Financial, Nullity of contract of financial intermediation, regulation of jurisdiction, negotiating case, ordinary judge, Court of Cassation, VI Civ. Section, Ord. n. 1826 of 24/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

The following principle of law is set out: “There is no dispute over the jurisdiction of the court specializing in business matters concerning the purchase of shares in the capital of the same bank under a financial investment contract, in which the plaintiff pursuant to Legislative Decree 24 February 1998, n. 58, the violation of the provisions regulating the provision of investment services and the failure by the bank to comply with the legal rules of conduct imposed on financial intermediaries “.

ORDER

on the appeal registered under no. 28543-2016 R.G. proposed by: ….;

– applicants –

…. BANCA SPA, …;

– resistant –

for settlement of jurisdiction against the Ordinance of the TREVISO COURT, filed on 03/11/2016; having heard the report of the case in the non-participated council chamber of 05/12/2017 by the Councilor ….;

read the written conclusions of the Public Prosecutor, …., which asks to declare the competence of the Court of Treviso.

CAUSE FACTS

By order of November 3, 2016, the Court of Treviso declared that the court seised in favor of the Court of Venice, a section specializing in business matters, was inexperienced, with regard to the dispute concerning the nullity of a contract for financial intermediation and purchase orders for shares …, with a conviction of the return of the sum invested and accessories, and the subordinate action to ascertain the violation of the obligations under Legislative Decree no. 58 of 1998 and condemnation of the bank for compensation for damages equal to the unsuccessful investment.

Against the order, the investors propose a regulation of competence, complaining about the violation of art. 3 d.lgs. N. 168 of 2003.

The notice is resent with a counter-appeal, which also deposits the plaintiff’s memory.

The P.G., in its conclusions, asked to declare the competence of the Court of Treviso.

REASONS FOR THE DECISION

1. – The interruption of the judgment relied on by the countercurrent should not be ordered, based on the principle that the institution of the interruption of the proceedings (e multis, Cass. 29 January 2016, No. 1757) is not applicable in the cassation judgment December 2015, No. 24635, October 31, 2011, No. 22624, Section No. 21 June 2007, No. 14385, see also last, Cass. November 15, 2017, No. 27143 and March 23, 2017, n. 7477); in this case, moreover, the reported event intervened during the already established contradictory legitimacy judgment.

2. – In support of the regulation, the applicants state that the transactions in question were recommended by the official of the Pordenone branch of the bank on 24 May and 7 June 2012, when their assignor (aged 89) bought 1,100 shares of. … spa at the price of € ….., and that they, the sole heirs, acted for the violation of articles 21 and 23 of Legislative Decree no. 58 of 1998, for the lack of a written contract and for the non-fulfillment of all information obligations.

Therefore, they support the applicants that the object of the case does not pertain to corporate litigation, in so far as jurisdiction is not the responsibility of the so-called. court of companies, pursuant to art. 3 Legislative Decree of 27 June 2003, n. 168.

3. – The appeal is well founded. It should be noted that the determination of jurisdiction is based on the content of the judicial request, as established by art. 10 cpc, which expresses a general rule (among others, Court of Cassation, November 9, 2016, No. 22816, October 22, 2015, No. 21547, April 18, 2014, No. 9028, February 18 2014, No. 3845, May 23, 2012, No. 8189, May 17, 2007 No. 11415).

It has also been clarified (Court of Cassation, August 29, 2017, No. 20508) that, if the same fact can be qualified in relation to various legal titles, it is up to the discretionary choice of the plaintiff to identify the action to be taken in court , being allowed to the judge to redevelop the application itself only if this presents elements of ambiguity not otherwise resolvable.

However, the Court of Treviso has stated that, even in the context of a purchase for the purpose of financial investment, there was the establishment of a social relationship, so that it is sufficient to integrate the conditions for the jurisdiction of the specialized judge of the company.

However, although at the provision of art. 3 cit. was given by this Court wide interpretation – expected the intention of the legislator of specialization of judges also highlighted by the restriction of the number of competent courts, so that the disputes relating to “corporate relationships” are given to the specialized sections of business, with an illustrative mention, and disputes relating to the transfer of shareholdings “or to any other negotiation concerning the company shareholdings or inherent rights” (see Cassation, Order February 21, 2017, No. 4523, Order October 16, 2014, No. 21910) ) – bank disputes relating to investment contracts have been excluded from this Court by the scope of the provision (Court of Cassation, April 4, 2017, No. 8738).

In this decision it has been affirmed, and now it is intended to reiterate, that the dispute concerning the financial investment relationship, even when concerning actions, falls outside the jurisdiction of the court specialized in the field of business.

According to the letter and the rationale of the provision in question, indeed, the legislature intended to concentrate the disputes relating to the companies and their events in favor of legal certainty and against the danger of multiplication by the specialized judge – as far as it points out – of unnecessary quarrels, which could occur where continuous distinctions were made.

But even this extensive reading must respect, then, the limits of that letter and that ratio, competing in indicating the correct interpretation: which, as it now stands, are expressed, on the one hand, in the existence of a controversial to corporate relationships and social investments; and, on the other hand, in the survey of relevant situations on social life, albeit in a broad sense, with regard not only to the events of internal government, but also to the individual member, in his relations (albeit “no longer “or” not yet “in progress) with the company, with the corporate bodies or with the other shareholders.

On the other hand, when no matter is involved in the dispute, which is not even indirectly related to company law – as in the matter of financial investments – the rational interpretation of the provision leads to the dispute being attributed to the ordinary judge.

In other words, where the purchase of shares is unequivocal, as in this case, the nature of a financial investment between the investor / saver and the bank, and the plaintiff reports the breach of the intermediary’s obligations imposed by the rules on investment contracts requiring the relative protection, the negotiating cause thus emerging from the contractual regulation and the reasons for the request exclude the integration of the case referred to in art. 3 cit.

It is also known that the shareholding lends itself, depending on the case, to constitute the instrument to express the different possible motivations of the equity investment, now aimed at a propulsive function in the company and now, instead, to an essentially financial role of the partner, whose participation in society remains a mere investment, with substantial indifference to the dialectical assembly, an organ that becomes the seat of the claims of the creditors-investors with respect to the majority that governs it.

Well: in both cases, the disputes involving the shareholding belong to the category assigned to the court of the company.

However, the disputes in which it is proposed that the share purchase took place in the context of transactions relating to services and investment activities, whose professional exercise vis-à-vis the public is reserved for the subjects envisaged by art. 18 of Legislative Decree no. 58 of 1998 and of which it is asked to ascertain the non-observance of the legal rules of conduct placed on the financial intermediaries: therefore, not the importance of the possible motivation in itself of the equity investment determines the jurisdiction of the judge on the dispute, but the cause negotiation, objectified in the store and presented in the introductory summons, in one with the proposed questions.

Otherwise, it would end up contradicting the same need for specialization of the court of companies: which, with the clear choice of the legislator of 2012, which operated in a direction opposite to that followed by the reform of the corporate rite with legislative decree n . 5 of 2003, no longer saw in its jurisdiction the disputes «related to: …

d) relationships in the field of securities brokerage by anyone managed, services and investment contracts, including ancillary services, investment funds, collective asset management and centralized management of financial instruments, sale of financial products, including credit securitization , public purchase and exchange offers, stock market contracts “(thus Article 1, paragraph 1, letter d, of Legislative Decree No. 5 of 2003).

Indeed, the need, at the time of the corporate reform, to provide an ad hoc provision in this regard is a further criterion of interpretation of systematic order, pursuant to art. 12 of the preleggios, in the sense of that exclusion: in a situation in which, in addition, the statement of the art. 1, paragraph 1, lett. b) of Legislative Decree no. 5 of 2003 is (except for grammatical adjustments not at all relevant in the speech de quo) identical to that of the current art. 3, paragraph 2, lett. b) of Legislative Decree no. 168 of 2003.

The following principle of law must therefore be stated: “There is no dispute over the jurisdiction of the court specializing in business matters concerning the purchase of shares in the capital of the same bank under a financial investment contract, in which the complainant, pursuant to Legislative Decree of 24 February 1998, no. 58, the violation of the provisions regulating the provision of investment services and the failure by the bank to comply with the legal rules of conduct imposed on financial intermediaries “.

Since the declaration of lack of competence made by the contested order is not compliant with the principle stated, the appeal must be upheld, with the declaration of competence of the Court of Treviso, to which the deeds are referred for continuation and the liquidation of the expenses of the present procedure.

The Court declares the competence of the Court of Treviso, before which it remits the parties and orders the liquidation of the costs of the regulation.

Source Supreme Court of Cassation