Lo scorso mercoledì abbiamo affrontato i c.d. " tango bond " nella nostra trasmissione settimanale con Trentino inBlu Radio . Questa settimana proponiamo una sentenza con la quale la Cassazione è intervenuta in materia di vendita di obblicazioni Argentina ed ha stabilito il principio secondo il quale la banca, prima di effettuare operazioni, ha the obligation to provide the investor / consumer any appropriate information to the case.
The employee of the bank, therefore, must adjust the level of information to be communicated to the customer according to the specific needs of each report, in relation to personal and financial situation of the client, and its prospects / investment purposes.
Supreme sect. The calendar 25 June 2008 17340/2008
[ omitted]
OF THE PROCESS
1. - S. Anthony and AL agreed to trial before the Court of Avezzano spa ** Bank, stating: that in May 1998 he had visited the branch of the Bank of Avezzano to perform a "repo" ending September 20, 1998, having already previously preferred operations of that type I secure form of investment rather than speculative, that, at the suggestion of the employees of the Bank D. and C, which had guaranteed a return equal to 8, 75% net without any risk to the capital, and also reassured by the director, had entered the different investment proposed to them without receiving any specific information, that employees of the Bank Fucino, suggesting that the investment was carried out in line with the guidance given by the actors, had purchased securities issued by South American countries without delivering to the actors on the contract, that September 21, 1998, being returned to the bank to charge back the amount invested, we knew it had suffered a loss over L. one hundred million, in principal, which - because they are actors not to sign before the investment had been made the document on the general risks of investing in financial instruments (which the Bank had sent them only a month after claiming the first subscription without explanation ) and the suggested operation and brought to completion should be defined not adequate - they asked for costs and damages caused to the Bank the operation.
He founded the Bank **, resisting the demand actress. States that it fully complied with the duty of care and fairness in the Consolidation Act on financial brokerage, approved by Legislative Decree no. February 24, 1998, No 58, informing the players about the real nature of the investment and the risks it presents and inadvisable from performing the operation.
By a decision dated December 28, 2000, the rise of Avezzano Court rejected the claim for damages, asking to be paid by the unsuccessful claimant costs.
2. - That decision was upheld by the Court of Appeal L'Aquila with a decision dated October 31, 2003.
2.1. - Just as the first Judge, the Territorial Court has emphasized the fact that, contrary to the assumptions of the citation, S. and A. even before you buy, in May 1998, Mexico 10% bonds for a value of L. 260000000 (Operation which was blamed for the loss which the process), others had bought securities at risk (bonds Telecom Argentina, with order of 8 April 1998).
Hence the reasons, shared conviction of the first judge on the propensity of actors to forms of financial investment and not to secure preservation of capital investments (as, indeed, the operations of repurchase agreements and government bonds, where the risk of capital loss is non-existent against the modesty of remuneration), but in fact hedge, therefore, to higher remuneration, and hence at risk. According to the judges of appeal, the Court has correctly rejected the deposition testimony of the official bank of James, both because it is inconsistent with the underlying documentation (since he only reported transactions in government securities and repurchase agreements), and because position conflict with the Bank agreed, against which - following the resignation - hung proceedings for damages.
The Court Appeals also emphasized that, beyond the formal signing of the card risks (before divestment), the appellants were specifically informed in this case, the risk of a financial transaction not only upon the investment, but also at the time of disinvestment, which occurred not for autonomous choice of the Bank, but under the express orders of the customer, under a custody agreement with administration of securities, without empowerment asset management, for which the Bank was bound to the client's instructions.
According to the Territorial Court in this case is not configurable any liability of the Bank, ne' ai sensi dell'art. 1710 c.c., nè sotto il profilo della violazione degli obblighi di diligenza e correttezza di cui agli artt. 1175 e 1375 c.c., come richiamati dal cit. T.U. art. 21, avendo la Banca adempiuto, nella sostanza, a tali obblighi mediante adeguata informazione ai clienti e, nondimeno, volontariamente disattesa.
3. - Per la cassazione della sentenza della Corte d'appello il S. e l'A. hanno proposto ricorso, con atto notificato il 10 maggio 2004, sulla base di due motivi.
Ha resistito, con controricorso, la Banca **. In prossimità dell'udienza la Banca ha depositato una memoria illustrativa.
GROUNDS
1. - With the former (and misapplication violation under Article. Cpc 360, n. 3, of Legislative Decree no. February 24, 1998, No. 58, Art. 21 et seq. Modif. And of ' art. 29, of CONSOB Regulation No. 11522), the applicants state that, with the proposed action for damages, they, they always direct their investments to form absolutely not willing to risk capital, have complained about the lack of information from the Bank at the time in which they were induced to purchase securities on a South American financial markets, while offering the opportunity to be able to make substantial gains, dall'altro comportavano il rischio - poi verificatosi -di veder ridotto in modo considerevole il capitale investito a causa della eccessiva instabilità dei mercati. Le operazioni suggerite dovevano ritenersi, a norma dell'art. 29, del regolamento CONSOB n. 11522, assolutamente non adeguate alla tipologia dei clienti, avuto riguardo alla loro propensione al risparmio e alla loro conoscenza degli strumenti finanziari. Tale disposizione regolamentare - si osserva - non ammette deroghe e non potrebbe essere superata, come invece ha riconosciuto la Corte di merito, da una prova testimoniale (peraltro resa da soggetti a credibilità "ridotta" per essere dipendenti della Banca) che semplicemente riferisca sul fatto che vi è stata la dovuta informazione.
the contrary, that fact must be based on objective information provided by regulations CONSOB, in particular, the delivery of the disclosure document prepared by the bank (the so-called sheet risks).
2. - The second half complaint insufficient and contradictory grounds under art. 360 cpc, number 5. With it, the applicants complain that the Court's decisions have considered that the information rendered by employees had proven insufficient to provide all the necessary explanations to make financial transactions.
If there is an obligation (the risk of delivery of the card), it can not be ignored it 'been replaced by an oral information which, although correct, does not exceed the reasonable doubt as to its recepibilità by the customer.
The Court would be "limited to incorporate the considerations already expressed by the first judge on the credibility of the texts employed, forgetting an important step to deepen as the one linked to the date of the resignation of the heads D., who made His testimony is not inconsistent with the documents submitted, however, to give adequate reasons on the logical reasoning - juridical texts below to credit the employees of the Bank even if contrary to the rules laid down by the single ".
The decision under appeal is also contradictory. The Court of Appeal, in fact, after confirming that the divestiture must be preceded by a correct client information on the risks associated with the transaction, held that the operation could be discouraged enough to integrate the correct information request from the norm. The judges of appeal, without dwelling on the personalities of clients and their cultural level, they mistakenly concluded that the simple advice of not making the operation could replace all the material information that the bank had to deliver.
3. - The two reasons - which, given la loro stretta connessione, possono essere esaminati congiuntamente -sono fondati, nei termini di seguito precisati.
3.1. - Ai sensi del Testo Unico delle disposizioni in materia di intermediazione finanziaria approvato con il D.Lgs. 24 febbraio 1998, n. 58, art. 21, (che riproduce l'identica disposizione già prevista dal D.Lgs. 23 luglio 1996, n. 415, art. 17, recante il recepimento, tra l'altro, della la direttiva 93/22/CEE del 10 maggio 1993), nella prestazione dei servizi e delle attività di investimento i soggetti abilitati devono "acquisire le informazioni necessarie dai clienti e operare in modo che essi siano sempre adeguatamente informati" (comma 1, lett. b).
This rule - nell'assoggettare the provision of investment services to a different discipline and more intense than descending from the application of rules of fairness provided by the Civil Code, to require the operator of the duty is play an active role in investor demand for news about his experience and his financial situation, investment objectives and risk tolerance, and properly inform the client in order to put the investor in a position to make informed and reasoned choices of investment or disinvestment.
The double reference to information appropriate and necessary, and the direction of the obligation towards the client indicate that the information should be shaped in the light of the special relationship with the investor, to meet the specific needs peculiar to the individual report. The information requirement in the provision of investment services has received a detailed specification of the regulatory framework introduced by Consob, first with the deliberations. September 30, 1997, No 10943, temporally applicable at the time of purchase (May 1998) Mexico 10% of titles from which this dispute has arisen - then with the deliberations. July 1, 1998, No 11522. The regulatory framework provides, inter alia:
- which authorized the broker can not perform operations until you have provided investors with adequate information on the nature, risks and implications of the specific transaction or service, knowledge of which is necessary to make informed investment choices and disinvestment (CONSOB Delib. 10943, art. 5, paragraph 2; deliberations. CONSOB No. 11522, art. 28, paragraph 2);
- the intermediary, on receipt by an investor is not adequate provisions for operation, informing him of that fact and the reasons why it is inappropriate to proceed with his execution, and that if the investor wishes nonetheless be given during the operation, the broker can do the same only on the basis of an order given in writing (or in the case of orders by telephone, tape recorder), which is made explicit reference to the advice received ( deliberations. No. 10943, art. 6, paragraph 3; deliberations. No. 11522, art. 29, paragraph 3). 3.2. - In this case the Court of Appeal has ruled out any negligence on the Bank, noting that the officer had informed the client of the risk of a financial transaction in question (acquisition and subsequent divestment of Mexico 10% bonds).
The reasoning in the contested decision, the about insufficient. Beyond the
the delivery or otherwise of the document on the general risks of investments in financial instruments (which was not fulfilled in this case, temporal, needed before the investment, given that, with respect to ongoing relationships, the deliberations. CONSOB February 25, 1993, No. 11254, June 30, 1998 was deferred until the obligation of delivery of that document), the argument of the appeal judges, in its generality, not realize what concrete advice and guidance on specific type of risk underlying the transaction have been made to investors and says nothing about the adequacy of information provided by the intermediary, ie, whether it was sufficient to meet the needs of the individual relationship, in relation to personal and financial situation of customers, and above all, does not indicate whether in view of an operation by the Bank considered inadequate, this must have observed the rule that only allows you to give over following an order given in writing where it is explicitly referred to the warnings received.
The decision of the Territorial Court is also wrong in law. Indeed - unlike what is suggested implicitly understood the sentence appeal (which stresses that the transaction took place "not for self-selection of the bank, but because of given customer order, under a custody agreement with administration of securities, without empowerment asset management ") - the extent to which the provisions concerning information and operations adjustments will be applied even where the service consist of the performance provided by the intermediary of investors' orders.
The Board believes that the rule under which in the presence of an inadequate intermediary must refrain from implementing the operation unless he has first obtained by the investor and warned that the express authority to act equally on the basis of an order containing explicit refer to the information received, can be applied with respect to all investment services provided in respect of any investor who is not a qualifier operator and with regard to investment services where there is an apparent appreciation of the intermediary, such as in the case of contracts for the administration of investment portfolios, and also where the operation is carried out on customer's instruction, how, exactly, when the service is being provided for trading or reception and transmission of orders.
This interpretation seems to be preferable because of the nature and purposes underlying the information duties imposed on intermediaries investment in services (services in which falls next to the portfolio management, execution of orders on behalf of clients of the cit. Consolidated Act on Financial Intermediation, Art. 1, paragraph 5, in the wake of As already envisaged by Legislative Decree no. 415 of 1996, Art. 1, paragraph 3), both in view of the wording of, cited above, regulatory legislation from the CONSOB, which, on the one hand, requires that it be provided adequate information on the nature, risks and implications of the specific transaction before recommending not only provide the service operations or management, but also to carry out transactions with or on behalf of the investor, and, on the other verso, fa esplicito riferimento al caso in cui l'intermediario abbia ricevuto dall'investitore una disposizione per effettuare una operazione non adeguata. Nè, a questo riguardo, rileva la circostanza che, in epoca immediatamente precedente all'effettuazione in questione (appena un mese prima), il cliente avesse acquistato altri titoli a rischio (obbligazioni Telecom Argentina): giacché il dovere di fornire informazioni appropriate e l'obbligo di astenersi dall'effettuare operazioni non adeguate per tipologia, oggetto, frequenza o dimensioni, se non sulla base di un ordine impartito dall'investitore per iscritto contenente l'esplicito riferimento alle avvertenze ricevute, sussiste in tutti i rapporti con operatori non qualificati, e tale is also some - not falling into one of the special categories of investors mentioned in the regulations CONSOB (Delib. No. 10943, art. 8, paragraph 2; deliberations. No. 11522, art. 31, paragraph 2), and occasionally has previously invested securities at risk. 4 .- The appeal is upheld as a reason.
The sentence is under appeal and quashed the case back to the Court of Appeal in L'Aquila.
The Judge of the court - which also provide in order to pay the costs of appeal - will conform to the following principle of law:
"In terms of services investment, the intermediary bank, before operations, has the obligation to provide investors with adequate information in practice, namely that to meet the specific needs of each report, in relation to personal and financial situation of the client; and, in the face of an inadequate (in this case, relating to Mexico 10% bonds), can give the course only after an order given in writing by the investor as it is explicitly referred to the warnings received. Operativity of that rule - applicable even when the service supplied by consists in the execution of orders - does not preclude the fact that the customer has previously acquired another title at risk (in the case: Telecom Argentina bonds), because this is not enough to make operator qualified under the rules dictated by the CONSOB regulations.
PQM
The Court accepts the appeal as of right; case the decision under appeal and refer the case, including for the costs of appeal, the Court of Appeal of Aquila, in a different formation.
Decided in Rome, in the Council Chamber of the First Civil Chamber of the Supreme Court of Cassation, May 28, 2008.
deposited at the Registry June 25, 2008
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