This royal decree carries out the modification of the Law 26/1988 of 29 July on the discipline and intervention of credit institutions by Law 5/2009 of 29 June, amending Law 24/1988, of 28 January 1988, of the July, on the securities market, Law 26/1988 of 29 July on the discipline and intervention of credit institutions and the recast of the Law on the Management and Supervision of Private Insurance, approved by Royal Decree-Law 6/2004, of 29 October, for the reform of the system of significant participations in enterprises investment services, in credit institutions and in insurance companies, hereinafter referred to as Law 5/2009 of 29 June. This Law 5/2009, of 29 June, initiates the transposition into national law of Directive 2007 /44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and the Directives 2002 /83/EC, 2004 /39/EC, 2005 /68/EC and 2006 /48/EC as regards the procedural rules and the assessment criteria to be applied in relation to the prudential assessment of acquisitions and the increases in holdings in the financial sector. Now the transposition with the present royal decree is completed in what the credit institutions refer to.

Directive 2007 /44/EC aims to improve the regime of significant shareholdings by increasing legal certainty and giving it greater clarity. The scheme deals with the prudential assessment of acquisitions of holdings which may involve the exercise of a significant influence on financial institutions. It assumes, in short, a prior administrative check which aims to assess, for prudential purposes, the identity, good repute and solvency of the most significant shareholders of the institutions.

In particular, Directive 2007 /44/EC regulates the procedures and criteria under which the assessment of significant holdings is carried out. Law 5/2009, of 29 June, incorporates the essential aspects of this directive into the Spanish legal system, as are, on the one hand, the criteria that the supervisory authority will have to observe when assessing a change in the structure of the structure. actuarial that affects the significant shareholdings and, on the other hand, the non-opposition procedure itself.

The present royal decree completes the transposition of that directive by regulating, among other matters, how the units in credit institutions will be computed to determine what is considered a participation. significant (Article 1 (3)). It also provides for the drawing up and publication of a list by the Banco de España in which the content of the information which it may require to assess the acquisition of a significant stake (paragraph 4) will be determined. The same real decree lists the fundamental aspects to which the list must necessarily refer.

The royal decree also extends the regime of significant participations to the procedure for the creation of a bank or a financial establishment of credit. In fact, Article 1 (1) requires the Minister for Economic Affairs and Finance to refuse to authorise the creation of a bank where the suitability of the shareholders who are to have a stake in the bank is not considered appropriate. significant, and Article 2 (2) introduces the same obligation for credit institutions.

The regulatory development introduced also affects the non-opposition procedure of a change in the shareholding structure affecting the significant shareholdings, while the Banco de España is empowered to Article 1 (5) to interrupt the assessment period for a maximum of 30 working days, where the proposed acquirer is an authorised or domiciled entity outside the European Union or where it is not subject to financial supervision in Spain or in the same European Union.

For their part, Article 1 (2) and (6) and Article 2 (1) introduce amendments, respectively, to the obligation of the Banco de España to communicate to the European Commission and to the competent authorities the transfer of shares or contributions by a credit institution involving changes in the control of the institution to the other Member States. In addition, the Minister for Economic Affairs and Finance of the Minister for Economic Affairs and Finance has been removed from refusing to create a bank in the absence of reciprocity with third countries and the obligation of the Banco de España to inform the European Commission and the rest of the supervisory authorities of the group's structure in the event of control by third-country shareholders. With this royal decree these obligations and powers, which brought about the transposition of the Second Council Directive 89 /646/EEC of 15 December 1989 on the coordination of laws, regulations and regulations, are eliminated. (a) administrative measures relating to the taking up and pursuit of the business of credit institutions and amending Directive 77 /780/EEC and their recast in Directive 2000 /12/EC of the European Parliament and of the Council of 20 March 2000, on access to the business of credit institutions and their financial year. Both Directives were repealed and Directive 2006 /48/EC of the European Parliament and of the Council of 14 June 2006 on access to the business of credit institutions and their financial year (recast), which currently regulates the matter, is not already contains similar obligations.

This royal decree is issued under the seventh final provision of Law 5/2009 of 29 June, which enables the Government to issue any provisions necessary for the development, implementation and enforcement of the law. what is provided for in the law itself.

In its virtue, on the proposal of the Minister of Economy and Finance, in agreement with the Council of State and after deliberation of the Council of Ministers at its meeting of 27 November 2009,

DISPONGO:

Article first. Amendment of Royal Decree 1245/1995 of 14 July on the establishment of banks, cross-border activity and other matters relating to the legal status of credit institutions.

Royal Decree 1245/1995 of 14 July on the establishment of banks, cross-border activity and other matters relating to the legal status of credit institutions is amended as follows:

One. The first subparagraph and Article 4 (1) (a) shall be worded as follows:

" 1. The Minister for Economic Affairs and Finance shall, by means of a reasoned decision, refuse the authorisation to set up a bank where the requirements of Articles 2 and 3 are not met and, in particular, where, having regard to the need to ensure sound management, and prudent of the projected entity, the suitability of the shareholders who are to have a significant holding or a holding in such a way that the percentage of voting rights or capital held is deemed to be adequate is not considered appropriate. equal to or greater than 5 per cent. For these purposes:

(a) Significant participation in a bank shall be understood to be that which complies with the provisions of Article 56 of Law 26/1988 of 29 July on Discipline and Intervention of Credit Entities. "

Two. Article 7 is worded as follows:

" Article 7. Authorization of banks subject to the control of foreign persons.

1. The creation of Spanish banks whose control, in the terms provided for in Article 4 of Law 24/1988, of July 28, of the Stock Market, will be exercised by foreign persons, is subject to the provisions of the preceding articles of this royal decree.

2. Where the control of the Spanish bank is to be carried out by a credit institution, an investment firm or an insurance or reinsurance undertaking authorised in another Member State of the European Union, by the dominant entity of one of those entities, or by the same natural or legal persons controlling a credit institution, an investment firm or an insurance or reinsurance undertaking authorised in another Member State, the Banco de España, before to issue the report referred to in Article 1 (1), shall consult the authorities; responsible for the supervision of the credit institution, investment firm or insurance undertaking or foreign reinsurer.

3. Where the Spanish bank's control is to be carried out by one or more persons, whether or not credit institutions, domiciled or authorised in a non-Member State of the European Union, it shall require the provision of a guarantee which it reaches the entire activities of that entity. '

Three. Article 18 is worded as follows:

" Article 18. Computation of units in credit institutions.

1. For the purposes of Title VI of Law 26/1988 of July 29 on Discipline and Intervention of Credit Entities, the actions, contributions, or voting rights to be included in the computation of a participation shall include:

a) Those acquired directly by the potential acquirer;

(b) Those acquired through companies controlled or engaged by the potential acquirer;

(c) Those acquired by companies incorporated in the same group as the potential acquirer or participated by entities in the group;

d) Those acquired by other persons acting on behalf of the potential acquirer, or in concert with him or with companies in his group. In any case, they will be included:

1. the voting rights which may be exercised under an agreement with a third party obliging the proposed acquirer and the third party itself to adopt, by means of the concerted exercise of the voting rights they hold, a a long-term common policy in relation to the management of the credit institution or having as its object the relevant influence of the credit institution;

2. the voting rights that may be exercised under an agreement with a third party providing for the temporary transfer and for consideration of the voting rights in question;

(e) those in possession of the potential acquirer linked to shares acquired through an individual person;

(f) the voting rights that may be controlled, expressly stating the intention to exercise them, as a consequence of the deposit of the corresponding shares as collateral;

g) the voting rights that may be exercised under agreements to establish a right of usufruct on shares;

(h) voting rights that are linked to shares deposited in the proposed acquirer, provided that the potential acquirer may exercise them at the discretion in the absence of specific instructions from the shareholders;

(i) the voting rights that the proposed acquirer may exercise as a proxy, when it can exercise it discretionally in the absence of specific instructions from the shareholders;

(j) voting rights that may be exercised under agreements or business as provided for in points (f) to (i), concluded by an entity controlled by the potential acquirer.

2. The voting rights shall be calculated on the whole of the shares which attribute them, even in cases where the exercise of such rights is suspended.

3. For the purposes of Title VI of Law 26/1988 of 29 July, the shares, contributions or voting rights to be included in the calculation of a holding shall not include:

(a) Shares acquired exclusively for clearing and settlement purposes within the usual short settlement cycle. For these purposes, the maximum duration of the usual short-term settlement cycle shall be three trading days from the transaction and shall apply both to transactions carried out on an official secondary market or to another regulated market as well as to the made out of him. The same principles shall also apply to operations carried out on financial instruments.

(b) Shares which may be held for having provided assurance or placement of financial instruments on the basis of a firm commitment, provided that the corresponding voting rights are not exercised or used to intervene in the administration of the credit institution and are transferred within one year of its acquisition.

(c) Shares held under a contractual relationship for the provision of the service of administration and custody of securities, provided that the entity is only able to exercise the voting rights inherent in such shares with instructions issued by the owner, in writing or by electronic means.

(d) Shares or shares acquired by a market maker acting in their status as such, provided that:

1. is authorised to operate as such under the provisions transposing into national law Directive 2004 /39/EEC of the European Parliament and of the Council of 21 April 2004 on the markets for instruments financial, and;

2. º that does not intervene in the management of the credit institution concerned, nor does it exert any influence on the credit institution to acquire such shares or support the price of the action in any other way.

(e) Shares or units incorporated in a managed portfolio discretionally and individually provided that the investment firm, management company of collective investment institutions or entity of credit, can only exercise the voting rights inherent in such actions with precise instructions from the client.

4. In order to carry out the calculation of a holding for the purposes of paragraph 1, where the proposed acquirer is a dominant entity of a management company of collective investment institutions or an entity that exercises the the control of an investment firm shall take into account the following:

(a) the dominant entity of a management company of collective investment institutions shall not be required to aggregate the proportion of voting rights that it attributes to the shares held by the share of voting rights of the collective investment institutions; actions forming part of the assets of the collective investment institutions managed by that management company, provided that it exercises the voting rights independently of the dominant entity.

Notwithstanding the foregoing, the provisions of the foregoing paragraphs shall apply where the dominant entity or other entity controlled by it has invested in shares that integrate the equity of the investment institutions. collective managed by the management company and has no discretion to exercise the corresponding voting rights and can only exercise them in accordance with the direct or indirect instructions of the dominant entity or other entity controlled by her.

(b) The entity exercising the control of an undertaking providing investment services shall not be required to aggregate the proportion of voting rights that it confers on the shares held by the company to the ratio that it manages in a manner individualized as a result of the provision of the portfolio management service, provided that the following conditions are met:

1. That the investment firm, the credit institution or the management company of collective investment institutions are authorised to provide the portfolio management service in the established terms in Article 63.1 (d) and 65 of the Law 24/1988 of 28 July 1988 on the stock market;

2. º That you can exercise only the voting rights inherent in such actions by following instructions made in writing or by electronic means or, failing that, each of the portfolio management services is provided by independent form of any other service and under conditions equivalent to those provided for in Law 35/2003 of 5 November, of collective investment institutions, by the creation of appropriate mechanisms; and;

3. You exercise your voting rights independently of the dominant entity.

notwithstanding the foregoing, the provisions of the preceding paragraphs shall apply, where the dominant entity or other entity controlled by it has invested in shares managed by an investment firm of the group and it is not entitled to exercise the voting rights attached to such shares and may only exercise the voting rights corresponding to those shares following direct or indirect instructions from the parent or other entity controlled by her.

5. Indirect holdings shall be taken for their value, where the proposed acquirer has the control of the holding company, and as a result of applying the percentage of participation in the holding, otherwise.

When a significant share is held, in whole or in part, indirectly, changes in the persons or entities through which such participation is held shall be reported to the Bank of Spain, which may object as provided for in Article 58 of Law 26/1988 of 29 July.

6. Controlled companies shall be deemed to be those in which the proposed acquirer has control for any of the assumptions provided for in Article 42 of the Trade Code and those in which it is held, directly or indirectly. indirect, at least 20 per cent of the voting rights or capital of a company or entity, or 3 per cent if its shares are admitted to trading on a regulated market.

7. To those same effects, the possibility of appointing or removing any member of the Board of Directors of the credit institution shall in any event be understood as a notable influence. "

Four. A new Article 18a is added with the following literal wording:

" Article 18a. Information to be supplied by the potential acquirer.

1. The Bank of Spain shall establish by Circular a list of information to be provided by the proposed acquirer in compliance with the obligation referred to in Article 57.1 of Law 26/1988 of 29 July on discipline and intervention by credit institutions. The Banco de España will advertise the contents of the list on its website or website.

2. In any case, the list referred to in the preceding paragraph should contain information on the following aspects:

(a) On the proposed acquirer and, where appropriate, on any person who effectively directs or controls their activities:

1. The identity of the proposed acquirer, the structure of the shareholding and the composition of the management bodies of the potential acquirer.

2. The professional and commercial honorability of the potential acquirer and, where applicable, of any person who effectively directs or controls their activities.

3. º The detailed structure of the group to which it belongs.

4. The financial and financial situation of the potential acquirer and the group to which it may belong.

5. The existence of links or relationships, financial or otherwise, of the potential acquirer with the acquired entity and its group.

6. The evaluations carried out by international bodies of the rules on the prevention of money laundering and terrorist financing of the country of nationality of the proposed acquirer, except that of a State Member of the European Union, as well as the trajectory on the prevention of money laundering and the financing of terrorism of the potential acquirer and of the integrated entities in their group which are not domiciled in the Union European.

In the case of Member States of the European Union, information on this trajectory will be obtained in the consultation that the Banco de España will do to the supervisory authorities of this State in accordance with Article 69.7 of the Law 24/1988, July 28.

b) On the proposed acquisition:

1. The identity of the entity that is the object of the acquisition.

2. The purpose of the acquisition.

3. º The amount of the acquisition, as well as the form and time frame in which it will be carried out.

4. The effects of the acquisition on capital and voting rights before and after the proposed acquisition.

5. The existence of a concerted action expressly or tacitly with third parties with relevance to the proposed operation.

6. º The existence of agreements with other shareholders of the entity subject to the acquisition.

c) On the financing of the acquisition:

Source of the financial resources used for the acquisition, entities through which they will be channeled and the availability regime of the same.

d) In addition, it will be required:

1. In the case of significant participations that result in changes in the control of the entity, the business plan shall be detailed, including information on the strategic development plan of the acquisition, the financial and other pre-viewing data. The main changes in the entity to be purchased by the proposed acquirer shall also be detailed. In particular, on the impact the acquisition will have on corporate governance, on the structure and resources available, on internal control bodies and on procedures for the prevention of money laundering and money laundering. financing of terrorism of the same.

2. In the case of significant participations that do not result in changes in the control of the entity, the policy of the proposed acquirer shall be reported in relation to the acquisition and its intentions with respect to the entity. acquired, in particular, on its participation in the government of the entity.

3. In the previous two cases, the aspects relating to the commercial and professional honorability of administrators and managers who are going to direct the activity of the credit institution as a result of the acquisition proposal. "

Five. A new Article 18b is added with the following literal wording:

" Article 18b. Interruption of the deadline to resolve.

1. The Bank of Spain may determine that the interruption of the calculation of the assessment period referred to in Article 58.3 of Law 26/1988 of 29 July shall have a maximum duration of 30 working days if the proposed acquirer:

(a) is domiciled or authorised outside the European Union, or;

b) is not subject to financial supervision in Spain or the European Union.

2. The calculation of the thirty working days provided for in Article 58.1 of Law 26/1988 of July 29, for the Executive Service of the Commission for the Prevention of the Money Laundering and Monetary Infringements to submit its report to the Bank of Spain shall be interrupted on the same terms in which it interrupts the calculation of the assessment period in accordance with Article 58.3 of that law. '

Six. Article 19 is worded as follows:

" Article 19. Information on the capital structure of credit institutions.

Regardless of the obligation laid down in Article 61 (1) of Law No 26/1988 of 29 July, credit institutions shall communicate to the Bank of Spain in the form which it establishes during the month following the each calendar quarter, the composition of its share capital, relating to all shareholders, in the case of banks and credit institutions, or all holders of contributions, in the case of credit unions, which the the end of that period shall be taken into account by financial institutions and non-financial institutions; have shares or contributions which represent a percentage of the share capital of the institution equal to or greater than 0,25 per 100, in the case of banks, of 1 per 100 in that of credit unions, or of 2,50 per 100 in the of credit financial institutions. "

Article 2. Amendment of Royal Decree 692/1996 of 26 April 1996 on the legal status of credit institutions.

Royal Decree 692/1996 of 26 April 1996 on the legal status of credit institutions is amended as follows:

One. Article 4 (3) is worded as follows:

" 3. Where the control of the Spanish credit establishment is to be carried out by one or more persons, whether or not credit institutions, domiciled or authorised in a non-Member State of the European Union, the the provision of a guarantee covering the whole of the activities of that entity. '

Two. The first subparagraph and Article 7 (1) (a) shall be worded as follows:

" 1. The Minister for Economic Affairs and Finance shall, by means of a reasoned decision, refuse to authorise the establishment of a credit establishment where the conditions laid down in Articles 5 and 6 above are not met and, in particular, where, taking into account the need to ensure the sound and prudent management of the projected entity, the suitability of the shareholders to have a significant stake or a holding in such a way as to be deemed appropriate is not considered appropriate percentage of voting rights or owned capital is equal to or greater than 5%. For these purposes:

(a) Significant participation is understood to be that which complies with the terms of Article 56 of Law 26/1988 of July 29 on the discipline and intervention of credit institutions. "

Single repeal provision. Regulatory repeal.

As many rules of equal or lower rank are repealed, they oppose the provisions of this royal decree.

Final disposition first. Amendment of Royal Decree 716/2009 of 24 April on the development of certain aspects of Law 2/1981 of 25 March on the regulation of the mortgage market and other rules of the mortgage and financial system.

Article 8 (3) of Royal Decree 716/2009 of 24 April, for the development of certain aspects of Law 2/1981, of 25 March, of regulation of the mortgage market and other rules of the mortgage system and financial, it is worded as follows:

" 3. The certification shall be based on an assessment report which shall include the legal and technical aspects which influence the assessment of the good and which are the defining basic characteristics of the good, as well as the set of technical-economic calculations leading to the determination of the final value of the assessment.

The technical evaluation report, as well as the certificate in which it can be synthesized, will necessarily be signed by an Architect, a Technical Engineer or an Engineer, Engineer or Technical Engineer of the specialty. in accordance with the professional competence regime marked by the nature of the object of the assessment. This report shall not have to be endorsed by the respective Official College and shall expire six months after the date of its signature. "

Final disposition second. Regulatory enablement.

The Minister of Economy and Finance and, with its express rating, the Banco de España will be able to dictate the precise provisions for the proper execution of this royal decree.

Final disposition third. Competence title.

This royal decree is issued under the terms of Article 149.1.11. and the 13th of the Constitution which attributes to the State exclusive powers on the basis of the management of credit, banking and insurance and the bases and coordination of the overall planning of the economic activity, respectively.

Final disposition fourth. Incorporation of European Union law.

This royal decree incorporates into Spanish law Directive 2007 /44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002 /83/EC, 2004 /39/EC, 2005 /68/EC and 2006 /48/EC as regards the procedural rules and the assessment criteria to be applied in relation to the prudential assessment of acquisitions and increases in shares in the financial sector.

Final disposition fifth. Entry into force.

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

Given in Madrid, on November 27, 2009.

JOHN CARLOS R.

The Second Vice President of the Government and Minister of Economy and Finance,

ELENA SALGADO MENDEZ