THE APPLICATION OF MIFID REGULATION AND THE ARTICLE 79 QUATER OF THE SPANISH SECURITIES MARKET ACT IN BANKING CONTRACTS IN ACCORDANCE WITH ITS INTERPRETATION BY THE JUDGMENT OF THE COURT JUSTICE OF THE EUROPEAN UNION ISSUED ON MAY 30TH, 2013, THE JUDGMENT OF THE NATIONAL COURT (AUDIENCIA NACIONAL) ISSUED ON JULY 15TH, 2013 AND CASE LAW FROM THE SPANISH SUPREME COURT

Abstract

The application of the so called MIFID regulation is frequently disputed in lawsuits regarding banking contracts. Different criteria on this subject matter has been applied by courts and pointed out by scholars. Thus, in some case law it has been held its direct application, even before its effective transposition in Spain. In other judgments it has been declared that its compliance can only be required after the interim period contemplated (for its implementation by financial entities) in the Spanish regulation had expired. Besides, it has been suggested that MIFID regulation is not applicable to certain cases regarding swaps like the interest rate swap with coverage function pursuant to the article 79 quater of the Spanish Securities Market Act. The last topic is particularly addressed in relation to disputes concerning swaps by the judgments of the Court of Justice of the European Union and the Spanish National Court (Audiencia Nacional) that are analyzed in this article. According to the said case law, the exception contemplated in article 79 quater of the Spanish Securities Market Act is not applicable. Mainly because there is no financial product subjected to the MIFID regulation which is linked to the particular swap of the case. Notwithstanding the above, the conflicting case law regarding the temporal application and the scope of MIFID in relation to banking contracts is also discussed in this article. Some criteria and conclusions on this issue are pointed out in this work.