Opinion of the Advocate General — ECLI:EU:C:1998:7
Date: 1998-01-15
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Italy

summary payment order that, as far ascontracts granting credit facilities are concerned, the clauses and, therefore, themeasures imposed by the ABI relate not to the interest rates which may be variedor are influenced by market conditions but rather to the rates agreed a priori ona fixed basis and that, as far as guarantees are concerned, the contract is one inwhich any clause liable to involve infringement of Articles 85 and 86 of the Treatyis entirely irrelevant. 20. According to settled case-law, it is solely for the national courts before whichactions are brought, and which must bear the responsibility for the subsequentjudicial decision, to determine in the light of the particular facts of each case boththe need for a preliminary ruling in order to enable them to deliver judgment andthe relevance of the questions which they submit to the Court (see Case C-472/93Spano and Others v Fiat Geotech and Fiat Hitachi [1995] ECR I-4321, paragraph15, and Case C-373/95 Maso and Others v INPS and Italian Republic [1997] ECRI-4051, paragraph 26). A request for a preliminary ruling may be rejected asinadmissible only where it is plain that the interpretation or the examination of the validity of a Community rule requested by the national court has no bearing on theactual facts or subject-matter of the case before the national court (see, inparticular, Case C-472/93 Spano and Others, cited above, paragraph 15, and CaseC-415/93 Union Royale Belge des Sociétés de Football Association and Others vBosman and Others [1995] ECR I-4921, paragraph 61). 21. In this case it need merely be observed that the contracts concluded by the partiesto the main proceedings contain clauses relating to the NBU regarding which thenational court has considered it necessary to seek from the Court of Justiceguidance as to the interpretation of Community law in order to enable it toappraise their compatibility with Articles 85 and 86 of the Treaty. 22. In those circumstances, the objections raised by BPN regarding the admissibility ofthe questions submitted cannot be upheld and an answer must be given to thosequestions. The first question 23. By its first question, the national court wishes essentially to ascertain whether theNBU, in so far as they allow banks, in contracts for current-account credit facilities,to change the interest rate at any time by reason of changes on the money market,and to do so by means of a notice displayed on their premises or in such manneras they consider most appropriate, have as their object or effect a restriction ofcompetition or may affect trade between Member States within the meaning ofArticle 85(1) of the Treaty. 24. The plaintiffs in the main proceedings consider that a concerted practice exists inItaly for determination of the interest rates applied by banks to their debtors andthat there are even agreements and/or concerted practices relating to the generalconditions in contracts, drawn up within the ABI and set out in the NBU, whichbanks systematically include in the standard contracts which they offer to theircustomers. Under those clauses, the position of principal debtors and of guarantors,of any nationality, who are under an obligation to an Italian bank is weaker thanthat of any other debtors or guarantors dealing with a bank in another MemberState. 25. Even the base rate is not the outcome of free negotiation between parties since thebanks affiliated to the ABI are required to comply with the decisions of the cartel;the customer will not therefore find any significant differences between the ratesapplied by the various credit establishments. 26. According to the plaintiffs in the main proceedings, the banks are also unilaterallyempowered to change rates, prices and other conditions. The only protectionavailable to the customer lies in cancellation of the contract. However, that possibility is purely hypothetical since it will be very difficult for the customer tofind any credit establishment which applies different interest rates, preciselybecause the banks form a cartel. A customer who needs to open a current-accountcredit facility is therefore in a position of absolute subjection to the banks affiliatedto the ABI. 27. The BPN contends that the view that its contracts are subject to constraints andobligations imposed by the ABI, such as the situation envisaged in the order forreference, has no basis in fact and is inconceivable. Moreover, an analysis of therelevant market  as regards both the product and the geographical area involved shows that there is not a sufficiently large margin in the banking business for itto be possible to apply a uniform banking 'policy in such a way as to prevent,restrict or distort competition. 28. Carige submits that the rules applicable to interest rates which are not entirelydetermined or determinable are not incompatible with Article 85 of the Treaty inthat they are not the result of agreements between undertakings which are liableappreciably to affect competition on the market in services involving transfers ofcapital. 29. The Italian Government observes that, by memorandum of 22 February 1993, theABI notified to the Commission the circulars containing the NBU sent to itsmembers so that the Commission could examine them in the light of Article 85 ofthe Treaty. The same documents were sent to the Bank of Italy, the competentnational authority for application of the rules on protection of competition and ofthe market in the credit sector. 30. The Italian Government considers that the only agreements which the Commissionregarded as falling within its terms of reference relate to the conditions for currentaccounts incorporating a cash credit facility, conditions for current accountsincorporating a credit facility in foreign currency and conditions governing servicesfor collection or acceptance of negotiable instruments or letters of credit payablein Italy or abroad. Those agreements have no bearing on the present case. 31. According to the Commission, whilst it cannot be ruled out that the clauses inquestion might be restrictive of competition in so far as they involve somelimitation of the contractual freedom of member banks of the ABI, those clausesare nevertheless not incompatible with Article 85 of the Treaty in the absence ofany appreciable effect on trade between Member States. 32. It must be borne in mind that, under Article 85(1) of the Treaty, all agreementsbetween undertakings, decisions by associations of undertakings and concertedpractices which have as their object or effect the prevention, restriction ordistortion of competition within the common market are incompatible with thecommon market. 33. According to settled case-law of the Court, in order to determine whether anagreement is to be considered to be prohibited by reason of the distortion ofcompetition which is its effect, the competition in question should be assessedwithin the actual context in which it would occur in the absence of the agreementin dispute (see Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph76, and Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175,paragraph 90). 34. Whilst Article 85(1) of the Treaty does not restrict such an assessment to actualeffects alone, in so far as it must also take account of the agreement's potentialeffects on competition within the common market, an agreement will neverthelessfall outside the prohibition in Article 85 if it has only an insignificant effect on themarket (Case C-7/95 P Deere v Commission, cited above, paragraph 76, and CaseC-8/95 P New Holland Ford v Commission, cited above, paragraph 91). 35. In that connection, it must be stated that the opening of a current-account creditfacility is a banking transaction which, by its nature, is linked with the right of thebank to change the agreed rate of interest by reference to factors such as, inparticular, the conditions for re-financing of the loan by banks. Although that rightmeans that the bank's customer runs the risk of paying more interest during thecurrency of the contract, it also offers a chance of lower interest. Since, as in thiscase, any variation of the interest rate depends on objective factors, such aschanges occurring in the money market, a concerted practice which excludes theright to adopt a fixed interest rate cannot have an appreciable restrictive effect oncompetition. 36. As regards the clause under which banks notify changes in interest rates by meansof a notice displayed in their premises or in such manner as they consider mostappropriate, it need merely be pointed out that that clause does not prohibit thebanks from arranging for a more appropriate means of notifying their customers. 37. The answer to the first question must therefore be that standard bank conditions,in so far as they enable banks, in contracts for the opening of a current-accountcredit facility, to change the interest rate at any time by reason of changesoccurring in the money market, and to do so by means of a notice displayed ontheir premises or in such manner as they consider most appropriate, do not haveas their object or effect the restriction of competition within the meaning of Article85(1) of the Treaty. The third question 38. By its third question, the national court seeks essentially to ascertain whetherstandard bank conditions relating to the provision of general guarantees requiredto secure the opening of a current-account credit facility, as described in paragraph 11 of this judgment, have as their object or effect, when taken together, arestriction of competition or whether they may affect trade between Member Stateswithin the meaning of Article 85(1) of the Treaty. 39. The plaintiffs in the main proceedings observe that a person who has given aguarantee to a bank operating in Italy is required, by virtue of Italian case-law, topay all sums claimed by the bank in respect of both present and future bankingtransactions carried out by the bank for the benefit of the principal debtor, whetherthey are habitual, incidental or occasional, even where those transactions involve,as a result of the discretion enjoyed by the bank, an unforeseeable increase in thecustomer's total indebtedness to that bank in the course of his relationship with it. 40. In support of that argument, the plaintiffs in the main proceedings refer toparagraph 7(5) of the guarantee contract, under which the commitment givenremains wholly effective even if the principal obligation is invalid for any reasonwhatsoever, the guarantor being deemed, in the event of the principal obligationbeing declared void or annulled, to have given the commitment as if acting on hisown account. 41. Carige submits, on the other hand, that the rules imposed by the ABI in relationto the general guarantee contract concluded to secure the opening of a creditfacility are compatible with Article 85 of the Treaty since they are not liableappreciably to affect competition in the market by reason of the nature of theservices provided. 42. The Commission emphasises that, according to the information at present availableto it concerning cross-frontier supply of and demand for bank services in respectof current-account credit facilities and the provision of general guarantees, theservices in question do not appear to be of decisive importance as regards accessto the Italian financial market for banks from other Member States. Referring tothe reasoning given in its letter of 7 July 1993, the Commission submits that theNBU on the basis of which the contracts at issue in the main proceedings wereconcluded do not fulfil one of the necessary conditions for the application of Article85(1) of the Treaty, namely that of being liable appreciably to affect trade betweenMember States. 43. It must be noted, at the outset, that the provision of a guarantee is a traditionalform of surety which may be used, in particular, to secure a current-account debitbalance. Under Italian law, sureties are governed by specific rules in the Civil Code,from which derogations are available under certain conditions. 44. To the extent to which they lay down 'rules concerning guarantees to securebanking transactions, by a way of derogation from the rules in the Civil Code, theNBU are intended to secure the claims of banks in the most effective manner. 45. On the other hand, since those rules are, according to the findings of the nationalcourt, binding on the members of the ABI, they limit the contractual freedom ofthe banks by preventing them from offering to customers who apply for a creditfacility more favourable conditions for the associated guarantee contract. The latter,however, is merely ancillary to the principal contract, of which in practice it isusually a precondition (see Case C-45/96 Dietzinger [1998] ECR I-I-1199, paragraph18). 46. In those circumstances, rather than examining at the outset the question whetherthat limitation of contractual freedom involves appreciable effects on competition,it is appropriate first to consider what effects clauses such as those contained in thegeneral guarantee contracts at issue in the main proceedings might possibly haveon trade between Member States. 47. In that regard, the Court has consistently held that, in order that an agreementbetween undertakings may affect trade between Member States, it must be possibleto foresee with a sufficient degree of probability on the basis of a set of objectivefactors of law or fact that it may have an influence, direct or indirect, actual orpotential, on the pattern of trade between Member States, such as might prejudicethe realisation of the aim of a single market in all the Member States (Case 42/84Remia and Others v Commission [1985] ECR 2545, paragraph 22). Accordingly, theeffect on intra-Community trade is normally the result of a combination of severalfactors which, taken separately, are not necessarily decisive (Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grovvareselskab [1994] ECR I-5641, paragraph 54). 48. It is also settled case-law that, whilst Article 85(1) of the Treaty does not requirethat agreements referred to in that provision have actually affected trade betweenMember States, it does require that it be established that the agreements arecapable of having that effect (Case C-219/95 P Ferriere Nord v Commission [1997]ECR I-4411, paragraph 19). 49. In this case, as far as the effects of the rules on the provision of general guaranteeson intra-Community trade are concerned, it is conceivable that the subsidiaries orbranches of banks of other Member States which are established in Italy might beobliged, in order to benefit from the advantages of membership of the ABI, toapply the NBU and thus forgo the possibility of applying more favourableconditions. Similarly, having regard to the fact that the great majority of Italianbanks are members of the ABI, customers wishing to conclude a contract for acurrent-account credit facility might find that their choice of bank was restrictedwhere the conclusion of such a contract depended upon the provision of a suretygoverned by the NBU, to which, for the most part, no exceptions are possible. 50. It is true that, in principle, the answer to the question whether or not the conditionsfor the application of Article 85(1) of the Treaty are fulfilled depends on complexeconomic assessments which it is for the national court to undertake, if appropriate, in accordance with the criteria laid down by a the case-law of the Court of Justice.However, in certain circumstances, and having regard to the indications given bythe Court, no such analysis appears necessary (see Case C-250/92 Gottrup-Klim vDansk Landbrugs Grovvareselskab, cited above, paragraph 55). Such is the positionin the present case. 51. It must be borne in mind that the Commission, when approached by the ABIconcerning the compatibility of the clauses governing the provision of generalguarantees in relation to Article 85 of the Treaty, found that the banking servicein question involved economic activities which have a very limited impact on tradebetween Member States and that the participation of the subsidiaries or branchesof non-Italian financial establishments was limited (see paragraph 15 of thisjudgment). Moreover, the Commission has made clear, in reply to a question putto it by the Court, that potential recourse to contracts for credit facilities andcontracts for the provision of general guarantees by the main customers of foreignbanks, that is to say large undertakings and foreign economic operators, is not greatand, in any event, is not a factor of decisive importance in the choice made byforeign banks as to whether or not to establish themselves in Italy, in so far ascontracts of the kind at issue in the main proceedings are only rarely used bycustomers of that kind. The Commission's findings to that effect have not beencalled in question in the present proceedings. 52. Moreover, there is nothing else in the documents before the Court to justify theconclusion, with a sufficient degree of probability, that the reservations entertainedby customers wishing to conclude a current-account credit facility contract regardingtheir choice of bank by reason of the existence of standard bank conditions relatingto the provision of general guarantees is of such a kind as to have an appreciableeffect on intra-Community trade. 53. The answer to the third question must therefore be that standard bank conditionsrelating to the provision of general guarantees to secure current-account creditfacilities, which derogate from the general law concerning guarantees, such as therules in the main proceedings, are not, taken as a whole, liable to affect tradebetween Member States within the meaning of Article 85(1) of the Treaty. The second and fourth questions 54. By its second and fourth questions, the national court seeks first to ascertainwhether the application of the NBU constitutes an abuse, as contemplated byArticle 86 of the Treaty, of a collective dominant position by the banks belongingto the ABI. It then asks what effects any incompatibility of the NBU with Articles85 and 86 of the Treaty might have on the corresponding clauses of the contractsconcluded between banks and their customers. 55. The BPN does not see in what way the clauses in question might constitute amanifestation of a dominant position since the self-imposed limitation deriving fromthe ceiling on overdrafts and the clauses granting the sureties specific rightsconcerning cancellation, information, and other matters belies the hypothesis thatclauses of uniform content or 'concerted practices are used to give effect to acontractual intent on the part of persons unconnected with the direct contractualrelationship in question to limit or restrict freedom of competition. 56. The Commission states first, referring to the case-law of the Court (see JoinedCases C-140/94 to C-142/94 DIP and Others v Comune di Bassano del Grappa andComune di Chioggia [1995] ECR I-3257, paragraphs 26 and 27), that the mere factthat the ABI's membership includes almost all Italian banks is not a sufficientreason to conclude that its members together hold a collective dominant position. 57. Nor, in its view, could it be contended, even if it were conceded that the memberbanks of the ABI together held a collective dominant position, that the conductdescribed by the national court constituted an abuse of that dominant position. 58. It must be borne in mind that, under Article 86 of the Treaty, the abuse by one ormore undertakings of a dominant position within the common market or in asubstantial part of it is incompatible with the common market and is prohibited inso far as it may affect trade between Member States. 59. Without its being necessary to consider whether the banks which are members ofthe ABI hold a collective dominant position within the meaning of Article 86 of theTreaty, it need merely be stated that, since, as is clear from consideration of thefirst question, any change in the interest rate for a current-account credit facilitydepends on objective factors, such as changes occurring in the money market, thatconduct cannot, in any circumstances, constitute an abuse of a dominant positionwithin the meaning of Article 86 of the Treaty. 60. As regards the NBU relating to the provision of general guarantees to secure theopening of a current-account credit facility, it is clear from consideration of thethird question that the application of those NBU, taken as a whole, is not liableappreciably to affect trade between Member States. 61. In those circumstances, the answer to the second and fourth questions must be thatthe application of the said NBU does not constitute abuse of a dominant positionwithin the meaning of Article 86 of the Treaty. 62. In view of the answers given to the foregoing questions, it is unnecessary to answerthe question concerning the effects which any incompatibility of the aforesaid NBUwith Articles 85 and 86 of the Treaty might have on the corresponding clauses ofthe contracts concluded by banks with their customers. Costs 63. The costs incurred by the Italian Government and by the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the action pending before thenational court, the decision on costs is a matter for that court. On those grounds, THE COURT (Sixth Chamber), in answer to the questions referred to it by the Tribunale di Genova by orders of15 May 1996, hereby rules: 1. Standard bank conditions, in so far as they enable banks, in contracts forthe opening of a current-account credit facility, to change the interest rateat any time by reason of changes occurring in the money market, and to doso by means of a notice displayed on their premises or in such manner asthey consider most appropriate, do not have as their object or effect therestriction of competition within the meaning of Article 85(1) of the ECTreaty. 2. Standard bank conditions relating to the provision of general guaranteesto secure current-account credit facilities, which derogate from the generallaw concerning guarantees, such as the rules in the main proceedings, arenot, taken as a whole, liable to affect trade between Member States withinthe meaning of Article 85(1) of the EC Treaty. 3. The application of the abovementioned standard bank conditions does notconstitute abuse of a dominant position within the meaning of Article 86of the Treaty. Hirsch Mancini Murray Ragnemalm Ioannou Delivered in open court in Luxembourg on 21 January 1999. R. Grass P.J.G. Kapteyn Registrar President of the Sixth Chamber 1: Language of the case: Italian.