Even those initially excluded will be able to participate in the Fund
Victory at the Council of State. Even those savers initially excluded from the Savers’ Compensation Fund established by the Ministry of Economy and Finance (MEF) after the Banca Marche, Cariferrara, Banca Etruria e Carichieti, Popolare di Vicenza and Veneto Banca crack, they will now be able to participate in the Fund and have their compensation claim reviewed.
The Council of State with sentences dated 5-11.6.2024 accepted the thesis of the legal pool ofNational Consumers Union, readmitting savers whose request for compensation had been rejected for not having proven the existence of “massive violations”a necessary requirement to obtain a refund.
For the Council of State, however, “the shareholder/bondholder clearly indicated the massive violation and, even more importantly, attached the relevant supporting documentation, but these circumstances were not considered by the Technical Evaluation Commission”.
“Now the way is open for compensation. The Council of State has put an end to the judicial dispute which pitted some shareholders and bondholders of Banca Marche against the Mef, recognizing the right actions of savers who have regularly justified their requests for reimbursement,citing well-founded massive violations. It should not be forgotten that these massive violations were further confirmed with the sentence of the Criminal Court of Ancona, which sentenced the Bank’s top management to a total of 118 years in prison”says the lawyer. Corrado Canafoglia, head of the pool of lawyers of the National Consumers Union, together with the lawyers. Carlo Canafoglia and Salvatore Menditto of the Ancona Bar.
“The verification of such widespread defaults, implemented by the credit institutions, should have led to the positive evaluation of the compensation requests. We now hope that the Mef will follow up on what was established by the Council of State, quickly recognizing the fair and due compensation also to these defrauded investors of the credit institutions placed in liquidation with the Save-the-Banks decree” concludes the lawyer. Carlo Canafoglia.
Below is the reconstruction of the story. After the collapse of the various banks and the establishment of the Savers’ Compensation Fund by the MEF, 150,000 savers out of approximately 500,000 defrauded shareholders and bondholders submitted a request for compensation and the majority were reimbursed.
For some of these, however, the Technical Evaluation Commission, established by the MEF, rejected the request for compensation, deeming the existence of “massive violations” not proven, a necessary requirement to obtain reimbursement.
The Lazio Regional Administrative Court, with sentences dated 16.3.2023, accepted the appeals of the shareholders and bondholders of the former Banca Marche, considering the refusals to reimburse to be affected by “violation of the law and excess of power due to lack of investigation and motivation” and ordered the Technical Evaluation Commission of the MEF, and to Consap spa to “conform to the decision adopted”, but the latter not only did not proceed with a new investigation, on the contrary they challenged the sentences before the Council of State, claiming that the savers had not provided even before the TAR Lazio, “….suitable proof of violations attributable to the bank committed in relation to the specific investment…and would not have adequately responded to the request for further information, data and documents necessary in relation to the peculiarity of the case” .
Now the Council of State, with sentences dated 11-5.6.2024, has underlined that “if the Technical Commission had examined the reimbursement request… it would have been able to verify that the documents and explanatory notes had been attached” And “these circumstances were never considered during the entire administrative procedure, as noted by the Lazio Regional Administrative Court, which rightly clarified and stigmatized the deficiency and incompleteness of the investigation carried out by the appointed bodies (Technical Evaluation Commission of the MEF – Consap spa)”.
Furthermore “the unfoundedness, in fact even before in law, of the thesis of the appellant Ministry is clear, where, without mentioning in any way the documentation filed by the shareholder, it derives from an incorrect reconstruction of the regulatory framework, which totally and unfairly neglects the information asymmetry that characterizes the investor’s position, a disproportionate burden on them, even when, as in the present case, he has demonstrated that he hasoffered the Commission all the elements useful for analyzing the compensation request”.
Finally, the Council of State concluded, “the competent Technical Evaluation Commission had and has the obligation to take action, without taking refuge behind sterile and exhausting formal rituals which neglect and further penalize the intrinsic weakness of the investor(placed in a condition of information asymmetry with respect to data and information – often kept silent by the banking institutions – in a gloomy picture of serious and generalized illegality within the banking institutions themselves, also proven by the recent results of criminal judgements), and to examine the documentation filed by the applicant”.
