On 15 September 2021, the Supreme Court published an order declaring the inadmissibility of the appeals (extraordinary appeal for procedural infringement and cassation) filed by BANCO SANTANDER against the judgment of 8 March 2019 handed down by the Provincial Court of Zamora which upheld the judgment of Benavente Court of First Instance No. 1. In the first instance judgment, the plaintiff’s claim was upheld, declaring the nullity of the contract for the purchase and sale of shares in BANCO POPULAR (now BANCO SANTANDER) on the occasion of the capital increase carried out by the plaintiff in 2016.

The upholding of the claim led to the reimbursement to the plaintiff of the payment made for the purchase and sale of the shares plus the interest accrued since the subscription of the securities. The facts that gave rise to the proceedings were considered as “notorious facts” by different first instance and Provincial Court rulings (among others, in SSAP of Girona of 22 July 2019, 28 June 2019, 14 October 2019 and 22 October 2019, SAP of Zamora of 19 September 2019, SAP of León of 20 September 2019 and SAP of Asturias of 2 April 2019). In all of them, the nullity of the BANCO POPULAR share purchase contract was declared on the grounds that the information issued in the issue prospectus did not coincide with the real situation of the entity. This resulted in the purchasers acquiring shares in an entity which, a priori, appeared solvent and which, unfortunately, a few months later was transferred to BANCO SANTANDER for 1 euro due to lack of liquidity.

The appeal lodged by BANCO SANTANDER was based on the infringement committed by the courts of first instance and appeal by interpreting articles 1265 and 1266 of the Civil Code in a manner contradictory to the case law of the Supreme Court. For its part, the extraordinary appeal for procedural infringement alleges infringement of Article 24 of the EC, claiming the existence of an error in the assessment of the evidence. Faced with these petitions, the Supreme Court rejected both appeals because it considers that there is no contradiction between its doctrine and the interpretation of the aforementioned articles and reiterates its function, in this field, of respecting the assessment of the evidence carried out by the Courts of Appeal. Therefore, this order of the Supreme Court confirms the aforementioned judgments of the Provincial Court of Zamora and first instance of Benavente which declared the nullity of the share purchase agreement made on the occasion of the capital increase of BANCO POPULAR in 2016.

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