CFD broker losses: how to claim in Spain if your CFD or forex broker never warned you

The case, in five lines

What is brought

Action to annul the CFD account contract on grounds of mistake vitiating consent (arts. 1265, 1266 and 1301 of the Civil Code), with restitution of the money paid in, and, in the alternative, an action for damages for breach of the duties to assess appropriateness, to inform and to manage the conflict of interest (art. 1101 of the Civil Code read with arts. 197, 198 and 205 of Ley 6/2023, the Securities Markets and Investment Services Act). If you were reclassified as a professional client, the court is also asked to declare that you should have been treated as a retail client.

Before which court

The sección civil (civil section) of the Tribunal de Instancia (the court of first instance) for the investor's domicile, even if the broker is based in Cyprus or another EU Member State (arts. 17 and 18 of the Brussels I bis Regulation), with appeal to the Audiencia Provincial (the provincial appeal court) and, where available, cassation before the Tribunal Supremo (the Spanish Supreme Court). Admissibility requirement: a written claim to the broker left unanswered within the time limit or answered unsatisfactorily, or a decision of the Servicio de Reclamaciones (complaints service) of the CNMV (Spain's securities regulator), under the seventh additional provision of Organic Law 1/2025.

Deadline

Annulment: a lapse period (caducidad) of four years from performance of the contract (art. 1301 of the Civil Code); the broker will argue that each CFD was performed when the position closed, so the prudent course is to count from the closing of the first losing positions. Damages: a limitation period of five years from when the claim could be brought, in practice from when the loss occurred (art. 1964.2 of the Civil Code). The prior request to negotiate suspends the lapse period and interrupts limitation, but if the broker does not reply in writing within thirty calendar days, the lapse period resumes and the limitation period starts afresh (art. 7 of Organic Law 1/2025).

Who can bring it

Claimant: the account holder who traded as a private individual, with their own money and outside their trade or profession, and any joint holders; heirs may continue the claim. Defendant: the company named as counterparty in the terms and conditions and in the account statements, which does not always match the trading brand: many groups run one entity inside the EU and another outside it, and the claim is brought against the one that contracted with you.

Financial risk

If the claim is dismissed in full, you may be ordered to pay the broker's costs, capped, as regards its lawyers, at one third of the value of the claim unless the court finds recklessness (art. 394 of the Civil Procedure Act); if it succeeds in part, each side pays its own. If the broker refused without good cause to take part in the prior negotiation it was invited to, it will not be awarded costs even if it wins. On top of that comes the cost of the financial expert report. If the broker becomes insolvent, the investor compensation fund covers money it cannot return to you (FOGAIN, up to 100,000 euros, for a Spanish firm; for a firm from another Member State, that country's fund, with its own limit), never your investment losses.

Losing money on CFDs is not a case in itself: how you were made to trade is

The CFDs and forex offered to private individuals are lawful products on which most retail clients lose money. The law does not protect you from the market: it protects you from a broker that breaches its duties. You have a case when the appropriateness test is missing or was a sham, when a manager was directing your trades, when you were reclassified as a professional without meeting the requirements, when you were allowed to trade above the limits the CNMV (Spain's securities regulator) sets for retail clients, or when you were drawn in by advertising that has been banned in Spain since the CNMV Resolution of 11 July 2023. If you opened the account on your own initiative, answered the test truthfully, received the warning and kept trading, the case is weak, and it is better to know that today.

The law treats CFDs as what they are. Article 208.3 of Ley 6/2023 (the Securities Markets and Investment Services Act) expressly excludes contracts for difference from non-complex instruments, so even if the broker merely executes your orders, it is not exempt from assessing appropriateness (art. 207): it must ask about your knowledge and experience, warn you if the product is not appropriate for you and give you a copy of that assessment (art. 205). A Cypriot broker bears the same duty, because it stems from article 25.3 of the MiFID II Directive. The forex sold to private individuals consists, in practice, of CFDs on currency pairs, and a CFD on bitcoin is a derivative subject to these same rules, not a crypto-asset regulated by MiCA.

First of all, check who you contracted with. A broker from another EU Member State may only start operating in Spain without a branch once the CNMV has received the passport notification from its home supervisor (art. 147 of Ley 6/2023), so it must appear on the CNMV's registers. If the firm does not appear on any register, it is not a broker that breached its duties: it is a scam. The route is then a different one: a criminal complaint, which we draft, and a claim against the bank you transferred the money from. This guide is for the authorised broker that let you lose money without doing what the law required of it.

The appropriateness test is the evidence the broker has to produce

Article 56.2 of Delegated Regulation (EU) 2017/565, which applies directly in Cyprus just as in Spain, requires the broker to keep a record of every appropriateness assessment with its result, the warning given to the client if the product was not appropriate, and a note of whether the client asked to trade despite it and whether the firm accepted. That record either exists or it does not. If the broker fails to produce it, or produces one with no date, no warning or no acceptance, the information gap counts against it: the Tribunal Supremo (Spain's Supreme Court) has held that breach of these duties may give rise to a presumption of mistake on the part of the retail client (STS 840/2013 of 20 January 2014, First Chamber sitting in plenary).

A sham test is a common defect in these cases, and it is proved with the broker's own records. A questionnaire that the manager dictated to you over the phone, that could be retaken until you passed, or that credits you with experience your onboarding file contradicts, assesses nothing. Article 55.2 of the same Regulation forbids discouraging the client from providing the information required, and article 55.3 lets the broker rely on what the client declares unless it knows, or ought to know, that the information is manifestly out of date, inaccurate or incomplete. If your file states that you are a maintenance technician who had never invested, the broker could not take you for an experienced trader.

What nobody tells you is that a negative result does not bar you from trading. The rule requires the broker to warn you that the product is not appropriate for you (art. 205.4 of Ley 6/2023 and art. 25.3 of the MiFID II Directive), not to stop you. If you received that clear warning and still carried on, the argument shifts to whether the warning was genuine or just a notice buried among clicks, and whether the manager neutralised it over the phone by telling you it was a form that did not matter: all information addressed to the client must be fair, clear and not misleading (art. 24.3 MiFID II and art. 200.2 of Ley 6/2023). If the broker is Spanish, the contract for a complex instrument must also carry a handwritten statement by the client acknowledging that they were warned (art. 205.6). And if you live in Catalonia, the Catalan Consumer Code goes further for consumers: it does not allow the contract to be made if the test result is negative (art. 252-9.2.b of Catalan Law 22/2010).

The account manager who told you what to buy and when

Many brokers work with “account managers”, “analysts” or “senior advisers” who call, send trading signals through messaging apps, propose specific trades and urge you to pay in more after every loss. If they recommended trades in light of your circumstances, that was investment advice, and advice requires a suitability assessment, far more demanding than the appropriateness test: knowledge and experience, financial situation, including your ability to bear losses, and objectives, including your risk tolerance (art. 25.2 of the MiFID II Directive and art. 204 of Ley 6/2023). A broker that only ran the appropriateness test and then steered you by phone breached the stricter of the two duties.

Behind it lies the conflict of interest. In the market maker model, widespread among these brokers, the broker is the counterparty to your trades: your losses are, to a large extent, its gains. The law does not forbid that model, but it requires the firm to act honestly, fairly and professionally in the best interests of its clients (art. 197 of Ley 6/2023) and to organise itself to prevent, detect and manage conflicts of interest (art. 198). A manager who, after every loss, asks you for another payment to “win back” what was lost is that conflict in action, and it is the fact that supports the negligence, if not the wilful misconduct, that article 1101 of the Civil Code requires for compensation.

The evidence for all this is usually recorded. The MiFID II Directive requires the investment firm to record telephone conversations and electronic communications relating to dealing on own account and to the reception, transmission and execution of client orders, including those intended to lead to a trade even if none was made (art. 16.7). Those recordings are requested from the broker in the prior claim and, since they contain your personal data, also through a subject access request under the General Data Protection Regulation (GDPR). Your own WhatsApp or Telegram chats with the manager, with dates and numbers, complete the evidence.

The professional account: the signature that stripped you of retail client protection

For retail clients, the CNMV provides protection through the product intervention measures in its Resolution of 27 June 2019: maximum leverage ranging from 30:1 on major currency pairs to 2:1 on cryptocurrencies, positions closed out when margin falls to 50%, negative balance protection, and a standardised risk warning stating the percentage of accounts that lose money. None of those measures covers a professional client. That is why so many brokers offer a “professional account” with far higher leverage: without that signature they could not offer you that leverage.

Reclassification has strict requirements. Article 195 of Ley 6/2023 allows a retail client to ask to be treated as a professional by expressly waiving retail treatment, and adds that such a client shall in no case be presumed to have knowledge and experience comparable to per se professional clients. Royal Decree 813/2023, which contains the same criteria as the MiFID II Directive, requires the broker to verify that the client meets at least two of these three criteria: trades of significant size averaging ten per quarter over the previous four quarters, a portfolio of cash and financial instruments above 500,000 euros, or at least one year in a professional position in the financial sector requiring knowledge of those transactions. It also requires a written procedure: the client's request, a clear warning of the protections being lost, and the client's statement, in a document separate from the contract, that they understand the consequences.

That signature is not a free pass. Before accepting the request, the broker must take all reasonable steps to make sure the client meets the requirements, and if the client stops meeting them, it must treat them immediately as retail (art. 114 of Royal Decree 813/2023). A form with boxes ticked on the manager's instructions, contradicting what the broker itself knew of your income, assets and occupation, does not pass that test. If the reclassification does not stand, you are treated as a retail client: leverage above the limits, the lack of negative balance protection and the absence of a genuine assessment all become breaches, and the loss they caused can be claimed.

The broker is in Cyprus, but the case is heard in Spain

The Brussels I bis Regulation protects a consumer who contracts with a business that directs its activities to the State where the consumer lives: a website in Spanish, managers who speak Spanish, Spanish phone numbers or the passport notified to the CNMV are the indicators that show it (art. 17.1.c). That consumer may sue in the courts for the place where they are domiciled, whatever the broker's domicile (art. 18.1), and the broker may only sue you in Spain, even if one day it claims a negative balance from you (art. 18.2). The jurisdiction clause in the standard terms sending you to the courts of Cyprus does not bind you: only agreements made after the dispute arose, or ones letting you sue in more places, prevail (art. 19).

The broker will try to deny you consumer status because you traded a lot, with large sums or with apparent ease. The Court of Justice of the European Union, in the case of a private investor who traded currency CFDs through a broker from another Member State, has held that the value of the trades, the risk of losses, the investor's knowledge or active conduct are, in principle, irrelevant to that classification, as is classification as a retail client for MiFID purposes. The MiFID label does not decide where you can sue. What really costs you that forum is having traded through a company, or trading being your profession.

Winning on jurisdiction is not the same as winning on the applicable law. The broker's terms usually subject the contract to Cypriot law, but for investment services provided to a consumer whom the firm targeted in Spain, that choice cannot deprive you of the protection of mandatory Spanish rules (the Rome I Regulation). Moreover, the duties that decide the case (the appropriateness test and its record, fair information and management of the conflict of interest) come from the same Directive and the same Delegated Regulation throughout the EU. The Spanish judgment is then enforced in Cyprus without any need for exequatur.

Time limits and the prior claim: the clock that starts when your positions close

The annulment action works just as it does against a complex product sold at a bank branch; what is specific to CFDs is pinning down when the contract was performed. Article 1301 of the Civil Code sets a lapse period of four years and, in cases of mistake, counts it from performance, and the Tribunal Supremo has held that for complex financial products performance cannot be placed before the client could have become aware of the mistake. The broker will say each CFD was performed when the position closed; we argue that what is performed is the account relationship, when it is settled. Since the point is arguable, the prudent course is to count from the closing of the first losing positions, and to remember that a lapse period is not interrupted by letters or calls.

The damages claim is a personal action with no special period: it becomes time-barred five years after it could be brought (art. 1964.2 of the Civil Code), which in practice points to when the loss occurred and could be quantified. Unlike a lapse period, limitation is interrupted by a written claim. That is why the claim always pleads both, annulment as the main relief and damages in the alternative: if the court holds the first out of time, the second survives. Both tend to produce a similar figure (what you paid in, less what you withdrew, plus interest); what changes is the time limit and what has to be proved.

In civil proceedings, a claim is not admitted without a prior attempt at negotiation (art. 5 of Organic Law 1/2025). For a consumer, a written claim to the broker that is not answered in time or receives an unsatisfactory answer is enough, as is a decision of the CNMV's Servicio de Reclamaciones, its complaints service (seventh additional provision), whose report does not bind the firm. That claim is best drafted as a request to negotiate with a clearly defined subject: from the moment there is a record of it being sent, it suspends the lapse period and interrupts limitation, although if the broker does not reply in writing within thirty calendar days the periods start running again, and the claim must be filed within the following year (art. 7). That step is not needed to seek interim measures before proceedings or pre-action disclosure, or to use the European Small Claims Procedure, useful for losses of up to 5,000 euros against a broker from another EU Member State (art. 5.3).

How we run the case, step by step

1. 1

   Today we secure the evidence the broker controls

   Before the account is closed or the app deleted, the full history of trades, deposits and withdrawals is downloaded, screenshots are taken of the test and of the client classification, and the chats with the manager are exported. Whatever exists only on the platform is out of your reach the day your access is cut off.

2. 2

   We identify the firm, its authorisation and how it classified you

   We check which company is named as counterparty in the terms and conditions and in the account statements, whether it is registered with the CNMV as a firm from another EU Member State operating in Spain, and whether it treated you as a retail or a professional client. That determines whom we sue and under which rules.

3. 3

   We pin down the dates that decide the time limit

   We reconstruct the timeline: account opening, test, reclassification, every deposit, the closing of the first losing positions and the final settlement. From it we calculate the four years for annulment and the five for damages, and decide how urgently to act.

4. 4

   We send the prior claim as a request to negotiate

   We address it to the broker through the channel you used in your dealings with it, with its subject defined: the claims to be brought, the amount and a request for the test record, the classification file and the recordings. It satisfies the admissibility requirement, suspends the lapse period and interrupts limitation, and we keep track of the thirty days allowed by article 7 of Organic Law 1/2025.

5. 5

   We commission the financial expert report

   An expert analyses the account history (the leverage used compared with the retail limits, the trading frequency induced by the manager, costs and forced close-outs) and quantifies the net loss. It is the piece of evidence that turns the breach into a figure.

6. 6

   We sue in the Tribunal de Instancia where you live

   We file the claim with the sección civil (civil section) of the Tribunal de Instancia (the court of first instance) for the place where you live, within a year of the request to negotiate, with annulment as the main relief, damages in the alternative and, where appropriate, a declaration that you should have been treated as retail. In it we ask the court to order the broker to produce the test record and the recordings.

The law that applies

• Art. 1301 CC. Sets a lapse period of four years for the annulment action and fixes when it starts to run: in cases of mistake, deceit or false cause, from performance of the contract; in cases of intimidation or violence, from when they ceased. It is the time limit for the main action against the broker. BOE-A-1889-4763
• Art. 1964.2 CC. Personal actions with no special period become time-barred five years from when performance of the obligation can be demanded. It is the time limit for the alternative damages action for breach of conduct of business duties, which rests on art. 1101 of the Civil Code. BOE-A-1889-4763
• Art. 205 Ley 6/2023. Requires a firm providing services other than advice or portfolio management to ask the client about their knowledge and experience in order to assess whether the product is appropriate, to give them a copy of the assessment and to warn them if it is not or if the information is insufficient; for complex instruments it also requires a handwritten statement by the client acknowledging that warning. BOE-A-2023-7053
• Art. 195 Ley 6/2023. Allows a retail client to ask in advance to be treated as professional by expressly waiving retail treatment, provides that such a client shall in no case be presumed to have knowledge and experience comparable to per se professional clients, and leaves the requirements for accepting the request to be set by regulation. BOE-A-2023-7053
• Art. 56 Reglamento Delegado (UE) 2017/565. Requires the firm to determine whether the client has the experience and knowledge needed to understand the risks of the product, and to keep a record of each appropriateness assessment with its result, the warnings given, and whether the client asked to trade despite them and the firm accepted. 32017R0565
• Arts. 17 y 18 Reglamento (UE) 1215/2012. Apply a protective regime to consumer contracts with a business that pursues or directs its activities to the State of the consumer's domicile: the consumer may sue in the courts for the place where they are domiciled, regardless of the other party's domicile, and the business may sue the consumer only in the courts of that State. 32012R1215
• Art. 7 LO 1/2025. A request to negotiate that properly defines its subject interrupts limitation and suspends lapse periods from the recorded attempt to communicate it; the periods restart or resume if there is no first meeting or written reply within thirty calendar days, and the claim must be filed within the following year for the admissibility requirement to be met. BOE-A-2025-76
• Disp. adic. 7.ª LO 1/2025. In individual consumer disputes, deems the admissibility requirement met by a prior out-of-court claim to the business that receives no reply within the legal time limit or an unsatisfactory one, and also by the decision on complaints lodged with the Banco de España (Spain's central bank), the CNMV (Spain's securities regulator) or the Dirección General de Seguros y Fondos de Pensiones (the insurance and pensions regulator). BOE-A-2025-76

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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