The confidence of investors is one of the fundamental pieces of the gear of the financial markets. On one hand, the emergence of increasingly innovative financial products, and another, the application of new information technologies is favoring growth in the provision of remote services. These new possibilities of financial marketing led to the adoption of new measures to preserve investor confidence in the performance and capability of the financial markets. Indeed, to ensure that this greater dynamism in the provision of financial services benefits to investors, it is necessary that the regulatory legal framework for financial services offered to these customers an appropriate level of protection, which preserve their confidence in the functioning of the markets.
Law 44/2002 of 22 November, reform of the financial system, adopted in chapter V a series of protective measures of financial services customers. First, sets the obligation for financial institutions, to deal with and resolve complaints and claims that clients may present, related interests and legally recognized rights. For these purposes, credit institutions, investment services and insurance companies companies must have a Department or service customer. They may also designate a customer Ombudsman, who shall be responsible for addressing and solving the types of claims to be determined in each case by its rules of operation, and that it will be an entity or independent expert. Article 48 of the law 35/2003, 4 November, collective investment institutions, extends this treatment to the management companies of collective investment institutions.
Secondly, once you have formulated previously the complaint or claim, and this is not resolved or denied admission or any dismissed, managers attend it will be a few bodies of new creation, the Commissioners for the defense of clients of financial services, in which regulation, approved by Royal Decree 303/2004 of 20 February , is set, in effect, which shall be aimed at the protection of the rights of users of financial services, shall be competent to deal with complaints or claims that formulate the users of the services provided by: credit institutions, societies of pricing and currency exchange establishments authorized to perform sales operations of foreign banknotes and checks travellers and management of transfers abroad; by the companies of investment services and the management companies for collective investment institutions with regard to holders in mutual funds and shareholders of investment companies that have delegated the management; and by the insurance entities, except in the case of contracts for major risks, and the managing bodies of pension funds, as well as in relation to the activity of the mediators of insurance pursuant to specific legislation. The regulation of the Commissioners for the defence of the financial services customer empowers the Minister of the economy to dictate its development provisions.
Therefore, it will be essential for admission and processing of complaints or complaints to the Commissioner for the defense of the client's financial services, certify having previously made to financial institutions forced to meet them and resolve them through a service or equivalent unit responsible for carrying out this function.
Article 31 of law 44/2002 of 22 November, empowers the Minister of the economy to regulate the requirements to respect by the Department or service to the customer and the customer Ombudsman, as well as the procedure to refer the resolution of claims. For this purpose, the law allows that the Minister may require the adoption of suitable measures of separation from the remaining operational or commercial services of the entities. Also provides the ability to submit to administrative verification of operating regulations or any other features of the service, as well as require the inclusion in an annual report of entities, a summary of the most notable aspects of the performance of the Department or customer service and the customer Ombudsman during the period that corresponds.
By virtue, according to the Council of State, I have: chapter I object and scope article 1. Object.
This order is to regulate the requirements and procedures, which must comply with the departments and services to the customer as well as the customer Ombudsman of the entities listed in article 2 of this standard.
Article 2. Scope of application.
1 is subject to what is available in this order the following entities: to) credit institutions, b) investment services companies, c) the management companies of collective investment institutions, d) the insurance entities, e) the management entities of pension funds, with the clarifications set out in the first additional provision of this order, f) insurance brokerage companies (, g) branches in Spain of the entities listed in the previous paragraphs with registered office in another State.
Designated entities in the previous paragraphs which have been authorised in other Member States of the European economic area, when they exercise their activity in Spain in the free provision of services regime, must comply with the provisions of articles 3, 9 and 10.3 of this order.
2. the obligations under this order will be referred to the complaints and claims presented, directly or through representation, by Spanish or foreign physical or legal persons, who satisfy the condition of user of the financial services provided by the entities referred to in the preceding paragraph, provided that such complaints and claims relating to the legally recognized rights and interests already derived from contracts, with the rules of transparency and protection of customers or good practices and financial applications, in particular, of the principle of equity.
In insurance contracts the third parties shall also take consideration of users of financial services.
Chapter II requirements and duties of the Department or the defender of the article 3 client and customer service. Duty to deal with and resolve complaints and claims.
The entities referred to in paragraph 1 of article 2 of this order (hereinafter institutions) will be required to address and solve the complaints and claims that clients present them, related interests and legally recognized rights.
Article 4. Organizational structure for the treatment of complaints and claims.
1. the entities must have a Department or specialized service to the customer, which is intended to address and solve the complaints and claims that clients submit.
Entities that are part of the same economic group available only for group-wide customer service or a Department.
For the purposes of the provisions of the preceding paragraph means that there is a group when the conditions laid down in article 4 of law 24/1988, of July 28, of the stock market.
2. the institutions may designate an advocate for the client, which shall be responsible for addressing and solving the types of claims that are subject to its decision on the framework that is available to the regulation of operation to that referred to in article 8 of this order, as well as promote the compliance with the rules of transparency and protection of the clientele and good practices and financial applications.
The designation of the defender of the client may be made jointly with other entities, so that that treats and resolve complaints from customers of all of them, according to what has its rules of operation.
Article 5. Appointment of the head of Department or service to the customer and the customer Ombudsman.
1. holders of the Department or service to the customer and the customer Ombudsman must be people with commercial and professional repute and appropriate knowledge and experience to perform their duties.
There is commercial and professional repute who have been observing a personal history of respect for the commercial law or other governing economic activity and the life of the business, as well as commercial and financial practices.
They have knowledge and experience appropriate for the intended purpose in this order, who have played roles related to the financial activity of the entity or entities concerned.
2. holders of the Department or service customer and defender of the client, if any, shall be appointed by the Board of directors or equivalent body of the entity, or the general direction of the branch, in his case. In the case of the customer Ombudsman such designation may be, in accordance with what have the statutes of each entity, subsequently ratified by the Board or general Assembly or equivalent body.
3. the designation of the head of Department or service to the customer and, where appropriate, the customer Ombudsman, shall be communicated to the Commissioner or Commissioners for the defence of the financial services customer and the authority or supervisory authorities that apply by reason of their activity.
Article 6. Department or customer service.
1. the authorities must take measures to separate the Department or service the customer's remaining services business or operating of the Organization, so that to ensure that that autonomously take decisions concerning the scope of its activity, and also avoid conflicts of interest.
Without prejudice to the provisions of the preceding paragraph, entities shall take measures to ensure that the procedures for the transmission of the information required by the Department or service to the customer to the rest of the Organization's services, respond to the principles of speed, security, efficiency and coordination.
2. institutions shall ensure that their departments or customer services are provided with the human, material, technical and organizational means suitable for the performance of their duties. In particular, take the necessary actions so that the staff at the service of those departments have an adequate knowledge of the rules on transparency and protection of clients of financial services.
Article 7. Customer Ombudsman.
1. the customer Ombudsman will act with independence from the entity and total autonomy in terms of the criteria and guidelines to be applied in the exercise of their functions.
2. to this end, the customer Ombudsman will be one person or renowned in the field legal, economic or financial entity, other than the Organization of the entity or entities that provides its services.
3. favourable to the claimant the customer Ombudsman decisions linked to the entity. This link will not be obstacle to the fullness of the judicial, to resort to other mechanisms of dispute resolution or administrative protection.
Article 8. Regulation of operation.
1. each entity or group shall adopt a regulation for the defence of the customer, that will regulate the activity of the Department or service to the customer and, where appropriate, the customer Ombudsman, as well as the relations between the two.
2. the regulation will be adopted by the Board of directors or equivalent body of each entity, and, where appropriate, by the general direction of the branch, and will be, according to what they provide for the statutes of each entity, subsequently ratified by the Board or general Assembly or equivalent body.
3 the regulation shall contain at least the following elements: to) duration of the mandate, in its case, and possibility of renewal.
(b) causes of incompatibility and ineligibility and cessation.
(c) relationship clear and precise Affairs whose knowledge, by reason of the Fund, the amount or any other criteria, is attributed to the customer advocate, where appropriate, an explicit indication that those that are not appropriate will be competition of the Department or customer service; If both instances had attributed the knowledge of the same type of claim you must specify if following the decision of the Department or customer service the claimant can attend the customer Ombudsman as second instance, without prejudice to the period of two months to issue a final decision for the complainant for the purposes of the provisions of article 10(3) of this order.
(d) duty of all departments and services of the company help Department or service to the customer and the customer Ombudsman, how much information they request in connection with the exercise of their functions.
(e) deadline for the submission of complaints, from the date that the customer had knowledge of the facts that cause for the complaint or claim, unless can be less than two years.
(f) implementation of internal procedures in the entity or group on the application of the procedure laid down in chapter III.
(g) others provided in this order.
4 it will be up to the body having legally conferred powers of control and inspection of the entity in question, verify, within the three months following the filing of the application, containing the regulation the regulation necessary and which conforms to the provisions of the applicable legislation.
En_particular, this function will be: a) in the case of credit institutions, as well as its branches in Spain, to the Bank of Spain, unless in the case of savings banks, as well as credit unions from competition autonomic, pursuant to the provisions of article 104 of the law 27/1999 of 16 July, cooperatives in which case it shall be for the competent body of the autonomous community where is situated the registered office of the company.
(b) in the case of investment and management companies of collective investment services companies, as well as its branches in Spain, to the National Commission of the stock market.
(c) in the case of insurance companies, managing bodies of pension funds, societies of brokerage of insurance and its branches in Spain, the General Directorate of insurance and pension funds of the Ministry of economy, except that in the case of entities of competition regional, in accordance with the provisions of article 69 of law 30/1995 of 8 November management and supervision of private insurance, in which case it shall be for the competent body of the autonomous community where the registered office of the company is located.
In the event that a regulation should apply to all entities of the same group, the verification will be borne by the competent authority which, in accordance with the previous paragraphs, corresponds to the parent, previous report of other authorities.
In all cases, the aforementioned authorities may request report of Commissioners who apply by reason of the entities to which the regulations are applicable.
Article 9. Duties of information.
1 entities made available to customers, in each of the offices open to the public, as well as on their web pages in the case that the contract had been carried out by telematic means, the following information: a) the existence of a Department or service to the customer and, where appropriate, an advocate for the client , with indication of their postal and electronic address.
(b) an obligation on the institution to deal with and resolve complaints and claims submitted by its customers, within two months from its presentation in the Department or customer service or, where appropriate, advocate for the customer.
(c) a reference to the Commissioner or Commissioners for the defence of the customer financial services that correspond with specification of their postal and electronic address, and the need for exhaust of the Department or service to the customer or the customer Ombudsman so as to formulate complaints and claims before them.
(d) the regulation of operation laid down in the preceding article.
(e) references to the rules of transparency and protection of the client's financial services.
2. decisions with which finalized procedures for the processing of complaints and claims shall expressly state faculty who attends the claimant to, in case of disagreement with the result of the statement, go to the Commissioner for the defense of the customer financial services corresponding.
Chapter III procedures for the submission, processing and resolution of complaints and claims article 10. Scope of the procedure.
1. the procedure laid down in this chapter shall be enforceable in the processing of claims whose knowledge is attributed to the customer Ombudsman, in accordance with what has each regulation operation, and always that those not have been solved previously by the office or service object of the claim or by the Department or customer service.
2. customers who submit complaints and claims knowledge of which is attributed to the Department or customer service, may request, once informed for that purpose pursuant to the provisions of the previous article, that those are processed as set out in this chapter.
3. in any case, departments or services of attention to customer and, where applicable, customer advocates, will benefit from a period of two months, counting from the submission before them of the complaint or claim, to issue a statement, and can the claimant from the end of this period go to the Commissioner for the defense of the customer financial services corresponding.
Article 11. Form, content and the submission of complaints and claims.
1. the submission of complaints and claims may be, personally or through representation, on paper or by electronic means, electronic or telematic, provided that these permit reading, printing and storage of documents.
The use of computer, electronic or telematic media shall conform to the requirements laid down in law 59/2003, of 19 December, electronic signature.
2. the procedure will begin with the presentation of a document in which shall be recorded:
(a) name and domicile of the person concerned and, where appropriate, of the person representing him, duly accredited; national identity document number for natural persons and referred to public registration for the legal data.
(b) reason for the complaint or claim, with clear specification of questions on which a ruling is requested.
(c) office or offices, Department or service where the facts have occurred subject to complaint or claim.
(d) the claimant is not aware that the subject covered by the complaint or claim is being substantiated through an administrative, arbitral or judicial proceedings.
(e) place, date and signature.
The claimant must provide, along with the previous document, documentary evidence which in its possession in which your complaint is based.
3. complaints and claims may be submitted to departments or services the customer before the customer Ombudsman, in his case, at any office open to the public of the entity, as well as the email address that each entity must be enabled for this purpose.
Article 12. Admission.
1 received the complaint or claim by the entity, in the case that not had been resolved in favour of the customer by the office or service subject to the complaint or claim, this will be forwarded to the Department or service to the customer, who, where appropriate in accordance with the rules of operation, it shall be sent, at the same time, customer advocate. If the complaint had been filed with the defender of the customer not being a matter within its competence, shall be sent by this Department or service to the customer. You must be informed the claimant on the competent authority to know your complaint or claim.
The provisions of the preceding paragraph shall be without prejudice of the computation of the maximum completion time will begin to count since the submission of the complaint or claim in the Department or customer service or, where appropriate, advocate for the customer.
In any case, you must acknowledge receipt in writing and record the date of filing for the purposes of the computation of the period.
Received by the competent authority for processing, the complaint or claim will proceed with the opening of record.
The complaint or claim will be presented only once by the interested party, without their repetition may be required before various organs of the body.
2. If the identity of the claimant was found not sufficiently accredited, or the facts could not be clearly subject to complaint or claim, shall be required to the signer to complete the documentation submitted within the period of ten calendar days, with a warning of that if not did filed the complaint or claim without further formality.
The term used by the claimant to rectify the errors referred to in the preceding paragraph is not included in the computation of the period of two months laid down in paragraph 3 of article 10 of this order.
3 only may refuse the admission of complaints and claims in the following cases: to) where you fail to not correctable essential for processing data, including assumptions in that the reason for the complaint or claim is not concrete.
(b) when they intend to deal with as a complaint or claim, resources or actions different knowledge of which is competition for administrative, arbitral or judicial bodies, or it is pending resolution or litigation or the issue has already been resolved in those instances.
c) when the facts, reasons and request that materialize the issues subject to the complaint or claim do not relate to specific operations or do not conform to the requirements set out in paragraph 2 of article 2 of this order.
(d) when formulated complaints or complaints which reiterate previous resolved, presented by the same client in relation to the same facts.
(e) when had the deadline for the submission of complaints and claims that establishes the rules of operation passed.
When it had knowledge of handling simultaneous a complaint and an administrative procedure, arbitral or judicial on the same subject, it shall not process the first.
4 when he is understood not admissible admissible the complaint or claim, by any of the above causes, will be revealed to the applicant by reasoned decision, giving a period of ten calendar days to bring forward their claims. When the person concerned had answered and kept the causes of inadmissibility, be communicated the final decision taken.
Article 13. Processing.
1. the departments or customer services and customer advocates may collect in the course of the processing of cases, both the claimant and the various departments and services of the affected entity, many data, clarifications, reports or evidence considered relevant for its decision.
2. in the case that the subject is known by the customer Ombudsman, there will be a period, whose duration will be set in the rules of operation, so that the affected entity can present their arguments.
Article 14. Search and withdrawal.
1. If in view of the complaint or claim, the entity rectify his situation with the claimant to the satisfaction of this, you must inform the competent authority and justify it documents, unless there is express withdrawal of the person concerned. In such cases, proceed to the file of the complaint or claim without further formality.
2. those interested may withdraw their complaints and claims at any time. The withdrawal will result in the immediate termination of the procedure in it comes to the relationship with the person concerned. However, the customer Ombudsman may agree the continuation thereof in the framework of its function of promoting compliance with the rules of transparency and protection of the clientele and good practices and financial applications.
Article 15. Completion and notification.
1. the record must end in the term maximum two months from the date on which the complaint or claim outside the Department or service to the client or, where appropriate, advocate of the customer.
2 the decision will always be motivated and will contain clear conclusions on the request raised in each complaint or claim, based on contractual clauses, the rules of transparency and protection of the clientele, as well as good practices and financial applications.
In the event that the decision is apart from the criteria expressed in similar previous records, they must provide are the reasons which justify it.
3. the decision shall be notified to the interested parties within the period of ten calendar days from its date, in writing or by electronic means, electronic or telematic, whenever they allow reading, printing and storage of documents, and meet the requirements laid down in the law 59/2003, of 19 December, electronic signature, as it appointed the claimant expressly and , in the absence of such an indication, through the same medium that had been submitted the complaint or claim.
Article 16. Relationship with the Commissioners.
1. authorities should pay attention, by a person appointed for the purpose, requirements that the Commissioners for the defence of the financial services customer can perform them in the exercise of their functions, in the terms that they determined in accordance with the provisions of its rules of procedure.
2. the Commissioners and the entities shall take the necessary arrangements and carry out the appropriate actions to facilitate the transmission of data and documents that are necessary in the performance of their duties, to be carried out by electronic means through the use of the electronic signature, in accordance with the provisions of article 4 of law 59/2003 19 December, electronic signature, and its implementing regulations.
Chapter IV annual report article 17. Content.
1. inside of the first quarter of each year, the departments and services of attention to the client and, where appropriate, customer advocates, presented to the Board of directors or equivalent body or the general direction of the branch, in his case, an explanatory report of the development of its role during the previous financial year, which shall have the following minimum content ((((: a) statistical summary of complaints and claims served, with information on their numbers, admission process and reasons of unadmission, motives and issues raised in the complaints and claims, and amounts and amounts affected, b) summary of decisions handed down, with an indication of the character of favourable or unfavourable to the claimant, c) general criteria contained in decisions, d) recommendations or suggestions arising from his experience , with a view to a better achievement of the objectives that inform his performance.
2. at least one summary of the report will be integrated into the annual report of the entities.
First additional provision. Defender of the shareholder.
1. the defender of the customer under this order will take, when the entity or entities promoting, so decide the functions of the Ombudsman of the shareholder referred to in article 7 of the revised text of the law on regulation of plans and pension funds, approved by Royal Legislative Decree 1/2002, of 29 November, provided that it meets the requirements laid down there and must communicate this fact to the General Directorate of insurance and pension funds.
2. the presentation, processing and completion of complaints and claims procedure regulated in this order shall apply to that report to the defenders of the participant's individual pension plans referred to in the law of regulation of schemes and pension funds.
3. the departments and services to the client or the defenders of the customer of the managing bodies of pension funds will attend, and resolve complaints and claims submitted by the participants and beneficiaries of the pension schemes, whose processing is not reserved to the powers of the Ombudsman of the shareholder by the applicable plans and pension funds.
Second additional provision. Regime applicable to other entities.
1. by virtue of the provisions of articles 1 and 8 of the regulation of the Commissioners for the defence of the customer financial services, approved by Royal Decree 303/2004, of 20 February, the following entities must pay attention and resolve complaints and claims which are submitted by their customers, conforming to the requirements laid down in article 2(2) of this order, ((through a service or equivalent unit to carry out this function: a) the appraisal societies, b) establishments open to the public for foreign currency exchange approved for operations of foreign ticket sales or transfers with outside management.
2. the entities listed in the previous section may appoint an advocate for the client in the terms provided in article 4(2), which shall apply the requirements set out in articles 5 and 7 of this standard.
In the case referred to in the preceding paragraph, the aforementioned entities will be required to adopt a regulation for the defence of the customer under the terms of article 8, which will be subject to verification by the Bank of Spain, and shall comply with the procedure laid down in chapter III.
3. the entities referred to in paragraph 1 above shall notify the appointment of holders of services or equivalent units for the treatment of complaints and claims of their clients, as well as, where appropriate, of its customer Ombudsman, the Commissioner for the defense of the banking customer.
4. the above-mentioned entities shall be subject to the duties of information set out in article 9, as well as to the time limit referred to in article 10(3) of this order.
First transitional provision. Records in the pipeline.
Records of complaints and claims that are pending the entry into force of this regulation, by the departments or customer services, or defenders of the customer entities in article 2.1 of this standard, will continue to progress in accordance with the procedure laid down in the regulations previously applicable.
Second transitional provision. Current charges.
Means that the persons that, prior to the entry into force of this standard, they come developing functionally equivalent to the here provided for holders of the Department or customer service and the customer Ombudsman, comply with the General requirements for the performance of such charges.
First final provision. Basic character.
This order has basic character under cover as provided in article 149.1.11. ª of the Constitution, which attributes to the State the exclusive competence on the basis of the management of the credit, banking and insurance.
Second final provision. Entry into force.
This Regulation shall enter into force within four months of its publication in the Official Gazette.
Madrid, 11 March 2004.
DE RATO Y FIGAREDO. Governor of the Bank of Spain and Ilmos Mr. Mr President of the National Commission of the market of stock, Director general of insurance and pension funds and Director general of the Treasury and financial policy.