Opinion of the Advocate General — ECLI:EU:C:2026:199
Date: 2026-03-12
Language of the case: Italian

Translation C-60/25 – 1 
Case C-60/25 [Livronsa] i 
Request for a preliminary ruling 
Date lodged: 
28 January 2025 
Referring court: 
Corte d’appello di Cagliari (Italy) 
Date of the decision to refer: 
24 January 2025 
Appellant: 
SR 
Respondent: 
FT SpA 
  
CORTE D’APPELLO DI CAGLIARI (COURT OF APPEAL, CAGLIARI, 
ITALY) 
SEZIONE CIVILE (CIVIL CHAMBER) 
[…] 
[composition of the referring court] 
Having examined the file in the proceedings […] brought by SR […] 
appellant 
V 
FT SpA […], 
respondent 
 
i The name of the present case is fictitious. It does not correspond to the real name of any of the parties to the proceedings. 
EN 
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has ruled as follows 
ORDER 
by which a reference for a preliminary ruling is made to the Court of Justice of the 
European Union pursuant to Article 267 TFEU [and Article] 23 of the Statute of 
the Court. 
1. By judgment No 15/2023, the Tribunale di Oristano (District Court, 
Oristano, Italy) rejected the claims made by SR against FT SpA seeking a 
recalculation of the sum due by way of ordinary interest payable on the variable-
rate mortgage loan entered into between the parties on 15 December 2005 and 
renegotiated on 20 February 2015 in 241 monthly instalments, and, consequently, 
the establishment of the credit due in favour of the borrower […]. 
1.1 The appellant claimed that certain clauses of the agreement at issue were 
invalid on the grounds of vagueness and unreliability, including – as [regards the 
present case] – the clause setting the rate of ordinary interest payable by reference 
to the Euribor benchmark. 
1.2 The District Court[, Oristano] […] held that the ordinary interest rate settled 
upon in the agreement (initially set at 3.60% but adjusted, as from the next six-
month period, to the rate resulting from the sum of a fixed portion of 1.50% and a 
variable portion consisting of the monthly rate of 1/12th of the six-month Euribor 
rate multiplied by the actual number of days in the six-month period of 
application, divided by 360) was determined and complied with the sectoral 
legislation. 
In particular, having acknowledged that the subject matter can be determined even 
where there is reference to elements external to the agreement, provided that those 
elements are pre-established and objectively identifiable, the [District Court, 
Oristano] observed that the variable rate responded to predetermined criteria, 
which were outside the discretion of the lending institution, which thus excluded 
any form of invalidity of the agreement. 
1.3 SR brought an appeal against that decision alleging, among other 
complaints, that he had been unable to correctly understand the use of the Euribor 
benchmark in the interest agreement in view of that benchmark’s artificial 
manipulation – it having been proven that certain banks formed a cartel and 
unlawfully colluded to alter its value, as the European Commission found in the 
decisions of 4 December 2013 and 7 December 2016 – in breach of Article 101 
TFEU, consequently rendering the clause transposing the benchmark invalid 
under Articles 1346 to 1418 of the Italian Civil Code. 
1.4 In the course of the proceedings, […] the appellant requested that a 
reference for a preliminary ruling be made to the Court of Justice of the European 
Union under Article 267 TFEU, in respect of which a [specific] adversarial […] 
hearing with the opposing party was set. 
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At the hearing […], the appellant insisted on its request for a preliminary ruling 
and the respondent objected on the grounds that the loan in question had been 
renegotiated in 2015 and that, at first instance, the then-applicant had not sought 
the repayment of sums unduly paid. 
The Court [of Appeal] reserved its decision. 
*** 
2. [The] appellant requested an interpretation from the Court of Justice of the 
European Union of Article 101 TFEU, which was deemed relevant to the decision 
in the present case, in which a request was made for a declaration that the clause 
in the loan agreement containing the reference to the Euribor benchmark was 
invalid and for the repayment plan to be recalculated, with the sums paid in excess 
by way of interest being assigned to capital, such that the credit enforceable 
against the creditor also had an effect on the subsequent renegotiation. 
It also sought a ruling from the Court of Justice on the interpretation of the 
European Commission antitrust decisions of 4 December 2013 and 7 December 
2016. 
2.1 Firstly, the appellant referred to the case-law from the national courts ruling 
on the substance and to the judgments of the Supreme Court of Cassation (Italy) 
[as regards] the validity of the clause containing the reference to the Euribor 
benchmark published in the period 29 September 2005 to 30 May 2008, a matter 
which had been the subject of two European Commission antitrust decisions 
(4 December 2013 and 7 December 2016, which both refer to Case AT39914), in 
which the Commission imposed sanctions on the panel banks (Barclays, Deutsche 
Bank, Société Générale, RBS, JP Morgan, HSBC and Crédit Agricole) for having 
participated in a cartel prohibited by Article 101 TFEU with the aim of making 
profits on the derivatives market by manipulating Euribor data. 
2.2 In particular, reference was made to judgments of the Cassazione Civile 
(Supreme Court of Cassation, Civil Section, Italy) No 7678/2020 (First Chamber), 
No 34889/2023 (Third Chamber), No 12007/2024 (Third Chamber) and 
interlocutory order No 19900/2024 (First Chamber), by which the case was 
referred to the First President with a view to assigning the following questions to 
the Combined Chambers: 
- Does a loan agreement containing a clause that bases the calculation 
of interest on the Euribor index constitute a ‘downstream’ transaction as 
regards the agreement restricting competition that was found to exist, 
during the period from 29 September 2005 to 30 May 2008, by the European 
Commission in its decisions of 4 December 2013 and 7 December 2016, or, 
on the contrary, irrespective of the participation of the lender in that 
agreement restricting competition and of its knowledge of the existence of 
such an agreement and of the intention to avail itself of the result thereof, is 
it necessary to consider that does it not, since there is no functional link 
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between the two agreements, [which is] necessary for the loan agreement to 
be regarded as implementing the prohibited agreement restrictive of 
competition, and essential for fulfilling and realising its effects? 
- Does the alteration of the Euribor as a result of unlawful acts 
committed by third parties constitute a ground for invalidity of a clause 
setting the interest in a loan agreement calculated on the basis of that index 
on account of the inability to determine the subject matter, or rather does it 
constitute an element that, in abstract terms, is relevant only in the context 
of the shaping of the intention of the parties, where it is capable of causing 
the contracting parties to misrepresent reality, or as an event giving rise to 
injury? 
2.3 […] [T]hat chamber of the Supreme Court of Cassation – ‘… which is 
competent to hear disputes both on competition and undertakings in general, and 
on banking contracts,’ […] – did not agree with the interpretation […] [that was 
previously accepted and in particular did not deem it correct to consider] the 
European Commission’s decision of 4 December 2013 to be evidence of 
significant probative value of the agreement to manipulate competition in the 
proceedings seeking to have the manipulated rates declared invalid, observing that 
European Commission decisions are [of course] binding for national courts, in 
accordance with Article 16(1) of Council Regulation (EC) No 1/2003, but they do 
not constitute evidence of significant probative value; […] [furthermore, […] that 
chamber] observed that the purpose of the agreement restricting competition that 
was found by the Commission to exist was to reduce the cash flows that the 
participants would have had to pay under the EIRDs and therefore concerned a 
market–– other than that of variable-rate loans, namely the EIRD market. 
2.4 In that regard, the appellant objected that, precisely by virtue of 
Article 16(1) of Council Regulation (EC) No 1/2003 (‘When national courts rule 
on agreements, decisions or practices under Article 81 or Article 82 of the Treaty 
which are already the subject of a Commission decision, they cannot take 
decisions running counter to the decision adopted by the Commission’), the 
manipulation of the Euribor benchmark, the subject matter of the penalised 
agreements, had to be regarded as proven in all the markets where it was applied. 
This is because it is not the formation of a cartel that infringes competition rules, 
but rather its implementation by means of the conclusion of downstream 
agreements that transpose the manipulated benchmark. 
2.5 The appellant therefore disagreed with the argument set out in Order 
No 19900/2024, insisting on the interest of the consumers in an individual 
agreement – which contains the reference to the manipulated Euribor benchmark – 
in obtaining recognition that that rate is invalid as a result of the unlawful 
agreement restricting competition, on the assumption that the rule set out in 
Articles 101 and 102 TFEU produces an effect without distinction in the 
community, as set out by the Court of Justice in its judgment of 30 January1974 in 
Case 127/73. 
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Referring to the wording of Article 101 TFEU – [reproduced] in Article 2 of 
Italian Law No 287/1990 – the appellant therefore argued that the unlawful nature 
of the agreement entered into to manipulate the Euribor means that the 
manipulated benchmarks are invalid and, therefore, that a contractual clause 
referring to them is invalid, as was argued, moreover, in judgments 
No 34889/2023 and No 12007/2024. 
2.6 In those terms, the appellant requested recourse to the power provided for in 
Article 267 TFEU, in order that the Court of Justice may rule on the interpretation 
of Article 101 of the Treaty and clarify the scope of that provision where it 
provides that ‘The following shall be prohibited as incompatible with the internal 
market: all agreements between undertakings, associations of undertakings and 
concerted practices which may affect trade between Member States and which 
have as their object or effect the prevention, restriction or distortion of 
competition within the internal market, and in particular those which: (a) directly 
or indirectly fix purchase or selling prices or any other trading conditions […] 
Any agreements or decisions prohibited pursuant to this Article shall be 
automatically void.’ 
3. As is well known, the Euribor (an acronym for Euro Interbank Offered Rate) 
is the rate based on the average of the quotes submitted for interbank transactions 
by a group of European banks (EBF, now the EMMI). In other words, it is an 
average rate calculated on the basis of estimates deemed applicable to short-term 
lending by one prime European institution to another prime institution, without 
reference to specific transaction data. Once it has received the quotes, Thomson 
Reuters, which is responsible for the calculation procedure, calculates the Euribor. 
3.1 By its decisions of 4 December 2013 and 7 December 2016, the European 
Commission found the conduct of certain panel banks that participated in a cartel 
that was set up for the purpose of altering the pricing procedure for certain 
derivative components and thus the average Euribor yield published in the period 
from 29 September 2005 to 30 May 2008, to amount to a single and continuous 
infringement[;] [that] conduct consisted in communicating and/or receiving 
preferences for an unchanged fixing depending on their trading positions or 
exposures, in exchanging not publicly known information on the intentions for 
future Euribor submissions, in aligning the data to be submitted on the basis of 
confidential information received, in submitting the data at a specific level, and in 
disclosing the quote to other banks as soon as it had been submitted to the EBF or 
even before it had been submitted. 
3.2 The competition authority took the view that the manipulation of Euribor 
rates had affected the normal course of the EIRD market by raising the Euribor in 
order to promote the circulation of derivative products at a distorted price and to 
reduce in advance uncertainty that would otherwise have been present on the 
market, obtaining from this a significant gain once the Euribor had returned to 
lower rates, which constituted an infringement of the principle of free competition 
enshrined in Article 101 TFEU. 
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3.3 In particular, when identifying the prohibited conduct, the Commission 
made reference: (a) to the exchange of preferences for an unchanged, low or high 
fixing of certain Euribor tenors; these preferences depended on their trading 
positions or exposures; (b) to the exchange of detailed, not publicly known 
information on the trading positions or intentions for future Euribor submissions; 
(c) to the agreement to align their positions on derivatives on the basis of the 
conduct described above; (d) to the agreement to align at least one of the future 
Euribor submissions on the basis of such information described above; (e) to the 
submission of Euribor data towards a certain direction or at a specific level; (f) to 
reporting back to traders before the submissions had to be submitted to the 
Euribor calculation agent. The Commission thus stated that, ‘the affected 
benchmarks which are reflected in the pricing of EIRDs apply to all participants 
in the EIRD market, and … the affected rates have a paramount importance for 
the harmonisation of financial conditions in the internal market and for banking 
activities in the Member States’. 
3.4 Decision C(2013) 8512 final led to a finding of an infringement of 
Article 101 TFEU against certain banks which had requested the settlement 
procedure under Article 10a of Regulation (EC) No 773/2004. 
3.5 By Decision C(2016) 8530 final of 7 December 2016, the Commission 
found the same infringement with respect to the HSBC group companies, as 
parties to agreements and/or practices having as their object the distortion of the 
normal course of pricing components in the sector of euro interest rate derivatives 
linked to the Euribor or EONIA. 
3.6 The HSBC companies’ appeal seeking the annulment of Article 1 and 
Article 2(b) of the 2016 decision or, in the alternative, the reduction of the penalty 
imposed was upheld by the General Court of the European Union in its judgment 
of 24 September 2019 with respect to Article 2(b) only and was dismissed as to 
the remainder. As regards, more specifically, the existence of an infringement by 
object, the General Court endorsed the Commission’s decision relating to the 
agreement of an overall plan to restrict competition by creating an informational 
asymmetry, since the participants knew in advance, with a certain accuracy, at 
what level the Euribor would be set or was intended to be set by their colluding 
competitors. 
3.8 By judgment of 12 January 2023 in [Case] C-883/19, the Court of Justice of 
the European Union ruled on the appeal brought by the HSBC companies against 
the judgment of the General Court of the European Union, rejecting, in so far as is 
relevant here, inter alia, the second ground of appeal, alleging an error of law in 
the classification of the object of the manipulation (of 19 March 2007) as an 
infringement by object within the meaning of Article 101 TFEU, stating that ‘in 
that regard, as is apparent from the case-law of the Court of Justice, a concerted 
practice may have an anti-competitive object even though there is no direct 
connection between that practice and consumer prices. Indeed, it is not possible 
on the basis of the wording of Article 101(1) TFEU to conclude that only 
LIVRONSA 
 
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concerted practices which have a direct effect on the prices paid by end users are 
prohibited. On the contrary, it is apparent from Article 101(1)(a) TFEU that 
concerted practices may have an anti-competitive object if they “directly or 
indirectly fix purchase or selling prices or any other trading conditions” 
([paragraph] 120). ‘In any event, Article 101 TFEU, like the other competition 
rules of the Treaty, is designed to protect not only the immediate interests of 
individual competitors or consumers but also to protect the structure of the market 
and thus competition as such’ (paragraph 121). 
3.9 After upholding the first and third grounds of appeal, the Court of Justice 
ruled definitively on the dispute, confirming the classification of the conduct as a 
restriction of competition by object. 
*** 
4. Under Article 267 TFEU, a court or tribunal of a Member State may refer a 
question to the Court of Justice of the European Union if it considers that the 
decision of the Court of Justice on a question concerning the interpretation of a 
provision of EU law is necessary in order to resolve the dispute before it. 
4.1 In his appeal, SR disputes the validity of the clause of the mortgage loan 
agreement concerning the (variable) rate of ordinary interest, calculated as being 
the sum of a fixed portion of 1.50% and a variable portion consisting of the 
monthly rate of 1/12 of the six-month Euribor rate multiplied by the actual days of 
the six-month period of application, divided by 360. The agreement was entered 
into in 2005, then renegotiated in 2015 in 241 instalments until 2035. 
4.2 According to the allegation made by the [appellant], the manipulation of the 
Euribor benchmark published in the period covered by the infringement alleged 
by the Commission entails the invalidity in the relevant part, which may be 
declared of the court’s own motion at any stage and instance, of the clause 
transposing it, with the result that the respective credit from excess payments 
entails the need for a different allocation of the payments made to capital and 
interest and also a reshaping of the repayment plan, including of the renegotiated 
loan. 
4.3 The interpretation of the prohibition contained in Article 101 TFEU, which 
states that ‘any agreements or decisions prohibited pursuant to this Article shall 
be automatically void,’ is a matter of general interest, in so far as it is decisive for 
the resolution of numerous pending disputes relating to the invalidity of the 
contractual clause referring to the Euribor, published during the period 
29 September 2005–30 May 2008, for the purposes of calculating the variable 
interest rate, even if it is included in fixed-term agreements entered into on a date 
prior to the anti-competitive practice that has been found to exist. 
[Moreover], the Combined Chambers of the Supreme Court of Cassation 
(judgment No 2207 of 2005), dealing with the issue of the consumer’s legal 
capacity to bring an action for a declaration of invalidity in order to paralyse the 
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effects of an agreement restricting competition prohibited by competition rules, 
stated […] [‘]on the one hand, that, when faced with an agreement restricting 
competition, the consumer, the ultimate purchaser of the product offered by the 
market, sees his or her right to an effective choice between competing products 
being flouted and, on the other hand, that the downstream agreement constitutes 
implementation of the prohibited agreement restricting competition, and is 
essential for fulfilling and realising its effects. Therefore, since the infringement of 
interests recognised as important by the legal system constitutes, at least 
potentially, unfair harm under Article 2043 of the Civil Code, the final consumer, 
who suffers harm as a result of dealings which do not allow an alternative as a 
result of upstream collusion, has at his or her disposal, even if he or she is not a 
party to a competitive relationship with the undertakings responsible for the 
collusion, an action for a declaration that the agreement restricting competition is 
invalid and for compensation for the harm referred to in Article 33 of [Antitrust] 
Law No 287 of 1990.’ 
4.4 […] [In another judgment, the Combined Chambers of the Supreme Court of 
Cassation ruled that the protection afforded by the legal system and intended to 
avoid distortions of competition] cannot be limited to an action for damages since 
‘the invalidity of the upstream agreement restricting competition is reflected in the 
downstream agreement[.] […] [T]he consumer, who is the final purchaser of the 
product offered to the market, ends the chain which begins with the production of 
the good. Therefore, the unlawful function of an agreement restricting competition 
is achieved precisely by replacing the consumer’s right of a real choice between 
competing products with an apparent choice. And this is regardless of the 
instrument that ends this illegal process. It is not possible to attribute to that 
instrument any legal significance different from that of the agreement restricting 
competition to which it provides structure, since its functional link with the 
upstream anti-competitive intent makes it inseparable from the latter. In other 
words – given the functional link with the upstream anti-competitive intent – it is 
not possible to attribute to downstream agreements any legal significance 
different from that of the preceding agreement restricting competition: if the latter 
is invalid, the consequent agreement must also be invalid.’ 
4.5 From the point of view of ‘communicating vessels’ between the anti-
competitive practice and the individual transactions which fulfil its objectives, 
[…] only an action for a declaration of invalidity […], as opposed to an action for 
damages, fully achieves the protection afforded to the final consumer of the 
product, by protecting it from the effects of the prohibited agreement restricting 
competition. 
4.6 Ruling on the effects that the Euribor, the result of an invalid agreement 
restricting competition, had on loan agreements entered into by final consumers, 
the Supreme Court of Cassation (judgment No 34889/2023 […]) recalled that the 
agreements prohibited by the antitrust law did not consist only of agreements in 
the technical sense but also of non-contractual or non-negotiated conduct […], 
[reiterating the relevance of the overall situation and not only of the first link in 
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the chain of anti-competitive agreements] [Therefore] the decision of 4 December 
2013 of the Commission had to be considered evidence of significant probative 
value in support of the request for the declaration of the invalidity of the 
manipulated rates and the recalculation of interest in the period affected by the 
manipulation, regardless of whether or not the bank had participated in the 
unlawful agreement restricting competition ‘since any downstream contract or 
transaction constituting the implementation of the unlawful agreement entered 
into upstream is affected by the prohibition under Article 2 of Law No 287/1990’. 
4.7 Addressing the possibility that the parties to the agreement were not aware 
of the alteration of the benchmark used in the individual agreement, [the Supreme 
Court of] Cassation observed [in judgment] No 12007/2024: ‘There is no denying, 
moreover, that, even if the parties to the individual agreement are not aware of 
the unlawful agreements or practices of third parties designed to alter the external 
Euribor benchmark, if those agreements or practices actually achieved, in 
practice, the intended result of the manipulation, by means of the application of 
that benchmark, in its distorted value, the definition of the interest in that 
agreement would be altered, to the detriment of one of the contracting parties … 
Where, however, it is established that the benchmark referred to has been altered 
by an unlawful activity carried out by third parties, the result, which is at least 
partially foreseeable, of the mechanism constituting the basis of the reference to 
the external benchmark intended by the parties, disappears: it is inevitable, 
therefore, to conclude that it could no longer be regarded as being able to express 
the real contractual intent of the parties themselves, at least as regards the 
specific clause containing the reference in question, for as long as the alteration 
of the external mechanism for calculating the consideration for the transaction 
produced its effects.’ It therefore stated that […] ‘where the external benchmark 
referred to in the agreement […] becomes, in essence, incapable of constituting 
the expression of the contractual intent of the parties […] because it has been 
substantially altered as a result of unlawful acts committed by third parties, […] 
the subject matter of the contractual clause […] will be impossible to determine 
and the clause itself must be regarded as invalid in part […]’. 
4.8 The First Chamber of the Supreme Court of Cassation ruled to the contrary 
in judgment No 19900/2024, in which it stated that the restriction of competition 
found by the Commission concerned only the derivatives market and could not 
produce effects in the market for variable-rate loans applying the Euribor 
benchmark that was the result of the unlawful agreement restricting competition, 
with the result that such loan agreements could not constitute implementation of 
the prohibited agreement[.] […] The First Chamber also pointed out that decisions 
of the Commission are binding, but do not constitute evidence of significant 
probative value. 
*** 
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5. The question of the interpretation of Article 101 TFEU is of general interest 
for the uniform application of EU law and is relevant to the outcome of the case 
pending before this Court […]. 
In its judgment of 30 January 1974 in Case C-174/73, the Court of Justice 
affirmed the following principle: ‘As the prohibitions of Articles 85(1) and 86 tend 
by their very nature to produce direct effects in relations between individuals, 
these articles create direct rights in respect of the individuals concerned which the 
national courts must safeguard. 
In this way, national courts are able to ensure, at the request of the litigants or on 
their own initiative, that the competition rules will be respected for the benefit of 
private individuals. In addition, Article 85(2) enables them to determine, in 
accordance with the national procedural law applicable, the civil law effects of 
the prohibition set out in Article 85.’ 
A similar principle was affirmed in the judgment of 14 December 1993 in Case 
C-319/82. 
5.1 In view of the foregoing, it is necessary to clarify whether, in the light of the 
provisions of Article 16(1) of Council Regulation (EC) No 1/2003, the evidence 
of Euribor manipulations, as established in the Commission decisions cited above 
and in the judgment of the Court of Justice in Case C-883/19, HSBC Holdings and 
Others v Commission, must be regarded as having been definitively obtained also 
by the national courts and whether the restriction of competition which is the 
subject of the decisions of the Commission and the Court of Justice constitutes an 
agreement prohibited by Article 101 [TFEU] solely in the derivatives market or in 
any market which used the manipulated Euribor benchmark. 
5.2 In[deed], it would be contradictory, to say the least, to assume that the data 
provided for the calculation of the Euribor during the period of the proven 
manipulation could be usefully referred to in any market, including that for 
variable-rate loans. 
Moreover, to take the view that the second [paragraph] of Article 101 TFEU has 
as its object only the censure of the anti-competitive practice and does not produce 
any cascading effects on the contractual relationships which refer to the results of 
the prohibited agreement would undermine its deterrent effect and reduce the 
prohibition to merely an abstract requirement, since it is precisely the use of the 
distorted data which gives rise to the anti-competitive effects of the market. 
In view of the above, this Court 
REFERS 
the matter to the Court of Justice of the European Union under Article 267 TFEU 
[and Article] 23 of the Statute of the Court 
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STAYS 
The proceedings at second instance No 151/2023. 
Cagliari, 24 January 2025 
[…] [signatures]