Royal Decree 1816/1991 of 20 December on Economic Transactions with the Exterior established in Article 4 the requirement of prior authorization for the physical export of metallic coins, bank notes and cheques Bank of the bearer by an amount of more than 5,000,000 pesetas.

Now, the judgment of the Court of Justice of the European Communities of 23 February 1995 (Joined Cases C-358/93 and C-416/93) and the judgment of the Court of Justice of the European Communities of 14 December 1995 1995 (Joined cases C-1 6 3/94, C-165/94 and C-250/94) have declared the requirement of the abovementioned authorization to be contrary to Community law. Accordingly, it seems appropriate to amend the said Royal Decree in order to fully adapt it to the interpretation of the European Union's rules on the freedom of movement of capital, by deleting the abovementioned requirement for prior authorisation and replacing such a requirement with the mere declaration.

Moreover, the elimination of the requirement of prior authorization implies the disappearance of one of the elements of the criminal type specified in Article 6 of Law 40/1979 of 10 December, as amended by the Organic Law 10/1983 of 16 August, so that the omission of the obligation of prior declaration, which is now required under Article 10 of the Law 40/1979, constitutes an alleged administrative infringement.

The previous amendment does not imply, however, that the existing instruments in our legal order in the field of public order are not followed. Thus, the need to ensure not only the liability arising from the assessment of the said infringement, but any other related to the possible non-lawful origin or destination of the funds exported without prior declaration, It is necessary to recall the current precautionary measures on this type of operations as provided for in Article 15.2 of Law 40/1979.

In its virtue, on the proposal of the Second Vice President of the Government and Minister of Economy and Finance, in agreement with the Council of State and after deliberation of the Council of Ministers at its meeting of July 5, 1996,

D I S P O N G O:

Article first.

Article 4 of Royal Decree 1816/1991 of 20 December 1991 on Economic Transactions with the Exterior, as amended by Royal Decree 42/1993 of 15 January 1993, amending Royal Decree 1816/1991 of 20 December 1991, December, on Economic Transactions with the Exterior, is worded as follows:

" 1. The exit of the national territory of metallic currency, bank notes and bank cheques to the bearer, are encrypted in pesetas or foreign currency, is free. However, this exit shall be subject to a declaration where the amount exceeds 1,000,000 pesetas per person and per trip.

2. The introduction into national territory of metallic currency, bank notes or any other means of payment or instruments of rotation or credit, encrypted in pesetas or foreign currency, is free. However, non-residents who intend to enter into Spanish territory metallic coins, bank notes or bank notes to the bearer, encrypted in pesetas or in foreign currency, in the amount of more than 1,000,000 pesetas to carry out with them transactions which, in accordance with the rules on foreign transactions or foreign investments in Spain, require the accreditation of the origin of the said means of payment, they shall be obliged to declare them in the form to be determined.

3. The rules governing the implementation of this Royal Decree shall govern the procedure applicable to the declarations referred to in the preceding paragraphs. '

Article 2.

Article 7, paragraph 2, of Royal Decree 1816/1991 of 20 December 1991 on Economic Transactions with the Exterior, as amended by Royal Decree 42/1993 of 15 January 1993, is worded as follows:

" 2. The provisions of the foregoing paragraph do not prevent the fulfilment of the provisions of Article 4 of this Royal Decree, in respect of the obligation of declaration for the departure of the national territory carrying such means of payment by amount above the point. "

Article 3.

Article 10 of Royal Decree 1816/1991 of 20 December on Economic Transactions with the Exterior is worded as follows:

" 1. Failure to comply with the declaration obligations referred to in Articles 4, 5, 6, 7 and 9 of this Royal Decree shall constitute an infringement of the provisions of Law 40/1979 of 10 December 1979.

2. Pursuant to Article 15 (2) of Law 40/1979 of 10 December, when the customs services of the national territory of the metal currency, bank notes and bank cheques are discovered to the carrier by Customs officials may, without having made the mandatory declaration, amount to more than 1,000,000 pesetas, ciphers in pesetas or foreign currency, customs officials may intervene in a cautious manner. In such cases, the initiation agreement of the sanctioning procedure shall take a decision on the grounds for the lifting, in whole or in part, of the precautionary measures taken or, where appropriate, the maintenance of such measures for the purposes of provided for in Article 15.1 of Law 40/1979.

The provisions of this paragraph shall be without prejudice to any action taken in the event of the alleged commission of criminal activities being assessed by the Customs Services.

3. The provisions governing the duty to cooperate with the Administration of the "Registered Entities" shall be considered as rules of ordination and discipline for the purposes provided for in Article 1 of Law 26/1988 of 29 July on Discipline and Intervention by the Credit Entities, and their infringement will be sanctioned in the terms established in that Law and by the competent bodies and authorities according to it, without prejudice to the application to them of the provisions of the Law 40/1979 of 10 December. '

Article 4.

Article 12 of Royal Decree 1816/1991 of 20 December on Economic Transactions with the Exterior is worded as follows:

" For the imposition of administrative penalties, the provisions of Royal Decree 1392/1993 of 4 August 1993, which regulates the procedure for the sanctioning of administrative violations in the field of control of the changes. "

Article 5.

Article 13 (3) of Royal Decree 1816/1991 of 20 December 1991 on Economic Transactions with the Exterior is worded as follows:

" 3. The resolution terminating the sanctioning procedure shall agree on the matter of the guarantees provided and the precautionary measures taken. '

Single additional disposition.

The Prosecutor will inform the Directorate General of Commercial Policy and Foreign Investments of the Ministry of Economy and Finance of the judicial decisions regarding dismissal or file that are dictated with respect to those conduct. (a) to the effect of the administrative responsibilities to which there would be, where appropriate, the administrative responsibilities to which there is a criminal offence under the present Royal Decree.

Single end disposition.

This Royal Decree shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Given in Madrid to July 5, 1996.

JOHN CARLOS R.

The Second Vice President of the Government

and Minister of Economy and Finance,

RODRIGO DE RATO Y FIGAREDO