DI DIVINA RUSSO
Abstract – The United Sections of the Court of Cassation, in Judgment n. 41994, rule on a debated matter spanning EU law and the private law of individual states. The issue concerns the fate of omnibus surety contracts reproducing the object of anticompetitive agreements prohibited by article 2 l. 287/90. However, the antitrust regulations limit themselves to sanctioning with nullity only anticompetitive agreements between companies, but do not propose remedies for contracts that have been entered into in compliance, leaving the interpreter with the task of choosing the most suitable solution consistent with the ratio of the legislation. The United Sections uphold the partial nullity of “downstream” contracts by recognizing a functional link between them and the “upstream” agreement, admitting, where the conditions are met, the surety’s legitimacy to claim damages. This paper adheres to the paradigm that antitrust law protects the market in an objective sense but suggests a different interpretation of functional linkage and derivative nullity. However, the question is not entirely settled because an additional profile remains uncovered concerning the proof as well as the quantification of the antitrust damage suffered by the guarantor due to the absence of contractual alternatives in the market.
Keywords – Anticompetitive agreements – Sureties – Functional link -Nullity