Barclays bonds canceled in Orense,es

Barclays Bonds

The nullity of the subscription of Barclays Bonds is confirmed due to lack of information.

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The Provincial Court has confirmed the first instance ruling that annulled a subscription of RBS Bonus Autocancelables BBVA SAN COUPON 16%, “placed” por Barclays S.A. to his clients, for not providing them with sufficient information about the nature and risks of the product.

The decision has taken place in the judgment of the Provincial Court of Orense No. 202/2017, of 07 March 2017.

In the month of February 2008 D. Manuel and Dª. Emma celebrated with Barclays S.A. (ahora Caixabank S.A.) a subscription agreement for the product “Bona Autocancelable RBS BBVA, SAN CUPON 16% ”for an amount of 90.500 €.

D. Manuel and Dª. Emma acted as consumers and retailers, and they had no specific financial background. Also, He was the director of the office of Barclays S.A. the one who recommended the subscription of said financial product.

As happened with most of this type of financial derivatives, upon the expiration date of the product, as a result of the decrease in the price of the securities to which it was linked, D. Manuel and Dª. Emma lost most of the 90.500 invested €.

Then, upon realizing that Barclays S.A. not provided sufficient information to understand the risks and nature of the financial product offered, They formulated a request requesting that the subscription order be annulled due to an error in the consent they gave, and that Barclays S.A be sentenced. to return the,,es,plus legal interest from the date of subscription,,es,estimated by the Court of First Instance Ollie #,,es,against which I appealed Banco Santander S.A.,,es,Include the following reasoning Audience,,es,Although the contract is completed before the entry into force of MiFID,,es,in the version in force at the time of recruitment and provided that,,es,entities acted in the stock market should ensure that they have all the necessary information about their customers and keep them always adequately informed,,es,The shipment from the bank card customers in the negative performance of the product is reflected irrelevant,,es 90.500 Initially invested €.

Said lawsuit was fully upheld at first instance, y Barclays S.A. interpuso recurso de apelación alegando que 1) had no passive legitimacy to answer for said financial product; and 2) that there had been no error in consent.

In relation to the lack of legitimation, Barclays S.A. reasoned in his appeal that, as it had only acted as an intermediary between the issuing entity and the clients, it was not she who was responsible for returning the amount invested by D. Manuel and Dª. Emma in the structured bonus.

The Provincial Court, however, concluded that Barclays S.A. yes I was entitled to return that amount, because it was she who advised her clients to contract the financial product and with whom, also, concluded the subscription contract, what made it the holder of the specific legal relationship (STS 29 June 2011).

On the other hand, as regards the absence of error, Barclays S.A. argued that clients had sufficient knowledge to understand the operation of the financial product and that, also, I had provided them with all the necessary information in this regard.

To answer that reason, The Court recalled that, insofar as structured bonds are complex financial products, It is the bank that markets it that is obliged to provide its client, sufficiently prior to signing the contract, the necessary information on the nature and risks of the product offered, in accordance with the provisions of the pre-MiFID regulations (RD 629/1993) like MiFID (Law 47/2007) as an essential element of investment services (STS 716/2014).

In this case, the court concludes that the bank did not provide sufficient pre-contractual information on the nature and risks of the structured bonds to its clients (received no explanations on how it works, they told him that the capital was guaranteed, and the only informational documentation they received was a very small brochure, that was delivered to them at the time of signing the contract).

That breach, attached to both D. Manuel as Dª. Emma lacked specific financial training, generated that the consent given to subscribe the structured bonds was affected by error vicio. That mistake, also, era essential, because it falls on the substantial qualities of the product and is excusable because it was the bank that was obliged to ensure that the will of its customers regarding the product offered was properly formed (SSTS 20 January 2014 and 12 January 2015).

Therefore, the Provincial Court dismisses the appeal filed by Barclays S.A. (Caixabank S.A., Now), y confirma la sentencia de primera instancia que la condenaba a devolver a Dª. Violet the 90.500 Initially invested €, statutory interest.

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