Banking and Financial, Contracts, Art. 23 TUF, Cancellation of the purchase contract for shares, Questionnaire MiFid, ACF, College, Arbitrator for financial disputes, Rome, Decision no. 363 of 10 April 2018
On 18 September 2014, the Complainant signed a loan agreement with the Intermediary for the purchase of a package of n. 100 shares issued by the Intermediary, for a contract of € …., then proceeding with the subscription of the same on the basis of copious documentation produced by the Intermediary, today resistant, according to a procedural scan that had not allowed him to become aware the real nature of the investment and, in particular, the illiquid nature of these shares, to which the purchase was actually brought by the intermediary.
Contrary to the prospect of the defendant, the Resistant claims to have provided the client, today’s applicant, with all documentation useful for a full understanding of the risks associated with the investment, “both on the occasion of the stipulation of the contract, and on the occasion of accession. to the capital increase “.
Examined documentation in deeds and, in this context, the dynamics, first and foremost, of the events occurred, is the opinion of the College that the prospect of the facts, as reconstructed by the applicant, is completely plausible.
In this sense, it orients the Recurrent’s subjective profile, as emerging from the MiFid questionnaire – confirmed by the negative judgment resulting both from the adequacy assessment and from the appropriateness assessment – as well as the extremely short time between this assessment and the effective execution of the ‘operation, in any way such as to allow you to say that the customer was able to become aware of the effects of the overall operation that was going to dispose, especially as despite the copious documentation made available to him is not provided that he was given an information extremely significant, namely that on the illiquid nature of the specific financial instrument, and this in clear violation of the Consob communication of March 2009.
To this it should be added that the modus procedendi of the Intermediary in the case of today’s appeal is not dissimilar to that already found by this Board, in the past, when the appeals of other savers / shareholders concerning similar events were taken, if not all identical.
This is a further element that confirms the credibility of the prospect of the case formulated by the current applicant.
Having thus assessed the facts that have occurred, the Board finally accepts the appeal in terms of the cancellation by essential error on the object and, consequently, declares the Intermediary held to the restitution in favor of the Complainant of the sum invested, equal to € … … .
The Board, in accepting the appeal, declares the Intermediary obliged to pay the total sum of € … ….. by way of repayment to the Claimant and sets the deadline for execution within thirty days of receipt of the decision.
Within the same term the Intermediary informs the ACF of the deeds made in order to comply with the decision, pursuant to art. 16, paragraph 1, of the regulation adopted by Consob with resolution no. 19602 of 4 May 2016.
Source ACF Arbitrator for Financial Disputes
