Manipulated Euribor towards the United Sections

"In urging the intervention of the United Sections, the new ordinance recisely denies that the loan contracts can be recognised as "downstream contracts" of the anti-competitive agreement "upstream" - underlines Francesco Mocci, partner of Advant Nctm - because the latter was aimed at altering the derivatives market and not the financing market. It is therefore incorrect to consider the financing contracts as the outlet of the prohibited cartel. It is interesting to note that the Supreme Court's conclusion applies not only to the contracts concluded by the clients with the banks outside the panel, but also to those signed with the international banks that were the authors of the attempted manipulation'. In addition, the Court of Legitimacy observes, making the nullity of the final contract derive from the nullity of the cartel could lead to inefficient or inapplicable results for the borrowers themselves, in cases where the manipulation of the parameter benefits them, at least in certain periods.

"The ordinance is very harsh towards the May measure also on the subject of the alleged supervening nullity due to the indefiniteness of the rate in the hypothesis of contracts concluded with banks that are extraneous to the prohibited agreement," adds Mocci. In fact, neither the consumer discipline (which does not deal with products or services whose price is linked to the fluctuations of market rates not controlled by the professional) nor the ordinary code rules on contracts seem to lead to such a conclusion, given that the contracting parties did not intend to refer, by referring to Euribor, to one or the other mathematical formula, but to a simple 'external fact', relevant in its objectivity and easily found and verified: with the consequence that the clauses establishing the interest rates are perfectly determined/determinable".

The only cases in which the tort of the third party can have any relevance, according to the Supreme Court, are the concrete alteration of the consent to negotiate, to be proven according to the rules and limits on the subject of the annulment of a contract due to a defect of consent, and the tort of tort in tort for violation of the general principle of neminem laedere, to be asserted exclusively against the panel banks. In short, with each change of season, the relevance of the issue seems to fade more and more compared to last winter's decision.

We shall see whether the issue will actually be submitted to the scrutiny of the United Sections, which in the case will have to rule first of all by defining whether the loan agreement containing the clause for the determination of interest, parameterised to the Euribor index, constitutes a "downstream" transaction with respect to the restrictive agreement on competition ascertained, for the period from 29 September 2005 to 30 May 2008 by the EU Commission in its decisions of 4 December 2013 and 7 December 2016, or whether, on the other hand, irrespective of the lender's participation in that cartel or its knowledge of the existence of that cartel and its intention to take advantage of the result thereof, it is not, lacking the functional link between the two acts, which is necessary in order to be able to consider that the loan agreement constitutes the outlet of the prohibited cartel, which is essential to realise and implement its effects.

A second aspect to be clarified is whether the alteration of the Euribor due to unlawful acts carried out by third parties represents a cause for the nullity of the clause determining the interest of a loan contract, based on this index due to the indeterminability of the object, or rather, constitutes an element abstractly capable of assuming relevance only in the context of the process of the formation of the will of the parties, where it is capable of determining in the contracting parties a false representation of reality, or as a fact producing damage. In short, for the time being, all that remains to be done is to observe the ermines' moves on this issue, which concerns many borrowers.