More and more courts are going against the Supreme Court decision of 13 December 2023 regarding the manipulation of Euribor by a banking cartel. After the ruling of the Turin Court of 29 January, the Milan Court also confirms its positions, which still appear to be in stark contrast with what was established by the Supreme Court order.
The case of the manipulated Euribor
Before describing the decision of the Court of Milan, it is best to first explain the background.
The European Commission in December 2013 confirmed that the Euribor rate, i.e. a parameter that is often used as a reference point and basis for calculating the rate to be used for a variable rate mortgage, had been manipulated by several international banks in the period 2005-2008 , sanctioning a cartel in which UBS, RBS, Deutsche Bank, Citigroup and JP Morgan participated, thus violating the principle of free competition.
But this story has only recently started to be talked about again in Italy, when on 13 December 2023 the Court of Cassation established the nullity of the Euribor parameter and, consequently, of all payments made as interest on mortgages, financing and leasing linked to this rate. More precisely, the Court of Cassation has established the principle according to which “the manipulative agreement of the Euribor rate ascertained by the European Commission with decision of 4 December 2013 produces the nullity of ‘downstream’ contracts which refer to the manipulated rate”. This nullity concerns contracts stipulated before or during the period between 29 September 2005 and 30 May 2008, as they appear to have been influenced by manipulations conducted by a group of international banks.
A decision that could lead to a phenomenon of mass compensation, probably involving local authorities, companies and private citizens. As a result, those who paid interest in the period identified as being manipulated by the European Commission could participate in this compensation process.
The decision of the Court of Milan
If the Supreme Court’s decision had led to the first reimbursements, as in Trieste, it was however denied by two courts: that of Turin in January 2024 and that of Milan in March. The Turin judge maintains that the financing contracts stipulated with credit institutions not involved in the anti-competitive agreement cannot be considered as contracts “downstream” of an illicit agreement. Therefore, it completely rejected the recalculation requests made by the borrower’s lawyer, who had seen his mortgage loan defaulted followed by a foreclosure, and ordered him to pay the court costs.
The sixth section of the Milan Companies Court instead rejected a request for recalculation relating to two leasing contracts, maintaining that the leasing in question is not connected to the prohibited agreement.
The judging panel stated that the Supreme Court order establishes that the decisions of the European Commission are considered privileged evidence of the antitrust offense and that, regardless of the involvement of the defendant institution in the illicit agreement, any contract or transaction connected downstream and that constitutes application of illicit agreements concluded previously is subject to the same restrictions.
According to the Court, the motivational process did not address the specific case dealt with by the Commission, and adherence to the opinion of the Consulta presents some critical issues. Although the jurisprudence of the Court of Justice of the European Union provides for the legitimacy of an action for compensation for damage caused by the manipulation of competition even for those who have suffered negative repercussions in the renegotiation of their contracts, the compensation action should be limited to companies only involved in the cartel.
