Having several complex financial products does not imply knowledge

tribunal supremo


To the Supreme Court, the fact of having contracted a variety of complex financial products does not imply that the risks were known.

The Supreme Court continues aclarándonos the criteria to be considered in relation to the implementation of MiFID and placement of complex products.

Often, the fact that a customer had placed a is diversity of complex products (structured deposits, subordinated debentures, preference shares ...) greatly he hindered the success of a complaint to the courts.

The Supreme Court, in its Judgment 25 February 2016, we come to say that although it has placed a range of complex financial products, if the duty to provide the necessary information failed, the error occurs on the consent whose consequence is the cancellation of contracts.

For, D. Torcuato and Dña. Petra, They had been advised by Catalunya Banc for the acquisition of a "deposit leaders", "Deposit accumulates 2", "Deposit euribor triple 2E", "Tank top brand", "1st Issue subordinated debt Caixa Catalunya", "Caixa Catalunya 6th Issue subordinated debt", "Caixa Catalunya 8th Issue subordinated debt" and preferred shares of Caixa Catalunya: In total more than 122.000 euros.

Losses were bulky and sued the bank.

The Court of First Instance No. 1 of Zaragoza considered the claim in full.

The bank filed an appeal and Court upheld the appeal of the bank.

So customers presented extraordinary appeal on procedural infringements and appeal to the Supreme Court.

For the Board:

1.- Both structured and subordinated debentures and preferred shares are deposits complex financial products subject to the LMV.

2.- The error invalidating the contract must be essential and excusable.

3.- The Failure by the investment firm reporting obligations It leads to presume the lack of knowledge of the product and its risks by the customer.

4.- The information provided by "Caixa Catalunya" It was not enough and did not conform to the parameters required by current regulations at the time of recruitment. Even the information of purchase orders was adequate and not informed about the risks.

5.- There was advice it was the employee of "Caixa Catalunya" which offered the products to customers. And a written contract is not required for there to advice.

6.- The deadline for expiration count does not begin until the customer may have become aware of the existence of their error: The opening day will be the suspension of the settlement of benefits or accrual of interest or other similar event in general that allows real understanding of the product (SSTS 16.9.2015, 12.01.2015).

7.- Tener un patrimonio considerable o have made some investments does not make them experts customers:

"That the customers had previously signed similar products, It does not entail that have investment experience in complex financial products, if in hiring them it was not provided the legally required information ".

The hiring of several investment products with the advice of Caixa Catalunya:

"Can only indicate the repetition of the financial institution in their misconduct, not the expert character of customers ".

8.-The reporting obligation is active, not merely the availability (SSTS 18 April 2014 and 12 January 2015).

Ultimately, customers contracted with the wrong mental representation for breach of the investment firm of its information duties. the judgment of the Court of First Instance confirmed.

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