Law 35/2010, of 3 June, licensing regime for the creation of new operational entities of the Andorran financial system since the General Council in its session of June 3rd, 2010 has approved the following: law 35/2010, of 3 June, licensing regime for the creation of new operational entities of the Andorran financial system preamble the object of this law lies in setting up the licensing regime for the creation of new operational entities of the Andorran financial system and thus overcome the current situation of status quo in the Andorran financial system in compliance with the mandates contained in the fourth transitional provision of law regulating deposit guarantee reserves and other operational obligations to maintain and deposited by entities operating in the financial system, of 11 May 1995 additional, first of the law regulating solvency criteria and cleared of financial institutions, of 29 February 1996, and eighth transitory provision of the law regulating the basic administrative regime of the banking entities, of 30 June 1998, subject to approval of the laws that establish the legal regime of the different types of operational entities of the Andorran financial system : non-banking organisations-specialised credit, investment financial institutions (financial societies of investment, financial investment agencies, asset management companies, financial advisors), management companies of collective investment institutions and banks.
The law is divided into five chapters, twenty-and-one articles, four additional provisions, a repealing provision and three final provisions. The first chapter is devoted to the establishment of the object of the Act, the principles governing the granting of authorisations, pinpointed on the principle of specificity, and the competence to grant the authorization that is attributed to the INAF in specialized and independent institutional public entity in the field of the Andorran financial system. The second chapter sets the procedures corresponding to the procedure of authorization for the creation of new operational entities of the Andorran financial system, procedure begins with the submission of the corresponding application for authorization, the moment from which the INAF has a period of five months to resolve and to notify the applicant that the first part of the documentation provided with the application complies with the requirements , or to refuse the request on the basis of the content of the documentation provided, period, under no circumstances, can be extended beyond 12 months. However, the INAF has issued the resolution that grants the authorization of creation of the company or the denial of the application, within a maximum period of five months from the date of receipt of the documentation later.
It also provides that applicants for an authorisation for the creation of any of the operating entities of the Andorran financial system can lodge an appeal before the Government against resolutions of the INAF. Finally, it is expected that all the resolutions of the INAF relating to the creation of new operational entities of the financial system are published in the official bulletin of the Principality of Andorra.
The third chapter sets forth the legal conditions required to be eligible for the grant of the authorisation and which are, before you submit an application for authorization, the Constitution of a deposit not paid prior to a different amount for each type of operating entity of the financial system, calculated on the basis of the number of share capital required in each case, and after obtaining the authorization , the type of operating entity of the financial system by which it has been granted the permission and start its activities within the period of twelve months. In the event of default the last term above mentioned, it is expected that the INAF has to cancel the authorization, as in the case that the entity cease deployment of their real and effective activity for a period exceeding six months. In any case, the resolutions of revocation of the authorization issued by the INAF can be traversed before the Administrative Section of the Council and should be published in the official bulletin of the Principality of Andorra. Finally, in order to be able to dictate the appropriate resolution with knowledge of all the relevant background, the INAF may require applicants additional information that it deems appropriate, provided that it is related to the requirements for the authorization.
The fourth chapter, as the name implies, establishes the documents that necessarily have to be submitted together with the application for authorisation, for the purpose of being able to assess it. The documents listed relate to aspects related to the specific features of the activity of the company projected, the owners or members of the Organization to set up, in the structural, technical and economic forecasts, and to the fulfilment of prerequisites. Furthermore, once notification is favorable, is expected to apply for the grant of final authorization, applicants must provide a set of additional documents which include authorization from the Government for the establishment of the corresponding company. Finally, the fifth chapter contains the substantive criteria for the assessment of the applications for authorisation which differ in generic criteria and specific criteria, so that make up the administrative authorization for the creation of a new operational entity of the Andorran financial system as an authorization of discretionary character, because the character of vague legal concepts that should be attributed to many of the related criteria.
Finally, the first additional provision modifies the law regulating the disciplinary regime of the financial system, of 27 November 1997, with the object of attributed to the INAF the authority to impose the sanctions arising from the Commission of offences, and for consistency with the attribution in the law refers to the same competition JURISDICTION to grant leave to the creation of new operational entities of the financial system. Likewise, the second additional provision foresees that during the first year of application of this law, the maximum term because the INAF instructed the file and issue the corresponding resolution is eighteen months. The additional provisions third and fourth down, respectively, the special scheme of direct foreign investments in these organizations that can reach 100 by 100 of the share capital or of the voting rights, and the rate that they have to meet applicants for permits that regulate this law. The repeal the repeal of the law regulating the creation of new banks of Andorran law as a result of the content of the law and article 10 of the law regulating the disciplinary regime of the financial system, and the final provisions include the authorization to the INAF to dictate the precise technical communiqués to deploy the contents of the law , the demand that is made to the Government published in the official bulletin of the Principality of Andorra, by Decree, and the revised text of the articles and of the supplementary provisions of various laws, and also the date of entry into force of the law.
This law does not regulate the registration process after the creation of the operating entities of the Andorran financial system which is regulated according to the provisions of the law on the legal status of banks and basic administrative regime of the operating entities of the financial system.
Chapter first. General provisions Article 1 Purpose the purpose of this law is to establish the licensing scheme for the creation of new operational entities of the financial system.
Article 2 Principles the authorization for the creation of any of the operating entities of the Andorran financial system must be presented with specific character and particularized.
Article 3 Competence corresponds to the JURISDICTION to grant the authorization for the creation of any of the operating entities of the Andorran financial system.
Second chapter. Procedure for authorisation Article 4 authorisation requests Requests for the creation of any of the operating entities of the financial system should be introduced to the INAF.
Article 5 Termination 1. The INAF has to resolve and to notify the applicant that the first part of the documentation provided with the application complies with the requirements according to the provisions in articles 11, 12, 13 and 14, or refuse this request on the basis of the content of this documentation, within a maximum period of five months from the date of its presentation or If this is the case, counting from the moment in which you complete the required documentation. In any case, this notification must take place within a maximum period of twelve months from the date of filing of the application.
2. The resolution of the INAF notifying that the first part of the documentation provided for the creation of an operating entity of the financial system complies with the requirements according to the provisions in articles 11, 12, 13 and 14 must be accompanied by the requirement for the submission of the documentation to be submitted according to the provisions in article 15. The applicant must submit this documentation to the INAF within a maximum period of three months from the date of the said notification of the INAF. If you do not receive the information or documentation requested within the deadline the INAF shall deny the application.
3. Once we have received the information and documentation described in section 2, the INAF examines the request and issued its denial or authorization for the creation of the entity within a maximum period of five months from the date of receipt of that information or documentation.
4. The extension of the activities that make up the social object of an entity-non-banking-specialised credit, specified in the authorisation, and of the activities deployed by a financial institution investment services investment and/or assistants or activities are not specified in the initial authorization or in a subsequent expansion of activities remains subject to a new authorization.
Article 6 Publication resolutions of the INAF, which authorises the creation of any of the operating entities of the Andorran financial system must be published in the official bulletin of the Principality of Andorra.
Article 7 Resource applicants of an authorization for the creation of any of the operating entities of the Andorran financial system can lodge an appeal before the Government against resolutions of the INAF within the maximum period of thirteen working days counted from the day following the date of notification of the resolution.
Third chapter. Conditions for the authorisation Article 8 prior Deposit 1. Before you submit an application for authorisation for the creation of any of the operating entities of the Andorran financial system, those who intend to apply for the above-mentioned authorisation must make a deposit not paid the INAF by one of the following amounts depending on the type of entity: a) 3 million euros in the case of banks, b) 200,000 euros in the case of the non-banking organisations-specialised credit , c) 200,000 euros in the case of financial companies, investment of 60,000 €) in the case of investment financial agencies, e) 15,000 euros in the case of asset management companies, f) 5,000 euros in the case of financial advisors, g) 30,000 euros in the case of the management companies of collective investment institutions.
2. The prior deposit must be returned to the applicants, whose applications have been rejected, within twenty working days from the date of the decision denegatòria; and authorized entities, within a maximum period of twenty working days from the date of the commencement of their activity.
3. Applicants for permits that regulate this law must meet, prior, the rate that governs the fourth additional provision.
Article 9 Repeal
1. The granting of authorisation for the creation of any of the operating entities of the Andorran financial system requires applicants to initiate the activities of its corporate purpose within a period of twelve months from the date of notification of the authorization.
2. In the event that the operating entity of the financial system-the creation of which has been authorised-do not start a real and effective activity within the deadline set in the previous section, the INAF has to cancel the authorization and cancel the deposit made and return it to the applicant.
3. In the event that the operating entity of the financial system has ceased to exercise its effective and real activity for a period greater than six months, the INAF has to revoke the authorization.
4. The operating entity of the financial system, the creation of which has been revoked, may appeal against the decision of the INAF in front of the Administrative Section the Batllia, within thirteen working days starting from the day after the notification of the resolution.
5. The revocation of the authorisation shall be published in the official bulletin of the Principality of Andorra.
Article 10 Add-ons of information notwithstanding the documentation to present that regulates the fourth chapter, the INAF may require applicants additional information that it deems appropriate, provided that it is related to the requirements for the authorization.
The fourth chapter. Documentation to present Article 11 Documentation relating to specific features of the activity of the projected entity applicants of an authorization for the creation of any of the operating entities of the Andorran financial system must provide to the INAF, together with the corresponding application and the following documents: a) the proposed statutes of the entity to set up when, according to his regime , have to take the form of joint-stock company.
b) The basic program of activities, which should be stated specifically the genus of operations that is projected to perform depending on the type of operational entity of the financial system for the creation of which the authorization is requested, and the elements that make it possible to observe the orientation of the activity, in particular, if it is planned to provide services abroad and in what proportions, as well as if it is planned to invest in derivatives.
In particular, in the case of the banks has been to indicate the activities of commercial banking and investment services and auxiliary are planned to develop. For this purpose you should indicate all the elements that make it possible to observe the relative importance of the activities of commercial banking, in the whole of the global activity is projected to develop.
In the case of the non-banking organisations-specialised credit should indicate the activity or activities that integrate your social object and in the case of financial institutions, investment services and auxiliary investment that you intend to pay, depending on the type of entity for which the authorization is requested.
In the case of management companies of collective investment institutions that had the law 10/2008, of 12 June, regulating collective investment bodies of Andorran law.
c) an exhibition specifically for the eventual provision of activities related to the promotion of the economy of the country.
of an eventual specific) forecast of activities related to sponsorship and patronage of educational and cultural activities, with grants for research, conservation and promotion of the cultural and natural heritage and cultural action, and the sponsorship of sports activities.
Article 12 Documentation relating to owners or members of the Organization to set up applicants of an authorization for the creation of any of the operating entities of the Andorran financial system must provide to the INAF, together with the corresponding application and the following documents: a) the identity of the holder person of the entity to create or the relationship of the members of the entity , with an indication of their identity, nationality and its shares in the capital stock.
If they are legal persons, it should indicate the composition of its governing bodies, and to provide the financial statements and the audit reports for the last three years, and, if these are part of a group of companies, it should indicate the composition of the group, and provide the above information referring to the essential components and the consolidated annual accounts of the group.
b) sworn declaration where it is claimed that the contributions made by the partners in the company are in compliance with the requirements established by legislation regarding the international criminal cooperation and the fight against the laundering of money or securities of international crime and the financing of terrorism.
c) information about the career, the professional activity and the patrimonial situation of the holder person of the entity to create or partners with shares equal or superior to 5 per 100 of the share capital of the company to set up. If they are legal persons, this information should be referred to the members of its governing bodies.
d) in the event that applicants do not have a priori covered the entirety of the share capital of the entity that is intended to constitute, information on the mechanisms provided to complete your subscription and the procedure to be followed.
In particular, must indicate whether applicants have no intention of making a takeover bid for sale of shares to facilitate a broad shareholder base.
e) the relationship of people to integrate the first organ of administration, with information on the background and the professional activity of each of them, as well as all the documentation necessary for the verification of compliance with the legal requirements for the exercise of these charges.
f) internal rules of conduct in which, expressly, it is expected the scheme of operations of the directors, employees and attorneys of the company.
Article 13 documentation relating to the structural, technical and economic forecasts applicants of an authorization for the creation of any of the operating entities of the Andorran financial system must provide to the INAF, together with the corresponding application and the following documents:
a) a description of technical means, especially of the human, organisational and accounting and computer available to the Organization to carry out its activities on the basis of its kind and, in case you intend to operate with derivatives, must submit a report explaining its ability to act with these financial instruments, paying special attention to the control of risks associated with the related instruments.
b) a detailed description of the activities that are intended to develop in Andorra and that outsource abroad.
c) A generic description of the measures which it is planned to introduce in order to ensure adequate internal control procedures and to develop the activities in an environment of maximum security.
d) a reference to the General measures envisaged prior in relation to the precepts of the law relating to international criminal cooperation and the fight against the laundering of money or securities of international crime and the financing of terrorism.
e) links provided, if applicable, with other financial institutions or credit that aportarien the technical knowledge or participate in the management, or comprometrien to provide support of any kind in the case of possible financial difficulties.
f) the location of the planned headquarters and expectations in relation to the creation of subsidiaries, branches and offices.
g) forecasts of recruitment of staff during the first three exercises with an indication of the levels of qualification.
h) the balance sheets and accounts of expected results for the first three years, together with the comments that it deems appropriate, for estimation of quantitative objectives. In particular precisarán the volumes of activity and income and expenses planned for domestic activities and for other activities.
and application of policy) results that is expected to carry out.
Article 14 documentation relating to the fulfilment of prerequisites applicants of an authorization for the creation of any of the operating entities of the Andorran financial system must provide to the INAF, along with the corresponding request, the rationale for having been the previous deposit required in article 8.
Article 15 further Documentation to qualify for the grant of authorisation and in order to update and complete the documentation submitted with the application, applicants who have obtained favorable notice as provided for in paragraph 1 of article 5 must provide the following documents: a) The definitive statutes of the entity, along with the authorization of the Government for the establishment of the corresponding company.
b) information about the provisions taken to locate the headquarters and the offices that are planned to open in the short term.
c) update or confirmation, if not there have been variations, of the provisional information submitted with the request in accordance with the provisions of the previous article, in order to give you ultimate character.
d) the relationship of people to exercise in the general direction, with information on the background and the professional activity of each of them, as well as all the necessary documentation for verification of compliance with the legal requirements of these people for the exercise of these charges.
e) a statement of the person's explicit that it is anticipated that presideixi the entity, by virtue of which one becomes aware of the obligations established by the legislation relating to the financial system and, in particular, of the provisions of the legislation relating to international criminal cooperation and the fight against the laundering of money or securities of international crime and the financing of terrorism.
Chapter five. Evaluation criteria applications Article 16 generic Criteria applications will be evaluated based on the strength of the project, from the business point of view, and the prospects of contribution to the economy in general and its financial system in particular.
Article 17 specific criteria. Technical guarantees must be assessed specifically: a) The consistency of the business project.
b) the knowledge, the experience and the ability of potential applicants and partners in order to achieve the objectives of development of the company projected.
c) links to one or more financial institutions or credit that add to the projected entity the own activity and technological skills.
d) the commitments made by the financial institutions or credit related to the management of the company projected.
e) transparency of the structure of the group to which it belongs the entity designed to allow you to get the necessary information about the development of their activities.
f) the possibility that the Organization planned to stay exposed, inappropriate form, the risk of non-financial activities of its partners or owners, or when, trying to be ' financial activities, the stability or control of the entity may be affected by the high risk of those.
g) media and the Organization of the management, which gives special importance to measures aimed at guaranteeing an adequate internal control.
Article 18 specific criteria. Financial guarantees must be assessed specifically: a) The transparency of the origin of the funds and of the identity of the persons who constitute the core of the members of the cast.
b) The solvency of subscribers of shares or shares a percentage higher than 5 per 100 of the share capital of the company projected.
c) the eventual participation of one or more financial institutions or credit in the capital of the company projected.
d) the ranking, the rating and solvency of financial institutions or credit linked to the project.
e) the commitments that have been able to get the credit or financial institutions linked to the project, with regard to the provision of financial support to the company projected in the case of possible financial difficulties.
Article 19 specific criteria. Prospects for corporate event on the financial system must be assessed specifically: a) The participation in the consolidation and expansion of a positive industry image.
b) the potential for innovation in the offer of financial services.
c) contribution to the enhancement of the internal competition and the elevation of the sectorial technical standards on behalf of the clientele.
d) contribution to the improvement of the productivity of the financial system.
e) the possible diversification of business or political characteristics of the components of the Andorran financial system.
Article 20 specific criteria. Prospects of economic-social event for the country must be assessed specifically: a) the participation of andorrans or foreigners in the capital and in the body of administration and management of the entity.
b) the number and classification of positions to create.
c) the coverage of jobs for locals or foreigners holding a residence permit with a seniority of no less than 3 years.
d) aimed at policies promoting the economy of the country, especially in the development of new activities and the promotion of productive investment.
e) The rate of growth of the financial sector in relation to the global growth of the Andorran economy.
f) policies aimed at sponsoring sports, cultural and educational activities, and to promote the research, conservation and promotion of the cultural and natural heritage.
Article 21 specific criteria. International repercussions must be assessed specifically the contribution to the strengthening of a positive international image of the country.
First additional provision modifies article 9 of the law regulating the disciplinary regime of the financial system, of 27 November 1997, which is worded as follows: "Article 9. Resolution of proceedings 1. The INAF, once the instruction, resolves within two months the files incoats. In the resolution, we have to fix, so motivated, the facts and their exact legal qualification; determine the violation that these facts constitute and the entity, person or people who are authors and/or responsible for the violations, and specify the corresponding sanction, or declare the non-existence of infringement or liability.
2. The sanctions on entities and to individuals who are authors and/or responsible for that derived from the same infringement are the subject of a single decision, resulting in a single procedure.
3. When the penalty determined by the appointment of provisional administrator, the INAF has to specify in the resolution the scope of their competences and their performance.
4. The INAF notifies the final resolution of sanctions imposed for minor offences, serious and very serious in the affected organisations and reports, if any, of the resource. ".
Second additional provision during the first year of application of this law, the maximum period of twelve months referred to in paragraph 1 of article 5 because the INAF instructed the file and issue the corresponding resolution is eighteen months.
Third additional provision direct foreign investments consisting of foreign participation in operational entities of the Andorran financial system can reach 100 by 100 of its share capital or of the voting rights, left, in any case, subject to the corresponding previous authorisation from the Government, in accordance with the provisions in articles 16 and following of the law 2/2008 from 8 April, foreign investment in the Principality of Andorra.
Fourth additional provision applicants for authorisations for the creation of any of the operating entities of the financial system must satisfy the rate that governs this additional provision, in the following terms: 1. The concept of authorization for the creation of new operational entities of the Andorran financial system falls on the person for the benefit of which the authorization is requested that regulates this law.
2. Fact: generator Is made of the generator the request for authorisation for the creation of new operational entities of the Andorran financial system.
3. Tax Liable: it is required of the tax the person who requests the authorisation.
4. Responsible for solidarity: solidarity is responsible for the tax debt of the rate the person on behalf of which the authorization is requested.
5. tax Fee: the fee revenue is determined by a fixed amount, depending on the type of entity, according to the following amounts: 30,000 euros) in in the case of the banks, b) 10,000 euros in the case of the non-banking organisations-specialised credit, c) 10,000 euros in the case of financial companies, investment d) 6,000 euros in the case of investment financial agencies , e) 3,000 euros in the case of asset management companies, f) 1,000 euros in the case of financial advisors, g) 4,000 euros in the case of the management companies of collective investment institutions.
6. Incurrence and exigibilitat: the fee is payable at the time you request the permission and must be paid at the same time the application entry that it has JURISDICTION in this organism.
7. The law of the general budget can update tax quotas set in the section 5.
Repealing provision Is repealed the law regulating the creation of new banks of Andorran law, the June 30, 1998, article 10 of the law regulating the disciplinary regime of the financial system, of 27 November 1997, as well as any provision of rank less than or equal to be opposed to what is established in this law.
First final provision empowers the INAF to dictate the required technical releases in relation to any point in the present law that may require a development to make it operative.
Second final provision is responsible to the Government that, within a maximum period of six months from the date of entry into force of this law, published in the official bulletin of the Principality of Andorra, by Decree, and the revised text of the articles and of the supplementary provisions of the following laws:-law of regulation of the financial system, of 27 November 1993,-law regulating deposit guarantee reserves and other operational obligations to maintain and deposited by entities included in the financial system, of 11 May 1995,-law regulating solvency and liquidity criteria in financial institutions, of 29 February 1996, amended on 12 December 1996,-law regulating the powers of the various operational components of the financial system, of December 19, 1996,-law regulating the disciplinary regime of the financial system , of 27 November 1997.
Third final provision this law comes into force the day after being published in the official bulletin of the Principality of Andorra.
Casa de la Vall, 3 Josep Dallerès Codina General Syndic of June 2010
We the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
Nicolas Sarkozy Joan Enric Vives Sicília and President of the French Republic and the Bishop of Urgell Co-prince of Andorra Co-prince of Andorra
