Intesa sugli EIRD e finanziamenti indicizzati all'Euribor : il magnetismo resistibile della nullità

Between December 2023 and July 2024, the Supreme Court intervened on three different occasions on the issue of the consequences of the EIRD arrangement, ascertained by the European Commission between 2013 and 2016, on Euribor-indexed financing contracts. The commentary thus reviews the three pronouncements made by the Supreme Court, dwelling in particular on the viability of the option almost ignored by the first two and only evoked by the third, namely that of damages, actionable in the wake of the Kone and Otis II case law of the Court of Justice. In particular, of Order No. 4889 of 2023, according to which the financing contract should itself be understood as an outlet of the derivatives agreement and for that reason fulminated by the sanction (nullity) dictated by the antimonopoly provisions, the unsupportability of the premises and the implausibility of the interpretive approaches is argued. Subsequent ruling No. 12007/2024, which also appropriately distanced itself from the ruling of a few months earlier and excluded any automatism of nullity against the financing contract, is, on the other hand, itself deemed not fully convincing, when it prefigures the possible occurrence of prerequisites for a common law nullity, from (supervening) impossibility of determining the object. On the other hand, an adhesive opinion is expressed by the a. regarding the third measure, namely the interlocutory order of July 2024 (ord. 19900/2024), rendered by the I section of the Supreme Court and by which the transmission of the acts to the First President of the Court was ordered for the referral of the case to the United Sections. In fact, the Court here well emphasized the diversity of the relevant market between that affected by the agreement on EIRDs and that to which EURIBOR-indexed loans refer; excluding that manipulative practices concerning EURIBOR can render indetermina(bile)to the object of the clause that refers to that parameter and, for the effect, null and void the clause itself, and at most open to a different invalidating hypothesis (voidability by third party intent, pursuant to Art. 1439, paragraph 2, c. c.) for the case in which one of the contracting parties was aware of the alteration of the Euribor parameter produced by a third party and took advantage of it