Banking, Contracts, Mortgage, Euribor rate clauses, Partial nullity, Supreme Court of Cassation, Third Section, judgment no. 12007 of 05/03/2024
Nullity pursuant to art. 2 l. 287 of 1990 and/or art. 101 TFEU
Mortgage contracts – Clauses relating to the Euribor rate – Necessity of knowledge of illicit agreements restricting competition and the desire to conform the contract to said practices – Absence of these requirements – Nullity pursuant to art. 2 l. 287 of 1990 and/or art. 101 TFEU – Exclusion – Determination of the Euribor as the object of agreements restricting competition with the aim of manipulating said index – Partial nullity – Consequences.
The Third Civil Section, deciding on the appeal aimed at ascertaining the nullity of the clause of the loan contract relating to the Euribor rate for the period 2005-2008, stated – in the interest of the law, pursuant to art. 363, paragraph 3, c.p.c. – the following principles of law:
«Loan contracts containing clauses which, for the purpose of determining the measurement of an interest rate, refer to the Euribor, stipulated by parties unrelated to any agreements or illicit practices restrictive of competition aimed at manipulating the rates on the basis of which the aforementioned index is determined, they cannot, in the absence of proof of knowledge of such agreements and/or practices on the part of at least one of the contracting parties (even regardless of awareness of their illegality) and of the intention to objectively conform the contractual regulation to the result of the same agreements or practices, be considered contracts stipulated in “application” of the aforementioned practices or agreements; therefore, the existence of the nullity of the specific clauses of these contracts containing the reference to Euribor must be excluded, pursuant to art. 2 of law no. 287 of 1990 and/or art. 101 TFEU”;
«The clauses of mortgage contracts which, in order to determine the measurement of an interest rate, refer to the Euribor, can be considered vitiated by partial nullity (original or supervening), due to the impossibility, even if only temporary, of determining the their object, where it is proven that the determination of the Euribor was the subject, for a certain period, of agreements or illicit practices restrictive of competition implemented by third parties and aimed at manipulating said index; to this end it is necessary to provide proof that that parameter, at least for a given period, has been objectively, effectively and significantly altered in concrete terms, compared to the ordinary determination mechanism presupposed by the contract, by virtue of the illicit conduct of third parties, to to the point that it cannot carry out the objective function assigned to it, in the contractual regulation of the respective interests of the parties, of effectively determining the object of the interest rate clause”;
«In this last case (without prejudice to any compensation actions against those responsible for the damage by the contracting party actually injured, if all the conditions are met), the consequences of the partial nullity of the clause which refers to the Euribor due to the impossibility of determining the its object (limited to the period in which the concrete alteration of that parameter is ascertained) and, first of all, the possibility of its replacement through legislation, where it is not possible to reconstruct its “genuine” value, i.e. stripped of its abusive nature alteration, will be evaluated according to the general principles of the legal system”.
Source Supreme Court of Cassation
