to tell the truth, confused, varied and divided.

In fact, some rulings have revealed the total nullity of the “downstream” contracts concluded on the basis of the aforementioned illicit agreement, arguing that “if it is true that any form of distortion of market competition, in any way it is put in place, constitutes relevant behavior for the ascertainment of the violation of article 2 of the antitrust legislation, it is inevitable to conclude that the entire result, downstream of that distortion, must be subjected to the severe ax of nullity; and this even if in the guarantee contract signed by the guarantor with the bank only articles 2, 6 and 8, containing the clauses of “survival”, “revival” and waiver of the terms pursuant to article 1957 of the civil code, reproduced those of the scheme drawn up by the ABI in 2003, then deemed by the Bank of Italy to be detrimental to competition, in violation of article 2 of law no. 287 of 1990” (so, Court of Salerno, 23.8.2018, n. 3016; see also Court of Salerno, 5.2.2020, n. 480); also noting that “in terms of omnibus guarantees, where it is ascertained that the clauses of the contract are the result or, better, the manifestation of an illicit agreement pursuant to art. 2 Law no. 287/1990, in addition to the remedy of compensation for damages, the civil remedy of nullity can also be configured and this pursuant to art. 1418, co. 1, of the Civil Code, due to direct opposition to the mandatory rules of public economic order: the contract becomes the “outlet” of the prohibited agreement, i.e. the instrument through which the effects of the anti-competitive offense are realised, so that it itself is struck by nullity, contrasting with the discipline aimed at protecting competition” (Court of Naples, 5.5.2021, n. 4214; see also Court of App. Bari, 15.1.2020, n. 45; Court of Taranto, 8.8.2019, n. 2127; Court of Siena, 14.5.2019).

In the opinion of the aforementioned rulings, there can be no doubts about the essentiality of the clauses in question (articles 2, 6 and 8 of the ABI scheme); essentiality, however, affirmed by the ABI itself during the preliminary investigation of the proceeding before the Bank of Italy. If the latter has decided to prohibit the clauses in question, it is because these, imposing on the guarantor charges other than those established by the provisions of the civil code, such as the waiver of the terms referred to in art. 1957 civil code (art. 6) and the permanence of the surety obligation in the face of extinguishing events and causes of invalidity that may concern the payment of the debtor or the guaranteed principal obligation itself (arts. 2 and 8), significantly alter the balance of interests at the basis of the civil law of the surety.

According to a different and full-bodied (in terms of number of pronouncements) jurisprudential orientation, in the events in question the partial nullity of the contractual regulations can instead be found, since “the provision of the Bank of Italy, which ascertained the opposition to the competition law of certain clauses present in a standard form prepared by the ABI, does not entail the automatic and complete nullity of all the surety contracts stipulated on the basis of this model, the general discipline of which in art. 1419 of the Civil Code, on the basis of which the nullity of the anti-competitive clauses does not entail the nullity of the entire contract if the structure of the interests at stake is not compromised by a partial nullity ruling.” In this regard, the Court of legitimacy, examining a case in which the surety agreement had been concluded between the parties in 2013, found in the reasoning part that “having the administrative Authority limited the ascertainment of the illegality to some specific clauses of the NBU transfused in the unilateral declarations made in implementation of said agreements (fol. 3 of the imp. sentence), this does not exclude, nor is it incompatible, with the fact that in concrete terms the nullity of the downstream contract must be assessed by the judge seised in the same way as articles 1418 of the civil code et seq. and that the art. 1419 of the Civil Code, as happened in the present case, where the structure of the interests at stake is not prejudiced by a partial nullity ruling, limited to the clauses deriving from illicit agreements.” (so Cassation, 26.9.2019, n. 24044).

Decision of the Court of legitimacy which can be accompanied (albeit with arguments that are not always unequivocal, explanatory of different and varied theories of thought) by further sentences of the lower judges who, starting from the fact-finding of the case examined, affirmed the principle of partial nullity of the guarantor contracts (omnibus), repetitive of the ABI model of 2003 (so, among others, Court of Rovigo, 3.5.2021, n. 305; Court of Brescia, 23.6.2020, n. 1176; Court of Milan, 23.1 .2020, n. 610; see also Court of Milan, 28.4.2020, n. 2637; Court of Monza, 21.1.2020, n. 58; Court of Rome, 11.9.2019, n. 17243; Court of Benevento, 25.5.2019; Court of Mantua, 16.1.2019; Court of Rovigo, 9.9.2018; Court of Treviso, 7.6.2018).

The affirmation and declaration of nullity (total or partial) of the guarantor contracts necessarily passes through the full and adequate verification of the fact of the various cases submitted to the judges of merit. In other words, the judges verify and ascertain the individual judicial cases, examining various elements and aspects of the cases, such as (by way of example and not limited to): a) the uniformity of the clauses in question with those of the ABI model of 2003 (“ the coincidence of the disputed clause with the incriminated one”: see above and also Court of Monza, 21.1.2020, n. 610) and more generally the conformity of the literal content of the surety agreement signed with that of the ABI scheme of 2003 (” the equal correspondence of the entire contractual text with the ABI form”), without any “form of personalisation, not even stylistic or lexical”; b) the signing date of the surety agreement (compared to the time of the “illegal” agreement or, at the most, of the measure rendered by the Bank of Italy; the greater the time distance of the agreement from the events indicated, the less evident will be the attributability of the same to the implementation of the illicit scheme); c) the possible coincidence of dates between the conclusion of the principal debt relationship and the guarantee one (depending on the guarantor’s freedom to choose the type of guarantee); d) the presence, in the period in which the surety contract was concluded, of alternative regulations and different “proposals” from other banking institutes. Elements which in the concrete situation may or may not lead to a judicial assessment aimed at declaring the (total or partial) nullity of the surety agreement.

It is clear that, in this context, the party who invokes the contractual invalidity profile has the burden of proving and documenting this aspect, providing in this regard every useful and necessary factual element for the assessment, even though the aforementioned provision of the Bank of Italy assessment of the infringement (n. 55 of 2 May 2005) possesses “… like those issued by the Competition and Market Authority, a high aptitude for proving anti-competitive conduct, regardless of the sanctions that are pronounced therein , and the trial judge is required, on the one hand, to appreciate the overall content, without being able to limit his examination to isolated parts of it, and, on the other hand, to assess whether the contractually agreed provisions coincide with the conditions covered by the restrictive agreement, not being able to attribute decisive importance to the implementation or otherwise of the prescription contained in the aforementioned provision with which the ABI was forced to exclude the clauses prohibited from the contractual scheme widespread in the banking system” (so, Court of Cassation, 22.5. 2019, no. 13846).

Some rulings, on the contrary, aligning themselves with an outdated case law (see Cass., 11.6.2003, n. 9384), do not see in the “downstream” contracts profiles of invalidity (neither total nor partial). In particular, according to a recent ruling by the trial judge (Trib. Treviso, 26.7.2018, n. 1623) “a contract that has been validly completed, in the presence of the structural validity requirements established by law and which does not in itself pursue a illicit or undeserving cause for the legal system, cannot suffer disabling effects depending on the verification of the nullity or the nullity of a different legal relationship existing between third parties. If, on the one hand, the sureties stipulated in accordance with the contractual framework prepared by the Italian banking association in October 2002 must indeed be considered null and void for violation of the prohibition of anti-competitive agreements, as recognized in the opinion of the AGCM of August 22, 2003, on the other hand, however, the nullity of the surety contracts cannot be considered in which there is no objective reference to the resolution of the association of banking companies approving the standardized model of omnibus surety, nor in those in which it does not appear that this resolution has bound the stipulating credit institution to comply with the ABI scheme in negotiations with third parties. In this circumstance, indeed, it is difficult to identify a connection of dependence of the sureties with the resolution of the ABI or a negotiating link in its technical meaning” (of the same address also from the latest Court of Busto Arsizio, 26.5.2020, n. 513; Court of Spoleto 14.3.2019, n. 197; Court of Naples, 1.3.2018, n. 2338; Court of Monza, 16.10.2007). Analyzing cases similar to the one examined by the writer, the trial judge addressed the question of the impact of the unlawful agreement upstream on the contracts concluded downstream, noting that “the claim that the invalidity of a legal relationship can spread to another relationship presupposes the prior verification of a bond of functional dependence or, at least, of an objectively appreciable negotiating link between them”.

In the opinion of the aforementioned judges, it is necessary to ascertain the existence of a link of functional dependence between the contract whose nullity is contested and the upstream agreement that presumably originated it, since “the application of the principle simul stabunt simul cadent presupposes, on an objective level, a practical reason further and distinct from that of the single contracts considered in themselves and, on a subjective level, the manifestation of the common practical intent and of the will for teleological coordination of the contracts” (see again Court of Spoleto , cit). And where these elements are not objectively appreciable in the case considered, a contract that has been validly completed, presents the structural requirements of validity established by law and does not in itself pursue an illicit or undeserving cause for the legal system cannot suffer invalidating effects in dependence on the ascertainment of the nullity or lapse of a different legal relationship, which occurred between third parties and from which there is no proof it derives.

Well, perhaps now the United Sections will indicate the main road … we’ll see.

Francesco Resta
Tax & Legal Partners