JUDGMENT OF THE COURT (Sixth Chamber)

21 January 1999 (1)

(Competition — Articles 85 and 86 of the EC Treaty — Standard bank conditionsfor current-account credit facilities and for the provision of general guarantees)

In Joined Cases C-215/96 and C-216/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunaledi Genova (Italy) for a preliminary ruling in the proceedings pending before thatcourt between

Carlo Bagnasco and Others

and

Banca Popolare di Novara soc. coop. arl (BPN) (C-215/96),

Cassa di Risparmio di Genova e Imperia SpA (Carige) (C-216/96),

on the interpretation of Articles 85 and 86 of the EC Treaty in relation to certainstandard bank conditions which the Associazione Bancaria Italiana imposes on itsmembers when contracts are concluded for current-account credit facilities and forthe provision of general guarantees,

THE COURT (Sixth Chamber),

composed of: G. Hirsch (Rapporteur), President of the Second Chamber, actingfor the President of the Sixth Chamber, G.F. Mancini, J.L. Murray, H. Ragnemalmand K.M. Ioannou, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

—    Carlo Bagnasco and Others, by Anna Collivadino, of the Genoa Bar,

—    Banca Popolare di Novara soc. coop. arl (BPN), by Giacomo Traverso, ofthe Genoa Bar,

—    Cassa di Risparmio di Genova e Imperia SpA (Carige), by Laura Granata,of the Genoa Bar,

—    the Italian Government, by Professor Umberto Leanza, Head of the LegalDepartment of the Ministry of Foreign Affairs, acting as Agent, assisted byOscar Fiumara, Avvocato dello Stato,

—    the Commission of the European Communities, by Fabiola Mascardi andWouter Wils, of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on15 January 1998,

gives the following

Judgment

1.

    By two orders of 15 May 1996, received at the Court Registry on 21 June 1996, theTribunale di Genova (Genoa District Court) referred to the Court for a preliminaryruling under Article 177 of the EC Treaty four questions on the interpretation ofArticles 85 and 86 of that Treaty concerning certain standard bank conditions('Norme Bancarie Uniforme‘, hereinafter 'NBU‘ or 'standard bank conditions‘)which the Associazione Bancaria Italiana (Italian Banking Association, hereinafter

'the ABI‘) imposes on its members when contracts are concluded for current-account credit facilities and the provision of general guarantees.

2.

    Those questions were raised in two actions brought by Carlo Bagnasco and Othersagainst Banca Popolare di Novara soc. coop. arl (hereinafter 'BPN‘) (CaseC-215/96) and by Carlo Bagnasco and Others against Cassa di Risparmio diGenova e Imperia SpA (hereinafter 'Carige‘) (Case C-216/96) concerning therepayment of loans granted by those banking establishments.

3.

    The plaintiffs in the main proceedings, Mr Bagnasco, as principal debtor, and hissureties, as joint and several debtors, appealed against two provisionally enforceableorders made by the President of the Tribunale di Genova on 1 June 1992 onapplication by BPN and Carige, requiring them to pay,

to BPN the sum of ITL 222 440 332, made up as follows:

—    ITL 170 444 332, being the debit balance of a current account opened inthe name of Carlo Bagnasco under a contract concluded on 8 October 1991,together with interest as from 1 April 1992 at the rate of 17%;

—    ITL 9 400 000, being the debit balance of a current account opened in thename of Carlo Bagnasco under a contract concluded on 27 December 1991,together with interest as from 1 April 1992 at the rate of 17.50%;

—    ITL 21 600 000, corresponding to the amount of four promissory notesissued by the individual firm Fidaurum, owned by Mr Bagnasco, anddiscounted by BPN, in respect of which the other four plaintiffs eachprovided a guarantee on 22 January 1992 for the sum of ITL 5 400 000,together with interest as from 22 May 1992 at the legally prescribed rate of10%; and

—    ITL 21 000 000 for bills drawn on Mrs Sbardella, discounted and creditedto current accounts 'subject to payment by the principal debtor‘, as listedon documents signed by Carlo Bagnasco, and for the pledging ofinstruments, again payable by Mrs Sbardella, discounted by Carlo Bagnasco,in respect of all of which the debtor was the subject of a protest, with theresult that, under the contract, that person also forfeited all rights as regardsthe unmatured instruments, together with interest on that sum at the rateof 15% as from the date of the order requiring payment;

and to Carige the sum of ITL 124 119 497, made up as follows:

—    ITL 48 798 664, being the debit balance of a current account opened in thename of Mr Bagnasco under a contract concluded on 28 August 1989,together with interest as from 11 June 1992 at the rate of 17.50%;

—    ITL 75 320 833, together with interest as from 11 June 1992 at the rate of15%, in respect of a 'bank advance‘ of ITL 95 000 000 arranged on 12November 1991, for which Mr Bagnasco had issued 19 promissory notes.

4.

    The orders addressed to the plaintiffs in the main proceedings, who are joint andseveral debtors, were obtained by reason of the specific guarantee which they hadgiven for the unpaid promissory notes and of the 'general guarantee‘ (fidejussioneomnibus) which they had signed for up to ITL 300 000 000 (Case C-215/96) andITL 195 000 000 (Case C-216/96).

5.

    The plaintiffs have asked the national court to declare the orders at issue invalidor unenforceable or — in the alternative — to determine precisely what amount isowed to the two banks. They plead, in particular, that the NBU, on which theclaims of the defendants in the main proceedings are based, are incompatible withArticles 85 and 86 of the Treaty.

6.

    According to the Tribunale di Genova, it is undisputed that Articles 85 and 86 ofthe Treaty confer rights on individuals which they may rely on before nationalcourts. Similarly, the NBU imposed by the ABI on its member banks and applied'as such‘ by all Italian banks in their dealings with customers constitute aconcerted practice and, in particular, a decision of an association of undertakingswithin the meaning of Article 85(1) of the Treaty.

7.

    The national court considers, however, that the compatibility with Articles 85 and86 of the Treaty of certain clauses of the contracts for the opening of a current-account credit facility and the provision of general guarantees is questionable.

8.

    As regards the contracts for current-account credit facilities, that court states thatthe contracts concluded by Mr Bagnasco with BPN provide, in paragraph 2, for theapplication of annual interest rates of 17% and 17.5%, plus commission of 0.125%on the highest debit balance for each calendar quarter or part thereof.

9.

    Paragraph 2 also provides that 'interest rates ... may be increased or decreased byreason of changes occurring on the money market‘. Paragraph 12 of the contractprovides that 'the banks shall be entitled at any time to vary interest rates ... bymeans of a notice displayed at their premises or in such manner as they considermost appropriate‘. Clauses of that kind, included in the ABI standard contract, alsoappear in Mr Bagnasco's contract with Carige.

10.

    According to the national court, only the initial determination of the debit ratereflects direct negotiation between the parties: any further increase in the interestrate following changes in the money market is unforeseeable or, at least, difficultfor average customers of the bank to foresee. Thus, the bank's right to decide whenboth changes are to be made to that rate and what procedure is to be followed fornotifying them to customers is strengthened.

11.

    As far as the general guarantee is concerned, the Tribunale di Genova observesthat the relevant clauses of the ABI standard contract and of the contracts at issuein these proceedings concern:

—    the giving of a guarantee 'at the same rate of interest as that prescribed forthe transaction covered and in any event a rate not lower than the currentbank rate‘ ... 'in respect of any breach of any obligation vis-à-vis the bankin connection with banking transactions of any kind, already made availableor hereafter to be made available to the said person (or any subrogatedparty)‘; the guarantee also covers 'any other obligation to which theprincipal debtor may find himself subject at any time vis-à-vis the bank inrelation to guarantees already given or to be given in the future by the samedebtor to the bank for the benefit of third parties‘ (thus triggering themechanism of the 'guarantee of a guarantee‘ which is capable of beingextended, as regards the persons concerned, to a practically unlimited anduncontrollable extent);

—    in paragraph 5, the guarantor's obligation to keep himself apprised of thedebtor's financial situation and in particular to obtain information from thedebtor regarding the course of his relations with the bank, the latter beingreleased from any obligation to seek from the guarantor the specialauthorisation provided for in Article 1956 of the Civil Code, which provides:'A guarantor of a future obligation is released from his liability if thecreditor, without special authorisation from the guarantor, has granted creditto the third party, even though he knows that the latter's financialcircumstances have become such as to make it considerably more difficultfor him to pay off the loan‘;

—    in paragraph 6, the release which the guarantor gives the bank from itsobligation to act within the time-limits laid down in Article 1957 of the CivilCode, which provides: 'The guarantor shall remain liable even after theprincipal obligation has expired provided that the creditor has, within sixmonths, commenced proceedings against the debtor and pursued themdiligently‘); paragraph 6 goes on to say that the guarantor remains liable,notwithstanding that provision, 'even if the bank has not commencedproceedings against the debtor and any joint obligors and has not continuedthe same‘, thus continuing to be jointly and severally liable 'until totalextinguishment of the debt, without limitation as to time or the fulfilmentof any conditions‘;

—    in paragraph 7(1), the obligation undertaken by the guarantor to 'payimmediately to the bank, upon simple written request, even in the case ofopposition by the debtor, whatever is owing to it by way of capital, interest,expenses, taxes, charges, and any other incidentals‘;

—    in paragraph 7(3), the statement that 'for determination of the debt securedby the guarantee, the figures set out in the bank's accounting records shallbe conclusive as against the guarantor, his heirs and successors and assigns,and the bank shall not be required to send to the guarantor, on its owninitiative, any communication regarding the state of the accounts andrelations with the debtor in general‘;

—    in paragraph 7(5), the derogation from Article 1939 of the Civil Code,according to which '[t]he guarantee shall not be valid in the event of theprincipal obligation not being valid, unless it is given in respect of anobligation undertaken by a person subject to an incapacity‘, with the resultthat the 'obligation shall remain effective in every respect even if theprincipal obligation is invalid for any reason, the guarantor thus intending,in the event of the principal obligation being declared void or beingannulled, to commit himself as if he had undertaken the obligationpersonally.‘

12.

    With respect to all those clauses, the national court considers that a decision fromthe Court of Justice is needed as regards the sums which BPN and Carige considerare due to them under the current-account contracts concluded by Mr Bagnascoand under the guarantee in respect of those sums given by the other plaintiffs inthe main proceedings. It therefore stayed proceedings pending a preliminary rulingfrom the Court of Justice on the following questions:

(1)    Whether the Norme Bancarie Uniforme (Standard Bank Conditions) laiddown by the ABI for its members in relation to contracts for the openingof current-account credit facilities — since they are laid down and applied ina uniform and binding manner by the banks belonging to the ABI — arecompatible with Article 85 of the Treaty, where they make the credit facilitysubject to conditions for determination of an interest rate which is notpreviously determined and is not determinable by the customer, and theyare liable adversely to affect trade between the Member States and have astheir object and effect the prevention, restriction or distortion ofcompetition within the common market;

(2)    What effects any finding of incompatibility of the kind referred to inQuestion 1 may have on the corresponding clauses of the contracts for theopening of a current-account credit facility, concluded 'downstream‘ bymember banks with individual customers, since, as a group, the banksbelonging to the ABI may be regarded, within the meaning and for thepurposes of Article 86 of the Treaty, as holding a joint dominant positionin the national credit market, whose specific application of the rules inquestion (in connection with determination of the interest payable on theloan) is regarded as an abuse;

(3)    Whether the NBU laid down by the ABI for its members in relation to the'general‘ guarantee covering the credit facility — since they are applied ina uniform and binding manner by the member banks — are, taken as awhole, compatible with Article 85 of the Treaty, as regards the individualclauses discussed in the grounds of this order, in that they are liableadversely to affect trade between the Member States and have as theirobject and effect the prevention, restriction or distortion of competitionwithin the common market;

(4)    What effects any finding of incompatibility of the kind referred to inQuestion 3 may have on the corresponding clauses of the 'general‘guarantee agreements and on the agreements themselves concluded'downstream‘ by individual banks, since, as a group, the banks belongingto the ABI may be regarded, within the meaning and for the purposes ofArticle 86 of the Treaty, as holding a joint dominant position in the nationalcredit market, whose specific application of the rules in question is regardedas an abuse.

13.

    It must first be noted that, after the contracts at issue were concluded, the Italianrules applicable to the opening of current-account credit facilities and the provisionof general guarantees were amended. Law No 154/92 changed the rules on generalguarantees by requiring banks to determine in advance the maximum amountsecured by the guarantee.

14.

    Furthermore, by memorandum dated 22 February 1993 the ABI decided to notifyits standard banking conditions to the Commission for examination by the latter forthe purposes of Article 85 of the Treaty. The same documents were forwarded tothe Banca d'Italia (hereinafter 'the Bank of Italy‘) as the competent nationalauthority for application of the rules on protection of competition and of themarket in the credit sector.

15.

    By letter of 7 July 1993 the Commission informed the Bank of Italy that it haddecided to examine only 3 of the 26 agreements notified. Without expressing a viewas to the existence or otherwise of any restriction of competition, the Commissionstated that the majority of the agreements, including those for the opening ofcurrent-account credit facilities and the provision of general guarantees, did notappear capable of affecting, entirely or appreciably, trade between Member States.In that connection, it pointed out, first, that the banking services in question arelimited to national territory and involve economic activities which, undercontractual provisions or by reason of their very nature, must be carried on onlywithin Italian territory or have a very limited influence on trade between MemberStates and, second, that the participation of subsidiaries or branches of non-Italianfinancial establishments is limited. It therefore stated that it did not intendundertaking any further examination of those agreements, taking the view thatArticle 85 of the Treaty was not applicable to them.

16.

    The only agreements which the Commission considered as falling within its termsof reference deal with the conditions for current accounts incorporating a foreign-currency credit facility and with the conditions governing the collection oracceptance of negotiable instruments or letters of credit payable in Italy or abroad.

17.

    On 23 November 1993 the Bank of Italy initiated a procedure under Law No287/90, Article 2(2) of which reproduces the provisions of Article 85(1) of theTreaty, for examination of the 23 agreements excluded from the Commission‘sexamination. The procedure concluded with Decision No 12 of 3 December 1994(Bolletino dell'Autorità Garante della Concorrenza e del Mercato of 19 December1994, year IV, No 48, p. 75) in which the Bank of Italy determined that both theNBU for guarantees covering credit facilities and those covering the opening of acurrent account credit facility were liable to affect competition. That decision calledon the ABI to amend the agreements and to notify the changes made to itsmembers. The ABI was also called on to make it clear to its members that theNBU were merely for guidance, were not binding in any way and were not in thenature of a recommendation and that, therefore, members were entitled to usethem or to decline to do so, and also to make any changes to them which theyconsidered appropriate.

18.

    Following that decision, the ABI amended the NBU in the manner required by theBank of Italy. Those amendments do not, however, operate retroactively so as toaffect existing contracts.

The admissibility of the reference for a preliminary ruling

19.

    The BPN submits, first, that the questions referred to the Court are not relevantto the decision to be given in the main proceedings. In its view, it is clear from thecontractual documents and from the summary payment order that, as far ascontracts granting credit facilities are concerned, the clauses and, therefore, themeasures imposed by the ABI relate not to the interest rates which may be variedor are influenced by market conditions but rather to the rates agreed a priori ona fixed basis and that, as far as guarantees are concerned, the contract is one inwhich any clause liable to involve infringement of Articles 85 and 86 of the Treatyis entirely irrelevant.

20.

    According to settled case-law, it is solely for the national courts before whichactions are brought, and which must bear the responsibility for the subsequentjudicial decision, to determine in the light of the particular facts of each case boththe need for a preliminary ruling in order to enable them to deliver judgment andthe relevance of the questions which they submit to the Court (see Case C-472/93Spano and Others v Fiat Geotech and Fiat Hitachi [1995] ECR I-4321, paragraph15, and Case C-373/95 Maso and Others v INPS and Italian Republic [1997] ECRI-4051, paragraph 26). A request for a preliminary ruling may be rejected asinadmissible only where it is plain that the interpretation or the examination of the

validity of a Community rule requested by the national court has no bearing on theactual facts or subject-matter of the case before the national court (see, inparticular, Case C-472/93 Spano and Others, cited above, paragraph 15, and CaseC-415/93 Union Royale Belge des Sociétés de Football Association and Others vBosman and Others [1995] ECR I-4921, paragraph 61).

21.

    In this case it need merely be observed that the contracts concluded by the partiesto the main proceedings contain clauses relating to the NBU regarding which thenational court has considered it necessary to seek from the Court of Justiceguidance as to the interpretation of Community law in order to enable it toappraise their compatibility with Articles 85 and 86 of the Treaty.

22.

    In those circumstances, the objections raised by BPN regarding the admissibility ofthe questions submitted cannot be upheld and an answer must be given to thosequestions.

The first question

23.

    By its first question, the national court wishes essentially to ascertain whether theNBU, in so far as they allow banks, in contracts for current-account credit facilities,to change the interest rate at any time by reason of changes on the money market,and to do so by means of a notice displayed on their premises or in such manneras they consider most appropriate, have as their object or effect a restriction ofcompetition or may affect trade between Member States within the meaning ofArticle 85(1) of the Treaty.

24.

    The plaintiffs in the main proceedings consider that a concerted practice exists inItaly for determination of the interest rates applied by banks to their debtors andthat there are even agreements and/or concerted practices relating to the generalconditions in contracts, drawn up within the ABI and set out in the NBU, whichbanks systematically include in the standard contracts which they offer to theircustomers. Under those clauses, the position of principal debtors and of guarantors,of any nationality, who are under an obligation to an Italian bank is weaker thanthat of any other debtors or guarantors dealing with a bank in another MemberState.

25.

    Even the base rate is not the outcome of free negotiation between parties since thebanks affiliated to the ABI are required to comply with the decisions of the cartel;the customer will not therefore find any significant differences between the ratesapplied by the various credit establishments.

26.

    According to the plaintiffs in the main proceedings, the banks are also unilaterallyempowered to change rates, prices and other conditions. The only protectionavailable to the customer lies in cancellation of the contract. However, that

possibility is purely hypothetical since it will be very difficult for the customer tofind any credit establishment which applies different interest rates, preciselybecause the banks form a cartel. A customer who needs to open a current-accountcredit facility is therefore in a position of absolute subjection to the banks affiliatedto the ABI.

27.

    The BPN contends that the view that its contracts are subject to constraints andobligations imposed by the ABI, such as the situation envisaged in the order forreference, has no basis in fact and is inconceivable. Moreover, an analysis of therelevant market — as regards both the product and the geographical area involved— shows that there is not a sufficiently large margin in the banking business for itto be possible to apply a uniform banking 'policy‘ in such a way as to prevent,restrict or distort competition.

28.

    Carige submits that the rules applicable to interest rates which are not entirelydetermined or determinable are not incompatible with Article 85 of the Treaty inthat they are not the result of agreements between undertakings which are liableappreciably to affect competition on the market in services involving transfers ofcapital.

29.

    The Italian Government observes that, by memorandum of 22 February 1993, theABI notified to the Commission the circulars containing the NBU sent to itsmembers so that the Commission could examine them in the light of Article 85 ofthe Treaty. The same documents were sent to the Bank of Italy, the competentnational authority for application of the rules on protection of competition and ofthe market in the credit sector.

30.

    The Italian Government considers that the only agreements which the Commissionregarded as falling within its terms of reference relate to the conditions for currentaccounts incorporating a cash credit facility, conditions for current accountsincorporating a credit facility in foreign currency and conditions governing servicesfor collection or acceptance of negotiable instruments or letters of credit payablein Italy or abroad. Those agreements have no bearing on the present case.

31.

    According to the Commission, whilst it cannot be ruled out that the clauses inquestion might be restrictive of competition in so far as they involve somelimitation of the contractual freedom of member banks of the ABI, those clausesare nevertheless not incompatible with Article 85 of the Treaty in the absence ofany appreciable effect on trade between Member States.

32.

    It must be borne in mind that, under Article 85(1) of the Treaty, all agreementsbetween undertakings, decisions by associations of undertakings and concertedpractices which have as their object or effect the prevention, restriction ordistortion of competition within the common market are incompatible with thecommon market.

33.

    According to settled case-law of the Court, in order to determine whether anagreement is to be considered to be prohibited by reason of the distortion ofcompetition which is its effect, the competition in question should be assessedwithin the actual context in which it would occur in the absence of the agreementin dispute (see Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph76, and Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175,paragraph 90).

34.

    Whilst Article 85(1) of the Treaty does not restrict such an assessment to actualeffects alone, in so far as it must also take account of the agreement's potentialeffects on competition within the common market, an agreement will neverthelessfall outside the prohibition in Article 85 if it has only an insignificant effect on themarket (Case C-7/95 P Deere v Commission, cited above, paragraph 76, and CaseC-8/95 P New Holland Ford v Commission, cited above, paragraph 91).

35.

    In that connection, it must be stated that the opening of a current-account creditfacility is a banking transaction which, by its nature, is linked with the right of thebank to change the agreed rate of interest by reference to factors such as, inparticular, the conditions for re-financing of the loan by banks. Although that rightmeans that the bank's customer runs the risk of paying more interest during thecurrency of the contract, it also offers a chance of lower interest. Since, as in thiscase, any variation of the interest rate depends on objective factors, such aschanges occurring in the money market, a concerted practice which excludes theright to adopt a fixed interest rate cannot have an appreciable restrictive effect oncompetition.

36.

    As regards the clause under which banks notify changes in interest rates by meansof a notice displayed in their premises or in such manner as they consider mostappropriate, it need merely be pointed out that that clause does not prohibit thebanks from arranging for a more appropriate means of notifying their customers.

37.

    The answer to the first question must therefore be that standard bank conditions,in so far as they enable banks, in contracts for the opening of a current-accountcredit facility, to change the interest rate at any time by reason of changesoccurring in the money market, and to do so by means of a notice displayed ontheir premises or in such manner as they consider most appropriate, do not haveas their object or effect the restriction of competition within the meaning of Article85(1) of the Treaty.

The third question

38.

    By its third question, the national court seeks essentially to ascertain whetherstandard bank conditions relating to the provision of general guarantees requiredto secure the opening of a current-account credit facility, as described in paragraph

11 of this judgment, have as their object or effect, when taken together, arestriction of competition or whether they may affect trade between Member Stateswithin the meaning of Article 85(1) of the Treaty.

39.

    The plaintiffs in the main proceedings observe that a person who has given aguarantee to a bank operating in Italy is required, by virtue of Italian case-law, topay all sums claimed by the bank in respect of both present and future bankingtransactions carried out by the bank for the benefit of the principal debtor, whetherthey are habitual, incidental or occasional, even where those transactions involve,as a result of the discretion enjoyed by the bank, an unforeseeable increase in thecustomer's total indebtedness to that bank in the course of his relationship with it.

40.

    In support of that argument, the plaintiffs in the main proceedings refer toparagraph 7(5) of the guarantee contract, under which the commitment givenremains wholly effective even if the principal obligation is invalid for any reasonwhatsoever, the guarantor being deemed, in the event of the principal obligationbeing declared void or annulled, to have given the commitment as if acting on hisown account.

41.

    Carige submits, on the other hand, that the rules imposed by the ABI in relationto the general guarantee contract concluded to secure the opening of a creditfacility are compatible with Article 85 of the Treaty since they are not liableappreciably to affect competition in the market by reason of the nature of theservices provided.

42.

    The Commission emphasises that, according to the information at present availableto it concerning cross-frontier supply of and demand for bank services in respectof current-account credit facilities and the provision of general guarantees, theservices in question do not appear to be of decisive importance as regards accessto the Italian financial market for banks from other Member States. Referring tothe reasoning given in its letter of 7 July 1993, the Commission submits that theNBU on the basis of which the contracts at issue in the main proceedings wereconcluded do not fulfil one of the necessary conditions for the application of Article85(1) of the Treaty, namely that of being liable appreciably to affect trade betweenMember States.

43.

    It must be noted, at the outset, that the provision of a guarantee is a traditionalform of surety which may be used, in particular, to secure a current-account debitbalance. Under Italian law, sureties are governed by specific rules in the Civil Code,from which derogations are available under certain conditions.

44.

    To the extent to which they lay down 'rules concerning guarantees to securebanking transactions‘, by a way of derogation from the rules in the Civil Code, theNBU are intended to secure the claims of banks in the most effective manner.

45.

    On the other hand, since those rules are, according to the findings of the nationalcourt, binding on the members of the ABI, they limit the contractual freedom ofthe banks by preventing them from offering to customers who apply for a creditfacility more favourable conditions for the associated guarantee contract. The latter,however, is merely ancillary to the principal contract, of which in practice it isusually a precondition (see Case C-45/96 Dietzinger [1998] ECR I-I-1199, paragraph18).

46.

    In those circumstances, rather than examining at the outset the question whetherthat limitation of contractual freedom involves appreciable effects on competition,it is appropriate first to consider what effects clauses such as those contained in thegeneral guarantee contracts at issue in the main proceedings might possibly haveon trade between Member States.

47.

    In that regard, the Court has consistently held that, in order that an agreementbetween undertakings may affect trade between Member States, it must be possibleto foresee with a sufficient degree of probability on the basis of a set of objectivefactors of law or fact that it may have an influence, direct or indirect, actual orpotential, on the pattern of trade between Member States, such as might prejudicethe realisation of the aim of a single market in all the Member States (Case 42/84Remia and Others v Commission [1985] ECR 2545, paragraph 22). Accordingly, theeffect on intra-Community trade is normally the result of a combination of severalfactors which, taken separately, are not necessarily decisive (Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grovvareselskab [1994] ECR I-5641, paragraph 54).

48.

    It is also settled case-law that, whilst Article 85(1) of the Treaty does not requirethat agreements referred to in that provision have actually affected trade betweenMember States, it does require that it be established that the agreements arecapable of having that effect (Case C-219/95 P Ferriere Nord v Commission [1997]ECR I-4411, paragraph 19).

49.

    In this case, as far as the effects of the rules on the provision of general guaranteeson intra-Community trade are concerned, it is conceivable that the subsidiaries orbranches of banks of other Member States which are established in Italy might beobliged, in order to benefit from the advantages of membership of the ABI, toapply the NBU and thus forgo the possibility of applying more favourableconditions. Similarly, having regard to the fact that the great majority of Italianbanks are members of the ABI, customers wishing to conclude a contract for acurrent-account credit facility might find that their choice of bank was restrictedwhere the conclusion of such a contract depended upon the provision of a suretygoverned by the NBU, to which, for the most part, no exceptions are possible.

50.

    It is true that, in principle, the answer to the question whether or not the conditionsfor the application of Article 85(1) of the Treaty are fulfilled depends on complexeconomic assessments which it is for the national court to undertake, if appropriate,

in accordance with the criteria laid down by a the case-law of the Court of Justice.However, in certain circumstances, and having regard to the indications given bythe Court, no such analysis appears necessary (see Case C-250/92 Gottrup-Klim vDansk Landbrugs Grovvareselskab, cited above, paragraph 55). Such is the positionin the present case.

51.

    It must be borne in mind that the Commission, when approached by the ABIconcerning the compatibility of the clauses governing the provision of generalguarantees in relation to Article 85 of the Treaty, found that the banking servicein question involved economic activities which have a very limited impact on tradebetween Member States and that the participation of the subsidiaries or branchesof non-Italian financial establishments was limited (see paragraph 15 of thisjudgment). Moreover, the Commission has made clear, in reply to a question putto it by the Court, that potential recourse to contracts for credit facilities andcontracts for the provision of general guarantees by the main customers of foreignbanks, that is to say large undertakings and foreign economic operators, is not greatand, in any event, is not a factor of decisive importance in the choice made byforeign banks as to whether or not to establish themselves in Italy, in so far ascontracts of the kind at issue in the main proceedings are only rarely used bycustomers of that kind. The Commission's findings to that effect have not beencalled in question in the present proceedings.

52.

    Moreover, there is nothing else in the documents before the Court to justify theconclusion, with a sufficient degree of probability, that the reservations entertainedby customers wishing to conclude a current-account credit facility contract regardingtheir choice of bank by reason of the existence of standard bank conditions relatingto the provision of general guarantees is of such a kind as to have an appreciableeffect on intra-Community trade.

53.

    The answer to the third question must therefore be that standard bank conditionsrelating to the provision of general guarantees to secure current-account creditfacilities, which derogate from the general law concerning guarantees, such as therules in the main proceedings, are not, taken as a whole, liable to affect tradebetween Member States within the meaning of Article 85(1) of the Treaty.

The second and fourth questions

54.

    By its second and fourth questions, the national court seeks first to ascertainwhether the application of the NBU constitutes an abuse, as contemplated byArticle 86 of the Treaty, of a collective dominant position by the banks belongingto the ABI. It then asks what effects any incompatibility of the NBU with Articles85 and 86 of the Treaty might have on the corresponding clauses of the contractsconcluded between banks and their customers.

55.

    The BPN does not see in what way the clauses in question might constitute amanifestation of a dominant position since the self-imposed limitation deriving fromthe ceiling on overdrafts and the clauses granting the sureties specific rightsconcerning cancellation, information, and other matters belies the hypothesis thatclauses of uniform content or 'concerted practices‘ are used to give effect to acontractual intent on the part of persons unconnected with the direct contractualrelationship in question to limit or restrict freedom of competition.

56.

    The Commission states first, referring to the case-law of the Court (see JoinedCases C-140/94 to C-142/94 DIP and Others v Comune di Bassano del Grappa andComune di Chioggia [1995] ECR I-3257, paragraphs 26 and 27), that the mere factthat the ABI's membership includes almost all Italian banks is not a sufficientreason to conclude that its members together hold a collective dominant position.

57.

    Nor, in its view, could it be contended, even if it were conceded that the memberbanks of the ABI together held a collective dominant position, that the conductdescribed by the national court constituted an abuse of that dominant position.

58.

    It must be borne in mind that, under Article 86 of the Treaty, the abuse by one ormore undertakings of a dominant position within the common market or in asubstantial part of it is incompatible with the common market and is prohibited inso far as it may affect trade between Member States.

59.

    Without its being necessary to consider whether the banks which are members ofthe ABI hold a collective dominant position within the meaning of Article 86 of theTreaty, it need merely be stated that, since, as is clear from consideration of thefirst question, any change in the interest rate for a current-account credit facilitydepends on objective factors, such as changes occurring in the money market, thatconduct cannot, in any circumstances, constitute an abuse of a dominant positionwithin the meaning of Article 86 of the Treaty.

60.

    As regards the NBU relating to the provision of general guarantees to secure theopening of a current-account credit facility, it is clear from consideration of thethird question that the application of those NBU, taken as a whole, is not liableappreciably to affect trade between Member States.

61.

    In those circumstances, the answer to the second and fourth questions must be thatthe application of the said NBU does not constitute abuse of a dominant positionwithin the meaning of Article 86 of the Treaty.

62.

    In view of the answers given to the foregoing questions, it is unnecessary to answerthe question concerning the effects which any incompatibility of the aforesaid NBUwith Articles 85 and 86 of the Treaty might have on the corresponding clauses ofthe contracts concluded by banks with their customers.

Costs

63.

    The costs incurred by the Italian Government and by the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedingsare, for the parties to the main proceedings, a step in the action pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Tribunale di Genova by orders of15 May 1996, hereby rules:

1.    Standard bank conditions, in so far as they enable banks, in contracts forthe opening of a current-account credit facility, to change the interest rateat any time by reason of changes occurring in the money market, and to doso by means of a notice displayed on their premises or in such manner asthey consider most appropriate, do not have as their object or effect therestriction of competition within the meaning of Article 85(1) of the ECTreaty.

2.    Standard bank conditions relating to the provision of general guaranteesto secure current-account credit facilities, which derogate from the generallaw concerning guarantees, such as the rules in the main proceedings, arenot, taken as a whole, liable to affect trade between Member States withinthe meaning of Article 85(1) of the EC Treaty.

3.    The application of the abovementioned standard bank conditions does notconstitute abuse of a dominant position within the meaning of Article 86of the Treaty.

Hirsch                Mancini Murray             Ragnemalm                Ioannou

Delivered in open court in Luxembourg on 21 January 1999.

R. Grass

P.J.G. Kapteyn

Registrar

President of the Sixth Chamber

1: Language of the case: Italian.