The present royal decree develops the modification of the Law 35/2003, of 4 November, of the Institutions of Collective Investment by Law 5/2009, of 29 June, amending the Law 24/1988, of July 28, of the securities market, Law 26/1988, of July 29, 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 regime of significant participations in enterprises of services investment, in credit institutions and in insurance companies, hereinafter referred to as Law 5/2009 of 29 June. 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, and is completed with the approval of the present royal decree for the specific case of the management companies of collective investment institutions.

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.

This royal decree completes the transposition of that directive by regulating, first of all, how the stakes in the management companies of collective investment institutions are to be computed in order to determine what is considers a significant participation. Secondly, the preparation and publication of a list by the National Securities Market Commission is envisaged, in which the content of the information that this Commission may require to evaluate the acquisition of a stake is determined. significant. The royal decree lists the fundamental aspects to which such a list must necessarily refer.

The regulatory development introduced by this Royal Decree also affects the non-opposition procedure of a change in the shareholding structure affecting the significant shareholdings, while the empowers the National Securities Market Commission in paragraph 2 of the single article to interrupt the assessment period for a maximum of 30 working days when the potential acquirer is an entity authorised or domiciled outside the European Union or when it is not subject to financial supervision in Spain or in the European Union.

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. the provisions of 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 on November 27, 2009,

DISPONGO:

Single item. Amendment of the Regulation of Law 35/2003 of 4 November of collective investment institutions approved by Royal Decree 1309/2005 of 4 November 2005.

The Regulation of Law 35/2003 of 4 November of collective investment institutions, approved by Royal Decree 1309/2005 of 4 November 2005, is amended as follows:

One. Article 79 is worded as follows:

" Article 79. Significant shareholdings.

1. For the purposes of Article 45 of Law 35/2003 of 4 November of collective investment institutions, the shares, contributions or voting rights to be included in the calculation of a holding 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 lasting common policy in relation to the management of the management company or which is intended to have a significant influence on the management of the management company.

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 with the potential acquirer linked to shares acquired through an individual person;

(f) Voting rights that can 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 create 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 discretionally 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 Article 45 of Law 35/2003 of 4 November of collective investment institutions, 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 management of the management company of collective investment institutions and are transferred within one year of their 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 and shares acquired by a market maker acting in their condition as such, provided that:

1. This authorised as such under the provisions transposing into its national law, or the law of any other Member State, Directive 2004 /39/EC, of the European Parliament and of the Council of 21 April 2004, on the markets for financial instruments, and;

2. Do not intervene in the management of the management company in question, or exercise any influence over the management of the management company 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 the dominant entity of a management company of collective investment institutions or an entity that exercises the the control of an investment firm or a management company of collective investment institutions shall take into account the following:

(a) The dominant entity of a management company of collective investment institutions shall not be required to add 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 4 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. Controlled companies shall be considered to be those in which the holder holds the control within the meaning of Article 42 of the Trade Code, and those in which the holder is directly or indirectly held, at least 20% of the rights of a company or entity's capital, or 3 per cent if its shares are admitted to trading on a regulated market.

6. 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.

In cases where a significant participation is held, in whole or in part, indirectly, changes in the persons or entities through which such participation is held shall be reported prior to the National Securities Market Commission, which may object in accordance with the provisions of Article 45 of Law 35/2003 of 4 November of collective investment institutions.

7. For the purposes of Article 45.1 (2) of Law 35/2003 of 4 November, collective investment institutions shall in any event be understood as having a notable influence on the possibility of appointing or removing any member of the Council of Management of the management company of collective investment institutions. "

Two. Article 80 is worded as follows:

" Article 80. Information to be provided by the potential acquirer along with the notification and interruption of the deadline to resolve.

1. The National Securities Market Commission shall establish by Circular a list of the information to be provided by the proposed acquirer in compliance with the obligation referred to in Article 45.5 of Law 35/2003 of 4 November, from Collective Investment Institutions. The National Securities Market Commission will advertise the content 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 National Securities Market Commission will make to the supervisory authorities of this State according to Article 69.7 of Law 24/1988.

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: Origin of the financial resources used for the acquisition, entities through which they will be channelled and the availability 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 provisional 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.

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 collective investment institution as a consequence of the proposed acquisition.

3. For the purposes of the provisions of Article 45.5 of Law 35/2003 of 4 November, of collective investment institutions, in conjunction with Article 69.6, third paragraph in fine, of the Securities Market Act, the National Commission of the The Securities Market may interrupt the calculation of the proposed acquisition assessment period for a period of 30 working days in the following cases:

(a) Where the proposed acquirer is domiciled or authorised outside the European Union, or

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

4. The thirty-day calculation provided for in Article 69.5 of the Law 24/1988, of July 28, of the Stock Market for the Executive Service to submit its report to the National Securities Market Commission, will be interrupted on the same terms. in which the latter interrupts the calculation of the assessment period in accordance with Article 69.6 of that law. "

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. Regulatory enablement.

The Minister of Economy and Finance and, with her express rating, the National Securities Market Commission, will be able to dictate the precise provisions for the proper execution of this royal decree.

Final disposition second. Competence title.

This royal decree is issued under the terms of Article 149.1.6., 11. and 13. of the Constitution, which attributes to the State exclusive competences on commercial law, bases of the management of credit, banking and insurance, and bases and coordination of the overall planning of economic activity, respectively.

Final disposition third. 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 fourth. 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