JUAN CARLOS I King of Spain to all that the present join together and act.
Know: That the Cortes Generales have approved and I come in to sanction the following law.
PREAMBLE I the prudential supervision of credit institutions aims to ensure the stability of the Spanish financial system, preventing the emergence of crisis between those entities that comprise its fabric. The ultimate reason for this policy precautionary lies in the special importance that, for the proper functioning of the economy, has the role played by credit institutions in channelling savings into investment.
Aside from the use of other instruments, the requirement of minimum levels of equity, adjusted technically to their real needs and risks, is considered as one of the main elements of control of the solvency of credit institutions.
In a context of international financial markets, the regulation of the solvency of credit institutions cannot be exclusively national, as the differences between regulations create advantages and disadvantages artificial in terms of competitiveness between institutions from different countries. Therefore, through projects of international harmonisation, measures are being taken to converge in the prudential criteria on requirements of financial intermediaries in each country's own resources.
In the framework of the mentioned projects, in 1988 the Basel Capital Accord introduced a set of common standards for the calculation of the requirements of own resources to deal with the risk of credit, with the basic objective of ensuring competitive equality and stability of the international banking system. Although initially this model should only apply to large internationally active banks, in practice was imposed as the basis for the regulation of the solvency of credit institutions in more than 100 countries. In particular, the European Union adopted Directive 2000/12/EC, dealing with risks to institutions due to its lending activity, and Directive 93/6/EEC, the adequacy of the capital of investment firms and credit institutions.
While the 1988 Basel Accord gave answers simple and applicable at the time, after nearly twenty years, perceived maladjustment to the measurement and management of the risks of a financial sector that has gradually been introducing new and increasingly sophisticated procedures and systems.
Therefore required revision was addressed at the international level with the new agreement of Basel Capital of 2004 who, later, joined the acquis communautaire through the directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006, relating to the access to the activity of credit institutions and its exercise (recast) , and of Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit (recast). The first of these two directives is that transposes partially into the Spanish legal system by means of the present law.
The new directive 2006/48/EC seeks to approach the measurement of risks performed by the supervisor to own institutions measuring mechanisms, recognizing at the same time, that the treatment of bank solvency must consist of something more than simple fixing of a coefficient of minimum resources, and stimulating the development of adequate internal procedures of risk management. Thus, the fundamental objectives of ensuring a level of sufficient solvency and to achieve competitive equality between banks, added the do more sensitive required regulatory capital to the real risks and encourage better management of risks by the entities.
With these goals, both the new Capital agreement of Basel and the directive 2006/48/EC, have developed a set of measures that are structured on the basis of three pillars that are mutually reinforcing. Each of these pillars represents a different monitoring approach: the first places emphasis on the adoption of uniform rules and determines the minimum equity requirements; the second starts a whole system of supervisory review with the aim of promoting the improvement of the internal management of the risks of the entities; and the third party responds to the disciplinary effect exercising scrutiny of the market, forcing institutions to disseminate information on key aspects of their profile of business, exposure to risk and risk management forms before this.
II the present law deals with the strict implementation of the aforementioned Directive 2006/48/EC. It is, however, a partial transposition in so far as by much of the community standard technical specification is necessary to complete the process of transposition provisions of lower rank.
The single article of this law contains amendments made the law 13/1985, of 25 may, coefficients of investment, resources and obligations of information of financial intermediaries. First, amending the heading of title II of that law to better suit its new content. This mode is referred to as «Coefficient of solvency and limitations to the activity of credit for solvency reasons», called «Minimal own resources and limitations» to the activity of credit institutions for reasons of solvency. This change reflects the fact that new instrumentation of the required minimum equity scheme goes far beyond a mere coefficient setting.
In regard to the minimum requirements of own resources of credit institutions and to the previous wording of the law, leaving the determination of the risk classes regulatory development to cover, the new articulated intends to establish, in legal offices, the broad guidelines prior to regulatory development including, also, a more extensive range of risks to be covered. He is expected, at the same time, the regulatory development of the methods of calculation of such demands of own resources. Specifically, will the Bank of Spain who determine the conditions necessary to be able to use the most advanced methods of risk measurement. He is permitted, as a relevant novelty, the use of external ratings of credit, some of these methods, carried out by companies recognized by the Bank of Spain. Furthermore, it obliges institutions to put in place internal procedures of evaluation of the adequacy of the capital.
Third, concerns the broad set of skills that should allow the Bank of Spain to run effectively with the rules of solvency of credit institutions contained in the law 13/1985. In particular, is made allusion to the functioning of the supervision on a consolidated basis community, both when it corresponds to the Bank of Spain, as when the Bank of Spain have the obligation to cooperate with the supervisor of the European Union which holds that category. Finally, regulating the obligations of the Bank of Spain against the public disclosure. Among the latter, the most important is the obligation to periodically disclose the criteria and methodologies that the Bank of Spain is in the application of new skills that he credited with this law.
Fourthly, materialize the obligations of disclosure to the public, especially to stakeholders of the financial market, which will have to comply with credit institutions. There is the duty of annual publication of a document entitled 'Information with reasonable relevance'. The Bank of Spain will set the minimum contents of this document to ensure that they are comparable between entities, but each of these must be set a formal policy of dissemination of information on their own solvency to the public. The Bank of Spain protects these obligations of disclosure of credit institutions.
Finally, granted to the Bank of Spain new executive powers which, without prejudice to its powers to impose penalties, serve him to pursue his work of discipline in terms of compliance with the obligations of solvency of credit institutions.
III reasons for caution led to introduce a transitional provision that establishes a limit lower than the requirements of minimal own resources provided for in the law, during the two years following its entry into force of this law. These limits are intended to keep a certain prudence, as the difficulty of assessing the enormous changes in the requirements of minimal own resources calculations that involve this law and its development provisions, could endanger the objective of financial stability if required entities equity fell drastically after the entry into force of the new regulation.
This law also has two final provisions to modify respectively the legislative Royal Decree 1298 / 1986 of 28 June, on adaptation of the existing law in respect of credit institutions of the European communities, and the Law 26/1988, of July 29, discipline and intervention of credit institutions. In the first case, the aim is to introduce references relating to the necessary coordination of the Bank of Spain with other community and extra-Community competent authorities. In particular, materialize the terms governing the exchange of information between competent authorities in the framework of supervision on a consolidated basis. In the second case, the objective is the set offenders types, the obligations of the entities and the powers of the Bank of Spain to the set of the new regulation on solvency. In particular, stresses the new obligation for the exercise of the activities of credit institutions having an organizational structure appropriate lines of responsibility well defined, transparent and consistent, it transposes the obligations contained in the directive 2006/48 as the demand of providing solid corporate governance procedures. Regarding infringements, are created new very serious and serious related to breaches of obligations regarding offenders types a: demands of own resources, the deficiencies in the organisational structures or mechanisms of internal control of the entities, breach of the duty of disclosure of prudential information or other breaches of specific policies required by the Bank of Spain.
He concludes the law with final disposition that establishes competence certificates on the basis of which approved it, which enables the Government to its development, which advises of the incorporation of Community law by this Act, and that sets its entry into force on January 1, 2008.
Single article. Modification of the law 13/1985, of 25 may, coefficients of investment, resources and obligations of information of financial intermediaries.
Law 13/1985, of 25 may, coefficients of investment, resources and obligations of information of financial intermediaries, is hereby amended as follows: one. The header of the second title is worded in the following way: «title second minimum resources and limitations to the activity of credit for solvency reasons» two. The sixth item is drawn up in the following way: «1. consolidated groups of credit institutions, as well as credit institutions that are integrated or not in a consolidatable group of credit institutions, shall at all times maintain one sufficient volume of resources in relation to investments and the risks involved. " En_especial, shall be provided at all times for funds greater than or equal to the sum of the following minimum equity requirements: to) with respect to all of its activities with the exception of the of trading book, certain equity requirements according to the calculation method established by regulation for credit risk and dilution risk;
b) regarding their activities of trading book, equity requirements determined in accordance with the method of calculation set out regulations for position risk, settlement risk and counterparty risk and, in so far as is authorized, for large exposures exceeding the limits established by law;
(c) with regard to all its activities, resources requirements determined in accordance with the calculation method established by regulation for exchange rate risk and the risk on raw materials;
d) respect of all its activities, resources requirements determined in accordance with the method of calculation according to the rules established for operational risk.
2. regulations shall be determined the methods of calculation of these demands of own resources, the weighting of different investments, transactions or positions, possible charges by the risk profile of the Organization and techniques allowed for the reduction of the credit risk.
The use for these purposes of external credit ratings will require that the company making them has been recognized for this purpose by the Bank of Spain, according to the criteria established for this purpose and value, in any case, objectivity, independence, transparency and continuous review of the methodology, as well as the credibility and acceptance in the market of credit ratings carried out by that company. The authorization of the Bank of Spain, under the conditions determined by this, for those same purposes use internal ratings of credit or internal operational risk and market risk measurement methods developed by the very institutions will be enforceable.
3. by the same regulatory procedure maximum limits may impose on investments in real estate and other fixed assets; stocks and shares, assets, liabilities or positions in foreign currency; the risks which may contract with one person, entity, or economic group; and, in general, those operations or positions that involve risk high for the soundness of institutions. Limits may graduate according to the characteristics of the different types of credit institutions.
4. the consolidated groups of credit institutions, as well as credit institutions not integrated in one of these consolidated groups, will benefit specifically strategies and procedures solid, effective and comprehensive in order to assess and maintain on an ongoing basis the amounts, types and distribution of internal capital considered adequate to cover the nature and the level of risks to which are or may be exposed. «Such strategies and procedures shall be periodically subject to internal review to ensure that they continue to be comprehensive and proportionate to the nature, scale and complexity of the activities of the credit institution concerned.»
3. The eighth item is drawn up in the following way: "1. for the fulfilment of the demands of equity and, where appropriate, of limitations provided for in articles sixth and tenth, credit institutions will consolidate their financial statements with the of other credit institutions and financial institutions which constitute them a unit of decision.» For the same purposes, credit institutions that do not have subsidiaries must develop some financial statements that apply criteria similar to the consolidation if you have holdings in the direction indicated in the first paragraph of article 47.3 of the code of Commerce, or, directly or indirectly, at least 20 per cent of the capital or of the voting rights in another financial institution.
All entities or companies that integrate the consolidated groups of credit institutions shall because their systems, procedures and mechanisms are consistent, are well integrated and are adequate to provide the information necessary for the required compliance to the group, as well as to facilitate any type of data and information relevant for the purposes of supervision.
2. for the purposes of this Act, to determine whether several entities constitute a unit of decision it attend the criteria laid down in article 4 of law 24/1988, of July 28, of securities markets.
3 shall be considered that a group of financial institutions constitute a consolidatable group of credit institutions where any of the following circumstances: to) that controls a credit institution, in accordance with article 42 of the code of Commerce, to other entities.
(b) that the parent is an entity whose main activity is to have participations in credit institutions.
(c) that a company whose main activity consists of having stakes in financial institutions, an individual, a group of individuals who consistently act in concert, or a not consolidatable entity under this Act, to handle various financial entities, at least one of them being a credit institution, and always that credit institutions are those of greatest relative dimension between financial institutions , in accordance with the criteria provided by the Minister of economy and finance to the effect.
4. by regulation the types of financial institutions to be included in the consolidatable group of credit institutions referred to in the previous number will be determined.
In any case, will be part of the consolidatable group: to) credit institutions.
(b) investment services companies.
(c) the Variable Capital investment companies.
d) the corporate managers of collective investment institutions, as well as the management societies of pension funds whose sole purpose is the Administration and management of the mentioned funds.
(e) the societies of mortgage securitization and asset securitisation funds fund managers.
f) the Venture Capital companies and the managers of Venture Capital funds.
(g) entities whose main activity is the holding of shares, unless in the case of mixed financial holding companies subject to supervision at financial conglomerate level.
Also form part of the consolidatable group instrumental societies whose main activity involves the extension of the business of any of the entities included in the consolidation, or include the provision of ancillary services to.
5 the Bank of Spain may authorize or require the individual exclusion of an entity of credit or financial entity, which are subsidiaries or investees, consolidatable group of entities of credit or investments entities referred to in paragraph 1: to) when the company in question is located in a non-Member State of the European Union in which there are legal obstacles to the transmission of the information required;
(b) when the company in question does not present a significant interest, in the opinion of the competent authorities, with respect to the objectives of the supervision of the credit institutions and, in any case, when the total of the balance sheet of the company concerned is less than the lower of the two following amounts: EUR 10 million or 1 per cent of the total of the balance sheet of the parent of the group or of the individual entity which holds a participation;
(c) when the consolidation of this entity is inadequate or misleading from the point of view of the objectives of the supervision of that group.
When, in the cases referred to in (b)), several companies meeting the criteria listed there, must however be given in consolidation where the set formed by these companies submitted a negligible interest with respect to the objectives.
6. for the purposes referred to in paragraph 1 of this article, the insurance companies will not form part of the consolidated groups of credit institutions.
7. regulations can be regulated the way in which the rules that this law determines about own resources and supervision of consolidated groups of credit institutions should be applicable to subgroups of credit institutions, understanding as such those who, including entities of such nature are integrated, in turn, into a group of largest.
The way in which the indicated rules shall apply to credit institutions which are affiliated to a central body, whenever this check them, direct, ensure its obligations and met the other requirements of that provision to the effect can also be adjusted.
Mode of integration of the subgroup in the group, and cooperation between supervisory bodies can be regulated in the same way.
8 when foreign entities capable of joining a consolidatable group of credit institutions, shall be according to the rules governed the scope of supervision on a basis consolidated in charge of the Bank of Spain, taking account, among other criteria, the community or extra-Community nature of the entities, their legal nature and degree of control.
9. for the fulfilment of the duty to formulate consolidated accounts that establishes the code of Commerce, when not apply accounting standards approved by the European Commission regulations, used the rules to be determined according to the procedure and criteria laid down in the first subparagraph of paragraph 1 of the following groups of companies article (: a) whose parent is a credit institution;
(b) whose parent company has as main activity the holding of participations in credit institutions;
(c) in which one or more credit institutions, including the activity of these is the most important within the group.»
Four. Paragraph 4 of the article nine is drawn up in the following way: (and b) item octavo.3.» Likewise, the Bank of Spain may take other measures to ensure adequate distribution of resources and risks between the entities that make up the consolidatable group and, in any case, will monitor the individual position of solvency of credit institutions that integrate these groups.»
5. Two new items are introduced decimo.bis and decimo.ter which are written in the following way: «tenth article bis.»
1 will correspond to the Bank of Spain, in his capacity as authority responsible for the supervision of credit institutions and their consolidated groups: a) check systems, agreements, strategies, procedures, or mechanisms of any kind, applied to comply with the rules of solvency contained in this law and in the provisions that develop it;
b) assess risks which are or may be exposed; (and c) starting from the review and evaluation referred to in the lyrics above, determine if the systems referred to in to) and held equity guarantee solid risk management and coverage.
(d) develop and publish guidelines, aimed at institutions and supervised groups, indicating the criteria, practices, or procedures, which considers appropriate to facilitate an appropriate assessment of the risks that are or might be exposed as well as better compliance with the standards of management and discipline of the supervised subjects. These guides may include the criteria that the Bank of Spain will follow in the exercise of its oversight activities.
To this end, the Bank of Spain may endorse, and transmit as such entities and groups, that guidelines on such matters, approved bodies or international committees active in banking regulation and supervision.
The analysis and assessments referred to in letters a) and b) above will be updated with at least annually.
2 corresponds to the Bank of Spain, in its capacity as authority responsible for the exercise of supervision from the consolidated groups of credit institutions and in relation to the authorities supervising the European Union: to) coordinate the collection of information and disseminate information deemed important in both normal and emergency situations among the remaining authorities responsible for the supervision of Group entities.
(b) planning and coordinating all of the activities of supervision in both normal and urgent situations even in relation to the activities referred to in paragraph 1 of this article.
(c) cooperate with other competent authorities with responsibility supervisor on foreign credit institutions parent, affiliates or subsidiaries of the same group in the terms provided for in article 6 of the Royal Legislative Decree 1298 / 1986 of 28 June.
In particular, the Bank of Spain will cooperate with the competent authorities mentioned in the granting of the authorization for the use of ratings internal credit or internal methods of measurement of operational risk in the Spanish groups of credit institutions and the determination of the conditions, which, if any, shall be subject.
Applications for authorization referred to in the preceding paragraph, presented by a credit institution matrix of the European Union and its subsidiaries, or jointly by the subsidiaries of a financial EU parent holding company, will go to the Bank of Spain, in its capacity as authority responsible for the exercise of supervision from the consolidated groups of credit institutions.
In these cases, within a period not exceeding six months, the Bank of Spain will promote the adoption of a joint decision on the application with the other competent authorities of other Member States responsible for the supervision of the various entities in the group. Motivated resolution containing this joint decision shall be notified to the applicant by the Bank of Spain.
Referred to in the preceding paragraph shall commence upon the date of receipt of the complete application by the Bank of Spain. The Bank of Spain shall forward such request without delay to the other competent authorities.
In the absence of a joint decision between the Bank of Spain and the other competent authorities within the period of six months, the Bank of Spain shall rule on the request. The reasoned ruling shall take into account the views and reservations of the other competent authorities expressed during the period of six months. The reasoned decision shall be communicated to the applicant and to the other competent authorities by the Bank of Spain.
In the case of the equivalent procedure that applies, as provided for in Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006, relating to the access to the activity of credit institutions and its exercise, the above-mentioned authorizations in the case of foreign groups of credit institutions in which a credit institution to integrate Spanish the Bank of Spain, as well as cooperate in the decision jointly to adopt, you will accept, if necessary, the decisions adopted in this respect the competent authorities of other States members of the European Union when these are responsible for the exercise of supervision of those groups. The affected Spanish institution shall calculate their own resources in accordance with this decision requirements.
According to the rules, the terms of the cooperation procedure referred to in this letter may realize.
(d) sign agreements of coordination and cooperation with other competent authorities designed to facilitate and establish effective supervision of groups entrusted to their supervision and assume additional tasks resulting from such agreements.
(e) notice, as soon as possible, the Minister of economy and finance, and the remaining supervisory, domestic or foreign, concerned authorities of the appearance, in a credit institution or in the bosom of a consolidatable group of credit institutions, in an emergency situation that may affect the stability of the financial system of any Member State of the European Union in which the Group entities have been authorized or in which there are branches of the entity or group affected.
3 the Bank of Spain will accumulate statistical data on the fundamental aspects of the application of rules of management and discipline of credit institutions contained in this law and reported periodically, at least on its website, the following information relating to this norm: to) the text of the provisions laid down by law, regulation or administrative action, as well as the orientations adopted regarding this in the authority responsible for the control and inspection of credit institutions and their (groups, b) mode that you have exercised in Spain options and discretionary powers allowed to Member States by EU directives relating to the aforementioned regulations, c) methodology and the criteria followed by the Bank of Spain to review agreements, strategies, procedures and mechanisms implemented by the credit institutions and groups in order to comply with the rules and for assessing the risks that they are or may be exposed."
«Tenth Article ter.»
1 consolidated credit institutions and groups of credit institutions not integrated in one of these consolidated groups will make public, as soon as practicable, at least with periodicity yearly, properly integrated in a single document called "Information with reasonable relevance", specific information about those details of your financial situation and activity where the market and other interested parties may have interest in order to assess the risks facing them its market strategy, its risk control, their internal organization and their situation in order to comply with the minimum requirements of own resources provided for in this law.
The Bank of Spain will determine the minimum information which must be published pursuant to the preceding paragraph. In any case, institutions may omit information having no importance on and, with the timely warning, data deemed reserved or confidential; You can also determine the means, place and mode of dissemination of the document.
Is excepted from this obligation to the groups or entities individual credit controlled by other credit institutions or financial holding companies authorized or established in another Member State of the European Union, except when such an important credit institution, is to be in accordance with the criteria that the authority responsible for consolidated supervision of the Group has communicated to the Bank of Spain in the opinion of the latter in attention to his activity in Spain, or their relative importance within the group.
These same effects, groups and entities will adopt a formal policy for the fulfilment of these requirements of disclosure, the verification of the sufficiency and accuracy of the reported data and the frequency of its disclosure, and shall have procedures allowing to assess the adequacy of the policy.
Obligations of disclosure will be required, either individual or subconsolidated, Spanish credit institutions or foreign incorporated in another Member State of the European Union, subsidiaries of Spanish, where credit institutions the Bank of Spain thus consider it in view of its activity or materiality within the group. Where the obligation to affect foreign subsidiaries, the Bank of Spain will send the corresponding resolution to Spanish parent company, which will be obliged to take the necessary measures to provide effective enforcement.
2. unless authorised by the Bank of Spain, the disclosure, in accordance with commercial requirements or the stock market, the data referred to in paragraph 1, shall not relieve their integration as provided by that paragraph.
3 a the entities obliged to disclose the information referred to in paragraph 1, the Bank of Spain may require them: to) the verification by auditors or independent experts, or by other means satisfactory to his opinion, of information not covered by the audit, b) that share one or more of these informations, well independently at any time (, bien con frecuencia superior a la anual, y a que establezcan plazos máximos para la divulgación, c) employing dissemination means and places other than financial statements. "
6. The eleventh article is worded in the following way: «1. when a credit institution or a credit institutions consolidatable group do not reach minimum levels of own resources established in article sexto.1 or the additional which are required by the Bank of Spain in accordance with the provisions of paragraph 3 below, the entity, or all and each of the consolidated entities» shall allocate to the formation of reserves the percentages of profits or surplus liquid according to the rules established, submitting for that purpose its distribution to the prior authorisation of the Bank of Spain.
The authorization shall be granted if after one month from the receipt by the Bank of Spain of the timely request express resolution had not occurred.
2. the credit institutions or consolidated groups of credit institutions that violate the constraints that may be established by virtue of the number 3 of the sixth article, shall, under the conditions determined by regulation, measures to return to compliance the broken.
3. irrespective of the provisions, in paragraphs 1, 4, 5 and 6, and for the same purpose provided for in paragraph 2 the Bank of Spain may, where a credit institution does not comply with the requirements contained in this title, or other standards of management and discipline which determine appropriate resources or organizational structure or internal control requirements (, to adopt, among others, the following measures: to) force to credit institutions and their groups to maintain own resources additional to those required on a minimum basis.
The Bank of Spain should do it, at least, whenever you appreciate serious deficiencies in the organizational structure or procedures and internal control mechanisms, including notably those mentioned in article sexto.4 of this law, or whenever it determines, in accordance with article 10.bis.1.c) systems and held equity that refers that precept does not guarantee solid risk management and coverage. In both cases the measure shall be adopted when the Bank of Spain considers unlikely to the mere application of other measures to improve these deficiencies or situations within a suitable period.
(b) require credit institutions and its groups to strengthen procedures, mechanisms and strategies adopted for compliance with these requirements.
(c) require the application of a specific policy, by the provision of supplies, well than another type of treatment for assets subject to weighting for the purpose of capital requirements, by reducing the risk inherent in their activities, products or systems to credit institutions and their groups.
(d) restrict or limit the business, operations or network of entities.
4 savings banks must allocate to reservations or provident funds not attributable to specific risks, 50 per cent, at least that part of the surplus of available that is not attributable to the cuotaparticipes. This percentage may be reduced by the Bank of Spain when the own resources exceed by more than one-third the established minimum.
5. the Minister of economy and finance, on the proposal of the Bank of Spain and after consultation with the authorities to who responsible for the supervision of the charitable work of savings banks, may authorize, on an exceptional basis, applying percentages of allocation to reserves less than as set out in number 4 above, or which are established on the basis of the number 1 of this article When the investment or maintenance of social works previously authorized, own or in collaboration, could not be answered with the Fund for the charitable work that is the application of the above numbers. In such a case, those boxes may not include in their budgets investments in new, own works or in collaboration.
«6. the provisions of paragraphs 1, 2 and 3 above is understood without prejudice to the application of sanctions in each case remedies according to law 26/1988, of July 29, discipline and intervention of credit institutions.»
7. Paragraph 1 of the twelfth article is drawn up in the following way: the required to achieve the demands of own resources established in accordance with article sexto.1.»
b) the sum of the requirements of own resources established for each class of members of the Group entities, calculated from individual or subconsolidated, form according to their specific rules."
First transitional provision. Transitional arrangements.
1. during the first and second periods of twelve months to 31 December 2007, credit institutions or the consolidated groups of credit institutions using the internal ratings of credit risk will maintain own resources that will be at any time equal or exceed the amounts indicated in paragraphs 3 and 4 of this provision.
2. during the second period of twelve months after December 31, 2007, credit institutions or the consolidated groups of credit institutions that use internal methods of operational risk measurement will maintain own resources that will be at all times equal to or greater than the amounts indicated in paragraphs 3 and 4.
3. for the first twelve-month period provided for in paragraph 1, the amount of own resources shall be 90 per cent of the total amount of minimum own resources that would be payable to the entity or group maintain the existing regulation to December 31, 2007.
4. for the second period of twelve months referred to in paragraph 1, the amount of own resources shall be 80 per cent of the total amount of minimum own resources that would be payable to the entity or group maintain the existing regulation to December 31, 2007.
5. the compliance with the requirements of paragraphs 1 to 4 shall be based on the amounts of own resources fully adjusted, so that they reflect the differences between the calculation of own resources in accordance with the existing regulation to December 31, 2007, and the calculation of own resources in accordance with this law and its development provisions differences arising from the treatment separately of the expected losses and unexpected losses.
Second transitional provision. Transitional arrangements for certain emissions.
The provisions of paragraph 5 of the second additional provision of law 13/1985, of 25 may, investment coefficients, own resources and obligations of information of financial intermediaries, in terms of the values quoted in markets organised and issued by mortgage securitisation funds, regulated by law 19/1992 of 7 July about regime of companies and real estate investment funds and funds mortgage securitization and funds of asset securitization regulated by the fifth additional provision of law 3/1994, of 14 April, which adapts the Spanish legislation on credit institutions to the second banking coordination directive and introduces other amendments concerning the financial system It shall apply equally, to emissions of these securities traded on organized markets made prior to the entry into force of the law 23/2005 of 18 November, tax reforms to boost productivity.
From the entry into force of this Act are hereby repealed many provisions of equal or lower rank are opposed to it therein established.
First final provision. Modification of the Royal Legislative Decree 1298 / 1986 of 28 June, on the adaptation of the existing law in respect of credit institutions to the European communities.
The Royal Legislative Decree 1298 / 1986 of 28 June, on adaptation of the existing law in respect of credit institutions to the European communities, shall be amended as follows: one. Paragraph 1 of article 6 is worded in the following way: «1. in the exercise of their duties of supervision and inspection of credit institutions, the Bank of Spain will collaborate with the authorities having entrusted functions similar in foreign States and may communicate information concerning the leadership, management and ownership of these entities, as well as which can facilitate the control of solvency of these and any other which may facilitate their supervision or serve» to prevent, prosecute or punish irregular conduct; also you can subscribe, for this purpose, collaboration agreements.
In the event that the competent authorities do not belong to another Member State of the European Union, the provision of this information will require that there is reciprocity and that the competent authorities are subject to professional secrecy in conditions which, at a minimum, are comparable to those established by the laws of Spain.
In the event that the authorities belong to another Member State of the European Union, the Bank of Spain will facilitate the concerned, on its own initiative, any information which is essential for the exercise of their duties of supervision, and, upon request, all relevant information to the same end.
The information referred to in the preceding paragraph shall be considered essential when you can materially influence the assessment of the financial soundness of an entity of credit or of a company of another Member State of the European Union, and shall include in particular: to) the identification of the group structure with branches or subsidiaries in the Member State concerned , and the shareholder structure of the main entities of a group credit.
(b) the procedures to be followed for the collection and verification of the information requested from the companies of the group.
(c) adverse developments in the situation of solvency of a group or its entities that may seriously affect their credit institutions.
d) sanctions for infractions serious or very serious and measures exceptional adopted, in particular the request for additional resources pursuant to the provisions of article 11.3 of the law 13/1985 and the imposition of restrictions on the use of internal methods of operational risk measurement.»
Two. Introduces a new paragraph 1.bis to article 6, which is drawn up in the following way: «1bis. The Bank of Spain shall consult the competent authorities concerned in another Member State of the European Union, before adopting the following decisions when these decisions are important to the work of supervision of the authorities: to) the referred to in article 58 of law 26/1988, regardless of the scope of the change in the shareholding which should be resolved in the corresponding decision.
(b) the reports should issue in the operations of merger, Division or any other important changes in the organization or management of a credit institution, and which is subject to administrative authorization autonomic or State.
(c) proposals for penalties for very serious offences as laid down in law 26/1988, or penalties for serious offences that entail public reprimand or disqualification of managers or executives.
d) intervention and substitution contained in articles 31 to 37 of law 26/1988.
(e) the request for additional resources pursuant to the provisions of article 11.3 of the law 13/1985 and the imposition of restrictions on the use of internal methods of operational risk measurement.
Still, in the cases referred to in c), d), e) should be always consulted to the authority of the European Union responsible for consolidated supervision of the Group eventually affected.
In any case, the Bank of Spain may not carry out the inquiry referred to in the first subparagraph in cases of urgency, or when you understand that the query can compromise the effectiveness of their own decisions. In such cases it shall inform without delay to the authorities concerned of the final decision. "
Second final provision. Modification of law 26/1988, of July 29, discipline and intervention of credit institutions.
Law 26/1988, of July 29, discipline and intervention of credit institutions is hereby amended as follows: one. C) and n) of article 4 are written in the following way: «c) incurred by credit institutions or the consolidated group or financial conglomerate that belong in insufficient coverage of the requirements of equity minimum, when these are located below 80 per cent of the minimum established by law depending on the risks involved, or below the same percentage of required equity requirements» «, where appropriate, by the Bank of Spain to an entity set, remaining in such a situation for a period of at least six months.»
«(n) present the credit institution or financial conglomerate or consolidatable group to which it belongs, deficiencies in its organizational structure, its mechanisms of internal control or its administrative and accounting procedures including those relating to the management and control of risks, when such deficiencies endanger the solvency or viability of the institution or of the financial conglomerate or consolidatable group to which belongs.»
Two. Will introduce two new paragraphs to article 4, which are written in the following way: «n) breach of the specific policies that have been required by the Bank of Spain to an entity determined in terms of supplies, treatment of assets or reducing the risk inherent in their activities, products or systems, when referenced policies not taken within the term and conditions set for that purpose by the Bank of Spain and non-compliance with particular character, in danger the solvency or viability of the institution."
«(o) breach of restrictions or limitations imposed by the Bank of Spain with respect to the business, operations or network of a certain entity.»
3. The paragraphs h) and r) article 5 are written in the following way: «h) incurred by credit institutions or financial consolidatable or conglomerate group to which they belong in insufficient coverage of the requirements of minimal own resources established by regulation or required, where appropriate, by the Bank of Spain to a particular entity, remaining in such a situation for a period of» "at least six months, provided that this does not constitute serious infringement in accordance with the provisions of the preceding article."
"r) be a credit institution or financial conglomerate or consolidatable group to which it belongs, deficiencies in its organizational structure, its mechanisms of internal control or its administrative and accounting procedures including those relating to the management and control of risks, once elapsed the time limit granted for its correction by the competent authorities, and that this does not constitute infringement very always grave in accordance with the provisions of the preceding article."
Four. Will introduce two new paragraphs to article 5, which are written in the following way: «u) breach of the obligation to make public the information referred to in article decimo.ter.1 of law 13/1985, as well as the publication of such information with omissions or false, misleading or not truthful data.» «» «(v) failure to comply with the policies specific to that particular character, have been demanded by the Bank of Spain to a certain provisions concerning certification, treatment of assets or reducing the risk inherent in their activities, products or systems, when policies concerned have not adopted within the period fixed to the effect by the Bank of Spain and the breach is not violation very serious in accordance with the provisions of the previous article.»
5. Is inserted a new paragraph 1a to article 30 bis, which is drawn up in the following way: «1bis. Credit institutions and credit institutions consolidated groups shall be provided, in conditions commensurate with the nature, scale and complexity of its activities, an organizational structure that is adequate, with well defined, transparent and consistent lines of responsibility as well as effective procedures for the identification, management, control and communication of risks that are or may be exposed, together with adequate internal control mechanisms including administrative procedures and accounting solids.
As part of these procedures of Government and organizational structure, institutions of credit and consolidated groups of credit institutions that provide investment services shall comply with the requirements of internal organization collected in paragraph 2 of article 70.ter of the law 24/1988, of July 28, the stock market, with specifications to be determined by regulation.
The adoption of such measures is understood without prejudice to the need to define and apply those other policies and procedures of the organization which, in specific relation to the provision of investment services are payable to these entities on the application of the specific regulations for the stock market.»
6. Paragraph 4 of article 43 is drawn up in the following way: «4. authorisation for the creation of a credit institution shall be refused when it lacks the required minimum capital;» of an adequate organizational structure; Administrative and accounting organisation or internal control procedures, all in the terms provided for in the 30.bis.1.bis article, which ensure the sound and prudent management of the institution; when its administrators and managers, or those of its parent, when it exists, do not have the commercial and professional honesty required, or when it fails to comply with the other requirements regulations established to exercise banking activity.»
7. It introduces a new paragraph 1 bis to article 43 bis, which is drawn up in the following way: «for the proper exercise of its functions of supervision, both referred to in the preceding paragraph, as of any other that assigned to it by law, the Bank of Spain may request of the entities and persons subject to supervision in accordance with the applicable regulations how much information may be necessary to check the compliance of management and discipline to» those are required.
«With the purpose that the Bank of Spain may obtain such information or confirm their veracity, institutions and persons referred to are obliged to make available to the bank books, records and documents deemed accurate, including computer programs, files, and databases, whatever its physical or virtual support.»
Third final provision. Basic character.
This law has the character of basic legislation, in accordance with the provisions of the 11th and 13th in article 149.1 of the Constitution rules.
Fourth final provision. Enabling legislation.
It empowers the Government to dictate how many provisions are necessary for the development, implementation and enforcement of provisions of this law.
Fifth final provision. Incorporation of European Union law.
This law joined partially into Spanish law Directive 2006/48/EC, of the European Parliament and of the Council of 14 June 2006 relating to the access to the activity of credit institutions and its exercise (recast).
Sixth final provision. Entry into force.
This law shall enter into force on January 1, 2008.
The provisions of paragraph 2 of article decimo.bis of law 13/1985, in the wording given by paragraph five of article one of this law, shall enter into force the day of the publication of this law in the «Official Gazette» and may be applied with respect to the requests referred to in point c) of that paragraph that had been received by the Bank of Spain on a date prior to the entry into force of this provision.
The provisions of the second transitional provision shall take effect from the day following the publication of this law in the «Official Gazette».
Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this law.
Madrid, November 16, 2007.
JUAN CARLOS R.
The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO