OHL files a complaint before the CNMV, declaring that Infraiber’s defamatory campaign may have affected the stock exchange value of the company’s shares
June 17, 2016
Today, OHL has filed a complaint before the Spanish Securities Market Commission (CNMV) against Infraiber and its advisor, Paulo Díez Gargari, where the company states that “through press releases we have become aware of certain facts that could amount to forbidden conduct in relation to the free pricing foreseen in Article 231 of Royal Legislative Decree 4/2005, of the Securities Market Act”.
OHL indicates that both Infraiber and its lawyer, Paulo Díez Gargari, “have been launching a serious defamatory campaign against OHL through the publication of false news and deceitful appraisals about OHL and some of its Group’s companies, specifically OHL México and Conmex”.
Due to the harassment and defamatory campaign launched in Mexico by Infraiber against OHL México and Conmex- leading to OHL México’s shares depreciating by more than 40%, between May and December 2015- OHL México and Conmex filed a complaint, last 10 September 2015, before the Attorney General’s Office in Mexico.
OHL has reported that Infraiber’s press releases contain “false and deceitful affirmations related to the sanctioning process filed by the CNBV” and points out that “the accused have disseminated false and deceitful information on OHL through the media”.
Thus, “contrary to what the accused have published, the CNBV has not ordered OHL México to reformulate its annual accounts; OHL has not deceived the public in Spain; nor is it another Enron; nor has OHL México’s auditor been seriously sanctioned for an alleged accounting falsehood”. Consequently, “said false affirmations may affect the listing of OHL’s shares”. The company has highlighted that “the accused knew that their affirmations were false, as they were fully aware of the content of the CNBV’s resolutions, putting an end to the sanctioning process against OHL México, as well as the public information provided by OHL to CNMV”.
In this regard, the company has pointed out that, in accordance with the Securities Market Act (LMV), “this forbidden conduct may amount to a very serious infraction, if it causes a material change in listed prices (Art. 282.5 LMV) or a serious infraction (Art. 295.4 LMV). The foregoing applies without prejudice to the facts that are hereby reported amounting to an offence of informative manipulation of listed prices, foreseen in Art. 285.2 of the Spanish Criminal Code”.
Furthermore, it explains that the CNMV is competent to examine this complaint and to file and process sanctioning proceedings against the accused, in accordance with Art. 273 LMV.
Consequently, “it requests that the CNMV deem the writ of complaint as filed, that it grant it leave to proceed and, by virtue of Art. 273 LMV and Art. 36.2 of the CNMV’s Internal Regulations, that it file sanctioning proceedings against the accused”.
Defamatory campaign
In the complaint filed before the supervisor, OHL points out that Infraiber’s illegal conduct in Mexico began in April 2013, when the Communications Secretariat of the Government of the State of Mexico and Sistema de Autopistas, Aeropuertos, Servicios Conexos y Auxiliares del Estados de México (SAASCAEM) ordered OHL Group’s concessionaire, Conmex, awarded the concession title to construct and operate the Mexiquense Beltway, to not allow the installation of an Independent Vehicle Capacity Verification System (SIVA), which Infraiber had been instructed to install and supply.
Furthermore, OHL has pointed out that it it aware that the accused have decided to continue their defamatory campaign in Spain, by broadcasting deceitful lies about the OHL Group through the media.
Malicious lies
The falsehoods related to the OHL Group and disseminated by the accused focus on the sanctioning process filed by the Mexican Banking and Securities Commission (CNBV), as regards the accounting registration of the right foreseen in the concession titles to construct and operate transport infrastructures in Mexico by OHL México and its subsidiaries, involving a recovery of the total investment plus a secured annual internal rate of return (IRR) (Secured Return).
In said sanctioning proceedings, the CNBV decided, last March, that the accounting of Secured Return as a financial asset, not as an intangible asset, was not adequate, based on its personal interpretation of IFRIC 12. This interpretation is not consistent with that of OHL or with the opinion of renowned external firms, such as PwC, E&Y, KPMG Cárdenas Dosal, Garrigues México, Mijares, Angoitia, Cortés y Fuentes, Jones Day or Deloitte, which have fully upheld the accounting treatment given until now to Secured Return.
In light of the foregoing, the CNBV has instructed OHL México and its affected subsidiaries to inform the market, through a note with pro forma financial statements, explaining to the CNBV how Secured Return may be accounted for which, in the CNBV’s opinion, conforms to its interpretation of international accounting standards. Consequently, OHL México was not ordered to reformulate its 2013 and 2014 annual accounts. Nor has it been determined, until now, how to specifically enter Secured Return into the annual accounts for 2015 and subsequent years.