Law 26/2013, of December 27, of savings banks and bank foundations, has established a legal framework that aims to complete the process of transforming the savings banks that have occurred in our country. country in recent years.

In the wake of the financial crisis, during which a significant part of the savings banks went through significant difficulties, rules were issued for these institutions to transfer their financial activity to a bank and Only the foundational activity, whose foundation was found in the need to improve the corporate governance and the solvency of these types of entities.

This process concludes with the current law, which is declared to have the boxes performing their activities in the traditional way, that is, focusing their activities at the regional level and in the retail sector.

The new legal regime that the Law 26/2013 draws, of December 27, also makes emerging a new type of institution that gains importance in the financial sphere: the banking foundations, which are those foundations that maintain a holding in a credit institution which, directly or indirectly, reaches at least 10% of the capital or voting rights of the institution, or which allows it to appoint or remove any member of its body from administration.

The regulation contained in Law 26/2013 of 27 December on the banking foundation has a dual purpose: on the one hand, to establish clear obligations of corporate governance to ensure that foundations The Bank of the European Investment Bank (ECB), the Bank of the European Investment Bank (ECB), the Bank of the European Union, and the European Investment Bank (ECB), the European Investment Bank (ECB), the European Investment Bank (ECB), and the European Investment Bank (ECB) which the law provides for various mechanisms that incentivise a policy of disinvestment an order of the credit institutions.

In order to achieve its objectives, Law 26/2013 of 27 December sets out a triple category of obligations to be observed by banking foundations, taking into account their level of participation and control in the bank investee credit.

At a first level, all banking foundations are required to comply with certain corporate governance obligations, including the filing of an annual corporate governance report. These obligations are a minimum, basic and necessary element to ensure that no dysfunctions are produced which, by impact on the investee credit institution, may have consequences for the stability of the financial system.

There is a second type of bond, of higher intensity, for those banking foundations that hold a stake equal to or greater than 30 percent of the capital in a credit institution or allow them to control the bank. itself. These entities will have to draw up a management protocol that will regulate certain aspects of the relationship between the banking foundation and the investee credit institution and, in addition, a financial plan in which they determine how they will against the capital requirements in which the institution in which they participate and the basic criteria of their investment strategy in financial institutions may incur.

Finally, banking foundations that hold a share of 50 percent or more in a credit institution or allow them to control it, apart from other specific additional obligations, will have to include a plan for diversification of investments and risk management with respect to the investee credit institution and provide a reserve fund to deal with the possible needs of the credit institution's own resources that cannot be covered by other resources and which, in the view of the Bank of Spain, could endanger the completion of the their solvency obligations.

Taking into account this gradation of obligations, this royal decree establishes the particularities of the formation of the reserve fund, in accordance with the habilitation conferred on the government by the twelfth final provision of the law.

The royal decree has been structured as follows: Articles 1 and 2 delimit the object and scope of application, and it is worth noting that the constitution of the reserve fund, according to the law, is required. obligatorily to all banking foundations that have a direct or indirect holding, greater than or equal to 50 percent in the investee credit institution or a control position in it.

The explanatory statement of the law is clear as to the requirement that all bank foundations with majority participation in the entity or controlling it constitute the reserve fund, when it notes that " A higher degree of intervention in the state legislation will ultimately fall on those bank foundations that hold control positions on a credit institution or hold a share of more than 50 percent. These institutions shall draw up a divestment plan for their investments in order to minimise risks and constitute a reserve fund to ensure the financing of the credit institution involved in situations of difficulty (...) ".

Therefore, the reserve fund must be effectively constituted by all these types of banking foundations, although it will only be used in the event that the participating credit institution faces a situation of need own resources and, as the law points out, cannot cover it with other types of resources.

The reserve fund calculation is made in the first instance from the value of the risk-weighted assets of the investee entity, which should be understood from a prudential perspective as the assets weighted by the risk of the consolidated group or sub-group whose parent company is the participating credit institution. In this respect, it is necessary to take into account that prudential requirements, and hence the calculation of risk-weighted assets, are not always required at an individual level, as derived from Article 7 of Regulation (EU) No 575/2013 of the European Parliament and of the Council [7]. European Commission and Council of 26 June 2013 on the prudential requirements of credit institutions and investment firms and amending Regulation (EU) No 648/2012, but there are occasions when the calculation is only made to the group level. In addition, it is necessary to ensure that the calculation of the volume of the risk-weighted assets does not vary by the mere fact that the participating credit institution creates a holding entity for those assets within its own group, as this would be a way to circumvent what the law wanted by requiring the reserve fund.

Consequently, the solution adopted by the royal decree is fully respectful of the legislator's intention: the reserve fund is a mechanism that allows to improve the solvency of the participating credit institution and, at the same time, time, incentivizes the disinvestment in the same.

In addition, the requirements are determined so that the reserve fund can be constituted by a bank foundation through a holding entity and determines the period of time at which the fixed level of the reserve fund for each bank foundation.

In Articles 3 to 6, a specific regulation is made on how the reserve fund should be calculated for the institutions, and on their use, on the basis of an objective minimum amount to be modified upwards or downwards. depending on a number of factors extracted from the law itself.

Likewise, the royal decree establishes a transitional regime for the presentation of the first financial plans since the approval of the regulations governing the reserve fund, and also introduces provisions making reference to the titles of competence under which it is issued and the date of its entry into force.

Additionally, this royal decree also modifies the regulation that the recast of the Law of Audit of Accounts, approved by Royal Decree 1517/2011, of October 31, develops. The eighth final provision of Law 22/2015, of July 20, of Audit of Accounts, sets the deadline of one year for the Government, at the proposal of the Minister of Economy and Competitiveness, to determine the conditions to be met by the institutions. to have the consideration of entities of public interest because of the significant public importance they may have for the nature of their business, for their size or for their number of employees, in compliance with the regulatory enablement provided for in Article 3.5.b) of the recast text.

A similar rating existed in the previous law and, in its use, by regulatory means, through Article 15 of the Regulation that develops the recast text of the Audit of Accounts Act, is defined and concept of "public interest entity" so far in force.

In order to comply with this mandate, taking into account the appropriateness of adapting the current number of public interest entities to the parameters or criteria of other Member States of the European Union, It is appropriate to amend Article 15 of the current Regulation.

Also, compliance with the regulatory clearance contained in paragraph 3.b) of the third provision of Law 22/2015 of 20 July 2015, which allows certain entities of public interest to be exempted from the have an Audit Committee provided that the Community rules so permit, as is the case with collective investment institutions.

Finally, this royal decree amends the Regulation of the Development of Law 35/2003, of 4 November, of Collective Investment Institutions, with two objectives. First, to make the liquidity ratio of financial IICs more flexible, in such a way that the minimum requirement of 3% of its equity in liquid assets is replaced by a minimum coefficient of 1% and the an obligation for IICs to have a sufficient level of cash convertible assets on a daily basis to enable them to meet repayments within the time limits laid down in the rules. And secondly, Article 132 is amended, in order to make explicit in the rule the principles to which the current provision is referred and which are those laid down in Article 16 of Directive 2006 /73/EC of 10 December 2006. August 2006, implementing Directive 2004 /39/EC of the European Parliament and of the Council as regards the organisational requirements and operating conditions of investment firms, and terms defined for the purposes of that Directive Directive.

In its virtue, on the proposal of the Minister of Economy and Competitiveness, in agreement with the Council of State and after deliberation of the Council of Ministers at its meeting on October 2, 2015,

DISPONGO:

Article 1. Object.

This royal decree aims to develop article 44.3.b) of Law 26/2013, of December 27, of savings banks and bank foundations, in relation to the reserve fund to be set up by the banking foundations. provided for in Article 44.3 of that law.

Article 2. Scope.

This royal decree will apply to all banking foundations that hold a direct or indirect holding, equal to or greater than 50 percent in a credit institution or which allows them to control the bank in the the terms provided for in Article 42 of the Trade Code, and which have not indicated their intention to avail themselves of the provisions of Article 44.3.b), last paragraph, of Law 26/2013 of 27 December.

Article 3. Constitution and use of the reserve fund.

All banking foundations referred to in Article 2 shall constitute a reserve fund in accordance with the terms of Article 44.3 of Law 26/2013 of 27 December.

The Banco de España will develop the assumptions and the way in which the banking foundation should make use of the reserve fund to meet the solvency needs of the participating entity. In any event, the reserve fund should be used provided that there has been a significant decrease in the equity of the investee, which, in the view of the Banco de España, could endanger compliance with the the solvency rules of the institution.

Article 4. Determination of the reserve fund.

1. The reserve fund shall reach a minimum target amount which shall be the result of applying a percentage of the total of the risk-weighted assets of the consolidated group or sub-group whose parent company is the credit institution participated. Risk-weighted assets shall be calculated in accordance with Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements of credit institutions and of credit institutions. investment, and amending Regulation (EU) No 648/2012.

2. The percentage referred to in the preceding paragraph shall be that of applying the following table on the basis of the total capital ratio calculated in accordance with Article 92.2.c of Regulation (EU) No 575/2013 of 26 June 2013 maintaining the a consolidated group or sub-group whose parent company is the participating credit institution is one of the following values:

Capital Ratio	%
< 10%
≥ 10% and < 11%
	≥ 11% < 12 %	1.25
≥ 12% < 13%	1.00
≥ 13%	0.75

3. The amount of the reserve fund resulting from the application of the criteria set out in the preceding paragraph shall be increased or reduced, where appropriate, with the amounts resulting from the application of the following percentages on the assets risk weights referred to in paragraph 1:

(a) A reduction of 0.5 percent in those cases where the shares of the participating credit institution are admitted to trading on official securities markets or on active markets, provided that the percentage of shares owned by third parties outside the group to which the entity belongs is more than 25%. For the purposes of this letter, it is active markets that are defined by the Banco de España in its accounting rules.

(b) Increase of 1% when the sum of the instruments available as own resources held by the banking foundation in other financial institutions, excluding participation in the participating credit institution, is more than 40 percent of his net worth.

c) Reduction or increase of the following percentages according to the direct, or indirect, participation through the holding company, which is held in the credit institution:

in credit institution	%
< 50%	-0.5
≥50% and < 60%	0
≥ 60% and < 70%	+0.5
≥ 70%	+ 1

4. The objective amount of the reserve fund may not be less than 0,6% of the risk-weighted assets referred to in paragraph 2, without prejudice to the Bank of Spain, taking into account the individual circumstances of the establishment bank, you can set a lower one.

5. The amount of the reserve fund shall be calculated annually in the financial plan, which shall contain a schedule of minimum allocations to the amount resulting from the application of this royal decree.

6. The reserve fund constituted shall be invested in high liquidity and credit quality financial instruments, which shall be at all times available for use by the foundation.

Article 5. Form of establishment of the reserve fund.

1. The reserve fund may be set up within the banking foundation itself or through a holding entity. It will only be possible to make use of a holding entity when the following requirements are met:

(a) That the banking foundation directly holds 100 percent of the capital of the holding entity. In the case of several banking foundations participating in the capital of a credit institution and constituting a single holding entity, 100% of the direct participation therein shall be distributed among the banking foundations in proportion to the participation of each of them in the credit institution.

(b) The holding entity shall be the holder of assets of sufficient liquidity and credit quality, of which it can freely dispose of, immediately and without limitation, any derivative, inter alia, of the need to obtain the consent of third parties, all in order to make the purpose of the reserve fund effective.

(c) The holding entity is not part of the prudential consolidation perimeter of the credit institution that is directly or indirectly involved in the banking foundation.

2. The assets in which the reserve fund materializes may only be provided to the participating credit institution to meet its solvency needs in such a way that it does not generate additional own resources requirements.

Those assets which, by application of the preceding paragraph, must be sold or permuted prior to their transfer to the participating credit institution, shall be accounted for in the reserve fund with a reduction in value that may reach up to 33%, to be determined by the Banco de España on the basis of the liquidity of such assets and the estimated loss of value that could be produced at the time of its sale or swap.

3. It is for the Bank of Spain to monitor compliance with the requirements set out in this Article, in order to ensure that the reserve fund can effectively meet the purpose provided for in Article 44.3.b. Law 26/2013, of December 27.

Article 6. Deadline for setting up the reserve fund.

1. The target volume of the reserve fund shall be reached within the maximum period of 5 years from the entry into force of the Banco de España circular which develops this royal decree or from the date on which the banking foundation acquires control or a a share of more than 50% in the investee credit institution, if any of these events were to take place thereafter.

2. If, as a result of the development of the economic and financial situation of the participating credit institution or the development of market conditions, the objective volume of the reserve fund cannot be reached in the The Bank of Spain may request the Bank of Spain to extend that period up to two years.

3. The allocation schedule for the reserve fund should be detailed in the financial plan which the banking foundation has to present to the Banco de España. The periodic allocations provided for in the said timetable must be linear over time, without prejudice to any changes to the timetable justified by the variation of the own resources requirements laid down in the financial plan or other relevant circumstances.

First transient disposition. Presentation of the financial plan.

The banking foundations provided for in this royal decree will have to present their financial plan, or update the already submitted or approved, within three months of the entry into force of the Banco de España circular. develop this royal decree.

Second transient disposition. Requirements to be required of public interest entities.

For the purposes of determining, in the year in which this rule enters into force, compliance with the requirements referred to in points (b), (c) and (e) of Article 15 (1) and in Article 15 (2). Royal Decree 1517/2011 of 31 October, implementing the Regulation implementing the recast of the Audit Law, approved by the Royal Legislative Decree 1/2011 of 1 July, in the form of the provision First, account shall be taken of the new parameters corresponding to the last social year for which the closure has occurred prior to the entry into force of this royal decree as well as the immediately preceding one.

Single repeal provision. Regulatory repeal.

All provisions of equal or lower rank are repealed to be opposed to the provisions of this royal decree.

Final disposition first. Amendment of Royal Decree 1517/2011 of 31 October, approving the Regulation that develops the recast text of the Audit of Accounts Law, approved by the Royal Legislative Decree 1/2011, of July 1.

Royal Decree 1517/2011 of 31 October, approving the regulation that develops the recast of the Audit of Accounts Law, approved by the Royal Legislative Decree 1/2011, of July 1, is amended in the following terms:

One. Article 15 is amended as follows:

" Article 15. Entities of public interest.

1. For the exclusive purposes of the regulatory provisions of the audit of accounts, they shall have the following consideration of public interest entities:

(a) Credit institutions, insurance institutions, as well as securities issuing entities admitted to trading on official securities markets or on the stock market alternative to the segment of expanding enterprises.

(b) Investment service companies and collective investment institutions which, for two consecutive years, at the closing date of each of them, have at least 5,000 clients, in the first case, or 5,000 shareholders or shareholders, in the second case, and the management companies managing those institutions.

(c) Pension funds which, for two consecutive financial years, at the closing date of each of them, have at least 10,000 members and the management companies managing those funds.

d) Banking foundations, payment institutions and electronic money institutions.

e) Those entities other than those referred to in the preceding paragraphs, the net amount of the business figure and average template for two consecutive financial years, at the closing date of each of them, is higher than 2,000,000,000 euros and 4,000 employees, respectively.

(f) Groups of companies in which the dominant company is one of the entities referred to in the preceding letters.

2. The entities referred to in paragraph 1 (b), (c) and (e) shall lose the consideration of public interest entities if they fail to meet for two consecutive years, at the closing date of each of them, the requirements laid down in those financial years. paragraphs.

The entities provided for in this paragraph shall have the status of entities of public interest if they meet the requirements for the closure of the social exercise of their constitution, transformation or merger and of the financial year immediately thereafter. However, in the event that one of the entities participating in the merger or the entity that is transformed has the consideration of an entity of public interest in the financial year preceding that operation, they shall not lose any such status. the resulting entities if they meet the requirements set out in the above paragraphs at the close of that first social exercise. '

Two. A new additional provision is added thirteenth with the following wording:

" Additional Disposition thirteenth. Commission of Audit of Public Interest Entities.

In accordance with paragraph 3.c) of the third provision of Law 22/2015, of 20 July 2015, of Audit of Accounts, collective investment institutions and pension funds referred to in Article 15.1.b) and (c) shall not be required to have Audit Committee. "

Final disposition second. Amendment of the Regulation of the Development of Law 35/2003 of 4 November of Institutions of Collective Investment, approved by Royal Decree 1082/2012, of July 13.

The Regulation of the Development of Law 35/2003 of 4 November of Collective Investment Institutions, approved by Royal Decree 1082/2012 of July 13, is amended as follows:

One. The following new wording is given to Article 53:

" Article 53. Liquidity.

1. In order to comply with the liquidity principle, financial IICs shall have a sufficient level of assets to meet the following requirements:

(a) That the assets can be sold quickly and at a price close to that for which they were valued before the sale,

b) to allow IIC, both under normal and exceptional liquidity conditions, to meet repayments within the time limits set in this royal decree and its development regulations as well as in the fund management regulation the investment company or the instruments of incorporation of the investment company concerned, as well as ensuring the settlement of the committed transactions, and

c) that is consistent with the IIC's global liquidity management policy, which must necessarily be evaluated using stress or stress tests.

2. In any event, and without prejudice to the provisions of the previous paragraph, IICs of a financial nature shall maintain a minimum liquidity ratio of 1% of their assets. The CNMV shall determine by circulating the procedure for calculating this coefficient on the monthly average of daily balances of the institution's assets as well as the categories of liquid assets in which it can be realised on the basis of market conditions in which they can be made effective or the speed of settlement procedures, inter alia.

If the depositary does not have the consideration of a credit institution, the IIC shall include in the prospectus the identification of the credit institution in which it shall, where appropriate, materialize the cash, deposits or accounts in the view.

3. Assets not invested in assets that are part of the liquidity ratio shall be invested in the eligible assets and financial instruments referred to in Article 48.

4. The management company or, in the case of being self-managed, the SICAV must have internal systems of control of the depth of the market of the values in which it invests considering the usual negotiation and the volume invested, in order to procure a orderly settlement of the IIC positions through the normal procurement mechanisms. The IIC information documents shall contain an explanation of the policy adopted in this regard. "

Two. The following new wording is given to Article 132:

" Article 132. Cash control function.

1. The depositary shall ensure that the cash flows of the IIC are properly controlled and, in particular, ensure that all payments made by or on behalf of investors at the time of the subscription of shares in an IIC, have been received and all IIC cash has been deposited into treasury accounts which:

(a) Be open in a credit institution in the name of the IIC or the depositary acting on behalf of the IIC.

(b) Be maintained by the depositary in accordance with the following principles set out in Article 16 of Directive 2006 /73/EC of 10 August 2006:

1. º Allow at any time and without delay the distinction between the cash of the IIC of the cash of other IICs and other clients, as well as their own,

2. to ensure its accuracy and, in particular, its correspondence with the IIC cash,

3. consistently reconcile accounts with those of third parties in whose power the deposit is maintained,

4. to ensure that the cash of the IIC deposited in a third party is distinguished from the cash belonging to the depositary and from that which belongs to that third party, by accounts with a different denomination in the third party's accounts or other equivalent measures with which the same level of protection is achieved,

5. to ensure that IIC funds that have been deposited with a central bank, credit institution or authorized bank in a third country or a money market fund enabled are accounted for in an account or accounts other than those in which the funds belonging to the depositary are accounted for,

6. minimize the risk of IIC cash loss as a result of poor utilization, fraud, poor management, inadequate record-keeping or neglect, and

7. to safeguard the rights of the IIC on cash, especially in the event that the depositary is declared in the competition of creditors, and to prevent the use of such cash from the IIC, except in the case of credit institutions.

2. Where cash accounts are opened in the name of the depositary acting on behalf of the IIC, the cash of the depositary or the credit institution in which they are open shall not be entered in those accounts.

3. The management company or, where appropriate, the directors of the investment company may not in any case open accounts or have directly the balances of accounts belonging to the IIC. They shall also not extend cheques or any other payment instrument against the accounts which the IIC has open in the depositary or in third entities, the depositary being the only authorised one for that purpose in accordance with the instructions of the company manager or, where appropriate, the managers of the investment company.

4. It will be up to the depositaries to receive and guard the liquid assets of the IICs.

5. Depositaries may maintain transitional balances associated with the settlement of securities purchases, in other financial intermediaries that are legally entitled to maintain such balances.

6. Where the collective investment institution holds cash accounts in deposit entities other than the depositary, where the depositary is not a credit institution, only the depositary may make or authorise movements on these accounts. The above shall also apply in respect of the transitional balances associated with the operational with securities, bilateral operations and investments in other IICs. '

Final disposition third. Competence title.

This royal decree is dictated in accordance with the provisions of article 149.1.6., 11. and 13. of the Spanish Constitution which attribute to the State exclusive powers in matters of commercial law, the powers over the basis for the management of credit, banking and insurance; and the skills on the basis and coordination of the overall planning of economic activity, respectively.

Final disposition fourth. Regulatory enablement.

The Bank of Spain is enabled for the development of the provisions of this royal decree.

Final disposition fifth. Entry into force.

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

The provisions of the first paragraph of the first paragraph shall apply from 17 June 2016.

Given in Madrid, on October 2, 2015.

FELIPE R.

The Minister of Economy and Competitiveness,

LUIS DE GUINDOS JURADO