The Supreme Court decides on the Shares of Bankia

tribunal supremo


The Supreme Court has confirmed the inaccuracy of the prospectus for offering of Bankia and has rejected demands for cessation of criminal prejudicialidad.

And it has done so by judgments of the Plenum, constituting jurisprudence directly, without your criteria it is reiterated by subsequent.

These are the numbers Sentences 23 and 24 of 2016, both dated 3 February.

In this post we will discuss Judgment No. 24, rules on an appeal filed against the judgment of the fifth section of the Audiencia Provincial de Oviedo 11 May 2015.

The 23 December 2014, customers filed suit requesting nullity of the purchase of shares of Bankia amounting to EUR 9.997'50. They based their request on the existence of a consent vitiated, namely that the image of solvency and profitability does not correspond to reality and this led to his mistake.

The Court of First Instance gave judgment on 10 March 2015 estimating demand.

Bankia filed an appeal with the Audiencia Provincial de Oviedo, which he dismissed in Judgment 11 May 2015.

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

Criminal prejudicialidad

Bankia alleges that the procedure should have been suspended until the criminal case is resolved immediately before the Audiencia Nacional, under Articles 40 LEC and 10 LOPJ.

For the Board, not from the suspension by criminal prejudicialidad, that should be interpreted restrictively (STS 30 May 2007). The Constitutional Court, He indicated (STC 28 September 2008) that in each jurisdiction and prosecution rating may occur in separate legal plans and with different results if it results from the application of the criteria specific to each field of law (private or criminal).

Even though the decision outside the court acquittal, this would not prevent the estimation of the claims in the civil trial, in which the main criteria are the accounting standards and securities market, and test requirements are lower.

The different assessment of the evidence that can be done in the civil and criminal, no violation of Article 9.3 and 24 of the Constitution.

The suspension criminal prejudicialidad, become ineffective liability for damages under the former Article 28 the LMV (today art. 38 the revised text).

Last, Plaintiffs have right to effective judicial protection, without delay would produce the expected completion of the criminal proceedings.

notorious facts

Bankia maintains that the inaccuracy of economic and financial information of the prospectus for public offering of shares of Bankia is a notorious fact.

For the Board, recourse to "Known facts" is not wrong when it comes to facts and public economic data and freely accessible by any interested party and which have been widely publicized. It is sufficient that the court knows them and is satisfied that such knowledge is shared and generalized (STS 9 May 2013).

But also, consideration of the inaccuracy of the brochure is not reached by that is a notorious fact, but is the result of accounting evidence gathered.


Bankia claims that the judgment of the Provincial Court "presume" the lack of accuracy of the information brochure but does not explain how they arrived at this conclusion.

For the Board, the Provincial Court does not use the judicial presumptions but takes into account a number of facts (as inspection of the Bank of Spain December 2010, Deloitte sanction reporting on the correction of accounting data, the intervention of Banco de Valencia, the report of the European Banking Authority and the reformulation 25 May 2012), and it has valued certain tests (such as expert reports) to reach its conclusion.

Error on consent

Bankia claims that the Provincial Court did not examine the requirement of a causal link between the error occurred and the contract, if the applicants had not read the brochure: The lack of accuracy would not be because of Agreeing.

For the Board, The prospectus should provide complete and accurate information (articles 27 and 30 the LMV), and it is not relevant to each particular investor has read the prospectus or in its entirety. The brochure is to disseminate information, that comes through various channels to potential investors, "Lacking other means to learn and did not necessarily have to read the booklet". The plaintiffs the information reached them through Bankia employee with whom they had a relationship of trust.

If economic data had not contained serious inaccuracies, disseminated information and comments in various fields, They would have dissuaded from investing small investors seeking yield economic benefits and share appreciation.

Last, the Board confirms that the plaintiffs are "third parties" in the face of society and that in Spanish law is feasible both the responsibility for damages void for lack of consent (STJUE de 19 December 2013 asunto C-174/12 Immofinanz).

Ultimately, The applications are dismissed and the judgment of the Provincial Court of Oviedo declaring the nullity of the purchase of shares of Bankia is confirmed.

the way for claims in court is leveled by Bankia shares acquired in the tender offer.

However, to the concerns in the customer, worth noting that processes outstanding shares of Bankia, They should be continued until a final judgment.

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