Carlo Bagnasco and Others v Banca Popolare di Novara soc. coop. arl. (BNP) (C-215/96) and Cassa di Risparmio di Genova e Imperia SpA (Carige) (C-216/96).

• Jurisdiction: European Union
• Celex Number: 61996CC0215
• ECLI: ECLI:EU:C:1998:7
• Docket Number: C-215/96,C-216/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 15 January 1998

Important legal notice

|

61996C0215

Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 15 January 1998. - Carlo Bagnasco and Others v Banca Popolare di Novara soc. coop. arl. (BNP) (C-215/96) and Cassa di Risparmio di Genova e Imperia SpA (Carige) (C-216/96). - References for a preliminary ruling: Tribunale civile e penale di Genova - Italy. - Competition - Articles 85 and 86 of the EC Treaty - Standard bank conditions for current-account credit facilities and for the provision of general guarantees. - Joined cases C-215/96 and C-216/96.

European Court reports 1999 Page I-00135

Opinion of the Advocate-General

1 This case arises from two actions pending before the Tribunale di Genova (District Court, Genoa) in which the question has been raised whether certain general contractual conditions laid down by the Norme Bancarie Uniforme (Standard Bank Conditions, hereinafter the `NBU') of the Associazione Bancaria Italiana (Italian Banking Association, hereinafter the `ABI') for the purpose of regulating contracts for the opening of current-account credit facilities and general guarantee agreements (fideiussione omnibus) intended to cover the opening of a credit facility are compatible with Articles 85 and 86 of the EC Treaty.

The proceedings before the national court

2 The plaintiffs in the proceedings before the Tribunale di Genova are Carlo Bagnasco, as 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.

3 In the action which gave rise to Case C-215/96, Carlo Bagnasco and his guarantors have been ordered to pay to Banca Popolare di Novara (hereinafter `BPN') the sum of ITL 222 440 332 on the following grounds:

- ITL 170 440 332, being the debit balance of current account 1360/320/30 opened in the name of Carlo Bagnasco under a contract of 8 October 1991, plus interest at the rate of 17% accrued as from 1 April 1992;

- ITL 9 400 000, being the debit balance of current account 14336/33E/30 opened in the name of Carlo Bagnasco under a contract of 27 December 1991, plus interest at the rate of 17.50% accrued as from 1 April 1992;

- ITL 21 600 000, corresponding to the amount of four promissory notes discounted by the bank and issued by the individual firm Fidaurum, owned by Carlo Bagnasco, in respect of which each of the other four plaintiffs provided a guarantee for ITL 5 400 000, plus interest at the legally prescribed rate of 10% accrued as from 22 May 1992;

- ITL 21 000 000, for bills drawn on Anna Sbardella, discounted and/or credited to current accounts `subject to due collection', as listed on forms submitted for discount and/or crediting under the signature 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.

4 In the action which gave rise to Case C-216/96, Carlo Bagnasco and his guarantors have been ordered to pay to Cassa di Risparmio di Genova e Imperia (Carige) SpA (hereinafter `Carige') the sum of ITL 124 119 497 on the following grounds:

- ITL 48 798 664, being the debit balance of current account 14445/20/106 opened in the name of Carlo Bagnasco under a contract of 28 August 1989, plus interest at the legally prescribed rate of 17.50% accrued as from 11 June 1992;

- ITL 75 320 833, plus interest at the rate of 15% accrued as from 11 June 1992, in respect of a `bank advance' of ITL 95 000 000, for which Carlo Bagnasco had issued nineteen promissory notes.

5 The payment orders were also addressed to Carlo Bagnasco's guarantors, as joint and several debtors by virtue of the aval given by them on the promissory notes and the general guarantee entered into on 7 February 1997 for up to ITL 300 000 000 (Case C-215/96), and on 28 November 1989 for up to ITL 195 000 000 (Case C-216/96).

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 facilities and to general guarantee agreements are incompatible with Articles 85 and 86 of the EC Treaty.

7 The Tribunale di Genova does not consider it necessary to ask the Court whether Articles 85 and 86 are directly effective, or whether the NBU constitute a decision of an association of undertakings within the meaning of Article 85, because the answer is clearly in the affirmative in both cases. However, the national court does have doubts as to the compatibility with Articles 85 and 86 of certain clauses of the NBU relating to contracts for the opening of credit facilities and to general guarantee agreements.

8 The Tribunale di Genova takes the view that the only important element of contracts for the opening of current-account credit facilities is the mechanism for determining the interest rate, which represents the price of the service provided. Carlo Bagnasco considers that the procedure for determining the price of the credit (access to cash facilities) cannot be reasonably predicted or understood by the customer.

The national court has noted that the contracts concluded by Carlo Bagnasco with BPN provide, in Paragraph 2, for annual interest to be charged at the rates of 17% and 17.50%, together with commission of 1.8% on the maximum indebtedness incurred in any calendar quarter or fraction thereof. The contract concluded by Carlo Bagnasco with Carige provides for an annual interest rate of 14% plus commission of 1.8% on the maximum indebtedness incurred in any calendar quarter. The contracts with both banks provide 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 displayed at its premises or in such other manner as it deems fit'.

According to the Italian court, from the information given, only the matter of the initial determination of the rate of interest payable and the commission on the maximum indebtedness per currency reflects any direct negotiation between the parties. That element of the contract, however, is offset by the right accorded to the bank, in the text of the NBU, to increase the interest rate (at any time, by means of a notice to be displayed at its premises `or in such other manner as it deems fit as a result of money market fluctuations', and therefore in relation to indices recording variations which are unforeseeable or at least difficult to predict for the average bank customer. Article 1284 of the Italian Civil Code fixes the legally prescribed rate of interest at 10% per annum, while any interest charged at a higher rate `must be stipulated in writing', the legally prescribed rate being applicable if it is not. Consequently, only an agreement in written form - although not necessarily by means of an actual indication in figures of the agreed rate, but possibly by means of an automatic calculation carried out on the basis of objective and accessible data - ensures that the rate is determined and quantified: in this case it derives from a general reference to `money market fluctuations' and to a mechanism which also gives the bank the power to choose the timing of the variations and the procedures for notifying them to the customer.

9 As regards the general guarantee agreements linked to the opening of credit facilities, the national court considers that the relevant clauses of the NBU and of the contracts under consideration in these cases concern the following:

- the giving of a guarantee `at the same rate of interest as that prescribed for the transaction covered and, in any event, at a rate not lower than the current bank rate in respect of any breach of any obligation vis-à-vis the bank in connection with banking transactions of any kind, already made available or to be made available in the future to the said person (or to any subrogated party)', as indicated in a list given below; the guarantee also covers `any other obligation which the principal debtor may be under at any time vis-à-vis the bank in relation to guarantees already given or to be given hereafter by the same debtor to the bank for the benefit of third parties' (thus triggering the mechanism of the `guarantee of a guarantee', which is capable of being extended, as regards the persons concerned, to a practically unlimited and uncontrollable extent);

- 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 his relations with the bank, the latter being released from any obligation to seek from the guarantor the special authorisation provided for in Article 1956 of the Civil Code; (1)

- 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 in derogation from that provision, `even if the bank has not commenced proceedings against the debtor and any joint obligors and has not pursued them diligently', thus continuing to be jointly and severally liable `until total extinguishment of the debt, without limitation as to time or the fulfilment of any other conditions';

- the obligation undertaken by the guarantor `to pay immediately to the bank, upon simple written request, even in the case of opposition by the debtor, whatever is owing to it by way of capital, interest, expenses, taxes, charges and any other incidentals';

- the statement that `for determination of the debt secured by the guarantee, the figures set out in the bank's accounting...