Banking and Financial, ACF, College, Arbitrator for Financial Disputes, Rome, Decision no. 88 of 25 October 2017, subscription of shares of real estate fund, ascertainment of grounds for invalidity of the framework contract pursuant to art. 23 TUF and 1418 c.c.

DONE

In the appeal, examined together with the complaint and the attached documentation, the applicant reports that it had signed in December 1998 n. 21 units of a closed-end real estate fund placed by the intermediary, for a value of ITL 214,200,000. The value of these shares at December 31, 2016 was reduced to € 34,422.57. The applicant complains that the intermediary acted in a conflict of interest and that it did not provide it with adequate information, in particular with regard to the duration of the investment, which would not have been compatible with her age and family situation, both notes to the intermediary. Furthermore, the appellant complains that the investment was made in the absence of a framework contract stipulated in writing, “with any consequence in point nullità ex art. 23 TUF and 1418 c.c. “. The appellant also complains that the intermediary failed to comply with its information obligations when a divestment request was submitted by the applicant. Finally, he complains about the violation of the art. 21, 23, 26 and 28 of the Intermediaries Regulation. In view of all the foregoing, the appellant claims that an amount equal to € 176,806.21 be paid to her by way of compensation for damages.

2. In its own submissions, the intermediary objects, as a preliminary point, to the prescription of the applicant’s claims. First of all, since the intermediary has played the role of a mere investor of the fund in question, he may have recourse to one of his pre-contractual liability, as such, subject to the short term of a five-year limitation period; but also to want to hypothesise a liability having a contractual nature, in any case the ordinary limitation period of ten years would have passed, since the investment object of the dispute dates back to December 1998, without there being any interruptions before the date at the presentation of the complaint in December 2016. On the merits, the intermediary disputes, in any case, that the investment may be affected by a nullity due to the lack of a quadr contract or stipulated with the written form required under art. 23 of the TUF, given that at the time of the investment the mere placement of financial instruments did not require the prior stipulation of a framework contract in writing, since it is an activity expressly excluded from the scope of the aforementioned provision of the TUF. In any case, according to the defendant, the applicant “validated” the investment, since, until now, it has never invoked any cause of nullity and would have regularly received the coupons accrued over time. With regard to the alleged breach of the obligation to provide information, indicating that the applicant is an expert entrepreneur, the intermediary declares that it has correctly informed the appellant, that it would also be duly informed of the existence of a conflict of interest situation. . Lastly, the respondent complains that the indemnifiable damage can be found in the case in point: a) the appellant has invested for the subscription of the units of the fund € 108,455.95; b) over the years the fund manager would have paid coupons and early repayments totaling € 97,323.66; c) the value of the shares, at 5 April 2017, was € 18,331.23. Therefore, the applicant did not suffer any damage from the investment, indeed it would have made a profit of € 7,198.94. All this premised, the intermediary asks that the appeal be rejected.

3. In the supplementary deductions, the appellant reiterates the objection of invalidity for lack of a framework contract in writing, as required by law. As for the limitation exception, he replies that the right was not in his view prescribed, since, in the event of the nullity of the contract, the limitation period for the right to claim restitution of the amount invested would result from the judicial finding of the case of nullity; a term which, in any case, would not start to run before the termination of the relationship, in the present case still in existence. The appellant also complains that it has received coupons and partial repayments to the extent indicated by the intermediary, reiterating its claim for damages conclusively.

4. In the final replies, the intermediary reiterates that the claim of the applicant would be prescribed, regardless of its legal status, since, whether it is five-year or ten-year terms, the term runs from the date of the investment and not from the closing date of the report or from the final sentence of a ruling ascertaining the cause of nullity, which is non-existent in the present case. Furthermore, it confirms the successful collection of coupons and partial reimbursements by the appellant and, therefore, the non-existence of a compensable damage, reiterating conclusively its request for rejection of the appeal.

RIGHT

1. The Board, having examined the documentation in documents, notes the following.

Regardless of and prior to any consideration regarding the existence of a compensable loss, the limitation exception raised by the intermediary can not be considered absorbing, since it is well founded.

The applicant alleges that the investment was made in December 1998 and the documents in the file do not result in an interruption of the requirement prior to the complaint of 6 December 2016. Therefore, even assuming that the responsibility that the applicant imputes to the intermediary is contractual and therefore it is subject to the ordinary limitation period of ten years, however it is a term already extensively passed at the time of filing the complaint to the intermediary in December 2016, this being the first act to which it is possible to recognize the term of limitation.

Nor does it appear to be revoked that the term began to run from the date of the investment, and therefore in this case since December 1998, it is also not possible to recognize the claim made by the applicant that, in the event of a finding of a The nullity of the framework contract, the limitation period for the restitution action would run from the date on which the judgment establishing the nullity becomes final, given the absence of such a judicial ruling.

The Board rejects the appeal.

Source ACF