In a concrete application of the principles expressed by the Court of Cassation, the Court of Appeal of Trieste ordered an Office Technical Consultant (OTC) to recalculate the entire financial repayment plan of a loan agreement with an interest rate clause that had been declared null and void.
As is now well known, in its decision of 4 December 2013, the European Antitrust Commission (the “Commission“) found that the fixing of the Euribor rate between 29 September 2005 and 30 May 2008 was unlawful because it had been manipulated by a pool of banks. In particular, the Commission sanctioned the banks involved – Barclays, Deutsche Bank, Société Générale and RBS – for the illegal agreement that developed in the context of EIRDs (Euro interest rate derivatives). These financial products are used to manage the risk of interest rate fluctuations and their value is linked to the evolution of a reference interest rate, such as the London Interbank Offered Rate (LIBOR) or the Euro Interbank Offered Rate (EURIBOR). The Commission concluded that the cartel, through the exchange of information, affected the normal functioning of the EIRD market by raising EURIBOR in order to favour the circulation of derivative products at a distorted price.
Exactly 10 years later, in its decision no. 34889 of 13 December 2023, the Court of Cassation declared the clause fixing the interest rate of a leasing contract null and void because it was calculated by reference to the Euribor rate.
The main novelty of this judgment is that the nullity of the rates does not take into account the direct participation of a banking institution in the Euribor manipulation panel.
In particular, the Court specified that the Commission’s decision must be considered “privileged evidence” in support of the request for the declaration of nullity of the manipulated rates (and the consequent recalculation of the interest in the period involved by the manipulation). And this shall apply “regardless of whether or not Banco Bpm S.p.A. participated in the agreement” since the prohibition set forth in Article 2 of Law No. 287/1990 applies to “any contract or transaction downstream that constitutes the application of unlawful agreements concluded upstream”.
According to the Court, the legislator’s intention was to prohibit distortion of competition in a broad sense. Therefore, any form of distortion of competition constitutes conduct relevant to establishing a violation of Article 2 of the so-called Antitrust Law.
As expected, the Court of Appeal of Trieste, in its decision of 24 January 2024, has expressly and directly applied the principles of the Court of Cassation set out above. Faced with a loan agreement with a variable interest rate linked to Euribor, the Court of Appeal ordered the appointment of a technical accountant to redetermine the debit/credit relationship between the parties, replacing the Euribor rate (for the instalments falling within the period of the manipulation) with the legal rate pursuant to articles 1346 and 1248, first and third paragraphs, of the Italian Civil Code.
The appointment of the OTC and the hearing scheduled for 28 February 2024, in addition to being an important step for all the stakeholders involved, leads to some reflections on the consequences and implications of the Supreme Court’s decision.
First of all, it should be noted that the claim made in the proceedings for the invalidity of the contracts linked to the manipulated Euribor values is of a contractual nature. Therefore, the plaintiff does not have to prove that the rates were increased as a result of the manipulation, but only that the prohibited “agreement” took place. This will be easy, as it will be sufficient to produce the decision of the Antitrust Commission (privileged evidence according to the Supreme Court).
Moreover, as regards the question of the statute of limitations and, more precisely, its starting date, the 10-year period – applicable to partial nullity – should run from the last instalment of the loan and, in any event, from 14 November 2016 (the date on which the decision of the Antitrust Commission, which had been secret until then, was published), since no action could be brought before that date.
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