C-215/96

OPINION OF MR RUIZ-JARABO — JOINED CASES C-215/96 AND C-216/96

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 15 January 1998 *

1. This case arises from two actions pending have been ordered to pay to Banca Popolare before the Tribunale di Genova (District di Novara (hereinafter 'BPN') the sum of ITL Court, Genoa) in which the question has been 222 440 332 on the following grounds: raised whether certain general contractual con- ditions laid down by the N o r m e Bancarie Uniforme (Standard Bank Conditions, here- inafter the 'NBU') of the Associazione Ban- caria Italiana (Italian Banking Association, hereinafter the 'ABI') for the purpose of regu- lating contracts for the opening of current- — ITL 170 440 332, being the debit balance account credit facilities and general guarantee of current account 1360/320/30 opened in agreements (fideiussione omnibus) intended to the name of Carlo Bagnasco under a con- cover the opening of a credit faculty are com- tract of 8 October 1991, plus interest at patible with Articles 85 and 86 of the EC the rate of 17% accrued as from 1 April Treaty. 1 9 9 2 ;

The proceedings before the national court — ITL 9 400 000, being the debit balance of current account 14336/33E/30 opened in the name of Carlo Bagnasco under a con- tract of 27 December 1991, plus interest at 2. The plaintiffs in the proceedings before the the rate of 17.50% accrued as from 1 April Tribunale di Genova are Carlo Bagnasco, as 1992; principal debtor, and his guarantors, as joint and several debtors, who have appealed against two provisionally enforceable payment orders made by the President of the Tribunale di Genova on 18 June 1992.

— ITL 21 000 000, for bills drawn on Anna them on the promissory notes and the general Sbardella, discounted and/or credited to guarantee entered into on 7 February 1997 current accounts 'subject to due collec- for up to ITL 300 000 000 (Case C-215/96), tion', as listed on forms submitted for dis- and on 28 November 1989 for up to count and/or crediting under the signa- ITL 195 000 000 (Case C-216/96). ture of Carlo Bagnasco, and the pledging of instruments, again drawn on Anna Sbardella, discounted by Carlo Bagnasco. Added to this amount is the interest, at the legally prescribed rate of 15%, accrued as from the date of the payment order. 6. Carlo Bagnasco and his guarantors have challenged the payment orders on the grounds, inter alia, that the standard bank rules and practices applied by Italian banks to contracts for the opening of current-account credit 4. In the action which gave rise to Case facilities and to general guarantee agreements C-216/96, Carlo Bagnasco and his guarantors are incompatible with Articles 85 and 86 of have been ordered to pay to Cassa di Ris- the EC Treaty. parmio di Genova e Imperia (Carige) SpA (hereinafter 'Carige') the sum of ITL 124 119 497 on the following grounds:

the service provided. Carlo Bagnasco con- therefore in relation to indices recording varia- siders that the procedure for determining the tions which are unforeseeable or at least dif- price of the credit (access to cash facilities) ficult to predict for the average bank cus- cannot be reasonably predicted or understood tomer. Article 1284 of the Italian Civil Code by the customer. fixes the legally prescribed rate of interest at 10% per annum, while any interest charged at a higher rate 'must be stipulated in writ- ing', the legally prescribed rate being appli- cable if it is not. Consequently, only an agree- ment in written form — although not necessarily by means of an actual indication The national court has noted that the con- in figures of the agreed rate, but possibly by tracts concluded by Carlo Bagnasco with BPN means of an automatic calculation carried out provide, in Paragraph 2, for annual interest to on the basis of objective and accessible data be charged at the rates of 17% and 17.50%, — ensures that the rate is determined and together with commission of 1.8% on the quantified: in this case it derives from a gen- maximum indebtedness incurred in any cal- eral reference to 'money market fluctuations' endar quarter or fraction thereof. The con- and to a mechanism which also gives the bank tract concluded by Carlo Bagnasco with the power to choose the timing of the varia- Carige provides for an annual interest rate of tions and the procedures for notifying them 14% plus commission of 1.8% on the max- to the customer. imum indebtedness incurred in any calendar quarter. The contracts with both banks pro- vide that the interest rates may be increased or decreased as a result of money market fluctuations. Paragraph 12 of Carlo Bagnasco's contract with BPN also lays down that 'the Bank shall be entitled at any time to vary the interest rate ... by means of a notice to be dis- played at its premises or in such other manner as it deems fit'. 9. As regards the general guarantee agree- ments linked to the opening of credit facili- ties, the national court considers that the rel- evant clauses of the N B U and of the contracts under consideration in these cases concern the following: According to the Italian court, from the infor- mation given, only the matter of the initial determination of the rate of interest payable and the commission on the maximum indebt- edness per currency reflects any direct nego- tiation between the parties. That element of the contract, however, is offset by the right accorded to the bank, in the text of the N B U , — the giving of a guarantee 'at the same rate to increase the interest rate (at any time, by of interest as that prescribed for the trans- means of a notice to be displayed at its pre- action covered and, in any event, at a rate mises 'or in such other manner as it deems fit not lower than the current bank rate in as a result of money market fluctuations', and respect of any breach of any obligation

— the guarantor's obligation to keep himself apprised of the debtor's financial situation and in particular to obtain information from the debtor regarding the course of — the statement that 'for determination of his relations with the bank, the latter being the debt secured by the guarantee, the fig- released from any obligation to seek from ures set out in the bank's accounting the guarantor the special authorisation records shall be conclusive in any pro- provided for in Article 1956 of the Civil ceedings against the guarantor, his heirs Code; 1 and successors and assigns, and the bank shall not be required to send to the guar- antor, on its own initiative, any commu- nication regarding the state of the accounts and relations with the debtor'; — the release which the guarantor gives the bank from its obligation to act within the time-limits laid down in Article 1957 of the Civil Code, 2 intending to remain liable — the derogation from Article 1939 of the Civil Code, 3 with the result that the 'obli- 1 — Article 1956 is worded i s follows: 'A guarantor of a future gation shall remain effective in every obligation is released from his liability if the creditor, without special authorisation from the guarantor, has granted credit to respect even if the principal obligation is a third party, even though he knows that the latter's financial circumstances are such as to make it considerably more dif- invalid for any reason, the guarantor thus ficult to pay off the loan'. Law N o 154/1992 on 'banking transparency' added a second paragraph which declares to be invalid any 'prior waiver of the availability of the release from liability'. 2 — According to this article, 'the guarantor shall remain liable 3 — According to Article 1939 of the Civil Code, 'the guarantee even after the principal obligation has expired, provided that shall not be valid if the principal obligation is not valid, unless the creditor has, within six months, commenced proceedings it is given in respect of an obligation undertaken by a person against the debtor and has pursued them diligently'. subject to an incapacity'.

(3) Whether the N B U laid down by the ABI '(1) Whether the Norme Bancarie Uniforme for its members in relation to the "all- (Standard Bank Conditions) laid down embracing" guarantee covering the credit by the ABI for its members in relation facility — since they are applied in a to contracts for the opening of current- uniform and binding manner by the account credit facilities — since they are member banks — are, taken as a whole, laid down and applied in a uniform and compatible with Article 85 of the Treaty, binding manner by the banks belonging in relation to the individual clauses dis- to the ABI — are compatible with Article cussed in the grounds of this order, in 85 of the Treaty, where they make the that they are liable adversely to affect credit facility subject to conditions for trade between the Member States and determination of an interest rate which have as their object and effect the pre- is not previously determined and is not vention, restriction or distortion of com- determinable by the customer, and they petition within the Common Market; are liable adversely to affect trade between the Member States and have as their object and effect the prevention, restric- tion or distortion of competition within the Common Market;

(4) What effects any finding of incompat- ibility in accordance with (3) may have on the corresponding clauses of the "all- (2) What effects any finding of incompat- embracing" guarantee agreements and on ibility in accordance with (1) may have the agreements themselves concluded on the corresponding clauses of the con- "downstream" by individual banks, since, tracts for the opening of a current- as a group, the banks belonging to the

15. By letter of 7 July 1993, the Commission informed the Bank of Italy that it had decided The N B U under Italian national law to examine only three of the twenty-six agree­ ments notified by the ABI, in particular those concerning the conditions applicable to foreign-currency current accounts, to services for the collection and acceptance of bills and credit instruments payable in Italy and abroad, as well as the conditions governing foreign- currency financing. With regard to the other twenty-three agreements notified, which include those relating to the conditions applied in contracts for the opening of current-account 12. Subsequent to the events which gave rise credit facilities and general guarantee agree­ to the two actions pending before the Tribu­ ments, the Commission, without commenting nale di Genova, legislative amendments were introduced and administrative measures adopted in Italy which had a bearing on the general conditions applied by banks in con­ 4 — Law N o 154/92 of 17 February 1992, GURI N o 45 of 24 February 1992. tracts for the opening of credit facilities and 5 — Law N o 287/90 of 10 October 1990, GURI N o 240 of 13 general guarantee agreements. October 1990.

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16. O n 23 November 1993, the Bank of Italy commenced a procedure to examine the com- patibility with Law N o 287/90 of the twenty- three agreements excluded from the Commis- sion's investigation. That procedure culminated in the adoption by the Bank of Italy of Decision N o 12 of 3 December 1994, 6 18. The Court of Justice dispelled those which concluded that several of the condi- doubts entirely in 1981 in its judgment in tions laid down in the NBU, including some Ziichner, 7where it held that the banking of those at issue in these proceedings, affected sector is subject to the competition rules, competition and were contrary to Article 2 of unless its activities are performed in pursu- Law N o 287/90, which prohibits agreements ance of a measure adopted by the public restricting competition in terms similar to authorities, in which case they are subject to those of Article 85 of the E C Treaty. That Article 90(2). decision called upon the ABI to amend its N B U in several respects and to communicate those amendments to its members, also making it clear that the N B U were intended merely as a guide. The ABI complied with the decision adopted by the Bank of Italy and amended its NBU, although the amendments it made do not have retroactive effect and therefore have no bearing on the proceedings 19. Thereafter, the Commission discarded its before the Tribunale di Genova. initial doubts and began to examine the inter-

6 — Bolletmo dell'Autorità Garante della Concorrenza e del Mer- 7 — Case 172/80 Zūchner v Bayerische Vereinsbank [1981] ECR cato, 19 December 1994, year IV, N o 48, p. 75. 2021, paragraphs 7 and 8.

21. The Commission has deemed to be con- trary to Article 85(1) multilateral interbank agreements between banks in a single Member State and decisions by national banking asso- ciations relating to the payment of uniform rates of commission for certain services which banks provide to each other. It has, however, 20. In order to answer the questions referred granted such agreements and decisions indi- in these cases, it is important to bear in mind vidual exemptions under Article 85(3), and some of the criteria which the Commission recently did so in respect of a bilateral agree- employs in such decisions when examining ment concerning general cooperation between two banks belonging to different Member States. 13 These are agreements on the price of interbank services which eliminate competi- 8 — For an analysis of the Commission's practice in this field, see tion because they are adopted multilaterally, J. F. Bellis: 'La banque et le droit communautaire de la con- currence', Mêlanges Jean Pardon, Bruylant, Brussels, 1996, but to which the Commission grants exemp- p. 1; J. Biancareih: 'L'application du droit communautaire de a concurrence au secteur financier (banque et assurance)', tions because they facilitate the standardisa- Gazette du Palais, 1991, p. 247; Ehlermann, C. D.: 'L'huile et le sel: le secteur bancaire et le droit européen de la concur- tion and conduct of banking activities and rence', Revue Trimestrielle de Droit Européen, 1993, p. 457; avoid a profusion of bilateral banking nego- R. Greaves: EC Competition Law: Banking and Insurance Services, Chancery Law Publishing, London, 1992; L. Gyselen: tiations which would slow down and increase 'EU Antitrust Law in the Area of Financial Services — Capiu Selecta for the Cautious Shaping of a Policy', Annual Pro- ceedings of the Fordham Corporate Law Institute, 1996, p . 329 et seq.; B. Sousi-Roubi: Droit Bancaire Européen, Dalloz, Paris, 1995, pp. 333 to 378. 12 — See B. Sousi-Roubi, op. cit., p. 346 et seq.; M. Dassessc, 9 — Commission Decision 85/77/EEC of 10 December 1984 S. Isaacs, and G. Penn, EC Banking Law, Lloyds of London relating to a proceeding under Article 85 of the EEC Treaty Press Ltd, London, 1994, p. 273 et seq.; M. Waclbroeck, and (IV/30.717 —Uniform Eurocheques) (OJ 1985 L 35, p. 43). A. Frignani, Concurrence. Commentaire J. Mégret. Le Droit 10 — Commission Decision 92/212/EECof 25 Marchl992 relating de la CE, vol. 4, Editions de l'Université de Bruxelles, Brus- to a proceeding under Article 85 of the EEC Treaty sels, 1997, pp. 74 to 79. (IV/30.717-A— Eurocheque: Helsinki Agreement) (OJ 1992 13 — Commission Decision 96/454/EC of 24 June 1996 relating L 95, p. 50). to a proceeding under Anicie 85 of the EC Treaty and 11 — Judgment of the Court of First Instance in Joined Cases Article 53 of the EEA Agreement (TV/34.607 — Banque T-39/92 and T-40/92 CB and Europay v Commission [1994] nationale de Paris —Dresdner Bank) (OJ 1996 L 188, ECR II-49. p. 37).

— The agreements on the rates of commis- sion payable for the collection and/or

23. As regards interbank agreements con- 14 — Sousi-Roubi considers that the Commission's approach is misguided. In his opinion, it is wrong to use the term market cerning determination of debit and credit in the case of interbank agreements of this kind because the interest rates, the Commission did not draw banks of debit and credit customers come into contact with each other on an indirect and involuntary basis through the any inferences from Züchner and did not activities of their customers. As there is no market in the strict sense, it is wrong to taik of a restriction of competi- comment on that issue in the ABI Decision tion (Sousi-Roubi, B.: op. cit., pp. 355 to 357). The same view is defended by Pombo, F.: 'EU Antitrust Law in the or in the Association Belge des Banques Deci- Area of Financial Services', Annual Proceedings of the Fordham Corporate Law institute, 1996, pp. 397 to 398. The Commission is starting to be more responsive to this argu- ment, as is shown by its Notice 95/C 251/03 on the applica- tion of the EU competition rules to cross-border credit 16 — Commission Decision 87/103/EEC of 12 December 1986 transfers (OJ 1995 C 251, p. 3). relating to a proceeding under Article 85 of the EEC Treaty 15 — Commission Decision 87/13/EEC of 11 December 1984 (IV/31.356 —ABI) (OJ 1987 L 43, p. 51). relating to a proceeding under Article 85 of the EEC Treaty 17 — This aspect of the Decision was upheld by the Court of First (IV/261-A —Association Beige des Banques/Belgische Instance in its judgment in CB and Europay v Commission, Verenigung der Banken) (OJ 1987 L 7, p. 27). cited above.

24. Finally, the Commission has taken the view that certain interbank agreements noti- fied to it do not infringe Article 85(1) because Second, the Commission has taken into they do not appreciably affect competition 19 account the nature of the banking service or do not affect trade between Member States. covered by the agreement in question in deter- mining whether or not its provision gives rise to 'cross-border' transactions. Where that has 18 — Judgment in Case 267/86 Van Eycke v ASPA [1988] ECR been the case (international payments, the 4769. 19 — In particular, the Commission has taken the view that com- petition is not restricted by agreements between banks in a single Member State relating to opening hours, to a bank clearing system, to a joint clearing scheme which allows 20 — See also the criticisms made by M. Dassesse, S. Isaacs, and banks to make direct debits on their customers' accounts G. Penn, op. cit., pp. 273 to 277. (Commission Decision 86/507/EEC of 30 September 1986 relating to a proceeding under Article 85 of the EEC Treaty 21 — Paragraph 46 of the ABI Decision, cited above, concerning (IV/31.362 —Irish Banks' Standing Committee) (OJ 1986 the agreements drawn up by the ABI in respect of the uni- L 295, p. 28)), and to the production of Eurocheques exclu- form type of lira traveller's cheque and the service for the sively by undertakings authorised by the Members of the collection and/or acceptance of bills, documents, bank Eurocheque system (Uniform Eurocheques system), or by cheques and other instruments of credit in Italy. the agreement on foreign-exchange and/or non-resident 22 — Association Belge des Banques Decision, cited above, para- account lira dealings (ABI Decision). graph 39.

Finally, Directive 89/646/EEC, 25 which laid down 1 January 1993 as the time-limit for 26. In my opinion, the criteria used by the changes to be made to the national law of the Commission in its decisions on interbank Member States, facilitated access for Euro- agreements in determining whether trade pean banks to the banking markets of Member between Member States is affected must be States other than the State in which they are thoroughly revised with a view to strength- situated by introducing the single banking ening the application of Articles 85 and 86 to licence. 26 This Second Directive on the har- the banking sector. The distinction between monisation of banking legislation contains the cross-border banking services and banking three pillars on 'which the Community's single market in banking is built: minimum harmoni- services of a clearly domestic or national sation of the conditions governing pursuit of nature is untenable nowadays, for several rea- sons which I shall now explain.

24 — BNP — Dresdner Bank Decision, cited above, paragraph 15. 25 — Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the busi- 23 — In Commission Decision 89/512ÆEC of 19 July 1989 relating ness of credit institutions and amending Directive to a proceeding under Article 85 of the EEC Treaty (TV/31.499 77/780/EEC (OJ 1989 L 386, p. 1). — Nederlandse Banken) (OJ 1989 L 253, p. 1), paragraph 26 — The ABI Decision should be reconsidered in the light of this 58, the Commission also considers that safe-renting services directive, according to A. Bertolotti, 'Le norme bancarie are 'domestic' and do not appreciably affect trade between uniformi (NBU) e le regole antitrust: una questione ancora Member States. aperta', Giurisprudenza Italiana, 1997, N o 3 March, p. 170.

The questions referred

30. In these proceedings, the Tribunale di Genova considers it indisputable that the gen- eral conditions laid down by the ABI's N B U with regard to contracts for the opening of 28. By its four questions, the Tribunale di current-account credit facilities and general Genova seeks from the Court of Justice a guarantee agreements constitute a decision by ruling on the compatibility of certain clauses an association of undertakings within the in the ABI's N B U in relation to contracts for meaning of Article 85(1). Accordingly, it does the opening of current-account credit facili- not ask the Court of Justice for a ruling on

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the matter. I agree with this assessment by the ment of independence does not prevent them Italian court, which is consistent with the from adapting themselves intelligendy to the case-law of the Court of Justice on the exist­ conduct of their competitors, it is however ence of decisions by associations of undertak­ incompatible with any direct or indirect con­ 27 ings and had previously been adopted by tact between such economic operators, the the Commission in its ABI Decision and by object or effect of which is to change the the Bank of Italy in its Decision N o 12/94. normal conditions of competition on the market in question, regard being had to the nature of the services or products offered, the size and number of the undertakings and the volume of the said market. 2 8

31. The doubts which the Tribunale di Genova puts to the Court of Justice in its first and third questions have to do with whether the other two conditions necessary for the appli­ cation of Article 85(1), that is to say a restric­ tion of competition and an effect on trade between Member States, are both present in these cases.

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The effects of a decision by an association of of financial service. Banks are compelled by undertakings must be judged on the basis of the N B U to include in contracts for the the competition that would have prevailed on opening of credit facilities clauses which entitle the relevant market if that decision had not them to increase the interest rate according to existed. The Court of Justice therefore con- money market fluctuations but do not require siders that the Commission's examination of them to give the customer prior notice or practices which restrict competition in this obtain his consent, notification by means of way '[...] must be based on an assessment of a notice displayed at the bank's premises, or the agreements as a whole [...]', which requires in such other manner as the bank deems fit, account to be taken of the effects, both real being sufficient. Although the interest rate and potential, of such decisions by associa- which the bank charges for providing the ser- tions of undertakings on competition, 31 as vice is not fixed directly, and may be negoti- well as the full economic context in which ated with the customer, the aforementioned competition would take place in their clauses of the N B U preclude banks from absence. 32 The decision's effect on competi- offering credit facilities to its customers on tion must also be appreciable. 33 more favourable conditions, such as fixed interest rates, or variable interest rates with an obligation on the bank to give the cus- tomer prior notice of any changes.

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B A G N A S C O A N D OTHERS v B P N A N D CARIGE

The Court of Justice has also stated that '... taken into account the means available to the Article 85(1) of the Treaty does not require parties to an agreement to ensure that cus- proof that such agreements have in fact appre- tomers remain loyal, the importance of the ciably affected such trade, which would more- agreement on the market concerned and the over be difficult in the majority of cases to economic context in which it exists. 40 There establish for legal purposes, but merely is therefore a strong presumption that a prac- requires that it be established that such agree- tice restricting competition which is employed ments are capable of having that effect'. 37 throughout the territory of a Member State Actual proof of the restriction of trade between affects trade between Member States; that Member States is not therefore necessary; evi- presumption disappears only if the character- dence of the existence of sufficient probability istics of that practice and the economic con- that the agreement may, at the present time or text in which it exists show otherwise. in future, affect trade between Member States is sufficient. 38

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42. In my opinion, the Commission's argu- Secondly, the N B U laid down by the ABI ment is not consistent with the case-law of and applied by all its members, which account the Court of Justice since the provisions of for almost all banks in Italy, give rise to a the N B U relating to contracts for the opening compartmentalisation of the Italian market in of current-account credit facilities and all- financial services for the openinig of credit embracing guarantee agreements appreciably facilities, which holds up the establishment of affect trade between Member States. There a single market in such services in all Member are various reasons which substantiate this States and the economic interpénétration conclusion. which the EC Treaty is designed to bring about.

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tract concluded by banks and is used to pro- tracts for the opening of current-account vide a financial service of great importance to credit facilities and general guarantee agree- businesses. 41 Given that the relevant market ments are contrary to Article 85(1). in these cases is the market in services for the opening of credit facilities and the general guarantees linked to them, it is indisputable that the ABI's N B U appreciably restrict trade between Member States because they are applied by almost all banks established in Application of Article 86 Italy and because they drastically reduce com- petition in the provision of those services. Even if one accepts as the relevant market all the banking services offered in Italy, the impor- tance of credit facilities accompanied by gen- eral guarantees means that the provisions of the ABI's N B U relating to such services have an appreciable and significant impact on trade 45. Article 86 prohibits 'any abuse by one or in them between Member States. more undertakings of a dominant position within the common market or in a substantial part of it ... in so far as it may affect trade between Member States'.

43. The foregoing reasons indicate with suf- ficient probability that the N B U may appre- 46. In the present cases, the Tribunale di ciably affect trade between Member States Genova asks whether the banks belonging to now or in the future. the ABI hold a collective dominant position and, if so, whether application of the provi- sions of the N B U relating to contracts for the opening of current-account credit facilities and general guarantee agreements in dealings between those banks and their customers con- stitutes an abuse of that position contrary to Article 86.

49. In my opinion, the banks belonging to 48. The Court of Justice and the Court of the ABI do not hold a collective dominant First Instance have upheld the application of position on the Italian banking market, Article 86 to collective dominant positions, because membership of that association does pointing out that there is nothing to prevent not create between the various banking insti- two or more independent economic entities tutions economic links which are so close as from being, on a specific market, united by to cause them to adopt the same commercial economic links of such a kind that they strategy. together hold a dominant position vis-à-vis the other operators on the same market. 42 According to the Court of Justice, '... in order to find that a collective dominant position exists, the undertakings in question must be linked in such a way that they adopt the same conduct on the market'. 43 50. Membership of the ABI does not pre- clude the banks belonging to it from trading on the market individually. ABI members present themselves on the market as under- takings pursuing independent commercial strategies which are the same only as regards those services in respect of which the ABI has The existence of a collective dominant posi- adopted a decision restrictive of competition tion cannot be substantiated simply by 'recy- which is followed by all its members and cling' the facts constituting an infringement which falls within the scope of Article 85. of Article 85, and affirming that the parties to an agreement or to an unlawful practice jointly hold a substantial share of the market; that,

In this connection, I think there is a clear dif- ference between the degree of integration among the undertakings belonging to a pro- fessional association such as the ABI and that 53. By its second and fourth questions, the among the undertakings forming a shipping Tribunale di Genova asks the Court of Justice conference. The latter may hold a collective to determine what consequences a finding as dominant position, as the Court of Justice to the incompatibility with Articles 85 and/ and the Court of First Instance have recog- or 86 of the provisions of the N B U relating nised, 45 because, in relation to customers, to contracts for the opening of current- they present themselves on the market as one account credit facilities and general guarantee and the same entity. Undertakings belonging agreements would have for individual con- to a professional association, on the other tracts concluded by banks with customers hand, do not act on the market as an which contain the general conditions laid integrated entity. down in the NBU.

54. Article 85(2) renders automatically void agreements or decisions which infringe para- 52. I therefore take the view that the under- graph (1) of that Article. According to the takings belonging to a professional associa- case-law of the Court of Justice, such nullity tion with the characteristics of the ABI do affects the agreement or decision by an asso- ciation of undertakings in its entirety, in so far as the parts of it which specifically infringe 45 — Judgments of the Court of First Instance in SIV and Others Article 85(1) are inseparable from the deci- v Commission, cited above, paragraph 359; and Compagnie sion or agreement as a whole. Furthermore, Maritime Belge Transports and Others v Commission, cited above, paragraph 65. national courts are competent to declare agree-

55. According to that case-law, the national If the consequences of the nullity of certain court must apply its national law in order to clauses of a decision by an association of determine the consequences, for the entirety undertakings for the other parts of that deci- of a decision by an association of undertak- sion are governed by the provisions of national ings such as the ABI's N B U , of applying law, the consequences of such nullity, for Article 85(2) to the general conditions relating contracts concluded pursuant to that deci- sion, must all the more so be determined in the light of the provisions of national law on 46 — Case 48/72 Brassent de Haecht v Willem-Janssen [1973] the nullity of contracts. For these purposes, ECR 77, paragraph 4. the national rules on defects invalidating con- 47 — Case 10/86 VAG France v Magne [1986] ECR 4071, para- sent and on the lawfulness of the subject- graphs 14 and 15; Case 319/82 Sociétéde Vente de Ciments et Bétons v Kerfen & Kerfen [1983] ECR 4173, paragraphs matter or the legal basis of contracts will be 11 and 12; and Société Technique Minière v Maschinenbau ULM, cited above, ECR 337. particularly significant.

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National courts are not compelled to deduce almost identical to Article 85. Accordingly, automatically from the nullity of those parts the consequences, for individual contracts of a decision by an association of undertak- between banks and customers, of the nullity ings deemed void under Article 85(2) that of certain general conditions laid down in the individual contracts concluded pursuant to ABI's N B U , by virtue of their infringement that decision are also void. Other penalties of Article 85, must be similar to those that provided for in national contract law, such as would flow from the infringement of an voidability, the unenforceability of certain equivalent provision to that article in Law clauses, compensation for damage sustained, N o 287/90. or recovery of any sums unduly paid, may be more appropriate for the purposes of dis- posing of the case in question.

59. Consequently, the effects of the incom- patibility with Article 85 of general condi- tions such as those laid down in the ABI's N B U in relation to contracts for the opening As far as these proceedings are concerned, of current-account credit facilities and general Italian law contains a provision which is guarantee agreements, on individual contracts concluded by banks with customers, must be determined by national courts in accordance 48 — See, inter alia. Case C-90/94 Hoar Petroleum v Åbenrå with the relevant provisions of national law. Havn and Others [1997] ECR I-4085, paragraph 46; Case C-242/95 GT-Link v DSB [1997] ECR I-4449, paragraph 27; Case C-177/95 Ebony Maritime and Loten Navigation v Prefetto della Provincia di Brindisi and Others [1997] ECR I-1111, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, 49 — Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale paragraph 90; and Case C-312/93 Peterbroeck v Belgian zur Bekämpfung unlauteren Wettbewerbs [1989] ECR 803, State [1995] ECR I-4599, paragraph 12. paragraph 45.

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Conclusion

60. Having regard to the foregoing considerations, I propose that the Court of Jus- tice answer the questions referred to it for a preliminary ruling by the Tribunale di Genova as follows:

(1) General conditions with the characteristics of those laid down in the ABI's standard banking conditions for contracts for the opening of current-account credit facilities and general guarantee agreements are contrary to Article 85(1);