Spain: Review Of The Case Law Of Complex Financial Products In Spain 2017

Last Updated: 9 November 2018
Article by Jordi Ruiz De Villa


Welcome to the sixth edition of the JAUSAS Review of Complex Financial Products.

The criteria followed to determine the scope of the study remains unchanged from the previous edition. The Provincial Appellate Court (Audencia Provincial) rulings refer exclusively to swaps and structured products, as those relating to preferred stock and subordinated debentures continue to be upheld in almost all cases. We have maintained the same criteria as in previous years with regard to Supreme Court (Tribunal Supremo) rulings, and have examined decisions on swaps, structured products and preferred stock. With regard to these latter, the trend set by Provincial Appellate Courts in upholding almost all claims seems to be supported.

In preparing this study, the CENDOJ and Westlaw (Aranzadi) databases of Provincial Appellate Court and Supreme Court rulings have been used.

As in previous years, Provincial Appellate Court rulings have been classified by product, and the number and percentage of decisions handed down in favour of and against investors has been indicated. We have also divided the decisions analysed into private investors and SMEs, in consideration of the still notable differences between success rates of the claims filed by each group. In addition, we have compared results from previous years and have drawn conclusions on how data have performed over time.

For Supreme Court rulings, the decisions in favour of, and against, investors this year have been compared with those of previous years, and each product has been studied separately.

Likewise, we have highlighted the most important rulings of 2017 in the Supreme Court and the Provincial Appellate Courts, as well as those from the first quarter of 2018, including some First Instance decisions.

Copyright Jausas Legal y Tributario SLP.


After some years in which the number of court decisions against financial institutions soared, 2016 and 2017 have seen a drop in the number of rulings.

The rulings handed down on appeal dropped from 512 decisions in 2016 to 409 rulings in 2017, due to the sharp drop in claims filed for swaps, despite these continuing to be considerable.

Meanwhile, Supreme Court rulings have doubled, from 79 to 158 in just one year. This number of rulings is unprecedented and, according to Professor Angel Carrasco Perera, they represent half of the rulings of the Civil Chamber of the Supreme Court. (1)

In terms of financial product, only from the perspective of swaps and structured products, there has been a positive avalanche of civil and criminal claims related to the collapse of Banco Popular, which has had some bearing on first instance rulings that will be included in the observatory once they reach the appeal stage.

For the swap, which is the star product of this study, we must highlight that comparisons since 2012 show that, over the past six years, Provincial Appellate Courts have decided in favour of investors on 3,410 occasions. Of those, 2,075 were small and medium enterprises (SMEs) and 1,335 were private individuals. This fact shows the extent to which there has been generalised bad practices in the marketing of swaps.

The Supreme Court ruling of 19 February 2018 on swaps is of particular interest, as it changes the legal doctrine relating to the time bar on annulment due to invalid consent, and indicates that, as of that ruling, the period will be calculated from when the swap agreement matures (rather than on the occasion of the first negative settlement). This will mean that, on the one hand, there may be a rise in the number of claims brought by investors who signed very long-term swaps (normally for very high monetary amounts). On the other hand, the success rate for the investor will rise because many Provincial Appellate Courts (and the Supreme Court thereafter) will consider the deadline countdown to start as of the first negative settlement.

Moreover, we must also highlight the decision of the Spanish National Markets and Competition Commission (CNMC) of 13 February 2018, which imposed a hefty fine of 91 million euros on Caixabank, Banco Santander, BBVA and Banco Sabadell for the sale of derivatives above market price. The decision is an important one because: a) the claimant was a company, operating in renewable energies; b) it documents the existence and widespread nature of bad banking practice by financial institutions in project finance products marketed between 2006 and 2016; c) it highlights that the obligations of loyalty, transparency and information of the financial institution are equally enforceable when the client is classified as a professional investor; and d) it clarifies the obligations of financial institutions and the agent bank, ruling for investors in respect of certain issues that arise in multiple civil proceedings (particularly when the claim amount is high).

The decision of the CNMC was the motivation behind the creation of the first JAUSAS "Observatory on the Case Law of Financial Derivatives at Renewable Energy Companies in Spain" (Observatorio de Jurisprudencia de Derivados Financieros en Empresas de Energías Renovables), the results of which are much more favourable to the investor than those of the general analysis of this report.

For structured products, the report shows that success rates of investors have levelled out.

Our findings on the products included in the observatory show that the foreseeable trend is that the number of lawsuits will increase (as will the number of rulings), particularly those affecting renewable energy companies and interest rate derivatives, where there are big sums of money involved.


1 CARRASCO PERERA, Ángel. Professor of Civil Law of Universidad de Castilla-La Mancha, Academic director of Gómez-Acebo & Pombo. El estado actual de la jurisprudencia sobre la validez y nulidad de los contratos de permuta financiera (swaps). May 2017.

To view the full article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions