ABI Guarantees and the Burden of Proof: The Supreme Court Turning Point

1. The facts

   The case originates from the decision of the supervisory authority establishing the anti-competitive nature of certain clauses in the ABI template for omnibus guarantees. According to media reports from outlets such as Il Sole 24 Ore, the matter reached the Supreme Court after years of litigation regarding the validity of guarantee contracts signed by individuals with major Italian credit institutions. The current procedural stage requires a new intervention by the United Sections, called upon to clarify whether the guarantor must provide specific evidence of the illicit agreement for contracts signed long after the authority's finding. At the heart of the dispute are the revival and survival clauses, as well as derogations from the limitation periods for the creditor's action. While for the period covered by the investigation the authority's decision acts as privileged evidence, for subsequent years case law has split: some panels consider the exact identity of contractual texts sufficient, whereas others require proof that the banking cartel remained operational at the time of signing.

2. 

   The rules at play

   1. Article 2 of Law 287/1990: prohibits agreements between undertakings that have as their object or effect the prevention, restriction, or distortion of competition, rendering any resulting agreement null and void.
   2. Article 1957 of the Civil Code: requires the creditor to bring judicial claims against the principal debtor within six months from the maturity of the obligation, failing which the guarantor is discharged; derogation from this term is one of the contested ABI clauses.
   3. Article 2697 of the Civil Code: governs the burden of proof, establishing that whoever seeks to enforce a right in court must prove the facts constituting its foundation.
   4. Article 1419 of the Civil Code: regulates partial nullity, allowing the contract to remain in force once the invalid clauses are severed, provided they are not essential.

3. The case law

   Supreme Court jurisprudence has established the principle that a guarantee reproducing the ABI template is affected by partial nullity. Case law has clarified that the supervisory authority's sanctioning decision constitutes privileged evidence of the anti-competitive agreement, limited to the temporal scope of the investigation. More recently, a conflict arose regarding whether a presumption of illegality based on mere textual identity applies to contracts signed later, necessitating a new ruling by the United Sections. The courts have also specified that partial nullity may be raised ex officio by the magistrate, provided the contract text has been properly introduced into evidence. However, debate remains regarding the type of guarantee: while the prevailing view extends protection to specific guarantees, some rulings limit it to omnibus guarantees, creating uncertainty over the scope of the antitrust prohibition.

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8. What it teaches professionals

   1. Perform an analytical comparison between the client's contractual terms and the ABI model sanctioned by the supervisory authority.
   2. Submit supplementary circumstantial evidence alongside textual identity, particularly for contracts executed after the historical findings, to counter burden-of-proof objections.
   3. Monitor Supreme Court dockets to promptly review the upcoming United Sections ruling and adapt procedural strategy accordingly.
   4. Ascertain whether the guarantee is omnibus or specific, as courts remain divided on the applicability of antitrust protection across guarantee types.

9. Developments: Burden of proof and the persistence of the agreement

   Recent case law, particularly Supreme Court ordinances No. 4734 and No. 1475 of 2024, has defined a new scope for guarantees signed many years after 2005. While the partial nullity of ABI clauses remains the milestone established by the United Sections in 2021, the focus of litigation has now shifted to proving the persistence of the unlawful agreement. As reported by publications such as Diritto e Giustizia and Eurojus, it is no longer sufficient to produce Bank of Italy decision No. 55/2005 to obtain automatic nullity for recent contracts. For guarantees signed, for instance, in 2010 or 2015, the client must demonstrate that the bank continued to apply uniform models resulting from collusion. The 2005 decision retains its value as privileged evidence, but its presumptive effectiveness tends to weaken over time, requiring supplementary elements to confirm that the upstream agreement was still operational at the time of signing. Professionals on LinkedIn Forense highlight that the legal battle now hinges on the ability to document the uniformity of standardized banking forms in the post-sanction period.

References: Legge 287/1990Articolo 1957 Codice CivileArticolo 1419 Codice CivileArticolo 2697 Codice Civile

Editorial oversight: Avv. Federico Papa·ICAMUpdated 7 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction