On October 2, 2019, the Court of Salerno declared null and void in its entirety a guarantee agreement containing standard clauses based on a form by the Italian Banking Association (the “ABI”), which had been held anticompetitive by a decision of the Bank of Italy.
On May 2, 2005, the Bank of Italy established that some of the clauses in a form circulated by the ABI were anticompetitive, because they would lead to a standardization of the clauses imposed by the banks, to the detriment of guarantors. In particular, the Bank of Italy contested the clauses according to which: (i) the guarantor must reimburse the bank the amounts it received as payment for covered bonds, in case they have to be returned following the annulment, ineffectiveness or revocation of the payments, or for any other reason; (ii) if the covered bonds are declared null and void, the guarantor must guarantee in any event the debtor’s obligation to return the amounts received; (iii) the rights of the bank deriving from the guarantee are effective until all its credits towards the debtor have been paid, and the bank is not under an obligation to request the payment from the debtor or the guarantor within the time limits provided for by Article 1957 of the Italian Civil Code.
The claimant asked the Court of Salerno to declare that a guarantee agreement entered into with Banca della Campania S.p.A. was null and void in its entirety because it violated Article 2 of Law No. 287/1990. In particular, the claimant argued that, based on the case-law of the Italian Supreme Court, a guarantee agreement must be considered null and void if it contains the clauses from the ABI form, which was declared anticompetitive by the Bank of Italy. Indeed, the violation of Article 2 of Law No. 287/1990 through the form circulated by the ABI would automatically render null and void the downstream contracts that reproduce its clauses, as these contracts constitute the way the unlawful form circulated by the ABI produces a concrete effect on the market. Moreover, the claimant argued that, according to the Italian Supreme Court, Article 2 of Law No. 287/1990 would apply not only to the first anticompetitive act or agreement, but also to the whole sequence of subsequent acts that restrict competition.
The judgment of the Court of Salerno
The Court of Salerno stated that, for the downstream guarantee agreement to be declared null and void, it is sufficient that its clauses reproduce those envisaged in the ABI’s form, considered anticompetitive by the Bank of Italy. Indeed, the invalidity of the upstream form would extend to the downstream guarantee agreement, as the only purpose of the form was to standardize the clauses applied by banks in their downstream contracts. Accordingly, the downstream contracts must be considered incompatible with competition rules, regardless of whether the parties to these contracts were involved in the proceedings initiated by the Bank of Italy. In the court’s view, the downstream contract between the undertaking and the consumer implements the anticompetitive upstream agreement between firms. Considering the upstream and downstream contracts as separated would be contrary to the goals of competition law, which is aimed at protecting not only the firms concerned, but also other market players.
After having established that the clauses contained in the guarantee agreement between the claimant and Banca della Campania, which reproduced the anticompetitive clauses of the ABI form, were unlawful, the Court assessed whether the nullity was limited to those clauses or extended to the entire contract. The Court concluded that the guarantee agreement in its entirety had to be declared null and void, taking into account different elements.
First, even though the Italian Supreme Court has never taken a stance on this specific point, the gravity of the violations at stake led to consider that the entire agreement was null and void, also in light of the principle of solidarity, which should also apply in contractual relationships.
Second, a declaration of nullity of the entire guarantee agreement was consistent with the need to enhance the protection of competition through an effective private enforcement system.
Third, according to the Court of Salerno, the wording of the Italian Supreme Court’s case-law, which refers to the invalidity of the guarantee agreement and not of its individual clauses, suggests that the whole contract, and not only individual clauses, should be considered invalid.
Based on the foregoing, the Court stated that the guarantee agreement entered into by the claimant and Banca della Campania was null and void in its entirety.
The judgment of the Court of Salerno concerns a controversial topic. While Italian courts have repeatedly considered that the clauses of downstream guarantee agreements reproducing the anticompetitive provisions of the ABI’s form are null and void, it is still disputed whether the invalidity of these clauses should extend to the agreement in its entirety. This issue has already been assessed in other cases, with different outcomes. Some courts agreed with the Court of Salerno, while others held that only the clauses reproducing the anticompetitive provisions of the ABI’s form should be declared null and void.
 Court of Salerno, Judgment No. 3097 of October 2, 2019.
 Bank of Italy, decision of May 2, 2005, No. 55, Case I584, ABI: Condizioni generali di contratto per la fideiussione a garanzia delle operazioni bancarie.
 Italian Supreme Court, Order No. 29810 of December 12, 2017.
 Supreme Court (Grand Chamber) Judgment No. 2207 of February 4, 2005.
 See Supreme Court Judgment No. 21878 of June 15, 2019; Order No. 29810 of December 12, 2017.
 Supreme Court Judgment No. 17475 of December 9. 2002.
 Supreme Court Judgment No. 2305 of February 2, 2007.
 Supreme Court Order No. 29810 of December 12, 2017.
 See, for instance, Court of Appeal of Bari Judgment No. 526 of March 21, 2018; and Court of Salerno Judgment No. 3016 of August 23, 2018.
 See, for instance, Court of Appeal of Brescia Judgment No. 161 of January 29, 2019; and Court of Mantova Judgment of January 16, 2019.