Royal Decree 9/2009, Of 26 June On Bank Restructuring And Reinforcement Of The Resources Of Credit Institutions.

Original Language Title: Real Decreto-ley 9/2009, de 26 de junio, sobre reestructuración bancaria y reforzamiento de los recursos propios de las entidades de crédito.

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At the beginning of the current international financial crisis, the Spanish credit institutions enjoyed good financial health and practically no exposure to the so-called toxic assets. However, the Spanish banking system has not been immune to this crisis, to the extent that was, from its beginnings, a drastic tightening of access to market financing and liquidity, to what is was coming together, as the crisis is protracted in time, a deterioration of assets, especially those related to the exposure to the real estate sector.

The interaction of these two elements, hardening of access to financing and impairment of assets, produced a restriction that is widespread in the conditions of granting of credit, with special emphasis on SMEs and households throughout 2008. This reaction of the entities to the change in the financial environment and economic prospects has been probably one of the explanatory factors of the depth of the recession on real activity, which was further accentuated with the worsening international crisis in October 2008. At that time the magnitude of the potential systemic problem that this dynamic engendered, led to the adoption of exceptional measures by the Government, within the framework of the coordinated response of the European Union. The creation of the Fund for acquisition of financial assets, the program guarantees the financing of credit institutions and the increase in the maximum amount guaranteed by the deposits guarantee funds have contained the costs of the deepening crisis.

Nearly two years after the onset of the global crisis, the capacity of resistance of the Spanish banking sector traditionally subject to regulation and supervision based on prudent and rigorous application of international standards, has been remarkable, in particular in relation to the countries of our surroundings. Entities that could be considered more decisive for the health of the system by its size, maintain a strong position that may enable them, with a degree of reasonable certainty, continue to face the crisis without the need for public support. This point is essential, because it places the Spanish banking sector in a very favourable position on the of the large advanced economies. Entities of medium or small size also include entities that maintain a strong position, however, could be some that might become jeopardised their viability in the coming months, due to the interaction of the persistence of problems of liquidity and funding with the relative deterioration of their assets, significant increase in the dudosidad and decrease in your business , consequence both of duration, intensity, and extent of the crisis and the sharp decline in economic activity caused by the same.

Under normal circumstances, the deposit guarantee funds of banks, savings banks and credit cooperatives, together with the Bank of Spain, have access to sufficient tools to deal with crisis individual of a certain number of entities. These tools refer to those referred to in the Royal Decree 2606 / 1996, of 20 December, on the deposit of credit guarantee fund, which provides that the deposit guarantee funds are intended to not only ensure deposits in money and securities constituted in credit institutions, they can also carry out actions aimed at reinforcing the solvency and operation of credit institutions that are in a situation of difficulty.

However, the current situation can be described as not normal and although it is foreseeable that susceptible to difficulties entities do not have, individually by its size, systemic character, the joint consideration of their viability problems if it could generate a potential systemic risk that justifies having provided additional instruments and the use of public resources, in the event that they should give the circumstances to do required its use. Renounce the public management of this process, if the circumstances occur, could entail a breach that is difficult to take for the sector through the three deposit guarantee funds in credit institutions, despite being the fittest of the European Union. This disorderly resolution could cause contagion, loss of confidence, and a further credit squeeze, affecting the ability of the financial system fulfil their economic functions and producing, in short, what is known as systemic risk.

It is therefore necessary to implement a strategy favouring the solution of problems through an orderly restructuring of the Spanish banking system, with the aim of maintaining confidence in the domestic financial system and increase its strength and solvency so that entities that exist are sturdy and can provide credit normally. The fulfilment of these objectives will require in many cases suit the installed capacity and the cost structures of the entities to an environment in which the demand for financial services will be more moderate. In this context, it is worth to also include support for integration processes between entities which, without being in a difficult situation, seek to ensure its future viability, through such processes, to improve its efficiency in the medium term.

The strategy must adapt to Spanish circumstances and the principles established in the proposition does not in law approved on March 17, 2009 by the Congress of Deputies. According to these principles, the restructuring must be carried out while retaining as much as possible traditional treatment of crisis mechanisms, especially, the deposits guarantee funds in credit institutions, have given such good results in the past. You must also be running out in the first place private solutions, minimizing the cost to the taxpayer when it is necessary to use public funds, avoiding generalised recapitalizations aimed to keep non-viable entities, and favoring the assumption of responsibility by the shareholders and managers, the transparency of the process as well as the protection of depositors. These principles are fully consistent with the common principles of crisis management agreed in June 2008 by the Ministers of finance, central banks and supervisory authorities of the European Union. Similarly, the established process is provided and temporal, fulfilling the principles set out in the communication from the European Commission on December 5, 2008, especially from the standpoint of avoiding distortions of competition.

As a result, this Royal Decree establishes a series of measures to carry out the necessary strategy in the field of bank restructuring by setting up a default process directed to increase strength and solvency of the Spanish banking system.

The proposed model of bank restructuring is articulated around three guarantee funds of deposits in credit institutions and to the use of a new institution created for this purpose, the Fund for orderly bank restructuring. With regard to restructuring processes can be distinguished three phases: (I) the search for a solution private by the credit institution itself, (II) the adoption of measures to deal with weaknesses that could affect the viability of credit institutions with the participation of the deposits guarantee funds in credit institutions and (III) the processes of restructuring with the intervention of the Fund for orderly bank restructuring.

Title I of this Royal Decree-Law deals with, in its first chapter, the creation of the Fund for orderly bank restructuring and, in chapter II, the operational processes of restructuring of credit institutions.

Chapter I establishes the legal regime of the Fund for orderly bank restructuring that takes two functions: the management of restructuring of institutions of credit and the strengthening of own resources in specific processes of integration.


The Fund for orderly bank restructuring will have the same legal regime applicable to the deposit guarantee funds. In terms of the system of financing will have an endowment of 9,000 million euros, of which 2,250 will be provided by the deposit guarantee funds and 6.750 will be charged to the general budget of the State. New measures of monetary policy announced by the European Central Bank (ECB), on 7 May 2009, consisting of the provision of liquidity to a year and the purchase of mortgage securities in the market, should help overcome the extraordinary circumstances of restriction on access to the funding of credit institutions which justified the setting up , by the Royal Decree-Law 6/2008 of 10 October, the Fund for the acquisition of financial assets. The operations performed to date by this Fund have allowed access to medium-term financing by credit institutions operating in Spain. However, the new measures announced by the ECB should ease these restrictions. Therefore, to minimize the impact of the new Fund for orderly bank restructuring on the General State budget, expected the new Fund is provide with credit that nourishes the Fund for the acquisition of financial assets. In addition, the new Fund for orderly bank restructuring can attract outside financing in the stock market and of credit guarantee of the State, amounting to which not more than three times their allocation. However, the Minister of economy and finance may authorize that it is exceeded this limit subsequent to January 1, 2010, unless, in any case, the outside financing from the Fund for orderly bank restructuring may lead more than 10 times its endowment.

In what refers to its Government, the Fund for orderly bank restructuring is governed and administered by a Governing Committee consists of 8 members, 5 proposed by the Bank of Spain (one of them is the Deputy Governor who presides over it), and 3 correspond to each of the deposits guarantee funds. All of them are appointed by the Minister of economy and finance, with a mandate of 4 years renewable and some causes of cessation the same as those of members of the deposit guarantee funds.

Additionally it is planned attendance at sessions of the Governing Committee, with voice but without vote, a representative of the General intervention of the administration of the State designated by the Minister of economy and finance on the proposal of the General Auditor. Their presence is justified by the public financing from the Fund for orderly bank restructuring.

The Governing Commission rise to economy Minister and Hacienda a quarterly report on the management of the Fund for orderly bank restructuring. In what refers to parliamentary scrutiny, on a quarterly basis, the Secretary of State for economy, will appear before the Commission of economy and Finance of the Congress of Deputies, in order to inform about the aggregate evolution of credit, the situation of the banking sector and the evolution of the activities of the Fund for orderly bank restructuring. In addition, the President of the Governing Commission of the Fund for orderly bank restructuring, will appear, under conditions to be determined by the Commission of economy and Finance of the Congress of Deputies and within the period of 30 days after the completion of each operation by the Fund, to report on it.

Chapter II deals with the processes of restructuring of credit institutions.

The first phase of the restructuring process is the search, by a credit institution, a private solution that report you a reinforcement of its solvency so it is a non-formal or non-normatively default phase. In the absence of this solution, could be running the default and ordered, restructuring process spanning the last two phases which are those referred to in chapter II.

The second phase involves measures to address weaknesses that could affect the viability of credit institutions with the performance of the deposit guarantee funds of sectoral. It is, therefore, a solution also private but orderly and regulated.

The assumption of this second phase is that there are weaknesses in the financial position of an entity that could put at risk the viability and determine whether to undertake a process of restructuring. In these cases, either on the initiative of the entity or ex officio by the Bank of Spain, a plan of action must be to overcome the situation. The plan must be approved by the Bank of Spain, that you can modify it in whatever is necessary. The Plan can see three actions: strengthening heritage and the solvency of the institution, its merger or absorption or total or partial transfer of business or units thereof.

Measures that can be taken are preventive and measures of sanitation in charge of the guarantee deposit fund sector which provides the Royal Decree 2606 / 1996, of 20 December, the deposit of credit guarantee fund, although the Fund for orderly bank restructuring could grant funding, under market conditions, to the deposit guarantee funds so that they can undertake the functions of financial support for the plans of action.

If persists the State of weakness and a number of cases assessed to be made it would in the third phase, that is, during the intervention of the Fund for orderly bank restructuring.

In this case occurs replacement of managers of the company by the Bank of Spain to appointed administrator to the Fund for orderly bank restructuring which should prepare a status report and submit a restructuring plan to the approval of the Bank of Spain. Since the appointment of the Fund for orderly bank restructuring as administrator and, in drafting the restructuring plan, this Fund could, temporarily, supply the financial support that is set in accordance with the principle of the more efficient use of public resources.

The restructuring plan aims to well the fusion of the entity, either total or partial transfer of the business through the global or partial asset transfer and liabilities through procedures that ensure competition, as, among others, the auction system.

The plan can see measures of financial support (granting of guarantees, loans, subscription or acquisition of securities of own resources, etc.) and measures of management (Organization and procedure and internal control of the entity). Also would consider two key elements: first, in the case of savings, if the Fund for orderly bank restructuring acquired participatory fees would acquire a right to representation in the General Assembly of the box equal to the percentage representing the quotas on the net worth of the box. I.e., it would give political rights to participatory shares subscribed for by the Fund. This right to representation is conceptualized as an exceptional right which can only be while keep the Fund for orderly bank restructuring the ownership of these values and, in any case, is transferable to subsequent purchasers of the quotas. It is, in short, in this case enable the use of a traditional restructuring tool as it is the acquisition of shares in banks.

Secondly, the approval by the Bank of Spain of a restructuring plan will determine concrete operations of merger of credit institutions, either by absorption or through the creation of a new entity of credit, or excision or global or partial transfer of assets and liabilities that are contained therein, as well as eventual acquisitions of significant participations that are its execution and statutory amendments that , if any, occur as a result of such operations do not require any further administrative authorization in the field of credit management and banking, except those required by the legislation in the field of competition. Now, prior to approving the relevant plan, the Bank of Spain must request, mandatorily, report of the competent body of the corresponding Autonomous Community (in the case of savings banks) or from the Minister of economy and finance (in the case of banks) or where appropriate of them depending on the scope of action if it were a Credit Union.

It should not be forgotten that it is to cope with a quite exceptional situation. Hence, the technical expertise of the Bank of Spain determined that not only credit management corresponds to the legislator and the Government but also to the Bank of Spain in its consideration of guarantor of the smooth functioning and stability of the financial system.


In fact, the Constitutional Court (STC 235/1999 of 16 December), in line with the functions of the deposit guarantee funds, has come to recognize that the current legislation is derived from the basic character of the functions exercised by the Bank of Spain in that they are intended to preserve the solvency of credit institutions. This because the safeguarding of such solvency transcends the specific cases and protects a supraautonomico interest, which is the stability of the financial system as a whole, which is negatively affected by situations of insolvency that might incur members of the same subjects, which establishes mechanisms for assurance of interests of third parties and of sanitation and turnaround of distressed entities trying to restore confidence in the system and involving the whole of credit institutions.

Similarly, the Constitutional Court has determined that suspension and intervention of an entity in a difficult situation affects the financial system as a whole and invades supraautonomicos interests which determines the reservation to the State of the complete cycle of legal: legislation, policy development and implementation, attributing is last in favour of the Bank of Spain.

Investments that the Fund for orderly bank restructuring in implementation of a restructuring plan they are applicable exemption from certain limitations or legal obligations such as the statutory limitations of the right of attendance at general meetings or voting rights with respect to the actions Fund purchase or subscribe or limitations to holding of participatory assessments provided for in paragraph 7 of article 7 of the law 13/1985 May 25, coefficients of investment, resources and obligations of information of financial intermediaries.

The title II of this Royal Decree deals with the so-called strengthening of own resources by the Fund for orderly bank restructuring.

Besides the function relating to restructuring of credit institutions, this Royal Decree-Law also provides for the possibility that the Fund for orderly bank restructuring to support processes of integration between credit institutions aimed at improving its efficiency in the medium term. Transient capitalization of credit institutions which, without being in a situation requiring to carry out a process of restructuring as described above, to initiate a process of integration is necessary in a context such as the present one, characterized by the considerable difficulty for own resources in the wholesale markets which may hinder the rush of operations that could make a breakthrough in banking productive structure rationalization and efficiency of the same which would, ultimately, to increase strength and solvency of the system as a whole. Such processes may include, among others the so-called 'institutional protection systems» whose objectives are comparable to those generated in a fusion process in regards how to operate, definition and implementation of policies and strategies of the participating entities and the establishment and exercise of its internal control and risk management.

To this end, expected that the Fund for orderly bank restructuring can acquire specific titles, referred to in this Royal Decree, issued by credit institutions resident in Spain in the integration process. The entities in question would therefore elaborated an integration plan that provides for integration processes that conduct, among other elements, an improvement of its efficiency, the rationalization of its administration and management, as well as a downsizing of its productive capacity, and all this in the face to improve their future prospects. This plan must be approved by the Bank of Spain, under the principle of the more efficient use of public resources.

The titles that could be purchased by the Fund for orderly bank restructuring are convertible preference shares in actions, participatory assessments or contributions to the share capital. The issue of such securities is considered exceptional and should take effect in such conditions that take into account, in all cases, the time and risk of the operation, the need to avoid the risk of a competitive distortion, as well as the assurance that such acquisition facilitates and encourages the implementation and fulfillment of the plan of integration. The terms and conditions of the reward of these preference shares shall take into account, in any case, the principles established by the European Commission. In addition, issuers must commit to repurchase them as soon as possible in the terms involved in the integration plan. After five years of disbursement unless preference shares have been repurchased by the entity, the Fund for orderly bank restructuring may request its conversion into action, participatory assessments or social contributions of the issuer. However, issuance agreement should contemplate, likewise, convertibility of the preferred shares at the request of the Fund for orderly bank restructuring if, before the course of the period of five years, the Bank of Spain considers unlikely repurchase within that period. The conversion would mean that, in the case of participatory fees, the Fund for orderly bank restructuring would acquire this exceptional right of representation in the General Assembly of the caja de ahorros.

The divestment by the Fund of Bank orderly restructuring of the underwritten titles will be made through its repurchase by the issuer or its disposal to third parties. When the divestment of such securities or those resulting from the conversion is carried out through its sale to third parties, this shall be done through procedures that ensure competition and within a period not exceeding five years counting from the date of implementation of the integration plan, which shall not apply in the case that the entity he may apply paragraph 8 of this article.

In addition, is expected intense mechanisms of monitoring and control of the execution of integration plans.

It should be pointed out that, with regard to the control of the use and destination of public resources, is expected that the Fund for orderly bank restructuring should raise to economy Minister and Hacienda an economic report that will detail the financial impact of the plan of restructuring or the eventual acquisition of titles in a process of integration on the funds provided with cargo to the General State budget. The Minister of economy and finance may object in a motivated way.

Royal Decree-Law contains three additional provisions which establish, on the one hand, the legal regime of the guarantees established in favour of the Fund for orderly bank restructuring or deposit of guarantee funds in institutions of credit and the regime of guarantees as collateral for financial obligations payable to the Fund for orderly bank restructuring. On the other hand, contained a forecast in the area of insolvency law.

Finally contained various concluding provisions among which notably the amendment of, on the one hand, law 2/2008 of 23 December, the State budget for the year 2009, and this for reasons of clarification and certainty and, on the other, relating to the modification of the law 13/1985, of 25 may coefficients of investment, resources and obligations of information of financial intermediaries, which contains two ends. First of all, to the already existing possibility of the deposit guarantee fund or other entities in the field of savings banks, previously authorized by the Bank of Spain, may exceed the limit of 5 per 100 of participatory assessments issued by a savings bank in situations of exceptional gravity, is added the figure of the Fund for orderly bank restructuring , so that the latter also could exceed quoted tenure. Also added that all these assumptions shall not be of application limit relative to that of participatory assessments in circulation volume, may not exceed 50 per cent of the heritage of the box.

Secondly, it is currently set as the body competent to agree on every issue of participatory assessments the General Assembly, that this competition may delegate to the Board of Directors of caja de ahorros. To this is added that such competition means associate, in any case, the provisional administrators appointed by the Bank of Spain under the protection of the provisions of title III of the Law 26/1988, of July 26, on discipline and intervention of credit institutions.

In any case, all these new measures will have a transitional character linked to the evolution of the financial crisis.

The adoption of these measures requires attending the procedure of Royal Decree-Law, meeting the requirements of article 86 of the Spanish Constitution in terms of its extraordinary and urgent need. The urgency of the adoption of this Royal Decree-law derives from the need to face the restructuring process ranked in the banking sector in Spain, as soon as possible so that the necessary tools to face in better conditions to potential difficulties are available.


Under the urgency of the adoption of the measures, to allow its immediate effectiveness, making use of the authorisation contained in article 86 of the Constitution, on the proposal of the second Vice-President of the Government and Minister of economy and finance and prior deliberation of the Council of Ministers at its meeting of June 26, 2009, I have : Title I restructuring processes of chapter I the Fund for orderly bank restructuring credit institutions article 1. Object and Constitution.

1. the present Royal Decree-Law aims to regulate the legal regime of the Fund for orderly bank restructuring, restructuring of credit and the reinforcement of the resources of these bodies.

2. it creates the Fund for orderly bank restructuring, which shall manage the processes of restructuring of institutions of credit and help strengthen the own resources of the same, in the terms established in the present Royal Decree-law.

3. the Fund for orderly bank restructuring shall enjoy legal personality itself and full public and private capacity for the development of its purposes.

4. the legal regime under which will develop its activity the Fund for orderly bank restructuring will be content in this Royal Decree-Law and the rules handed down in the same development, being of supplementary application the regime applicable to the deposit guarantee funds in credit institutions. It will not be subject to the provisions contained in law 6/1997, of 14 April, organization and functioning of the General Administration of the State, nor shall it apply the rules governing the regime of budgetary, financial, accounting, procurement and control of public organisms dependent or related to the General Administration of the State, except in the case outside the Court's control , in accordance with the provisions of the organic law 2/1982, of May 12, the Court of Auditors. The Fund for orderly bank restructuring will not be subject to the provisions of law 33/2003 of November 3, the heritage of the public administrations.

5. the staff of the Fund for orderly bank restructuring will be linked to it by a relationship of employment law.

6. the Fund for orderly bank restructuring will have, for tax purposes, the same treatment as the deposit guarantee funds in credit institutions.

7. operations carried out by the Fund for orderly bank restructuring shall be governed by the present Royal Decree-Law and its implementing regulations. Additionally, they shall apply the rules governing private legal traffic. These operations shall be made, where appropriate, to the European Commission or the national competition Commission, for the purposes of the provisions of the rules on competition and State aid.

8. the Fund for orderly bank restructuring may agree with the deposit guarantee funds or contract with third parties carrying out of any material, technical or instrumental activities that are necessary for the proper execution of their duties, article 2. Staffing and funding.

1. the Fund for orderly bank restructuring has a joint staff in charge of the State budget and contributions from the deposit guarantee funds banking institutions, savings and credit cooperatives in terms that are set out below.

2. the endowment of the Fund for orderly bank restructuring is 9,000 million euros, of which one third must be disbursed at the time of the formalization of its Constitution, which shall be carried out at the time that the members of its Governing Committee, have appointed and the rest be disbursed in the period to be determined by the Governing Committee of the Fund.

3. the amount of the provision out of the State budget will be 6,750 million euros. The provision of the financial contribution to the Fund for orderly bank restructuring will be financed with charge to credit 15.16. 931 M. 879, for which there will be budget changes that apply, in accordance with provisions in the Law 47/2003, of 26 November, General budget.

4. the amount of the contribution of the deposit guarantee funds will be 2.250 billion euros. The referred amount is allocated between the deposit guarantee fund banking institutions, the guarantee fund of deposits in savings and the deposit guarantee fund in credit unions according to the percentage representing deposits existing in the entities ascribed to each of them at the end of the year 2008 the total of deposits in credit to that date. This contribution of the deposit guarantee funds may be increased by means of law.

5. Additionally, for the fulfilment of its purposes the Fund for orderly bank restructuring can attract financing in the stock markets by issuing fixed-income securities, receive loans, apply for the opening of credits and perform any other operations of indebtedness.

Outside resources obtained by the Fund for orderly bank restructuring, anyone who is its instrumentation mode, shall not exceed 3 times stile Endowment that exists at each time. However, the Minister of economy and finance, after the January 1, 2010, may authorize that it is exceeded this limit, unless, in any case, the outside financing from the Fund for orderly bank restructuring may lead more than 10 times its endowment.

6 the Fund's unencumbered assets must be embodied in public debt or other assets of high liquidity and low risk. Yields of any nature that generate the Fund's assets will be integrated into its endowment. The expenses incurred in its management will be handled also with charge to its endowment. The service box of the Fund for orderly bank restructuring will take place by the Bank of Spain that will sign the appropriate agreement.

Article 3. The Fund for orderly bank restructuring government.

1. the Fund for orderly bank restructuring will be governed and administered by a Governing Committee composed of eight members appointed by the Minister of economy and finance, of whom five shall be at the proposal of the Bank of Spain, and also one on behalf of the guarantee fund of deposits in banking institutions, another representing the guarantee fund of deposits in savings and another on behalf of the guarantee fund of deposits in credit unions.

Assist, in addition, sessions of the Governing Committee, with voice but without vote a representative of the General intervention of the administration of the State designated by the Minister of economy and finance on the proposal of the General Auditor.

One of the members appointed on the proposal of the Bank of Spain will be his Deputy Governor, who will hold the Presidency of the Governing Commission. In case of absence of the President, it will be replaced by one of the members appointed on the proposal of the Bank of Spain, elected by a majority among the members of the Governing Committee attending the session. The members of the Governing Committee shall designate from among which they are so on the proposal of the Bank of Spain, who will perform the functions of Secretary of the Governing Commission.

Representatives of the deposit guarantee funds will be appointed among the members of their respective management committees which have the status of representatives of the Member, by majority agreement of these credit institutions.

By the same procedure it shall appoint two alternate representatives of those proposed by the Bank of Spain and one for each deposit guarantee fund, which will replace the holders in the event of vacancy, absence or illness. In the case of the representatives of the deposit guarantee fund, should also be replaced when the Governing Committee will discuss issues directly affecting an entity or group of entities with which it is linked as administrator, management or labor, civil or commercial contract or any other relationship that could impair the objectivity of their decisions.

The duration of the mandate of the members of the Governing Committee shall be four years being such a renewable mandate for same period of time.

Representatives of the deposit guarantee funds will cease in his position by the following causes: a) expiry of the term of his mandate as a member of the Governing Commission.

(b) resignation accepted by the Minister of economy and finance.

(c) separation agreed by the Minister of economy and finance for serious breach of its obligations, permanent disability for the exercise of its function or fraudulent offense conviction.

(d) expiry of the term of his mandate as a member of the management of the deposit guarantee fund which appointed it.

The ceasefire agreement will be adopted by the Minister of economy and finance on the proposal of the Bank of Spain. When the cease-fire affects a member of the Governing Commission that is on behalf of a deposit guarantee fund, you must hear, previously, Commission management, which, for this purpose, will be his will by majority agreement of the representatives of the participating credit institutions, without the intervention of the Bank of Spain's representatives.


2. the Steering Committee shall meet whenever it is convened by its Chairman, on his own initiative or at the request of any of its members. It is also empowered to establish its own regime of calls.

3. the Steering Committee shall determine its own operating procedures and may agree to the delegations or powers of Attorney deemed appropriate for the due performance of their duties.

(4 guiding shall, in addition to the functions referred to in other provisions of the present Royal Decree-Law, the following: a) approval of the financing operations provided for in paragraph 5 of article 2.

(b) approval of the accounts that the Fund for orderly bank restructuring shall pay annually to the Minister of economy and finance, as well as of the report that, pursuant to article 4, must be raised to the Minister of economy and finance for their referral to the Committee of economy of the Congress of Deputies.

(c) adoption of the preventative measures and sanitation provided for in articles 6 and 7.

(d) adoption of the measures of strengthening of own resources provided for in article 9.

5. for the valid Constitution of the Governing Commission of the Fund for orderly bank restructuring for the purpose of holding meetings, discussions and agreements, will require assistance at least half of its members with right to vote. Agreements shall be adopted by a majority of its members.

6. the members of the Governing Committee shall be obliged to keep secret the information know under its participation in the work of the Fund, failing to make use of the same for purposes other than the performance of the functions entrusted to the Fund for orderly bank restructuring.

Article 4. Parliamentary control.

1. on a quarterly basis, the Secretary of State for economy will appear before the Commission of economy and Finance of the Congress of Deputies, in order to inform about the aggregate evolution of credit, the situation of the banking sector and the evolution of the activities of the Fund for orderly bank restructuring.

In addition the President of the Governing Commission of the Fund for orderly bank restructuring, will appear, under conditions to be determined by the Commission of economy and Finance of the Congress of Deputies and within the period of 30 days after the completion of each operation by the Fund, to report on the same 2. The Governing Commission rise to economy Minister and Hacienda a quarterly report on the management of the Fund for orderly bank restructuring.

Article 5. Termination of the Fund for orderly bank restructuring.

Extinction and liquidation of the Fund for orderly bank restructuring will require the corresponding standard of legal rank, which will be determined the rules to be followed in the sharing of heritage remnants among its promoters.

Chapter II article 6 credit restructuring processes. Adoption of measures to deal with weaknesses that could affect the viability of credit institutions.

1. when a credit institution or a group or subgroup consolidatable of credit institutions present weaknesses in their financial situation which, on the basis of the development of market conditions, would endanger its viability and determine the appropriateness of that rush a restructuring process, the entity or the obliged entity of the group or subgroup consolidatable , as the case may be, shall, immediately to the Bank of Spain.

The entity in question will present an action plan in which materialize measures envisaged to overcome this situation, which must be aimed at ensuring the viability of the institution, well in within 1 month by reinforcing its heritage and solvency, well facilitating their merger or absorption of recognized solvency or the total or partial transfer of business or units thereof to other credit institutions. The plan should also detail the deadline for the start of their execution, which may not exceed 3 months, unless express authorization from the Bank of Spain.

The guarantee deposit fund corresponding, in the terms laid down in its regulations, will support the plan presented by the entity in question to take measures deemed appropriate sanitation and preventive.

The Fund for orderly bank restructuring, guided by the principle of the more efficient use of public resources, may be granted funding, market conditions, to the deposit guarantee funds either in banking institutions, savings or credit unions so that they can undertake the functions of financial support to the plans of action of credit institutions referred to in this section.

In any case, the Bank of Spain will ensure that the credit institution or group or consolidatable subset of credit institutions is free of deficiencies in its organizational structure, its mechanisms of internal control or its administrative procedures and accounting, including the attributable to persons who exercise administration charges relating to the management and control of risks applying disciplinary measures which, in his case, could proceed.

2. when the Bank of Spain, in view of the deterioration of the assets of a credit institution, group or subgroup consolidatable of entities of credit, computable resources, its ability to generate recurring profits or external in its solvency confidence, concluded that that has weaknesses in its economic and financial situation which, on the basis of the development of market conditions they could endanger its viability and determine the desirability that rush a process of restructuring unless the institution concerned has submitted plan in the preceding paragraph, it shall communicate this to the same, demanding that within the period of 1 month present the plan required there.

3. the plan referred to in paragraphs 1 and 2 shall require the approval of the Bank of Spain, which may include modifications or additional measures it considers necessary to ensure the improvement of the situation of difficulty faced by the entity. Within a month since his presentation no express statement, action plan shall be deemed approved.

Article 7. Processes of restructuring with the intervention of the Fund for orderly bank restructuring.

1 will be the orderly restructuring of a credit institution with the intervention of the Fund for orderly bank restructuring, if persisting the situation described in paragraphs 1 and 2 of the preceding article, would be given any of the following cases: to) in the term that referred to in paragraphs 1 and 2 of the preceding article, the entity in question does not submit the plan demanded there or had told the Bank of Spain the impossibility of finding a viable solution for their situation;

(b) the plan submitted was not viable, according to the Bank of Spain, to overcome the situation of difficulty faced by the entity, is not accepted by this modifications or additional measures by the Bank of Spain or, was conditioned to the intervention of a deposit guarantee fund in terms which the Fund had not accepted;

(c) violate serious by a credit institution form lead time or the concrete measures envisaged in a plan of those referred to in paragraphs 1 and 2 of the preceding article, previously approved by the Bank of Spain so that put at risk the achievement of its objectives; or (d) violate of severe form by one credit institution some of the concrete measures envisaged in a plan of those referred to in article 75 of the Royal Decree 216/2008, of 15 February, of financial institutions own resources, previously approved by the Bank of Spain so that put at risk the achievement of its objectives.

The orderly restructuring of a credit institution with the intervention of the Fund for orderly bank restructuring will take place in accordance with the rules laid down in the following paragraphs.

2. in the cases referred to in the preceding paragraph, the Bank of Spain agreed interim bodies replacing management or direction of the affected entity as well as any other measures precautionary it deems appropriate under the aegis of provisions of law 26/1988, of July 29, on discipline and intervention of institutions of credit and other rules that may be applicable. These measures will be maintained until they are carried out the measures that the restructuring plan referred to in the following paragraph 3 is concrete. Custom precautionary replacement provisional organs of administration or address will be application of the regime provided for in title III of the Law 26/1988, of July 29, on discipline and intervention of the credit institutions, with the following specialties: to) the Bank of Spain appointed as interim to the Fund for orderly bank restructuring.


(b) in the period of one month since its designation, the Fund for orderly bank restructuring will prepare a detailed report on the equity situation and the viability of the institution and submit to the approval of the Bank of Spain a restructuring plan of the entity that allows the overcoming of the situation of difficulty in which is through its merger with one or more other entities of recognised solvency or transfer part or all of its business to one or more other entities through the sale of global or part of its assets and liabilities through procedures that ensure competition, as, among others, the auction system. At the reasoned request of the Fund for orderly bank restructuring, the Bank of Spain may extend the aforementioned period up to a maximum of 6 months. At the same time, the Fund for orderly bank restructuring rise to economy Minister and Hacienda an economic report that will detail the financial impact of the restructuring plan presented on funding charged to the general budget of the State. The Minister of economy and finance may, accordingly, objecting within 10 days since the memory is high you.

From the time of their appointment as provisional administrator of an entity of credit and prepares the restructuring plan referred to in point (b)), the Fund for orderly bank restructuring may, temporarily, provide the financial support that are required in accordance with the principle of the more efficient use of public resources.

3 the restructuring plan will detail the measures of support that will be made, where appropriate, from the Fund for orderly bank restructuring and that can be, among others, the following: a) financial support measures, which may consist of, among others, granting of guarantees, loans at favourable conditions, subordinate financing, acquisition of any type of assets listed on the balance sheet of the entity subscription or purchase of any securities of own resources and any other financial support aimed to facilitate processes of merger or absorption with other entities of recognised solvency or the total or partial transfer of the business to another entity as well as the adoption by the relevant bodies of the affected entity of the necessary agreements to this end; and (b) management measures that will improve the Organization and systems of internal control of the authority and procedure.

4. the Fund for orderly bank restructuring shall be entitled, in addition, to give total or partially the current account or term deposits in an entity managed by it to one or more other credit institutions, satisfying these amount and carry legally in the position of the owners against the entity of the transferor, without having the consent of the latter.

In addition, the Fund for orderly bank restructuring, following a report of the National Commission of the stock market, available immediately the transfer of the securities deposited in the institution administered by it on behalf of their clients to other qualified entity to develop this activity, even if such assets are deposited in third parties on behalf of the entity providing the service of deposit.

The transferor entity will provide access to the credit institution to which being transferred deposits or the custody of values to the documentation and accounting and computer records necessary to enforce the assignment.

5 when the abovementioned measures contemplate the acquisition of assets from the Fund for orderly bank restructuring, it can keep its management or entrust it to a third party. If you decide your disposition, the same must be done through procedures that ensure competition.

6 investments that the Fund for orderly bank restructuring in implementation of a restructuring plan will not be subject to limitations or applicable legal obligations in the case of aid in charge of the deposits guarantee funds in credit institutions, including, in any case, the following: a) the statutory limitations of the right of attendance at general meetings or voting rights with respect to the actions that this fund purchase or subscribe;

(b) restrictions on the holding of participatory assessments provided for in paragraph 7 of article 7 of the law 13/1985, of 25 may, investment coefficients, own resources and obligations of information of financial intermediaries;

(c) limitations on the acquisition of contributions to the share capital of legal entities credit cooperatives;

(d) the limitations established by law to the Computability of own resources regarding the values that the Fund purchase or subscribe;

(e) the obligation to submit takeover bid pursuant to the regulations on stock markets.

7. the acquisition of shares or participation quotas by the Fund for orderly bank restructuring will require that excision remember the right of pre-emption of shareholders or cuotaparticipes existing at the time of the adoption of the agreement of large capital or issuance of shares.

8. when the Fund for orderly bank restructuring to acquire participatory assessments of a savings bank, it shall enjoy a right of representation in the General Assembly equal to the percentage involving those on the net worth of the transmitter box. The aforementioned exceptional right of representation will remain only as long as the Fund for orderly bank restructuring maintains ownership of the aforementioned values, not being transferable to subsequent purchasers of the same.

9. when the Fund for orderly bank restructuring subscribe or purchase contributions to the share capital of a Credit Union, their right to vote in the Assembly of the same will be proportional to the amount of these contributions with respect to the share capital of the cooperative.

Article 8. Competences related to corporate operations in processes of restructuring of credit institutions.

1. the approval by the Bank of Spain of the plan referred to in article 7 above will determine the concrete operations of merger of credit institutions, either by absorption or through the creation of a new entity of credit, or excision or global or partial transfer of assets and liabilities that are contained therein, as well as eventual acquisitions of significant participations that are its execution and statutory amendments that , if any, occur as a result of such operations do not require any further administrative authorization in the field of credit management and banking, except those required by the legislation in the field of competition.

2. the Bank of Spain, prior to approving the relevant plan, request report to the Minister of finance or to the competent bodies of the autonomous communities that have their domicile savings and, where appropriate, cases involved credit unions. These reports must be sent in within 10 days.

Title II reinforcement of the resources of credit article 9. Financial instruments for the reinforcement of the resources of credit 1. The Fund for orderly bank restructuring may acquire the titles referred to in paragraph 3 of this article issued by those credit institutions resident in Spain who, without incurring in the circumstances set out in article 6 of the present Royal Decree-Law, need to strengthen their own resources with the sole intended purpose of carrying out each other integration processes and request.

Such processes should involve, among others, improved its efficiency, streamlining their administration and management as well as a downsizing of its productive capacity, and all this with the aim of improving their prospects.

For this purpose, the entities in question shall draw up a plan of integration which should detail measures and specific commitments aimed at achieving this objective and which must be approved by the Bank of Spain, under the principle of the more efficient use of public resources. The aforementioned acquisition should be effect taking into account, in all cases, the time and risk of the operation, the need to avoid the risk of a competitive distortion as well as that such acquisition facilitates the implementation and fulfillment of the plan of integration and will be chaired by the beginning of the more efficient use of public resources.

2. with previous character to the effective acquisition of these securities, the Fund for orderly bank restructuring rise to economy Minister and Hacienda an economic report that will detail the financial impact of this acquisition on funding charged to the general budget of the State. The Minister of economy and finance may object, accordingly, in within 10 days since the memory is high you.

3 titles them referred to in paragraph 1 above shall be preferred shares convertible into action, participatory assessments or contributions to the share capital, which shall be governed by the provisions contained in the additional provision second law 13/1985, of 25 may, about investment coefficients, own resources and obligations of information of financial intermediaries , with the following specialties.


(a) the issuance will be exceptional in nature and can agree only on the basis and for the purposes of this Royal Decree-law. CAs must approve, at the time of the adoption of the agreement for issuance of the preference shares provided for in this article, the necessary agreements for the expansion of capital, the issuance of participatory assessments or the subscription of capital in the amount of required contributions. The terms and conditions of the reward of the preference shares shall take into account, in any case, the principles established by the European Commission.

(b) the acquisition of convertible preference shares by the Fund for orderly bank restructuring will require that excision remember the right of pre-emption of shareholders or cuotaparticipes existing at the time of the adoption of the issuance agreement.

(c) the authorities should commit themselves to repurchase securities underwritten by the Fund for orderly bank restructuring as soon as they are able to do so in the terms involved in the integration plan. After five years of disbursement unless preference shares have been repurchased by the entity, the Fund for orderly bank restructuring may request its conversion into action, participatory assessments or social contributions of the issuer. The exercise of this right shall be, where appropriate, within a maximum period of 6 months from the completion of the fifth year since the disbursement of the preference shares. However the above, issuance agreement must contemplate also the convertibility of the preferred shares at the request of the Fund for orderly bank restructuring if, before the course of the period of five years, the Bank of Spain is very unlikely, in view of the situation of the entity or his group, which repurchase of the preference shares can carry out within the time limit.

(d) preference shares issued under cover of the provisions of this rule shall be Computable as basic resources. For this purpose, they will not them apply the limitations established by law for the computation of own resources.

(e) the agreement of issuance of these titles shall conform, in addition, to the remaining conditions involved in the integration plan.

4. the divestment by the Fund for orderly bank restructuring of securities made in exercise of the functions entrusted to it in this article will be made through its repurchase by the issuer or its disposal to third parties. When the divestment of such securities or those resulting from the conversion is carried out through its sale to a third party, this should be conducted through procedures that ensure competition and within a period not exceeding five years from the date of implementation of the integration plan, which shall not apply in the case that the entity he may apply paragraph 8 of this article.

5. in the case of conversion of the preference shares in actions, participatory assessments or contributions to capital, shall apply to them the provisions of paragraphs 6, 8 and 9 of article 7 of the Royal Decree-law.

6. with quarterly periodicity, the entity designated by the entities involved in the integration process, or, in your case, the resulting entity of the same be forwarded to the Bank of Spain a report on the degree of compliance with the measures referred to in the approved integration plan. The Bank of Spain, in view of the contents of that report, may require the adoption of actions that may be necessary to ensure that the integration plan is indeed a term.

7. If, as a consequence of the evolution of the economic and financial situation of the entity resulting from the process of integration and the development of market conditions, be warned that the integration plan not can be met in the terms in which it was approved, the entity may ask the Fund for orderly bank restructuring a modification of these terms, which may include (, among other things, an extension of the period of repurchase of securities underwritten by the Fund referred to in paragraph 3.c) above, up to two years. Modification of integration agreed upon with the Fund for orderly bank restructuring plan shall be approved by the Bank of Spain.

8 if, as result of the evolution of the economic and financial situation of the entity resulting from the process of integration and the development of the conditions of the markets, the integration plan could not be conducted and the entity is located in the situation envisaged in article 6 of this Royal Decree, shall apply to that institution as provided in article 7 and must provide for schemes that, under that article, are approved as appropriate with respect to certificates signed by the Fund for orderly bank restructuring.

First additional provision. Legal regime of guarantees constituted in favor of the bottom of bank restructuring or funds of guarantee of deposits in credit institutions.

The legal regime laid down in the sixth additional provision of law 13/1994 of 1 June, autonomy of the Bank of Spain, also applies to warranties made in favour of the deposit guarantee funds in credit institutions or from the Fund for orderly bank restructuring in the exercise of their functions.

Second additional provision. Legal regime of the granting of guarantees as collateral for financial obligations payable to the Fund for orderly bank restructuring.

(On the basis of provisions of article 114 of law 47/2003, of 26 November, General budget, authorizing the General State administration, subject to the limits provided for in the letters a) and b) following, to grant guarantees guarantee of economic obligations payable to the Fund for orderly bank restructuring, derived from emissions of financial instruments (, from the conclusion of operations of loan and credit, as well as any other operations of indebtedness which perform the background: to) until December 31, 2009, the General Administration of the State may grant guarantees amounting to a maximum of 27,000 million euros, charged to the limit laid down in article 54. One of the law 2/2008 of 23 December, the State budget for the year 2009 b) for the subsequent years, the maximum for the granting of guarantees amounts will be to determine the corresponding laws of the State budget.

The granting of the guarantees, which will not bear any Commission, must be agreed to by the Minister of economy and finances, in accordance with provisions in the Law 47/2003, of 26 November, General budget and only once may be made to set up the Fund and up to the date of its extinction.

Produce the execution of the guarantee, provided that the same call within 5 calendar days of the date of expiration of the secured obligation, the State will satisfy compensation to the legitimate holders of guaranteed values, without prejudice to the amounts payable under the guarantee. The amount of this compensation will be the result of apply to payment which consists of the execution of the guarantee issued by the Bank of Spain Euro OverNight Average interest rate or which, if determined by the Minister of economy and finance, of the expiration date of the obligation secured by the number of days that elapsed between this date and the cash payment by the guarantor , on the basis of a year of 360 days.

The Minister of finance is authorized to establish the conditions and procedure for responding to this compensation.

The General direction of Treasury and financial policy is authorized to make payments both to the execution of the guarantee this compensation through Treasury operations charged to the specific concepts that are created for this purpose.

After its completion, the General direction of Treasury and financial policy will be applying to the expenditure budget of payments made in the year, payments made in the month of December of each year shall apply to the budget of expenses in the quarter immediately following.

Third additional provision. Bankruptcy situations 1. Duty to request the Declaration of insolvency will not be payable to the credit institution which, within the foreseen cases, filed one of the plans referred to in articles 6 and 7 of this Royal Decree-law. In these cases not be supplied by the competent court contest applications concerning a credit institution that may arise.

2. in the event that the Bank of Spain has agreed provisional replacement of organs of management or direction of the entity's credit, the authority to request the contest will correspond exclusively to the Fund for orderly bank restructuring.

Sole repeal provision. Regulatory exemptions.

The entry into force of this Royal Decree-law they are hereby repealed many provisions of equal or lower rank to oppose provisions in it.

First final provision. Modification of article 2.1 of the Royal Decree-Law 6/2008. on 10 October, which created the Fund for the acquisition of financial assets.


Article 2.1 of the Royal Decree-Law 6/2008 amending. on 10 October, which created the Fund for the acquisition of financial assets, which is drawn up in the following terms: "1. the Fund for the acquisition of financial assets will be provided at the General State budget expense, amounting to 30,000 million €, expandable up to a maximum of 43,250 million €».

Second final provision. Modification of law 2/2008 of 23 December, the State budget for the year 2009.

One. The first paragraph of article 54.Dos of the law 2/2008 of 23 December, the State budget for 2009, is drawn up in the following terms: «(Dentro deel total señalado en el apartado anterior, se reservan los siguientes importes: a) 10,000 million euros to ensure, in accordance with article 1.8 of the Royal Decree-Law 6/2009» , of 30 April, which adopted certain measures in the energy sector and approves the social bond, financial obligations due to electrical system Deficit securitisation Fund, derived from emissions of financial instruments that make this Fund financed by charging that rights constitute the assets of the same.

(b) 9,000 million euros to ensure, pursuant to Royal Decree-Law 4/2009, of 29 March, the obligations arising from the financing that can give the Bank of Spain to Caja de Ahorros de Castilla - La Mancha.

(c) 27,000 million euros, to guarantee financial obligations payable to the Fund for orderly bank restructuring, derived from operations provided for in article 2(5) of the Royal Decree-Law 9/2009, of 26 June on bank restructuring and reinforcement of the resources of credit institutions.

d) 64,000 million euros, to guarantee the obligations of financing transactions that referred to in article 1 of the Royal Decree-Law 7/2008 of 13 October, urgent financial and economic measures in relation to the Plan of concerted action of the countries of the Euro zone.»

Two. Annex II, «credits extensible», second. Four. (c) of the Act 2/2008 of 23 December, the State budget for 2009, is drawn up in the following terms: ' c) credit 15.931 M. 16.879, for the contribution to the Fund for the acquisition of financial assets. " «The final credit shall not exceed the amount of 43.250.000 thousand euros, maximum amount referred to in article 2 of the Royal Decree-Law 6/2008 October 10, which created the Fund for the acquisition of financial assets.»

Third final provision. Modification of paragraphs 7 and 8 of article 7 of the law 13/1985, of 25 may, coefficients of investment, resources and obligations of information of financial intermediaries.

Amending paragraphs 7 and 8 of article 7 of the law 13/1985, of 25 may, investment coefficients, own resources and obligations of information of financial intermediaries, which are written in the following way: «7. participatory shares will be listed on organized secondary markets.» However, any person, natural or legal, or economic group, may hold, directly or indirectly, participatory fees amounting to more than 5 per 100 of total quotas in force. If it is the same, will proceed to the suspension of all the economic rights of the shares acquired by the person or economic group.

This shall be without prejudice to the possibility of the deposits guarantee fund, the Fund for orderly bank restructuring or other entities in the field of savings banks, previously authorized by the Bank of Spain, may exceed the limit of 5 per 100 of participatory assessments issued by a savings bank in situations of exceptional gravity which jeopardize the effectiveness of its own resources as well as the stability, liquidity and solvency of the issuer. In such cases, neither will apply the limit laid down in paragraph 6 of this article.

8. the competent body to agree on every issue of participatory assessments will be the General Assembly, that this competition may delegate to the Council of administration of the Fund. This competition means associate, in any case, in provisional administrators appointed by the Bank of Spain under cover of the title III of law 26/1988, of discipline and intervention of credit institutions.

The acquisition of participatory assessments by the box or its economic group shall be prohibited. However, Yes may be a derivative acquisition, provided that the nominal value of shares that are held by the entity or its consolidatable group does not exceed 5 per 100 of the total shares outstanding.»

Fourth final provision. Amendment of article 4 of law 26/1988, of July 29, on discipline and intervention of credit institutions.

In article 4 of law 26/1988, of July 29, on discipline and intervention of institutions of credit, is added a new letter p) with the following wording: «p) the lack of reference to the Bank of Spain by the managers of a credit institution of the plan of return to compliance with the standards of solvency or plan he referred to article 6.1 of the Royal Decree-Law 9/2009 June 26, 2009, bank restructuring and reinforcement of the resources of credit institutions, when it is coming. "Means that there is a lack of remission when the deadline had passed for it, from the moment that administrators knew or must have known that the entity was in any of the conditions determining the existence of such a duty."

Fifth final provision. Modification of the second additional provision of law 22/2003 of 9 July, bankruptcy.

Amending paragraph 2 of the second additional provision of law 22/2003 of 9 July, bankruptcy, adding a new letter k) with the following wording: «k) third additional provision of the Royal Decree-Law 9/2009, of 26 June, on bank restructuring and reinforcement of the resources of credit institutions.»

Sixth final provision. Competence titles.

The present Royal Decree-law is issued on the basis of article 149.1.6., 11th and 13th of the Constitution that gives the State exclusive competences on commercial law, bases of management of credit, banking and insurance and bases and coordination of the general planning of economic activity, respectively.

Seventh final disposition. Enabling legislation.

The Minister of finance is authorized to issue the necessary rules for the implementation and development of the provisions of this Royal Decree-law.

Disposal the eighth. Entry into force.

The present Royal Decree will enter into force the day following its publication in the official bulletin of the State.

Given at the Embassy of Spain in Singapore, on June 26, 2009.

JUAN CARLOS R.

The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO