THE INTERPRETATION OF THE OBLIGATION TO PERFORM THE ASSESSMENT OF SUITABILITY AND APPROPRIATENESS UNDER MIFID REGULATION BY THE JUDGMENT OF THE SUPREME COURT RENDERED ON JANUARY 20TH 2014 AND OTHER CASE LAW

Abstract

It is well known that the so called MIFID regulation established the obligation to entities that provide investment services to classify its clients. Moreover, the said entities have to collect information about the knowledge and the experience of their current or prospective customers in order to perform that activity. This is so when they are providing some investment advice, portfolio management or any other investment service. For gathering the commented information they have to carry out the so called MIFID assessments. The content of the referred obligation and its breach have been interpreted by the Spanish Supreme Court in the sense that when the assessment of appropriateness is missed and advice investment or portfolio management services are rendered a presumption that there is mistake in the formation of the contract will be applied. This doctrine has been complemented by other case law and scholars opinions that are analyzed in this article to frame the subject matter of the said obligation and the legal consequences of its infringement.