Key Benefits:
JOHN CARLOS I
KING OF SPAIN
To all who present it and understand it.
Sabed: That the General Courts have approved and I come to sanction the following Law:
EXPLANATORY STATEMENT
This Law transfers to Spanish law the Second Banking Coordination Directive (89/646/EEC), a key part of the creation within the European Union of the Single Financial Market. To this end, it declares free the opening in Spain of branches of credit institutions from other Member States of the European Union, establishing a system of mere notification to the Banco de España and its communication with the supervisory authority of the country of origin of the entity. It also regulates the procedures for Spanish credit institutions to be able to operate, through branches, in the other countries of the European Union.
The Law establishes a strict regime of administrative control of significant shareholdings in credit institutions, reflecting the importance that the Community rules attribute to identity, good repute and solvency of the main shareholders of the shareholders. The Law also imposes on our right the provisions of the Directive relating to the strictly reserved nature of the information obtained by the authorities in the exercise of supervisory functions of credit institutions.
The Law concludes with a large number of additional provisions, which introduce different technical improvements in the regulations applicable to certain markets and financial institutions (for example, the one relating to the capital-riesgo; or the guarantee scheme in the official futures and options markets). Also, in some of these additional provisions the sanctioning regime provided for in Law 24/1988, of the Securities Market, is updated and is established with sufficient legal status to be more appropriate for traders, as well as for the valuation companies and credit institutions that have their own assessment services.
Finally, in the derogatory provision, paragraph 1 is highlighted, which completes the reform initiated under Law 25/1991 of 21 November establishing a new organization of the public-capital credit institutions. state, expressly repealing the chapter of the former Official Credit Act concerning official credit institutions.
Article first. For the addition of a new Title V to Law 26/1988, of July 29, on Discipline and Intervention of Credit Entities.
The following Title V is added to Law 26/1988, of July 29, on Discipline and Intervention of Credit Entities:
" TITLE V
Exercise of credit activity in the Member States of the European Community
CHAPTER I
Opening of branches and freedom to provide services in other Member States of the European Community by Spanish credit institutions
Article 49.
1. Where a Spanish credit institution intends to open a branch in another Member State of the European Community, it must first apply to the Banco de España. It shall accompany that request, at least the following information:
(a) A programme of activities indicating, in particular, the operations it intends to carry out and the structure of the organisation of the branch.
b) The name and history of the managers responsible for the branch.
2. The Bank of Spain shall, by means of a reasoned decision, decide within a maximum period of three months from the receipt of all information. Unless the programme of activities presented includes activities not authorised by the institution, or the Banco de España has reason to doubt, in view of the project in question, of the appropriateness of the administrative structures or of the financial situation of the credit institution, the Bank shall approve the application. The absence of a resolution in time will amount to a refusal of the claim.
3. Decisions to be taken by the Bank of Spain in the exercise of the functions provided for in the preceding paragraphs and in Titles V and VI shall be subject to regular recourse to the Minister for Economic Affairs and Finance.
Article 50.
When a Spanish credit institution wishes to exercise for the first time, under the freedom to provide services, some kind of activity in another Member State must inform the Bank of Spain. Within a maximum of one month from receipt of such communication, the Banco de España shall transfer it to the supervisory authority of that Member State.
The administrative regime provided for in Chapter I of Title V of Law 26/1988 of 29 July of Discipline and Intervention of Credit Entities may be applied, with the adjustments that are regulated, the opening of branches or the freedom to provide services by Spanish financial establishments which comply with the arrangements provided for in Article 55.
The adaptation shall take into account the specific legislation of those establishments, as well as, where appropriate, the competence of the non-banking supervisory authorities.
CHAPTER II
Opening of branches and freedom to provide services in Spain by credit institutions of another Member State of the European Community
Article 51.
1. Credit institutions authorised in another Member State of the European Community may carry out in Spain, either by opening a branch or under the freedom to provide services, the activities referred to in Article 52. For this purpose it is essential that the authorisation, the statutes and the legal status of the entity enable it to carry out the activities it intends to carry out.
2. The entities referred to in the preceding paragraph shall respect in the exercise of their activity in Spain the provisions laid down for reasons of general interest, whether they are state, regional or local, or of ordination and discipline of the credit institutions which, where applicable, are applicable.
Item 52.
The activities referred to in the previous article and which benefit from mutual recognition within the European Community are as follows:
(a) The collection of deposits or other repayable funds as provided for in the first article of the Royal Legislative Decree 1298/1986 of 28 June on the adjustment of the current law on credit institutions of the European Communities.
b) Loan and credit, including consumer credit, mortgage credit and commercial transaction financing.
c) The "factoring" with or without resource.
d) Financial lease.
e) Payment transactions, including, inter alia, payment and transfer services.
f) The issue and management of means of payment, such as credit cards, travel checks or letters of credit.
g) The granting of guarantees and guarantees and subscription of similar commitments.
h) Intermediation in interbank markets.
(i) own-account transactions or their clients ' own-account transactions: marketable securities, money market instruments or changes, financial instruments in the term, options and financial futures and swaps financial. In order to carry out such operations, Community credit institutions may be members of the corresponding organised markets established in Spain, provided that this is permitted by the rules governing them.
j) Participation in securities issues and mediation by direct or indirect account of the issuer in its placement, and underwriting of the subscription of emissions.
k) The advice and provision of services to companies in the following subjects: Capital structure, business strategy, acquisitions, mergers and similar subjects.
l) The management of assets and advice to their holders.
ll) The performance, for the account of its holders as the depositaries of securities represented in the form of securities, or as managers of securities represented in notes.
m) Performing business reports.
n) The hire of safes.
Article 53.
1. The opening in Spain of branches of credit institutions authorised in another Member State of the European Community shall not require prior authorisation or specific allocation of resources.
2. Received by the Bank of Spain a communication from the supervisory authority of the credit institution, containing at least the information provided for in Article 49 (1), and the other requirements which it regulates determine, the branch shall be entered in the relevant Register of credit institutions. The Bank of Spain may set a time limit of not more than two months from the receipt of the supervisory authority's communication for the purpose of initiating the activities of the branch in order to organise its supervision. It may also indicate, where appropriate, the conditions, in which for reasons of general interest, it shall carry out its activity in Spain.
3. The method of proceeding shall be determined in the event that the credit institution intends to make changes to the information communicated to the Banco de España.
Article 54.
Credit institutions authorized in another Member State of the European Community may initiate their activity in Spain under the freedom to provide services as soon as the Banco de España receives a communication from the Bank of Spain. supervisory authority indicating which activities referred to in Article 52 are intended to be carried out in Spain. That scheme shall also apply where the credit institution intends to initiate for the first time in Spain any other activity referred to in that Article.
Article 55.
1. The administrative arrangements provided for in this Chapter, with the regulatory development to be established, shall apply to the opening of branches or the freedom to provide services in Spain by authorised or domiciled financial establishments. in another Member State in the following terms:
1. Financial establishment consideration shall be given to non-credit institutions whose principal activity consists of acquiring units in other entities or exercising one or more of the activities which are listed in Article 52, except as provided for in paragraphs (a), (m) and (n).
2. These financial institutions shall be controlled by one or more credit institutions having their same nationality and who also hold 90 per 100 or more of the voting rights.
3. The financial institutions must be subject to a legal regime enabling them to carry out the activities they intend to carry out in Spain and must effectively carry out such activities in the State where they are located. have their address.
4. The dominant credit institutions or entities must have demonstrated to the satisfaction of their supervisory authorities that they conduct a prudent management of the financial institutions and, with the consent of such institutions, authorities, having declared themselves jointly and severally on the undertakings given by those establishments.
5. The financial institutions and their dominant credit institutions shall be subject to supervision on a consolidated basis according to the applicable prudential legal criteria.
Among the information referred to by the supervisory authority of the financial establishment shall be a certification certifying that all the requirements laid down in this Article are met.
2. The regulatory development provided for in the preceding paragraph shall take into account the specific legislation of those establishments, as well as, where appropriate, the powers of the non-banking supervisory authorities. "
Article 2. For the addition of a new Title VI to Law 26/1988, of July 29, on discipline and intervention of the credit institutions.
It is added to Law 26/1988, of July 29, on Discipline and Intervention of Credit Entities the following Title VI:
" TITLE VI
Significant shareholdings scheme
Article 56.
1. For the purposes of this Law, a significant participation in a Spanish credit institution shall be understood to be such that it reaches, directly or indirectly, at least 5 per 100 of the capital or voting rights of the entity.
It will also have the consideration of significant participation, which, without reaching the percentage indicated, will allow to exert a notable influence on the entity. It may be determined, in the light of the characteristics of the different types of credit institution, to be regulated when it is necessary to assume that a natural or legal person may exercise such significant influence.
2. The provisions of this Title for credit institutions shall be without prejudice to the application of the rules on takeover bids and information on significant holdings contained in Law 24/1988 of 28 July 1988. Stock Market.
Article 57.
1. Any natural or legal person intending to acquire, directly or indirectly, a significant participation in a credit institution shall inform the Bank of Spain in advance, indicating the amount of such participation, the terms and the conditions of the acquisition and the maximum period in which the transaction is to be performed.
2. It shall also inform the Bank of Spain in advance, in the terms referred to in paragraph 1, who intends to increase, directly or indirectly, its significant participation in such a way that its share of capital or voting rights reaches or make any of the following percentages: 10 per 100, 15 per 100, 20 per 100, 25 per 100, 33 per 100, 40 per 100, 50 per 100, 66 per 100 or 75 per 100. In any event, this obligation shall also be enforceable to the person who, by virtue of the proposed acquisition, is able to control the credit institution.
3. It is understood that there is a control relationship for the purposes of this Title provided that it is one of the assumptions provided for in Article 4 of the Law 24/1988, of July 28, of the Stock Market.
Article 58.
1. The Bank of Spain shall have a maximum period of three months, from the date on which it has been informed, in order to oppose the proposed acquisition. The opposition may be founded on not considering the acquirer as appropriate, as provided for in Article 43 (5).
If the Bank does not rule in that period, it shall be deemed to accept the claim. Where there is no opposition from the Banco de España, the Banco de España may fix a maximum period of time other than the one requested for the acquisition.
2. The Banco de España shall consult the competent higher authority when, as a result of the acquisition, the credit institution is to be subject to any of the control procedures provided for in Article 43 (2
.3. The Bank of Spain shall suspend its decision or limit its effects if the entity is to be controlled by an entity authorised in a non-Community State and the circumstances provided for in paragraph 3 of the first subparagraph shall be subject to the acquisition of the entity. Article 43.
Article 59.
When one of the acquisitions of the regulated entities is carried out in Article 57 without having previously informed the Banco de España, or, having informed it, the three months provided for in the article have not yet elapsed. above, or if you mediate the express opposition of the Bank, the following effects will occur:
(a) In any event and automatically, no political rights may be exercised corresponding to the shares acquired irregularly. If, however, they are to be exercised, the corresponding votes shall be void and the agreements shall be contested in court, as provided for in Section 2. of Chapter V of the Royal Decree 1564/1989 of 22 December 1989, approving the recast of the Law of Companies of Anonymous, with the Bank of Spain entitled to the effect.
(b) If necessary, the intervention of the entity or the replacement of its administrators, as provided for in Title III, shall be agreed.
In addition, the penalties provided for in Title I of this Law may be imposed.
Article 60.
Any natural or legal person who, directly or indirectly, intends to cease to have a significant participation in a credit institution; who intends to reduce his or her participation in such a way that it transfers some of the levels provided for in paragraph 2 of Article 57; or which, by virtue of the intended disposal, may lose control of the institution, shall inform the Bank of Spain in advance, indicating the amount of the proposed operation and the time limit laid down for carry it out.
Failure to comply with this duty of information shall be sanctioned as provided for in Title I.
Article 61.
1. Credit institutions shall report to the Banco de España, as soon as they are aware of this, the acquisitions or disposals of holdings in their capital which exceed one of the levels referred to in Articles 57 and 60.
2. Without prejudice to the above paragraph, credit institutions shall report to the Banco de España, in the form and on a regular basis, on the composition of its shareholding or the changes it has made. in the same one occur. Such information shall necessarily include the information relating to the participation of other financial institutions in their capital, irrespective of the amount.
Article 62.
Where there are substantiated and substantiated reasons that the influence exercised by persons holding a significant share in a credit institution may result to the detriment of sound and prudent management of The Minister for Economic Affairs and Finance, on a proposal from the Bank of Spain, may adopt some or some of the following measures:
(a) Those provided for in paragraphs (a) and (b) of Article 59, while the suspension of voting rights may not exceed three years.
b) By way of exception, revocation of the authorization.
In addition, sanctions may be imposed as provided for in Title I of this Law. "
Article 3. Amending certain provisions of Law 26/1988 of 29 July on Discipline and Intervention of Credit Entities.
The following amendments are introduced in Law 26/1988 of July 29 on Discipline and Intervention of Credit Entities:
First. A second subparagraph is added to Article 1 (1) with the following content:
" This liability shall also be applicable to natural or legal persons who hold significant participation as provided for in Title VI of this Law, and to those who, having Spanish nationality, control a credit institution of another Member State of the European Community. The responsibility will also be met by those who have management or management positions in the responsible entities. "
Second. The following changes are introduced in Article 4:
1. The letter (l) becomes letter m).
2. The following paragraphs are incorporated:
"l) Acquiring significant or increasing stakes in violation of the provisions of Title VI of this Law."
"(ll) jeopardize the sound and prudent management of a credit institution through the influence exercised by the holder of a significant participation, as provided for in Article 62 of this Law."
Third. A final paragraph is added to Article 9, with the following content:
" In the case of branches of credit institutions authorised in another Member State of the European Community, the penalty for revoking the authorisation of the institution shall be understood as being replaced by the prohibition on the initiation of new operations in the Spanish territory. '
Fourth. A new Article 13a is inserted in Chapter III of Title I, with the following wording:
" Article 13a.
Regardless of the sanctions which, if any, proceed in accordance with the foregoing Articles of this Chapter, serious and very serious violations committed by those natural or legal persons and administration or management referred to in the second subparagraph of Article 1 (1) of this Law shall be subject to the penalties of fine and disablement as set out in Articles 12 and 13, and may be imposed both simultaneously. "
Fifth. A new Article 23a is inserted in Chapter V of Title I, with the following wording:
" Article 23a.
The opening of files, when it affects branches of credit institutions authorised in another State of the European Community, shall be communicated to its supervisory authorities, in order to ensure that, without prejudice to the proceed under this Law to take the measures that they consider appropriate for the institution to terminate its infringing action or to avoid its reiteration in the future. The Bank of Spain shall notify the decision taken to the said authorities and, where it involves a penalty for serious or very serious infringement of the Commission of the European Community. "
Sixth. The following point shall be added at the beginning of Article 28 (1
:"Without prejudice to Title V,."
Seventh. A new article is added under Title II with the following wording:
" Article 30a.
1. Credit institutions may freely open new offices on national territory. This is without prejudice to the system of prior authorization to which they may be subject in accordance with the provisions of Article 11 (3) of Law 13/1985 of 25 May 1985 on limitations which may be laid down in a regulation the opening of offices during the first years of the activity of the Spanish credit institutions or branches of entities authorised in States other than members of the European Community, and of the restrictions which may, where appropriate, be contain the social statutes of the entities.
2. Regulations may lay down the requirements to be met by those who act as agents in Spain as agents of credit institutions, and the conditions to which they are subject in the course of their business.
3. The establishment of branches or the provision of services without a branch in the Member States of the European Community shall be subject to the arrangements provided for in Title V of this Law.
4. The establishment of branches in States which are not members of the European Community shall require the authorization of the Banco de España in the form that it is determined to regulate. The absence of a decision within the prescribed period shall mean a refusal of the claim. The provision of services without a branch shall be communicated to the Banco de España.
5. The creation by a credit institution or a group of Spanish credit institutions of a foreign credit institution, or the acquisition of a holding in an existing entity, shall also be subject to prior authorisation by the Bank of Spain. where the foreign credit institution is to be incorporated or is domiciled in a State which is not a member of the European Community. The information to be included in the application will be determined.
The Banco de España, within three months from the receipt of all the required information, will resolve the request. The absence of a decision within that period shall entail the refusal of the claim. It may also refuse to do so when, taking into account the financial situation of the credit institution or its management capacity, it considers that the project may adversely affect it; whereas, having regard to the location and characteristics of the project, it cannot ensure the effective supervision of the group, on a consolidated basis, by the Banco de España; or where the activity of the dominated entity is not subject to effective control by a national supervisory authority. '
Eighth. The following wording is given to Article 43:
" Article 43.
1. The Minister for Economic Affairs and Finance, after the Bank of Spain's report, will be responsible for authorising the creation of credit institutions, as well as the establishment in Spain of branches of credit institutions not authorised in a Member State. European Community. The registration in the corresponding registers, as well as the management of these, will be the responsibility of the Banco de España.
2. The authorisation of a credit institution shall be subject to prior consultation close to the supervisory authority of the relevant Member State of the European Community when any of the following circumstances arise:
(a) That the new entity is to be controlled by a credit institution authorised in that State.
(b) Your control is to be exercised by the dominant entity of a credit institution authorised in that State.
(c) Your control shall be exercised by the same natural or legal persons who control a credit institution authorised in that Member State.
An entity shall be understood to be controlled by another entity when any of the assumptions referred to in Article 4 of the Law 24/1988 of 28 July of the Stock Market.
3. In the case of the creation of credit institutions which are to be directly or indirectly controlled by one or more entities authorised or domiciled in a non-Member State of the European Community, the granting of the authorisation, refusal or limitation of its effects, where it would have been notified to Spain, in accordance with Article 9 of the Second Council Directive of 15 December 1989, a decision adopted by the Community verify that the Community credit institutions do not benefit in that State from a treatment offered by the the same conditions of competition as their national entities and that the conditions for effective market access are not met.
4. The authorisation for the establishment of a credit institution shall be refused where it has the minimum capital required, a good administrative and accounting organisation, or adequate internal control procedures to ensure sound management and prudent of the institution; where its managers and directors are not of the required commercial and professional repute; or when it fails to comply with the other requirements which they regulate in order to obtain it.
5. Authorisation shall also be refused if, taking into account the need to ensure the sound and prudent management of the institution, the suitability of the shareholders to have a significant holding, as defined in paragraph 1, is not considered appropriate. Article 56 of this Law.
Among other factors, suitability will be appreciated based on:
a) The commercial and professional honorability of shareholders. This good repute shall be presumed when the shareholders are public administrations or entities dependent on them.
(b) The assets of such shareholders to meet the commitments made.
c) The lack of transparency in the structure of the group to which the entity may eventually belong, or the existence of serious difficulties in inspecting or obtaining the necessary information on the development of its activities.
(d) The possibility of the institution being inappropriately exposed to the risk of non-financial activities of its promoters; or where, in the case of financial activities, the institution's stability or control may be be affected by the high risk of those. "
Ninth. A new Article 43a is incorporated with the following content:
" Article 43a.
1. The Bank of Spain shall be responsible for the control and inspection of credit institutions, extending this competence to any office or centre within or outside the national territory and, in so far as it complies with the tasks entrusted to it. the Banco de España so requires, the companies that are integrated into the group of the affected. It shall also be for the supervision of the consolidable groups of credit institutions as provided for in Law 13/1992 of 1 June on Own Resources and supervision on a consolidated basis of the Financial Institutions.
2. In the case of branches of credit institutions authorised in other Member States of the European Community, the Banco de España may inspect them:
(a) In the exercise of its own supervisory powers, in particular as regards the liquidity of the branch, the execution of monetary policy and the proper functioning of the payment system.
(b) To cooperate with the supervisory authorities of the Member State where the institution is authorised, in particular in the monitoring of risks arising from operations carried out on the Spanish financial markets.
c) To control that branch activity is performed in accordance with rules of general interest.
3. For the proper performance of its tasks, the Banco de España may collect from the branches of the Community credit institutions the same information as it requires from the Spanish authorities. In accordance with Article 48 (1), the extent of their accounting obligations and the information to be provided for statistical purposes shall be determined.
4. The administrative arrangements provided for in this Law for branches of Community credit institutions shall be applicable, with the adjustments to be laid down in regulation, to branches of the financial institutions provided for in the Article 55 of this Law.
5. The Bank of Spain's inspection may also reach the Spanish persons controlling credit institutions from other Member States of the European Community, within the framework of the cooperation with the authorities responsible for the supervision of such credit institutions.
6. It will also be the responsibility of the Banco de España, without prejudice to the powers of the National Securities Market Commission, the control and inspection of the application of Law 2/1981, on the Regulation of the Mortgage Market.
7. The decisions to be taken by the Bank of Spain in the performance of the tasks referred to in the preceding paragraphs shall be subject to appeal to the Minister for Economic Affairs and Finance.
8. The provisions of this Article and the foregoing Article shall be without prejudice to the powers conferred on the Autonomous Communities by the Autonomous Communities and to the provisions of the agreements between the Bank of Spain and the Autonomous Communities referred to in that Article. Additional provision, first paragraph 3 of Law 31/1985 of 2 August, on Governing Bodies of Savings Banks. In any event, the registration in the corresponding registers of the Banco de España and, where appropriate, of the competent Autonomous Community shall be indispensable for the entities referred to in this Article to be able to carry out their activities. "
Article 4. Amending certain provisions of the Law on Banking Management of 31 December 1946.
The following amendments are made to the Banking Management Act of December 31, 1946.
First. Paragraph 2 of Article 40 is replaced by the following:
" In the case of branches of credit institutions in other Member States of the European Community, such discipline shall not be subject to those aspects of the rules of organisation and discipline which have been the subject of harmonisation. In the framework of the prudential supervision of credit institutions,
CommunitySecond. Article 57a (2) is replaced by the following:
" The Council of Ministers, on the proposal of the Minister of Economy and Finance, will be competent to agree on the revocation. However, jurisdiction shall fall within the jurisdiction of the latter in cases of resignation and revocation of the authorisation of a branch of a foreign entity for the withdrawal of the authorisation by its supervisory authority. '
Third. Article 57a (3) is replaced by the following:
" When the Banco de España becomes aware that a credit institution of another Member State of the European Community operating in Spain has been revoked its authorisation, it shall immediately agree on the relevant measures for the entity does not initiate new activities, as well as to safeguard the interests of depositors. "
Article 5. The following amendments are made to the Royal Decree of 28 June 1986 on the adaptation of the existing law on credit institutions to that of the European Communities:
First. Article 1 (2) is amended as
:" 2. Credit institutions are conceptualized:
a) The Official Credit Institute.
b) Banks.
c) The Savings Banks and the Spanish Confederation of Savings Banks.
d) Credit Cooperatives.
They shall also retain the status of credit institutions until 31 December 1996, the mortgage credit companies, the financing institutions, the leasing companies and the companies. Money market mediators. "
Second. The following wording is given to Article 6 of the aforementioned Royal Legislative Decree:
" Article 6.
1. In the exercise of its functions of inspection of credit institutions, the Banco de España shall collaborate with the authorities entrusted with similar functions in foreign countries, and may communicate information relating to the management, management and ownership of these establishments, as well as those which may facilitate the control of the solvency of such establishments.
If the competent authorities do not belong to another Member State of the European Community, the supply of such information will require reciprocity and the competent authorities to be subject to the professional secrecy under conditions which, at least, are comparable to those established by the Spanish laws.
2. The data, documents and information held by the Banco de España under the terms of its duties shall be reserved for the Bank of Spain. The reservation shall be deemed to be lifted from the moment the persons concerned make public the facts to which they relate.
3. All persons who perform or have carried out an activity for the Banco de España and have had knowledge of data of a reserved nature are obliged to keep secret. Failure to comply with this obligation shall determine the criminal and other responsibilities provided for by the laws. Such persons shall not be able to provide a statement or testimony or to publish, communicate or display data or documents reserved, even after they have ceased their service, except for express permission granted by the competent authority of the Banco de España. If such permission is not granted, the person concerned shall keep the secret and shall be exempt from liability.
Except for the obligation of secrecy set out in the preceding paragraph:
(a) When the data subject expressly consents to the dissemination, publication or communication of the data.
b) The publication of aggregated data for statistical purposes, or communications in summary or aggregate form so that individual entities cannot be identified even indirectly.
(c) The information required by the competent judicial authorities in criminal proceedings.
(d) Information which, in the context of the business procedures resulting from the suspension of payments, bankruptcy or forced liquidation of a credit institution, is required by the judicial authorities, provided that they do not They are related to third parties involved in the reflation of the entity.
e) Information which, in the context of administrative or judicial remedies instituted in respect of administrative decisions given in the field of the organisation and discipline of credit institutions, is required by the competent administrative or judicial authorities.
(f) The information that the Banco de España has to provide for the fulfilment of its respective functions: to the National Securities Market Commission; to the Directorate-General for Insurance; to the Guarantee Fund Deposits; to the financial controllers or syndicates of a credit institution or an institution of its group, designated in the corresponding administrative or judicial proceedings; and to the auditors of the credit institutions and their groups.
(g) The information that the Banco de España has to provide to the authorities responsible for the fight against money laundering, as well as communications which can be carried out in an exceptional manner by virtue of the provided for in Articles 111 and 112 of the General Tax Law, after an indomitable authorization from the Ministry of Economy and Finance.
(h) Information which, by reason of prudential supervision or the sanction of credit institutions, the Banco de España has to make known to the Ministry of Economy and Finance or to the authorities of the Autonomous Communities with powers on credit institutions.
4. The judicial authorities which receive from the Banco de España information of a reserved nature shall be obliged to take the appropriate measures to guarantee the reservation during the substantiation of the process in question. The other authorities, persons or entities which receive information of a reserved nature shall be subject to the professional secrecy laid down in this Article and shall not be able to use it but in the context of the performance of their duties. legally established. "
Additional disposition first. Credit financial institutions.
1. Institutions which are not credit institutions and whose principal activity consists in exercising, in the terms which are determined, one or more of the following, shall be regarded as credit institutions. activities:
a) Loan and credit, including consumer credit, mortgage credit and commercial transaction financing.
b) The "factoring", with or without resource.
(c) Financial leasing, including the complementary activities provided for in paragraph 8 of the seventh additional provision of Law 26/1988, of 29 July, of Discipline and Intervention of the Entities of Credit.
d) Emission and credit card management.
e) The granting of guarantees and guarantees, and subscription of similar commitments.
2. Credit institutions shall not be able to raise repayable funds from the public in the form of a deposit, loan, temporary disposal of financial assets or other analogues, whatever their destination.
The collection of repayable funds by issuance of securities subject to the Law 24/1988 of 28 July of the Securities Market and its implementing rules may be effected subject to the requirements and limitations of the securities market. establishments are specifically established. In particular, it shall not apply to credit institutions for the limitation that, in respect of the issue of bonds or other securities which recognise or create a debt, Article 282 of the recast text of the Law of Companies Anonymous, approved by Royal Decree 1564/1989 of 22 December 1989. The maximum limit of the total amount of emissions that these entities can perform shall be determined.
Credit institutions will be able to securitize their assets, in accordance with the provisions of the Entitlement Fund legislation.
3. The name 'financial establishment of credit', as well as its abbreviation, "E.F.C. ', shall be reserved for those entities, which shall be obliged to include them in their social name, in the form that it is regulated.
4. It will be up to the Minister for Economic Affairs and Finance, following the Bank of Spain's report, to authorise the creation of credit institutions.
The Bank of Spain will be responsible for the control and inspection of all credit institutions, and their registration in the register that will be created for this purpose.
5. The financial institutions of credit will be applicable to them, with the adjustments they may regulate, the sanctioning regime provided for in Title I of Law 26/1988, of Discipline and Intervention of the Entities of Credit. In the same way, the provisions of Article 48 of the Law will apply to them.
6. Mortgage credit companies, financing institutions, as well as leasing companies, must be transformed into credit institutions before 1 January 1997. After that period of time without taking place, or having asked to convert to another type of credit institution, they shall lose their status as a financial institution.
7. The Government is empowered to develop this additional provision and to regulate the regime applicable to credit financial institutions.
In particular, the Government will regulate the following issues:
a) Minimum capital, which may be different depending on the activity to be performed.
b) The requirements of own resources.
(c) The determination of the repayable funds of the public referred to in paragraph 2.
(d) The procedure for the conversion of current mortgage credit companies, financing entities and leasing companies into credit financial institutions.
8. The acts and documents legally necessary which, before 1 January 1997, are made by the mortgage credit companies, the financing institutions and the leasing companies for the purpose of be processed in credit institutions or other credit institutions, shall be exempt from the Tax on Proprietary Transmissions and Documented Legal Acts.
Mortgage credit companies, financing entities, as well as leasing companies shall enjoy a reduction of 30 per 100 of the rights that notaries and registrars may receive. as a result of the application of their respective duties for the businesses, acts and documents necessary for the registration and registration of the operations referred to in the preceding paragraph.
Additional provision second.
The following wording is given to paragraph 8 of the seventh additional provision of Law 26/1988, of July 29, of Discipline and Intervention of Credit Entities:
" 8. Leasing companies shall have as their principal activity the performance of leasing transactions. In addition, and without implementing the specific tax arrangements provided for in this provision, they may also carry out the following activities:
a) Maintenance and preservation activities of the assets transferred.
b) Financing assignment connected to a financial, current, or future lease operation.
c) Intermediation and management of leasing operations.
d) Non-financial leasing activities, which may or may not be supplemented by a purchase option.
e) Trade advice and reports. "
Additional provision third.
The so far official credit institutions, "Banco de Crédito Local, Sociedad Anónima", "Banco Mortgage de España, Sociedad Anonima", and "Banco de Crédito Agricola, Sociedad Anonima", will have the nature of banks and the general scheme of the same shall apply.
Additional provision fourth.
The following changes are made to the Royal Decree-Law 1/1986 of 14 March of urgent administrative, financial, tax and labour measures:
1. The following wording is given to Article 12:
" Article 12.
1. For the purposes of this Royal Decree-law, risk-capital companies shall be those public limited companies whose exclusive object is the promotion or promotion, by taking temporary holdings in their capital, of undertakings not financial, small or medium-sized, that develop activities related to technological or other innovation, in terms of which they are regulated.
2. Venture capital funds are assets managed by a management company, which shall have the same exclusive object as that defined in the previous paragraph. '
2. The following wording is given to Article 14:
" Article 14.
Venture capital companies and funds will adjust their investment policy to the criteria expressly set out in their management statutes or regulations, respectively.
In any event, they shall maintain at least 50 per 100 of their assets in shares or shares in the capital of undertakings referred to in Article 12.1. Without prejudice to the foregoing, they may exceptionally, subject to the conditions governing the establishment, purchase of shares or shares in the capital of undertakings of other kinds.
Limitations may be imposed on the concentration of the assets of the companies and capital-risk funds in the same company or group of companies. "
3. The following wording is given to Article 16 (2):
" 2. Companies and funds of risk capital shall be taxed in the corporate tax under the general scheme, with the following specialties:
(a) Deduction for dividends of 100 per 100, where such dividends come from shares and holdings in the capital of undertakings referred to in Article 12.1 in which they participate, whichever is the degree of participation in the entity that distributes the returns.
(b) Partial exemption from equity increases which result from the disposal of shares and holdings in the capital of undertakings as referred to in Article 12.1 in which they participate, in accordance with the following scales of coefficients according to the year of disposal computed from the time of acquisition:
I. Starting in the third year and up to the sixth year, 0.99.
II. The seventh and eighth years, the 0.80.
III. The ninth and tenth years, 0.50.
The first two years and from the 11th will not be exempt. "
4. The following wording is given to Article 20:
" Article 20.
1. The Government is empowered to develop the provisions of this Standard.
2. Prior to appropriate adaptations, the creation of venture capital and venture capital funds may be authorised to come from the transformation of existing entities.
3. Rules or special periods for the adaptation of currently existing venture capital companies and funds to the provisions of this standard may also be laid down. '
Additional provision fifth.
1. Securities issued by the Mortgage Securitisation Funds regulated in Law 19/1992, of July 7, on Companies and Real Estate Investment Funds and on Mortgage Securitisation Funds shall have the character of securities. mortgage of the Law 2/1981, of March 25, of Regulation of the Mortgage Market.
2. The Government, after reporting by the National Securities and Exchange Commission and the Banco de España, may extend the scheme provided for the securitisation of mortgage holdings in Articles 5 and 6 of Law 19/1992 of 7 July 1992 on Corporate and Real Estate Investment Funds and on the Mortgage Securitisation Funds, with the necessary adaptations and changes, to the securitisation of other loans and credit rights, including derivatives of Leasing operations, and those related to the activities of small and medium-sized enterprises.
Funds that are authorized under the rules to be issued will be called Asset Entitlement Funds (FTA).
3. Paragraph (h) of Article 8.1 of Law 14/1985 of 29 May of the Tax Regime of certain financial assets shall be worded as follows:
"(h) Yields of mortgage units, loans or other credit claims constituting the income of the Funds."
4. The Fund for the Titling of Assets shall apply to them, in respect of loans and other credit claims they acquire, the scheme which, in favour of holders of mortgage holdings, is provided for in the final paragraph of the Article 15 of Law 2/1981 of 25 March of Regulation of the Mortgage Market.
5. The legal status of the Companies of the Funds of Entitlement will be regulated, who will be able to assume both the administration and legal representation of the Mortgage Securitization Funds provided for in Law 19/1992, 7 of July, such as that of the Fund for the Titling of Assets. Currently existing Mortgage-Securitisation Fund Management (s) may be transformed into a Fund of Entitlement to the Holder of the Funds within the time limits and subject to conditions to be determined in a regulatory manner.
Additional provision sixth.
A paragraph four is added to the first provision of Law 19/1988, of July 12, of Audit of Accounts:
" Four. The branches in Spain of foreign credit institutions, when they do not have to submit annual accounts for their activity in Spain, must submit to audit the accounting information which must be made public on an annual basis, and those with reserved character refers to the Banco de España, in accordance with the accounting rules that are applicable. "
Additional provision seventh.
1. The companies governing the official secondary markets of futures and options shall enjoy absolute separation duty in respect of the securities and the cash in which the guarantees which the members and customers would have materialised or accepted in favour of those on account of the transactions carried out on the markets referred to above, in the event that such members or clients are subject to a court-supervised procedure. Without prejudice to the foregoing, any remaining remaining after the settlement of the secured transactions shall be incorporated into the insolvency assets of the client or member concerned.
In case of bankruptcy of a member or a client of the official secondary markets of futures and options, the constitution or acceptance of securities and cash as a guarantee of market operations will only be impeachable under cover of the second paragraph of Article 878 of the Code of Commerce, by means of action by the trade unions of the bankruptcy, in which the existence of fraud in the constitution or the affectation of securities and cash is demonstrated as a guarantee of market operations.
2. If the application for the suspension of payments by a public debt market managing entity in Annotations or an entity adhered to the Securities Clearing and Settlement Service is pending, the bankruptcy or the filing of the payment will be made. as follows:
(a) Once the Annotations Central has accredited the situations referred to above in respect of a management entity, it shall, without cost to the investor, carry out the transfer to third-party accounts of the Bank of Spain, as the managing body, or of another managing body, of the securities entered in third-party accounts of the institution concerned by the insolvency proceedings. For this purpose, both the competent judge and the insolvency proceedings shall facilitate the access of the managing body to the accounting and accounting records and records necessary to make the transfer effective, thereby ensuring the exercise of the rights of the holders of those securities.
(b) When the procedures in question affect an entity attached to the Securities Clearing and Settlement Service, the National Securities Market Commission may provide for immediate, and at no cost to, the investor. the transfer of their securities accounting records to another entity that is enabled to carry out this activity, and holders of such securities may request the transfer thereof to another entity. If no entity is in a position to take charge of the records indicated, this activity shall be assumed by the Securities Clearing and Settlement Service on a provisional basis until another entity takes charge of them or until such time as the holders request the transfer of the register of their securities. In the present case, the competent judge and the competent authorities shall also provide access to the documentation and records referred to in the previous paragraph.
In both cases, the existence of the insolvency proceedings shall not prevent the holders of the securities from being made to cash from the exercise of their economic rights or their sale.
3. In the case of a judicial declaration of bankruptcy or of admission to proceedings of a suspension of payments of a Management Entity of the Public Debt Market or of an entity empowered to carry out purchases with a repurchase agreement in which the institution act as a forward buyer, transactions of this type that are agreed with third parties shall be transformed into maturity transactions.
Additional provision octave.
1. The disciplinary regime applicable to trade corridors shall, in general, be provided for for civil servants of the State Administration.
2. In addition to those laid down in the rules set out in the preceding paragraph, serious or very serious misconduct, according to their importance, nature and transcendence, of trade corridors shall also be considered:
(a) Behaviors that constitute a criminal offence related to the provision of public faith or that cause harm to the Administration or to individuals.
(b) Having been administratively punished for serious or very serious infringement of provisions on the prevention of money laundering, tax, commercial or securities markets, in the latter two cases provided that the The offence is directly related to the exercise of your profession.
(c) The intervention of operations contrary to the provisions of the Laws or their regulations, or which lack the necessary administrative authorizations.
d) Intervention of operations without observing the essential forms and rules established legally or regulatively for the provision of public faith by trade corridors.
e) The malicious alteration or omission of data in the seats of their books or records, or in the documents they issue by reason of the exercise of the office.
(f) The infringement provided for in paragraph 3 of the third provision of Law 8/1989, of 13 April, of Public Fees and Prices.
g) The perception of higher-than-established tariff duties.
(h) The denigratory acts of other public servants, as well as other acts which are regulated as constituting unfair competition for trade corridors.
3. The opening of criminal proceedings for criminal offences, or of administrative penalties for infringements of the offences referred to in paragraph (b) of the preceding paragraph, shall entitle the Minister for Economic Affairs and Finance to agree to the suspension. provisional of the affected corridor.
4. The Minister for Economic Affairs and Finance, acting on a proposal from the Director-General of the Treasury and Financial Policy, shall be responsible for imposing sanctions for the separation of service and suspension of duties, as well as for the adoption of suspension agreements. provisional.
Additional provision ninth.
The following amendments are introduced in the Law 24/1988, of July 28, of the Stock Market:
One. Article 97.
The following final paragraphs are added:
" The National Securities Market Commission shall be equally competent to initiate and instruct the sanctioning files referred to in Article 89 of the Recast Text of the Anonymous Corporations Act, approved by the Royal Decree 1564/1989 of 22 December 1989.
The commercial registrars will forward, through the General Directorate of Records and the Notary, to the National Securities Market Commission, within one month of the deposit qualification, certification of the annual accounts and supplementary documents of those companies which have infringed the rules of the recast text of the Law on Companies, approved by Royal Decree 1564/1989 of 22 December 1989 in the field of business on the actions themselves.
To this end, the directors of the company that deposit the accounts must report in a separate document, with due individualization, of the businesses on their own actions. "
Two. Article 99.
A new paragraph (ll) is inserted in the above article in the following terms:
" (ll) The voluntary dissemination of information or recommendations which may mislead the public as to the assessment of the value or the concealment of relevant circumstances which may be of a mischievous nature. affect the impartiality of such information or recommendations. "
Three. Article 99 (n) of that Law is hereby reworded in the following terms:
" n) The issue of securities without authorisation, in cases where it is mandatory, without observing the basic conditions set out therein, or without the prior concurrence of the requirements laid down in Article 26 of this Regulation. Law in cases where they are mandatory, as well as the placement of the issue without complying with the basic conditions previously established or the default for cause attributable to the issuer of the deadlines provided for in the prospectus for the admission to trading of securities in secondary markets. '
Four. Article 99 (n) of that Law is hereby reworded in the following terms:
" n) Non-compliance by securities issuers with the obligation laid down in Article 82 or the requirements of the National Securities Market Commission formulated pursuant to Article 89, as well as the supply to The National Market Commission of inaccurate or non-truthful data values, or the contribution to the same of misleading information or maliciously omitting relevant aspects or data. "
Five. Article 100.
The following section is added:
"ll) The refusal or resistance to disseminate, in the terms provided for in the last paragraph of Article 28, the information leaflet of a securities issue."
Six. Article 102.
The initial paragraph and paragraph (a) shall be worded as follows:
" For the commission of very serious infringements one or more of the following penalties shall be imposed on the infringer:
(a) Multa for an amount not less than, not more than five times, of the gross profit obtained as a result of the acts or omissions in which the infringement consists; or, in the event that this criterion is not applicable, to the greater than the following amounts: 5 per 100 of the own resources of the infringing entity, 5 per 100 of the total funds, own or foreign, used in the infringement, or 50,000,000 pesetas. "
Seven. Article 103.
The initial paragraph and paragraph (b) shall be worded as follows:
" For the commission of serious infringements one or more of the following penalties shall be imposed on the infringer:
(b) Fine in the amount of up to the amount of gross profit obtained as a result of the acts or omissions in which the infringement consists; or, in the event that this criterion is not applicable, to the greater of the following Figures: 2 per 100 of the own resources of the offending entity, 2 per 100 of the total funds, own or foreign, used in the infringement, or 25,000,000 pesetas. "
Eight. Article 104.
Paragraph (b) shall be worded as follows:
"Fine for up to 5,000,000 pesetas."
Nine. Article 105.
The initial paragraph and subparagraph (a) shall be worded as follows:
" In addition to the sanction to be imposed on the infringer by the commission of very serious infractions, when the offender is a legal person, one of the following sanctions can be imposed on those who, exercising administration or address in the same, be responsible for the violation:
a) Multa by amount up to the largest of the following figures: 5 per 100 of the total funds, own or foreign, used in the infringement, or 50,000,000 pesetas. "
Ten. Article 106.
The initial paragraph and paragraph (b) shall be worded as follows:
" In addition to the appropriate sanction to be imposed on the infringer by the commission of serious infringements, where the offender is a legal person, one of the following sanctions may be imposed on those who, exercising administration or address in the same, be responsible for the violation: "
"(b) Multa by amount of up to the largest of the following figures: 2 per 100 of the total funds, own or foreign, used in the infringement, or 25,000,000 pesetas."
Additional provision tenth.
1. The sanctioning regime applicable to valuation companies and credit institutions which have their own valuation services shall be governed by the provisions of this additional provision.
2. The violations are rated very serious, severe and mild.
a) Very serious violations will be considered:
1. Failure to comply with the approval requirements to exercise the valuation activity covered by the mortgage market legislation.
2. Non-compliance by the signatories of the reports and certificates of assessment of the prescribed professional qualifications requirements.
3. The manifest falsehood in the valuation of goods.
4. The resistance, refusal or obstruction of the work of the Banco de España, provided that it is an express and written requirement in this respect.
5. Serious infringements, where a firm sanction for the same type of infringement was imposed during the five years prior to its commission.
b) Serious violations are considered:
1. The issue of assessment certificates that do not conform to the assessment report made.
2. The issuing of certificates or reports whose content is not in accordance with the evidence obtained in the assessment carried out or which, without expressly warning them, of the procedures, checks and analyses provided for in the applicable rules.
3. Any other non-compliance with the valuation rules that may cause economic injury to third parties or to the person to whom the service is provided.
4. Do not submit the data to be supplied to the Banco de España.
5. Breach of duties of professional secrecy, independence and incompatibility in the exercise of their duties.
6. Minor infringements, where during the two years prior to their commission, the credit institution was imposed on a firm sanction for the same type of infringement.
(c) Other actions and omissions involving non-compliance with the applicable rules shall be considered to be minor infringements.
3. The penalties provided for in Chapter III of Title I of Law No 26/88 of 29 July 1988 on the application of the penalties provided for in Chapter III of Title I of Law No 26/88 of 29 July 1988 on credit institutions and on credit institutions providing valuation services, as well as to their administrators and managers, shall apply to them. Discipline and Intervention of Credit Entities, with the following modifications:
(a) The sanction for revocation of the authorisation shall be understood as being replaced by the definitive loss of approval to provide assessment services.
(b) The penalty provided for in paragraph (b) of Article 10 shall not apply.
(c) For very serious infringements, the suspension of the type-approval may also be imposed for the purpose of providing valuation services between one and five years, and for serious infringements of the suspension of such approval up to a year.
(d) The disablement penalties provided for in Article 12 shall be construed as referring to both credit institutions and valuation companies.
4. The applicable sanctioning procedure will be regulated in the Royal Decree on the sanctioning procedure applicable to subjects acting on financial markets.
Regarding the sanctioning powers will be provided for in article 18 of Law 26/1988, of July 29, of Discipline and Intervention of the Credit Entities with the following modifications:
(a) The Banco de España will compulsorily initiate a sanctioning procedure where there is a reasoned communication from another administrative body or authority in which it is apparent that the irregular provision of the Assessment services have had an impact on their field of administrative action.
(b) In the case referred to in the preceding paragraph, prior to the imposition of the penalty, the competent administrative authority or body shall report.
5. In the other matters relating to the sanctioning regime, it shall apply, with the adaptations that are regulated in law, as provided for in Law 26/1988 of 29 July, of Discipline and Intervention of Credit Entities.
6. Natural and legal persons, who are not approved for the purpose of carrying out assessment activities, shall provide the public with their implementation, as provided for in the additional provision of Law 26/1988 of 29 July 1988 on Discipline e Intervention of the Credit Entities, with the adaptations that they regulate are established.
Additional provision eleventh. Dissolution of the Banking Superior Council.
1. The Banking Council shall be dissolved, which shall, however, retain its legal personality until the full liquidation of its assets, for which it may take the necessary decisions. The settlement may be carried out in accordance with the rules currently governing the said Council or by attributing its assets to entities representing the banks that make up it, subrogated to the rights and obligations of the Council. Bank Superior the entities to which they are assigned.
2. The provisions of the mandatory report of the Banking Board on certain subjects are left without effect.
3. The remaining references to the Banking Council which are contained in the pre-existing rules shall be construed as references to the representative entities of the banks that make up the same; the latter shall be the same as the Council. Bank Superior in respect of the institutions and services that are attached to it.
4. For the purposes of Article 44 of the Staff Regulations, adopted by Law 8/1980 of 10 March, in relation to the staff of the Banking Council, a succession of undertakings shall be deemed to have occurred between the latter and the the entities to which the rights and obligations of the Council are attached.
5. The Minister for Economic Affairs and Finance is hereby authorised to adopt the resolutions which, if appropriate, may be necessary for the implementation of the provisions of paragraph 1 of this provision.
Additional disposition twelfth.
Without prejudice to the specific ratings contained in this Law, the Government is generally empowered to develop its precepts.
Single transient disposition.
The credit institutions authorized in another Member State of the European Community which, before 1 January 1993, have been operating in Spain through a branch, may continue to do so without having to submit to the Article 53 (2) of Law 26/1988, of July 29, of Discipline and Intervention of the Credit Entities. In addition, they may withdraw the initial allocation which they would have made in their day. However, they shall be subject to the provisions of Article 53 (3).
In addition, when the above entities are providing services without a branch prior to 1 January 1993, they may continue to do so with the same scope.
Single repeal provision.
1. Chapter II of Title II (Official Credit Entities) of Law 13/1971, of June 19, Organization and Regime of the Official Credit is repealed.
2. Paragraphs 2, 4 and 5 of the second provision of Law 26/1988, of 29 July, of Discipline and Intervention of Credit Entities are hereby repealed.
3. Articles 48, 50, 51 and 52 of the Law of 31 December 1946 on Banking Management and the Decree of 16 October 1950 on the Regulation of the Banking Higher Council are hereby repealed.
4. Article 19 of Royal Decree-Law 1/1986 of 14 March 1986 on urgent administrative, financial, tax and labour measures is repealed.
5. The other provisions of equal or lower rank which are contrary to the provisions of this Law shall also be repealed.
First disposition first.
The precepts contained in this Law will be based on the basis of the provisions of the headings 11. and 13. Article 149 (1) of the Constitution, except as provided for in Article 3, which shall be such as to be specified in Law 26/1988 of 29 July on Discipline and Intervention of Credit Entities.
Final disposition second.
This Law shall enter into force on the day following its publication in the "Official State Gazette".
Therefore,
I command all Spaniards, individuals and authorities, to keep and keep this Law.
JOHN CARLOS R.
The President of the Government,
FELIPE GONZÁLEZ MARQUEZ
