Italian Supreme Court: ABI Guarantees and the Burden of Proof

1. The facts

   According to legal publications, the case arises from an opposition to an injunction filed by two guarantors against a debt purchasing company. The facts pertain to guarantees signed in 2015, long after the three-year period investigated by the regulatory authority. The procedural stage is that of a preliminary reference under Art. 363-bis of the Italian Code of Civil Procedure (c.p.c.), ordered by the Court of Syracuse to resolve judicial conflicts regarding the scope of the guarantees involved. The guarantors argued that, as the contractual clauses were identical to those censured in 2005, partial nullity should apply automatically. Conversely, the credit institution highlighted that these were specific guarantees rather than omnibus models, thus excluding the application of the line of case law more favorable to the guarantor.

2. 

   The rules at play

   The dispute revolves around Art. 2 of Law no. 287/1990, which prohibits anti-competitive agreements, rendering downstream contracts that implement them null and void. Art. 1957 c.c. is the key substantive provision: it requires the creditor to initiate proceedings against the principal debtor within six months of the obligation's maturity, a forfeiture period commonly waived by the ABI clauses declared null. Art. 1419 c.c. governs partial nullity, establishing that the invalidation of anti-competitive clauses does not void the entire guarantee, but restores the ordinary legal rules. Finally, Art. 363-bis c.p.c. is the procedural tool through which the Supreme Court was called to rule preventively to ensure legal uniformity nationwide.

3. Case law perspective

   Unlike analyses concerning the evidentiary value of European Commission decisions regarding the Euribor cartel, this study examines the evidentiary weight of Bank of Italy measure no. 55/2005 with respect to guarantees that fall outside the omnibus model or were executed outside the 2002-2005 timeframe. Supreme Court case law has clarified that this measure constitutes privileged evidence exclusively for omnibus guarantees signed during the three-year period under investigation. For subsequent contracts or different guarantee types, the court established that the administrative decision is downgraded to a mere circumstantial indicator. Consequently, the guarantor cannot merely cite the historical administrative measure, but must prove that the anti-competitive agreement among banks remained active at the time of signing and that the specific form used reproduced the unlawful scheme.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Do not limit the evidentiary submittal solely to Measure no. 55/2005 if the guarantee was executed after 2005 or is specific in nature.
   2. Timely acquire standardized contract forms from multiple credit institutions to demonstrate the persistence of the anti-competitive agreement at the time of signing.
   3. Rigorously check the timeliness and validity of out-of-court payment notices issued by the creditor, assessing their effect on preventing forfeiture under Art. 1957 c.c.

References: art. 2 L. 287/1990art. 1957 c.c.art. 1419 c.c.art. 363-bis c.p.c.

Editorial oversight: Avv. Federico Papa·ICAMUpdated 2 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction