The obligations of the financial intermediary and the qualified investor: an analysis of Ordinance no. 29025 of 2025

In the vast and complex landscape of financial market law, the boundary between the protection of the saver and the contractual autonomy of professional entities has always been a subject of intense jurisprudential debate. Recently, the Supreme Court of Cassation, with Ordinance no. 29025 of 03/11/2025, has returned to address a crucial issue: the evidentiary value of the "qualified investor" declaration provided by the investor to the financial intermediary, pursuant to Art. 31, paragraph 2, of CONSOB Regulation no. 11522 of 1998.

The ruling in question, originating from a dispute between the client F., represented by counsel R. N., and the credit institution B., offers significant insights regarding the allocation of disclosure obligations and the burden of proof in investment services contracts.

The scope of the investor's declaration and the exemption from verification for the intermediary

The central issue decided by the Court concerns the effects of the written declaration by which an investor attests to their status as a qualified investor. This status, in fact, significantly reduces the range of information and conduct obligations imposed on the intermediary, based on the assumption that the client already possesses adequate financial expertise. But to what extent can the bank or the intermediary rely on such a declaration?

In financial intermediation contracts, the written declaration, issued by the investor, pursuant to Art. 31, paragraph 2, of CONSOB Regulation no. 11522 of 1998, of belonging to the category of qualified investor constitutes a declaration of knowledge (dichiarazione di scienza) endowed with evidentiary value, which serves to exempt the intermediary from the obligation to carry out further independent verifications in this regard, placing the burden on the investor to prove contrary elements emerging from documentation already in the possession of the intermediary.

As clearly inferred from the legal principle stated above, the Court of Cassation classifies the client's attestation as a true "declaration of knowledge." This means that the act is not a mere contractual formality, but a representation of facts that carries specific evidentiary weight in court. Consequently, the financial intermediary is not required to conduct independent investigations or to question what the client has formally declared in writing.

The burden of proof and the protection of the non-qualified investor

The Supreme Court's decision thus shifts the evidentiary balance in favor of the intermediary. Once the written declaration is produced in court, it is presumed that the investor was indeed a qualified investor. It is up to the latter, should they intend to contest this status to assert the bank's liability for damages, to provide strong contrary evidence.

However, this evidence cannot be based on simple abstract allegations, but must refer to concrete and documentary elements. In particular, the case law identifies the following operational conditions:

• The contrary elements must emerge from documentation that was already in the possession of the intermediary at the time the financial transactions were carried out.
• The client must demonstrate that the intermediary, despite having such documents (e.g., bank statements, previous contracts, profiling forms), could or should have detected the inconsistency of the qualified investor declaration.
• The use of external or subsequent evidence that the intermediary could not have known at the time of the investment is not permitted.

This orientation is in line with the precedents of the same section (such as judgment no. 8343 of 2018), consolidating a principle of investor self-responsibility. Anyone who signs a declaration of knowledge must be aware of the legal consequences that derive from it.

Conclusions on the liability of intermediaries

In conclusion, Ordinance no. 29025 of 2025 reaffirms that the savings protection system cannot translate into an absolute lack of responsibility for the client. Signing a form declaring oneself a qualified investor exempts the intermediary from further checks, unless the documentation already in its possession clearly contradicts such status. For investors, the lesson is clear: maximum caution and transparency in completing banking forms is the primary tool for protecting one's rights.