Euribor manipulated to joint sector

«In requesting the intervention of the Joint Department, the new decree categorically denies that the mortgage contract can be considered a “downstream contract” of an “upstream” anti-competitive agreement – stressed Francesco Mocci, partner at Advant Nctm – because the latter is aimed at transforming the derivatives market and not the financing market. It would therefore be incorrect to consider the financing contract as the result of a prohibited cartel. Interestingly, the conclusions of the Supreme Court apply not only to contracts concluded by clients with banks outside the group, but also to contracts with international banks responsible for the attempted manipulation”. In addition, the Legality Court noted that in cases where the manipulation parameters are in favor of the borrower (at least in certain periods), deriving the invalidity of the final contract from the cartel’s contract may lead to inefficient or unsatisfactory results for the borrower itself.

“The decree is very severe on the May clause and also concerns the question of the presumption of invalidity arising from the uncertainty of the rate in contracts concluded with banks not linked to the prohibited agreement”, adds Mocci. In fact, neither consumer discipline (which does not concern products or services whose prices are linked to market price fluctuations that are not under the control of professionals) nor the ordinary code rules of contracts seem to lead to similar conclusions, since the contracting parties do not intend, by referring to Euribor, to refer to one or another mathematical formula, but to a simple “external fact” whose objectivity is relevant and easy to find and verify: as a result, the clause that determines the interest rate is completely certain/determinable”.

According to the Supreme Court, the only case where a third-party tortious action may have some relevance is a specific change in the contractual consent, which needs to be proved according to the rules and limitations on rescission of the contract due to defects. The consent as well as the Aquilian charge of violation of the general principle of “neminem laedere” are enforceable only against the group bank. In short, with the change of seasons, the relevance of this issue seems to be getting weaker and weaker compared to last winter’s decision.

Borrower prospects

We will see whether this question will indeed be examined by the Joint Division, in which case the Joint Division will have to first determine whether a loan contract containing an interest determination clause linked to the Euribor index constitutes a transaction “anti-competitive agreement established by the European Commission in its decisions of 4 December 2013 and 7 December 2016 between 29 September 2005 and 30 May 2008, or whether the lender was involved in such an agreement or its knowledge of the existence of this agreement and the intention to exploit the relevant results are not necessary to be able to consider that the loan contract constitutes a prohibited agreement, which is essential for its enforcement and its effects, in the absence of a functional link between the two acts.

The second question that needs clarification is whether the change in the Euro Interbank Offered Rate due to the illegal actions of third parties leads to the invalidity of the interest determination clause of the mortgage contract, which, based on this indicator, is invalid due to the uncertainty of the subject matter, or, more precisely, it constitutes an element that is abstractly suitable to be relevant only in the process of forming the intention of the parties, which, in appropriate cases, can cause a misrepresentation of reality in the contracting parties, or as a fact that produces damages. In short, what remains for now is to observe the movements of the ferret on this issue that concerns many borrowers.