Marta Magliulo

«Downstream» Omnibus Guarantees Based on an Anticompetitive «Upstream» Agreement: Old and New Issues

  • Abstract

Informations and abstract

Keywords: Competition law; Antitrust law; Private enforcement, Downstream contracts; Burden of proof; Presumptions

Based on the examination of the judgment No. 41994/2021 of the Italian Supreme Court’s Joint Sections, regarding the validity of omnibus guarantees entered into pursuant to the so-called «Modello Abi» (i.e. the standard contractual scheme drafted by the Italian Banking Association and partially deemed as anti-competitive by the Bank of Italy – as national Antitrust Authority for financial institutions – in May 2005), the Author analyses the issues related to the burden of proof on the guarantor who claims the nullity of the «downstream» guarantee. In the light of recent case-law, the paper aims at identifying the thema probandum in such civil proceedings, focusing on the probative value of the Bank of Italy’s decision No. 55 of May 2, 2005 and on the opportunity to adopt presumptive mechanisms, aimed at alleviating the burden of proof on the guarantor. The Author critically analyses the Supreme Court’s judgement and its reasoning, which is based on an interpretation of Article 1419 of the Italian Civil Code that does not seem convincing

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