Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-10636
Law 26/2013, of 27 December, boxes of savings and banking foundations, has established a legal framework which aims to complete the process of transformation of savings that has occurred in our country in recent years.
As a result of the financial crisis, during which a significant part of the savings banks went through major difficulties, were rules aimed at these entities to pass its financial activity to a Bank and keep only the foundational activity, which was found in the need to improve corporate governance and solvency of this kind of entities.
This process concludes with the current law, which has as its stated purpose boxes to exercise their activities in the traditional way, i.e., focusing its activities at the regional level and in the retail sector.
The new legal regime which draws the Law 26/2013, December 27, also makes emerge a new kind of institution that becomes important in the financial sector: banking foundations, which are those foundations which maintain a participation in a credit institution that reaches, directly or indirectly, at least 10 per cent of the capital or of the voting rights of the entity , or that allows you to appoint or dismiss any member of its Board of Directors.
The regulation containing the Law 26/2013, of 27 of December, in connection with the Bank Foundation has a dual purpose: on the one hand, to establish clear obligations of governance to ensure that the banking foundations operate in the financial markets in an appropriate way and with full guarantee of preservation of financial stability; and, on the other hand, promote that them foundations reduce gradually its participation in them entities of credit, for which the law establishes various mechanisms that encourage a political of divestment ranked of them entities of credit.
In order reach their objectives, the Law 26 / 2013, of 27 of December, sets a triple category of obligations that should observe them foundations Bank, taking in has its level of participation and control in the entity of credit participated.
A first level, requires all banking foundations, by the fact of being so, to comply with certain obligations to corporate governance, including the annual report of corporate governance. These obligations constitute an element minimum, basic and necessary to ensure that not is produce dysfunctions that, by impact in the entity of credit owned, can have consequences in the stability of the system financial.
There is a second type of obligations, of greater intensity, for those foundations Bank that possess a participation equal or superior to the 30 percent of the capital in an entity of credit or that les allow the control of the same. These entities will have that develop a protocol of management that will regulate certain aspects of the relationship between the Foundation Bank and it entity of credit participated and, also, a plan financial in which determined the way in that will make facing them needs of capital in that could incur it entity in which participate and them criteria basic of its strategy of investment in entities financial.
Finally, Bank foundations who have a stake equal to or greater than 50 percent in a credit institution or which allows them to control the same, apart from other specific additional obligations, must include a plan of diversifying investments and management of risks regarding the subsidiary credit institution and provide a reserve fund to meet possible needs of own resources of the credit institution that can not be covered with other resources and that, in the opinion of the Bank of Spain, could jeopardize fulfilment of its obligations in the area of solvency.
Taking into account this gradation of obligations, this Royal Decree establishes the particularities of the establishment of the reserve fund, in accordance with the authorization granted to the Government by the twelfth final provision of the law.
The Royal Decree has been structured as follows: articles 1 and 2 define the object and scope, being able to note that the Constitution of the Fund's reserve, in accordance with the law, is required obligatorily all banking foundations which have a direct or indirect holding greater than or equal to 50 per cent in the subsidiary credit institution or a position of control in it.
The explanatory statement of the law is clear in terms of the obligation that all banking foundations with majority ownership in the entity or monitor it constitute the reserve fund, when it says that "the greater degree of intervention of the State legislation, finally, will fall on those banking foundations that have control over an entity's credit positions or have a greater than 50 percent participation. These entities should develop a plan of divestiture of investments to minimize risks and establish a reserve fund to guarantee the financing of the credit institution engaged in situations of hardship (...)».
Therefore the reserve fund should be constituted effectively by all this type of banking foundations, but it will only be used in the event that the subsidiary credit institution front need of own resources and, as it points out the law, may not cover it with another type of resource.
The calculation of the reserve fund is in the first instance from the value of the assets weighted by risk of the investee entity, which must be understood from a prudential perspective as the assets weighted by risk group or subgroup consolidatable whose parent company is the subsidiary credit institution. In this regard, must be taken into account that requirements prudential, and therefore the calculation of risk-weighted assets not always required at the individual level, as it is derived from article 7 of the Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms , and by which is modifies the Regulation (EU) No. 648 / 2012, but there are occasions in that the calculation only is made at the level of group. Added to this, it is necessary to ensure that the calculation of risk-weighted assets volume does not vary by the mere fact of the subsidiary credit institution to create an entity holding those assets within his own group, because this would be a way to bypass the beloved by law by requiring the reserve fund.
As a result, the solution adopted by the Royal Decree is fully respectful with the intention of the legislator: the reserve fund is a mechanism that allows to improve the solvency of a subsidiary credit institution and, at the same time, encourages the same divestment.
In addition, requirements are determined so that the reserve fund may be constituted by a banking Foundation through a holding entity and determines the period of time in which the level of the Reserve Fund for each Bank Foundation must be achieved.
In articles 3 to 6 is a specific regulation on the form that you must calculate the Reserve Fund for institutions, and its use, on the basis of an objective minimum amount that will be changed upward or downward depending on a number of factors extracted from the law itself.
In addition, the Royal Decree establishes a transitional arrangements for the presentation of the first financial plans since the adoption of the regulation which governs the reserve fund, and also introduces provisions referring to the competence titles under which is run by fixing the date of its entry into force.
Additionally, this Royal Decree also amends Regulation developed by the consolidated text of the law on audit of accounts, approved by the Royal Decree 1517 / 2011, on 31 October. Final disposition eighth law 22/2015, 20 July, audit of accounts, set within a year so that the Government, on the proposal of the Minister of economy and competitiveness, determine the conditions to be fulfilled the entities to be regarded as entities of public interest because of the significant public importance to the nature of its activity (, their size or their number of employees, in compliance with the regulatory qualification provided for in article 3.5. b) of the above-mentioned consolidated text.
A similar enabling existed in the old law, and in use of it, via regulation, article 15 of the regulation which develops the recasted text of the law on audit of accounts, was delimited and concept of 'public interest institution' until now existing.
In order to duly comply with the above-mentioned mandate, and bearing in mind the desirability of adapting the current number of public interest entities to parameters or criteria of other Member States of the European Union, it is appropriate to amend article 15 of the existing regulation cited.
It is also given pursuant to the statutory empowerment contained in paragraph 3.b) of the third additional provision of law 22/2015, of 20 July, which allows exempting certain entities of public interest for Audit Committee whenever so permitted by the Community legislation, as it happens with the collective investment institutions.
Finally, this Royal Decree modifies the regulation of development of it law 35 / 2003, of 4 of November, from institutions of investment collective, with two objectives. First of all, to make more flexible the coefficient of liquidity of the IIC's financial, so replaced the minimum requirement of 3 percent of their assets in liquid assets by a minimum of 1 per cent ratio and the obligation that the IIC with one sufficient level of daily cash-convertible assets enabling them to meet repayments within the deadlines established in the regulations. And second, amending article 132, in order to make explicit in the standard principles the current provision refers to those who currently and which are those set out in article 16 of Directive 2006/73/EC of 10 August 2006, which implements Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions of terms defined for the purposes of this directive, and investment companies.
By virtue, on the proposal of the Minister of economy and competitiveness, according to the Council of State and after deliberation by the Council of Ministers at its meeting of October 2, 2015, have: article 1. Object.
This Royal Decree is intended to develop the article 44.3. b) of law 26/2013, of 27 December, boxes of savings and banking foundations, in relation to the reserve fund which should constitute the banking foundations laid down in article 44.3 from that law.
Article 2. Scope of application.
This Royal Decree shall apply to all foundations bank holding a participation, direct or indirect, greater than or equal to 50 per cent in a credit institution that allows them to control it in the terms provided for in article 42 of the code of Commerce, and who have not expressed their intention to avail himself of the provisions of article 44.3. b) , last paragraph, of the Law 26/2013, December 27.
Article 3. Constitution and use of the reserve fund.
All the banking foundations referred to in article 2 shall constitute a reserve fund on the terms provided for in article 44.3 of Act 26/2013, December 27.
The Bank of Spain will develop assumptions and the way in which Bank Foundation must make use of the reserve fund to meet the needs of the creditworthiness of the investee entity. In any case, you should make use of the Reserve Fund whenever a significant decrease in equity of the investee entity, which, in the opinion of the Bank of Spain, could endanger compliance with the regulations about solvency of the entity has occurred.
Article 4. Determination of the reserve fund.
1. background of book must reach an amount minimum objective that will be which result of apply a percentage on the total of them active weighted by risk of the group or subgroup consolidatable whose society matrix is the entity of credit participated. Them active weighted by risk is calculated according to it established in the Regulation (EU) No. 575 / 2013 of the Parliament European and of the Council, of 26 of June of 2013, on them requirements prudential of the entities of credit and the companies of investment, and by which is modifies the Regulation (EU) No. 648 / 2012.
(2. the percentage indicated in the preceding paragraph is the result of applying the following table depending on the ratio of total capital calculated in accordance with article 92.2. c) of the Regulation (EU) No. 575/2013, of 26 June 2013, that keep the group or subgroup consolidatable whose parent company is the credit institution subsidiary is situated between any of the following values :
Ratio de capital total
≥ 10 % y < 11 %
≥ 11 % < 12 %
≥ 12 % < 13 %
≥ 13 %
3. (He amount of the background of book that is of the application of them criteria established in the paragraph previous, is increase or will reduce, in its case, with them amounts resulting of it application of them following percentages on them active weighted by risk cited in the paragraph 1: to) reduction of the 0.5 percent in those alleged in that them actions of the entity of credit participated are admitted to negotiation in markets official of values or in markets active , provided the percentage of actions property of third alien to the group to which the entity belong is superior to the 25 per cent. To the effects of this letter, are markets active which defines the Bank of Spain in its regulatory accounting.
(b) increase of 1 percent when the sum of the Computable instruments such as equity holding Bank Foundation in other financial institutions, excluded the participation in the subsidiary credit institution, is superior to 40 percent of their net worth.
(c) reduction or increase of the following percentages depending on the direct or indirect participation through interposed company, having in the credit institution: participation in the Organization of credit % < 50% - 0.5 ≥50% and < 60% 0 ≥ 60% and < 70% + 0.5 ≥ 70% + 1 4. The target amount of the reserve fund may not be less than 0.6 per cent of assets weighted by risk referred to in paragraph 2, without prejudice to the Bank of Spain, in response to the individual circumstances of the Bank Foundation, can fix an inferior.
5. the amount of the reserve fund shall be calculated annually in the financial plan, which should contain a calendar of endowments minimum up to the amount resulting from the application of this Royal Decree.
6. the reserve fund constituted must invest in financial instruments of high liquidity and credit quality, which must be at all times available for use by the Foundation.
Article 5. Form of Constitution of the reserve fund.
1. the reserve fund may be constituted within the Bank Foundation itself or through a holding company. Will only be possible to make use of a holding entity when the following requirements are met: to) that the Bank Foundation directly holds 100 percent of the capital of the holding entity. In the case that several banking foundations participate in the capital of a credit institution and constitute a single entity holding, 100 percent of direct participation in it should be distributed between the banking foundations in proportion to the participation of each of them in the credit institution.
(b) that the holding entity is holder of assets sufficient liquidity and credit quality, of which they may dispose freely, immediately and without limitation any derived, among other cases, of the need to obtain the consent of third parties, all in order to give effect to the purpose of the reserve fund.
(c) that the holding entity not part of the scope of prudential consolidation of the subsidiary credit institution, directly or indirectly, by the Bank Foundation.
2. assets that materializes only reserve fund may be contributed to the subsidiary credit institution to meet their needs of solvency in so as to not generate you needs for additional resources.
Those assets which, by application of the preceding paragraph, be sold or exchanged way prior to their transfer to the credit institution participated, are counted in the reserve fund with a reduction in value that can reach up to 33 per cent, to be determined by the Bank of Spain as a function of the liquidity of those assets and the estimated loss of value that might occur at the time of sale or Exchange.
(3 corresponds to the Bank of Spain to supervise the compliance with the requirements provided for in this article, in order to ensure that the reserve fund can meet effectively the purpose provided for in article 44.3. b), paragraph first, Law 26/2013, December 27.
Article 6. Deadline for establishment of the reserve fund.
1. volume target of the reserve fund shall be within a maximum period of 5 years from the entry into force of the circular of the Bank of Spain that develops this Royal Decree or the date that the Bank Foundation acquires control or owned more than 50 per cent on the credit institution, if any of these facts occurred after.
2. If as a result of the evolution of the economic and financial situation of the credit institution owned or the development of market conditions, be warned that you cannot reach is the target volume of reserve fund within a maximum period of five years which refers above, Bank Foundation may request from the Bank of Spain an extension of this period up to two years.
3. the calendar of allocations to the reserve fund should detail in the financial plan that Bank Foundation must submit to the Bank of Spain. Periodic allocations provided for in the aforementioned schedule shall be linear in time, without prejudice to any amendments to the calendar justified pursuant to the variation of the needs of own resources provided for in the financial plan and other relevant circumstances.
First transitional provision. Presentation of the financial plan.
Banking foundations laid down in Royal Decree must submit their financial plan, or upgrade the already presented or adopted, within the period of three months from the entry into force of the circular of the Bank of Spain that develops this Royal Decree.
Second transitional provision. Requirements of public interest entities.
(((For the purposes of determine, in the exercise in which enters in force this standard, the cumplimientodurante two exercises consecutive of them requirements that is refer them lyrics b), c) and e) delapartado 1 and the paragraph 2 of the article 15 of the Royal Decree 1517 / 2011, of 31 of October, porel that is approves the regulation that develops the text consolidated of it law of audit Auditors , approved by the Real Decree legislative 1 / 2011, of 1 of July, in the writing dadapor it available end first, is will have in has them new parameters correspondientesal last exercise social whose closing is has produced with prior to the entry in vigorde this real Decree as well as to the immediately previous.
Sole repeal provision. Repeal legislation.
Many provisions of equal or lower rank is contrary to the provisions of this Royal Decree are repealed.
Available end first. Modification of the Real Decree 1517 / 2011, of 31 of October, by which is approves the regulation that develops the text consolidated of the law of audit of accounts, approved by the Royal Decree legislative 1 / 2011, of 1 of July.
The Real Decree 1517 / 2011, of 31 of October, by which is approves the regulation that develops the text consolidated of it law of audit of accounts, approved by the Real Decree legislative 1 / 2011, of 1 of July, is modified in the following terms: one. The article 15 is modified in the following terms: ' article 15.» Entities of public interest.
(1.A the exclusive effects of auditing activity regulatory provisions, shall be regarded as public interest entities as follows: to) credit institutions, insurance companies, as well as CAs of securities admitted to trading in official secondary stock markets or in the alternative stock market belonging to the segment of companies expanding.
(b) the companies of investment services and collective investment which, over two consecutive years, to the closing date of each one of them, 5,000 customers, have at least in the first case, or 5,000-unit-holders or shareholders, in the second case, and the management companies that manage these institutions.
(c) pension funds which, over two consecutive years, to the closing date of each one of them, at least 10,000 participants and the management companies that manage the funds.
(d) the banking foundations, payment institutions and electronic money institutions.
(e) entities other than those mentioned in the preceding paragraphs, the net amount of the turnover and average over two consecutive years template, to the closing date of each one of them, exceeds EUR 2,000,000,000 and 4,000 employees, respectively.
(f) the groups of companies in which the parent company is one of the entities referred to in earlier.
2 the entities referred to in paragraph 1.b), c) and e) will lose consideration of entities of public interest if they fail to meet during two consecutive years, to the closing date of each one of them, the requirements set out in those paragraphs.
The entities referred to in this paragraph shall be entities of public interest if they meet the requirements to be at the end of the fiscal year of its Constitution, transformation or merger and immediately following exercise. «However, in the event that an of them entities that participate in the fusion or of that the entity that is transform had the consideration of entity of interest public in the exercise previous to such operation, not lose such condition them entities resulting if meet to the closing of that first exercise social them requirements collected in them cited paragraphs.»
Two. Added a new thirteenth additional provision with the following wording: «thirteenth additional provision. Commission of audit of public interest entities.
«((De conformidad con el apartado 3.c) of the third of the law 22/2015, July 20 additional provision of audit of accounts, collective investment undertakings and pension funds referred to in article 15(1)(a). b) and (c)) shall not be required to have Audit Committee.»
Available to finish second. Amending the regulation of development of law 35/2003, of 4 November, of collective investment institutions, approved by the Royal Decree 1082 / 2012, of 13 July.
The regulation of development of law 35/2003, of 4 November, of collective investment institutions, approved by the Royal Decree 1082 / 2012, of 13 July, is to be re-worded as follows: one. The following new wording is given to article 53: «article 53. Liquidity.
((1. comply with the principle of liquidity, the IIC's financial must have one sufficient level of assets that meets the following requirements: a) which assets can be sold quickly and at a price close to that which have been valued before sale, b) to allow the IIC, both in normal liquidity conditions as exceptional meet the reimbursement within the time limits set out in this Royal Decree and its implementing regulations as well as in the management of the investment fund regulation or the instruments of incorporation of the society of investment concerned, as well as ensure the liquidation of operations involved, and c) that is consistent with the policy of the IIC global liquidity management which necessarily should be evaluated using tests of resistance or tension.
2. in any case, and without prejudice to the provisions of the preceding paragraph, the financial IIC shall maintain a minimum ratio of 1% of their assets liquidity. The CNMV determined by circular the procedure of calculation of this ratio over the monthly average of daily balances of the heritage of the institution as well as the categories of liquid assets that can materialize according to the market conditions in which may become effective or the rapidity of procedures of liquidation, among other aspects.
If the custodian does not have the consideration of credit institution, the IIC shall include identification of the credit institution in which materialize, in the brochure where appropriate, cash, deposits or accounts to view.
3. the heritage not invested in assets that are part of the liquidity coefficient must invest in assets and suitable financial instruments referred to in article 48.
4. the management company or, in the case of be self-managed, the SICAV shall have internal control systems of the depth of the stock market that invests whereas the usual negotiation and the volume invested, to ensure an orderly liquidation of positions of the IIC through normal contracting mechanisms. Information documents of the IIC shall contain an explanation of the policy adopted in this respect.»
Two. The following new wording is given to article 132: «article 132. Cash control function.
1. the depositary will ensure that the IIC cash flow are properly controlled and, in particular, to ensure that all payments made by investors or on behalf of them, at the time of the subscription of shares in an IIC, have been received and that all the cash from the IIC has been deposited on checkbooks to (: a) are opened in a credit institution on behalf of the IIC or depositary acting on behalf of the IIC.
(b) are kept by the depositary in accordance with the principles set out in article 16 of Directive 2006/73/EC of 10 August 2006: 1 allow at any time and without delay the distinction between cash the cash from other customers and other IIC IIC, as well as of his own, 2nd ensure its accuracy and in particular, his correspondence with the cash of the IIC, 3rd regularly reconcile the accounts with the of third parties whose power keep the deposited cash, 4th guarantee that the IIC cash deposited with a third party stand out from the cash belonging to the depositary and which belong to that third party, through accounts with denomination different in the third accounting or other equivalent measures that achieve the same level of protection , 5 ensure that funds from the IIC that have been deposited in a central bank, a credit institution or a bank authorised in a third country or an enabled money market fund are recorded in an account or accounts other than those in which are recorded the funds belonging to the depositary,
6 minimize the risk of loss of the cash of the IIC, as a result of their misuse, fraud, poor administration, improper maintenance of records or negligence, and 7th safeguard the rights of the IIC on cash, especially when the custodian is declared in bankruptcy, and prevent the use of effective the IIC said self-employed except in the case of credit institutions.
2 where Treasury accounts are opened in the name of the depositary acting on behalf of the IIC, non inscrit in these accounts the cash of the depositary nor that of the credit institution which are open.
3. the management company or, where appropriate, investment company managers may not under any circumstances open accounts or have directly belonging to the IIC account balances. They may not extend checks or any other payment instrument against accounts that the IIC has open the depositary or third parties, being the depositary of the only one authorized to do so following the instructions of the management company or, where appropriate, of the investment company's administrators.
4 receive and keep the liquid assets of the IIC will correspond to the depositary.
5. the depositary may maintain transient balances associated with the clearance of purchases and sales of securities, other financial intermediaries legally entitled to maintenance of these balances.
6. when the institution of collective investment available cash accounts in other than the depositary deposit institutions, when this is not a credit institution, only the depositary may make or authorize movements on these accounts. The foregoing shall also apply with respect to the transitional balances associated with the operations with securities, bilateral operations and investments in other IIC.»
Third final provision. Title competence.
This real Decree is dictates of conformity with it planned in the article 149.1.6. th, 11th and 13th of it Constitution Spanish that attributed to the State them skills exclusive in matter of legislation commercial, them skills on bases of the management of credit, banking and insurance; and the competencies on the bases and coordination of the planning general of the activity economic, respectively.
Fourth final provision. Enabling legislation.
It empowers the Bank of Spain for the development of the provisions of this Royal Decree.
Fifth final provision. Entry into force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
It arranged in the disposal end first, paragraph two, will be of application starting from the 17 of June of 2016.
Given in Madrid, the 2 of October of 2015.
The Minister of economy and competitiveness, LUIS DE GUINDOS jury
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