Does the derivatives cartel found by the Commission make the Euribor loan clause void?

The Court of Justice of the European Union, Second Chamber, by judgment of 3 September 2026 in Case C-60/25, ruled on a request for a preliminary ruling under Article 267 TFEU, made by the Corte d’appello di Cagliari (Court of Appeal) by order of 24 January 2025, in a dispute between the consumer borrower and the lending bank over a mortgage loan. The Court interpreted Article 101(2) TFEU and Article 16(1) of Regulation (EC) No 1/2003. The referring court reported divergences in national case-law on the evidential value of Commission decisions C(2013) 8512 final of 4 December 2013 and C(2016) 8530 final of 7 December 2016 (Case AT.39914), which found a single and continuous infringement in euro interest rate derivatives, extending across the entire European Economic Area, for individual periods between 29 September 2005 and 30 May 2008. The Court distinguishes two aspects. As to automatic nullity, it «concerns only the contractual clauses of the agreement in question which are incompatible with Article 101(1) TFEU» and does not automatically extend to contracts concluded on the basis of the prohibited agreement; it is for the national court to assess, under its own law, the scope and consequences of the prohibition for the contractual relationships. As to binding effect, the Commission decision must be taken into account by the national court, but binds it «only as regards the nature and the material, personal, temporal and territorial scope» of the infringement found. Classification as a restriction by object, the Court adds, does not in itself allow the conclusion that there were precise effects on the level of the rate.

Consider a company with pending proceedings for recovery of sums paid, or weighing a challenge, on a variable-rate facility indexed to Euribor concluded during the infringement period. In the light of this judgment, simply producing the Commission decisions is not sufficient to found the claim: those decisions bind the court as regards the cartel in the derivatives market and the undertakings that took part in it, not as regards the financing contract concluded with an intermediary outside the cartel. The pleading must therefore be recast: it must be alleged and documented that the contested clause is a constituent element of the infringement found, or that the contract was concluded in order to implement or give effect to the anti-competitive conduct; failing that, the claim rests on the categories of national law, which the national court applies under its own legal system. In practical terms, before the case is reserved for decision it is worth checking in the case file which documents prove the intermediary’s participation in the cartel and which contractual period falls within the period found: the temporal and personal scope of the infringement delimits the binding effect. A party suing for damages, rather than for nullity, remains subject to the rules governing that action, on which the judgment does not rule.

Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.