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.
EXHIBITION of reasons I like that elsewhere in financial systems developed, the ucis is the natural channel for the participation of Spanish households in the capital markets. They become his double condition of formula funding desintermediada and retail investors privileged savings instrument a priority attention to Spanish financial policy sector. Indeed, the smooth functioning of the collective investment has direct implications for the two main objectives of the financial policy: the efficiency in the allocation of savings to investment opportunities and risk management and protection to the less informed investors. The law 46/1984, of 26 December, regulatory institutions for collective investment which is now repealed, established a legal regime aimed to facilitate the full development of collective investment in Spain, which the previous regulation had been unable to promote, within the framework of a financial system which then began the final phase of the process of reform and modernization. The balance of law 46/1984 in these almost twenty years is very positive. Not only has achieved its main objective, offering solid foundations for a spectacular growth of the collective investment it Spanish. It has allowed to also accommodate the myriad and profound changes that have experienced our macroeconomic environment and financial system during this period, since the entry into the EEC until the introduction of the euro. The most recent changes were introduced in the law 37/1998, of 16 November, reform of the law 24/1988, of 28 July, the stock market, in law 44/2002 of 22 November, on measures of reform of the financial system as well as in law 46/2002, December 18, partial reform of the personal income tax and that the tax laws are modified on societies and on the income of non residents.
However, the plasticity of the legal framework should not postpone a reform in depth of the legal regime of the Spanish collective investment, whose need is based on several reasons.
The first one is of a formal nature and responds to the desire to establish clear, orderly and comprehensive way in legal headquarters substantive aspects of the legal regime of collective investment undertakings.
Despite the technical complexity of the subject, both in financial and administrative aspects, the inevitable succession of legislative amendments has hindered a systematic treatment of all essential materials. The law puts an end to this situation, helping to strengthen legal security, adequate normative hierarchy and respect for the principle of legality. One of the manifestations of this will is the remarkable increase in the number of articles concerning the repealed law. Sit so the basic principles that should govern the activity of the subjects that make up the collective investment industry. Concrete and technical development of these principles will be regulatory headquarters. On the one hand, this is intended to ensure the flexibility and capacity to adapt to the evolution of the market, which is an essential element of a normative quality for collective investment scheme. On the other hand, the regulatory environment is the natural framework to cater for developments that, in the framework of the European Union, are carried out by means of the agreements adopted by the Committee of contact of bodies for collective investment in transferable securities (hereinafter UCITS), under cover of the authorizations granted by Directive 85/611/EEC UCITS regulatory.
The second formal objective of the Act is the transposition of the two directives that have modified the Community regulation of such UCITS: Directive 2001/107/EC, of the European Parliament and of the Council of 21 January 2002, amending Directive 85/611/EEC of the Council regulation of UCITS, with a view to regulating management companies and simplified prospectuses and Directive 2001/108/EEC of the European Parliament and of the Council of 21 January 2002, amending the above-mentioned Directive 85/611/EEC as regards investments of UCITS. These directives completed the introduction of the collective investment in the single market in financial services, to extend the Community passport to the management companies and to expand the range of assets and financial instruments in which the UCITS can invest.
The objective material basic of this law is establish a regime legal that meets the needs of a sector of investment collective that has entered already in a phase of maturity. After a long period of growth marked by the role thereafter of different active, the heritage of them institutions of investment collective (in forward IIC) marketed in Spain is has stabilized around the 30 percent of the product inside gross. The composition of this heritage is very different and more than half is invested in assets issued by non-residents. The two defining features of the stage of maturity in which entered the Spanish collective investment are the existence of a diversified demand, demanding in quality and price, and the growing competition between the providers of services management in the European and global context. (The law aims to get the adaptation to this new reality based is in three principles basic: to) the liberalization of the political of investment. Them restrictions to them possibilities of investment of them IIC could convert is in a brake for the investment collective Spanish can meet the aspirations of a base of investors each time more demanding and diverse.
The experience of recent years has shown that it is preferable to leave the approach based on a multitude of legal categories of IIC and limitation of assets eligible for investment, introducing more flexibility and freedom in defining the investment profiles of the IIC.
(b) the strengthening of protection to investors with new instruments. The strengthening of the obligations of transparency and the rules of conduct to prevent conflicts of interest has proved a more effective means to protect investors as the imposition of restrictions on the possibilities of financial performance of the IIC.
(c) improvement of the system of administrative intervention. The law makes a considerable effort to improve the agility of the administrative procedure and the legal certainty for the managed. In a sector in which, as in other financial activities, the intervention is high in relation to other sectors of economic activity, the quality of the regulation depends largely on these two factors.
Preliminary title II defines a flexible and comprehensive collective investment institutions and establishes the scope of application of the law, which includes the IIC domiciled in Spain, the IIC approved in other States and marketed in Spain, the IIC management companies and depositaries. The title I regulates the principles General of them two forms legal that can adopt them IIC: background and society. As a novelty referred to the possibility of creating IIC by bays and there are different classes of shares or series of actions. Investment funds as separate assets without legal personality, whose management and representation corresponds to a management company, with the assistance of a depositary defined in chapter I. A list of minimum rights of participants, which repealed Act were dispersed or were not recognized explicitly, notably the attend the Department of attention to the customer or the customer Ombudsman, as well as, where appropriate, the Commissioner for the defense of the investor.
The commissions that the management company charges to participants shall not exceed the limits that are set by law as a guarantee of the interests of the unit-holders. Fees different for different classes of shares of a Fund itself or compartment may be established. The minimum number of participants is 100, while chapter II establishes that the number of shareholders of an investment company shall not be less than 100, in both cases in General.
Title II contains the basic common provisions applicable to all the IIC financial and non-financial, that should govern access to the activity and exercise. Chapter I begins by pointing out that the National Commission of the stock market (hereinafter CNMV) shall be the competent authority to authorize the project of Constitution of the IIC or, where appropriate, the establishment of those funds whose constitutive document is not formalized in a public document. The resolution of applications for authorization must occur in any case before the five months following its receipt, so if this period is exceeded, the administrative silence will be positive. The legal form of investment companies justifies the inclusion of additional differential elements in the regime of access to and pursuit of the activity. The application for authorisation may be refused, in addition to by non-compliance with legal and regulatory requirements, when there are elements that hinder the effective exercise of the functions of supervision. Investment companies must have a good administrative and accounting organization, administrators or managers with a recognized honorability business or professional, a majority of members of the Board of Directors with appropriate knowledge and experience as well as an internal rules of conduct. Also, must designate a society Manager if its capital minimum not exceed them 300,000 euros. Also is regulate in this chapter them causes of suspension and revocation of the authorization and the book of activity and denomination of the IIC. As novelty is incorporated into law the regulation of cross-border marketing of shares and participations of IIC, contemplating a special regime for the marketing in Spain of stocks and foreign shares of IIC (distinguishing as they are well harmonized or non harmonized and States not members of the European Union), and harmonised in the other countries of the European Union Spanish side helps, the procedure applicable to the marketing of the IIC. Chapter III contains the provisions necessary to give effect to the principle of transparency. Is sets the content minimum, the periodicity and the form of dissemination of them brochures full and simplified and of them reports annual, semi-annual and quarterly. The information of these documents informational must complement is with the preparation and audit of them States accounting and with the broadcasting of them made relevant and of them shares significant in the capital or the heritage of an IIC. Chapter IV sets the three guiding principles of investment policy: the liquidity, risk diversification, and transparency. These general principles are supplemented by other provisions of the Act applicable to each class of IIC and must be developed by law depending on the nature of the institution, the unit-holders or shareholders and assets in which they invest. The title II is completed with a chapter V devoted to the dissolution, liquidation, transformation, merger and scission of IIC. It is worth to highlight two aspects of the new regulation; on the one hand, allowed the merger between IIC differently legal provided that they belong to the same class and the same carried out by absorption. On the other hand, regulates the transfer of shares or shares of IIC, defining the procedure so that the unit-holders or shareholders can transfer their investments for an IIC to another to benefit from the regime of deferral of taxation on income tax, introduced by law 46/2002, December 18, partial reform of the tax on the income of natural persons and that amending the laws of corporate and above the Income of non-residents.
IV the title III develops the specialties of the general regime of exercise of the activity contained in title II for two kinds of IIC referred: financial and non-financial. The financial IIC are those that invest in assets and financial instruments, and can only take the form of fund investment or variable capital (SICAV) investment company, as the Act suppressed the figure of the societies of fixed capital established by prior law. These IIC may invest in all class of active e instruments financial, including instruments derivatives, actions and shares of other IIC and values not quoted, eliminating so them restrictions to the range of active suitable for the investment that contained in the text previous. The CNMV will establish categories of IIC depending on your investment vocation and the IIC shall provide information about her vocation to the unit-holders and shareholders, as well as incorporate the basic elements of its policy of investment in their statutes or regulations. The financial IIC may not, as a general rule, invest more than five per cent or 15 per cent of assets in securities issued by the same body or by entities of the same group, respectively, to ensure the principle of risk diversification. This percentage of diversification may be accompanied by another percentage that limits the volume of assets owned by the IIC with respect to the total of values in circulation by the same body. The regime of operation of variable capital investment companies shall be based on the increase or decrease of the capital within the minimum and maximum limits laid down in the statutes, by sale or purchase by the company of its own shares at net asset value, without agreement of the General meeting. The obligation of bargaining in bag which provided the previous law, which remains as one of the possible options to provide liquidity to the shares of the SICAV shall be deleted. Within the class of non-financial IIC law distinguishes the real estate IIC and the non-financial IIC not classified. The main object of the real estate IIC is investment in real estate of urban nature for its renting and its investment policy must respect a coefficient of liquidity and two coefficients of risk diversification. To meet the less liquid nature of its active, real estate funds (FII) may limit subscription and refund of contributions to once a year.
The IIC not not classified financial will be those that may be created in the future with a different to the IIC real estate object and applies them the common regime laid down in title II.
V title IV defines the regime of performance of the societies managers of collective investment institutions, significantly expanding the few provisions of prior law and providing legal support to the effective functioning of the Community passport. An outstanding novelty lies in the extension of the scope of activity of the management companies, who may be authorized to carry out individual and discretionary portfolio management, including those belonging to the funding of pensions, as well as administration, management and marketing of venture capital funds, the latter in accordance with the provisions of law 1/1999, of 5 January Regulating the Venture Capital entities and their management companies. Also provides for the possibility of delegation to third parties of the asset management, that it will not lead the delegation of responsibility. The authorization of the management companies corresponds to the Minister of the economy. The conditions of exercise of the activity of the management companies which regulates the law include a system of communication of significant shareholdings similar to that established in the law of the stock market for investment services companies and the clear and exhaustive definition of their functions. One of the most important is the report to the unit-holders or shareholders about the policy exercise of the political rights associated with the securities that comprise the Fund Portfolio, which may be accompanied, in cases in which stability and relevance of participation so do so, from the obligation to exercise these rights effectively. It incorporates a specific regulation of the cross-border action of the management companies, establishing the procedure so that a management authorized in Spain company can develop its activity in any Member State of the European Union through the establishment of a branch or of free provision of services. In a reciprocal manner, the management companies authorised in another Member State of the European Union may carry on business in Spain without need for prior authorization, once the CNMV has received the corresponding communication from the supervisor of the State of origin.
I saw the title V regulates the activity of the depositary, defined as the entity to which is entrusted the custody of the assets of the IIC and the monitoring of the management of the management companies. Of credit institutions and agencies and securities, may be depositary provided that they are participating, directly or indirectly, in the systems of registration, clearing and settlement of the different markets in which will operate. The depositories must obtain authorisation from CNMV, entered in the corresponding register and comply with the obligations established by law, acting always independently and in the interests of the unit-holders.
Title VI regulates the rules of conduct, monitoring, intervention and replacement, as well as the sanctioning regime. It is subjected to the management companies, depositories, investment companies that not entrusted its management to a company management, as well as those who have positions in administration and management in the regime of rules of conduct established in the law of the stock market. This regime is complemented by the regulation of two specific types of rules of conduct to prevent conflicts of interest that may affect the unit-holders or shareholders: to) operations linked, made between the management company, investment company, the depositary and its administrators and directors, undertakes to the management company to establish a procedure of internal control of such operations and to inform of its realization in the informational documents; (b) the separation of the depositary, which obliges that in cases in which the depositary of an IIC belong to the same group as the management company or the investment company, the management company or, in your case, the investment company has a specific internal procedure to prevent conflicts of interest. The fulfilment of the necessary requirements to guarantee the independence is entrusted to an independent Commission in the bosom of the management company or the investment company, which shall draw up a report thereon. The powers of supervision and inspection are attributed to the CNMV, that should have them on subjects submitted to the provisions of the law and those who carry out operations of such subject, in particular for the purposes of checking if they violate the activity and name of the IIC reserves and their management companies. The law gives to the CNMV the Faculty agree intervention the management company or the company investment, the provisional replacement of its organs of administration or address or the replacement of the management company, informing the Minister of economy, reasoned when the IIC or the management companies for collective investment institutions (hereinafter, SGIIC) in a situation of exceptional gravity which put in jeopardy his patrimonial balance or affecting to the stability of the financial system or the general interest, as well as when the true situation of such entities may not deduced from its accounting. Finally, review the sanctions regime, adapting it to the basic principles that govern in other sectors of financial activity. (The infringements are divided in three categories: to) minor; b) graves, in which competition for the imposition of the sanction shall correspond to the CNMV and c) very serious, in which the body responsible for the imposition of the sanction will be the Minister of economy. The imposition of the sanction of revocation of the authorization shall be responsible to the Council of Ministers.
In short, in many cases it is enlarge, systematize and complete the measures already provided for in law 46/1984, introducing more advanced elements that make up a modern and effective regime of protection to the investor, which already applies to the rest of the financial sectors in the legal framework of the collective investment.
VIII. Finally is included in the final provisions first, second and third fiscal rules applicable to collective investment undertakings.
The first final provision incorporates the tax benefits of the collective investment institutions with respect to the property transfer and stamp tax in the law of such a tax, having been until now regulated in the financial regulations. Thus follows the criteria that the fiscal regime of collective investment institutions is regulated in the own tax laws, as it has been conducted in taxes on societies and on the income of physical persons.
Second and third final provisions include the law of corporation tax the regime applicable to collective investment undertakings. These provisions maintain the regime, although they require a minimum number of partners with which you have such collective investment institutions to benefit from the favourable tax treatment, since such treatment is linked, among other circumstances, the collective nature of the investment, which would disappear with a number reduced from shareholders or unit-holders and shareholders.
PRELIMINARY title article 1. Concept, shape and kinds.
1 are collective investment (hereinafter IIC) those that are intended to capture funds, property or rights of the public to manage them and invest them in goods, rights, securities or other instruments, financial or not, whenever the performance of inverter is set based on collective results.
Those activities whose object is different from the one described in the previous paragraph will not have the character of collective investment. Also those entities that do not meet the requirements established in this law not may constitute is as IIC.
2. the IIC shall take the form of society's investment or Fund of investment.
3. the IIC may be financial or non-financial, in the terms established in title III of this law.
Article 2. Scope.
(1. this law will be of application: to) to the IIC that have in Spain his domicile for societies, or that is have constituted in Spain and whose society Manager is domiciled in Spain, in the case of funds.
(b) to the IIC approved in another Member State of the European Union in accordance with Directive 85/611/EEC of the Council of 2 December 1985, on the coordination of laws, regulations and administrative provisions on certain bodies for collective investment in transferable securities (hereinafter Directive 85/611/EEC), and which is marketed in Spain. In this case only shall apply in his performance in Spain the rules of conduct and disciplinary regime laid down in Title VI of this law.
(c) to the IIC approved in another Member State of the European Union not subject to Directive 85/611/EEC, and the authorized IIC in States not members of the European Union, in both cases when they marketed in Spain.
For the purposes of the provisions of this law, means an IIC marketing recruitment advertising activity, on behalf of the IIC or any entity acting on their behalf or in one of their marketers, customers for their contribution to the IIC's funds, property or rights. For these purposes, advertising activity shall have the same meaning set out in article 3 of the Royal Decree 291/1992, of 27 March, on emissions and public offerings of securities for sale.
In any case, the activities of sale, alienation, brokerage, subscription, subsequent refund or transfer of the shares, shares or securities of the capital or assets of the IIC in question related to the commercialization of the IIC shall be through the financial intermediaries, in accordance with provisions in this law and its development provisions.
2. in addition, this law will apply to the IIC corporate managers (in later SGIIC) which referred to title IV, to the depositary referred to in title V, as well as other entities that provide services to the IIC, in the terms established in this law and its development provisions.
Title I legal form of investment collective investment article 3 chapter I funds institutions. Concept.
1. them funds of investment are IIC configured as heritages separated without personality legal, belonging to a plurality of investors, included between them others IIC, whose management and representation corresponds to a society Manager, that exerts them powers of domain without be owner of the Fund, with the contest of a depositary, and whose object is the catchment of funds, property or rights of the public for manage them e invest them in goods , rights, values or other instruments, financial or not, always the inverter performance is established according to the collective results.
2 investment funds may be set up by compartments where under a single contract articles and rules of management group together two or more compartments, and must be reflected this circumstance expressly in these documents. Each compartment will receive a specific name which necessarily the name of the Fund should include. Each compartment will result in the issuance of their own shares, which may be of different kinds, representative of the part of the heritage of the Fund which is attributed to them. Part of the heritage of the Fund which is attributed to each compartment exclusively liable for costs, expenses and other obligations expressly attributed to that compartment and the costs, expenses, and obligations that have not been expressly attributed to a compartment in the proportion established in the regulations of the Fund. Compartments shall individually apply to all the provisions of this law with the specificities that are established by regulations concerning, among others, the minimum number of participants and minimum equity requirements of distribution among the participants.
Article 4. Constitution.
He background is shall constitute, a time obtained the mandatory authorization, by an or several contributions initial, what will be documented in a contract between the society Manager and a depositary that can formalize is in writing public. The minimum content of the contract shall be determined by regulation.
The management company and the depositary may be approved, prior to the establishment of the Fund, to carry out a public subscription of shares.
Article 5. Concept, rights and number minimum of participants.
1. the condition of participant is acquires through the realization of the contribution to the heritage common.
2 investment funds not constituted by public subscription of shares and subsequent Foundation procedures will have a period of one year, from its registration in the corresponding administrative register, to reach the minimum number of participants established in paragraph 4 of this article and the minimum equity that is established in accordance with article 11 of this law.
3 the condition of participant grants the rights recognized in this law, its implementing regulations and the rules of management of the Fund, and will be, at a minimum, the following: to) request and obtain a refund of the value of their holdings. This right shall be exercised without any deduction of any expense or Commission in the cases set out in article 12(2) of this law.
b) request and obtain the transfer of their investments between IIC, in the terms established in article 28 of this law.
(c) information complete, truthful, accurate and permanent on the background, the value of investments as well as the position of the shareholder in the Fund.
(d) require the management company and the depositary responsibilities for breach of its legal and regulatory obligations.
(e) register with the Department of attention to the client or to the Ombudsman of the customer, as well as, where appropriate, the Commissioner for the defense of the investor in the terms set out in article 48 of this law and articles 22 and following of the law 44/2002, of 22 November, of measures for the reform of the financial system.
4. number of participants in an investment fund may not be less than 100. You can regularly have a different threshold, according to different types of assets in which the IIC materialize their investments, to the nature of the unit-holders or the liquidity of the Fund. Also, regulations may establish is requirements additional of distribution of the heritage among the participants.
Article 6. Heritage.
The assets of investment funds shall be constituted with the contributions of the participants and their yields.
The participants will not respond for the liabilities of the Fund until the limit of the contribution.
The assets of investment funds is not liable for the debts of the unit-holders, management companies or depositories.
Article 7. Participation.
1. the participation is each of the aliquot portions into which a Fund's assets is divided. Entries will be nominal value, will have the status of securities and may represent personal certificates or endorsements into account. Within a same Fund, or in his case, of a same compartment, there can exist different classes of shares that will be differentiated by the committees that apply to them. Each kind of participation will receive a specific denomination, which will precede the denomination of the Fund and, where appropriate, of the compartment.
2. the settlement of each class of share value is the result of dividing the value of the part of the assets of the Fund that corresponds to this class by the number of shares of that class outstanding.
For the purposes of subscription and refund, shall be calculated and will be made public by means of broadcasting that is determined according to the rules, with the frequency which is established according to different investment policies, of the nature of the participants and liquidity of the Fund.
3. entries will be issued and reimbursed by the management company at the request of any shareholder, in the terms established by law.
However, the Commission national de the market of values (CNMV) may temporarily suspend the subscription or redemption of shares when its price determination is not possible or if another cause of force majeure.
4. in General, the subscriptions and redemptions of mutual funds must be in cash. However, exceptionally when so is provides for regulations and in the regulation of management, them subscriptions and refunds can make is through delivery of goods, values or rights suitable for it investment, appropriate to the vocation investment of the Fund.
Article 8. Commissions.
The management companies and depositories can collect funds committees of management and deposit, respectively, and the management companies of participants, commissions of subscription and refund; discounts for subscription and reimbursement for the funds may also set. Such commissions to be fixed as a percentage on heritage or performance of the Fund, or on a combination of both variables, or in his case, on the net asset value of the share, may not exceed the limits stated, as a guarantee of the interests of the unit-holders and depending on the nature of the Fund and the deadline for investment are established by law. In the brochure is collect the form of calculation and the maximum limit of the commissions, the charges actually levied and the beneficiary of their Bill.
Commissions may be applied to different classes of shares issued by a Fund itself.
In any case, the same commissions management and depositary shall apply to all shares of the same class.
Chapter II article 9 investment companies. Concept and minimum number of shareholders.
1. investment companies are those IIC which take the form of joint-stock company and whose social object is the one described in article 1 of this law.
Investment companies may be set up by compartments where under a single contract articles and bylaws be grouped together two or more compartments, and must be reflected this circumstance expressly in these documents. The part of the capital of the society corresponding to each compartment will respond exclusively of them costs, expenses and obligations attributed expressly to a compartment and of them costs, expenses and obligations that not have been attributed expressly to a compartment, in the part proportional that is set in the statutes social. Each compartment will receive a specific name that necessarily the name of the investment company shall include. Each compartment will result in the issuance of shares or of different series of shares, representing the part of the social capital that is attributed to them. Compartments shall individually apply to all the provisions of this law with the specifics social minimum established by law as regards, inter alia, the minimum number of shareholders, capital and requirements of distribution to shareholders.
2. investment firms shall be governed by the provisions in this Act and in matters not provided for therein, by provisions of the text revised corporations law, approved by Royal Legislative Decree 1564 / 1989 of 22 December (hereinafter the Corporations Act).
3. the capital investment companies will be fully subscribed and disbursed since its formation, and be represented by shares.
Different series of actions that will be differentiated by the committees that apply to them may issue.
The shares belonging to the same series will have equal nominal value and shall confer the same rights.
In addition, each of these series will receive a specific denomination, which will precede the designation of society and, where appropriate, of the compartment.
These actions may be represented by titles nominative or through annotations in features.
4. the number of shareholders of the companies of investment not may be lower to 100.
Regulations may have is a threshold different, attending to them different types of active in that the society materialize their investments, to the nature of them shareholders or to the liquidity of the society. Also, regulations may be additional distribution requirements of social capital among the shareholders.
Companies not incorporated by public subscription of shares and subsequent Foundation procedures will have a period of one year, from its registration in the corresponding administrative register, to reach the minimum number provided for in the preceding paragraph.
Title II provisions common chapter I conditions of access and the activity article 10. Authorization and registration.
1 it will be up to the CNMV authorizing the draft Constitution of societies and investment funds.
2. the application for approval must be incorporated, in any case, a memory, the accreditation of honesty and professionalism, in the terms Seine sides in this law, those who play charges of administration and management of the IIC, and in general, all data, reports, or background are considered appropriate to verify compliance with the conditions and requirements laid down in this article. Also, this application must incorporate, in the case of investment funds, brochure that referenced the article 17 of this law and, in the case of companies that have not designated collecting society, a memory of activity on which appears the organizational structure. In the case of the funds, the request should incorporate regulation management thereof, and, in the case of corporations, the bylaws.
The CNMV will establish standardized models of all the documents referred to in this paragraph.
3. the authorization of the CNMV must be notified within the three months following receipt of the request. After five months without that express resolution handed down, the application can understand is estimated by administrative silence, with the expected impacts in article 43 of the law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure.
4. the CNMV only may refuse, by a reasoned decision, authorization of creation of an IIC as legal and regulatory requirements are not met. En_el_caso_de investment companies may also be refused permission in the following cases: a) lack of transparency in the structure of the group that may eventually belong the entity, b) in the case of companies that have not designated a management company, as it maintained close links with other entities that do not permit an adequate and effective exercise of the functions of the supervision carried out by the CNMV ((, c) when they deduce that there may be serious difficulties to inspect it or the information that the CNMV deems necessary for the proper development of its supervisory functions, d) when laws, regulations or administrative provisions of a non-Member State of the European Union governing the physical or legal persons with which the investment company keep close ties , or the difficulties involving its implementation, prevent the effective exercise of the related oversight functions.
For the purposes of the provisions of this law, means that there are close ties when two or more natural or legal persons are linked by: a) a controlling relationship, in the terms provided for in article 4 of law 24/1988, of July 28, of securities (hereinafter the law of securities), b) the fact of having directly or indirectly, or through a link control, 20 per cent or more of the capital or of the voting rights of a company or entity.
5. decisions taken by the CNMV in the exercise of administrative powers provided for in this Act, with the exception of the provisions in articles 72 and 94, will end the administrative and may be appealed in contentious.
6 IIC not may begin its activity until you do not enrol in the administrative register of the CNMV and has proceeded to the registration of the prospectus corresponding to the institution. The registration of funds in the register will be optional.
Article 11. Access and the activity requirements.
1 will be eligible to obtain and retain the authorization: to) constituted as joint-stock company or mutual fund.
(b) limit its objects to activities established in this law.
(c) have of the capital social or heritage minimum in the period and amount that statutorily is determined.
(d) have shareholders or participants in the term and legally enforceable number.
e) in the case of investment funds, designate a company manager that meets the provisions of paragraph c) of paragraph 1 of article 43 of this law. In the case of investment companies, if the initial minimum share capital does not exceed € 300,000 designate a SGIIC.
(f) appoint a depositary in the case of the investment funds and of investment companies provided for in article 32 of this law.
2 in the case of investment companies must also meet the following requirements: to) count with an administrative and accounting organization and internal control procedures that guarantee, those both these, the correct and prudent management of the IIC, including risk management procedures, as well as mechanisms of control and safety in the computer field and bodies and procedures for the prevention of money laundering.
(b) its registered office, as well as their effective management and direction, be situated in Spanish territory.
(c) those who hold positions of management or direction in the State have a recognized honorability business or professional.
Means that business or professional repute in those who have been, in Spain or abroad, declared in bankruptcy or insolvency proceedings without having been rehabilitated; there is not prosecuting those processed or, in the case of the procedures refer to which titles II and III of book IV of the Criminal Procedure Act, if the order would have issued auto opening of the oral proceedings; those who have a criminal record for crimes of perjury, against the Treasury, punishable insolvency, of infidelity in the custody of documents, violation of secrets, money laundering, of embezzlement of public funds, discovery and disclosure of secrets, against property; or those who are disabled or suspended, criminal or administratively, for office or public administration or management of financial institutions.
For parents that do not restrict the scope of its representation to areas or specific or matters unrelated to the activity that is the object of the society, the Board of Directors will prior to the granting of the power the concurrence of the requirement of the business and professional reputation, and they revoked the granted powers when it disappears this requirement.
(d) that the majority of the members of its Board of management or their executive committees, as well as all Directors delegates and Directors General and similar, have knowledge and experience in matters related to the stock market or with the main purpose of investment of the IIC in question.
(e) have an internal regulation of conduct in the terms provided for in chapter I of title VI of this law.
The requirements laid down in the preceding paragraphs to), d) and e) will not be applicable to investment companies whose management, administration and representation are entrusted to a SGIIC.
In the event that changes in those who play charges of administration and management in society, new identification data shall communicate immediately to the CNMV, public will make them through the corresponding registration.
3. for the purposes of this law, is considered its administrators or members of its colleges of management and those who develop in the State, in fact or in law, to hold charges of administration or an entity address functions of top management under the direct dependence of its organ of administration or executive committees or CEOs thereof including parents who do not restrict the scope of its representation to areas or specific or matters unrelated to the activity that is the object of the entity.
Article 12. Modification of constituent projects, statutes and regulations.
1. the changes in establishing project, in the statutes or in the regulation of the IIC will be subject to the prior authorisation procedure laid down in article 10.
They will not require prior authorization, although they must be subsequently reported to the CNMV for their perseverance in the corresponding register, amendments to the bylaws and regulations, which have as their object: to) change of domicile within the national territory as well as the change of name of the SGIIC or the depositary.
(b) incorporation of investment funds regulations or statutes of investment companies of legal or regulatory provisions of imperative or prohibitive character, or fulfillment of judicial or administrative decisions.
(c) the capital increases charged to reserves of investment companies.
(d) such other modifications for which the CNMV, in reply in consultation, or by a resolution of a general nature, have considered unnecessary, because of its limited relevance, the application for authorization.
2. all modification of the regulation of a Fund's investment, after be authorized by the CNMV must be communicated by the SGIIC of form immediate to them share. When the modification of the regulation of management or of the brochure affect to it political of investment, political of distribution of results, replacement of it society Manager or of the depositary, delegation of the management of the portfolio in another entity, change of control of it society Manager, fusion, transformation or excision of the Fund, establishment or lifting of them commissions, as well as in them alleged that is determine regulations It must be communicated to the participants prior to its entry into force. In all of these cases, whenever there is a Committee on reimbursement or costs or discounts associated with it, participants will have right of separation, without deduction of Commission or charge.
However, not will exist right of separation in them cases of replacement of it society Manager or of the depositary whenever it entity surrogate is of the same group, or in the cases of fusion or creation of a society Manager or depositary of the same group. In all case, is must prove a continuity in the management in the time of the application of the authorization planned in the paragraph previous of the present paragraph.
Regulations will establish the date for the calculation of the net asset value to be applied to refunds, the way in which enter into force amendments and the procedure and term for the implementation of the right of separation that, in any case, will ensure the information to participants and will result in the update of the management rules and the prospectus of the Fund.
Article 13. Revocation and suspension of the authorization.
1 the authorization granted to the IIC only may be revoked by the CNMV, besides by the provisions in article 85 of this law, in the following cases: to) for failure to comply with the requirements set out in paragraph four of article 10 or article 11 of this law.
However, when market circumstances or by the binding of this law or the requirements of the Corporations Act, heritage or the number of unit-holders of a Fund, or capital or the number of shareholders of an investment company, descended of the minimums set by law, these institutions shall enjoy within a year during which they may continue to operate as such. Within that period must, carry out the reconstitution of capital or equity and the number of shareholders or unit-holders either renounce the authorization granted either or decide its dissolution.
b) if it does not start to the specific activities of its social object within the six months following the date of registration in the corresponding special register for reasons imputable to the person concerned.
c) if expressly renounce the authorization.
d) if not part of the corresponding register of the CNMV within the six months following the date of notification of the authorization, for reasons imputable to the person concerned.
(e) when has retrieved the authorization by means of statements false or omissions or by another medium contrary to the ordering legal.
(f) If during one year the volume of activity is less that statutorily is determined.
(g) when there are reasons founded and accredited with respect to that the influence exerted by persons who have a significant stake in an investment company may be detrimental to the proper and prudent management of the same, badly damaging their financial situation.
h) If a bankruptcy proceedings with respect to the entity.
(i) when giving any of the causes of forced dissolution provided for in article 260 of the corporations law.
2 the authorisation issued to an investment company can be suspended in the following cases: a) when are infringed in serious or systematic way the provisions laid down in this law or in the rest of rules governing investment companies, b) when there are grounds founded and accredited regard that the influence exerted by persons who have a significant stake in an investment company may be at the expense of the proper and prudent management of the same, badly damaging its financial situation.
(c) as a sanction as provided for in Title VI of this law.
((((d) in the cases referred to in paragraphs a), b), in whatever you to application, and c) of paragraph 1 of article 76 of the law of the stock market.
Article 14. Book activity and denomination.
1 shall be reserved to the IIC activities defined in paragraph 1 of article 1 of this law.
2. the term "Collective investment institutions" and its acronym "IIC" and specifications provided for in this law and its implementing rules shall be custodial institutions registered in the corresponding registers of the CNMV, not allowing any other entity use such designations or other drugs that induce to confusion with them.
The register and other public records not entered to those societies whose activity or purpose or whose name contradicts the provisions of this law, under penalty of nullity of void.
Such invalidity shall not prejudice the rights of third parties acquired in good faith, in accordance with the contents of the corresponding records.
3. no person or entity may, without having obtained the required authorization and without found inscribed in the registers of the CNMV the activities legally reserved for the IIC, nor use the designation referred to in paragraph 1 of this article or any other expression that leads to confusion with them.
4. the persons or entities that fail to comply with the provisions of this article shall be punished as provided for in Title VI of this law. If required so that they immediately cease the use of names or offer or activities, they will continue using them or doing them, they will be penalized with periodic penalty payments of up to 300,000 euros, that may be repeated on the occasion of further requirements.
It shall be competent for the formulation of requirements and for the imposition of the fines referred to in the preceding paragraph, the CNMV, that can also make public warnings regarding the existence of this behavior. Requirements will be developed after hearing from the person or entity concerned and the penalties imposed pursuant to the procedure provided for in this law.
5. the provisions of this article is understood without prejudice to the other responsibilities, even criminal, may be required.
Chapter II cross-border marketing of shares and participations of IIC article 15. Marketing in Spain of stocks and foreign shares of IIC.
1 the marketing in Spain of the shares and participations of the IIC approved in another Member State of the European Union in accordance with Directive 85/611/EEC of the Council, shall be free, subject to the rules laid down in this article: to) the IIC shall comply with the regulatory provisions in force in Spain not falling within the scope of Directive 85/611/EEC as well as the rules governing advertising in Spain.
b) the IIC shall take measures deemed necessary to facilitate payments to shareholders and unit-holders, the acquisition by the IIC of its shares or redemption of shares, the dissemination of the information that must be supplied to shareholders and unit-holders resident in Spain, and, in general, the exercise of their rights by the CNMV.
(c) the IIC shall submit the following documentation with the CNMV: 1st prior communication of the project's commercialization of its shares or participations in Spanish territory, shall be attached to the copy of the communication to the home State supervisory authority.
2nd certificate of the authorities of the Member State of origin which is that the IIC meets the conditions laid down in Directive 85/611/EEC.
3rd regulation of the Fund's investment or writing of Constitution of the society of investment.
4th full and simplified prospectus.
5th last annual report and final report.
6th memory on the planned modalities of marketing of shares and participations of the IIC in Spanish territory.
Documents to which paragraphs make reference 2nd, 3rd and 4th will have to introduce visas by the competent authority of the home State. All documents must be accompanied by its sworn Spanish translation.
The CNMV may exempt from compliance with any of the requirements referred to in this article when the marketing in Spain of these institutions if any of the determinants of the partial derogations provided for in article 7.1 of Royal Decree 291/1992, of 27 March, on emissions and public offerings of securities for sale.
The marketing of the shares and participations of the IIC will begin within two months from the submission of the documentation established in this article, unless before the end of this period the CNMV issue reasoned ruling denying the marketing on the grounds that the planned marketing arrangements do not conform to which is enforceable pursuant to the Directive 85/611/EEC.
The CNMV may determine the form and time limits in which amendments to the registered documentation shall be sent to you and will be disseminated to shareholders and unit-holders resident in Spain these changes.
2 the marketing in Spain of shares and participations of the IIC referred to in paragraph c) of paragraph 1 of article 2 of this law will require that the fulfillment of the following points are credited with the CNMV prior: to) accreditation that the Spanish legislation regulates the same category of IIC to which belongs the foreign institution and that the IIC is subject in his home State to a specific legislation for the protection of the interests of the shareholders or unit-holders similar to the Spanish regulations on this matter.
(b) favourable report from the authority of the State of origin to which is entrusted the control and inspection of the IIC with respect to the development of activities.
Accredited such extremes, the IIC shall submit to the requirements laid down in article 61 of the law 24/1988, of July 28, the stock market, and the precepts handed down in its development.
All the documents referred to in this section must be submitted accompanied by its sworn Spanish translation.
So the IIC can market their actions or participations in Spain will be precise that is expressly authorized to such end by the CNMV and that is registered in them records of the CNMV.
Authorization may be refused for prudential reasons, not to be equivalent to the IIC treatment Spanish in their country of origin, not being ensured the compliance of management and discipline of the Spanish securities markets, for not being sufficiently guaranteed the due protection of the investors residents in Spain and by the existence of perturbations in the conditions of competition between these IIC and the IIC approved in Spain.
Once authorized and listed in the register of the CNMV these institutions shall be subject to the same obligations of information set out in paragraph b) of paragraph 1 above.
3. in the cases referred to in the preceding paragraphs, the authorized intermediary must provide free of charge the shareholders or unit-holders resident in Spain of foreign IIC, in accordance with the provisions of chapter III of title II of this law, full and simplified prospectuses and the annual and semi-annual reports of the IIC, as well as the management of the Fund regulations or , in his case, the statutes of the society. These documents will be provided in their sworn Spanish translation.
Article 16. Sales of shares and participations of IIC Spanish in the field of the European Union.
The Spanish IIC who intend to sell their shares or participations in the field of the European Union in accordance with the provisions of Directive 85/611/EEC shall inform the CNMV marketing project as well as request the issuance of a certificate of the characteristics indicated in paragraph 2nd paragraph c) of paragraph 1 of the preceding article.
Such certification prior verification that the IIC meets the requirements laid down in Directive 85/611/EEC shall be issued by the CNMV. Therefore be taken into account the activity of your company management and its regulation of management or by-laws and in their brochures.
Chapter III information, advertising and accounting article 17. Briefing papers.
1. the management company, for each of the investment funds that manage, and investment companies must publish for distribution among the shareholders, unit-holders and public in general a full prospectus, a simplified prospectus, an annual report, a bi-annual report and a quarterly report, so that, in updated form, may be publicly known all the circumstances that may affect the appreciation of the value of heritage and prospects of the institution , in particular the risks inherent that behaves, as well as the compliance of the rules applicable.
2. the brochure full will contain them statutes or the regulation of them IIC, according to appropriate, and is will adjust to it planned in the article 28 of the law of the market of values, with exception of the obligation of include them conclusions of them audits of accounts, and in the normative of development of this law, being registered by the CNMV with the scope planned in the article 92 of the law of the market of values.
Without prejudice to the provisions of the preceding paragraph, the conclusions of the audits of accounts be included in the annual report.
The full prospectus must update in the terms to be determined by regulation.
3. the brochure simplified will contain, of form summary, information on the institution, on them objectives of the Fund or society, on the political of investment with a brief evaluation of the profile of risk of the Fund or of the society, so that the inverter know with precision to what category of them planned in development of the last paragraph of the paragraph 2 of the article 30 belongs the IIC , about the evolution historical of its profitability, the profile of the type of inverter to which goes directed the institution, and information economic and commercial. The simplified prospectus should update on terms to be determined by regulation.
The simplified prospectus will be incorporated into the full prospectus as a removable part of it and can be used as a marketing tool in all States members of the European Union, without alterations, with the exception of the language.
4. the annual report shall contain the annual accounts and the management report, the conclusions of the audits of accounts and other information to be determined according to the rules, in order to include significant information enabling investors to formulate, with knowledge of the facts, a judgment on the evolution of the activity and results of the institution.
5. the quarterly and half-yearly reports shall contain information on the status of heritage, number of shares and shares outstanding, net value of inventory for involvement or action, portfolio of titles, movements in the assets of the institution, to the last 3 years and any other regulations established comparative chart.
6. the CNMV will establish standardized models of all the documents referred to in this article.
The CNMV will maintain a log of brochures, annual, semi-annual and quarterly reports of the IIC that the public will have free access.
All the documents referred to in paragraphs above, simultaneously its dissemination among the public, should be submitted to the CNMV with the aim of maintaining updated records to which the preceding paragraph refers. In the case of the brochure your broadcasting will require it prior verification and registration by the CNMV of conformity with it willing in the paragraph 6 of the article 10 of this law.
7. in any case, the simplified prospectus and quarterly reports shall contain all of the expenses of the Fund or, where appropriate, of the society, expressed in terms of percentage of the Fund's assets or, where appropriate, about the capital of the company.
It will be up to the CNMV determine headings that have to integrate these costs.
Article 18. Information to participants and shareholders, to the public in general and advertising.
1. with prior to the subscription of them shares or shares must deliver is free of charge the brochure simplified and the last report semi-annual to them subscribers and, prior request, the brochure full and them last reports annual and quarterly published.
2. them reports annual and semi-annual is sent free and periodically to them share and shareholders, unless expressly renounce to it. Also, the IIC shall send free and periodically a report quarterly to the participants and shareholders that expressly it request. When the participant or shareholder expressly so request, such reports is you shall send by media telematic.
Also, all these documents is put to disposition of the public in those places that indicate in them brochures full and simplified. In any case, all those documents is must be able to consult by means telematics.
3. all advertising containing an invitation to purchase the units or shares of an IIC, shall indicate the existence of brochures provided for in this chapter and the places and the way in which the public can obtain them or have access to them.
4. advertising activities aimed at promoting the subscription or acquisition of the units or shares of an IIC shall be subject to provisions in the current regulations and that in this area is determined by the Minister of economy, and with its express clearance by CNMV.
Article 19. Relevant facts.
The relevant facts related to the institution will be made public in the form that statutorily is determined, in accordance with the provisions of the law of the stock market, giving knowledge thereof to the CNMV, and they will be included in subsequent reports for your information to the shareholders and unit-holders.
Article 20. Accounting standards.
1. in development of them standards accounting referred to in the code of trade, the law of societies anonymous and the Plan General of accounting, corresponds to the Minister of economy and, with its enabling Express, to the CNMV, and with the prior report of the Institute of accounting and audit of accounts, approve them standards specific of the accounting of them IIC, as well as them criteria of valuation and of determination of the heritage and of them results.
2. the Minister of economy and, with its enabling Express, the CNMV will determine them States complementary of information reserved that, for its supervision, must pay you them IIC, them models public of information to must adjust is their accounts annual, as well as the frequency and detail with that them data must be supplied. In any case, be required to report in advance of the Institute of accountancy and audit of accounts with respect to the determination of the public models of annual accounts.
Article 21. Audit of accounts.
The IIC shall be referred to the audit of the accounts, in accordance with the provisions of the first additional provision of law 19/1988, of July 12, of audit of accounts, adjusting the financial year to the calendar year. The review and verification of accounting documents will be held in accordance with the rules governing the auditing of accounts.
This audit should extend to documents provided for in the Act of auditing of accounts and its development provisions.
Article 22. Significant shareholdings.
The acquisition and loss of a significant stake in an IIC shall be public in the form and time limits established by law.
Likewise, the percentage of capital and heritage that shall be regarded as meaningful participation, as well as persons or entities required to your communication or dissemination will be determined.
Chapter IV rules on investment article 23. Principles of the policy of investment.
Subject specialties laid down in this law for each class of IIC, the IIC will invest its assets, according to the following principles: to) liquidity. The IIC shall have sufficient liquidity, according to the nature of the institution, the shareholder or shareholders and assets in which to invest.
(b) diversification of risk. The IIC shall limit the concentration of risk of counterpart so as to ensure sufficient diversification.
(c) transparency. The IIC shall clearly define your investment profile, which will be reflected in the informative instruments provided for in the previous chapter.
Chapter V dissolution, liquidation, transformation, merger, split and transfer shares and shares article 24. Dissolution and liquidation.
1. they will be causes of dissolution of the Fund, the compliance with the time limit in the contract of Constitution, the agreement of the management company and the depositary when the Fund was established for indefinite time and the others provided for in this law or its implementing rules, as well as the regulation of management.
2. the liquidation of the Fund will be made in the management with the assistance of the depository company and previous compliance with the requirements of advertising and guarantees provided by the regulations under this law. Once agreed the dissolution and made public by the CNMV will be suspended subscriptions and redemptions.
3. in the case of IIC's corporate character, dissolution and liquidation shall comply with the Corporations Act, without prejudice to the provisions of this law.
4. the CNMV may agree, in your case, the intervention of the procedure of liquidation, in them terms expected in the title VI of this law.
Article 25. Transformation.
1. the IIC may only become other IIC which have the same legal form and belong to the same class. However, the IIC approved in accordance with Directive 85/611/EEC may not be transformed into other IIC.
2. without prejudice to the provisions of the preceding paragraph, all investment companies benefiting from the status of the IIC may transform in societies that do not possess that status. Similarly, corporations may transform into investment companies.
3 the processing operations shall be subject to the following requirements: to) administrative authorisation from CNMV in accordance with the procedure laid down in article 10 of this law.
(b) accreditation, in the moment of transformation, that meet the specific conditions laid down for the resulting IIC class.
(c) reform the bylaws or the rules of management, leaving evidence of the transaction in the register of the corresponding CNMV and, in the case of companies, previously in the register.
(d) publication in the "Official Gazette of the register mercantile" and in two newspapers of national circulation when concerned companies and communication to participants, case background, so that, where appropriate, exercising the rights of separation that apply them.
(e) presentation at the CNMV of the audit of the financial statements, which have served to agree on transformation, closed not earlier than three months from the adoption of the transformation agreement.
Article 26. Fusion.
1. the operations of merger shall be subject to the authorisation procedure laid down in article 10 of this law.
2. the IIC only may merge is when they belong to the same class.
The merger may be both absorption and creation of a new institution provided that, in the latter case, it is carried out between IIC of the same legal form.
3. in the case of investment companies, fusion processes will be adjusted to the provisions of the Corporations Act.
4. in the case of investment funds, the fusion procedure starts prior partnership agreement management or, in his case, the management companies, and the depositary or, where appropriate, depositaries, of institutions wishing to merge, which, together with the draft terms of merger, shall be submitted to the CNMV for clearance. The authorization of the merger will in fact relevant consideration and shall be subject to publication in the "official bulletin of the State" and in two national newspapers.
In addition, the authorization shall be object of communication to participants of all affected funds, together with the draft terms of merger, within 10 days of its notification.
After period of one month from the date of ads or remission of notification individualized, if this is later, the management company or, in his case, the management companies, and the depositary or, where appropriate, depositories, funds run the merger through the granting of the corresponding contractual document and their corresponding registration of the CNMV. The equation of Exchange will be determined on the basis of the net asset values and number of shares in circulation at the end of the day prior to the granting of writing or not to produce one of the granting of the contractual document. The financial statements that incorporate writing or, where appropriate, to the contractual document will be approved by the management company and the depositary duly authorized person.
By regulation the minimum content of the draft terms of merger of funds will take place.
5. in the case of fusion between IIC of a different legal nature, the procedure shall be determined by regulation.
Article 27. Excision.
1. excision of entities benefiting from the status of the IIC may be total or partial.
The IIC may benefit from the split, total or partial, of any other entities, whether or not covered by the legal status, provided that this does not undermine its character and legal nature or non-compliance with the requirements and obligations specific to the kind of institution concerned.
2. divisions referred to in the present rule shall comply, as a minimum, the requirements established in paragraph 3 of article 25, as well as the presentation of the corresponding draft terms of Division. In addition, in the case of investment companies, shall apply the provisions contained in the companies act.
Article 28. Transfer of shares or shares.
1. the transfers of investments between IIC or, where appropriate, between a same IIC compartments, shall be governed by the provisions laid down in this article and in matters not provided for by them, by the general regulation governing the subscription and refund of holdings in investment funds, as well as the acquisition and disposal of shares in investment companies.
2. to start the transfer the shareholder or shareholder should be addressed, as appropriate to the company Manager, marketer or investment, destination (hereinafter host society), which shall order in writing the completion of the necessary steps. The host society will have to communicate to the company Manager, marketer or source investment (hereinafter origin society), within a maximum of one business day since he held his, completed with indication application, at least, the denomination of the IIC of destination and, where appropriate, of the compartment, the identification data of the account of the IIC that the transfer must be done their depositary, where applicable, its management company, and the IIC's origin, and, where appropriate, of the compartment.
The society of origin will have a maximum of two working days from the receipt of the request to perform checks as it deems necessary.
Both cash transfer and transmission by the company of origin to the host society of all financial and tax information required for the transfer must be made, from the third working day from the receipt of the application, within the time limits established by law for the payment of rebates or alienation of shares. In any case, the transfer of cash must be made by bank transfer, ordered by the society of origin to the depositary or, where appropriate, marketer, from the account of the IIC's origin to the IIC's destination account.
The host society will retain the documentation for the previous acts and obligations available to the society of origin, the corresponding monitoring bodies, where appropriate, of the depositories of source and destination, and the competent tax authorities.
3. them values net asset applicable in them operations of transfer regulated in the paragraph above will be which are established in the regulation of each Fund for subscriptions and refunds or in them statutes of the society for the acquisition and alienation of actions.
4. in them transfers in which intervene a society of investment whose actions traded in bag, the intermediation by a member of bag not may assume in any case the amount of the refund of shares or of the alienation of actions is put to disposal of the participant or shareholder. Also, the shareholder or shareholder will be responsible for the custody of the information financial and fiscal transfer as well as their communication, where appropriate, the management company or marketer of destiny.
5. the omission of the fulfilment of the obligations under this section shall be punished in administrative proceedings pursuant to Title VI of this law.
6. the Minister of economy and, with his Habilitation Express, the CNMV, may develop the content of this article making them adaptations that are nece missing to ensure the security and transparency of them procedures. Also, may authorize systems standardized, with them due guarantees of safety for the transmission of requests of transfers, for the transfer of effective and for the transmission of information between them entities involved in the procedure.
Title III classes of institutions of investment collective chapter I Instituciones de Inversión Colectiva of financial section 1 common provisions article 29. Concept and designation of the IIC of a financial nature.
They are financial IIC relating to investment in assets and financial instruments, in accordance with the requirements defined in this law and its regulatory development.
In the case of funds, its name must be followed by the expression "Investment fund", or the initials "F.I." Investment companies shall take the form of joint-stock company and its share capital will be susceptible of increase or decrease within the limits of the maximum or minimum capital laid down in their statutes, by sale or purchase by the company of its own shares, without agreement of the general meeting.
Its name must be followed by the expression "Variable Capital investment company", or "SICAV" acronym.
Article 30. Assets eligible for investment, rules on investments and obligations towards third parties.
1 the IIC of a financial nature may invest in the following assets and financial instruments: to) marketable securities and financial instruments, those provided for in article 2, first subparagraph, and paragraph to) of the second paragraph, of the law of securities, admitted to trading on stock exchanges or other markets or organized trading systems, either that is the State in which they are rooted always that, in any case, the following requirements: that concerned markets which have a regular operation.
That offer a protection equivalent to those markets official based in territory Spanish.
That you have similar to official secondary markets functioning, transparency, access and admission to trading rules.
The SGIIC and investment companies must make sure, prior to the start of the investments, markets in which to invest to meet such requirements and collect in the explanatory brochure of the IIC an indication about the markets in which it will invest.
(b) the Securities and negotiable instruments mentioned in the previous paragraph for which it is requested for admission to trading on any market or systems refers to that paragraph.
Such securities and instruments are deemed equivalent to those whose conditions of issuance record commitment to apply for admission to trading, provided that the initial term for fulfilling this commitment is less than one year. Where there is its admission to trading in the period of six months since requested or fails the commitment to submit an application for admission within the time limit, the portfolio must restructure within two months at the end of the aforementioned deadlines. If this period proves insufficient may rightly ask for its extension to the CNMV. Such extension shall not exceed a further period of two months.
(c) shares and participations other IIC authorised in accordance with Directive 85/611/EEC, provided that the regulation of the funds or the statutes of societies whose units or shares is expected to acquire not authorized to invest more than 10 per cent of the assets of the institution in the units or shares of other IIC.
(d) shares and participations other IIC not authorised in accordance with Directive 85/611/EEC, provided that the latter have intended invest at the same time in other IIC and provided that they meet the following requirements: the regulation of the funds or the statutes of societies whose units or shares is expected to acquire not authorized to invest more than 10 per cent of the assets of the institution in the units or shares of other IIC , the management company or, where appropriate, investment company is subject to supervision deemed by the competent Community authorities equivalent sets to which Community law and to ensure cooperation between the authorities, the level of protection of their unit-holders and shareholders is equivalent to that provided for in this law under as determined by the CNMV review of its activities in a half-yearly report and other annual to allow the evaluation of assets and liabilities, income and operations during the period of the information.
(e) deposits in credit institutions that are in sight or can be removed with a maturity not exceeding 12 months, provided that the credit institution has its head office in a Member State of the European Union or, if the registered office of the credit institution is situated in a non-Member State, is subject to prudential rules equivalent to those required by Spanish regulations , under as determined by the CNMV.
((f) derivative financial instruments traded in a market or trading system which meets the requirements set out in paragraph a) above provided that the underlying assets consist of assets or instruments referred to in this paragraph, financial indices, interest rates, exchange rates or currencies, in which the IIC's financial may invest according to its policy of investment stated in the brochure.
((g) derivative financial instruments not traded in a market or trading system which meets the requirements set out in paragraph to) above, provided that: the requirements set out in paragraph (f)) regarding the composition of the underlying asset, derivatives counterparties are institutions subject to prudential supervision and belonging to the categories approved by the CNMV derivatives positions are subject to a daily valuation reliable and can be settled at any time to their market value by an operation of opposite to the IIC's financial initiative.
The requirements set out in the second and third indent of this paragraph would be too enforceable derivative financial instruments referred to in paragraph (f)) except if negotiated in a market that requires the deposit of guarantees in function of contributions or adjustment of profit and loss and there is a center of compensation that register operations and stands between the contracting parties acting as buyer to the seller and as a seller to purchaser.
((h) instruments of the money market provided that they are liquids and have a value which can be determined with precision at all times, not traded on a market or trading system which meets the requirements set out in paragraph to) above, provided that it meets any of the following requirements:
That are issued or guaranteed by the State, them communities autonomous, them entities local, the Bank of Spain, the Bank Central European, the Union European, the Bank European of investments, the Bank Central of any of them States members, any administration public of a State Member, a third country or, in the case of States Federated, by one of them members members of the Federation , or by an agency public international to which belong one or more States members.
They are issued by a company whose values are negotiated in a market that meets the requirements set out in paragraph to) above.
Which are issued or guaranteed by an institution subject to prudential supervision.
That are issued by entities belonging to the categories that determine the CNMV.
(i) values or instruments financial different of them planned in the paragraphs above.
(j) in the case of investment companies, they may acquire movable and immovable property essential for the direct pursuit of its activity.
2. in addition, the IIC shall maintain the coefficient of liquidity that ensures enough the regime of refund in terms to be determined by regulation.
To comply with the principle of risk diversification, with general character, the investment in assets and financial instruments by the same body, or of companies of the same group, it may not exceed five per cent or 15 per cent, respectively of the asset of the IIC.
The limit of five per cent is expanded to 10% provided that the total investment of the IIC in values that exceed five per cent does not exceed 40 per cent of the assets of the same.
According to the rules, according to the nature of the institution, the shareholder and the assets in which to invest, an upper limit can be established, as well as additional percentages of risk diversification. Depending on the nature of the issuer and of the IIC, limitations can be introduced to the maximum percentage that the IIC investment can represent values in circulation by the same body. In any case such participation may permit the IIC exert a significant influence on society.
On the other hand, to comply with the principle of transparency, the IIC shall clearly define their investment vocation, so investors know precisely to which category of those established by the CNMV the institution belongs.
Statistical purposes and provide information about your risk profile and the assets in which they invest, the CNMV will establish categories of IIC investment vocation within the assets referred to in this article.
3. regulations shall be determined the limits and conditions that investment, direct or indirect, of the IIC of a financial nature, the global maximum risk operations carrying out and the requirements that must comply with the IIC whose investment policy aims at reproduced or taking as reference a particular stock index or fixed income must conform.
4 the management companies or investment companies may grant or guarantee loans for third parties. Still, may acquire the assets referred to in paragraphs to), b), c), d), f), g) and h) of paragraph 1 of this article but they have not been fully disbursed.
((5 as a general, or the management companies, in relation to the IIC they managed, not investment companies, may be short sales of financial assets referred to in paragraphs c), d) and h) of paragraph 1 of this article.
6. the Securities and other assets that integrate portfolio will pledge will not constitute a warranty of any kind, except for guaranty operations made by the institution in the official secondary markets. In your case, values and assets that integrate the portfolio must be deposited in the custody of the depositories regulated in this law. However, values and other assets that integrate the IIC's financial portfolio may be operations of securities lending limits and guarantees provided by the Minister of the economy.
7. the IIC of a financial nature may not borrow beyond 10 per cent of its assets in General. Also, in the case of investment companies, in the case of loans for the acquisition of real estate necessary for the continuation of its activities, nor may exceed this limit, in which case these loans and those provided for above shall not exceed 15 per cent of its assets.
According to the rules above, accompanied by specific obligations of transparency limits may be admitted.
8. Likewise, may not receive funds from the public in the form of deposit, loan, temporary transfer of financial assets or similar.
9. the IIC of a financial nature may not acquire precious metals or any type of raw material or of movable or immovable assets, other than those referred to in the preceding paragraphs of this article.
Article 31. Content of laws and regulations with regard to investment policy.
All IIC financial shall incorporate at least the following aspects relating to investment policy its regulations or by-laws: to) form of compliance with the investment principles laid down in article 23 of this law.
(b) rules for use of financial derivative instruments in order to, inter alia, ensure adequate coverage for risks assumed in all or part of its portfolio, as an investment to more effectively manage your portfolio, or in the framework of management aimed at the achievement of a concrete goal of profitability.
(c) financing eligible.
(d) operations on the assets that make up its assets, including its pledge.
Section 2 article 32 variable capital investment companies. Concept, laws, social capital and shares.
1 are variable capital investment companies the IIC of a financial nature which they adopt the corporate form, in accordance with the provisions of article 29 of this law.
2. in the bylaws the designation of the depositary, as well as the amount of initial capital must be collected necessarily. Also collect the maximum statutory capital turnover, expressing, in one case, the number of actions and, where appropriate, the series, in which the share capital and the par value of those is divided.
3 representing the maximum statutory capital shares that are not subscribed, or that subsequently purchased the company, will remain in the portfolio until they are put into circulation by the management bodies. The shares shall be the depositary.
4. the society should compulsorily reduce capital, reducing the nominal value of its shares outstanding, when the company's assets has decreased below two-thirds of the amount of capital in circulation, provided that a year has elapsed without that heritage has recovered. The nominal value of the shares shall be reduced in the same proportion.
5. in the case that not exist enough actions own acquired by the society for meet the obligation of sell their own actions, the society, in the term that is set, must put in circulation actions enough until reach, if this out necessary, the capital maximum statutory established.
When society can not meet obligations previous lack of shares and already paid the maximum statutory capital, the society shall declare this circumstance as a relevant fact and its Board of Directors will propose to increase its statutory capital is agreed in the next ordinary general meeting of shareholders.
6. the net asset value of each share is the result of dividing the assets of the company corresponding to the series to which they belong by the number of outstanding shares corresponding to that series and, for the purposes of your subscription and repurchase by the company, shall be calculated with the periodicity is set according to the rules, according to different investment policies and characteristics of the shareholders.
7. the shares will be issued and shall repurchased by the company itself at the request of any interested party according to the net asset value that corresponds to the date of application, and may be subject to marketing by the company, directly or through authorized intermediaries, or on stock may be, for that purpose, receive commissions or discounts for that.
8. the acquisition by the company of its own shares, between the initial and the maximum statutory capital, shall not be subject to the limitations laid down on derivative acquisition of Treasury shares in the corporations law. Below this minimum capital you can buy shares with the limits and conditions established in this law of corporations.
9. the society will put into circulation shares at price lower than their nominal value, not being applicable articles 75 and 76 of the Corporations Act.
The shareholders of the company shall not in any case the preferential right of subscription in the issuance or entry into service of the new shares.
The remuneration or benefits of the founders and promoters regulated in the law of corporations are prohibited.
10. won't apply to variable capital investment provisions of article 60 of the law of the stock market, relating to public offers of acquisition of values.
Article 33. Liquidity.
According to the rules will be established different procedures which provide liquidity to the shares of the SICAV.
Chapter II institutions for collective investment of non-financial character section 1 concept article 34. Concept.
Non-financial character IIC are all those that are not referred to in article 29 of this law.
Section 2 article 35 real estate collective investment institutions. Concept and description.
1. them IIC real estate regulated in this law are those of character not financial that have by object main it investment in real estate of nature urban for their lease.
2. them IIC real estate invest your active in goods estate, that may acquire in their different phases of construction, can compatible it, in accordance with them limitations that is established regulations, with the investment of a part of your active in values negotiated in markets side.
3. the names "Real estate investment fund" or "Real estate investment company", or its acronym, "F.I.I." and "S.I.I." will be custodial institutions authorized, incorporated and registered in accordance with the provisions of this law.
Article 36. Rules of investment.
1. them IIC real estate must meet the criteria of valuation of them goods and rights in which invest and respect them following coefficients: coefficient of liquidity that ensures enough the compliance of the regime of refund.
Coefficients of diversification of the risk that limit the investment in an only property as well as the lease of real estate to entities of a same group.
2. regulations will establish the minimum term for the fulfilment of the percentages derived from the above coefficients in the previous section as well as the possibility of made temporarily the percentages of risk diversification.
3 real estate IIC shall respect the rules established in relation to the minimum term of tenure of investments, acquisition and transfer of real estate, acquisition and disposal of purchase options, for commitments of buy term and rights in rem, the concentration of financial flows resulting from the leasing of real estate, and mortgage financing. Similarly, in the acquisition of benefiting from subsidized housing will be fulfilled the conditions which enable the maintenance of the economic benefits inherent in the regime of protection.
4. shareholders or partners of real estate IIC may be tenants of the real estate that integrate the asset of the same as well as hold different from its status as shareholder or shareholder derivative claims and make contributions, original or derivative, in kind.
Article 37. Real estate investment companies.
1. real estate investment companies will be corporations and shall provide a minimum capital fully paid from its Constitution.
2. the management of a real estate investment company may entrust to a management company.
Article 38. Real estate investment funds.
1. them funds of investment real estate is governed, in it not arranged specifically to them, by it referred to them funds of investment of character financial.
2 as to the system of subscription and refund, shall comply with the following rules: a) the net asset value shall be fixed, at least monthly.
b) must allow participants subscribe or claim a refund on their holdings, at least once a year.
(c) the real estate should assess, as a general rule, once a year. Such appraisal must be performed necessarily by a society of valuation provided for in the legislation of the mortgage market.
(d) when there are exceptional circumstances, in the terms to be determined by regulation, the CNMV may authorize the suspension of subscription and refund of contributions.
3. the registration of real property belonging to the Fund in the registry of property shall be carried out on your behalf.
Section 3 other non-financial collective investment institutions article 39. Other non-financial IIC.
The IIC not financial, other than the estate IIC, shall be governed by the provisions of this law and, in addition, the special provisions adopted by the Minister of economy or, with its express clearance, the CNMV.
Title IV company managers of institutions of collective investment chapter I concept and purpose article 40. Concept, purpose and booking activity and denomination.
1. the SGIIC are corporations whose corporate purpose will consist of the Administration, representation, investment management and management of subscriptions and redemptions of funds and investment companies.
In addition, the management companies may be authorized to perform the following activities: to) management discretion and individualized portfolio of investments, including those belonging to pension funds, under a mandate conferred by investors or person legally authorized, provided that such portfolios include one or more of the instruments referred to in paragraph 4 of article 63 of the law of the stock market.
(b) Administration, representation, management and marketing of venture capital funds, in the terms established by law 1/1999, of 5 January, regulator of venture capital institutions and their management companies.
2 Notwithstanding the provisions of paragraph 1 of this article, the management companies may be approved, in addition, to carry out complementary activities: to) advice on investments in one or more of the instruments referred to in paragraph 4 of article 63 of the law of the stock market.
(b) custody and management of shares of investment funds and, where appropriate, of the shares of investment companies.
In any case, the authorization for the activities of this paragraph will be conditioned to the management company has the mandatory authorization to provide the services referred to in paragraph a) of paragraph 1 above.
3. the management companies may be marketed shares of IIC. This additional activity may be carried out directly or through agents or representatives under the conditions determined by law. Subscriptions or acquisitions of shares or shares should be made mandatory by check delivered in favor of the IIC, bank transfer in favor of it or by delivery of cash directly by the person concerned to the depositary, for subsequent subscriptions in the account of the Fund or the society.
4. the functions that perform the management companies pursuant to the provisions of this law and its implementing rules carry them out with the diligence of an orderly businessman and a loyal representative.
5. the management companies may delegate, totally or partially in third parties the asset management that integrate the heritages of the IIC managed in accordance with the conditions established by law. In any case the responsibility of the management company can see affected by the fact that this delegate functions to third parties.
6 shall be reserved to the SGIIC activities defined in paragraph first of paragraph 1 of this article.
7. the designation "Partnership management of institutions for investment" and its acronym "SGIIC" will be custodial institutions entered in the corresponding register of the CNMV, not allowing any other entity use such designations or other drugs that induce to confusion with them.
He record commercial and them others records public not entered to those societies whose activity u object social or whose denomination contradict it arranged in the present law, so pena of nullity of full right. Such invalidity shall not prejudice the rights of third parties acquired in good faith, in accordance with the contents of the corresponding records.
8. no person or entity may, without having obtained the required authorization and without found inscribed in the registers of the CNMV the activities legally reserved for the SGIIC, nor use the designation referred to in paragraph 7 of this article or any other expression that leads to confusion with them.
9. the persons or entities that fail to comply with it established in this article will be sanctioned according to it planned in the title VI of this law. If required to cease immediately in the use of them denominations or in the offer or realization of them activities, will continue using them or making them, will be sanctioned with fines coercive by amount of until 300,000 euros, that may be repeated with occasion of later requirements.
Will be competent for the formulation of them requirements and for the imposition of them fines to is refers the paragraph previous, the CNMV, that also may make warnings public. with regard to the existence of this conduct. Them requirements is formulate prior hearing of the person or entity interested and the fines is imposed with arrangement to the procedure planned in this law.
10. nothing in this article is understood without prejudice to the other responsibilities, even criminal, may be required.
11. to them societies managing them will correspond the obligation of the keeping and the maintenance of them records and documents in relation to them shares and, in general, with their operations in the market of values.
Chapter II conditions of access to the activity item 41. Authorization and registration.
1 the Minister of economy, a proposal from the CNMV, shall, prior, to authorize the creation of SGIIC. Once constituted, to start their business, they must register in the register and in the corresponding register of the CNMV.
2. the application for approval shall be accompanied by the documents established, among which necessarily, include the draft laws and a memory that will be described in detail organization of society structure, the relationship of activities to develop and the technical and human means that will have, relationship of who shall be entrusted charges of administration or management in the entity as well as the accreditation of good repute and the professionalism of these, the identity of the shareholders, whether direct or indirect, persons or legal entities, that have a significant stake in society and the amount of the same and, in general, how much data, reports or records are considered appropriate to verify compliance with the conditions and requirements established in this chapter.
3 shall be subject to prior consultation with the supervisory authority of the Member State of the European Union the authorization of a management company when you go any of the following circumstances: to) that the management company is a subsidiary of another company, provider of investment, entity credit or an insurance company authorised in another Member State of the European Union ((, b) that the management company is subsidiary of the parent undertaking of another management company, provider of investment, entity credit or an insurance company authorised in another Member State of the European Union, c) which is controlled by the same natural or legal persons to another company Manager, provider of investment, credit institution or insurance company authorised in another Member State.
4. the authorization shall be notified within the three months following receipt of the request. After five months without that rendered express resolution, your application can understand is estimated by administrative silence, with the expected impacts in law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure.
Article 42. Refusal of the authorisation.
The Finance Minister may only refuse permission to constitute a SGIIC for the following reasons: to) failure to comply with the regulatory requirements and, in particular, those referred to in the following article.
(b) when, in response to the need to ensure a proper and prudent management of the entity, are not considered appropriate the suitability of the shareholders who are going to have a significant participation. Suitability will be appreciated, among other factors, depending on: 1 the business and professional reputation of the shareholders.
2nd heritage media with such shareholders have to meet their commitments.
3rd the possibility that the entity is exposed in an improper way to the risk of non-financial activities of its promoters, or when trying to finance activities, stability or control of the entity may be affected by the high risk of those.
(c) when giving any of the causes provided for in the fourth paragraph of article 10 of this law.
Article 43. Requirements for access to the activity.
1 the management companies shall meet the following requirements to obtain and retain the authorization: to) take the form of limited liability company, incorporated for an indefinite time, and members of the capital shares are nominative nature.
(b) have exclusive social purpose provided for in article 40 of this law. With main character, must perform the activities referred to in the first paragraph of article 40.1, without prejudice that may be authorized to carry out the rest of the activities provided for in that article.
(c) its registered office, as well as their effective management and direction, be situated in Spanish territory.
(d) that, in the case of a newly created entity, as it is created by means of simultaneous Foundation and its founders not booking are advantages or special remuneration of any kind.
(e) have of the capital social minimum that is set regulations, fully paid in cash and later with them levels of resources own that is require, provided to the value real of them heritages that manage.
(f) that count with a Council of administration formed by not less than three members.
(g) to communicate the identity of all shareholders, direct or indirect, physical or legal persons, that have a significant stake in the company, and the amount of such participation.
((h) that those who hold positions of management or direction in society, have good repute requirements in paragraph c) of paragraph 2 of article 11 of this law and that the majority of the members of the Board of management or their executive committees as well as all CEOs and Directors General and similar have the experience requirements set out in paragraph d) of paragraph 2 of article 11 of this law According to the nature of the IIC and types of portfolios which the management company intends to manage.
(i) that you have a good administrative and accounting organization, as well as human and technical means adequate, in relation to its object.
(j) that you have procedures and adequate internal control mechanisms that will ensure the proper and prudent management of the company, including risk management procedures, as well as mechanisms of control and safety in the computer field and bodies and procedures for the prevention of money laundering, a regime of related-party transactions and internal regulations of conduct. The management company shall be structured and organized so that you minimize the risk that the interests of the IIC or clients being prejudiced by conflicts of interest between the company and its clients, between clients, between one of its clients and an IIC or between two IIC.
2. when the management company is authorized to sell the subscription and repayment of shares of investment funds or the acquisition and alienation of shares of investment companies, may require additional requirements of solvency and operations to be determined.
3. the management of assets of persons or entities other than the IIC shall be carried out in accordance with the requirements and conditions governing such management. In particular, the SGIIC may invest all or part of the portfolio of an investor in shares or shares of IIC for she managed, except with the general consent of the customer. Also, will be exclusively in relation to the discretionary and individualized management of portfolios of investments referred to in paragraph a) of paragraph 1 of article 40 of this law and only managed heritage in connection therewith, to the rules on compensation of investors provided for in article 77 of the law of the stock market.
Chapter III conditions of exercise article 44. Modification of statutes.
1. amendments establishing project and the articles of Association of the management companies are subject, with exceptions to be determined, to the authorisation procedure provided for in this title.
All of them must be subject to registration in the register and of the CNMV.
2 will not require prior authorization, but they must be notified to the CNMV for their perseverance in the corresponding register, amendments to the articles of Association of the management companies which have as their object: to) the change in the name of the management company.
(b) the change of domicile within the national territory.
(c) incorporate into the statutes of the management company legal or regulatory provisions of imperative or prohibitive character, or fulfil judicial or administrative decisions.
(d) upgrades and capital reductions carried out by imperative legal.
(e) such other modifications for which the CNMV, in response to the consultation made to this effect by the institution concerned, have considered unnecessary, because of its limited relevance, the application for authorization.
Article 45. Significant shareholdings.
1. for the purposes of this Act, means significant participation in a management company that reach, directly or indirectly, at least five per cent of the capital or of the voting rights of the company.
You will also need consideration of meaningful participation, in terms to be determined by regulation that without reaching the designated percentage, allowed to exercise a significant influence over the society.
2. any natural or legal person intending to acquire, directly or indirectly, a significant stake in a management company shall inform previously the CNMV, stating the amount of such participation, the mode of acquisition, and the maximum period in which it is intended to perform the operation.
3. also shall previously inform the CNMV, on the terms laid down in the preceding paragraph, who intends to increase, directly or indirectly, their meaningful participation in such a way that its percentage of capital or voting rights reach or exceed any of the following levels: 10 percent, 15 percent, 20 percent, 25 percent, 33 percent, 40 percent 50 per cent, 66 per cent or 75 per cent. In any case, this obligation is also due to who under the so-called acquisition could control the management company.
4. is means that there is a relationship of control to them effects of this title provided that is give any of them alleged planned in the article 4 of the law of the market of values.
5. the CNMV will have a maximum period of one month, counting from the date in which it has been informed, to, where appropriate, oppose the acquisition, wooed.
If the Commission is not pronounced in that period, means that you accept the claim. When there is no opposition from the CNMV, this may fix a maximum period other than the one requested to carry out the acquisition.
6. on the assumption that, as a result of the acquisition, the outside management company to fit under any of the arrangements for monitoring provided for in paragraph 3 of article 41 of this law, the CNMV should consult the authority competent supervisor.
The CNMV should suspend its decision or limit its effects when under the acquisition the management company will later be controlled by a company licensed in a non-Member State of the European Union and give the circumstances envisaged in paragraph 4 of article 66 of the law of the stock market.
7. when an acquisition of those established in the preceding paragraphs is made without previously informing the CNMV; (having reported, but without that had once still the period of one month provided for in paragraph 5 of this article, or with the express opposition of the CNMV, there will be the following effects: to) in any case, and automatically, do not practise political rights pertaining to shares acquired irregularly. If, however, they exercised, the corresponding votes will be void and the agreements will be contested in the courts, as provided for in the law of corporations, being entitled to effect CNMV.
b) may agree to the suspension of activities provided for in article 51 of this law.
(c) if necessary, the intervention of the company or the replacement of its administrators, as provided for in article 72 of this law shall be given.
In addition, it may impose sanctions provided for in Title VI of this law.
8. any natural or legal person who, directly or indirectly, intended to stop having a significant stake in a management company, that it intends to reduce its participation in such a way that it is reduced below some of the levels provided for in paragraph 3 of this article, or that, under the alleged alienation, you can lose control of society , should inform previously to the CNMV, indicating the amount of the operation proposed and the term planned for carry it to out.
The breach of this duty of information will be sanctioned according to it intended in the title VI of this law.
9. the management companies shall be notified to the CNMV, as have knowledge of this, acquisitions or transfers of holdings in its capital that transcend any of the levels outlined in the preceding paragraphs. Such societies not entered in his book record of actions them transmissions of actions that are subject to the obligation of communication established according to this article until not is justifies it not opposition of it CNMV or, in its case, is les accredits that is you has made it communication to it CNMV and that has elapsed the term established for the opposition.
(((10. when exist reasons founded and accredited of that the influence exerted by them people that possess a participation significant in a society Manager can result in detriment of it management correct and prudent of the same and damage seriously your situation financial, the CNMV will adopt any or some of them following measures: to) them planned in them paragraphs to) and b) of the paragraph 7 of the present article , while the suspension of the voting rights may not exceed three years.
(b) in exceptional cases, the revocation of the authorization.
Also it may impose sanctions that apply as provided in Title VI of this law.
Article 46. Obligations and liability.
1 the management companies shall comply with the obligations laid down in this law and its implementing rules and, in particular, the following: to) inform the CNMV those changes in the conditions of the authorization that may be relevant in relation to the powers and the work supervisor of the CNMV.
(b) inform the CNMV investments that materialize its own resources and on behalf of the funds and companies that manage.
(c) report to the CNMV periodically on the composition of its shareholders or of alterations occurring therein under the terms established by law. Such information will understand, necessarily, it relative to the participation of other entities financial in its capital, any that out his claims. According to the rules will be established in which cases this information will be public.
(d) in relation to the managed funds, according to the rules shall be those cases in which, in attention to the quantitative relevance and the stable nature of the participation of the Fund in the capital of a company, the management company shall be obliged to exercise all the rights inherent to the values embedded in the background for the exclusive benefit of participants, especially the right to attend and vote at general meetings.
In any case, the management companies shall inform participants of its policy in relation to the exercise of political rights inherent in the values that comprise the Fund Portfolio, well justifying the non-exercise of the right to vote or the sense of it.
They must also record of this policy in the information documents to be determined.
2. the management companies will act in the interests of the unit-holders or shareholders of the institutions whose assets administered and commissions received from them will have the limits set in accordance with article 8 of this law. The powers of dominion over the Fund's assets, correspond you to the management company without being owner of it, putting them in the interests of the unit-holders in accordance with provisions in this law, its implementing rules and the rules of management.
3. the management company shall be obliged to send to the depositary all the information required by regulation. In addition, compelled to communicate any anomaly detected in the functions of the depositary with regard to assets that manage to the CNMV.
4. the management company shall be liable to the unit-holders or shareholders of all the damages that would result in them for breach of its legal obligations. The management company is obliged to ask the depositary responsibility in the exercise of their functions on behalf of the unit-holders.
Article 47. Audit of accounts and other conditions of exercise.
The management companies shall be referred to the audit of the accounts, in accordance with the provisions of law 19/1988, of July 12, auditing, adjusting the financial year to the calendar year.
It will apply to the audit of the SGIIC as provided in article 92, paragraph (c)) of the securities market law.
By regulation the minimum coefficients of investment, diversification and debt which must comply at all times shall be established.
Article 48. Department of attention to the client and customer Ombudsman.
1. the management companies will be required to address and solve the complaints and claims that the shareholders of investment companies or holders of mutual funds can apply, related interests and legally recognized rights. For this purpose, the management companies must have a Department or service charge customer to deal with and resolve complaints and claims. Entities shall record internal of all complaints received from its clients, which included a copy of the claim received and reply moved to the claimant.
These management companies may well individually, grouped by branches of activity, proxi geographical midad, volume of business or any other criteria, designate a customer Ombudsman, who shall be an entity or an expert independent of recognized prestige and who shall be responsible for addressing and solving the types of claims that are subject to its decision on the framework that is available to its regulation of operation as well as promote the compliance with the rules of transparency and protection of the clientele and good practices and financial applications.
2. the decision of the favorable claim customer Ombudsman will link to the management company. This link will not be obstacle to the fullness of judicial supervision, to resort to other mechanisms of dispute resolution or administrative protection.
Article 49. Causes of reversal.
1 the authorization granted to a SGIIC revoked in the following cases: to) if not made use of the authorisation within 12 months following the date of the notice of the same.
(b) if it expressly authorized, regardless of which is transformed into another entity or agree to its dissolution.
c) if interrupted, in fact, the specific activities authorized for a period exceeding six months.
d) If during one year you make a volume of activity less than that determined by regulation.
e) if in breach of sudden form any of the requirements for obtaining the authorization and to carry on the business as provided in this law. However, in the event that a management company own resources fall below the limits specified, the CNMV may, exceptionally and so motivated, grant a period not exceeding six months to correct the situation or cease the activities of the management company.
(f) when giving the course provided for in paragraph 10 of article 45 of this law or provisions are infringed either serious or systematic provided for in this Act or in the rest of rules which regulate the legal regime of the management companies of the IIC.
(g) as a penalty, as provided for in Title VI of this law.
(h) when giving any of the causes of forced dissolution provided for in article 260 of the corporations law.
(i) if it had obtained authorization in virtue of false statements, omissions or other irregular means.
j) if the opening remembers a bankruptcy procedure.
2. any authorisation revoked to a management company Spanish carrying out any cross-border action in accordance with the provisions of article 54 of this law shall notify the competent authorities of the host Member State.
Article 50. Revocation procedure.
1 revocation of the authorization shall be subject to the common procedure provided for in the law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure, with the following specialties: a) the agreement of initiation and instruction will correspond to the CNMV, which may adopt provisional measures as it deems necessary, such as the entrustment of the IIC managed to another SGIIC management.
b) resolution of the dossier will correspond to the Minister of economy on a proposal from the CNMV, or directly to this organism in the case provided for in paragraph b) of paragraph 1 of the preceding article.
2 any of those referred to in paragraphs however, whenever the cause of revocation that concur to), b) or c) of the preceding article, is enough to give audience to the concerned entity. In the cases provided for in paragraph g) are to be follow the specific procedures provided for in this law.
3. the resolution agreed the revocation shall be immediately Executive. Once notified, the management company cannot be new actions related to its corporate purpose. The resolution must register in the register and in the register of the CNMV. Also, will be published in the "official bulletin of the State", since then producing effects against third parties.
4. the Minister of economy may agree, a proposal of the CNMV, revocation involves the forced dissolution of the entity. In these cases, the CNMV may, in the interests of the protection of the unit-holders and shareholders of the IIC managed, remember all the precautionary measures that they deem appropriate and, in particular: to) agree on the transfer to another company's cash management, securities and other financial instruments, goods and rights-managed.
(b) appoint the liquidators.
(c) require any specific guarantee to partners or the liquidators appointed by the society.
(d) intervene the liquidation operations. If by virtue of it planned in this precept, or in others of this law, had that name liquidators or auditors of the operation of liquidation, will be of application it referred in the chapter III of the title VI of this law.
5. when a society Manager agreed its dissolution by any of them causes planned in the article 260 of the law of societies anonymous, is means revoked the authorization, can it CNMV agree for its ranked liquidation any of them measures indicated in the paragraph 4 of this article.
Article 51. Suspension.
When concur one of them alleged intended in the article following, the CNMV may suspend, with character total or partial, them effects of the authorization granted to a SGIIC. In case of suspension partial, will affect to any of the IIC managed or to any of the faculties. In the Act of suspension can remember is them measures precautionary that is deemed relevant.
Article 52. Assumptions of suspension.
(1. the suspension to is concerns the article previous, can agree is when is give any of them following alleged: to) opening of a record sanctioning by violation serious or very serious.
(((((b) when is give any of them causes planned in those paragraphs e), f), g), or i) of the paragraph 1 of the article 49 of this law, as is substantiate the procedure of revocation.
(c) when will give the so-called planned in the article 45.7 from this law.
(d) as punishment, according to it intended in the title VI of this law.
2. the suspension only is agreed when, giving is an of them causes planned in the paragraph previous, it measure is required for protect to them participants or shareholders of the IIC managed, or in your case, to others customers of the institution. Not may agree is, unless is concerned of a sanction, by a term superior to a year, extendable by another more.
Article 53. Replacement.
1. it society Manager may request its replacement as such, when so it deems relevant, through written presented to the CNMV by the depositary, it old society Manager and by the new society Manager, which is declared willing to accept such functions, interesting it corresponding authorization.
Exceptionally, the CNMV may authorize such replacement even when be requested unilaterally by the society Manager. In no case may the management company which intends to be replaced to renounce the exercise of their functions while the requirements and formalities have not fulfilled for the designation of his replacement.
2. the bankruptcy proceedings of the management company does not produce dissolution of the IIC managed right, but that will stop in the management of the Fund, or in the of assets of investment companies and the rest of the activities that has been authorized to carry out, initiating procedures for the replacement of the management in the form and conditions established by law. The CNMV may agree that replacement even if it is not requested by the management company.
3. as provided for in the preceding paragraphs will be applicable in the circumstances provided for in article 72 of this law.
Chapter IV performance cross-border article 54. Cross-border actions of the management companies authorised in Spain.
1. the authorized SGIIC in Spain may exercise the activity that relates the authorisation in other Member States of the European Union, through the establishment of a branch office, either through the free provision of services, on the terms laid down in this article.
2. all authorized in Spain management company wishing to establish a branch within the territory of another Member State shall notify the CNMV. Must be indicated in the notification to the CNMV: to) the Member State in whose territory intends to establish the branch.
(b) the programme's operation stating the activities and services that intends to make and of the Organization of the branch structure.
(c) the address in the host Member State which may be required documents.
(d) the name of the responsible for the branch managers.
3. the CNMV must send all the information provided by the management company to the host within the period of three months from the receipt of all the information Member State, unless it has reason to doubt, seen the project in question, of the adequacy of the administrative structure or the financial situation of the society of management taking into account the activities that it intends to exercise. This circumstance must be notified to the management company within the period of two months after receipt of all the information.
((((In case of modification of some of them data releases with arrangement to it willing in them paragraphs to), b), c) and d) of the paragraph previous, it society Manager communicated by written such modification to the CNMV as minimum a month before make it effective so this can to pronounce is on the same in accordance with it established in this article.
4. all society Manager authorized in Spain that want to exercise by first time their activity in the territory of another State Member to the amparo of the free provision of services, must notify it to the CNMV. Also, the notification must be made in the event that the management company refer to third-party marketing of shares and participations of IIC in the host Member State. The notification must indicate: a) the Member State in whose territory intends to operate.
(b) the program of operation in which is established them activities and services that is propose perform, as well as the identification of them third to which entrusted the marketing of shares and participations of IIC.
The CNMV must send all the information provided by the society Manager to the State member of host in the term of a month starting from the reception of it all of it information. En_caso_de modification of the content of the information to which paragraph b), the management company will in writing such modification to the CNMV before making it effective.
5. in the event of having been adopted any measure provided for in Title VI of this law, intended to prevent or punish acts contrary to legal or regulatory provisions by a company manager authorized in Spain, must inform the competent authorities of the host Member State in order to facilitate the exercise of its supervisory powers.
Regulations will determine the exercise of this obligation, as well as the remission of checks "in situ" in the exercise of the duty of cooperation laid down in Community legislation and any other information that is necessary to these latest authorities.
6 managing Spanish companies seeking to open a branch or provide services without branch in a State which is not a member of the European Union, must previously obtain authorisation from CNMV, determined according to the rules the requirements and the procedure applicable to this case.
Article 55. Management companies authorised in another Member State of the European Union.
1. the management companies authorised in another Member State of the European Union within the scope of Directive 85/611/EEC may be in Spain, either through the opening of a branch office, in regime of free provision of services, the activity to which it relates its authorization under the terms established in this article.
2. in no case may condition the establishment of branches or the free provision of services to the obligation to obtain additional authorization or to the provide an Endowment Fund or any measure having equivalent effect.
3. the opening in Spain of branches of management companies authorised in other Member States of the European Union will not require prior authorization.
((((However, the same will be conditioned to the CNMV receive a communication of the authority competent of the State member of origin of the society Manager, that contains the information indicated in them paragraphs to), b), c) and d) of the paragraph 2 of the article 54 of this law.
Upon receipt of the communication, the CNMV shall notify their receipt to the management company, who shall register the branch in the commercial register and in the corresponding register of the CNMV, communicating to it the date of the effective start of operations.
The CNMV may fix a term, not exceeding two months from the receipt of the communication, for the start of the activities of the branch. Also may indicate, where appropriate, the conditions in which, for reasons of general interest, it shall carry on business in Spain, including those concerning the marketing in Spain of shares and participations of IIC subject to Directive 85/611/EEC and the rules of conduct to observe in the case of provision of the service of individualized management portfolio and the custody and investment counselling services.
4 in the event of modification of any of the information communicated pursuant to the provisions of paragraphs a), b), c) and d) of paragraph 2 of article 54 above, the management company will in writing such modification to the CNMV as a minimum in the period of one month before making such a change effective.
5. the completion in Spain, for the first time, activities of free provision of services, management companies authorised in another Member State of the European Union, can be started once the CNMV has received a communication from the competent authority of the Member State of origin of the management company, on the terms stated in paragraph 4 of article 54 of this law.
CNMV communicated to the management company the conditions who, for reason of general interest, the company Manager in Spain, shall follow including the rules of conduct that must be observed in the case of provision of individualized portfolio management service and custody and financial advisory services.
The procedure described in this paragraph will be followed also in the case that the management company refer to third-party marketing in Spain of shares and participations of IIC. In any case, that marketing must meet the requirements laid down in article 15 of this law.
En_caso_de modification of the content of the information to which paragraph b) of paragraph 4 of former article 54, the management company notified in writing such modification to the CNMV before making it effective.
6. the CNMV may require the management companies with branches in Spanish territory periodic information on activities in that territory, open to statistical purposes as well as any other information that is necessary for the fulfilment of its obligations of supervision pursuant to this law. On the other hand, it may require the management companies to act on Spanish territory of free provision of services the information needed to monitor compliance by these standards that apply to them in virtue of this law and its implementing rules.
7. the management companies authorised in another Member State of the European Union who intend to carry out the activities to which it relates its authorization of free provision of services in Spain will be obliged to appoint a representative resident in Spain to represent them for purposes of the tax obligations to be fulfilled by the activities that take place in Spanish territory.
Article 56. Non-Community management companies.
1. to the non-Community management companies seeking to open a branch, in Spain and the community not subject to Directive 85/611/EEC shall them apply the prior authorisation procedure laid down in chapter II of this title with the adaptations that are established by law.
If they intend to provide services without branch must be authorized in the form and conditions established. In both cases the authorization may be refused, or conditioned, for prudential reasons, not be an equivalent to Spanish banks deal in their country of origin, or not be ensured compliance with the rules established in this Act and its regulatory development, which shall comply in its operation.
2. also will be subject to the prior authorisation of the CNMV, the creation by a Spanish management company or a group of Spanish management companies of a foreign management company, or the acquisition of a stake in an existing management company, when the foreign management company go to be constituted or is domiciled in a State which is not a member of the European Union. Regulations will determine the information to be included in the request.
TITLE article 57 depositary V. Concept.
For the purposes of this Act, the depositary are entities that entrusted the deposit or custody of the securities, cash and, in general, the active subject of the investments of the IIC, as well as the supervision of management the SGIIC and, where appropriate, administrators of the IIC corporate form and other functions that assigned this law.
Article 58. Designation and incompatibilities.
1 they shall be depositary banks, savings banks, including the Spanish Confederation of savings banks, cooperatives of credit, companies and securities agencies. All they must hold the condition of entity participating in them systems of compensation, settlement and registration in them markets in which go to operate, is as such or through another entity participant. In the latter case, the participating entity must have broken down the account of third parties.
The depositary shall have its domicile or social, in his case, a branch office in Spain.
When the depositary has credit rating granted by a recognized by the CNMV rating agency shall be recorded in the half-yearly and quarterly reports.
2. each institution shall take a single depository.
No entity may simultaneously be Manager and depositary of a single institution, except in the normative assumptions that, exceptionally, this possibility is admitted.
Article 59. Authorization.
1. them depositories of them IIC will acquire the character of such through the authorization of the CNMV and registration in the corresponding record administrative of the same. The resolution on this authorization shall be notified within a maximum period of 15 days following the date of entry of the application in the register of the CNMV, or the time that completes the required documentation to demonstrate compliance with the requirements in accordance with this law and provisions of development, and, in any case , in the month following its receipt.
2. when the request is not resolved in the period previously designated may understand is estimated with the expected impacts in law 30/1992, of November 26, legal regime of public administrations and common administrative procedure.
3. the CNMV may only refuse permission to be custodian when the entity does not meet the regulatory requirements to the depositary or does not have adequate means for carrying out the functions set out in the following article.
Article 60. Obligations.
IIC depositories shall meet the following obligations: to) write the regulation of investment funds management and give the document's creation, as well as the amendment or settlement. These functions must be developed in conjunction with the management company.
(b) assume the role of monitoring the management performed by the management of investment funds companies or investment managers to the unit-holders or shareholders. To this end, checked especially that is respect them limits to the investments and coefficients provided in this law.
(c) issuing certificates of shares in investment funds that are represented through such titles in union with the management company.
They may also ask the entities responsible for accounting records, on behalf and on behalf of the participants, the issue of licences which refers article 12 of the law of the stock market, when it is represented through book-entry shares.
(d)) ensure the regularity of the subscriptions of shares whose net credited to the account of the funds.
(e) meet, on behalf of the funds, the reimbursement of shares, the net amount due on the account of the Fund. To this end, it is up to monitor, formulas and procedures used by the management company for the calculation of the net asset value of the shares.
(f) to ensure payment of dividends of the shares and the benefits of the shares in circulation, as well as complete reinvestment orders received.
(g) complete, where appropriate, on behalf of the institutions, operations of purchase and sale of securities, as well as collect the interests and dividends earned by them.
(h) to ensure the observance of legality in the activities of the management company when it acts as marketer of mutual funds.
(i) carry out the functions of deposit or securities belonging to the IIC management, being responsible in cases that do not develop directly the same. Regulations will be developed the obligations inherent in this function of custody and the requirements that must be met by entities performing the deposit of foreign securities from the IIC.
(j) perform any other function that serve for the best execution or as a complement to the custody and surveillance functions.
Article 61. Replacement.
1. the depositary may request its replacement, when so it deems relevant, through written presented to the CNMV by the society Manager, the old depositary and by the new, which is will declare willing to assume such functions, interesting the corresponding authorization. Exceptionally, the CNMV may authorize such replacement even though it is unilaterally requested by the depositary or, where appropriate, by the management company. In no case may the depositary waive the exercise of their functions while the requirements and formalities have not fulfilled for the designation of a substitute.
2. the procedure bankruptcy of the depositary not produces of right the dissolution of the institution whose active custody, although, in said so-called, the depositary shall cease in their functions, initiating is them procedures for its replacement.
Article 62. Liability.
1. the depositary shall act always independently and in the interest of investors in IIC, and must meet all their obligations with the diligence of an orderly businessman and a loyal representative.
The depositary may ask the management company all the information they need for the performance of their duties.
The depositary is obliged to inform the CNMV any anomaly detected in the management of the institutions whose assets are in custody.
2. the depositary shall be liable for front of the unit-holders or shareholders of all the damages that caused them for breach of its legal obligations. The depositary is obliged to require the management company liability in the performance of their duties on behalf of the unit-holders.
Custodians are responsible for the custody of the assets of the institutions, even on the assumption that have been entrusted to a third party custody of part or all of the assets.
Article 63. Suspension.
With total or partial character the CNMV, where appropriate, following a report from the Bank of Spain, may suspend the effects of the authorization granted to a depositary of IIC. When the suspension is partial will affect any of the IIC for which deposit function is exercised, or any of the functions provided for in this law to the depositories. Measures may be adopted in the event of suspension prudential that they deem relevant and, in particular, you can remember to transfer assets and funds of the IIC which was the depositary to a third entity for this purpose-enabled.
Article 64. Cases of suspension.
1 the suspension referred to in the preceding article may agree when any of the following cases: to) opening of a disciplinary record for non-serious or very serious.
(b) when they fail to comply with the conditions laid down in the authorisation or other obligations provided for in this law.
(c) in the event of insolvency proceedings or intervention of the entity.
(d) as a punishment, as provided for in Title VI of this law.
2 you can remember to suspension, except case of sanction, for one period exceeding one year, extendable by another.
Title VI rules of conduct, monitoring, intervention and sanctions chapter I rules of conduct article 65. Applicable regulations.
The SGIIC, depository institutions and those IIC which shall take the form of society and whose management is entrusted to a SGIIC, as well as those who play charges of administration and management in all of them, their employees, agents and representatives, shall be subject to the following rules of conduct: to) those provided for in this chapter and those contained in Title VII of the Act of the stock market ((with adaptations and specifications, where applicable, are established according to the rules, including the penalties for breach of rules laid down in title VIII of the said Act, b) the dictated in development of the provisions referred to in paragraph to) above, that approves the Government or express-enabled this, the Minister of the economy (, a proposal from the CNMV, c) those contained in internal regulations of conduct.
Article 66. Market operations.
The IIC shall be transactions on goods, rights, securities or instruments at prices and market conditions, unless the operations are carried out in conditions more favourable for the IIC.
Article 67. Related-party transactions.
1 are considered related-party transactions which held people who listed below in relation to the operations referred to in paragraph 2: to) by investment companies with depositary and, where appropriate, with their management companies, b) by investment companies with charges of administration and management who play in these or who play charges of administration and management in your depository institution and if your manager ((c) by the SGIIC and custodians each other when affecting an IIC which act as Fund Manager and depositary respectively, and which are carried out between the management companies and those who play in them charges of administration and management, d) by the SGIIC, when they affect an IIC regarding which acts as project manager; by the depositary when affect to an IIC. with regard to which acts as depositary and by them societies of investment, with any other entity that belong to your same group according to is defined in the article 4 of the law of the market of values.
(2. will be operations linked them following: to) the collection of remuneration by the provision of services to an IIC, except that pay the society Manager to the own institution and which is determine regulations.
(b) the obtaining by an IIC of funding or the Constitution of deposits.
(c) the acquisition by an IIC of values or instruments issued or guaranteed by any of them people defined in the paragraph previous or in whose emission any of these people act as placement, insurance, director or advisor.
(d) any other established by regulation.
When the operations provided for in this section were made by persons or entities filed also they shall be regarded as related-party transactions. To these effects, is means that the operation is performed by person or entity filed when is run by person United by link of kinship in line direct or collateral, consanguineous or by affinity, until the fourth grade including, by Presidents or trust or by any entity in which them charges of administration and address have, direct or indirectly, a percentage equal or top to the 25 percent of the capital or exercise in she functions of administration or address.
(3. so a society Manager can perform them operations linked planned in this article, must meet is them following requirements: to) the society Manager must have of a procedure internal formal, collected in its regulation internal of conduct, for make is of that the operation linked is performs in interest exclusive of the IIC and to prices or in conditions equal or best that them of market. Confirmation that these requirements are met shall be adopted by an independent Commission created in the bosom of the Board of Directors of the Manager or, Alternatively, by an internal body of the managing this function refer to that.
The procedure may provide for simplified systems approval for repetitive related-party transactions or low relevance.
(b) the society Manager must inform in them brochures and in it information periodic that them IIC publish, on them procedures adopted for avoid them conflicts of interest and on them operations linked made in the form and with the detail that the law of the market of values and its normative of development determined.
((c) the Commission u organ internal to is concerns the paragraph to) previous must report to the Council of administration, unless one time to the quarter, about them operations linked made.
4. regulations shall be determined requirements to the related-party transactions are carried out between the SGIIC and those who play in them charges of administration and management.
5. the above requirements will be applicable to investment companies when had not delegated the management of their assets to another entity that meets them.
The requirements set out in paragraphs will not be enforceable to)) and (c) of paragraph 3 when the general meeting of shareholders authorized expressly and prior to its implementation, related-party transactions provided for in this article.
Article 68. Separation of the depositary.
1. any entity shall be depositary of IIC managed by a company belonging to the same group, or of investment companies in which the same circumstance, be given except that the IIC or, where applicable, the management company has a specific procedure, collected in its internal rules of conduct, allowing to avoid conflicts of interest.
2. the verification of compliance with the requirements as laid down in the preceding paragraph shall be an independent Commission created in the bosom of the governing body or an internal organ of the management company or the investment company.
For this purpose, the body to which this function is entrusted shall draw up, with the frequency that is determined by regulation, a report on the degree of compliance with the requirements provided for in this article that should be referred to the CNMV. On the assumption that the report reflect caveats on the correct implementation of these requirements, should be the replacement of the depositary by another that does not belong to the same group in the terms provided for in article 61.
Chapter II Supervision and inspection article 69. Subjects.
They are subject to the regime of supervision and inspection of this law: to) the IIC provided for in paragraph 1 of article 2 of this law.
b) Las SGIIC Spanish provided for in title IV of this law.
(c) the depositories of IIC.
(d) person performing operations of any of the above subjects and, in general, the remaining natural and legal persons insofar as they can be affected by the provisions of this law and its regulatory provisions, in particular for the purposes of checking if they contravene the activity and denomination reserves provided for in article 14.
Article 70. Competencies.
1 corresponds to the CNMV inspection of individuals and entities referred to in article 69 and the monitoring of compliance with their obligations, insofar as it is not expressly assigned to other agencies.
2. for the performance of the duties provided for in this title, the CNMV may request of concerned individuals and organizations how much information it deems necessary on the ends that interests, related to matters subject to this law. In order to obtain such information or confirm their veracity, the CNMV may make many inspections deemed necessary.
3. the surveyed subjects are obliged to make available to the CNMV books, records and documents is considered accurate regardless of the format in which is situated.
4. the inspection provided for in this article may be on the legal, technical and economic-financial situation, as well as the conditions in which they pursue their activities, either general or specific issues concerning.
5. the provisions contained in article 90 of the law of the stock market, with the necessary adjustments concerning the IIC subject to the scope of this law, will be applied to the supervision of the CNMV functions listed in this legal text.
Article 71. Supervision of entities from other Member States.
1. the CNMV may require to the entities listed in article 55 acting of free provision of services, and their branches, the information necessary to verify compliance with applicable regulations. Statisticians may also require them information purposes only.
2 If the CNMV observed entities referred to in the preceding paragraph are there planned information obligations, or other obligations established under this law or its implementing regulations, they shall require the management company that put an end to the irregular situation.
If the management company does not adopt the appropriate measures, the CNMV shall inform the competent authority of the home State. If the management company continues making the infringing conduct although, where appropriate, of the measures which it has taken the competent authority of the State of origin, the CNMV, after informing the authority, may adopt the appropriate measures in accordance with the provisions of this title to avoid further infringements, including the exercise of powers to impose penalties.
Exceptionally, prior to the adoption of the measures provided in this paragraph, the CNMV may take preventive measures it deems necessary to protect the interests of investors.
The measures taken must be communicated to the European Commission and the competent authorities of the State of origin as soon as possible.
3. If the CNMV noted that the entities listed in article 55 violate the conditions according to which by reason of the general interest, it should be exercised the activity referred to in article 1 of this law in the Spanish territory, may adopt, in accordance with the provisions of this title, the necessary measures to prevent or punish the Commission of offences classified. Such measures shall be communicated to the European Commission and the Member States concerned.
4. If by virtue of the provisions of the preceding paragraphs, imposed the sanction of prohibition of performance in Spain to the management company, such penalty shall be communicated to the competent authority of the home State.
Chapter III intervention and replacing article 72. Causes of intervention or replacement.
1 when the IIC or the SGIIC is in a situation of exceptional gravity which put in jeopardy his patrimonial balance or the heritage of their customers, or that affect the stability of the financial system or the general interest, it may agree by the CNMV, giving reasoned account to the Minister of economy, the intervention of the management company or the investment company's the provisional replacement of its organs of administration or direction, or the replacement of the management company under the terms of article 53. These measures remain temporarily until the above-mentioned situation is overcome.
2. the provisions of paragraph 1 of this article shall also apply in cases where there are well-founded indications that if the situation of exceptional gravity to which it refers, the true patrimonial situation of the SGIIC, of the Fund of investment or social investment or its customer tes, can cannot be deducted their accounting and other records.
3 measures of intervention or replacement referred to in this article may be taken during the treatment of a sanctions dossier or independently of the exercise of the powers to impose penalties, whenever there is any of the situations provided for in the preceding paragraphs.
4. resolutions of the CNMV which put an end to the procedure according to the intervention or replacement in the cases referred to in paragraph 1 of this article may be appealed in appeal to the Minister of the economy.
Article 73. Request and adoption of agreement on intervention or replacement.
1. the intervention or replacement agreement may adopt a founded request of the entity itself.
You can formulate the request, the administrators of the company or investment company, the depositary and, where appropriate, a minority of shareholders that is, at least, equal requires that the respective legislation to urge the convening of an extraordinary general meeting.
2. the intervention or substitution agreements shall be adopted after hearing society management company or investment company concerned, the period granted to the effect, which may not be less than five days. However, such hearing will not be necessary in the case that has preceded the entity request or when the delay arising from such transaction commit seriously the effectiveness of the measure or the economic interests involved.
3. the agreement shall designate the person or persons who shall perform the duties of intervention or act as provisional administrators have, and will indicate if such people must act together, jointly or severally.
This agreement, immediately Executive character, shall be subject to publication in the "official bulletin of the State" and shall be entered in the register. Both cited the publication and registration will determine the effectiveness of the same to third parties.
4. When this is necessary for the execution of the agreement of intervention or of replacement of them administrators, can get is to the compulsion direct for the takes of possession of them offices, books and documents corresponding or for the examination of these last.
Article 74. Effects of the intervention.
1. in the event of intervention, acts and agreements of any body or any person or group of people with any kind of power, Executive and representative decision-making or control of the management company or the investment company to be taken from the date of publication of the agreement in the "official bulletin of the State", would not be valid or may be carried out without the express approval of the appointed auditors. Is except of this approval the exercise of actions or resources for these entities in relation to the measurement of intervention or with the performance of them Auditors.
2. them Auditors designated will be empowered to revoke few powers or delegations have been conferred by the organ of administration of the entity or by their attorneys or delegates with prior to the date of publication of the agreement. Adopted such a measure, shall be by the Auditors to demand the return of the documents in that constaren the powers of Attorney, as well as to promote the registration of its repeal in relevant public records.
Article 75. The substitution effects.
1. in the case of replacement of the Board of Directors, appointed provisional administrators will have the character of Auditors with respect to the acts or agreements of the shareholders of the entity being applicable to them as has paragraph 1 of the preceding article.
2. the obligation to formulate the annual accounts of the company and approval of these and the social management will be suspended, for period not exceeding one year, counted from the expiration of the legally established deadline to the effect, if the new Board of directors or auditors reasonably considers that there are no data or documents complete and reliable for this purpose.
3 agreed by the CNMV cessation replacement measure, provisional administrators shall immediately convene the general meeting of the institution, which shall be replaced to the management company or will be appointed the new Board of Directors. Until the takeover of new administrators, provisional administrators will continue to exert their functions.
Article 76. Public intervention in the dissolution of a company of investment, a management company or a depositary entity.
1. will be of application to the situations bankruptcy of the societies of investment and of them SGIIC the regime planned in the article 76 bis of the law of the market of values.
2 started of a depository of values of any IIC entity bankruptcy proceedings, the CNMV is available, immediately and at no cost to the institution, transfer to another institution, enabled to develop this activity, of the deposited securities and guarantees constituted, in securities or cash, on behalf of the IIC, even if such assets are deposited in third parties on behalf of the custodian of the IIC or the entity to whom this has been entrusted the deposit. For this purpose, both the competent judge and the organs of the bankruptcy proceedings, will facilitate access by the entity that will pass you the values to the documentation and accounting and computer records that are necessary to give effect to the transfer. The existence of bankruptcy proceedings will not prevent that it should reach the institution owner values the cash coming from the exercise of their economic rights or of its sale.
Chapter IV penalties section 1 General provisions article 77. Liability.
The IIC, entities or persons provided for in the first paragraph of article 69, as well as those who hold positions of management or steering them and their representatives who violate this law and its implementing regulations, shall incur administrative liability punishable pursuant to the provisions of this title, without prejudice to the criminal liability that if appropriate.
Article 78. Exercise of powers to impose penalties.
1. the exercise of the powers to impose penalties referred to in this title shall be independent of any concurrence of offences or criminal misconduct. However, when it is prosecuting criminal proceedings for the same facts or others whose separation of the punishable under this law rationally impossible, the procedure shall be suspended for them until justifiably strong judicial authority ruling. Resumed the case, where appropriate, resolution issued shall comply with the appreciation of the facts that contains this statement.
2. when the Commission of an offence provided for in this law necessarily arises the Commission of one or more other offences referred to in the law of the stock market, or where the facts are qualifying as infringement pursuant to the sanction regimes of both laws, the penalty corresponding to the most serious offence committed shall be imposed only. In the event of infringements have the same gravity, the sanctions provided for in this law shall be imposed.
Section 2 offences article 79. Classification of offences.
Offences are classified, according to their respective relevance, in three categories: minor, serious and very serious.
Article 80. Very serious offences.
They constitute very serious violations of the physical and legal persons referred to in article 69 of this law the following acts or omissions: to) the omission or false in accounting and information that should facilitate or publish in accordance with this law, unless it has a character merely occasional or isolated.
(b) investment in any assets other than those authorized legally or allowed by brochure, the statutes or the rules of procedure of the IIC.
(c) failure to comply with the obligation to submit audited accounts.
(d) the realization of operations of stock loan or securities, as well as the pledge of assets, with violation of the precautions to be determined in this law detailed rules or brochure, the statutes or the rules of procedure of the IIC.
(e) breach of the limits to the investment or coefficients of minimum investment, or the conditions set out in the brochure, the statutes or the regulation of the IIC, provided that this invalidates the object of the IIC or seriously damaging the interests of shareholders, participants and third parties, and does not have a transitory nature.
(f) the purchase and sale of own shares in the societies of variable capital and the issuance and repayment of shares with failure to comply with the limits and conditions imposed by this law, its supplementary provisions and statutes and regulations for management of the institutions.
(g) the use of the names or acronyms reserved by this law to the IIC and their management companies by entities or people not registered in the corresponding registries, and the realization by them of activities reserved to these institutions or entities, without prejudice to both the responsibilities of another order that had been incurred.
(h) the resistance or refusal to inspection established in article 70.
(i) the performance of investment operations with non-compliance with the principles set out in article 23 and concordant rules or in contravention of the conditions laid down in the prospectus, the statutes or the rules of procedure of the IIC.
(j) carrying out unauthorized transactions referred to in articles 25, 26, 27 and 28, or failure to comply with the requirements.
(k) the breach of them deadlines of permanence of them investments that is set regulations in accordance with it planned in the paragraph 3 of the article 36 of this law or in the brochure, the statutes or the regulation of the IIC.
(l) the non-compliance by the management companies acting within the framework of this law, of the obligations relating to valuation of real estate established in the development of the provisions of article 36 of this law.
(m) the commercialization of IIC shares without the corresponding authorization.
(n) the default by the management companies of the functions and duties referred to in article 46, provided that they involve serious injury to investors or shareholders of an IIC.
(o) the default by the depositaries of the functions and duties referred to in articles 60 and 62 of this law, provided that they involve serious injury to investors or shareholders of an IIC.
(p) the presentation from them societies of investment or them societies managing of deficiencies in it Organization Administrative and accounting or in them procedures of control internal, included them relating to the management of them risks when such deficiencies put in danger it solvency or the viability of the entity.
(q) the maintenance by them SGIIC or by the societies of investment during a period of six months of ones resources own lower to them required to obtain the mandatory authorization.
(r) the absence of a Department to the customer under the terms provided for in article 48.
(s) the realization of operations related to breach of the requirements laid down in paragraphs 3, 4 and 5 of article 67, when they were required.
(t) the breach of the standards of separation of the depositary and the society responsible of the management of the IIC, established in the article 68.
(u) the Commission of violations serious when during them five years previous to its Commission had been imposed to the offending sanction firm by the same type of infringement.
(v) the performance of actions or operations prohibited by rules with range of IIC regime governing law or breach of the requirements laid down therein, unless it has a character merely occasional or isolated.
Article 81. Grave breaches.
They are serious breaches: to) failure to comply with information obligations provided for in this law.
(b) the lack of publicity of information to partners, participants and public to surrender pursuant to this law.
(c) keeping the accounts in accordance with criteria different from those set out legally when it vitiates the patrimonial image of the entity or the affected IIC, as well as the breach of the rules on formulation of accounts or the way in which books and official records, when it caused serious damages to third parties must be carried.
(d) breach of the limits to the investment or coefficients of minimum investment, when it should not qualify as very serious infringement.
(e) the excess of investment limits established by regulations under the protection of article 30 and on which are established under the aegis of the provisions of articles 35 and 36, when the infringement should not qualify as mild.
(f) excessive constraints on the obligations to third parties which are fixed by regulation or brochure, the statutes or the rules of procedure of the IIC.
(g) the payment of the commissions provided for in article 8, with failure to comply with the limits and conditions imposed by this law, in its regulation of development and in the statutes or regulations of institutions.
(h) the breach from the societies managing of the functions and obligations referred in the article 46, when not should be qualified as missing very serious.
(i) the breach by the depository of the functions and duties referred to in articles 60 and 62 of this law, when it should not qualify as very serious.
(j) the termination or reduction of a significant stake in breach of provisions of article 45.8.
k) failure to comply with the provisions of the third subparagraph of paragraph (c)) of paragraph 2 of article 11 of this law.
(l) the Commission on minor offences when during the two years prior to his Commission had been imposed on the offending sanction signed by the same type of infringement.
(m) the realization of actions or operations prohibited by regulatory rules governing the regime of IIC or failure to comply with the requirements laid down therein, unless it has a character merely occasional or isolated.
(n) the presentation by investment companies or the SGIIC of deficiencies in administrative and accounting or internal control procedures, including those relating to the management of risks, after expiry of the term granted to the effect to its correction by the competent authorities and provided that this does not constitute a very serious breach.
Article 82. Minor offences.
They are minor offences: a) referral, outside the deadlines set by law, information that institutions and their managers have to pay in accordance with the provisions of this law.
(b) the delay in the publication of information that, in accordance with the provisions of this law, has to be disseminated to partners, participants and the public in general.
(c) the keeping of the accounting according to criteria other than those established legally, as well as non-compliance with the rules on formulation of accounts or on how they must be used books and official records, when it should not qualify as serious infringement.
(d) excess investment limits established by regulations under the protection of article 30 and on which are established under the aegis of the provisions of articles 35 and 36, provided that the excess is of a transitory nature and does not exceed 20 per cent of the legal limits.
When referring to the coefficients laid down in articles 35 and 36 shall mean that an excess is temporary when the three following circumstances: 1st excess is not prolonged for more than five days in a period of accountability of information which will be established in the regulatory development.
2nd that excess does not occur more than once in the same period.
3rd this situation not reiterated in more than two periods in a year.
When referring to the coefficients established under cover of the provisions of article 30, is considered to be an excess transient if not prolonged more than six months within a period of one year.
Article 83. Prescription of infringements.
1. serious and very serious infringements barred five years and the slight two years.
2. the period of limitation of offences will start counting from the day that the offence had been committed. Infringements arising from an ongoing activity, the starting date of the computation will be the completion of activity or the last act with which the infringement is consumed.
3. the prescription is interrupted by the initiation, with knowledge of the data subject, the sanctioning procedure, resuming the limitation period if the disciplinary record remained paralyzed for three months for reasons not imputable to those against whom it is directed.
Section 3 sanctions article 84. Sanctions.
The offences referred to in the previous articles will result in the imposition of the sanctions provided for in this section.
Article 85. Sanctions for the Commission of offences very serious.
1 by the Commission of serious offences will be imposed to the infringing entity one or more of the following sanctions: a) fine for amount not less aware nor more than five times the gross profit obtained as a result of the acts or omissions which the infringement consists. In those cases in which the benefit derived from the infringement is not quantifiable, fine of up to 300,000 euros.
(b) excluding temporary special records, not less than two years, or more than five.
(c) revocation of the authorization with definitive exclusion of special records. Foreign IIC or community management companies, the sanction of revocation, if necessary, will be replaced by the prohibition of operating or be marketed in Spain.
(d) suspension or limitation of the type or volume of trades that the offender can be for a period not exceeding five years.
(e) public reprimand with publication in the "official bulletin of the State".
(f) forced substitution of the depositary of the IIC.
2 in addition to the penalty that corresponds to the entity by the Commission of very serious offences, it may impose one of the following sanctions to those who exercise management or direction on the same charges are liable for the infringement pursuant to article 89: a) fined each of them amounting to no more than 300,000 euros.
(b) suspension in the exercise of the charge for a period not exceeding three years.
(c) separation of the charge with disqualification for positions of management or direction in the same entity for a maximum period of five years.
(d) separation of the charge with disqualification to pursue charges of administration or direction in any other financial entity of the same nature period not exceeding 10 years.
3 in the case of imposition of the sanctions provided for in paragraphs b), c) or d) of the preceding paragraph, may be imposed simultaneously the sanction provided for in paragraph a).
Article 86. Penalties for the Commission of serious offences.
1. for the Commission of grave breaches one or more of the following sanctions shall be imposed to the infringing entity:
(a) public reprimand with publication in the "official bulletin of the State".
(b) fine amounting to up to both the gross profit obtained as a result of the acts or omissions in which consists the infringement. In those cases in which the benefit derived from the infringement is not quantifiable, fine of up to 150,000 euros.
(c) suspension or limitation of the type or volume of operations or activities that the offender can be made for a period not exceeding one year.
(d) temporary exclusion of special records, not less than one nor more than three year.
(2. the Commission of the offence referred to in paragraph k) Article 81.
3 in addition to the sanction that corresponds to the entity, by the Commission of serious offences may be imposed one of the following sanctions to those exercising administration or direction on the same charges are responsible for the same pursuant to article 89: to) public reprimand with publication in the "official bulletin of the State".
(b) private admonishment.
(c) fine on each of them amounting to no more than € 150,000.
(d) Suspension of all cargo management in the entity by term not superior to a year.
4 Notwithstanding the provisions of the preceding paragraph, in the case of imposition of the penalty provided for in paragraph d) thereof may be imposed simultaneously the sanction provided for in paragraph (c)).
Article 87. Penalties for the Commission of minor offences.
By the Commission of minor offences shall be liable to the entity one of the following penalties: to) private admonishment.
(b) fine for amount of up to 60,000 euros.
Article 88. Criteria for the determination of the penalties.
The penalties in each case by the Commission of very serious, serious or minor offences shall be determined in accordance with the following criteria: to) the nature and entity of the infringement.
(b) the gravity of the danger caused or damage caused.
(c) the profit, if any, as a result of the acts or omissions constituting the offence.
(d) the importance of the appropriate IIC, measured on the basis of the total amount of the assets or capital.
(e) the adverse consequences of the facts for the financial system or the economy.
f) circumstance of having proceeded to rectify the infringement on its own initiative.
(g) in the case of non-compliance with requirements already laid down in title II, the objective difficulties that may have crowded to achieve or maintain the legally required standards.
(h) the previous conduct of the entity in relation to the rules of order and discipline that affects you, assisting firm sanctions that had been imposed, during the last five years.
(i) the reiteration in the Commission of the offence.
Article 89. Responsibility of the organs of management and direction.
1. who exercise in the State positions of management or direction will be responsible for serious or very serious infringements when these are attributable to fraudulent or negligent conduct.
2 However as pointed out in the preceding paragraph, shall be considered responsible for serious or very serious offences committed by the IIC, the SGIIC or depositaries, who holds them charges of administration or management, except in the following cases: to) when who form part of colleges of Administration had not attended due to justified the corresponding meetings had voted against or vote relating to decisions or agreements that would have saved resulted in violations.
(b) when such infringements attributable exclusively to executive committees, CEOs, general managers or similar bodies, or other people with functions in the entity.
Article 90. Prescription of sanctions.
1. sanctions imposed for very serious misconduct shall be extinguished after three years, those imposed for serious misconduct after two years, and those imposed for minor misconduct a year.
2. the period of limitation will start counting from that that you purchase firmness the resolution by which the sanction is imposed.
Interrupt prescription initiation, with knowledge of the person concerned, of the procedure of execution, returning to spend the time if one is stalled for more than one month for reasons not attributable to the offender.
Article 91. Replacement of organs.
1. the body imposing the sanction may order the appointment, on a provisional basis, of the members that are required so that the College of Administration can adopt agreements, and designated the functions of those, in the event that, because of the number and class of persons affected by the sanctions of suspension or separation, it is strictly necessary to ensure continuity in the management of the entity. Such persons shall serve their charges until, by a competent authority for appointments are provided immediately and take the designated office or, where appropriate, until the period of suspension.
2. when in the case of a credit institution, the powers set forth in the preceding paragraph shall be exercised by the Bank of Spain.
Section 4 competences in the matter of article 92. Competent bodies.
(The competition for the instruction of them records to is refers this section and for the imposition of them corresponding sanctions is governed by them following rules: to) will be competent for the initiation e instruction of them records the CNMV.
(b) the imposition of sanctions by major and minor offences will correspond to the CNMV.
(c) the imposition of penalties for very serious offences corresponds to the Minister of economy on a proposal from the CNMV, previous report of his Advisory Committee, unless the imposition of sanction of revocation of authorization which will correspond to the Council of Ministers.
d) where the infringing entity is a credit institution, for the imposition of the corresponding sanction shall be mandatory prior report of the Bank of Spain.
5th rules of procedure article 93 section. Procedure.
In terms of sanctioning procedure it will apply the law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure, and its regulatory development, with specialties resulting from articles 20 to 24, 26 and 27 of the Law 26/1988, of July 29, discipline and intervention of the credit institutions.
Article 94. Enforceability.
1. resolutions that impose sanctions in accordance with this law shall be Executive when they put an end to the administrative procedure. Therein shall be taken, where appropriate, precise precautionary measures to ensure its effectiveness in both non-executive. Resolutions of the CNMV which put an end to the procedure shall be appealable to the Minister of economy in accordance with the law 30/1992, of 26 November, legal regime of public administrations and common administrative procedure.
2. the sanctions imposed in the past five years by the Commission of serious and very serious offences shall be entered in the corresponding administrative register held by the CNMV, that the public will have free access. Sanctions of suspension, separation and separation with disqualification, once they are Executive, shall be entered, in his case, in the mercantile registry.
3. the penalties for serious and very serious infringements will be published in the "official bulletin of the State" when they are firm administrative.
4. the Minister of economy, report of the CNMV, may be remitted, wholly or partly, or defer payment of the fines imposed on legal persons when they have become controlled by other shareholders after committing the offence, are falling in a bankruptcy proceeding or others give exceptional circumstances that make the fulfillment of the sanction on their own terms violates the equality or harms the general interest. The foregoing will not reach any sanctions imposed on those who occupied positions of management or direction in such legal persons when the offence was committed.
In any case there will be room for forgiveness or deferment if, in the event of transfer of shares of the entity sanctioned, has mediated price surpassed the bankruptcy situation, the situation could be tackled.
First additional provision. Special regime for certain investment services companies.
(((Them companies of services of investment that exclusively can provide them services of investment planned in the paragraph d) of the paragraph 1 of the article 63 and in them paragraphs d) and f) of the paragraph 2 of the article 63 of the law of the market of values, may obtain authorization for perform them activities planned in this law for them SGIIC, giving in this case to the authorization obtained under the Directive 93 / 22 / EEC , of the Council of 10 May 1993 on investment services in the securities field.
Provision additional second. Tax obligations of the representative appointed by the managing bodies operating on the free provision of services.
The agent designated in paragraph 7 of article 55 of this law must meet, on behalf of the Fund management company that operates in regime of free provision of services, with the following tax obligations:
1st practice retention or deposit to account and enter the amount in the Treasury as a result of transmissions or redemption of shares representing the capital or assets of collective investment institutions under the terms provided in the regulatory legislation of taxes on the income of the physical persons, on societies and on the income of non-residents.
2nd report to the Administration tax in relation to them operations that have by object actions or shares of them institutions of investment collective of conformity with it willing in the available additional fourth of the law 43 / 1995, of 27 of December, of the tax on societies and its normative of development.
Third additional provision. Change of name of the IIC.
The entry into force of this Act designations of the IIC in accordance to law 46/1984, of 26 December, regulation of collective investment institutions, they shall automatically be replaced by the equivalent designations provided for in this law.
Fourth additional provision. Protection of the clients in relation to the marketing of certain goods.
1. the provisions of this provision shall apply to the activity, which is carried out profesionalmen, carried out by any natural or legal person that consists of the formalization of a mandate to purchase and sale of goods or other contract that allows to implement a similar activity, perceiving the acquisition price or Commission and committing to disposal by the customer giving to this one, several or a single payment, the amount of your sale or an amount for the assumption that there is not a third party purchaser of the goods on the agreed date.
The goods referred to in the previous paragraph will be seals, artworks, antiques, in any case, and also those other goods liable to be the subject of such activity.
Those who develop the activity referred to in paragraph first of this paragraph may not perform activities reserved for credit institutions, investment service companies, collective investment institutions, insurance or reinsurance companies or entities to any entity registered in the records of the Bank of Spain, National Commission of the stock market and General Directorate of insurance and pension funds. Also, may include in its name or in advertising in reference to their activities, the adjective financial or collective, or any other misleading confusion with those reserved activities identified above.
Equally, they shall submit their accounting documents to audit carried out by a professional registered in the official register of accounts auditors.
Persons or entities subject to audit in accordance with this provision shall send copy of the audit report to the competent authorities in the field of consumption.
2. the contracts referred to in the preceding paragraph must be made at least in writing, which should reflect explicitly and clearly required the commitments entered into by the parties and the rights and obligations thereof in each operation, including all the necessary elements that determine the conditions of the contract. In any case, a copy of the contract duly dated and signed shall be given to the customer.
Before celebrate the contract, is must report to the customer of form clear and precise on the legislation applicable to the contract, on them provisions relating to them claims that can formulate is, systems of valuation of them goods that is marketed and mode of access to them referred systems, value rated of them products marketed, value minimum guaranteed in the market, as well as , in his case, guarantees external to the entity that develops the activity regulated in this provision that ensure the compliance of their obligations and them others ends that is determined of conformity with what regulations is set.
The information referred to in the previous paragraph, as well as the report of audit of accounts and contractual terms and conditions must be made available to customers in advance at the time that this assumes any obligation under the contract.
The above shall apply even if the contract has been concluded using a technique of communication at a distance. In this so-called, and with independence of the right of the customer to be informed, when not is possible transmit with advance them conditions contractual and it information prior to the celebration of the contract in support lasting, it put to disposal of the customer in said support is will meet immediately after the celebration of the contract.
In any moment of the relationship contractual the client will have right to get them conditions contractual in paper and to change them techniques of communication to distance used.
During the entire duration of the contractual relationship the customer shall be informed about amendments to the information initially supplied and also their contractual status.
3 constitute very serious violations of physical or legal persons who referred to in paragraph 1 of this provision, the following acts: a) the breach of the obligation to submit their accounting documents to audit accounts in accordance with the provisions of the third subparagraph of paragraph 1 of this provision.
(b) the breach of the obligations relating to the documentation of operations and the availability of client information, reports and contractual conditions referred to in the second paragraph of this provision.
4 the Commission of slight infringement constitutes serious infringement when during the five years prior to his Commission had been imposed on the offending sanction by the same type of infringement. This period will begin to compute from the moment in which the administrative procedure concerning the respective disciplinary procedure runs out.
5 constitute minor offences of the natural or legal persons referred to in paragraph 1 of this provision the breach of the obligations set out in paragraph b) of paragraph 3 of this provision that always concerned simple irregularities in the observance thereof which are carried out with merely occasional or isolated character.
6 by the Commission of violations serious mentioned in paragraph 3 of this provision shall be imposed on the offender one or more of the following sanctions: a) punishment of a fine amounting to not less than 15,000 euros to 600,000 euros, amount that may exceed up to five times the purchase price of the goods.
(b) public reprimand with publication in the official journal of the competent administration.
7 by the Commission of violations serious mentioned in paragraph 4 of this provision shall be imposed on the offender one or more of the following sanctions: a) sanction consisting of fine amounting to not less than 3,000 to 15,000 euros.
(b) private admonishment.
8. by the Commission of the minor offences referred to in paragraph 5 of this provision shall be liable to the offender, the sanctions from a warning or a fine of up to 3,000 euros.
9. the imposition of sanctions referred to in the preceding paragraphs of this provision shall be for the competent public administration by reason of the subject matter of protection of consumers and users.
Fifth additional provision.
Disposal additional fourth of this law is issued under cover of the provisions of article 149.1.1. a, 6.a, 8th and 13th of the Constitution.
First transitional provision. Transitional regime of regulatory development.
The regulations issued under cover of law 46/1984, of 26 December, regulating collective investment institutions, will remain in effect while they is not contrary to this Act, until the entry into force of the regulations issued under the qualifications contained therein.
Second transitional provision. Transitional regime of fixed capital investment companies.
1 fixed capital investment companies registered in the administrative register of the CNMV to the entry into force of this law, shall become SICAV, adapting their statutes and its activity to provisions of this law, in the period of two years from the entry into force of the same.
2. in the case of not to proceed with the adaptation referred to in the preceding paragraph will be revoked the authorization cancelled ex officio the administrative registration of the CNMV.
3. until the transformation occurs or, where appropriate, the revocation of the administrative authorization provided for in paragraphs 1 and 2 above, the societies of fixed capital investment will be taxed in accordance with the provisions of articles 26 and 71 of law 43/1995, of 27 December, the corporate income tax, according to the wording effective until December 31, 2003. The transformation or, where appropriate, the revocation of the administrative authorization will have the effects provided for in paragraph d) of paragraph 2 of article 24 of the Act.
Also, continue to remain applicable to the societies of fixed capital investment tax benefits contained in law 46/1984, of 26 December, regulating collective investment institutions, relating to the tax on capital transfers and documented legal acts, until they come to their transformation or revoked your authorization.
Third transitional provision. Transitional arrangements of the amendments of the statutes of the management companies.
During the year following the entry into force of this law, shall be extended by six months the deadline for the approval of the modification of the bylaws of the SGIIC authorised before the entry into force of this law, when such modification is intended to include in its corporate purpose the activity indicated in paragraph a) of paragraph 1 or in paragraphs a) and b) of paragraph 2 of article 40 of this law.
Fourth transitional provision. Period of adaptation to the new legislation.
The IIC approved before the entry into force of this law will have a year, since the entry into force of this law, to adapt its statutes and management regulations to the new regulation.
Fifth transitional provision. Transformation of IIC IIC existing compartments or in compartments and creation of classes of shares or series of actions.
The IIC approved prior to the entry into force of this law may become IIC by compartments, in compartments of other IIC, or you can create new classes of shares or series of actions. When it intervenes a mutual fund already authorized, must grant the partners the right of separation in the terms provided for in this law.
Available to transient sixth. Exclusion of contribution in the IIC corporate-shaped bag.
They will not be subject to the obligation to make a public offer for acquisition of securities in accordance with article 34 of the law of securities, the IIC corporate form that the entry into force of this Act are listed on stock exchange and whose corporate bodies agree exclusion of quotation of the shares of its capital stock.
Provision repealing only.
The following provisions are hereby repealed: a) the law 46/1984, of 26 December, regulatory institutions for collective investment, b) additional provision second of law 37/1998, of 16 November, reform of the law 24/1988, of 28 July, the stock market, c) No. 8 of the letter C) of section I of article 45 of the revised text of the law on property transfer and stamp tax approved by Royal Legislative Decree 1/1993, 24 September.
First final provision. Addition of a new paragraph 19 in) (B) of paragraph I of article 45 ("tax benefits") of the consolidated text of the law of tax on capital transfers and documented legal acts, approved by Royal Legislative Decree 1/1993, 24 September.
Added a new paragraph 19 to the letter B) of paragraph I of article 45 of the revised text of conveyances and tax stamp, approved by Royal Legislative Decree 1/1993, 24 September, which will be drafted in the following way: "1. the operations of Constitution, increase of capital, mergers, and spin-offs of variable capital investment companies regulated by the law of collective investment institutions" as well as non-monetary contributions to such entities, they will remain exempt in the form of corporate operations of transfer and stamp tax.
2 financial investment funds regulated by the law mentioned above shall apply to conveyances and documented legal acts tax exemption to the same extent laid down in the previous paragraph.
3. companies and real estate investment funds regulated in the law cited above that, with the character of collective investment institutions, relate to social exclusive investment in any kind of real estate of urban nature for its lease and, in addition, dwellings, student dormitories and residences for the elderly, in the terms established by law , jointly, represent at least 50 per cent of the total of the asset will have the same tax regime provided for in the two preceding paragraphs.
In the same way, these institutions enjoy a bonus of 95 per cent property transfer and stamp tax for the acquisition of housing to the lease, without prejudice to the conditions that may be established by regulation.
The application of the taxation referred to in this paragraph will require real estate that integrate the assets of the companies and real estate investment funds are not paid until not after three years from its acquisition, unless, exceptionally, mediate express authorisation from the National Commission of the stock market."
Second final provision. Modification of the paragraph 5 of the article 26 ("the type of assessment") of the law 43 / 1995, of 27 of December, of the tax on companies.
Is gives the following drafting to the paragraph 5 of the article 26 of the law 43 / 1995, of the tax on societies: "(5. will be taxed to the type of the one percent: to) them societies of investment of capital variable regulated by the law of institutions of investment collective, whenever the number of shareholders required is as minimum the planned in the paragraph fourth of the article ninth of such law."
(b) investment funds of a financial nature provided for in the law mentioned above, provided that the required number of participants is at least that laid down in the fourth paragraph of article 5 of this law.
(c) real estate investment companies and real estate investment funds regulated by this law, provided that the required number of shareholders or unit-holders is at least in the fourth of the five articles sections and nine of the Act and that, with the character of collective investment institutions not financial relate to exclusive investment in any kind of property for lease-urban nature and , also, them housing, them residences student and the residences of the third age, in them terms that regulations is established, represent jointly, at least, the 50 percent of the total of the active.
The application of them types of assessment planned in this paragraph will require that them goods estate that integrate the active of them institutions of investment collective to is concerns the paragraph previous not is alienated until not have elapsed three years from its acquisition, unless, with character exceptional, mediate authorization express of the Commission national of the market of values.
(d) the Fund's regulation of public character of the market mortgage, laid down in article 25 of the law 2/1981, dated March 25, of regulation of the mortgage market."
Third final provision. Modification of article 71 ("taxation of the IIC") of law 43/1995, of 27 December, the corporate income tax.
The following wording is given to article 71 of law 43/1995, 27 December: "1. collective investment institutions regulated by the law of institutions for collective investment, with the exception of the subject to the general tax rate, shall not be entitled to deduction of dues or the exemption of income tax base to avoid international double taxation." In no event will be application of heritage societies regime provided for in articles 75 to 77 of this Act.
2. when the amount of fractionated payments, withholdings and payments on account, practiced on the income exceeds the amount of the total tax, the tax administration shall return, ex officio, the excess."
Fourth final provision. Competence titles.
This law is issued on the basis of competence certificates referred to in article 149.1.6. 2nd and 11th of the Spanish Constitution.
Available to finish fifth. Empowerment for development regulatory.
It empowers the Government to dictate how many provisions are necessary for the development and implementation of this law.
Sixth final provision. Entry in force.
1. this law shall enter into force three months after its publication in the "official bulletin of the State".
2. without prejudice to the provisions of the preceding paragraph, the amendments of law 43/1995, of 27 December, corporation tax, picked in the second and third final provisions of this law shall apply to the tax periods beginning on January 1, 2004.
Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this law.
Madrid, November 4, 2003.
JUAN CARLOS R.
The Prime Minister, JOSÉ MARÍA AZNAR LÓPEZ