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ADICAE is always present in Europe in financial services issues and to represent small shareholders, as in studies we realise troughout projects with the European Commission.
Study on small shareholders as consumers.
The new concept of shareholder, investor and consumer. Defense of the small shareholders and needs for the future.
This analysis deals with the small shareholders in their consideration as consumers. It results of a perception of the situations and daily problems of the small shareholders who are defenseless within the European and national legal framework due to the consideration and legal treatment of them as owners of a proportional part of the companies of which they are shareholders and not like consumer-economizers who use investment products whose rentability is a "service" that they obtain from third.
Reality always goes in front of Right, and perhaps in this case, reality has been distanced so much of right, that the modifications of this last one are not able to approach the objective of defending and informing the small shareholders, simply by the fact of not reforming from beginning, if the small shareholder is really owner in a certain percentage of one enterprise/inheritance or simply one saver who has chosen a product of investment with variable rent absolutely outside his will.
Sadly, Spain has become an excellent example of the different situations and problems in which are the small shareholders and investors involved. Throughout this opinion the analysis will take advantage of the problems lived in the cases: Values Agency AVA, Values Agency Gescartera, Credits in shares of Banesto, Shares and insurances "Unit Linked" of Eurobank, "Directive Dinámiva", investment in the Argentinian National debt through Fibanc and other organizations, OPA of Terra from Telefónica, closing of "Recol Network", commercialization of atypical deposits in the majority of the banking organizations especially the cases of Caja Rural de Valencia, Caja de Ahorros de Navarra, and BBVA, the investments of BBVA in hidden paradises, and the negotiations behind closed doors of the shares of Dragados and Vallehermoso of the BSCH and Metrovacesa of the BBVA. All these cases have produced great losses to the Spanish economizer-investors and they have put them in situations of serious difficulty to defend its interests, and in addition they have shown the problems of the different legal instruments to defend the inversors.
In this study we made an analysis of the concept shareholder as consumer in the legislations from which a legal position at the present time is clearly obtained, simply a small shareholder is nowadays not considered a consumer, and in some cases consumer to the small-investor does not consider itself either, and for this reason it is regulated in continuous form the protection and provided information to shareholders and investors to protect them, but without considering them, consuming and applying the predicted legislative norms for the defense of such.
In this way they are not able to head off the problems of the small shareholders and investors, since the contracts and the decisions of "Financial Engineering" adapt to the continuous normative changes of market regulation, fiscality and information to the investor generating new financial products and "upsets" in the value markets that respond to the objectives of generating benefits for the financial organizations and some quoted companies but in many cases do not protect or load the losses of the small investors.
Study on Guarantee Funds in financial services.
The defense of the consumers before insolvency situations of the banks, insurances and investment services.
Throughout history most of the states at any moment they have experienced more or less intense episodes of financial crises, although nevertheless the causes that cause them continue being not known. The economic cycles, factors as an alteration in the general economic situation and, specially, the incorrect management of the operators, are, doubtlessly explanatory elements of these, although of little sustenance in which is related to the search of efficient solutions that manage to avoid them. To such an extent that can even be said that the history of the financial crises is also the one on the attempts to avoid its repetition as well as its more negative effects.
The extension and improves of the information levels provided to the customer, the regulation and supervision of activities and the intervention of the authorities are some of the formulated proposals trying to mitigate the effects of such periods. Although in this problematic one it deserves special attention knowing how the different legal orderings solve, each one in its way, the situations of economic crisis of the credit organizations, still more when it is evident that as a result of the liberalization process that historically have been producing in all the European states exist a greater preoccupation for the subject, until the point that the figure of the guarantee fund which we will approach, it occupes a position of especial attention in the financial field as measurement of fundamental protection to endorse to the economizer-investor before possible situations of risk, and is that even from the own European Union has been tried to equip to all the States with minimum covers forehead to the appearance with these financial crises.
Although already the Directives relative to insurances forced the insurance companies at the time of guaranteeing their solvency to have certain amount of own resources, in which was called “margin of solvency", when it is possible to speak of a real European legislation in the matter is from the publication of the Directive 94/19/CE relative to the guarantee systems of deposits and the Directive 97/9/CE, relative to the indemnification systems of the investors.
With such norms they tried clearly in the communitarian scope to create an harmonization related to the Guarantee Funds in the banking and values sector, so that any citizen of the European Union could open a banking account in any State member and carry out banking transferences towards or from this account with complete surety.
Nevertheless, this wanted harmonization has not been fulfilled, coexisting in the communitarian scope diverse and distant levels of protection that cause a great insecurity in the consumer.
For all these reasons, we have analyzed, among other questions, mainly the problematic ones to, which in this scope faces the consumer - user - investor, to develop simultaneously diverse proposals of normative evolution to obtain the most beneficial possible homogenization and improvement of the European legislations.
Study on general conditions and unfair terms in financial contracts.
The adhesion contracts and the judicial and extrajudicial injunction.
General conditions of the contracts are direct consequence of a market that has gone in a constant evolution, characterized, among other circumstances, mainly by a continued growth of the mercantile traffic. Concretely, they are the result of a necessity of the suppliers, they have to distribute an important number of products or homogenous services, and for it they need speed, agility and fluidity, reason by which, they are forced to make homogeneous the contracts by which they carry out the sale, distribution or provision. They do not have time to negotiate individually each agreement or contract in a meticulous form, but it is created a contract model that obligatorily must be signed by all that wish to acquire the product. They are called “Adhesion contracts”, whose content is settled down beforehand in general conditions that rarely undergo modifications by particular exigencies of the clients, who are practically forced to contract with the conditions imposed by the supplier.
The practical result of the use of this type of contracts has two opposed faces, in one side it is unquestionable the enormously benefices that for consumer and supplier is the rapidity and fluidity in the traffic that they originate, and mainly the rationalization of the economic activity that they generate, allowing a cut in the product costs; on the other hand we are whereupon at the same time they can be the origin of abuses and imbalances of the contracts that seriously harm the consumer, mainly because in the subscription of these "adhesion contracts" is obvious that an equality between the contracting parts does not exist, because the supplier always shows a privileged position which makes possible to him to impose his will to consumers, tending in addition "to overprotect himself" introducing all type of clauses that guarantee their interests, mainly in which are adjacent elements to the main object of the contract. Consumers do not have any possibility of negotiating the content of contracts, but their clauses are imposed to him, limiting in this way his capacity of decision.
It is at this point where appears the main problematic question for consumers, because if we do not discuss the contract to adapt it to the concrete interests of the consumer, the result in many cases is that the specific needs of the client-consumer are not covered.
The European legislator has not been able to be away of this problem and he has tried to create a norm that mainly protects the consumer of the abuses that through these contracts are originated to the consumer on the side of the supplier, mainly considering that such measures are essential to obtain the communitarian objectives of an inner market without borders and where it is guaranteed the free circulation of goods, people, services and capitals. It is for this reason that different norms arise, a communitarian and state level, to regulate such situations. Nevertheless, the experience has demonstrated that neither these, nor the other norms and measures existing at the moment, have been enough to obtain an efficient protection of the consumer, because as it happens commonly, the trap of the supplier always goes in front of the norm of the turn legislator, and thus in most of the situations it occurs when the existence of a certain unfair term in an precise type of adhesion contract is stated, or have been signed hundreds or even thousands of them by the off guard consumers, much more at the moment with the technology, where the contracts can transfer borders very easily (electronic bank, distance sale, etc.).
For all these reasons, we have analyzed, among other questions, mainly the problematic ones to which, in this scope, faces the consumer-user, to develop simultaneously diverse proposals of normative evolution to obtain an homogenization and improvement of the European legislation the most beneficial possible for the European consumer, emphasizing mainly what is referred to actions and preventive measures, and it with a special attention to the financial consumer scope, that due not only to its important number, but also, to the high economic quantities they move, and mainly, to the technical - legal difficulties that entails normally its interpretation and understanding, it is one of the sectors where the adhesion contracts have been more questioned, specially in which talks about the called “retailer bank" and the "values contracts".
Study on Codes of Conduct, transparency and self-regulation: towards one double way of protection of the European consumers, legislation and self-regulation.
The self-regulation could be defined as the set of agreements or rules that is established by those who elaborate it and they take it to the practice and whose pursuit is into the hands of the own ones implied.
The self-regulation is translated into the approval of a series of codes that receive different denominations: of conduct, of good practices,
This normative system has its advantages and its disadvantages. As advantages we can stand out that the self-regulation implies a commitment between the lenders of services when accepting the fulfilment of the code. It can mean greater confidence of the consumer because he has a previous information of how its relation with the lender of services is going to be developed whose activity is governed by a code of conduct. On the other hand, it avoids behaviours of disloyal competence between the own suppliers. And, finally, this system is more agile to be adapted to the changes of the social reality that the extremely heavy and slow legislative machineries of the States, being able to be of special utility with regard to the complex, dynamic and always changing industry of the financial services.
Nevertheless, the self-regulation has many inconvenients for consumers, especially in the financial scope: In first place, its essence is its will, reason why it lacks the binding or coercive force of another type of norm. Generally in its elaboration do not take part the own consumers through their representative organizations. In addition the non-observance of the rules of the codes of conduct ordinarily does not carry in an automatic way a right of reparation or compensation in favour of the consumer. These codes of conduct if they are not published in an Official Journal lack the necessary publicity that prevents in great extent that the consumers could know its content. These disadvantages would be attenuated in great extent if consumers could take part, through their representatives, in the elaboration as much as in the conflicts resolution system derived from the breach of codes, mainly through arbitration bodies.
Most of the Codes have a purely voluntary character, in the sense that they do not foresee any sanction by their breach. It is more doubtful that in this case they could be considered in strict sense as part of the normative structure of the processes. Although, in the measurement in which indeed they are fulfilled, they regulate consensually very important aspects and tend to acquire force to force.
An excessive tendency exists to regulate the activities of the financial operators through self-regulation, ethical codes and codes of good practices, which limit the protection of the consumer due in one hand to its observance controlled generally through administrative bodies without being executives their decisions and in another hand its elaboration is made behind the public opinion and without giving significant intervention to the own consumers, we found an example of it in the mortgage scope in which an agreement of good practices had the intention of reducing the level of protection acquired by the Spanish consumers in relation to the lack of entailment of the precontractual informative brochure.
Study on the new forms of saving-investing: tangible goods
Contracts with repurchase commitment.
The small economizer-investors, acquire tangible goods, and philatelic values through sale contracts of these values with repurchase commitment - in which a yield or interest on the side of the institution of investment in philately goes implicit. In this way the purchase of philatelic values becomes the acquisition of values of fix rent (the speculation on the value of the philatelic value is supported by the institution of investment in philately, normally, where the philatelic value in most of the occasions acts for the economizer-investor as guarantee in front of a possible non-payment on the side of the institution of investment in philately).
Lack of regulation as financial market.
ADICAE consulted to National Bank of Spain, the CNMV and the DGS on the responsibility of the authorities of controlling the financial markets on this type of investments, before which they answered that the acquisition of philatelic values was not an investment in values (they do not quote in regulated markets) and therefore the competent authority was the Consumer National Institute, as before any purchase of a consumer good.
Doubts for consumers.
Are safe these investments? Are safe the institutions that sell this type of products?
Study on general conditions and unfair terms in financial contracts
The adhesion contracts and the judicial and extrajudicial injunction.
General conditions of the contracts are direct consequence of a market that has gone in a constant evolution, characterized, among other circumstances, mainly by a continued growth of the mercantile traffic. Concretely, they are the result of a necessity of the suppliers, they have to distribute an important number of products or homogenous services, and for it they need speed, agility and fluidity, reason by which, they are forced to make homogeneous the contracts by which they carry out the sale, distribution or provision. They do not have time to negotiate individually each agreement or contract in a meticulous form, but it is created a contract model that obligatorily must be signed by all that wish to acquire the product. They are called “Adhesion contracts”, whose content is settled down beforehand in general conditions that rarely undergo modifications by particular exigencies of the clients, who are practically forced to contract with the conditions imposed by the supplier.
The practical result of the use of this type of contracts has two opposed faces, in one side it is unquestionable the enormously benefices that for consumer and supplier is the rapidity and fluidity in the traffic that they originate, and mainly the rationalization of the economic activity that they generate, allowing a cut in the product costs; on the other hand we are whereupon at the same time they can be the origin of abuses and imbalances of the contracts that seriously harm the consumer, mainly because in the subscription of these "adhesion contracts" is obvious that an equality between the contracting parts does not exist, because the supplier always shows a privileged position which makes possible to him to impose his will to consumers, tending in addition "to overprotect himself" introducing all type of clauses that guarantee their interests, mainly in which are adjacent elements to the main object of the contract. Consumers do not have any possibility of negotiating the content of contracts, but their clauses are imposed to him, limiting in this way his capacity of decision.
It is at this point where appears the main problematic question for consumers, because if we do not discuss the contract to adapt it to the concrete interests of the consumer, the result in many cases is that the specific needs of the client-consumer are not covered.
The European legislator has not been able to be away of this problem and he has tried to create a norm that mainly protects the consumer of the abuses that through these contracts are originated to the consumer on the side of the supplier, mainly considering that such measures are essential to obtain the communitarian objectives of an inner market without borders and where it is guaranteed the free circulation of goods, people, services and capitals. It is for this reason that different norms arise, a communitarian and state level, to regulate such situations. Nevertheless, the experience has demonstrated that neither these, nor the other norms and measures existing at the moment, have been enough to obtain an efficient protection of the consumer, because as it happens commonly, the trap of the supplier always goes in front of the norm of the turn legislator, and thus in most of the situations it occurs when the existence of a certain unfair term in an precise type of adhesion contract is stated, or have been signed hundreds or even thousands of them by the off guard consumers, much more at the moment with the technology, where the contracts can transfer borders very easily (electronic bank, distance sale, etc.).
For all these reasons, we have analyzed, among other questions, mainly the problematic ones to which, in this scope, faces the consumer-user, to develop simultaneously diverse proposals of normative evolution to obtain an homogenization and improvement of the European legislation the most beneficial possible for the European consumer, emphasizing mainly what is referred to actions and preventive measures, and it with a special attention to the financial consumer scope, that due not only to its important number, but also, to the high economic quantities they move, and mainly, to the technical - legal difficulties that entails normally its interpretation and understanding, it is one of the sectors where the adhesion contracts have been more questioned, specially in which talks about the called “retailer bank" and the "values contracts".
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