I

The tensions that the international financial system has faced since the beginning of the crisis have made it difficult to fulfill its essential role as a credit channel for the economy. The increase in the cost and the availability of financing has seriously affected the development of the whole of the real economy, limiting the possibilities of economic growth. The difficulties of the financial system in fulfilling this main function of channelling savings to the expenditure needs of economic operators have reached both the family budgets and, in particular, the financing of the small and medium-sized enterprises, a real nuclear element of our business fabric.

In this context, all credit institutions have faced, in addition to severe restrictions on access to finance, a relative deterioration of their assets, especially those related to the sector. property, to a notable increase of the loans qualified as doubtful and, finally, to the decrease of its business, as a consequence both of the duration, intensity and extent of the crisis, and of the sharp fall of the economic activity caused by the same.

The crisis has highlighted the need to ensure by public authorities the basis for the existence of a competitive and robust financial system that facilitates intermediation between the holders of resources. and those who have investment needs. A well structured financial system is the main guarantee that the productive economy of a country can have the financing that it requires to develop to the maximum of its capacity, generating wealth and job creation. It can be concluded that this whole process is based on trust, integrity of institutions and the smooth functioning of markets.

This importance of the financial system justifies the priority and inescapable nature of State intervention to ensure its proper functioning.

In this sense, since the beginning of the crisis, two types of interventions have been produced in the international context. On the one hand, these measures, if not to avoid, at least if to limit the consequences of future crises of the financial system in the economy as a whole: the strengthening of the international financial architecture; the strengthening of the The adoption of new and much more demanding capital rules for financial institutions are examples of this. On the other hand, they highlight the measures to support the financial sector, which individual states or jointly have adopted to restore confidence and mitigate liquidity pressures. First, the coverage of the corresponding guarantee schemes was extended. On the other hand, in the face of the contraction and almost disappearance of the wholesale funding markets, some States, in parallel with the ECB, articulated liquidity-boosting mechanisms. Thirdly, in order to deal with the deterioration of the banks ' own resources, public capital injections were carried out in entities with varying degrees of difficulty. Finally, in order to clarify the value of the banks ' damaged assets and to facilitate the restructuring of banks, some States approved aid to clean up their balance sheets and stress tests were carried out on a broad range of financial institutions

The Spanish Government, for its part, has been pushing for a series of measures since the beginning of the crisis, which are now completed with the content of the current decree-law, aimed at facilitating access to the financing of credit institutions, to safeguard the stability of the system, to promote its restructuring and efficiency, and to ensure, ultimately, the proper channelling of credit towards the real economy.

These measures began with the strengthening of the guarantee of bank deposits in line with all EU Member States, followed by support for the liquidity of credit institutions that occurred through the purchase of high quality financial assets through the Financial Asset Acquisition Fund (FAAF) and the provision of public guarantees to its debt issues. Subsequently, there was a strengthening of the procedures for intervention, discipline and solution of non-viable entities through the Royal Decree-Law 9/2009 created by the Fund for the Ordered Restructuring of Banking (FROB), as supplement to those actions which the Deposit Guarantee Funds may carry out. In addition, as an incentive to the necessary adjustment of the capacity of our financial system to the required size in the medium and long term, it was necessary to articulate a temporary support to the recapitalization of solvent entities, through the acquisition of preferred shares by the FROB, subject to the restructuring of the applicant credit institutions. Finally, there has been a tightening of the accounting rules for the estimation and recognition of the deterioration of doubtful loans, and in particular of the mortgage and real estate guarantees awarded for payments and, recently, has strengthened transparency through the establishment of an information regime on the balance sheet situation of institutions, detailing their exposures and provisions by typology of loans, as well as their business plan and their situation solvency.

The reform of the legal system of savings banks approved by the Government through Royal Decree-Law 11/2010 and validated with a broad consensus by the Congress of Deputies during the month of July, is worth mentioning. 2010. The depth of the reform was a historic milestone in the Savings Banks regime with the aim of achieving greater professionalization of its administration and direction, and, above all, of providing them with capacity to take forms (a) the organisation of the market in the capital markets. The legal framework created in July is essential to meet the current and future challenges of our financial system and, more specifically, to implement immediately the measures contained in this royal decree.

This set of measures has helped to minimize the impact of the global crisis on the Spanish financial system and, especially on the public purse. At the same time, they have led to the process of restructuring the most important and rapid financial sector in our history. This restructuring process has been particularly intense in the savings banks sector, which in less than a year has gone from 45 individual entities, with an average size of 28.504 million euros, to be integrated by 17. entities or groups of entities, with an average asset volume of 75,452 million. This reduction in the number of entities has also meant the beginning of a process of reduction in the number of branches and structure costs, promoting a more efficient and competitive financial system.

In addition to the implementation of the measures promoted by the Government of the Nation, in July 2010, the Spanish entities underwent extensive resistance tests, as they covered the whole of our institutions, and intense, this is, with very severe assumptions, especially as regards the evolution of credit to the real estate sector and construction. The publication of these exercises, in detail by typology of assets, evidenced the situation of solidity and resilience of our financial system, showing that the Spanish credit institutions, with very few exceptions (and little significant for the system as a whole) were in a good position to deal with very adverse and unlikely situations.

On the other hand, the institutions have also reacted to the difficulties presented by the current environment by adopting measures such as the increase of their retail deposit base, the rationalisation of their costs structure, the strengthening of its capital and the consolidation of its assets. Thus, the Spanish banking system as a whole from January 2008 to the end of 2010 recognised and assumed losses in the value of assets amounting to 9% of GDP by the provision of specific net provisions, which They have logically reduced their results, the use of the generic provision fund and the recognition of "fair value" against reserves in the process of integration of savings banks. In addition, they have carried out a recapitalisation amounting to approximately 3% of GDP, with the solvency level of the whole of our system being very noticeable today, with a TIER 1 level of 9.6% of the risk-weighted assets, the latest available data.

This is the current situation of our financial system, the evolution of the last months of the financial tensions in the environment of the euro zone has raised doubts about the capacity of the Spanish financial system. With confidence building up the ultimate pillar of a financial system, this perception risks creating an undesirable dynamic as long as these elements of uncertainty can make it even more difficult for access to finance by entities, which in turn would increase the perception of risk by hindering the flow of credit to the economy, eroding the capacity for growth, in a process of negative feedback.

It is therefore essential to prevent the development of this dynamic and to immediately eliminate all uncertainty regarding our financial system and, by extension, with the whole of our economy. To this end, it is necessary to ensure that each of the entities making up the Spanish banking system has sufficient capital levels sufficient to dispel any doubt not only on its current solvency but also on its soundness against all types of scenarios, including those that are not favourable even if they have a probability of remote materialisation. This will strengthen confidence in the Spanish banking system, which will facilitate access to finance for all entities contributing to the achievement of the fundamental objective of any banking system, i.e. the channelling savings towards investment.

In this context, the actual decree-law responds to a twofold objective: on the one hand, to reinforce the level of solvency of all credit institutions, by establishing a high level of demand in relation to the capital of the highest quality, in order to dispel any doubts about its solvency; and to accelerate the final phase of the processes of restructuring of the entities, through the indispensable framework created by the Royal Decree-Law 11/2010. These objectives will ensure the role of the financial sector in channelling credit to the economy and that in the case of savings banks it will be combined with the essential objective of maintaining its social work.

The measures provided for in this Royal Decree Law are articulated in two large blocks, the strengthening of the capital of the entities and the adaptation of the FROB as a public instrument to facilitate the new capitalization. required.

As for the strengthening of solvency, an advanced and demanding application of the new international standards of capital, Basel III, is established. Thus, the immediate establishment of a minimum principal capital, in relation to the risk-weighted assets, is followed by basically following the definition that Basel III sets out in 2013. This minimum level of the principal capital ratio is 8%, with 10% being for those entities that have not placed securities representing their capital to a third party for at least 20%, and which also have a financing ratio wholesale of more than 20%. This means that institutions are equipped with a capital, of the highest quality, sufficient to guarantee a high solidity, being the highest requirement for those entities that have less agility to capture basic capital if necessary.

Additionally, the Banco de España may require an individual entity to have a higher level of principal capital depending on the results of resistance exercises that may be performed for the system as a whole.

The elements that make up the principal capital are, in line with the provisions of Basel III for 2013: capital, reserves, emission premiums, positive valuation adjustments, minority interests; and, in addition, the instruments subscribed by the FROB and, transiently, the instruments which are mandatory convertible into shares before 2014 and which meet certain requirements which guarantee a high loss absorption capacity. These items will be minted by negative and loss results, negative valuation adjustments and intangible assets.

These new requirements will take effect on March 10, 2011. In addition, given the evidence that there will be some entities with difficulty in reaching this new requirement imminently, the standard has designed a progressive compliance strategy.

Those entities that do not reach the required level of principal capital on 10 March will have 15 working days to inform the Banco de España of the strategy and timing with which they guarantee compliance with the new requirements. 8% or 10% of principal capital, as appropriate, before 30 September 2011. This strategy, which may provide for the collection of third-party resources and the disposal of the institutions, must be approved by the Banco de España, which may also require modifications or additional measures.

However, given that some issues could be raised that could delay compliance, related to the operations or formalities that might have to be carried out by the entities, and which in some cases could be The Bank of Spain may authorise a deferral of up to a maximum of 3 months on the previous date and, exceptionally, in cases of outflows, and provided that a set of milestones that generate certainty have been met on the decision and the amount of the issue, may extend the execution until the first quarter of 2012.

Once the transitional period is completed and when the entities have reached the new principal capital requirements, and following the conceptual structure of Basel III, which establishes a conservation capital buffer, the In the case of a temporary non-compliance of up to 20% of the principal capital ratio required, the Bank of Spain shall determine the imposition of restrictions which may affect the distribution of dividends, the amount of the social benefit, the remuneration of the preference shares, the variable remuneration of managers and management and share repurchase.

Previewing the possibility that not all the entities can raise capital in the basic capital markets the second block of the present royal decree amends the legal regime of the FROB with object that the proportion of support is made through the temporary acquisition of ordinary shares, under market conditions, of those entities that do not comply with the required own resources levels and that so request, either immediately or once Turning to the market, they have not grasped all the necessary resources.

This measure, which may logically imply the entry of the public sector into the social capital of credit institutions, has been designed within a framework of strict compliance with the applicable European Union and European Union rules. maximum protection of public resources.

Thus, first, the purchase price of the shares or contributions to the share capital shall be determined in accordance with the economic value of the entity, which shall be determined by one or more independent experts to be designated by the FROB, through a procedure that will develop the FROB, based on commonly accepted methodologies and based on market value.

Regarding the divestment, it should be emphasized that the presence of the FROB in the capital of the entities is temporary, with the maximum term being five years. The disposal shall be carried out by means of procedures to ensure competition. However, at the time of acquisition of the securities, the Banking Ordered Restructuring Fund may lay down the terms in which, within a maximum of one year from the date of subscription or acquisition, it would sell those securities to the institutions that are broadcasters of the same or third-party investors proposed by the beneficiary of their performance. This maximum period may be two years, in which case the applicant entities may be required to make additional commitments to those provided for in their recapitalisation plan. The conditions of such resale must ensure an efficient use of public resources and be carried out on market conditions, in any case complying with the Spanish and European Union rules on competition and aid Status.

The temporary vocation of the support of the FROB in the provision of basic capital determines that the investment will be made through the acquisition of ordinary shares, so that the moment the FROB can be easily disposed of and in market conditions of the same. This requirement determines in turn that the entity benefiting from the support is a bank. This is why it is established that if the credit institution applying for financial support is a savings bank, it will have a period of three months for the transfer of the entire financial activity to a bank through which the credit institution they shall have their financial activity indirectly exercised by maintaining their legal status as a cash-in-place or by being a foundation, or the bank acting as the central institution of the institutional protection system for which they are a party.

In addition, the acquisition of securities by the FROB is conditional on the institution's elaboration of a Recapitalisation Plan in which, in addition to presenting a business plan, it will have to make certain related commitments, For example, with the reduction of their structural costs, the improvement of their corporate governance or the evolution of their credit activity.

The acquisition of securities by the FROB will in turn determine its incorporation to the Board of Directors of the issuing entity in a strict proportion to the percentage of the entity's participation.

The rule also provides for the possibility of acquisitions by the FROB of convertible preference shares in contributions to the social capital of credit unions, in a scheme that reproduces the plan until the Entry into force of the present royal decree-law.

Finally, it should be noted that the royal decree-law also provides for a series of measures of a fiscal nature aimed at ensuring neutrality in the processes of restructuring the financial system.

The main fiscal issues that are addressed are the inclusion of credit institutions integrated into a SIP in the fiscal consolidation group of the central bank, the application of tax credits prior to the Fiscal group constitution, the segregation of all financial business done by the banks in favour of a bank and, finally, intra-group transactions when the banking entity ceases to belong to the tax group.

In short, these specific changes aim to ensure that the process of restructuring the financial sector is carried out without tax costs associated with the process itself, resulting from the impossibility of applying the tax credits generated or generated by the credit institutions involved in the process and which would be fully applicable in a traditional merger process or arising from the incorporation into the tax base of the intragroup results pending taxation when the exit of the fiscal group of the entities occurs banking.

It should be noted, finally, that the present royal decree-law maintains the legal status of Law 31/1985 of 2 August, regulating the basic rules on Governing Bodies of Savings Banks (LORCA). The essence of the Law is not changed and the various institutional alternatives provided for in it are maintained.

In short, the measures contemplated in this real decree-law, are directed as ultimate objective, to guarantee the efficiency of our financial system by ensuring the channeling of the credit to the real economy and, with it, making the possibilities for growth and job creation possible.

If with the actual decree-law of the creation of the FROB and of the reform of the legal system of the savings banks the structure and instruments necessary for the restructuring of our financial system were created, in full consistency with both, with this third royal decree-law the immediate use of such structures and instruments to conclude the final phase of the restructuring process. The aim is to achieve a more solvent, more transparent and more efficient financial system, culminating in the stage of further modernization of our recent financial history.

II

Title I of the real decree-law is dedicated to the forecasts of strengthening the solvency of credit institutions.

Article 1 sets out the new requirements for principal capital of credit institutions. It is established that those institutions shall have a principal capital of at least 8% of their total risk-weighted exposure amounts, calculated in accordance with the provisions of Law 13/1985 of 25 May of investment coefficients, own resources and reporting obligations of financial intermediaries and in their development rules.

Second, a higher requirement of 10% is set for those entities that exceed 20% of wholesale funding and have not placed securities representing their share capital or voting rights for at least the following: a percentage equal to or greater than 20% of the percentage to third parties. This higher requirement is justified in the greatest difficulty that the entities that meet both requirements have to raise private capital.

Third, it is specified that the short-term default of up to 20% of the principal capital ratio required will determine that the Banco de España imposes restrictions on the distribution of profits in the form of a distribution of dividends, variable remuneration for employees or repurchase of shares.

In the fourth place, the Banco de España is expected to be able to demand compliance with a higher principal level of capital if the entity does not reach the most adverse scenario of a system-wide resistance test. of the minimum own resources required by that test.

In any event, the fixing of these new capital requirements does not affect the full validity of Law 13/1985, of 25 May, and its development regulations, which is particularly relevant in the field of possible non-compliance. of the new requirements, in which case the provisions of Article 11 of that law on the inadequacy of own resources shall apply.

Article 2 of the royal decree-law establishes the definition of principal capital in line with the content of the so-called "common equity tier 1" provided for in the Basel III Agreement. The elements that make up the principal capital are, essentially, those foreseen in Basel III (2013): capital, reserves, emission premiums, positive adjustments for valuation, minority interests; plus the instruments subscribed by the FROB and Transitional instruments are mandatory to be converted into shares before 2014. Reduced by negative results and losses, negative valuation adjustments and intangible assets.

Finally, Article 3 of this first rule of law includes the system of penalties for non-compliance with the new capital requirements, by reference to the scheme provided for in Law 26/1988 of 29 July 1988. Discipline and Intervention of Credit Entities, for non-compliance with own resources regulations. The scheme considers that there is a very serious lack of capital for more than six months under 80% of the required and serious infringements if such insufficiency occurs between 80% and 100%.

III

Title II of the standard includes a single article dedicated to the modification of several precepts of Royal Decree-Law 9/2009 of 26 June on the bank restructuring and strengthening of the own resources of the institutions of the credit.

Paragraph one modifies Article 3 of the aforementioned royal decree-law referred to the Government of the Bank Ordered Restructuring Fund. The main change is the composition of the Rectoring Commission, which will now be composed of nine members appointed by the Minister for Economic Affairs and Finance, two of which will be represented by the Ministry of Finance. Economy and Finance, one of them from the Secretariat of State of Finance and Budget and another from the Secretariat of State of Economy, four will be proposed by the Bank of Spain and three in representation of the Deposit Guarantee Funds. The rest of the paragraphs, in terms of appointments, cesses and supplences, are adapted to the entry into the Rector Commission of two representatives of the Ministry of Economy and Finance.

Paragraph two amends Title II to Royal Decree-Law 9/2009 of 26 June, consisting of five articles that constitute one of the main innovations introduced by the law.

In the new Article 9, the instruments available to the Fund for the orderly restructuring of banks for the strengthening of the credit institutions ' own resources are established. The Fund may adopt financial support measures, such as the acquisition of ordinary shares representing the share capital or contributions to the share capital of institutions issuing banks and credit unions which need to be strengthened. their own resources and so request. For this purpose it shall not be necessary for them to be in a situation of economic and financial difficulty which may affect their viability as provided for in Article 6 of Royal Decree-Law 9/2009 of 26 June 2009.

In any case, the rule provides that the subscription of the securities will be conditional upon the elaboration by the applicant entity of a recapitalization plan that must be approved by the Banco de España. It is in accordance with the requirements of the Fund's support, in accordance with which, prior to the decision on the subscription of securities, the holder of the Ministry of Economic and Financial Affairs shall be entitled to an economic memory in which he/she is entitled The financial impact of this acquisition on the funds provided by the State's General Budget may be in detail, and may be, in particular, within 5 working days of the date of such a high memory.

The rule continues to provide that the contributions committed by the Bank Ordered Restructuring Fund may be made in cash or by the delivery of securities representing public debt or securities issued by the Fund itself. It is also established that the Fund for Banking Restructuring will be able to meet the contributions committed through compensation of claims against the beneficiary entities.

In the fifth paragraph of the new Article 9, the valuation rules governing the acquisition or subscription of securities by the Fund are established. It is established that the price shall be fixed in accordance with the economic value of the credit institution, which shall be determined by one or more independent experts to be designated by the Bank Ordered Restructuring Fund, through a procedure which develop the Banking Ordered Restructuring Fund by following commonly accepted methodologies and taking into account the market value.

On the other hand, it is established that the subscription of shares by the Banking Ordered Restructuring Fund will immediately determine its incorporation into the management body of the issuing entity in the proportion that results its participation in the institution in order to ensure the proper implementation of the recapitalisation plan.

As to the divestment by the Fund, it is established that it will be carried out through its disposal through procedures that ensure competition and within a period of no more than five years from the date of your subscription. In any event, the Bank Ordered Restructuring Fund may participate together with some or some of the other partners or shareholders of the credit institution in question for any process of selling securities on the same terms as these can be arranged. Finally, it is established that within a maximum of one year from the date of subscription or acquisition, the Fund for Banking Restructuring may resell the securities subscribed or acquired to the entities that have issued them or to third parties. proposed by the latter, according to market conditions and provided that the selling price provides an appropriate market return for the investment made. This maximum period may be two years, in which case the applicant entities may be required to make additional commitments to those provided for in their recapitalisation plan.

Both for the fixing of the subscription price and for the disposal will be required prior to the General Intervention of the State Administration.

The new Article 10 provides for the acquisition scheme by the Fund for the orderly restructuring of a bank of preferential shares convertible into contributions to the social capital of credit unions, a scheme which reproduces the intended until the actual decree-law's entry into force.

Article 11, for its part, provides for a period of three months for the transfer of all the financial activity of those boxes which apply for the support of Article 9, or to the bank through which they carry out indirectly its activity, either to the relevant bank in its process of transformation into foundation, or to the bank acting as the central institution of the institutional protection system to which it is a party.

The new Article 12 sets out the content of the necessary recapitalisation plan which the institution will have to prepare for the Fund to subscribe to the corresponding securities of its share capital.

It is established that such a plan should include a business plan setting targets for efficiency, profitability, leverage levels and liquidity. In addition, the standard provides that the applicant entities should undertake commitments to reduce structure costs, measures to improve their corporate governance and commitments to increase financing to small and medium-sized enterprises. companies, in terms that are compatible with the objectives set out in your business plan.

The Banking Ordered Restructuring Fund may require the applicant entities to make additional commitments to preserve the efficient use of public resources, as well as the provision of periodic information at last. to comply with its reporting obligations to the European authorities.

Finally, the new Article 13 establishes for the applicant entities the obligation to comply with good governance standards of listed companies.

IV

The final part of decree-law includes five additional provisions, four transitional provisions, one derogating provision and five final provisions.

Among these provisions, highlights the first transitional provision that establishes the strategy of meeting the new capital requirements.

The general repeal clause is followed by five final provisions, which include the amendment of several provisions of the Royal Decree of Legislative Decree 4/2004 of 5 March, approving the recast of the Law of the Corporation tax, an enabling for the immediate development by the Banco de España of the definition of wholesale financing provided for in Article 1 of the royal decree-law the reference to the competition titles and the entry into force on the day following its publication.

The adoption of the measures envisaged in this real decree-law is essential to strengthen confidence in our financial system, preventing dynamic uncertainty that could make it more difficult to access financing by financial institutions and, ultimately, to prevent the normal flow of credit to the economy. It is for this reason that the adoption of such measures requires recourse to the procedure of the royal decree-law, fulfilling the requirements of Article 86 of the Spanish Constitution in terms of its extraordinary and urgent need.

In its virtue, making use of the authorization contained in article 86 of the Spanish Constitution, on the proposal of the Second Vice President of the Government and Minister of Economy and Finance and after deliberation of the Council of Ministers at their meeting on 18 February 2011,

DISPONGO:

TITLE I

Strengthening the own resources of credit institutions

CHAPTER I

Primary Capital

Article 1. Strengthening the solvency of credit institutions.

1. The consolidated groups of credit institutions, as well as credit institutions which are not integrated into a consolidated group of credit institutions, which are able to attract repayable funds from the public, must have a principal capital of at least: 8% of its total risk-weighted exposure amounts and calculated in accordance with the provisions of Law 13/1985 of 25 May of investment ratios, own resources and reporting obligations of financial intermediaries and their development regulations.

2. The above percentage shall be 10% for the consolidable groups of credit institutions and the individual credit institutions referred to in the previous paragraph that meet the following two conditions:

(a) have a wholesale financing coefficient of more than 20% according to the definition established by the Banco de España, and,

(b) do not have distributed securities representing their share capital or voting rights for at least a percentage equal to or greater than 20% of the share of third parties, including shareholders or members. For these purposes, the shares held by the savings banks which have contributed their financial business to a bank to develop their own subject matter as a credit institution, those of foundations originating in the country, shall not be taken into account. the transfer of savings banks or the participation in the social capital of the Fund for Banking Restructuring. In the case of consolidable groups of credit institutions in which one or more savings banks have chosen to develop their own subject matter as an indirect credit institution, this condition shall be verified on the bank to which the credit institution is located. have contributed their financial business.

3. Once the first transitional provision has been met, where an entity presents a principal capital level below the minimum set out in the preceding paragraphs and this level of insufficiency is less than 20%, The Bank of Spain shall impose restrictions which may affect the distribution of dividends, the allocation to the work-social work, the variable remuneration of directors and directors, the remuneration of the shares preference and share repurchase.

In any event, the restrictions provided for in this paragraph shall cease to apply from the opening of a sanctioning file as provided for in Article 3.

4. The Bank of Spain may require the entities or groups referred to in this Article to comply with a principal capital level higher than that provided for in paragraphs 1 and 2 if the institution does not reach the most adverse scenario of a test of system assembly resistance, the minimum level of own resources required in that test and up to the limit of that requirement.

5. The provisions of this Article shall be without prejudice to the application of the provisions of Law No 13/1985 of 25 May 1985 on investment coefficients, own resources and information obligations of financial intermediaries and their rules of development, and in particular of the provisions of Article 11 of that law on the inadequacy of own resources.

Article 2. Main capital.

1. For the purposes of the foregoing Article, the principal capital of a credit institution shall be the result of adding the following elements of its own resources:

(a) The share capital of public limited liability companies, excluding, where appropriate, non-voting and redeemable shares; the funds and the equity shares of savings banks and equity partnership shares issued by the Spanish Confederation of Savings Banks; contributions to the social capital of credit unions. In any event, the calculation of the shares or computable securities referred to in this point which are held by the institution or any consolidable entity shall be excluded.

(b) The issuance premiums paid out in the subscription of ordinary shares or other instruments provided for in the preceding subparagraph.

c) Effective and express reserves, as well as items classified as reserves in accordance with the credit institutions ' own resources regulations and the positive results of the financial year compliance with such rules.

d) Positive adjustments for the valuation of financial assets available for sale that are part of the net worth, net of tax purposes.

e) the shares representing the minority interests corresponding to the ordinary shares of the companies in the consolidated group, in accordance with the rules on own resources.

(f) The computable instruments subscribed by the Fund for Banking Ordered Restructuring within the framework of its regulatory regulations.

2. The result of the above sum will be deducted the amount of:

(a) The negative results of previous financial years, which are accounted for as the debtor balance of the accumulated loss reserve account, and the loss of the current financial year, including the amount of the financial year results loss attributed to the minority, as well as the debtor balances of the net worth accounts assimilated to negative results in accordance with the rules on own resources of the credit institutions. For these purposes, negative adjustments for the valuation of financial assets available for sale shall be considered net of tax purposes.

(b) intangible assets, including goodwill from business combinations, consolidation or the application of the equity method. The value of such assets shall be calculated in accordance with the provisions of the Bank of Spain.

CHAPTER II

Sanctioning Regime

Article 3. Sanctioning regime.

Without prejudice to the provisions of the First Transitional Provision of this Royal Decree-Law, failure to comply with the provisions of Article 1 shall be deemed to be very serious or serious in accordance with the provisions of point (c) of the Article 4 and point (h) of Article 5 of Law 26/1988, of July 29, of Discipline and Intervention of Credit Entities.

TITLE II

Banking Orderly Restructuring Fund Reform

Article 4. Amendment of Royal Decree-Law 9/2009 of 26 June 2009 on bank restructuring and strengthening of the own resources of credit institutions.

Royal Decree-Law 9/2009 of 26 June on bank restructuring and strengthening of the own resources of credit institutions is amended as follows:

One. Article 3 is worded as follows:

" Article 3. Government of the Bank Ordered Restructuring Fund.

1. The Fund for Bank Orordinate Restructuring will be governed and administered by a Rector Commission composed of nine members appointed by the Minister of Economy and Finance, of which two will be represented by the Ministry of Economy and Finance, one of them from the Secretariat of State of Finance and Budget and another from the Secretariat of State of Economy, four will be proposed by the Banco de España and three in representation of the Deposit Guarantee Funds.

Attend the sessions of the Rectoring Commission, with a voice but without a vote, a representative of the General Intervention of the State Administration appointed by the Minister of Economy and Finance on the proposal of the Financial Controller General.

One of the members appointed on a proposal from the Bank of Spain will be its Deputy Governor, who will hold the Presidency of the Rector Commission. In the event of the President's absence, he will be replaced by another of the members appointed on a proposal from the Bank of Spain elected by a majority of the members of the Rector Committee attending the session. The members of the Rectoring Commission shall appoint from among those who are on a proposal from the Bank of Spain to whom it will perform the duties of the Secretary of the Rectoring Commission.

The representatives of the Deposit Insurance Funds shall be appointed among the members of their management committee who have the status of representatives of the credit institutions adhered to, by majority agreement of these. Of the three representatives of the Deposit Insurance Funds one will be represented by the banks, one of the savings banks and one of the credit unions.

By the same procedure, two alternate representatives of the appointed representatives of the Ministry of Economy and Finance, two alternate representatives of those proposed by the Bank of Spain, and one representative will be appointed. alternate for each of those proposed by the Deposit Insurance Funds, which will replace the holders in case of vacancy, absence or disease. In the case of representatives of the Deposit Insurance Funds, they shall also be replaced when the Rector Commission is to deal with issues directly affecting an entity or group of entities with which it is linked as administrator, manager or under a labor, civil or commercial contract or any other relationship that may impair the objectivity of your decisions.

The term of office of the members of the Rectoring Commission shall be four years being such a renewable term once for the same period of time.

Members of the Rectoring Commission will cease to be charged for the following reasons:

a) Expiration from the term of your term as a member of the Rector Commission.

b) Cese in the position held by the representatives of the Ministry of Economy and Finance and the Bank of Spain.

c) Renunciation accepted by the Minister of Economy and Finance.

d) Separation agreed upon by the Minister of Economy and Finance for incompatibility, serious breach of his obligations, permanent incapacity for the exercise of his function or conviction for criminal offence.

e) Expiration of the term of office as a member of the managing commission of the Deposit Insurance Funds.

The Eesc Agreement will be adopted by the Minister of Economy and Finance. In the case of the representatives of the Banco de España or the Deposit Guarantee Funds, this agreement will be adopted on a proposal from the Banco de España. Where the eesc is concerned by a member of the Rectoring Commission which is representing the Deposit Insurance Fund, it shall, in advance, be heard by its management committee which, for these purposes, shall form its will by majority agreement of the representatives of the credit institutions attached, without intervention by the representatives of the Banco de España.

2. The Rectoring Commission shall meet each time it is convened by its President, either on his own initiative or at the request of any of its members. It shall also be empowered to establish its own system of calls.

3. The Rectoring Commission shall determine the rules of its own operation and may agree to the delegations or proxies it deems appropriate for the proper exercise of its functions.

4. In addition to the functions provided for in other precepts of this royal decree, the Rectoring Commission shall have the following:

(a) Approval of the implementation of the financing operations provided for in Article 2 (5).

(b) Approval of the accounts which the Bank Ordered Restructuring Fund will have to pay annually to the Minister for Economic Affairs and Finance, as well as the report which, in accordance with Article 4, must be raised to the Minister of Finance Economy and Finance for referral to the Economic and Finance Committee of the Congress of Deputies.

(c) Adoption of the preventive and sanitation measures provided for in Articles 6 and 7.

(d) Adoption of measures to strengthen the own resources provided for in Article 9.

5. For the valid constitution of the Governing Commission of the Fund for Banking Restructuring for the purposes of the holding of meetings, deliberations and adoption of agreements, at least half of its members will be required to attend voting rights. Their agreements shall be adopted by a majority of their members, with the president having a vote of quality in the event of a tie in the number of votes.

6. The members of the Rectoring Commission shall be obliged to keep secret of the information they know by virtue of their participation in the tasks of the Fund, not being able to make use of it for purposes other than the performance of the functions entrusted to the Banking Ordered Restructuring Fund. "

Two. Title II is worded as follows:

" TITLE II

Strengthening the own resources of credit institutions

CHAPTER I

Instruments for the strengthening of the own resources of credit institutions

Article 9. Instruments for the strengthening of the own resources of credit institutions.

1. The Fund for Banking Restructuring may adopt measures of financial support, such as the acquisition of ordinary shares representative of the share capital or contributions to the social capital of the institutions, which, without incurring the circumstances set out in Article 6 of this Royal Decree-law, need to strengthen their own resources and so request.

2. The subscription of the securities referred to in the preceding paragraph shall be conditional upon the establishment by the applicant entity of a recapitalisation plan, with the content specified in Chapter II. This plan must be approved by the Banco de España, which must supply the information to the Ministry of Economy and Finance through the Directorate General of the Treasury and Financial Policy.

3. Prior to the decision on the subscription of securities, the Fund for Banking Restructuring will raise an economic memory to the Minister of Economy and Finance, in which the financial impact of this acquisition on the funds provided by the General Budget of the State. On the basis of that report and the statement issued by the General Intervention of the State Administration as provided for in paragraph 5 below, the Minister for Economic Affairs and Finance may, on a reasoned basis, object within 5 working days of to be elevated to that memory.

4. Contributions committed by the Bank Ordered Restructuring Fund may be made in cash or by the delivery of securities representing public debt or securities issued by the Fund itself. In addition, the Bank Ordered Restructuring Fund may satisfy the contributions committed by way of compensation of claims against the requesting entities.

5. The purchase or subscription price shall be fixed in accordance with the economic value of the credit institution, which shall be determined by one or more independent experts to be designated by the Bank Ordered Restructuring Fund. The valuation will be carried out through a procedure that will develop the Banking Ordered Restructuring Fund following commonly accepted methodologies. Among other factors, this assessment will take into account, where appropriate, the extraordinary consolidation operations undertaken by the institutions.

If, during the five months preceding the subscription, a significant percentage of capital was placed between third parties, for the purposes of being able to consider the price paid as a market value, and that percentage The subscription price shall be the same as that for which the said placement had been made, in excess of the one acquired by the Bank Ordered Restructuring Fund. If, in the case of a significant percentage of capital, that percentage is lower than that acquired by the Bank Ordered Restructuring Fund, the price of the subscription shall be the price of the said placement. In any event, the acquisition or subscription shall be made in accordance with the Spanish and European Union rules on competition and State aid.

The subscription price will be fixed after the General Intervention of the State Administration is reported.

6. The subscription of shares and contributions to the share capital by the Fund for Banking Restructuring shall in any event determine by itself and without the need for any other act or agreement, its incorporation into the administrative body of the the issuing entity in order to ensure the proper implementation of the Recapitalisation Plan. The Bank Ordered Restructuring Fund shall appoint the natural person or persons who represent its representation to that effect and shall have the authority of so many votes as those resulting from the application of the total number of its votes. percentage of participation in the entity.

For the purposes of the third paragraph of Article 5 of the Royal Decree-Law 11/2010, of July 9, of governing bodies and other aspects of the legal regime of the Savings Banks, the Participation of the Banking Ordered Restructuring Fund in the social capital of an entity.

7. It shall apply to the securities entered into by the Banking Ordered Restructuring Fund in the performance of the tasks entrusted to it in this Article with the provisions of Article 7 (6) and (9

.

8. In order to ensure greater efficiency in the use of public resources, the disinvestment by the Fund for the Orordered Restructuring of the securities subscribed to in the exercise of the functions entrusted to it in this article shall be carried out through its disposal through procedures that ensure competition and within a period not exceeding five years from the date of its subscription.

Without prejudice to the foregoing paragraph, the Banking Ordered Restructuring Fund may be present together with some or some of the other partners or shareholders of the credit institution in question for any process of selling titles on the same terms as these can be arranged.

In addition, the Banking Ordered Restructuring Fund may, by subscribing or acquiring the securities referred to in this Article, establish the terms in which, within the maximum period of one year from the date of subscription or the acquisition of such securities to the issuing entities of the same or to third investors proposed by the entity benefiting from its action. The conditions of such resale must ensure an efficient use of public resources and be carried out on market conditions, in any case complying with the Spanish and European Union rules on competition and aid Status.

The maximum period provided for in the preceding paragraph may be two years from the date of subscription or acquisition, in which case the Banking Ordered Restructuring Fund may require the applicant entities to make commitments. additional to those provided for in Article 12.1 within its recapitalisation plan.

9. On a quarterly basis, the requesting entity shall send to the Banking Ordered Restructuring Fund a report on the degree of compliance with the measures referred to in the approved recapitalisation plan. The Banking Orderly Restructuring Fund, in view of the content of that report, may require the adoption of the actions necessary to ensure that the recapitalisation plan is effectively completed.

The disposal will be carried out prior to the General Intervention of the State Administration.

10. The provisions of this Article shall be without prejudice to compliance with the applicable law on the defence of competition.

Article 10. Acquisition of compulsorily convertible securities.

1. The Fund for Bank Ordered Restructuring may also acquire securities consisting of preferred shares convertible into contributions to the share capital of credit unions, issued by those entities which, without Under the circumstances set out in Article 6 of this Royal Decree-Law, they need to strengthen their own resources for the exclusive purpose of carrying out integration processes and so request.

The subscription of such securities by the Orderly Restructuring Fund will be conditioned by the elaboration by the entities of an integration plan that will have to detail the specific measures and commitments directed to achieve this objective and to be approved by the Banco de España, under the principle of the most efficient use of public resources. The acquisition must take into account, in any event, the time limit and the risk of the operation, the need to avoid the risk of a competitive distortion and the fact that such acquisition facilitates the execution and fulfilment of the plan. of integration and shall be chaired by the principle of the most efficient use of public resources.

The integration plan will involve, among others, an improvement in its efficiency, the rationalization of its management and management as well as a resizing of its productive capacity and all of this in order to improve its future prospects.

2. The titles referred to in this Article shall be governed by the provisions contained in the second provision of Law 13/1985 of 25 May 1985 on investment coefficients, own resources and information obligations of the Member States. financial intermediaries, with the following specialties.

(a) The issue shall be exceptional and shall only be agreed upon and for the purposes of the provisions of this royal decree-law. The issuing institutions shall approve, at the time of the adoption of the agreement on the issue of the preference shares provided for in this Article, the necessary arrangements for the subscription of capital contributions in the amount necessary. The terms and conditions of the remuneration of the preference shares shall, in any event, take into account the principles set out by the European Commission.

(b) The issuing entities will have to commit to repurchase the securities subscribed by the Bank Orderly Restructuring Fund as soon as they are in a position to do so in the terms committed in the integration. After five years from the disbursement without the preference shares being repurchased by the institution, the Bank Ordered Restructuring Fund may request its conversion into the issuer's social contributions. The exercise of this right must be carried out, if appropriate, within the maximum period of six months from the end of the fifth year since the disbursement of the preference shares. Notwithstanding the foregoing, the issuance agreement shall also include the convertibility of the preferred shares at the request of the Bank Ordered Restructuring Fund if, before the end of the five-year period, the Bank of Spain considers it unlikely, in the light of the situation of the entity or its group, that the repurchase of the preferred shares can be carried out within that period.

(c) The preferred shares issued under this precept shall be computable as basic own resources, without it being compulsory for them to be part of an organised secondary market. For these purposes, the limitations that the law establishes for the computability of own resources will not apply to them.

(d) The agreement to issue these securities shall also be subject to the remaining conditions set out in the integration plan.

3. Prior to the effective acquisition of these securities, the Fund for Banking Restructuring will raise an economic memory to the Minister of Economy and Finance, in which the financial impact of this acquisition on the funds provided by the General Budget of the State. The Minister for Economic Affairs and Finance may object, in a reasoned manner, within 5 working days of the date on which the said memory is raised.

4. The divestiture of the Bank Ordered Restructuring Fund will be made by its repurchase of the securities by the issuing entity or its disposal to third parties. Where the divestiture of such securities or of those resulting from their conversion takes place through their disposal to third parties, it shall be carried out by means of procedures which ensure competition and within a period not exceeding five years. years to be counted from the date of implementation of the integration plan, which shall not be applicable in the event that the entity is implementing paragraph 8 of this Article. Disinvestment of contributions to the share capital shall not be subject to any statutory or statutory limitation.

5. The conversion of the preference shares into capital contributions shall apply to the provisions of Article 7 (6) and (9

.

6. On a quarterly basis, the entity designated by the entities involved in the integration process or, where appropriate, the entity resulting from the integration process, shall send to the Banco de España a report on the degree of compliance with the measures envisaged. in the approved integration plan. The Bank of Spain, in view of the content of this report, may require the adoption of the actions necessary to ensure that the integration plan is effectively completed.

7. If, as a result of the evolution of the economic-financial situation of the entity resulting from the process of integration or the development of market conditions, it was warned that the integration plan cannot be fulfilled in the the terms in which it was approved, the institution may ask the Banking Ordered Restructuring Fund to amend these terms, which may include, inter alia, an extension of the time limit for the repurchase of the securities subscribed by the Fund referred to in paragraph 2 (b) above, up to two years. The modification of the plan of integration agreed with the Fund of Ordered Restructuring Bank must be approved by the Banco de España.

8. If, as a result of the evolution of the economic-financial situation of the entity resulting from the process of integration or the development of market conditions, the integration plan cannot be carried out and the entity is In the circumstances provided for in Article 6, the provisions of Article 7 shall apply to that entity, and it shall be laid down in the plans which, in accordance with that Article, shall be adopted in respect of the securities entered into by the Fund. Banking Orderly Restructuring.

Article 11. Transfer of financial activity in certain cases.

1. The savings banks may request the action of the Banking Restructuring Fund provided for in Article 9 (1). To this end, they must transfer their financial activity to a bank in accordance with the provisions of Articles 5 or 6 of Royal Decree-Law 11/2010 of 9 July 2010 of governing bodies and other aspects of the legal regime of the Savings Banks in the a maximum period of three months from the date on which the approval of the recapitalisation plan referred to in the following Article is notified to them.

2. If the institution requesting the performance of the Banking Restructuring Fund provided for in Article 9 (1) is a bank jointly participated by savings banks in accordance with the provisions of Article 8.3 of the Law 13/1985 of 25 May, of Investment Coefficient, Own Resources and Information Obligations of the Financial Intermediaries, those must transfer all their financial activity to the bank and exercise their activity according to the provisions of the Articles 5 or 6 of Royal Decree-Law 11/2010, of July 9, of governing bodies and other aspects of the the legal status of the savings banks within the maximum period of three months from the date on which they are notified of the approval of the recapitalisation plan referred to in the following Article.

CHAPTER II

Recapitalization Plan

Article 12. Content of the recapitalisation plan.

1. The recapitalisation plan referred to in Article 9 (2) of this Royal Decree-Law shall include a business plan setting out objectives relating to efficiency, profitability, levels of leverage and liquidity. The applicant entities should also make the following commitments:

(a) The applicant entities shall, if requested by the Bank Ordered Restructuring Fund, undertake the commitment to reduce the structure costs in respect of their total amount at the time of subscription of the securities by the Banking Ordered Restructuring Fund.

(b) The applicant entities shall take measures to improve their corporate governance. They shall, in general, be adapted to the standards of good corporate governance of listed companies and, in particular, shall comply with the provisions of Article 13.

(c) The applicant entities shall undertake the commitment to increase funding to small and medium-sized enterprises, in terms consistent with the objectives set out in their business plan.

In the event that the applicant entities had previously issued convertible preference shares that would have been subscribed by the Bank Ordered Restructuring Fund, they may proceed, if so requests that Fund and in agreement with it, to its immediate conversion into ordinary shares or contributions to the share capital in the terms provided for in the corresponding public issuance.

In the event that the applicant entities are savings banks, they will necessarily adopt the scheme provided for in the fifth additional provision of Royal Decree-Law 2/2011 of 18 February for the strengthening of the system financial, in the case of agreements relating to their participation in the bank through which they develop, where appropriate, their activity as a credit institution.

2. The Banking Ordered Restructuring Fund may require the applicant entities to make additional commitments to those listed in the previous paragraph to preserve the efficient use of public resources.

Similarly, the Banking Ordered Restructuring Fund may require the applicant entities to make additional commitments to supply periodic information in order to comply with their reporting obligations to the authorities. competent of the European Union.

Article 13. Corporate governance rules for applicant entities.

1. The number of members of the administrative body shall not be less than five or more than 15 members, of which at least one third shall be independent directors.

The external, Sunday and independent directors will form the majority of the administrative body, with the number of executive directors being the minimum necessary, depending on the complexity of the corporate and percentage of executive directors ' participation in the capital of the institution.

The management body must explain to the General Assembly or Assembly that the character of each member of the Board should be appointed; the same shall be reviewed annually in the Annual Report of Corporate Governance. verification by the Nomination Commission to be established in the entity.

Independent advisors will not be able to remain as such for a continuous period of more than 12 years.

Entities will make public through their website, and keep updated, information about their counselors.

2. The administrative body shall be a Commission, or two separate Commissions, of Appointments and Remuneration.

The Nomination Committee shall be responsible for, among other functions, the assessment of the necessary competences, knowledge and experience in the Council, the definition, consequently, of the necessary functions and skills. in the candidates to fill each vacancy, and the evaluation of the precise dedication to the good performance of their mission.

The Committee on Remuneration will be responsible, among other functions, for ensuring compliance with the remuneration policy established by the company, as well as the proposal to the administrative body of the remuneration of directors and senior managers, the individual remuneration of executive directors and the other conditions of their contracts and the basic conditions of senior management contracts. '

Additional disposition first. Derogation from the obligation to make a public procurement offer in restructuring or integration processes.

Who reaches the control of a listed company as a result of restructuring or integration processes in the framework of Royal Decree-Law 9/2009 of 26 June on bank restructuring and the strengthening of resources credit institutions themselves, or the direct intervention of a Deposit Insurance Fund of credit institutions shall not be required to make a public procurement offer in accordance with the terms of Article 60 of the Law 24/1988, of 28 July, of the Stock Market and its development regulations, when these actions are (a) with financial support from the Bank Ordered Restructuring Fund or the Deposit Insurance Fund.

The provisions of this provision shall apply to the takeover in listed companies resulting from the fulfilment of restructuring or integration agreements concluded after the entry into force of the Royal Treaty. Decree-law 9/2009 of 26 June on the restructuring of banks and the strengthening of the own resources of credit institutions.

Additional provision second. Certain assumptions of non-attachment to temporary limitations for the activity of newly created credit entities.

New bank subsidiaries of a credit institution domiciled in the European Union shall not be subject to the temporary limitations established for the activity of new banks.

The provisions of the preceding paragraph shall also apply to credit unions and newly established banks consisting of one or more credit institutions in order to transfer their financial activity to them within the framework of the the establishment of an institutional protection system or in the provision of Articles 5 and 6 of Royal Decree-Law 11/2010 of 9 July 2010 of governing bodies and other aspects of the legal system of savings banks.

Additional provision third.

In those institutional protection systems provided for in point (d) of Article 8 (3) of Law 13/1985 of 25 May, in which the ownership of all assets has been brought to the central bank liabilities to the respective banking business of the member savings banks, or where, through its central institution, several savings banks in a concerted manner exclusively exercise their object as credit institutions, as provided for in the Article 5 (4) of the Royal Decree-Law 11/2010, of July 9, of governing bodies and other aspects of the legal status of savings banks, as provided for in points (iii) and (iv) of Article 8 (3) (d) of that law.

Additional provision fourth. Certain assumptions of adherence to the Deposit Insurance Funds.

Credit institutions, which are mainly owned by another credit institution of different legal nature, shall adhere to the deposit guarantee fund to which the latter belongs from the time the equity (a) its financial activity is primarily the result of a prior disposal of assets and liabilities of an institution incorporated in that same deposit guarantee fund.

In addition, the Minister of Economy and Finance may establish other cases where, by reason of their specific characteristics or by their economic dependence, a credit institution must adhere to a guarantee fund deposits other than that which corresponds to its legal nature.

The provisions of the first paragraph of this provision shall have effect from 31 December 2010.

Additional provision fifth.

Without prejudice to the legal and statutory powers conferred on the General Assembly, the social statutes of the Savings Banks may determine that the board of directors, as a body pursuant to Article 13 of the Law 31/1985, of regulation of the basic rules on Governing Bodies of the Savings Banks, has entrusted the administration and financial management of the entity for the fulfillment of its purposes, will be the competent to approve, if necessary, the arrangements for the cash in relation to the bank's participation in the bank through which it develops, where appropriate, its activity as a credit institution.

First transient disposition. Strategy for meeting capital requirements.

1. The consolidated groups of credit institutions, as well as credit institutions which are not integrated into a consolidated group of credit institutions, shall comply with the provisions of the main capital requirements in the first and second subparagraphs. Article 1 of this royal decree-law before 10 March 2011. For the purposes of the verification of compliance with the requirements set out in that Article, the figure of risk-weighted assets corresponding to 31 December 2010 shall be met.

For compliance checks as provided for in that Article after that date to be made during the year 2011, the number of risk-weighted assets considered may not be lower than the corresponding to 31 December 2010.

However, this latter figure may be adjusted by the effect of extraordinary operations consisting of the firm sales of branch networks, strategic interests or a portfolio (i) credit or actual assets, as well as for the effect that the methodological changes may have in the calculation of the own resources requirements that have the required authorization of the Banco de España.

As of 31 December 2011, and thereafter, the figures for risk-weighted assets that correspond at any time in accordance with the rules of own resources applicable to the institutions shall be considered. credit.

2. Those entities or groups of credit institutions which are consolidated on 10 March 2011 shall not have the principal amount of capital required by them in accordance with the provisions of Article 1 and shall have a period of 15 working days, from that date, to present to the Banco de España the strategy and the timetable for compliance with the new capitalization requirements. This strategy should include the specific measures that the entities plan to use for the fulfilment of these requirements by 30 September 2011. Such measures shall be approved by the Bank of Spain within 15 working days, who may require the inclusion of any additional modifications or measures deemed necessary to ensure compliance with the capital figure. principal chargeable.

3. Where such measures provide for the operations referred to in the third subparagraph of paragraph 1, the decreases in risk-weighted assets resulting from the execution of those operations may be taken into account for the purposes of the calculation of the principal capital required. To this end, before 1 September 2011, the institution shall inform the Bank of Spain of the terms in which the notified measures have finally been implemented and the Banco de España shall verify whether those operations, in the terms in which they are executed, meet the conditions set out in this provision to be taken into account for the purpose of modifying the risk-weighted assets to determine the necessary principal capital figure. In any event, the entities that choose to carry out any of these transactions should also consider, in their strategy for the fulfilment of the capital requirements, alternative measures for the assumption that such transactions do not finally arrive to run. Such alternative measures may include the application for financial support to the Banking Ordered Restructuring Fund, as an entity in charge of managing the restructuring processes of credit and credit institutions. strengthening of its own resources in line with the provisions of Royal Decree 9/2009 of 26 June 2009 on bank restructuring and the strengthening of the own resources of credit institutions.

In the event that the compliance plan provided for in this article provides for the collection of third-party resources, alternative measures should also be included for the assumption that these resources will not finally reach be obtained. Such alternative measures may include the application for financial support to the Banking Ordered Restructuring Fund.

In the event that the entity or the consolidable group of credit institutions in question does not consider another option to reach the principal capital that would be required to apply for public financial support, this is not feasible. indicate in the strategy of compliance with the capital requirements that it presents to the Bank of Spain and the necessary additional resources will be provided by the Fund of Ordered Restructuring Banking. The consolidated entities or groups of entities that are in this situation will have a one-month period of time since they presented the strategy of meeting the capital requirements with the Banco de España to present the plan of recapitalisation referred to in Article 9 of Royal Decree-Law 9/2009 of 26 June 2009 on the restructuring of banks and the strengthening of the own resources of credit institutions.

In the event that the envisaged measures provide for an immediate or conditional application of financial support to the Bank Ordered Restructuring Fund, the Bank of Spain will inform the Fund that may commit the contribution of the requested resources under the condition that the procedures and requirements are normally required.

4. As provided for in the second paragraph of this Article, the entities shall implement the measures envisaged before 30 September 2011. However, if, due to matters relating to the operations and formalities to be carried out and their corresponding time-limits, any entity shall not be able to implement such measures within that period, it shall inform the Bank of Spain thereof. at least 20 days before that date, justifying the reasons for the delay. The Bank of Spain pays attention to the reasons and circumstances set out by the institution and, provided that the supporting documentation provided considers that it is reasonably foreseeable that the measures provided for in the Plan of (a) the time limit for the implementation of these measures may be deferred; This deferral may never be more than three months.

In the case of processes of admission to trading of shares, at least there shall be an agreement of the plenary or competent authority to that effect on the issuing institution which is to serve as a basis for the application for admission, with a detailed timetable for implementation, and the mandate referred to in Article 35 of Royal Decree 1310/2005 of 4 November 2005, for which the Law 24/1988 is partially developed, has been granted to one or more of the steering entities July, on the Securities Market, on admission to trading of securities in secondary markets officers, of public offers of sale or subscription. In this case, the Banco de España may extend the execution period with exceptional character until the first quarter of 2012.

5. Without prejudice to Article 3 of this Royal Decree-Law, failure to comply with the obligations laid down in this provision shall constitute a very serious infringement and shall be punishable in accordance with the provisions of Law No 26/1988 of the European Parliament and of the Council. July 29, discipline and intervention of credit institutions.

The restrictions provided for in Article 1 (3) and the sanctioning regime referred to in Article 3 shall not apply to institutions until the strategy of the institutions has been implemented, as provided for in this provision. compliance.

6. Entities integrated into an institutional protection system in accordance with the provisions of Article 8.3.d of Law 13/1985 of 25 May 1985 of investment coefficients, own resources and information obligations of intermediaries (a) financial institutions shall adopt, on an individual basis, agreements requiring the implementation of the recapitalisation strategy and timetable.

7. The marketing of securities in compliance with the provisions of this article will, in any case, be produced in accordance with the criteria established by the National Securities Market Commission to ensure adequate investor protection. Additionally, in the event that a portion of the issue is marketed among the retail clientele, the application for admission to trading on an official secondary market will be required.

Second transient disposition. Preferential arrangements in circulation.

The preferred shares whose subscription would have been agreed by the Bank Ordered Restructuring Fund prior to the entry into force of this royal decree shall be governed by the regime in force in the the timing of the subscription or the date on which the subscription was agreed by the Fund, as well as the conditions and commitments of the relevant issuance.

In the event that such shares had been issued directly by a savings bank and is subsequently transferred to a bank in accordance with the provisions of Articles 5 or 6 of the Royal Financial Regulation, Decree-law 11/2010, of July 9, of governing bodies and other aspects of the legal regime of the Savings Banks, the convertibility of the same shall be understood as referring to shares of the bank to which the bank transfers its financial activity.

Transitional provision third. Computability as the principal capital of certain obligatorily convertible debt instruments.

1. Debt instruments issued prior to the entry into force of this Royal Decree-Law which have clauses under which they are compulsorily convertible into ordinary shares before 31 December 2014 integrate the principal capital provided for in Article 2 of this royal decree-law.

2. Debt instruments issued after the entry into force of this Royal Decree-Law, which have clauses under which they are compulsorily convertible into ordinary shares, shall comprise the principal capital provided for in Article 2 of this royal decree-law provided that they meet the following conditions:

(a) provide for their mandatory conversion by 31 December 2014 or, before that date, in the event of the reorganisation or restructuring of the institution or its group;

(b) the conversion ratio is determined at the time of the issuance of the debt instruments;

(c) the issuer may, at any time, decide to default on the accrued coupon provided that its solvency situation or that of its group so requires;

(d) do not contain any features that prevent their registration as a capital instrument within the entity's net worth; and,

e) its marketing will be carried out in accordance with the criteria established by the National Securities Market Commission to ensure adequate investor protection and, in particular, the effectiveness of the conversion to be proposed to investors. Additionally, in the event that a portion of the issue is marketed among the retail clientele, the application for admission to trading, both of the debt instrument and of the capital title, will be required in an official secondary market.

The corresponding contracts or issuance brochures, as well as any modification of their characteristics, will be referred to the Bank of Spain in order to qualify their computability as principal capital.

3. For the purposes exclusive of the fulfilment of the principal capital requirements required in this royal decree-law, the instruments referred to in this provision may not account for more than 25% of the principal capital as it is defines in Article 2.

Transitional disposition fourth. Transitional arrangements for the recapitalisation of institutions.

The Fund of Ordered Restructuring Banking may acquire the securities issued by the credit institutions that, at the entry into force of this royal decree-law, without incurring the circumstances of Article 6 of the Royal Decree-Law 9/2009, of 26 June, have initiated the negotiation to the effect of requesting to the Fund their acquisition for the strengthening of their own resources.

Such acquisitions may refer to convertible preference shares in equity shares or shares and shall be applied mutatis mutandis to the scheme provided for in Article 10 of Royal Decree-Law 9/2009 of 26 December 2009. June.

Single repeal provision. Regulatory repeal.

Any other rules of equal or lower rank shall be repealed in so far as they are contrary to the provisions of this royal decree-law.

Final disposition first. Amendment of the Royal Decree-Law 4/2004 of 5 March, approving the recast of the Law on Corporate Tax.

One. With effect for the tax periods initiated from 1 January 2011, Article 67 of the recast text of the Companies Tax Act, approved by Royal Decree-Law 4/2004 of 5 March 2004, is amended. worded as follows:

" Article 67. Definition of the tax group. Dominant company. Dependent companies.

1. Tax group shall mean the set of limited and limited liability companies for shares, as well as the credit institutions referred to in paragraph 3 of this Article, resident in Spanish territory formed by a company dominant and all societies dependent on it.

2. A dominant company shall be deemed to meet the following requirements:

(a) Having any of the legal forms set out in the previous paragraph or, failing that, having legal personality and being subject to and not exempt from the Company Tax. The permanent establishments of non-resident entities located in Spanish territory may be considered as dominant companies in respect of companies whose holdings are affected by it.

(b) Having a direct or indirect holding of at least 75 per 100 of the share capital of another company or other companies on the first day of the tax period in which this tax regime applies, or at least the 70 per 100 of the share capital, in the case of companies whose shares are admitted to trading on a regulated market. The latter percentage shall also apply where indirect holdings are held in other companies provided that such percentage is reached through dependent companies whose shares are admitted to trading on a market regulated.

c) That such participation is maintained throughout the tax period.

The requirement to maintain participation throughout the tax period shall not be required in the event of dissolution of the participating entity.

d) That is not dependent on any other resident in Spanish territory, who meets the requirements to be considered as dominant.

(e) Not subject to the special arrangements of economic, Spanish and European interest groups and temporary joint ventures.

(f) That, in the case of permanent establishments of non-resident entities in Spanish territory, those entities are not dependent on any other resident in Spanish territory who meets the requirements to be considered as a parent and resident in a country or territory with which Spain has an agreement to avoid double international taxation which contains an exchange of information clause.

3. A dependent company shall be understood to mean that the dominant company has a holding which meets the requirements set out in paragraphs (b) and (c) of the previous paragraph.

The same consideration will also be given to credit institutions integrated into an institutional protection system as referred to in Article 8 (3) (d) of Law 13/1985 of 25 May of Coefficient de Investment, own resources and information obligations of the financial intermediaries, provided that the central institution of the system is part of the fiscal group and 100 percent the sharing of the results of the participating entities of the system and that the mutual commitment of solvency and liquidity between such entities reaches 100 percent One hundred of the own resources of each of them. Such requirements shall be considered to be met in those institutional systems of protection through which, directly or indirectly, several savings banks in a concerted way exercise their object as a means of providing credit, as provided for in Article 5 (4) of Royal Decree-law 11/2010, of 9 July 2010, of governing bodies and other aspects of the legal system of savings banks.

4. The entities in which one of the following circumstances concur shall not be part of the tax groups:

a) That they are exempt from this tax.

b) That the closing of the tax period is in a competitive position, or incurs in the patrimonial situation provided for in Article 260.1.4. of the Recast Text of the Law of Companies, approved by the Royal Legislative Decree 1564/1989 of 22 December 1989, even if they were not in the form of public limited liability companies, unless prior to the conclusion of the financial year in which the annual accounts were approved, the latter situation would have been exceeded.

(c) Dependent companies which are subject to corporation tax at a different rate than that of the dominant company.

(d) Dependent companies whose participation is achieved through another company that does not meet the requirements established to be part of the tax group.

e) Dependent companies whose social exercise, determined by legal imperative, cannot be adapted to that of the dominant company.

5. The tax group shall be extinguished when the dominant company loses that character.

Two. With effect for the tax periods initiated from 1 January 2011, the transitional provision thirdthird to the recast text of the Companies Tax Act, approved by Royal Decree-Law 4/2004 of 5 December 2011, is added. March, which is worded as follows:

" Transient Disposition thirty third. System of fiscal consolidation of groups formed by credit institutions that are members of an institutional protection system and of the groups resulting from the indirect exercise of the financial activity of the savings banks.

1. For the purposes of applying the system of fiscal consolidation laid down in Chapter VII of Title VII of this Law, in the formation of groups whose dominant company is the central entity of an institutional system of protection to which it is Article 8 (3) (d) of Law 13/1985, of 25 May, of Investment Coefficient, Own Resources and Information Obligations of the Financial Intermediaries, shall be taken into account the following: Specialties:

(a) The scheme may be applied from the beginning of the tax period for the financial year 2011 or, if subsequent, from the start of the tax period in which the institutional protection system is established. The option and communication for the application of the scheme, as referred to in Article 70 of this Law, shall be made within the period ending on the day of the end of the said tax period.

Companies that meet the conditions set out in Article 67.2.a) of this law, whose representative shares of their share capital would have been brought to the market, will be included in the group in the same tax period. central entity in compliance with the system integration plan and the institution maintains the participation until the conclusion of that tax period, through operations under the tax regime set out in Chapter VIII of Title VII of this law or the regime established in article 7.1 of the Royal Decree-Law 11/2010, of 9 of In July, the Court of State held that the Court of State held that the Court held that the Court held that the Court held that the Court held that the Court held that the Court held that the Court of as a dominant company.

(b) When credit institutions that form as subsidiaries in the tax group whose parent is the central entity, are taxed in the tax consolidation regime as dominant, even if they are Those groups shall not be included in the eliminations referred to in point (a) of Article 81 (1) of this Law, which correspond to transactions made by entities that are part of that other tax group as dependent companies. The eliminated results will be incorporated into the tax base of that other tax group in the terms set out in Article 73 of this Act.

(c) The negative taxable bases to be compensated by credit institutions which satisfy the conditions laid down in the second subparagraph of Article 67 (3) of this Law, which are integrated as companies dependent on the tax group whose parent is the central entity, may be compensated in the group's tax base, in accordance with Article 74.2 of this Act, with the limit of the individual tax base of the central institution or the banking institution to which the central bank has in turn contributed its entire financial business, to the condition that the savings banks and, where appropriate, the central bank, after the contribution, do not carry out economic activities and their income is limited to the income from the shares in the capital of other entities in which they participate. Such treatment shall not be affected by the fact that the contribution of the financial business does not include certain assets and liabilities as a result of the existence of a condition that makes the contribution impossible.

This will apply even if the banking entity is excluded from the group in which the parent is the central entity, even in the event of its extinction.

(d) The deductions in the quota to be applied by credit institutions which meet the conditions laid down in the second subparagraph of Article 67 (3) of this Law, which are integrated as dependent companies in the tax group whose parent is the central entity, they may be deducted in the full share of that tax group with the limit that would have been in the individual tax system to the central institution or to the banking institution to which it is time, the central entity has contributed all its financial business, provided that the savings banks and, where appropriate, the central institution, after the contribution, does not develop economic activities and their income is limited to the income from the equity holdings of other entities in which they participate. Such treatment shall not be affected by the fact that the contribution of the financial business does not include certain assets and liabilities as a result of the existence of a condition that makes the contribution impossible.

This will apply even if the banking entity is excluded from the group in which the parent is the central entity, even in the event of its extinction.

(e) When assets and liabilities are transmitted to the central entity by credit institutions as subsidiaries of the group whose parent is the central entity, as a result of the establishment and extension of the institutional protection system, having carried out such a transmission by means of operations covered by the tax regime laid down in Chapter VIII of Title VII of this Law or to the regime laid down in Article 7.1 of Royal Decree-Law 11/2010, of 9 July, of government bodies and other aspects of the legal regime of the Savings, income generated prior to such transmission attributable to those assets and liabilities, shall be charged to the central entity in accordance with the provisions of the commercial rules.

As set out in points (c) and (d) above, it shall also apply in the event that after the establishment of the institutional protection system, the central entity becomes a member of the institution. dependent on another group to be taxed in the tax consolidation regime.

2. For the purposes of applying both the tax regime established in Article 7.2 of the Royal Decree-Law 11/2010 of 9 July, governing bodies and other aspects of the legal regime of the Savings Banks, as well as the tax regime established in Chapter VIII of Title VII of this Law to which transfers of assets and liabilities made between credit institutions have been received in compliance with the agreements of an institutional system of protection, the non-integration of income to which (a) both tax systems shall include, where appropriate, the eliminations which they have to be incorporated in the tax base of the tax group as a result of those transmissions, in the event that those assets and liabilities are part of the assets of entities belonging to a group which were taxed under the fiscal consolidation.

3. In the case of indirect financial activity of the savings banks in accordance with the provisions of Article 5 of the Royal Decree-Law 11/2010 of 9 July 2010, of government bodies and other aspects of the legal system of the Banks of Savings, the savings bank and the banking institution to which the entire financial business contributes, may apply the tax consolidation regime governed by Chapter VII of Title VII of this Law from the beginning of the tax period for the financial year in which the contribution is made, provided that the requirements laid down are met for this purpose in Article 67 of this Law. The option and communication for the application of the scheme, as referred to in Article 70 of this Law, shall be made within the period ending on the day of the end of the said tax period.

In the application of this scheme the following specialties will be considered:

(a) Companies which fulfil the conditions laid down in Article 67.2.a) of this Law, whose representative shares in their share capital have been provided, shall be included in the group in the same tax period. the bank and this entity maintain the holding until the end of that tax period, through transactions under the tax regime established in Chapter VIII of Title VII of this Law, and have the consideration of companies that are dependent on the savings bank, as a result of the latter entity was taxed in this special scheme as a dominant company.

(b) The negative tax bases to be offset by the cash savings bank, whether or not they are taxed in the tax consolidation regime as dominant, may be offset in the group's tax base, with the the limit of the individual tax base of the banking institution, in the terms laid down in Article 74.2 of this Law, provided that the savings bank, after the contribution, does not develop economic activities and its income is (a) limit the income from the equity holdings of other entities in the participating. Such treatment shall not be affected by the fact that the contribution of the financial business does not include certain assets and liabilities as a result of the existence of a condition that makes the contribution impossible.

This will apply even if the banking entity is excluded from the group in which the parent is the savings bank, even in the case of the bank's extinction.

(c) Deductions in the amount outstanding to be applied by the contributing savings bank, whether or not they are taxed in the tax consolidation regime as dominant, may be deducted in the full share of that tax group with the a limit which would have been for the banking institution in the individual tax system, provided that the savings bank, after the contribution, does not carry out economic activities and its income is limited to income from holdings in the capital of other entities in which they participate. Such treatment shall not be affected by the fact that the contribution of the financial business does not include certain assets and liabilities as a result of the existence of a condition that makes the contribution impossible.

This will apply even if the banking entity is excluded from the group in which the parent is the savings bank, even in the case of the bank's extinction.

(d) Where the contribution of the entire financial business is made by means of transactions under the tax regime laid down in Chapter VIII of Title VII of this Law, the income generated prior to that the contribution attributable to those assets and liabilities, shall be charged to the bank in accordance with the provisions of the commercial rules.

4. Where, in the case of the groups referred to in paragraphs 1 and 3 above, which were taxed under the tax consolidation scheme, the banking institution by which the savings banks were to be excluded from the tax consolidation scheme would be excluded. (a) an indirect financial year of its financial activity or to which it has contributed its entire financial business, including in the case of the termination of the tax group referred to in point (a) of Article 81 (1) of that law, shall apply with the Following specialties:

(a) If the banking institution through which the savings banks carry out the indirect financial year of their financial activity or to which they have contributed their entire financial business, maintain holdings in entities that comply with the conditions laid down in Article 67.3 of this Act, that bank and its investees who meet the requirements for that purpose may apply the tax consolidation regime from the start of the tax period in which it takes place such exclusion. The option and communication for the application of that scheme, as referred to in Article 70 of this Law, shall be made within the period ending on the day of the end of the said tax period. In such a case, the results eliminated shall be incorporated into the tax base of that other tax group in the terms laid down in Article 73 of this Law, provided that the entities involved in the transactions are integrated into that group. have generated such results.

(b) Where the provisions of point (a) above are met, but do not integrate into that group any of the entities that have intervened in the operations that have generated the results eliminated, such results shall be incorporated in the terms set out in Article 73 of this Law, in the tax base of the persistent group in which the income was generated which was, at the time, the object of the disposal, provided that the other entity which is not a party of the tax group to which the banking institution belongs, as the latter entity is part of the same group as referred to in Article 42 of the Trade Code in which the parent is the central entity of an institutional protection system or the savings bank which, in both cases, has contributed all of its financial business to the banking institution.

Three. With effect for the tax periods initiated from 1 January 2010, the transitional provision thirtieth fourth is added to the recast text of the Companies Tax Act, approved by Royal Decree-Law 4/2004 of 5 December 2010. March, which is worded as follows:

" Thirty-fourth transient disposition. Tax regime for the financial year 2010 of credit institutions that are members of an institutional protection system.

To the sole purpose of determining the taxable amount of the tax period for the financial year 2010 of the savings banks and of the central institution of an institutional system of protection that has been established constituted in that financial year, in accordance with the terms laid down in Article 8 (3) (d) of Law 13/1985 of 25 May 1985 on Investment Coefficient, Own Resources and Information Obligations of the Financial Intermediaries, provided that 100 percent of the results of the participating entities are shared. the system and that the mutual commitment of solvency and liquidity among these entities reaches 100 percent of the own resources of each of them, will not have the consideration of deductible and income-based income, as appropriate, in the savings banks and the central institution, those expenses and revenues accounted for by those institutions as a result of the pooling of the results of the system's constituent entities.

Final disposition second. Extension of the social administrators scheme.

The duties of the social administrators as set out in Articles 225 to 232 of the recast of the Capital Companies Act shall apply to the vowels of the boards of the savings banks. approved by Royal Legislative Decree 1/2010 of 2 July.

Final disposition third. Powers of development.

The Banco de España is hereby enabled to approve the provisions necessary for the definition of the concept of wholesale financing provided for in Article 1.2.a) of this royal decree-law.

Final disposition fourth. Competitive titles.

With the exception of the final disposition, the actual decree-law is dictated in accordance with the provisions of article 149.1.6., 11. and 13. of the Spanish Constitution which attributes to the State the jurisdiction over legislation market, bases for the management of credit, banking and insurance and bases and coordination of the overall planning of economic activity, respectively.

The first final provision is made under the provisions of Article 149.1.14. of the Spanish Constitution, which attributes to the State exclusive competence over the General Finance and Debt of the State.

Final disposition fifth. Entry into force.

This royal decree-law will enter into force on the day following its publication in the "Official State Gazette".

Given in Madrid, on February 18, 2011.

JOHN CARLOS R.

The President of the Government,

JOSE LUIS RODRIGUEZ ZAPATERO