Law 40/1979, of December 10, on the Legal Regime of Control of Changes, empowers the Government to, in defense of the general interests, regulate, in accordance with the provisions of that Law, the acts, business, transactions and operations of any kind between residents and non-residents who assume or are derived from, or may be derived from, foreign payments or payments.

In the exercise of that power, and pursuant to Article 2 of the Law cited, Royal Decree 2402/1980, of October 10, submitted to the requirement of prior administrative authorization a wide set of transactions and transfers with the outside, thus articulating a regime of change control based on administrative interventionism.

The establishment of a generalized system of restrictions and controls on foreign transactions, whose medical records date back to the Criminal and Procedural Law for the Monetary Crimes of 24 November 1938, In the case of historical circumstances characterized by an insufficient level of economic development, a marked precariousness of the financial structures, a traditional balance of payments deficit and a permanent weakness of the exchange rate of the peseta, circumstances all of them that seemed to advise such a policy of restrictions.

Since the 1980s, the development of the Spanish economy and its increasing degree of integration into the world economic structures have favored a policy of progressive liberalization and elimination of restrictions and administrative formalities which, in the specific field of change control, have been implemented in a number of provisions which have been removed from the requirement of prior authorisation for the majority of transactions.

The accession of Spain to the European Economic Community has encouraged the acceleration of this liberalizing process, which must be legally completed by the full implementation by Spain of the provisions of Directive 88 /361/EEC of 24 of June 1988.

Article 6 of that Directive provides for a transitional period for Spain, applicable to certain types of transactions, which expires on 31 December 1992. The current situation of the Spanish economy allows and advises, however, to carry out the full liberalization of transactions and transfers with the outside in the present moment, without waiting for the termination of the deadline mentioned. Furthermore, the degree of interdependence of the Spanish economy with the outside world, and the increasing internationalisation of economic activity make it appropriate to extend liberalisation, not only to transactions with other Member States of the EEC, but also those made with third countries.

The elimination of the restrictions on foreign transactions made by the present Royal Decree reaches practically all the operations, keeping only the requirement of prior authorization for the physical export of metallic coins, bank notes, bank cheques to the bearer and gold reaped or on bars across national borders by an amount exceeding 5,000,000 pesetas, considering such a requirement necessary in the framework of the fight against criminal activities, particularly drug trafficking. Such a restriction, on the other hand, does not entail any disruption to economic transactions with the outside of the market by being fully liberalised, by bank charges, payments and transfers.

The consequence of the abolition of restrictions and the elimination of the requirement for prior administrative authorisation for external transactions, with the exception of the one mentioned in the previous paragraph, is the disappearance, except in the above exception, one of the elements of the criminal type specified in Article 6 of Law 40/1979, as amended by the Organic Law 10/1983 of 16 August, thereby also disappearing the possibilities for the application of the Articles 7, 8 and 9 of Law 40/1979, as amended by the Organic Law 10/1983, in Both, in application of a safeguard clause provided for in Article 3 of this Royal Decree, the requirement for prior authorisation for certain transactions is not re-established.

The full and complete liberalization of foreign transactions should not, however, be understood without the maintenance of information and communication mechanisms that allow the statistical knowledge of charges, payments and transfers with the outside and ensure compliance with the Spanish legal order, in particular as regards Article 111 of the General Tax Law, all under the provisions of Article 4 of Directive 88 /361/EEC.

Safeguard clauses are also laid down which allow for the transitional establishment of restrictions in respect of certain situations which, by their nature and gravity, will give them advice, in respect of their obligations. (a) international agreements with Spain, in particular as a member of the EEC.

With regard to foreign investments in Spain and Spain abroad, the liberalization of charges, payments and transfers with the outside established in this Royal Decree is without prejudice to the specific rules on such investments make it possible to subject certain categories of such investment to the requirement of prior authorisation, administrative verification or other control measures, not already in strict consideration control of changes, but with reasons of defense of national economic sovereignty in the case of foreign investments in Spain, and of monitoring compliance with the legal system, especially in tax matters, in the case of Spanish investments abroad.

In its virtue, on the proposal of the Minister of Economy and Finance, in agreement with the State Council, and after deliberation by the Council of Ministers at its meeting on 20 December 1991,

DISPONGO:

Article 1. º

1. The acts, businesses, transactions and transactions of any kind that they assume are free of charge or may be derived, collected or paid between residents and non-residents, or transfers to or from the outside, to which the Articles 1 and 2 of Law 40/1979 of 10 December 1979 on the Legal Regime for the Control of Changes, without exceptions other than those arising from the application of the provisions of Articles 3. 4. and 5. of this Royal Decree and of what they have the laws specifically applicable.

2. The liberalization of the acts, businesses, transactions and transactions referred to in the preceding paragraph also extends to external charges and payments, effected either directly or by way of compensation and transfers from or to the outside world. derivatives thereof, as well as for the import or export of the instruments of rotation or credit used, without prejudice to the necessary control measures which may be established to prevent infringements of the legal order in effect.

Art. 2. º

1. As regards the provisions of Article 4.3 of Law 40/1979 of 10 December 1979, residents are considered to be resident for the purposes of the provisions of this Royal Decree, establishments and branches in the Spanish territory of resident natural persons. abroad or foreign legal persons. Similarly, establishments and branches abroad of natural persons resident in Spain or of Spanish legal persons are considered non-residents.

2. For the purposes of Article 4 (4) of Law 40/1979, residence or non-residence in Spain shall be credited in the manner set out in this Article.

3. The status of resident in Spain must be credited as follows:

(a) The natural persons of foreign nationality, by means of the individual card or meat of residence authorization or any other public document in which the granting of the authorization of residence by the Ministry of the Interior.

Nothing will prevent the condition of resident of the foreign natural person, for the purposes of Law 40/1979, of December 10, and of this Royal Decree as long as its authorization of residence, the one that has in addition domicile in the foreign. In this case it is understood that you have your main residence in Spain, unless you have returned the meat or the residence permit card.

(b) the establishments and branches in Spanish territory of foreign legal persons or natural persons residing abroad, by means of any public document in which the data relating to their constitution, in accordance with Spanish law, or certificate of registration in the Commercial Register.

(c) Natural persons of Spanish nationality and legal persons domiciled in Spain shall be presumed resident in Spain unless proof to the contrary.

4. The non-resident status must be credited as follows:

(a) The Spanish natural persons, by means of certification of the Spanish consular authority issued with a maximum advance of two months, which accredit their registration in the Register of Matriculation of the Consulate or Consular Section of the Embassy concerned.

(b) Foreign natural persons, by means of a negative certificate of residence issued by the Ministry of the Interior in advance of two months.

(c) Legal persons domiciled abroad, by means of the document proving their nature and domicile.

(d) The branches and establishments abroad of Spanish legal persons or natural persons resident in Spain, by means of certification by the Spanish Consul concerned that they are constituted in the country of be treated.

e) Spanish diplomatic staff accredited abroad and Spanish staff who, without having the above condition, provide services in Spanish Embassies and Consulates, as well as in International Organizations, through diplomatic passport or certification of the Head of Mission, Consul or competent authority of the relevant Organisation in which such a situation is recorded.

f) Foreign diplomats accredited in Spain and foreign staff who provide services in foreign embassies and consulates or international organizations in Spain, by means of an identity card issued by the Ministry of Foreign Affairs.

5. Outside of the assumptions provided for in Article 4 of the Law, the condition of resident and non-resident for the purpose of controlling changes cannot be enjoyed at the same time.

Art. 3. º

1. By way of derogation from Article 1, the Royal Decree may exceptionally, on a proposal from the Minister for Economic Affairs and Finance, prohibit or limit the performance of certain categories of transactions with the outside or the corresponding recovery, payment or transfer operations, where they seriously affect the interests of Spain, or in application of measures taken by international bodies of which Spain is a member.

2. In addition, in the event of exceptionally large short-term capital movements causing strong tensions in the exchange market or causing serious disturbances in the direction of the Spanish monetary and exchange rate policy, the government, Proposal from the Minister for Economic Affairs and Finance may take the necessary safeguard measures, subject to a system of administrative authorisation certain types of transactions.

3. If any of the measures referred to in the preceding two subparagraphs affect residents of the Member States of the European Economic Community (EEC), the measure shall, where appropriate, be adopted in accordance with the procedures laid down in the (a) the Community rules on capital movements, as well as with the provisions in force in the EEC which, by virtue of the nature of the measure, are applicable.

4. In the cases referred to in this Article, the Royal Decree concerned shall determine the nature of the derogation to be laid down, its duration and the types of transactions which are prohibited or restricted while the said scheme is is in force, as well as the administrative procedure applicable to the case in question.

5. Transactions relating to foreign investments in Spain and Spanish investments abroad will be governed by their specific provisions.

Art. 4. º

1. The export of metallic coins, bank notes and bank cheques to the bearer, which are encrypted in pesetas or foreign currency, as well as gold-plated gold or in bars, shall be subject to a prior declaration where the amount is greater than 1,000,000 of pesetas per person and trip, and prior to administrative authorization when the amount is greater than 5,000,000 pesetas per person and trip.

2. The import of metallic coins, bank notes and bank notes to the bearer, whether or not in foreign currency or in gold, as well as gold, or in bars, shall be subject to a prior declaration where the amount exceeds 1,000,000 of pesetas per person and trip.

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

Art. 5. º

1. Charges and payments between residents and non-residents, as well as transfers to or from abroad, are all encrypted in pesetas or in foreign currency, and must be made through an Entity of deposit entered in the Official Records of the Banco de España (hereinafter "registered entities"), with the exceptions set out in Articles 6 and 7 of this Royal Decree.

2. In all cases of recovery, payment or transfer referred to in the previous paragraph, the resident must contribute to the "registered entity" through which such collection, payment or transfer is made, the statements or information that is determine. Registered Entities may not execute any payment or transfer abroad without the fulfilment of such requirement.

3. In any event, the resident must declare to the "registered entity", in the form to be determined, his name or social reason, address, number of Tax Identification, name or social reason and address of the non-resident sender or beneficiary of the recovery or payment, amount, currency, country of origin or destination, and the concept of the transaction for which the collection, payment or transfer occurs.

4. "Registered entities" shall provide, in the form determined by the Minister for Economic and Financial Affairs, and within 30 days of each calendar month, the information referred to in the preceding paragraph and, in general, the information which is requires them on charges, payments or external transfers in which they are involved, for the purposes of statistical and fiscal monitoring of operations.

Art. 6. º

1. It is free to open and maintain residents of accounts denominated in pesetas or in foreign currency in foreign operating offices of both "registered entities" and foreign banks or credit institutions, as well as payments and payments. between residents and non-residents by means of fertilisers or debits on those accounts.

2. Residents who open one of the accounts referred to in the preceding paragraph are obliged to declare the accounts within 30 days of their opening in the manner determined by stating their name or business name, address, number Tax Identification, class and account number, currency of denomination of the account, and identifying data of the office in which it has been opened.

3. In addition, the residents of these accounts are obliged to provide, in the form to be determined, information relating to the movements to the credit and the debit thereof.

Art. 7. º

1. Charges and payments between residents and non-residents in metallic currency, bank notes or bank notes to the bearer, encrypted in pesetas or in foreign currency, carried out both inside and outside the Spanish territory are free, although they are subject to the an obligation to declare in the form and with the scope to be determined.

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 prior declaration for importation and of prior declaration or administrative authorization for the export of such means of payment in excess of the amount indicated.

Art. 8. º

Notwithstanding the provisions of Article 1 of this Royal Decree, the Minister of Economy and Finance may exceptionally submit to a prior verification or declaration the recovery, payment or transfer operations. of the type of transactions to be determined, where such processing is appropriate for the proper knowledge of the administration of the transactions carried out and, in particular, for the maintenance of the (a) records of foreign assets or liabilities and the verification of compliance with obligations tax.

Art. 9. º

"Registered Entities", as well as any resident natural or legal person who carries out operations as referred to in Article 1. of this Royal Decree or maintains assets or liabilities abroad, are subject to the the obligation to provide the competent authorities of the State Administration and the Bank of Spain in the form that is established with the data required for the purposes of statistical and fiscal monitoring of operations.

Art. 10.

1. Failure to comply with the obligations to declare or to apply for prior authorization referred to in Article 4. of this Royal Decree shall entail the application of the measures of responsibility of a criminal or administrative nature envisaged in Law 40/1979 of 10 December and Organic Law 10/1983 of 16 August.

2. Failure to comply with the declaration obligations referred to in Articles 5, 6, 6 and 7 of this Royal Decree shall constitute an infringement for the purposes of Article 10 of Law 40/1979 of 10 December.

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 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 December 10.

Art. 11.

1. The changes in the control of the present Royal Decree are the responsibility of the Minister for Economic Affairs and Finance.

2. These powers shall be exercised by the Ministry of Economy and Finance through the Directorate-General for External Transactions and the Bank of Spain, in accordance with the provisions of this Article.

3. The Directorate-General for External Transactions shall be responsible

:

(a) Grant authorizations, carry out verifications or establish controls on external transactions and/or charges, payments or transfers abroad which, by virtue of the exercise of a clause of safeguard of those provided for in Article 3. of this Royal Decree, are subject to prohibition or limitation.

b) Establish, the procedure and the processing relating to the operations referred to in Articles 4. º, 5. º, points 2 and 3, 6. º 7. and 8. º of this Royal Decree.

c) Exercise the control and inspection of the operations carried out through the "Registered Entities".

d) To exercise the inspection and investigation actions that are necessary to prevent and, where appropriate, correct the activities contrary to this Royal Decree.

e) To resolve the administrative penalties referred to in Article 10 of Law 40/1979 of 10 December, within the powers conferred on it by Article 12.3 (c) of this Law.

4. The Bank of Spain will be responsible for:

(a) Grant banks, savings banks and other financial institutions to act on the foreign exchange market, in cases where such authorization is required in accordance with current legislation, as well as to register establishments open to the public for foreign exchange.

(b) Dictate, in the field of the powers conferred upon it by Law 26/1988, of 29 July, on Discipline and Intervention of Credit Entities, the instructions relating to the content, procedure and frequency of the communications referred to in Article 5 (4) of this Royal Decree.

(c) Receive, in the terms of the present Royal Decree, and in accordance with the procedure laid down in accordance with paragraphs 3 (b) and 4 (b) above, the statements and information referred to in Articles 5. 4, and 6. º, points 2 and 3.

d) To exercise control and inspection of the operations carried out through the "Registered Entities".

e) To exercise the inspection and investigation actions that are necessary to prevent and, where appropriate, correct the activities contrary to this Royal Decree.

Art. 12.

For the imposition of administrative sanctions, the sanctioning procedure governed by Chapter II of Title VI of the Law of Administrative Procedure shall apply.

Art. 13.

1. Once the decision is signed on an administrative basis, it will be implemented. To this end, the issued shall be required to make the amount of the fine on paper payments to the State or by way of deposit into the General Deposit Box within a period of 15 days, which may be extended by another 15 to the Administration, with a warning that the case of failure to do so shall be charged by the administrative procedure for the award.

Due to this deadline, the procedure will be initiated in which the sanctioning resolution, together with the certification of not having made the payment of the fine effective, will have the value and effectiveness that the General Rules of Collection gives the certification of discovery.

2. The principal sanction or accessory referred to in Article 10 of Law 40/1979 of 10 December 1979 may be made effective on the guarantees which, where appropriate, would have been constituted during the processing of the administrative procedure, in accordance with the provisions of Article 15 of the same Law.

3. Where, by final decision, the action is considered, leaving no effect or reducing the amount of the fine or the obligations imposed, the securities shall be cancelled, provided that they are repaid in whole or in excess of the amount of the Stay.

Art. 14.

In accordance with the provisions of Article 17, point 2 of Law 40/1979, the competent organs of the Administration shall, at the request of other organs of the Administration, carry out the judicial organs, or on their own initiative, actions of research close to the individuals that directly or indirectly lead to the clarification of the facts that could be constitutive of infraction or to the prevention of the same.

Art. 15.

The books and documentation submitted for investigation relating to the alleged infringement may be examined by the organs of the Administration in the housing, premises, desk, office or office of the a person possessing the same, in his or her presence or in that of the person to whom he or she designates.

Art. 16.

1. The investigative actions shall be documented by means of the minutes in which they shall be entered:

(a) The name, last name and national identity document of the person with whom the diligence is understood, reflecting the character or representation with which it appears in it.

(b) The essential elements of the actions, data and documents under investigation.

(c) Where appropriate, the recognition by the alleged infringer of the commission of the illicit, which shall, if appropriate, have the effects provided for by Article 14 of Law 40/1979 of 10 December.

2. The investigative report shall be sent to the competent body in order to ensure that, if there is a place, the relevant sanctioning dossier is instructed or, where appropriate, the proceedings are referred to the judicial bodies.

Art. 17.

1. The liberalization of payments of residents to non-residents and of transfers abroad referred to in Article 1 of this Royal Decree shall be without prejudice to the necessary fulfilment of the tax obligations which, in its case, correspond to the main act, transaction or legal business of which such payments or transfers derive, in accordance with the applicable rules applicable.

2. Failure to comply with the obligations laid down in Articles 5. 3 and 4, 6. º 2, and 8. º of this Royal Decree, shall constitute a simple tax violation, punishable under the provisions of the General Tax Law and its rules

ADDITIONAL PROVISIONS

First.

Establishments open to the public for foreign currency exchange must be registered with the Banco de España in the form it determines.

Second.

In relation to the provisions of Article 5 of this Royal Decree, charges and payments may also be made between residents and non-residents through those other credit and financial institutions registered in the Corresponding Official Records of the Banco de España or the National Securities Market Commission, provided that they are legally recognized as such and, in any case, in the operational scope of each of them. Such Entities shall also be subject to the obligation referred to in Article 9. of this Royal Decree.

Third.

The Tax Identification Number to be declared by the residents under this Royal Decree must be credited according to the provisions of Article 14 of Royal Decree 338/1990 of 9 March 1990.

TRANSIENT DISPOSITION

The Prosecutor will inform the Foreign Transactions Directorate of the Ministry of Economy and Finance of the judicial decisions regarding dismissal or file that are dictated with respect to previous conduct that they are of criminal relevance within the meaning of this Royal Decree, for the purposes of purging, where appropriate, the administrative responsibilities to which they are responsible.

FINAL PROVISIONS

First.

By the Minister of Economy and Finance the rules for the development of this Royal Decree will be dictated, and the procedures for communication and information between the organs of the State Administration competent in (a) the control of changes, the organs of the Tax Administration and the Bank of Spain.

Second.

Royal Decree No 2402/1980 of 10 October 1980 on the Legal Regime for the Control of Changes, Royal Decree 1750/1987 of 18 December 1987 liberalising the transfer of technology and the provision of foreign technical assistance to Spanish companies and Royal Decree 1723/1985 of 28 August, simplifying and unifying the system of foreign accounts in pesetas.

The following Ministerial Orders are also repealed:

Order of 25 November 1959, on the payment of tickets issued by air navigation companies for international lines.

Order of July 28, 1962 on currency exchange offices.

Order of the Presidency of the Government of 15 September 1970 on the export of bank notes and other currency-encrypted instruments of rotation or credit.

Order of the Ministry of Economy and Finance of March 13, 1987, on travel and foreign travel expenses and movement of foreign exchange and pesetas by border.

Order of the Ministry of Economy and Finance of 26 June 1987 on the regulation of foreign accounts of convertible pesetas.

Order of the Ministry of Economy and Finance of 10 May 1988, on charges and foreign payments related to exports.

Order of 10 April 1989, for which it is partially amended on 26 June 1987, on the regulation of foreign accounts of convertible pesetas.

Order of the Ministry of Economy and Finance of 29 May 1989 on foreign payments and charges related to imports.

Order of 29 June 1989, amending the order of 10 May 1988, on charges and external payments related to exports.

Article 1 of the Order of 12 March 1990 on foreign accounts of convertible pesetas and foreign investments in State Debt.

Order of the Ministry of Economy and Finance of 19 June 1990 on the liberalisation of external guarantees.

Order of the Ministry of Economy and Finance of 16 April 1991, authorising loans in pesetas granted by the Entities delegated to non-residents.

Order of the Ministry of Economic Affairs and Finance of 16 April 1991 authorizing accounts in foreign currency of residents.

Order of the Ministry of Economy and Finance of June 13, 1991, which regulates the invisible operations with the exterior.

This Royal Decree will enter into force on 1 February 1992.

Given in Madrid at December 20, 1991.

JOHN CARLOS R.

The Minister of Economy and Finance,

CARLOS SOLCHAGA CATALAN