I the Royal Decree-Law 1/2017, January 20, on urgent measures for the protection of consumers in respect of clauses soil has established a runway extrajudicial to facilitate consumers and credit institutions, having signed a contract of loan or credit mortgage, to reach agreements and resolve disputes that may arise as a result of the last court in matters of terms floor pronouncements and in particular, the judgment of the Court of Justice of the European Union of 21 December 2016, in joined cases C-154/15, C307/15, and C-308/15.
Royal Decree-Law 1/2017, from 20 January, aims to facilitate the return of the amounts unduly paid by the consumer to the credit institutions on the application of certain clauses soil contained in contracts of loan or credit secured by real estate mortgage.
This Royal Decree establishes a Committee on monitoring, control and evaluation of the implementation of Royal Decree-Law 1/2017, 20 January. He teaches in the exercise of the power of regulation, in accordance with the principles of need follow-up, control and evaluation of the claims made in the scope of the Royal Decree-Law, only possible after the planned regulatory development in the same; efficacy of emergency measures for the protection of consumers in respect of clauses soil - working properly takes hold with a system of monitoring, control and evaluation; proportionality - only requires the essential minimum information credit institutions; legal security ensuring the objective application of the law; -through the publication of a semiannual report - transparency, and efficiency.
II the Royal Decree consists of five articles, three additional provisions, and four final provisions.
Articles 1, 2 and 3 create and regulate the monitoring Commission, monitoring and evaluation to ensure compliance with the Royal Decree-Law 1/2017, from 20 January, which may propose measures of performance and evaluate the information supplied by the credit institutions and by the Bank of Spain.
To enable the monitoring, control and Evaluation Commission to perform its functions, article 4 provides certain information obligations that have to comply with credit institutions. Among others, the information necessary to verify that advance notice provided for in Royal Decree-Law 1/2017, from 20 January, done, specially vulnerable, which defines the concept of person vulnerable for remission to the Royal Decree-Law 6/2012, March 9, on urgent measures of protection of mortgage debtors without resources.
This information shall be supplemented with the forecasts of the first additional provision that contemplates that the Commission's monitoring, control and evaluation regulated in this Royal Decree may request of the Ministry of justice information that was available through the LexNet application in the territory in which it is implemented this system concerning court proceedings in which exercise individual actions on general conditions of the contract included in financing guarantees contracts real estate whose borrower is a natural person. The second additional provision expressly provides for the absence of increased expenditure as a result of the implementation of the work of the Commission that is created and regulated in this standard. For its part, the third additional provision establishes the possibility of updating the financial plan by banking foundations and his term taking into account the modification that is made of the Real Decree 877/2015, October 2, in the second additional provision.
The Royal Decree incorporates four final provisions. The first relates to the standard enabling constitutional titles; the second includes an extension of the term for which available banking foundations for the establishment of the reserve fund required by law 26/2013, of 27 December, boxes of savings and banking foundations; the third provides the supplementary application of the common regulation of organ members on the functioning of the Commission; the fourth has that entry into force will occur the following day of its publication in the «Official Gazette».
The letter to) of the third final provision of Royal Decree-Law 1/2017, 20 January, empowers the Government to enact the provisions necessary for their development, with particular emphasis on the possibility of creating a body of monitoring, control and evaluation, aspect that regulates this Royal Decree.
In what disposal second refers, the twelfth final provision Law 26/2013, of 27 December, enables the Government to adopt measures and provisions which are necessary for the development and application of the law.
In addition, the second final provision has been adopted according to the principles of necessity, effectiveness, proportionality, legal certainty and efficiency. The standard serves the principles of necessity and proportionality since the allocation of the reserve fund flexibility only to the extent necessary to make compatible the objective of improved governance of the entities owned by banking foundations with the adaptation of institutions to the current situation in the financial markets. It attends to the principle of effectiveness, because it is a requirement imposed by Royal Decree, it is necessary to resort to this instrument to modify it. There is the principle of legal certainty by clearly establishing a mechanism whereby the banking foundations with participations of control in credit institutions can update your financial plan. It attends to the principle of transparency given that the standard has been subject to public hearing. Finally, respecting the principle of efficiency to the extent not generated additional administrative burdens beyond if the banking foundations decide to update your financial plan.
This Royal Decree is issued under cover of the qualification contained in the available final third of Royal Decree-Law 1/2017, January 20, on urgent measures for the protection of consumers in clauses soil as well as of final disposition twelfth of law 26/2013, of 27 December, savings banks and foundations Bank, with respect to the third additional provision and the second final provision.
By virtue, on the proposal of the Minister of economy, industry and competitiveness, and the Minister of Justice, with the prior approval of the Minister for finance and public service, in accordance with the Council of State and after deliberation by the Council of Ministers at its meeting of May 26, 2017, have: article 1. Creation, object and nature of the Commission's monitoring, control and evaluation.
1. is created the Commission on monitoring, control and evaluation of the Royal Decree-Law 1/2017, from 20 January, on urgent measures for the protection of consumers in respect of clauses soil. This Commission is attached to the Ministry of economy, industry and competitiveness.
2. the Commission aims at monitoring, control and evaluation of the implementation of Royal Decree-Law 1/2017, January 20, on urgent measures for the protection of consumers in respect of clauses soil.
3 the Commission has the nature of College of representative character referred to in the articles 15.2, 21.1 to) and 21.3 of the law 40/2015, on 1 October, of the legal regime of the Public Sector.
Article 2. Composition.
1 the Commission shall be composed of the following members: to) the Deputy Governor of the Bank of Spain, who will chair the Commission.
(b)) the Secretary General technical of the Ministry of economy, industry and competitiveness.
(c) a representative of the Ministry of Justice, with the rank of Director-General.
(d) a representative of the Ministry of health, social services and equality, with the rank of Director-General.
(e) a representative of the Council of consumers and users.
(f) a representative of the Consejo General de la Abogacía Española.
(g) a representative of the General Council of the judiciary.
(h) a representative of the Spanish Mortgage Association.
2. the representatives of the organizations representing social interests may be replaced to its members by others, proving it with at least three days in advance before the Secretary of the Commission.
3. the Commission will support their functioning in a Secretary, and failing that, in a Deputy Secretary. Both the Secretary and the Deputy Secretary are appointed by the Governor of the Bank of Spain, representing the Bank of Spain, and attend meetings with voice but without vote.
4. the Commission may request the attendance at its meetings and the advice of technicians belonging to bodies which are its members, specialized in the field and whose participation may facilitate the better performance of its functions.
Article 3. Operation.
1. the Commission shall determine its rules of operation and may establish its own regime of calls. In any case, the Committee shall meet whenever it is convened by its Chairman, already on its own initiative, and at the request of two members.
2. the Commission shall be validly constituted for the purpose of meetings and decision-making when they are present, at least three members of the same and the President, or his substitute it. Agreements shall be adopted by a majority of its members. The President of the Commission shall have casting vote, for the purpose of adopting agreements.
3 chairing the Commission, represent it, set the order of the day, moderate its deliberations, ensure compliance with the laws and endorse the records and certifications of the agreements is the President.
4. in cases of vacancy, absence, illness or when if otherwise provided legally, the President shall be replaced by the Secretary General technical of the Ministry of economy, industry and competitiveness or, failing that, by the person who is the holder of the Presidency among the members appoint representatives from the General Administration of the State.
5. in connection with the sessions of the Commission, the Secretary is responsible for preparing topics and documentation, write the minutes, ensuring the formal legality and material and certifying the actions of the Commission, ensure that procedures and rules of Constitution of the organ are respected, as well as any other work that is assigned to them by the same.
6. the Commission may be, convene, celebrate their session, adopt agreements and send records both in person and remotely, as provided in article 17.1 of law 40/2015, on 1 October, of legal regime of the Public Sector.
Article 4. Functions.
The Commission shall seek and will evaluate the information that his transfer to the Bank of Spain or of credit institutions and published every six months a report which evaluates the degree of compliance with the Royal Decree-Law 1/2017, 20 January. This report should be referred by the Chairman of the Committee to the Committee on economy, industry and competitiveness of the Congress of Deputies.
Article 5. Information obligations.
1 credit institutions shall send to the Commission, through the Bank of Spain, on a monthly basis, the information that required them. This information shall include, in any case, and individualized for each credit institution: a) the number of applications, which have ended with agreement and that has not been possible to reach such an agreement, as well as motives, b) the amount corresponding to applications, which have ended with agreement and that has not been possible to reach such an agreement duly broken down, c) the number and amount of the compensatory measures other than the return of cash that have been offered to consumers, and, where appropriate, agreed with them, corresponding to applications, which have ended with agreement and that has not been possible to reach such an agreement, duly broken down.
Also, each credit institution will report on the system that has been implemented to ensure advance notice to consumers that your mortgage loan has included clauses soil, especially to vulnerable people.
2. for the purposes of the provisions of the preceding paragraph, means by vulnerable people who are located in the exclusion threshold defined in article 3(1) of the Royal Decree-Law 6/2012, 9 March, concerning urgent measures for protecting mortgage debtors without resources.
3. the Commission may also require directly entities any other information deemed appropriate in relation to clauses soil, for the purposes of the fulfilment of functions which has entrusted in accordance with the provisions in the third final provision of the Royal Decree-Law 1/2017 and in this Royal Decree.
First additional provision. Statistics on judicial procedures.
The Commission's monitoring, control and evaluation regulated in this Royal Decree may request of the Ministry of justice information that was available through the application LexNet in the territory in which it is implemented this system on the judicial procedures in which exercise individual actions on general contracting conditions included in financing guaranteed real estate contracts whose borrower is a natural person.
Second additional provision. No increase in public spending.
The application of the present Royal Decree does not imply increased expenditure. The measures included in the present Royal Decree will be served with ordinary budgetary allocations and may not generate increased allowance or remuneration of other staff costs.
Third additional provision. Update of the financial plan of the banking foundations.
Banking foundations referred to in article 44.3 of Act 26/2013, of 27 December, boxes of savings and banking foundations be able to update your financial plan in the period of three months from the entry into force of this Royal Decree.
First final provision. Skill-related title.
This Royal Decree is issued under cover of the provisions of the articles 149.1.6., 11th, 13th and 14th of the Constitution which attributed to the State competitions on commercial, procedural law, bases of management of credit, banking and insurance, bases and coordination of the general planning of economic activity, and general finance and debt of the State, respectively.
Second final provision. Modification of the Real Decree 877/2015, October 2, development of law 26/2013, of 27 December, boxes of savings and banking foundations, which regulates the reserve fund which must be certain banking foundations; amending the Royal Decree 1517 / 2011, 31 October, which approves the regulations developed by the consolidated text of the law on audit of accounts, approved by Royal Legislative Decree 1/2011 from 1 July; and amending the Royal Decree 1082 / 2012, of 13 July, which approves the regulation of development of law 35/2003 of 4 November, collective investment institutions.
Article 6 of Royal Decree 877/2015, October 2, development of law 26/2013, of 27 December, is drawn up in the following way: «article 6. Deadline for establishment of the reserve fund.
1. the target volume of the reserve fund shall be within a maximum of 8 years from the entry into force of the circular of the Bank of Spain that develops this Royal Decree or the date that the Bank Foundation acquires control or owned more than 50 per cent on the credit institution, if any of these facts occurred after.
2. If, as a consequence of the evolution of the economic and financial situation of the credit institution owned or the development of market conditions, be warned that you cannot reach is the target volume of reserve fund within a maximum period of eight years which refers above, Bank Foundation may request from the Bank of Spain an extension of this period up to one year.
3. the calendar of allocations to the reserve fund should detail in the financial plan that Bank Foundation must submit to the Bank of Spain. Periodic allocations provided for in the aforementioned schedule shall be linear in time, without prejudice to any amendments to the calendar justified pursuant to the variation of the needs of own resources provided for in the financial plan and other relevant circumstances.
4. until the reserve fund reaches the target minimum amount resulting from the application of the criteria set out in article 4, Bank foundations must allocate the Fund reserve, at least, 30% of the amounts received from credit institutions participated in the concept of dividends in cash.»
Third final provision. Suppletive regime.
In all matters not provided for specifically in this Royal Decree or in own performance standards adopted by the Commission on monitoring, control and evaluation of the Royal Decree-Law 1/2017, will apply rules to the colleges provided for in the preliminary title, chapter II, section 3 of the law 40/2015, on 1 October, of legal regime of the Public Sector.
Fourth final provision. Entry into force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
Given in Madrid, from May 26, 2017.
The Vice-President of the Government and Minister of the Presidency and for territorial administrations, SORAYA SAENZ DE SANTAMARIA ANTON