A recent landmark decision of the Court of Cassation (Cass. 29810/2017 of 12th December 2017) came into the limelight for its application on the competition law implemented on 12th December 2017. The legal background of this decision dated back to 2003, when the Bank of Italy initiated an investigation relating to the model contract for unlimited suretyship ("fideiussione omnibus") prescribed by the Associazione Bancaria Italiana (Italian Banking Association hereinafter referred as the "ABI") for the use of its members. The Bank of Italy held that the adoption of the said model contract by the members of ABI could result in a violation of domestic regulations with regards on competition, and thus, subsequently sought for an advisory opinion of the Italian Authority for Competition and the Market ("AGCM") on the matter. The AGCM upheld the decision of the Bank of Italy, stating that the use of the model contract prescribed by the ABI and applied by the members of ABI was jeopardizing the competition by imposing clauses that constituted a derogation from the norms set forth in the Italian Civil Code with regard to unlimited suretyship. The investigation stemmed from the decision of the AGCM of 20th April 2005, where AGCM stated that the model contract prescribed by the ABI encompassed clauses that produced the effect of restricting competition.
Following the above, the Court of Cassation has recently dealt with this matter in the context of a case concerning the nullity of an unlimited suretyship based on the model contract prescribed by the ABI. The Court, in this case, held that when an agreement is found to be in violation of competition law by the AGCM, the descending contracts stipulated before the finding of the Authority may also be declared void, provided that they are signed after the anti-competitive agreement has come into force.
This decision generates a particular interest when reading together with the enacted Legislative Decree No. 3/2017 of 19th January 2017, which implements the Directive no. 2014/104/UE of 26th November 2014, in which states amongst others, on the compensation for damages deriving from the violation of competition under domestic law. The said Legislative Decree 3/2017 provides a clear step forward in the direction of making the protection of the right to competition more accessible to private entities and individuals who are affected by a violation. The Decree attempts to balance the burden of proof through the introductions of a bundle of procedural tools aimed at facilitating the work of lawyers who have to protect the interest of clients affected by a violation of competition law. Indeed, as a consequence of the said Decree, the decisions of the AGCM have acquired the role of "privileged evidence" in the context of the civil procedure initiated by a guarantor for the aim of obtaining the nullity of a suretyship based on the ABI model. Based on the implementation of this new provision, it provides that once the right of competition has been violated determined by the decision of the AGCM, such violation no longer needs be proved.
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