The Limits of Antitrust Nullity: The CJEU Draws a Line in the Euribor Litigation - Case C-60/25, Livronsa, Judgment of 3 September 2026

1. Introduction

Does a cartel infringement decision nullify contracts concluded downstream of the cartel between non-cartel participants? In Livronsa (C-60/25), the Court of Justice of the European Union (“CJEU”) gave this question a firm answer against the backdrop of the Euribor manipulation scandal. By limiting both the automatic nullity under Article 101(2) TFEU and the binding effect of Commission infringement decisions, the judgment raises important questions about the consequences of anticompetitive conduct across interconnected markets and the scope of private enforcement.

2. Background and judgment

The case arose from an Italian borrower challenging a mortgage loan agreement whose interest rate was linked to Euribor, following two Commission decisions finding an infringement of Article 101 TFEU in the Euro Interest Rate Derivatives market. Faced with the question of the probative value of those decisions, the CJEU ruled that the binding effect of a Commission decision is confined to the scope of the actual finding and does not extend to a clause in a distinct agreement that falls outside the agreement declared incompatible with Article 101. In this case it did not automatically invalidate Euribor-linked contractual terms concluded by parties unrelated to the cartel.

3. Critical analysis

3.1. Market boundaries and the binding effect of Commission decisions

On closer inspection, the judgment also confirms some important principled limits on the reach of antitrust nullity.

First, the CJEU stressed that the EIRD decisions concerned the derivatives market, not the separate mortgage market to which the contested term belonged, and could not therefore automatically invalidate contracts between parties unrelated to the cartel (para. 37-38 and 42-46). This approach is consistent with legal certainty: should the automatic, far-reaching sanction of nullity really extend to contracts and parties that had no connection to the infringement actually established?

Logically, yes. Market definition is the tool competition law uses to identify the specific competitive constraints at issue, and it is precisely for that reason that it provides a principled and administrable boundary for the consequences an infringement decision can be taken to have. Euribor is used across multiple financial markets, including derivatives and variable-rate loans, but the fact that a benchmark is widely used does not mean that every downstream use is tainted by an infringement established in a different, specific market. Anchoring the reach of an infringement decision to the market actually examined avoids extending serious legal consequences, such as nullity, to transactions and parties the Commission never investigated.

But there is more. Having drawn that market boundary, the Court makes clear that – consistent with Article 16(1) of Regulation 1/2003 – the Commission decisions are binding on national courts only within the scope of the infringement established. This is the correct outcome: extending the binding effect of a Commission decision to markets and effects it did not examine would give those decisions an authority they were never intended to have, and would deprive defendants of the opportunity to contest findings that were simply never made.

On this, the Court correctly affirms that the probative value of a Commission decision in markets other than those addressed in the decision is a matter of national procedural law and evidentiary rules (para. 35). However, the CJEU further observes that, because the infringement was classified as a restriction of competition “by object”, the Commission’s decisions did not, in themselves, establish specific effects on the level of Euribor (para. 44).

This is consistent with a sound understanding of the object/effect distinction in Article 101(1) TFEU, which is a liability-finding device, not an evidentiary one: classifying conduct as a restriction “by object” simply means the Commission (and the Courts reviewing it) did not need to prove actual anticompetitive effects on the market in order to establish the infringement, which is a well-established economy-of-proof mechanism. Precisely for that reason, “the Commission did not have to prove effects to establish the infringement” cannot be read as “the conduct had identifiable effects on Euribor”. The EIRD decisions did not establish specific effects on the level of Euribor, and it would have been wrong to treat their silence on this point as a finding that could be deployed against parties who had no opportunity to contest it in the Commission proceedings.

The Court was therefore right not to treat the absence of findings on effects as a licence to infer that Euribor was actually distorted. A Commission decision that did not need to, and did not, establish effects on a specific benchmark should not be converted into circumstantial evidence of those effects in subsequent litigation: doing so would effectively lower the evidentiary bar in a way the “by object” finding was never meant to permit, to the detriment of parties who were not addressees of the decision and had no chance to rebut such an inference. By confining the EIRD decisions to what they actually found, the Court preserved the evidential safeguards that national courts are meant to apply, leaving claimants to prove actual effects on Euribor, if any, through ordinary rules of evidence.

3.2. Personal liability and contractual nullity: a principled limit

A further notable aspect of the judgment is the Court’s reading of the “personal nature” of liability for competition infringements, i.e. the idea that only the undertaking that infringed the rules must answer for the damage it caused (para. 36). The CJEU draws this principle from its own case-law on collective liability within a cartel (notably Commission v Anic Partecipazioni and Skanska Industrial Solutions), and its underlying rationale, that responsibility should not extend beyond those who committed or are legally attributed the infringement, applies with at least equal force to parties who were never part of the cartel at all.

Liability for an infringement and contractual invalidity are distinct legal questions: the former concerns responsibility for unlawful conduct, the latter the validity of contractual obligations. But the two are not unrelated: automatically voiding a contractual term agreed by an innocent, non-cartelist party risks imposing on that party the practical consequences of conduct for which, on the Court's own reasoning, it bears no responsibility.

Seen in this light, the CJEU’s approach sensibly tempers what might otherwise be an indiscriminate, erga omnes application of nullity. Article 101(2) TFEU’s wording (“automatically void” enforceable by “anyone”) is not diminished by requiring some meaningful connection between the infringement and the contract or parties affected; if anything, that requirement ensures the remedy is applied to those situations it was designed to address, rather than extended mechanically to transactions and counterparties far removed from the cartel.

3.3. National contract law and the consequences for consumer litigation

The judgment arose precisely because of a split in the Italian Supreme Court of Cassation on the probative value of the EIRD decisions for Euribor-referencing loans: one line of Italian case-law had in fact already extended automatic nullity under domestic competition law to downstream contracts giving effect to a prohibited cartel. The CJEU’s ruling brings welcome discipline at the EU-law level, confirming that claims resting on Article 101(2) TFEU/Article 16(1) cannot bypass the ordinary requirements of proof merely because EIRD decisions exist. Borrowers seeking to challenge Euribor-linked loan terms retain recourse to national-law grounds, but will need to establish their claims on the merits rather than relying on an automatic EU-law shortcut, an outcome consistent with legal certainty for the many parties, including non-cartelist lenders, potentially affected by such claims. This is particularly relevant given that Assoutenti, a consumer association, had intervened in the proceedings precisely because the outcome was expected to shape a much broader category of mass claims rather than this single dispute.

Ultimately, Livronsa brings welcome clarity on the limits of EU antitrust nullity and the binding effect of Commission decisions. By leaving borrowers to national contract law, the Court respects the boundaries of what Commission decisions actually establish and avoids imposing a uniform EU remedy on situations the underlying infringement decisions were never designed to reach. That national outcomes may vary is a natural consequence of entrusting these questions to national contract law and procedural rules, not a flaw in the CJEU’s reasoning.

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The views expressed in this article are solely those of the authors and do not necessarily represent the views of Morrison Foerster.