Hence, it can be observed that its assertions in this regard are not sufficiently founded.
This is what occurs, for example, when, on analyzing the other 11 judgments of the
Contentious-Administrative Tribunal, it states that “the arguments submitted regarding
defects of consent or non-compliance with the obligation to provide information were
not verified in order to confirm whether or not these had been constituted” and that
“[h]ence, similarly, […this] tribunal […] made an incomplete examination of the claims
submitted to its consideration,”44 to conclude that the State violated the said Article
25(1) to the detriment of 12 of the individuals who filed the said appeal for
annulment.45
The judgment’s ruling on this aspect is insufficiently founded because, in addition, it
departs from what it had indicated as regards, “the Contentious-Administrative
Tribunal considered that the consent required by article 31 of Law 17,613 could be
express or implied”; that, based on this, it “understood that the petitioners had given
consent based on elements such as: (i) signed contracts of “General Conditions for
Administration of Investments”; (ii) specific instructions given by clients to the Banco
de Montevideo; (iii) the reception by the petitioner of bank statements showing the
respective operation, without the petitioner raising objections or making observations,
as established in article 35 of Law 6,895; (iv) the interest rates enjoyed by the
petitioner, for his share in the certificates of deposit or other product, in the
understanding that they enjoyed interest rates that were considerably higher than
those offered on fixed-term deposits in the Banco de Montevideo and were also
significantly higher than market rates, and (v) the petitioner’s investment profile or
regularity in regard to such operations”; that “[t]he first two elements were considered
elements of express consent and, regarding the others, it indicated that they could
constitute forms of implied consent under banking practice”; that it “indicated
repeatedly that, under banking law, both banking norms and banking practice were
applicable, so that ��implied consent, and verbal orders by the clients, even by
telephone, constitute a reiterated practice under banking law that has give rise to
general awareness (‘opinio juris’) of their existence and compulsory nature.”46
In other words, the judgment indicates expressly that the Contentious-Administrative
Tribunal analyzed and ruled on the requirement established in article 31 in terms of
“without their consent.” Nevertheless, it is true that it did not do so with regard to the
defects that, in some cases, could have impaired this consent, because it considered
that its function was to rule on the appeal for annulment filed “against the final
decision of the Board of the Central Bank,”47 which, in turn, had expressly considered
that “the declaration of the annulment of the acceptance of the investment, and any
contractual responsibility for the unsuccessful operations carried out that involved
error, fraud or negligence, necessarily constitute[d] jurisdictional decisions that
exceed[ed] the sphere of the powers granted to the Central Bank of Uruguay under
article 31 of Law 17,613.”48
44
Para. 218.
45
Para. 220.
46
Para. 156.
47
Para. 205.
48
Paras. 95 and 134.
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