The EU general lawyer, Tamara Cápetahas proposed this Thursday to EU Court of Justice (TJUE) which puts the right to effective judicial protection of consumers who take part in the litigation started before the dissolution date of the Spanish Popular Bank in 2017.
The dissolution of Popular Bankexecuted by the Single Resolution Board (JUR) and approved by the European Commission In June 2017, it generated a cluster of demands against him. Among which stood out those presented in order to achieve the nullity of the Subscription Contract, either by error or by intent, considering the falsification and concealment of the patrimonial information. In this way, in several cases the plaintiffs requested the declaration of nullity and refund of the amounts paid or, instead, a compensation of the popular for breach of the requirements of transparency and the right of consumer protection when it sold some financial instruments to natural and legal persons.
In this context, the Cápeta General Lawyer It emphasizes that the nature of these actions rests on the allegation illegality of the initial subscription of the aforementioned financial instruments and not in their loss of value consequence of the dissolution.
Thus, remember that the TJUE considered in previous sentences about Banco Popular and Banco Santander that the European Directive which establishes a framework for restructuring and resolution of credit entities, these judicial procedures were opposed for having been initiated once the dissolution decision is adopted. In this way, on September 5, 2024, the TJUE sentenced that those who acquired capital instruments of the Popular Bank, subsequently converted into actions, could not claim the exercise of the responsibility actions or those of nullity of the contract for the acquisition of said instruments, since the adoption of the popular resolution decision had already been taken. Thus, the TJUE dismissed a possible compensation.
However, Cápeta points out that the novelty of this matter is Start of litigation by the plaintiffs prior to the dissolution of the bank. Therefore, he considers that the purpose of the dissolution framework cannot prevail over the Right to effective judicial protection of affected consumers or investors, when exercising these the judicial action prior to the decision of dissolution of the popular.
In this specific case, the appeal who knows the Supreme Court He was filed by an investor, a single administrator of a company, to which he signed convertible bonds issued by the Popular Bank in 2009. Subsequently, the bonds were exchanged by others in 2012 and transmitted to the administrator by the company in payment of pending wages, transforming themselves Mandatory in actions of Banco Popular in November 2015. This implied the change of state of the investor, who became a shareholder of the bank. In October 2016, this filed a Demand against Banco Popularwhere he requested the declaration of nullity of the subscription of the 2009 and 2012 bonds by mistake, considering that the consent was vitiated, and that the initially inverted amount was restored, in addition, compensation for damages.
His demand was estimated in the first instance In May 2017, a month before the Single Resolution Board (JUR) Adopted the decision of Dissolution of Popular on June 7. However, in March 2019, the Provincial Court annulled The judgment of the Court of First Instance for considering that the claim must have been exercised by the company, and not by the investor, which appealed before the Supreme Court.
In this regard, today, Thursday, February 13, the general lawyer has recommended that the Court of Justice attribute a greater weight to the Investor Law To effectively protect their rights derived from the legislation of the Union in the judicial procedures initiated before the decision of dissolution and a weight less than the objective of financial stability, since the latter can be achieved even when priority is granted to the effective judicial protection. However, the opinions issued by the general lawyer do not present a binding character, but they are usually followed by the TJUE.
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