Order Ecc/1762/2012, Of 3 August, Which Develops Article 5 Of Royal Decree-Law 2/2012, On 3 February, Cleaning Up Of The Financial Sector, In Terms Of Pay At Institutions That Receive Public Financial Support For S...

Original Language Title: Orden ECC/1762/2012, de 3 de agosto, por la que se desarrolla el artículo 5 del Real Decreto-ley 2/2012, de 3 de febrero, de saneamiento del sector financiero, en materia de remuneraciones en las entidades que reciban apoyo financiero público para s...

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Royal Decree-Law 2/2012, on 3 February, cleaning up of the financial sector has focussed on article 5 the regime applicable in the field of remuneration to institutions that receive public financial support from the Fund for orderly bank restructuring for its sanitation or restructuring, establishing a series of limitations on remuneration of fixed and variable character that administrators and managers can receive while the financial institution can count on this public financial support. In accordance with the provisions in item 86.2 of the Spanish Constitution, the Congress of Deputies, in its session of February 16, 2012, agreed to be validated.

The aforementioned Royal Decree-law empowers the Minister of economy and competitiveness, in the same article 5, to develop and realize the limits to remuneration; which will be done through the definition of the minimum content to entities requesting financial support from the Fund for orderly bank restructuring be incorporated into contracts governing its relationship with its directors and management.

These limits shall also apply, pursuant to Royal Decree-Law, administrators and managers of credit institutions participated mainly by the Fund for orderly bank restructuring or who have already received financial support from the same.

The ministerial order concrete limits on remuneration of Directors and managers of credit institutions distinguishing if entities are owned mostly by the Fund for orderly bank restructuring or have received financial support from the Fund, which will affect the limits applicable to the fixed remuneration and variable remuneration.

The order specifies what should be understood by entities owned mostly by the Fund for orderly bank restructuring, being those in which the Fund holds directly the majority stake.

On the other hand, refers to entities that have received financial public support those that are owned directly or indirectly by the aforementioned whenever they are part of the same group in the terms provided for in article 42 of the code of Commerce. Also, have been included within this last group entities which had given rise to the majority stake, in order to prevent outside responsible for entities that originate the need for braces, but designed schemes, which do not receive them directly.

Finally, also will be considered entities that have received public financial support those who, without being participated mainly by the Fund for orderly bank restructuring, have received any form of financial support provided for in Royal Decree 9/2009, of 26 June, on bank restructuring and reinforcement of the resources of credit institutions, as well as the subsidiaries of those in the terms provided for in article 42 of the code of Commerce.

To affects the calculation of the limits, perceived benefits of the different entities belonging to the group that is integrated entity wholly owned or supported by the Fund for orderly bank restructuring, as well as the perceived entities in which the directors and management exercise any charge on own account or on behalf of the entity owned or supported by the Fund shall be taken into account.

In addition, in line with the provisions of the Royal Decree-Law 3/2012, on 10 February, on urgent measures for the reform of the labour market, is forbidden to contract or administrators and managers included in the scope of this order, agreements containing estimates of compensation for termination of contract greater than those provided for in this Royal Decree-Law , becoming a definition of what should be understood, for the purpose of the ministerial order for compensation.

The ministerial order also includes a special regime for the case of integration of entities, alleged that a list of executives and managers, specifying those who will be affected by the restrictions set forth in this order must be presented to the Bank of Spain and which not. It is expected also that the Minister of economy and competitiveness module or exempt from the application of provisions of the order, in certain circumstances, those executives and administrators who proceed from the entity that had motivated the support from the Fund for orderly bank restructuring.

Finally, in the event that the financial support from the Fund for orderly bank restructuring occurs in the course of a competitive process of divestment, the Minister of economy and competitiveness, prior motivated proposal of the Bank of Spain, can also modulate or exempt from compliance with the previous limits.

By virtue, according to the Council of State, I have: article 1. Object.

This ministerial order aims to develop the compensation scheme, specifying limits on maximum salaries and indemnities to perceive by the directors and managers of credit institutions that are owned mostly by the Fund for orderly bank restructuring, have received support from the Fund, or go to request it, to its sanitation or restructuring, in accordance with article 5 of Royal Decree-Law 2/2012 , on 3 February, cleaning up of the financial sector.

Article 2. Scope of application.

1. this order shall apply to the managers of credit institutions, as well as to those managers who have an employment relationship of special character of senior management personnel with the entity under the terms of article 1 of the Royal Decree 1382 / 1985, of 1 August, which regulates the employment relationship of the special character of the senior management staff.

The order shall apply. ((to those credit institutions which, in order to proceed with its sanitation or restructuring: a) are owned mostly by the Fund for orderly bank restructuring, b) have received support from the Fund for orderly bank restructuring, without finding mostly owned by it; or, c) applying for support from the Fund for restructuring ranked Bank, 2. For the purposes of this order, shall mean entities owned mostly by the Fund for orderly bank restructuring those in which the Fund holds directly the majority stake, and entities that have received public financial support companies directly or indirectly by the aforementioned always forming part of the same group in the terms provided for in article 42 of the code of Commerce as well as the entities that had given rise to the majority stake.

Entities that have received public financial support will be considered equally those who, without being participated mainly by the Fund for orderly bank restructuring, have received any form of financial support provided for in Royal Decree 9/2009, of 26 June, on bank restructuring and reinforcement of the resources of credit institutions, as well as the subsidiaries of those in the terms provided for in article 42 of the code of Commerce.

3. this order shall also apply, in the part corresponding to the remuneration conditions for managers and administrators of the entities referred to in paragraph 1, whose relationship with the entity does not regulate in any written contract.

4 entities requesting financial support from the Bank for its sanitation orderly restructuring or restructuring fund, as a necessary requirement to enjoy the same, be incorporated into contracts or compensation arrangements governing their relationship with their managers and administrators, the content and the rules laid down in this order.

5. the limitations set out in this order shall apply from the financial year 2012 and will be lifted once produced sanitation when so declared it the Bank of Spain, following a report from the Fund for orderly bank restructuring, considering that it has ceased the majority stake or financial fund quoted on the entity, and support previous payment, amortization, rescue or disposal of securities underwritten by the Fund , or when in any other way be understood reinstated at the same financial support.

Article 3. Limits for the maximum benefits on entities owned mostly by the Fund for orderly bank restructuring.

(1 members not executives of the colleges of administration of entities owned mostly by the Fund for orderly bank restructuring not be received a gross annual fixed remuneration higher than indicated in article 5.3. to) 1 of the Royal Decree-Law 2/2012, on 3 February, for all concepts.

(2 Executive Chairmen, CEOs or similar charges, as well as the directors of the entities owned mostly by the Fund for orderly bank restructuring can not receive fixed compensation gross yearly, by all concepts, higher than indicated in item 5.3. a) the Royal Decree-Law 2/2012, of 3 February 3rd.

3. persons referred to in the preceding paragraphs shall not charge variable fees while the Fund for orderly bank restructuring holds a majority stake.

Article 4. Limits for the maximum benefits on entities that receive financial support from the Fund for orderly bank restructuring.


(1 the fee fixed gross annual, all concepts, the non-executive members of the colleges of administration of entities which, without finding majority holdings in the Fund for orderly bank restructuring, receive financial support from the same, shall not be higher than indicated in item 5.3. to) Royal Decree-Law 2/2012, of 3 February 2nd ,

2. The Executive Presidents, CEOs and executives of institutions that, without finding mostly part-owned by the Fund for orderly bank restructuring, receive financial support from the same, can not receive fixed compensation gross yearly, by all concepts, higher than indicated in item 5.3. a) 4 of the Royal Decree-Law 2/2012, February 3, 3. The annual variable remuneration of managers and administrators provided for in this article may not exceed 60% of the gross annual fixed remuneration. The beginning of his perception will differ is three years from an accrual basis, conditioning in all case the results that, in relation to the fulfilment of the plan developed for obtaining financial support, justify their perception. The variable remuneration may reach up to 100% of the gross annual fixed remuneration, prior approval of the Bank of Spain, in the case of executives hired after or simultaneously to the receiving financial support from the Fund for orderly bank restructuring.

4. in any case, it is the Bank of Spain expressly authorize the amount, accrual and payment of any variable remuneration to the directors and management under the terms established in the preceding paragraph, in article 76 septies of the Royal Decree 216/2008, on 15 February, own resources of financial institutions, and the fifth 100th standard of Circular 3/2008 , May 22, the Bank of Spain, to credit institutions, on the determination and control of minimum own resources.

Article 5. Rules for the calculation of the limits.

1. for the calculation of the limits provided for in the preceding articles shall be taken into account all perceived benefits of the different entities belonging to the group in which is integrated the entity majority-owned or supported by the Fund for orderly bank restructuring, in the terms provided for in article 42 of the code of Commerce. Also means that form part of remuneration remuneration, diets, compensation or equivalent amounts that executives and managers receive from entities in which carries any cargo on own account or on behalf of the entity owned or supported by the Fund for orderly bank restructuring.

For the purposes of the application of the limits laid down in the order, when a Manager or administrator to simultaneously develop different functions in different entities of the group, the limit that corresponds to the position in the credit institution directly exercised by the financial business shall apply to the total amount of fees the Executive or Manager perceived.

2. for the purposes specified in this order, contributions to pension plans or any other instrument of social welfare derived from collective agreement shall be regarded as fixed remuneration.

3. for the purposes specified in this order, discretionary pension benefits, in the terms described by article 76 d of the Royal Decree 216/2008, of 15 February, shall be regarded as variable pay.

4. in addition, fees will be considered, whether fixed or variable, any kind of remuneration in kind, by its corresponding rating.

Article 6. Compensation.

The agreement or agreements of executives and managers included in the scope of this order shall not contain forecasts of compensation for termination of contract exceeding that provided for in the seventh additional provision of the Royal Decree-Law 3/2012, on 10 February, on urgent measures for the reform of the labour market, without prejudice to the provisions of paragraph uno.2. Shall also ensure such compensation shall be adjusted to the provisions of article 76 quinquies.1.h). 1 ° of the Royal Decree 216/2008, of 15 February, including clauses that condition and, where appropriate, extinguished the right to the perception of compensation depending on the solvency and the results of the entity.

For the purposes provided in this order, the term compensation for termination of contract includes any amount of nature compensation that the Executive or Manager may receive as a result of the termination of his contract, which is its cause, origin or purpose, in such a way that the sum of all amounts that may be perceived may not exceed the limits provided for in Royal Decree Law 3/2012 , 10 February.

Article 7. Rules applicable in the processes of integration of entities.

1. in the case of integration of entities referred to in article 5(6) of the Royal Decree-Law 2/2012, February 6, managers and administrators that do not form part of the entity that is majority-owned or supported by the Fund for orderly bank restructuring or which had given rise to such participation or support, will not be affected by the limitations contained in this order, even if they happen to carry out its functions in the entity owned or supported subsequent to the integration.

2. for the purposes of the provisions of the preceding paragraph, a list of executives and managers, specifying those who will be affected by the restrictions set forth in this order and those who do not, and also those who are intended welcome the provision of the following paragraph 3 must be made to the Bank of Spain. This list will be presented simultaneously to the rest of the documents that, according to applicable regulations, be submitted to the Minister of economy and competitiveness in order to obtain the authorization of the integration.

3. in regard to managers and administrators who proceed from the entity that had pointed out the financial support or which give rise to the same, the Minister of economy and competitiveness, a proposal motivated the Bank of Spain, in view of the remuneration plan presented in the framework of the integration process regulated in article 2 of the Royal Decree-Law 2/2012 February 6 and the economic and financial situation of the entities participating therein, and, in particular, to achieve a more efficient, you can modify the criteria and limits in this ministerial order and Royal Decree-Law 2/2012, February 3, in accordance with the 5.6 of the aforementioned Royal Decree-law. For this purpose, the affected entity shall determine those managers and administrators to be enforcement provisions, as well as fees proposed, must adequately justify the need modify the criteria and limits in this ministerial order and Royal Decree-Law 2/2012, February 3, in the proposed way, in accordance with the market situation. In any case, variable remuneration proposals for managers and executives may not exceed 100% of the fixed salary.

Article 8. Rules that apply in the divestment process.

When the financial support from the Fund for orderly bank restructuring occurs in the course of a competitive process of disinvestment through any of the measures provided for in article 7.3. a) of the Royal Decree-Law 9/2009, of 26 June on bank restructuring and reinforcement of the resources of credit institutions, and provided that such support is included within the scope of article 5(3) of the Royal Decree-Law 2/2012 , from February 3, the Minister of economy and competitiveness, upon proposal of the Bank of Spain in view of the economic of the entity, and financial situation and, in particular, to achieve a more efficient management, motivated may be modular or exempt from compliance with the limits provided for in this order to managers and administrators attending to his duties in the awarded entity.

First final provision. Skill-related title.

This ministerial order is pronounced under cover of the provisions of article 149.1.6., 11th and 13th of the Spanish Constitution.

Second final provision. Schools of development.

It empowers the Bank of Spain to dictate the precise standards for the development and execution of this order.

Third final provision. Entry into force.

This order shall enter into force the day following its publication in the "Official Gazette".

Madrid, 3 August 2012.-the Minister of economy and competitiveness, Luis de Guindos jury.