Opinion of the Advocate General — ECLI:EU:C:2021:119
Date: 2021-02-11
Language of the case: Spanish
Subject matter: Right of establishment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, that it was not appropriate to refer the 
question for a preliminary ruling, because liability for a prospectus is not covered 
by Directive 2003/71/EC of the European Parliament and of the Council of 
4 November 2003 on the prospectus to be published when securities are offered to 
the public or admitted to trading and amending Directive 2001/34/EC. It also 
claimed that, in Spanish law, if a prospectus is issued, liability arises in any event. 
FOUR. Bankia S.A., the defendant and appellant on appeal, … claimed, in 
summary, that the question that had arisen was not resolved by the EU case-law 
and should therefore be referred. 
LEGAL BASIS 
ONE. Subject matter of the dispute 
1. In 2011, Bankia S. A. issued an offer of shares to the public (oferta pública 
de suscripción de acciones, ‘the OPS’) for the purpose of becoming listed on the 
stock exchange. [OR. 3] 
2. The offer was divided into two tranches: one tranche for retail investors, 
employees and directors (60% of the shares offered) and a second tranche (the 
remaining 40%) for qualified investors, the ‘institutional tranche’. 
In the first tranche, the maximum sums that could be invested were EUR 10 000 
(employees and directors sub-tranche) and EUR 250 000 (retail sub-tranche). 
For the second tranche, with minimum investment of EUR 60 000, the prospectus 
established two bands: 
(a) 50% of the shares had to be offered to the professional investors defined in 
paragraphs (a) to (d) of Article 78 bis (3) of the Ley del Mercado de Valores (Law 
on the Securities Market, LMV) of 1988, that is to say, entities subject to public 
authorisation or regulation, such as credit institutions, investment services 
undertakings, insurance companies, collective investment undertakings and 
pension funds and so on, public bodies and large businesses; 
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(b) the other 50% could be offered to the professional customers under 
paragraph (e) of Article 78 bis (3) (‘other customers who previously so request 
and who expressly decline to be treated as retail customers’). 
3. For the institutional tranche, as for the retail tranche, the offer timetable 
began to run from the time the CNMV (Comisión Nacional del Mercado de 
Valores, Spanish Securities Market Commission) registered the prospectus 
(29 June 2011). 
The ‘book-building period’, in which potential qualified investors could submit 
subscription bids, ran from that date until 18 July 2011. 
In that period, the placement agent (Bankia Bolsa) would carry on ‘activities to 
disseminate and promote the offer with the aim of obtaining an indication from 
potential investors of the number of shares to which they were prepared to 
subscribe and at what price’. 
On the last day of that period the price for that tranche would be set and those 
subscription offers would be selected that, once confirmed, would become 
irrevocable and give rise to the corresponding shares [OR. 4] being allotted to 
investors (on 19 July 2011) and officially listed the following day.  
4. The share price was set at EUR 3.75, for both the retail and institutional 
tranches. 
5. In the context of the offer, Bankia contacted Unión Mutua Asistencial de 
Seguros (UMAS), a mutual insurance entity, to invite it to subscribe to shares in 
the entity. 
6. On 5 July 2011, UMAS signed a buy order for 160 000 Bankia shares at 
EUR 3.75 each, involving a total disbursement of EUR 600 000. 
7. As a result of the issuer, Bankia, revising its annual financial statements, the 
shares lost almost all their value on the secondary market and were suspended 
from trading. 
In previous proceedings, brought by retail investors, the Tribunal Supremo 
(Supreme Court) has held in several judgments that the issue prospectus contained 
serious inaccuracies about the issuer’s true financial situation. 
8. UMAS brought proceedings against Bankia seeking primarily that the share 
purchase be annulled on the grounds that its consent was vitiated by error. 
In the alternative, it sought a declaration that Bankia was liable on the grounds 
that the issue prospectus was untrue. 
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9. The judgment at first instance upheld the principal claim in the application, 
annulled the share purchase on the grounds of an error vitiating consent and 
ordered restoration of the consideration given. 
10. Bankia appealed against that judgment, and the Audiencia Provincial 
(Provincial Court) upheld that appeal in part, dismissing the action for annulment 
and upholding the claim in liability attaching to the prospectus. The decision was 
based on the considerations summarised below: (i) UMAS is a qualified investor, 
but there is no evidence that it was involved in the OPS in any special way, other 
than generically in its capacity as an investor in the institutional tranche; (ii) 
because retail and qualified investors participated in the public offer, Bankia’s 
disclosure [OR. 5] in the prospectus was also binding on it in respect of the 
qualified investors; (iii) the financial statements were revised because the initial 
statements and the information in the prospectus were not in keeping with the 
principles of showing a true and fair view and of prudent valuation; (iii) the 
inaccuracy of the prospectus gives rise to the liability under Article 28(3) LMV, 
and the action in the alternative should therefore be upheld; (iv) the compensation 
is calculated using the difference between the purchase value ― EUR 600 000 ― 
and the value of the shares at the time the proceedings were brought ― 22 May 
2015 ―, and the claimant is obliged to return the shares and any dividends (plus 
statutory interest thereon from the date on which they were received); (v) the sum 
payable by Bankia bears statutory interest from the date on which the proceedings 
were brought. 
11. Bankia brought an appeal on a point of law before the Tribunal Supremo 
(Supreme Court). In the deliberations with a view to determining that appeal, that 
court decided to make this request for a preliminary ruling. 
TWO. Question at issue in the main proceedings 
A material question at issue in the proceedings is whether, when an offer of shares 
to the public for subscription is aimed at both retail and qualified investors, and a 
prospectus is issued for the retail investors, an action for damages arising from the 
prospectus is available to both kinds of investor or only to retail investors. That is 
to say, whether an institutional creditor can claim under the liability for the 
prospectus, even though, when an offer is directed exclusively at qualified 
investors, there is no requirement to publish that document. 
Also at issue is whether, for the purpose of determining whether the issuer is 
liable, in the case of a qualified investor, account can be taken of the fact that such 
an investor was able to access other sources of information, different from the 
information contained in the prospectus, about the economic situation of the 
company issuing the public offer. 
THREE. EU provisions [OR. 6] 
1. Article 3(2) of Directive 2003/71/EC of the European Parliament and of the 
Council of 4 November 2003 on the prospectus to be published when securities 
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are offered to the public or admitted to trading and amending Directive 
2001/34/EC provides that: 
‘The obligation to publish a prospectus shall not apply to the following types of 
offer:  
(a) an offer of securities addressed solely to qualified investors.’ 
2. Article 6 of that directive, entitled ‘Responsibility attaching to the 
prospectus’, provides: 
‘1. Member States shall ensure that responsibility for the information given in a 
prospectus attaches at least to the issuer or its administrative, management or 
supervisory bodies, the offeror, the person asking for the admission to trading on a 
regulated market or the guarantor, as the case may be. The persons responsible 
shall be clearly identified in the prospectus by their names and functions or, in the 
case of legal persons, their names and registered offices, as well as declarations by 
them that, to the best of their knowledge, the information contained in the 
prospectus is in accordance with the facts and that the prospectus makes no 
omission likely to affect its import. 
2. Member States shall ensure that their laws, regulation and administrative 
provisions on civil liability apply to those persons responsible for the information 
given in a prospectus. However, Member States shall ensure that no civil liability 
shall attach to any person solely on the basis of the summary, including any 
translation thereof, unless it is misleading, inaccurate or inconsistent when read 
together with the other parts of the prospectus.’ 
FOUR. — National law 
1. Article 30 bis (1) of Ley 24/1988, de 28 de julio, del Mercado de Valores 
(Law 24/1988 of 28 July 1988 on the Securities Market) (Offer of securities for 
sale or subscription to the public), in the wording applicable ratione temporis to 
the case, provides: 
‘1. An offer of securities to the public for sale or subscription means a 
communication to persons in any form and by any means, presenting sufficient 
information on the terms of the offer and the securities to be offered, so as to 
enable an investor to decide to purchase or subscribe to those securities. 
The obligation to publish a prospectus shall not apply to the following types of 
offer which, as a result of the effects of this law, will not be deemed to be public 
offers: 
(a) an offer of securities addressed solely to qualified investors’. [OR. 7] 
2. Article 28 of that Law (Responsibility attaching to prospectuses) provides: 
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‘1. Responsibility for the information given in the prospectus must attach at least 
to the issuer, the offeror or the person asking for the admission to trading on an 
official secondary market and the directors of those persons, in accordance with 
any conditions laid down by regulation. 
The responsibility referred to in the preceding paragraph will likewise attach to 
the guarantor of the securities in respect of the information it has to prepare. 
The lead entity will also be liable for any verification work it carries out in 
accordance with regulations. 
Any other persons that take responsibility for the prospectus, provided that fact is 
indicated in the prospectus, and any other persons not referred to above that have 
authorised the contents of the prospectus, will also be responsible, on the terms 
laid down by regulation. 
2. The persons responsible for the information in the prospectus will be clearly 
identified in the prospectus by their names and functions or, in the case of legal 
persons, their names and registered offices. They must also declare that, to the 
best of their knowledge, the information contained in the prospectus is in 
accordance with the facts and that the prospectus makes no omission likely to 
affect its import. 
3. In accordance with any conditions laid down by regulation, all the persons 
referred to in the preceding paragraphs, as the case may be, will be responsible for 
any damage caused to the holders of the securities acquired as a result of false 
information or the omission of material data from the prospectus or from the 
document to be prepared by the guarantor where applicable. 
The action in liability will become time barred three years from the time at which 
the claimant could have become aware of the falsehood in or the omissions from 
the contents of the prospectus. 
4. No responsibility shall attach to the persons referred to in the preceding 
paragraphs on the basis of the summary or of its translation, unless it is 
misleading, inaccurate or inconsistent, when read together with the other parts of 
the prospectus, or it does not provide, when read together with the other parts of 
the prospectus, key information in order to aid investors when considering 
whether to invest in the securities.’ 
FIVE. The need to request a preliminary ruling  
1. Neither Directive 2003/71/EC nor the Spanish legislation expressly regulates 
whether, where a mixed offer to subscribe for securities is made to the public, that 
is to say, one that is addressed both to retail and [OR. 8] qualified investors, 
qualified investors can also bring an action for damages arising from the 
prospectus, bearing in mind that when the issue is directed solely at that type of 
investor there is no requirement to publish a prospectus. 
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The directive does not provide a clear answer to the issue raised since, although, 
on the one hand, it does not require a prospectus to be issued in offers addressed 
exclusively to qualified investors (Article 3(2)), on the other hand, in recital 27, it 
states that investors should be protected by ensuring publication of reliable 
information, making no distinction according to the various types of investor. 
2. If the offer to the public to subscribe to shares (OPS) had been directed 
solely at qualified investors, the prospectus would not have been necessary. 
However, because there was also a retail tranche, a prospectus had to be 
published, which raises the issue as to (i) how effective it was vis-à-vis certain 
qualified investors that, whilst not its intended addressees, could have been 
adversely affected by what the application refers to as serious inaccuracies in the 
economic information disclosed in that document, when (ii) it appears that, in 
such cases, both the EU legislation and the national legislation assume that 
qualified investors have their own capability and means of information enabling 
them to decide whether to invest. 
Nor does the directive provide a clear solution to the issue of whether, even where 
it is found that qualified investors can bring an action for damages arising from a 
prospectus, account can be taken of other sources of information to which they 
had access, on the basis of their previous legal and economic relations with the 
issuer of the OPS, such as, for example, being a shareholder of the issuer 
undertaking, or on its management bodies, in order to exclude the responsibility of 
the issuer. 
3. In the present case, since no ordinary appeal lies against decisions of this 
appeal court and since there are questions of interpretation that go beyond the 
sphere of a single State and involve provisions of EU law, it is appropriate to 
request a preliminary ruling, so that the Court of Justice of the European Union 
can rule on whether an action for damages arising from a prospectus is available 
only to [OR. 9] retail investors and not qualified investors, including where an 
offer was addressed to both types of investor and a prospectus was published, and, 
where applicable, on whether it is possible to assess the extent to which the 
qualified investors were aware of the economic situation of the issuer of the OPS 
otherwise than through the prospectus, on the basis of their legal and commercial 
relations with that issuer (for example, being shareholders of the issuer or 
members of its management bodies, etc.). 
Since the answer to that request is decisive in determining the question at issue in 
the proceedings, 
Having regard for the foregoing, 
OPERATIVE PART 
THE COURT HEREBY: 
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Under Article 267 TFEU, requests a preliminary ruling from the Court of Justice 
of the European Union on the interpretation of Article 3(2) and Article 6 of 
Directive 2003/71/EC of the European Parliament and of the Council of 
4 November 2003 on the prospectus to be published when securities are offered to 
the public or admitted to trading and amending Directive 2001/34/EC: 
‘1. When an offer of shares to the public for subscription is directed at both 
retail and qualified investors, and a prospectus is issued for the retail investors, is 
an action for damages arising from the prospectus available to both kinds of 
investor or only to retail investors? 
2. In the event that the answer to the first question is that it is also available to 
qualified investors, is it possible to assess the extent to which they were aware of 
the economic situation of the issuer of the OPS otherwise than through the 
prospectus, on the basis of their legal and commercial relations with that issuer 
(for example, being shareholders of the issuer or members of its management 
bodies, etc.)? 
… [OR. 10] … [References to service of the decision, decision not subject to 
appeal and signatures] [OR. 11]