Bankinter convicted Bonds in Madrid















The Court of First Instance No. 84 Madrid has declared invalid a subscription of bonds that were actually preferred shares of Bank of Ireland made through Bankinter in Case 10 February 2014.

Plaintiffs signed the preference shares in February 2005. They endorsed the product as if it were safe and liquid product. According to these, the bank violated peremptory norms reflected in the LMV and RD 629/1993. No profile claimants established and advised an unsuitable product for them. The lack of information led to a error in the consent. Not warned of deterioration in the credit rating of the issuer and the plaintiffs eventually losing your entire investment.

The bank, In its answer, alleged that no violation of peremptory norms, that the action is Expired, and that there was no causal link between the alleged breach and the injury for which compensation is claimed. He says that the plaintiffs were properly informed and their business profile allowed them to understand the product and its risks. According to the bank, they were mere intermediaries, the product could not be classified as complex, and post-contractual information was correct. The bank believes that There was no advice and were mere executors of orders.

In the purchase order all information about fees was omitted, brokerage and fees, although they were charged more than 5.000 euros commission. On that date, was not given any other information document.

In July 2011, Bank reports that 200.000 euros invested had become 2 euros less expenses and Mail, remaining in 0.78 euros.

Magistrate-Judge examines the nature of the product: is a complex product, under Article 79 bis 8th) of LMV and as reiterated jurisprudence, not appear in the list of non-complex values ​​and that does not meet any of the three requirements a)b liquidate)no risk of loss and c) public provision of sufficient information on the characteristics.

Investor profile

Is considered to because they had no business to have financial knowledge on preference shares, that in 2005 product were unknown to the average citizen.

Bankinter made no inquiry before signing the contract on the knowledge experience and investment objectives of the applicants. Although the facts are before the MiFID rules, the bank itself had an internal manual that failed and required information about customers. The fact that the applicant was an entrepreneur, not imply that financial markets were expert. The plaintiffs had no other complex products and investment in the asset at issue was the 66% their savings..


No requires that a written contract that has advice. The five elements needed to be considered that there are counseling:

1.- It must be a recommendation.

2.- Please refer to specific financial instruments.

3.- Must be personalized.

4.- Should be performed by means that do not address the "general public" such as press, television radio.

5.- Must be individualized.

Contracts are what they are and not what the parties want them to be. If Bankinter paid an advisory service to private banking clients, I was especially required to comply with applicable regulations.

In view of the tests performed, Undoubtedly considered advice was, although it was not formalized. It recommended a custom-specific financial instrument.

The bank breached its obligation under the Order of the Ministry of Economy 7 October 1999 forcing write a contract according to the provisions of the OM 25 October 1995.

Besides the LMV in his article 79 as in force at time of hiring behave demanded transparency and diligence in the interests of their clients, develop an orderly and prudent management looking after the interests of customers as if they were their own and make sure they have all the customer information and keep them informed.

STS 18 April 2013 Directive 1993/22/CE states that require a high standard in the obligations to act in good faith, prudence and information.

The bank must apply its own Information Manual.

It is also implementing the RD 629/1993 in Articles 4, 5 and 6 General Annex contains a Code of Conduct which requires information on customer, to inform customers clearly correct, need, and given sufficient time, and report on incidents relating to the transactions entered. Fairness is required or, professional and impartial.

In the same sense, apply the OM 25 October 1995 y la IF they 7 October 1999, latter, especially with regard to portfolio advice.

Duty of information

It is part of the basis of the requirement of good faith by Article 7 civil code. Judge clarifies that there:

1.- An information required from the perspective of sectoral regulations (LMV, RD 629/1993 y IF they 7 October 1999).

2.- An information required from the perspective of consumer protection regulations and users (RDL 1/2007, articles 60, 80 and 89).

3.- An information required from the point of view of customer training: If customers are not professional, is debed extreme clarity in explanations.

4.- The information content of the contract itself: is necessary scenario simulation, allow time for reflection Customer, to drafts that can study, and the information to be correct.

Burden of proof

Is bank must certify that the information provided was sufficient, effective and fulfilled a specific degree of diligence of a prudent businessman and loyal representative in defense of their clients.

If one considers that lack accurate information, proper and adequate, that caused the error in Contracting, so the demand is estimated, canceling the contract, with conviction pay the costs to the bank.

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