Royal Decree 778/2012, Of May 4, The Legal Regime Of Electronic Money Institutions.

Original Language Title: Real Decreto 778/2012, de 4 de mayo, de régimen jurídico de las entidades de dinero electrónico.

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This Royal Decree develops the regulation contained in Law 21/2011, of 26 July, electronic money, in accordance with the authorization for this purpose which establishes the disposal twelfth of that law. With the approval of this Royal Decree the complete transposition of Directive 2009/110 / EC of the European Parliament and of the Council of 16 September 2009, on access to the activity of electronic money institutions and the exercise is completed, and prudential supervision of these entities, Directives 2005/60 / EC and 2006/48 / EC amending and Directive 2000/46 / EC repealing already incorporated in most of the Spanish legal system through the aforementioned Law 21/2011, of 26 July.

The royal decree is the latest regulatory milestone for economic and social situation developing in the market of the European Union since the dawn of the first electronic prepaid instruments which led to the adoption of Directive 2000/46 / EC , the European Parliament and of the Council of 18 September 2000, on access to the activity of electronic money institutions, pursuit and prudential supervision of these entities. This directive was incorporated into our legislation through Article 21 of Law 44/2002 of 22 November on measures to reform the financial system and Royal Decree 322/2008, of 29 February, on the legal regime of the electronic money institutions, that develops. Both standards were primarily intended to stimulate competition and open up the field of issuing electronic money to various institutions of banking and traditional lending institutions, allowing the creation of a new type of entities, electronic money institutions.

However, the experience with the passage of time and the development of the sector itself advised certain changes in the legal regime of electronic money institutions and the issuance of electronic money that finally materialized in the approval of the Directive 2009/110 / EC.

There are three fundamental objectives that can be identified in the present royal decree, which complement those provided for in the Act:

First, it helps to increase the accuracy of legal regime applicable to the issuance of electronic money, clarifying its definition and scope of the standard. Thus, by increasing legal certainty for those involved in the market, it will facilitate access to the activity of issuing electronic money and stimulate competition in the sector.

On the other hand the complete standard design a more proportionate distribution of electronic money institutions legal regime. Indeed, the legal regime of electronic money institutions existing prior to the entry into force of Law 21/2011, of 26 July, establishing requirements that were too onerous for entities, which were revealed as inadequate relation to the risks that their activity can potentially generate.

Finally, the rule helps to ensure consistency between the new legal regime for payment institutions and applicable to electronic money institutions.

The Royal Decree regulates the legal status of the business of electronic money and concrete also some provisions on the general legal framework for the activity of issuing electronic money. It consists of twenty-seven articles divided into seven chapters, a transitional provision, one repeal provision and three final provisions.

Chapter I, which is comprised of nine articles contains the legal framework for the creation of electronic money institutions.

In particular it is noted, as is customary in the scheme of creation of other financial institutions, which corresponds to the Minister of Economy and Competitiveness authorize the creation of electronic money institutions, following a report from the Bank of Spain and the Executive Service the Commission for the Prevention of Money Laundering and Monetary Offences, in the areas of its competence.

The request must be submitted, also as usual, with the General Secretariat of the Treasury and Financial Policy and foresees the need for registration, as was done, the business of electronic money in a Special Register of the Bank of Spain before starting their activity. some peculiarities in the case of an entity to authorize electronic money is controlled by another entity of a non-Member state of the European Union are also collected.


The requirements are also set to gain and retain the authorization of an electronic money institution and to be tested at the time of the request for establishment of the entity to merit approval. These requirements relate both to the legal form of electronic money institution as initial capital or the conditions to be met partners significant shareholders and managers of the entity.

Also it provided in this chapter the creation by the Bank of Spain of a Register of Senior Officers in which they must register managers and CEOs of electronic money institutions. To this the above obligation to register the payment institutions themselves before starting their activities in the Special Register of electronic money institutions created at the Bank of Spain adds.

Articles 6, 7 and 8 are devoted to the rules applicable to various modifications may experience an electronic money institution, both in its bylaws and its activities, a specific provision for the case of a merger. A final article specifies that the use of the name of electronic money institution or its abbreviation must appear on the corporate name of the entity. This is completed with two sections intended to ensure that the user knows at all times of the legal nature of payment institution that holds your payment service provider.

Chapter II regulates cross-border activity of electronic money institutions and consists of four articles.

The first regulates the opening of branches and the freedom to provide services in a Member State of the European Union Spanish electronic money institutions and provides in particular, the obligation to notify the Bank of Spain and the information that must accompany .

The second details the communication system to the Bank of Spain to be completed by the supervisory authorities of those entities of Community electronic money who want to permanently provide their services in Spain.

In the following two items the system of prior authorization from the Bank of Spain to those Spanish institutions wishing to provide electronic money payment services in a non-Member state of the European Union are subject is concrete, either by opening branches or freedom to provide services.

Chapter III is devoted to the status of the officers and delegation of functions contained each one of the two articles that make up this chapter.

Regarding the status of the officers, Article 14 states that electronic money institutions can not issue electronic money through agents. In the event that providing payment services, this activity itself may be made through agents, for which the requirements of Royal Decree 712/2010, of May 28, the legal regime of payment services shall be met and of payment institutions.

As regards the delegation of tasks, a system of prior informing the Bank of Spain for those that are essential, while communication will be made after the delegation if it functions this affects not essential. This system is completed by a number of provisions aimed at ensuring that the delegation of important operational functions does not result in lower quality or internal control, or impair the responsibilities and obligations of electronic money institutions in relation to users .

Collateral requirements and capital requirements are regulated in the five articles that make Chapter IV of the proposed standard.

The need for electronic money institutions safeguard funds its users to issue electronic money and the execution of payment transactions, requires that these entities have any of the two methods of security established by Law 21 / 2011 of July 26, details of which are specified in the proposed standard. In relation to the first method, insurance and low-risk assets that may invest funds that Article 10.1.a) of Law 16/2009 of November 13, payment service refers to detailed. With regard to the second method the conditions to be met by the insurance policy or comparable guarantee materialize.


On the other hand the calculation method to be applied by payment institutions to determine their capital requirements detailed. In general it shall be the sum of two quantities: 1. Should provide payment services not related to the issuance of electronic money, the amount provided for in the rules of payment services as own resources for payment service entities; and 2. With respect to the activity of issuing electronic money, 2% of the average outstanding electronic money.

In Chapter IV also contained a series of provisions designed to ensure a return to compliance with the rules on own resources, if an entity to present a deficit of own resources compared to those required. First, an obligation to inform the Bank of Spain, which must be accompanied by a program to return to compliance is established. Also, an obligation to submit the application of results to prior authorization from the Bank of Spain is established.

Chapter V introduces the concept of hybrid electronic money institutions, defined as those electronic money institutions that carry, in addition to the issuance of electronic money and the provision of payment services, any other economic activity. some aspects of the standard for special application to these entities, especially from certain requirements both for the activity as the purpose of the request, the Register of Senior Officers, monitoring and accounting adapt.

Finally, detailed in this chapter the procedure under which the Bank of Spain may require an institution hybrid electronic money constitutes a separate electronic money institution, when carrying out other economic activities to the issue electronic money and payment service provision might affect its financial strength or the ability of the authorities to perform their supervisory role.

Chapter VI Additional aspects of the legal regime of the issuance of electronic money, on the one hand are collected, and the provision of payment services by the electronic money institutions on the other.

An exception to the application of the rules governing the issuance of electronic money is established. They are not subject to these regulations the monetary value stored on instruments whose use is limited to the premises of the issuer or within a limited network of providers.

On the other hand, it states that the payment accounts held by the electronic money institutions limitations contained in Royal Decree 712/2010, of May 28 will apply.
Finally
Chapter VII, which contains the last three articles of the proposed standard, includes the monitoring and sanctioning regime applicable to electronic money institutions. Both follow, fundamentally and with some adaptations, the rules applicable to credit institutions.

Is collected also the duty of professional secrecy for all persons in the performance of a professional activity for the Bank of Spain or the exchange of information with other authorities have known confidential data.

Has been introduced in the project develops a transitional provision contained in the Law 21/2011, of July 26, which in turn comes from the EU Directive, which refers to those electronic money institutions that have obtained authorization under Article 21 of Law 44/2002 of 22 November on measures to reform the financial system. Law 21/2011, of July 26, does not require these entities to apply for a new authorization, although required to demonstrate compliance with the requirements for the development of this activity in accordance with it. The project for the purposes of this accreditation, exonerates these entities to provide certain documents, unless required.

Additionally has the project with a derogatory provision and concludes with three final provisions, which contain, respectively, referred to the competence under which dictates the Royal Decree titles, reference to the incorporation of the right of European Union, while full transposition of Directive 2009/110 / EC and its entry into force.

By virtue of the proposal of the Minister of Economy and Competitiveness, with the prior approval of the Minister of Finance and Public Administration, according to the Council of State and after deliberation by the Council of Ministers at its meeting on May 4 2012

DECREE:
CHAPTER
I


Legal regime of the creation of electronic money institutions

Article 1. Authorization and registration of electronic money institutions.

1. For the Minister of Economy and Competitiveness, following a report from the Bank of Spain and the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences in matters within their competence, authorize the creation of electronic money institutions and the establishment in Spain of branches of electronic money institutions authorized or domiciled in a non-member state of the European Union. The authorization activities that can perform the electronic money institution, according to the program presented by the entity be specified.

2. The request for authorization must be settled within three months of receipt at the General Secretariat of the Treasury and Financial Policy or at the time the required documentation is complete. The authorization shall be deemed rejected by the administration, if after the said period had not been notified express resolution.

3. Once the authorization after registering in the Commercial Register, the electronic money institutions must, before commencing their activities, be registered in the Special Register of electronic money institutions from the Bank of Spain. This register shall identify the activities for which the entity authorized electronic money and also will include their branches and agents hired for the provision of payment services. The register shall be public and accessible via a website to be updated regularly.

4. In the event that control of the electronic money institution, under the terms provided in Article 42 of the Code of Commerce, will be exercised by an electronic money institution, a credit institution, a payment institution, a company of investment services or an insurance or reinsurance undertaking authorized in another member State of the European Union or by natural or legal persons who in turn control one of them, the Bank of Spain, before issuing the report referred paragraph 1 shall consult the authorities responsible for the supervision of these entities.

In the event that such control will be exercised by a natural or legal person, whether or not a regulated entity, domiciled or authorized in a country that is not a member of the European Union, will fit those who require control the provision of a guarantee that reaches all the authorized activities of the entity to be created.

Article 2. Requirements for the activity.

Conditions must be met to obtain and retain the authorization of an electronic money institution:

A) Revestir any commercial corporate form. The shares or securities halle contribution that divided the capital must be nominative.

B) have its registered office and its effective administration and management in Spanish territory.

C) Have a capital of not less than 350,000 euros.

D) That the shareholders or members significant shareholders be qualified under the provisions of Article 4 of Law 21/2011, of 26 July, electronic money.

E) The directors of the electronic money institution are persons of recognized integrity and possess most of them, the knowledge required for the issuance of electronic money and the provision of payment services. These requirements must also concur in each of the general managers or similar entity directors.

Professional or business repute when their have been observing a personal path of respect for commercial and other laws regulating economic activity and business life, as well as good commercial, financial and banking practices. It will be understood in any case, unless proved otherwise, that lack such repute who, in Spain or abroad, have a criminal record for fraud or disqualified from holding public office or administrative or management of financial institutions or under the law 22/2003 of July 9, Insolvency, until he has completed the period of ineligibility, and undischarged bankrupts and broken in bankruptcy proceedings prior to the entry into force of the Act. If a criminal record or disqualification abroad is chargeable question of countries with the necessary guarantees of comparable or reciprocal to those provided for in the Spanish legal system security.


They possess the necessary skills to perform their duties on electronic money institutions who have played for a period of not less than two years, senior management, or control or advisory functions with similar responsibilities in electronic money institutions, public or private, of dimension at least analogous to the entity for which authorization is requested.

F) Provide, in order to ensure the sound and prudent management of the organization, procedures and adequate corporate governance, including a clear organizational structure with well-defined lines, transparent and consistent accountability and effective procedures identification, management, control and communication of risks to which it is or may be exposed, and adequate internal control mechanisms, including sound administrative and accounting procedures. Such methods, procedures and mechanisms shall be comprehensive and proportionate to the nature, scale and complexity of the activities of issuing electronic money and payment services provided by that entity.

G) Establish procedures and bodies for internal control and communication to prevent and deter money laundering and terrorist financing.

Article 3. Application Requirements.

1. The request for authorization for the creation of an electronic money institution shall contact the General Secretariat of the Treasury and Financial Policy, accompanied by the following documents in triplicate:

A) Project Association, accompanied by a negative registration certificate of the proposed corporate name; if the authorization is requested by an existing company it will be sufficient current certification of their registration.

B) A program of activities in which specifically, in addition to the issuance of electronic money recorded and, if applicable, the type of payment service that is intended to provide, ancillary services or closely related to those they intend to carry out, as well as other activities that, under Article 8 of Law 21/2011, of July 26, want, if any, to make.

C) A business plan referred to the activities referred to in the previous paragraph that includes a calculation of the budget estimates for the first three years of operation of the electronic money institution.

D) Justification of having provided in the General Deposit Fund or some of its branches, framed in the Delegations of Economy and Finance, a cash deposit or public debt, equivalent to 20 percent of the minimum initial capital set in Article 2, available to the General Secretariat of the Treasury and Financial Policy.

This deposit shall be released at the request of the person concerned after the company incorporated and registered in the Special Register of the Bank of Spain, as well as, where appropriate, in the event of withdrawal of authorization provided for in Article 5 of Law 21/2011, of 26 July. The procedure, terms and effect to release the deposit shall be those provided in the regulations.

It was also required to reimburse the deposit in cases of waiver of the application or denial of it.

E) A description of the measures taken to protect the funds received in exchange for electronic money issued or, where appropriate, from the provision of payment services under the provisions of Article 9 of the Act 21/2011, of 26 July.

F) A description of the methods of the applicant business management and internal control mechanisms, including administrative, risk management and accounting, to demonstrate that such methods and mechanisms of corporate control are provided and appropriate.

G) The procedures and bodies for internal control and communication to be established to prevent and deter money laundering and terrorist financing.

H) A description of the structural organization that intends to acquire the applicant, including, where appropriate, a description of the intended use to make branches, distribution structures and redemption of electronic money or agents, to provide payment service, the provisions on delegation of functions, as well as its participation in a national or international payment, provided that will do in accordance with the provisions of law 41/1999 of 12 November on payment systems and securities settlement.


I) The identity of persons holding significant interests in the electronic money institution, as provided in Article 4 of Law 21/2011, of 26 July, indicating the size of their participation and evidence of their suitability.
Except
credit institutions subject to supervision by the Bank of Spain, shareholders or partners that are considered legal entities must also provide the financial statements and the management report of the last two years, with audit reports if any.

For the purposes of the definition of meaningful participation, significant influence means the possibility to appoint or dismiss any member of the highest governing body of the electronic money institution.

J) The identity of the administrators of the electronic money institution and its general managers or similar, as well as documentary that serves to prove that it satisfies the condition of good repute and have the experience and have the skills to the issuance of electronic money.

K) Where applicable, the identity of the auditors responsible for the audit of the electronic money institution.

L) A description of the services, or other means, including the Regulations for the defense of the client, which is available to address and resolve complaints and complaints from customers.

M) The address of the registered office or place of effective management in Spanish territory of the applicant.

N) In the case of existing entities, audited annual accounts for the last year and a report explaining the characteristics and situation of the company.

For the purposes of the letters e), f) and h) the applicant shall provide a description of its audit arrangements and the organizational arrangements it has set in order to take all reasonable measures to protect the interests of its users and to ensure continuity and reliability of the issuance of electronic money and the provision of payment services.

2. The electronic money institution immediately informed of any change affecting the accuracy of the information in accordance with this article. In any case, require promoters will fit whatever data or reports deemed appropriate to verify compliance with the requirements established in this royal decree.

Article 4. Authorization of the establishment in Spain of branches of electronic money institutions authorized or domiciled in a non-Member state of the European Union.

1. The authorization of the establishment in Spain of branches of institutions of foreign electronic money authorized or domiciled in a non-Member state of the European Union shall be observed in the preceding articles, as far as it is applicable with the following features: | ||
A) The reference to draft statutes referred to in Article 3.1.a), be construed as referring to the draft articles of association of the branch and the existing Statutes of the electronic money institution themselves.

B) minimum capital means the staff maintained by the entity in Spain fund permanent and indefinite duration, available to cover losses of the branch.

C) there must be at least one person who is responsible for the management of the branch in Spain seeking to establish and effectively determine the direction of the branch. Such person shall meet the requirements of respectability, knowledge and experience that paragraph refers to e) of Article 2.

D) The object of the branch may not contain activities not permitted to electronic money institution in their country of origin.

E) The documentation accompanying the application shall contain the information necessary to know precisely the legal status of the entity requesting foreign electronic money, which is subject to supervision and financial situation and a specific description of the measures adopted by the institution to safeguard funds received in exchange for electronic money issued. a description of the organizational structure of the entity and the group in which it will eventually be integrated will also be included. Also it is credited in possession of the authorizations or may not demand their country of origin to open the branch.

The authorization may be in addition to the grounds listed in Article 4.2 of Law 21/2011, of July 26, by the application of the principle of reciprocity denied.


2. The Bank of Spain shall notify the Commission of all authorizations for branches of electronic money institutions having their head office outside the European Union, once registered in the Special Register of electronic money institutions from the Bank of Spain.

Article 5. Register of Senior Officers of electronic money institutions.

1. Bank of Spain corresponds to the creation and management of a Register of Senior Officers of electronic money institutions, which shall necessarily register managers and their general managers or similar.

For registration in the Register of Senior Officers, such persons must expressly declare in the document evidencing their acceptance of office eligible repute Article 2.e concerns) and that do not fall in any of the limitations or incompatibilities that were applicable to them.

2. Also entered in the Register of persons responsible for the management of branches in Spain of foreign electronic money institutions or the control and management of networks of agents in Spain to provide payment services or distributors of foreign electronic money institutions.

Also be entered in the Register the agents through which the foreign electronic money institutions carry out, where appropriate, the provision of payment services.

Article 6. Modification of the Bylaws.

1. The modification of the Bylaws of electronic money institutions will be subject to authorization and registration laid down in Article 1, while the request for authorization must be resolved within two months of receipt at the General Secretariat of the Treasury and Financial policy or at the time the required documentation is completed, after which the authorization shall be deemed granted.

2. They do not require prior authorization, but must be notified to the Bank of Spain, within no more than fifteen working days following the adoption of the corresponding resolution, amendments to the bylaws that provide for:

A) Change of registered office within the national territory.

B) Increase in share capital.

C) Incorporate textually legal or regulatory provisions imperative or prohibitive statutes or judicial or administrative decisions comply character.

D) Any other changes for which the General Secretariat of the Treasury and Financial Policy, in response to consultation formulated for the purpose by the electronic money institution concerned, considered it unnecessary, for their little relevance, the processing of the authorization.

3. If received communication, modifications beyond what is provided in the preceding paragraph, the Bank of Spain notice to interested parties within thirty days, for review or, where applicable, comply with the authorization procedure of paragraph 1.

Article 7. Extension of activities.

When an electronic money institution intends to extend the activities for which it is authorized, the same procedure will be followed as for the amendment of the Bylaws. The authorization may be refused, especially if the entity does not meet the solvency requirements that apply to you, or has an administrative and accounting procedures and internal control procedures suited to new activities.

Article 8. Merger of electronic money institutions.

1. The entity resulting from the merger in which at least one of the entities merged is an electronic money institution may perform the activities for which the merged entities were authorized.

2. The merger must be approved by the Minister of Economy and Competitiveness, in accordance with the procedure laid down in Article 6 of this royal decree, although the resolution period is three months of receipt at the General Secretariat of the Treasury and Policy financial or when the required documentation is complete, after which the authorization shall be deemed granted.

Article 9. Use of the reserved name, organizational and transparency.

1. The name of electronic money institution and its abbreviation, EDE, is reserved for these entities, which can include them in its name.


2. The electronic money institutions should include a reference to the legal nature of electronic money institution in all documents subscribing or cast in the exercise of their activity of issuing electronic money and, where appropriate, to provide services payment, or they are having legal effect against third parties.

3. When electronic money institutions develop operating or ancillary services that Article 8 of Law 21/2011, of July 26, or when in the same room where electronic money is issued develop other economic activities referred to, must have with organizational and transparency necessary to protect customers and especially ensure that it clearly identifies the issuer of electronic money measures.

The Bank of Spain may require the adoption of transparency measures necessary to comply with the provisions of this section.
CHAPTER II


Cross-border activity of electronic money institutions

Article 10. Opening of branches and freedom to provide services in a Member State of the European Union for electronic money institutions Spanish State.

1. Entities Spanish electronic money that intend to issue electronic money and provide payment services not related to that issue in another Member State of the European Union, either by establishing a branch or under the freedom to provide services, they must first inform the Bank of Spain, following the information provided for in Article 11.1 of Law 21/2011 of 26 July.

2. Any modification of the information in this article shall be communicated by the electronic money institution to the Bank of Spain prior to occurring character you refer.

3. When an electronic money institution wishes to distribute electronic money in another Member State by engaging a natural or legal person, it shall apply the provisions of Articles 14 and 15 of Royal Decree 712/2010, of 28 May, on the legal regime payment services and payment institutions.

Article 11. Acting in Spain of electronic money institutions authorized in another Member State of the European Union.

1. The opening in Spain of branches of electronic money institutions authorized in another Member State of the European Union shall be subject to the Bank of Spain received a communication from the supervisory authority of the electronic money institution containing at least the following information :

A) The name and address of the electronic money institution.

B) A program of activities indicating, in particular, operations intended, and the organizational structure of the branch.

C) The name and address of the branch in Spain may be required where the branch all the necessary information.

D) The name and curriculum managers responsible for the branch.

2. Following the notification, the Bank of Spain will notify the electronic money institution and this, after having entered the branch in the Commercial Register, also proceed to registration in the Special Register of Electronic Money Institutions Bank of Spain, informing this effective date of the start of its activities.

One year after having been notified to the electronic money institution receiving the communication by the supervisory authority, without the entity started operating, you must start again the procedure provided for in paragraph 1. | ||
3. If, once opened the branch, the electronic money institution authorized in another Member State of the European Union intends to amend the content of any of the information listed in paragraph 1 shall inform at least one month before the Bank of Spain without prejudice to the communication from its supervisory authority before making the change. also it must notify the Bank of Spain the closure of the branch, at least three months before the expected date for it.

4. The procedure laid down in this article to communications received from supervisors an electronic money institution authorized in another Member State of the European Union that seeks to provide payment services in Spain also apply, to the extent appropriate, permanently using a network of agents residing in Spain.


Agents hired for the provision of payment by electronic money institutions authorized in another Member State of the European Union, must respect in the exercise of their activity in Spain the same rules as those are obliged to observe the Spanish agents of electronic money institutions, in accordance with the provisions of Article 14.

5. When an electronic money institution authorized in another Member State of the European Union intends to distribute electronic money in Spain by a natural or legal person acting on their behalf, shall follow the procedure established in this article.

6. Following the notification from supervisor of electronic money institution authorized in another Member State of the European Union of its intention to establish a branch in Spain, to provide payment services in Spain permanently by residing agents in Spain or distribute electronic money in Spain through an intermediary, the Bank of Spain will transfer the communication to the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences.

The Bank of Spain, and the obligation of complaint which is obligated by the Spanish criminal procedural law, the report of the Executive Service shall inform the competent authorities of the Member State of origin of the electronic money institution when you reasonable grounds to suspect that they are perpetrating or have already been committed or attempted activities of money or financing of terrorism or the recruitment of staff, establishment of the branch or the distribution of electronic money through intermediaries could increase the risk of money laundering or terrorist financing.

Article 12. Opening of branches and freedom to provide services in a non-member of the European Union Spanish electronic money institutions.

1. The opening of a branch, the provision of payment services through agents or under the freedom to provide services, and distribution of electronic money by institutions of Spanish electronic money in a non-Member state of the European Union, will be subject to prior authorization by the Bank of Spain.

2. At the request of the authorization referred to in the preceding paragraph shall be attached, together with the information of the State in whose territory they intend to operate and program of activities you want to carry out, the address set for the branch, its organizational structure and the name and curriculum managers proposed for the same or equivalent information responsible for the network of agents or distributors, if any.

3. The Bank of Spain resolved by reasoned decision within a maximum period of three months from receipt of all information. When the application is not settled in the aforementioned period, it shall be deemed rejected.

4. The Bank of Spain refuse authorization if, in the light of this and further that paragraph 2 refers to information, the administrative structure or the financial situation of the electronic money institution are not suitable, or when the program of activities conducting unauthorized activities the entity contemplated. He also refused if it considers that the activities of the branch will not be subject to effective control by the supervisory authority of the host country, or where there are legal or otherwise that prevent or hinder control and inspection branch by the Bank of Spain.

5. Any amendment to the information referred to in this article will be communicated by the electronic money institution, at least one month before making the investment, the Bank of Spain. You can not be carried out relevant modification in the program of activities of the branch if the Bank of Spain, within the said period of one month, oppose it by a reasoned decision which shall be notified to the entity. Such opposition will be based on one of the causes mentioned in this article.

Article 13. Creation or acquisition of shares in electronic money from a non-Member state of the European Union.


1. It shall be subject to prior authorization from the Bank of Spain creating an institution of Spanish electronic money from an electronic money institution in a non-member of the European Union and the acquisition of a significant participation or takeover State, either directly or through entities controlled by the electronic money institution interested in an entity existing electronic money, when said electronic money institution is to be incorporated or is not domiciled in a member state of the European Union.

2. In the case of creation, directly or indirectly, an electronic money institution in a non-Member state of the European Union, the entity of Spanish electronic money that seeks to create it must accompany the application for authorization is submitted at the Bank Spain, at least the following information:

A) The amount of investment and the percentage representing the equity and voting rights of the entity to be created, as well as an indication, if any, of the entities through which the investment is made.

B) under paragraphs a), b), i) and j) of Article 3.1 of this Royal Decree.

C) Full description of the legislation applicable to electronic money institutions in the State where be lodged the new entity and current regulations on taxation and prevention of money laundering and terrorist financing.

3. In the event that it is to acquire a stake, defined as one that has a significant basis as provided in Article 4.2 of Law 21/2011, of 26 July, electronic money, and the royal decree , or is intended subsequently acquire control, it shall submit the information specified in the preceding paragraph, although under paragraph b) may be limited to those data that have a public character. the deadline for the completion of the investment, the annual accounts of the last two years of the investee and, where appropriate, the rights of the entity in order shall also be indicated to appoint representatives in the management bodies and address it .

4. In any case, require applicants will fit whatever data, reports or records deemed appropriate for the Bank of Spain to rule properly on the application for authorization and, in particular, to enable supervision on a consolidated group.

5. The Bank of Spain will decide on the authorization within three months from the receipt of all required information. When the authorization is not granted in the aforementioned period, it shall be deemed denied.

The Bank of Spain reject the application for authorization when:

A) Given the financial situation of the electronic money institution or its management capacity, consider that the project can negatively affect you.

B) having regard to the location and characteristics of the project, can not ensure effective supervision of the group, on a consolidated basis.

C) The activity of the entity dominated not be made subject to effective control by a national supervisory authority.
CHAPTER III


Regime agents and delegation of operational functions

Article 14. Agents.

1. The entities of Spanish electronic money and branches in Spain of entities of foreign electronic money intending to provide payment services through an agent, they shall apply the provisions of Articles 13, 14 and 15 of Royal Decree 712/2010 of 28 May.

2. The electronic money institutions shall not issue electronic money through agents.

Article 15. Delegation of functions.

1. When an electronic money institution intends to outsource operational functions relating to the issuance of electronic money or the provision of payment services, it shall inform the Bank of Spain.

2. In particular, the delegation of important operational functions must be done so as not to affect the quality of internal control of such functions by the electronic money institution, or the ability of the Bank of Spain to control the entity money mail fulfills all the obligations under the law.


For these purposes, shall be deemed an operational role is essential if an abnormality or deficiency in its implementation may well affect, considerably, the ability of the electronic money institution to permanently fulfill the conditions and obligations derived from its authorization and the regime established by Law 21/2011, of July 26, and in this royal decree, well affect financial results, its solvency and continuity of their business.

3. When an electronic money institution intends to delegate key operational functions related to the issuance of electronic money or the provision of payment services, it shall inform the Bank of Spain at least one month in advance, accompanying detailed information on the characteristics of the delegation and the identity of the company that they intend to delegate. In that period, the Bank of Spain may, reasoned, oppose the delegation, when not satisfied appreciate that the provisions of this article.

In other delegations of operational functions, simply inform the Bank of Spain within one month from the time the delegation has effectiveness.

4. In any case, when an electronic money institution essential operational functions delegated, such delegation:

A) will not in any case the transfer of responsibility from top management, without prejudice to the imputable and enforceable own responsibility to the entity in which they have delegated functions.

B) do not alter the relationship and obligations of the electronic money institution in accordance with current legislation regarding their users or with respect to the Bank of Spain.

C) it shall not impair the conditions to be met by the electronic money institution to receive and retain the authorization in accordance with Royal Decree.

D) not lead to the deletion or modification of any remaining conditions to which the authorization of the electronic money institution has been subject.

E) The delegation agreement between the electronic money institution and the third shall be documented in a written contract in which the rights and obligations of the parties will materialize.
CHAPTER IV


Assurance requirements, capital requirements

Article 16. Requirements warranty.

1. The electronic money institutions safeguard funds received in exchange for electronic money issued or to provide payment services not related to such issuance, subject to one of the two procedures set out in Article 9 of Law 21/2011, 26 July, electronic money, which prescribes the need for the separate deposit account or investment in safe assets, low risk or, alternatively, to provide the coverage by insurance or comparable guarantee credit institution or insurance company. The procedure adopted by each electronic money institution shall be included in the Special Register of electronic money institutions from the Bank of Spain, as well as contracts that electronic money institutions subscribing to users. When entities adopt the procedure set forth in Article 10.1.b) of Law 16/2009 of 13 November, payment services such contracts shall state also the nature of the guarantee and the entity that provides .

The electronic money institution shall disclose the safeguards system chosen in clear and accessible terms, on its website.

2. If entities choose the procedure outlined in Article 10.1.a) of Law 16/2009 of November 13, safe assets, liquid and low risk are considered:

A) Demand deposits with credit institutions subject to prudential supervision and domiciled in Member States of the European Union or the Organization for Economic Cooperation and Development. The name of these deposits must expressly mention of their status as "customer balances of electronic money institutions".

B) Acquisitions of fixed income securities that have a zero weighting for the purposes of credit risk, and fixed income securities which have an external credit rating by a recognized ECAI equivalent at least to a level of quality credit of 3 or better and receive less than or equal to 50% credit risk weighting in accordance with the provisions of chapter III of Royal Decree 216/2008 of 15 February, on the capital of financial institutions, and its implementing rules.


C) Investments in a collective investment in transferable securities (UCITS) which invests solely in assets as specified in the preceding paragraph.

In exceptional and duly justified circumstances, the Bank of Spain may, on the basis of an assessment of the risk elements of the assets specified in the preceding paragraphs, determine which ones are not safe, low-risk assets for the purposes of paragraph 1

3. If entities choose the procedure set forth in Article 10.1.b) of Law 16/2009 of 13 November, the bond insurance or comparable guarantee from an insurance company or a credit institution shall meet in any case the following conditions:

A) The guarantee will be direct and first demand.

B) The scope of the guarantee or insurance will be clearly defined.

C) The security shall be to all funds received in exchange for the issuance of electronic money.

D) Notwithstanding the provisions of Articles 10, 12 and 15 of Law 50/1980 of 8 October, on Insurance Contract, the guarantee or insurance agreement not contain any clause whose exhaust control compliance the direct electronic money institution and allow the warranty provider or insurer unilaterally cancel or reduce the maturity of the guarantee or insurance.

E) The guarantee or insurance will be effective if it has been issued an order of declaration of insolvency of the electronic money institution. Declared the contest, and unless the organs of the competition provide otherwise, payment services which had requested the payment institution will be immediately executed. The remaining funds will be paid directly in sight accounts associated with payment accounts.

F) The credit institution or insurance company providing the guarantee or insurance mentioned in this paragraph may not belong to the same group, according to which in Article 42 of the Commercial Code, which guaranteed the electronic money institution or assured.

G) The credit institution providing the guarantee must have, at the time of providing the same, a minimum credit rating for long-term exposures of A1, A + or equivalent from a Credit rating agency, issued by a credit rating agency that had been registered in accordance with the provisions of Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies. If it comes to insurance, the insurer must have administrative authorization to operate in the field of surety and insurance must be paid by an equivalent amount which would have been segregated in the absence of the insurance policy or comparable guarantee.
Article 17.
own resources.

1. The equity of the electronic money institution shall not be less than the largest quantity of those referred to in Articles 2-c) and 18

2. It authorizes the Bank of Spain to adopt the necessary measures to prevent the multiple use of elements eligible for own resources when the electronic money institution belongs to the same group as another electronic money institution, credit institution, payment institution, company measures investment services, asset management company or insurance undertaking. This paragraph shall also apply where an electronic money institution develop other activities other than the issuance of electronic money and those directly related to the issuance of electronic money.

Article 18. Calculation of capital requirements.

1. Without prejudice to the capital requirements set out in Article 2.c) of this Royal Decree and the powers that Articles 7.2 and 8.1.b.4.º of Law 21/2011, of July 26, give the Bank of Spain, the own funds of electronic money institutions shall be at least equal to the sum of the amounts resulting from the following paragraphs:

A) With respect to the activities referred to in Article 8.1.a) of the Law 21/2011, of July 26, which are not linked to the issuance of electronic money, capital requirements are calculated in accordance as provided for in Article 19 of Royal Decree 712/2010 of 28 May.

B) With respect to the activity of issuing electronic money, capital requirements of electronic money institutions shall amount to at least 2 percent of the average outstanding electronic money.


For the purposes of the application of this royal decree, I mean average outstanding electronic money, the average total amount of financial liabilities related to electronic money issued at the end of each calendar day over the preceding six months, calculated first calendar day of each month and applied for that month.

2. Where electronic money institutions carry out any of the activities listed in Article 8.1.a) of the Law 21/2011, of July 26, which are not linked to the issuance of electronic money or any of the activities listed in the Article 8.1, letters b) to e), and the volume of outstanding electronic money is unknown in advance, the electronic money institutions may calculate the capital required on the basis of a representative portion assumed to be used for the issuance of electronic money, provided that such a representative portion can be reasonably estimated on the basis of historical data and to the satisfaction of the Bank of Spain. When an electronic money institution has not completed a sufficient period of activity, the required equity is calculated on the basis of outstanding electronic money foreseen in its business plan, unless the Bank of Spain requires any adaptation of the plan.

Article 19. Measures to return to compliance with the rules on own resources.

1. When an electronic money institution shortage in equity compared to those required under this royal decree, the entity inform, with immediate effect, the Bank of Spain and submitted within one month a program in which materialize plans to return to compliance, unless the situation has been corrected in that period. The program must contain at least the aspects relating to the identification of the determinants of default, the plan to return to compliance which may include limiting the development of activities involving high risks, disinvestment in specific assets, or measures to the increased level of own resources and expected to return to compliance.

The program it must be approved by the Bank of Spain, which may include modifications or additional measures it deems necessary to ensure the return to the minimum levels required equity. The submitted program is deemed approved if after three months of its presentation to the Bank of Spain would not have occurred express resolution.

2. When the Bank of Spain, in accordance with the provisions of Article 7.2.b) of Law 21/2011, of July 26, forces a electronic money institution to hold additional own resources to those required under Article 17 this royal decree, as a result of this additional requirement proves that the own resources of the entity are insufficient, the entity shall submit within one month a program in which the plans are realized to meet the additional requirement, unless the situation had been corrected during this period. This program must be approved by the Bank of Spain, which may include modifications or additional measures it deems necessary. The submitted program is deemed approved if after three months of its presentation to the Bank of Spain would not have occurred express resolution.

Article 20. Implementation of results in case of breach of the rules on own resources.

1. When an electronic money institution present a deficit higher own resources to 20 percent of those required under the provisions of this Royal Decree, the entity shall be allocated to reserves all of the net profit or unless surpluses that the Bank of Spain authorizes otherwise, in approving the program return to compliance with the preceding article.

2. When the capital shortfall is equal to or less than 20 percent, the company will submit its distribution of results to prior authorization from the Bank of Spain to establish the minimum percentage to be allocated to reserves in response to the program presented to return to compliance with Article 19 .

The authorization of the Bank of Spain will be deemed granted if after one month of the request would not express decision.

3. The Bank of Spain may establish the terms on which, if any, restrictions on dividend distributions referred to in paragraphs 1 and 2 of this Article may apply to instrumental or financial subsidiaries of an electronic money institution.


4. The provisions of this article and the preceding is without prejudice to the application, where appropriate, of the penalties provided in Law 26/1988 of 29 July, on Discipline and Intervention of Credit Institutions, according to the Article 20 of Law 21/2011, of 26 July.
CHAPTER V


Hybrid eM Institutions and duty to establish a separate electronic money institution

Article 21. Entities of hybrid electronic money.

1. For the purposes of this article shall apply hybrid electronic money institutions those that carry out any other economic activity, in addition to issuing electronic money and those activities listed in Article 8.1.a) of the Law 21/2011, 26 July, which are not linked to the issuance of electronic money.

2. They are special to the hybrid electronic money institutions the following specific provisions apply.

A) In relation to the requirements for the activity, the hybrid electronic money institutions shall have at least one senior officer with the rank of director general or equivalent, responsible for the issuance of electronic money and payment services to which it is authorized.

This manager must be in possession of the necessary knowledge to Article 2.e) for the issuance of electronic money and for the provision of payment services concerns. In the event that the institution has a collegial management body, such knowledge will also be due at least one of its members.

B) With respect to application requirements:

I. Information on general managers and similar Article 3.1.j concerns) will be presented distinguishing between those that will have direct responsibility for the issuance of electronic money and the provision of payment services, on the one hand, and remaining other.

Ii. The information referred to in points f), g) and h) of Article 3.1 specify the procedures and organizational structures designed to prevent the risks of economic activities of the applicant may affect the interests of holders of electronic money or users payment service or compliance with sectoral rules and prevention of money laundering and terrorist financing applicable.

Iii. The electronic money institution shall provide sufficient information on economic activity being done or intends to perform and determine its classification as a hybrid electronic money institution and a forecast of its development in the medium term.

The electronic money institution shall accompany it also information on any link or synergy, commercial, operational, or of any other nature, between these activities and the issuance of electronic money and payment for services requested authorization and on mechanisms to ensure the separation of responsibilities acquired in the issuance of electronic money and the provision of payment services.

C) As regards the Register of Senior Officers, only the registration of managers and senior managers that will have direct responsibility for the issuance of electronic money and the provision of payment services will be necessary.

D) As regards the modification of the Bylaws, only require prior authorization under the provisions of Article 6, the modifications that affect or may affect the activity of issuing electronic money and provision of services payment.

E) Regarding supervision:

I. In the exercise of the powers of control and inspection of electronic money institutions that Article 20 of Law 21/2011, of July 26, ascribes the Bank of Spain may apply to the hybrid electronic money institutions about economic activities being done or intends to perform, which determine its classification as such and that are relevant to the exercise of their supervisory functions.

Ii. The obligations of professional secrecy laid down in Article 22 of Law 21/2011, of July 26 should also be observed in relation to the information to which the previous paragraph refers.


F) Regarding accounting, separate that Article 10 of Law 21/2011, of 26 July refers to, information should have sufficient detail in the terms established by the Bank of Spain, to ensure easy reconciliation with the confidential determined by the Bank, and to allow for comparison with public information provided by the remaining electronic money institutions.

Article 22. Duty to establish a separate electronic money institution.

1. As provided in Article 8.1 of Law 21/2011, of July 26, an entity of hybrid electronic money shall constitute a separate issuance of electronic money and payment service provision entity, when the Bank of Spain so required to appreciate that the remaining activities that electronic money institution develops harm or may harm either the financial soundness of the electronic money institution, although the ability of competent authorities to monitor compliance with the obligations established for the entity of electronic money.

2. The Bank of Spain will decide on the duty to constitute a separate electronic money institution after hearing the entity concerned. The resolution shall state the conditions for the establishment of the electronic money institution separate, determining which activities other than the issuance of electronic money and the provision of payment services, impair or may impair the financial soundness of the electronic money institution or the ability of the Bank of Spain to monitor compliance with its obligations under the applicable regulations, or any other end whose reform is deemed necessary to ensure compliance with those obligations.

3. The establishment of a separate entity referred to in the preceding paragraphs shall be dealt with as provided in Article 1, having to submit an application to the General Secretariat of the Treasury and Financial Policy within three months from the date of notice of such requirement of the Bank of Spain. After this deadline without having submitted an application for prior authorization or denied it, and if the entity hybrid electronic money does not cease their activities within three months, the authorization granted to it it may be revoked under the provisions of Article 5.3.e) of Law 21/2011, of 26 July.

Once established the separate entity, the transfer of activities should be carried out within a maximum period of three months from the authorization.
CHAPTER VI


Other provisions concerning the legal regime of the issuance of electronic money and the provision of payment services provided by electronic money institutions

Article 23. Networks Limited.

Under Article 1.3.a) of the Law 21/2011, of July 26, will not be subject to the regulations of electronic money the monetary value stored on instruments whose use is limited to:

A) establishments of the issuer, or;

B) within a limited network of providers who have concluded a direct commercial agreement with the issuer of the instrument.

Be considered that the use of an instrument is confined to a limited network if it can only be used for the procurement of goods and services in a particular chain of suppliers of goods or services, or for a limited range of goods and services, either regardless of the location of the point of sale.

Providers of goods and services incorporated into one of these limited must have signed a contract under which networks are recognized obligations common to all of them for accepting the instrument and user rights thereof in any case, they must be identical regardless of the good or service provider.

However, if an instrument for specific purposes become an instrument for more general purposes, shall I understood included within the scope of this royal decree. Furthermore, instruments that can be used for purchases in stores of listed merchants are not excluded from the scope of this royal decree since they are usually designed for a network of service providers which is continuously growing.

Article 24. Payment Accounts.

When an electronic money institution maintains a payment account to the extent permitted by law, must comply with the following limitations:


A) The opening of a payment account must be linked necessarily to the prior existence or the simultaneous processing of a payment order whose payer or beneficiary must be a third party other than the account holder.

B) Any payment account will be associated, since its opening at all times and a cash deposit account opened by one of its full members of the credit institution authorized in the European Union, which must be transferred balance account payment when it does not present any operations in the last year. They were not counted as operating, for these purposes, the inputs and outputs made by the holder of the account itself.

When for some reason did not exist such occurrence associated account, the electronic money institution made available to the account holder to pay the balance of it, either at its own headquarters, either by depositing his name on an account to view a credit institution authorized to receive repayable funds subject to prudential supervision and domiciled in a member State of the European Union or the Organization for Economic Cooperation and Development.

From all this to all account holders payment will be promptly informed.

C) payment accounts of these entities may submit debit balance as a result of the provision of payment services initiated by the recipient of the same, but never for payment transactions initiated directly by the holder payer's account payment.

The debit balances of payment accounts shall be replenished within one month and the amount may not exceed, at any time, the amount of 600 euros.

D) Other limitations established by Royal Decree 712/2010 of 28 May.
CHAPTER VII


Monitoring and sanctioning regime of electronic money institutions

Article 25. Information on the capital structure of the business of electronic money.

1. Without prejudice to the provisions of Article 21 of Law 21/2011, of July 26, the electronic money institutions shall inform the Bank of Spain, as soon as known, of any acquisition, increase or reduction of a significant stake, indicating, where appropriate, the identity of the new owner, in order that the Bank of Spain to assess the validity of the requirements necessary to maintain the authorization.

2. The Bank of Spain may request the communication required to perform that Article 21 of Law 21/2011, of 26 July refers to, and the electronic money institution itself, the remission of all information that may be appropriate for assess the adequacy of those as holders of a significant stake in the electronic money institution.

3. Notwithstanding the provisions of paragraph 1, electronic money institutions must submit to the Bank of Spain twice a year, in the form and manner as it may determine, information on financial entities that own, directly or indirectly, shares in its capital, as any person who owns at least 2.5 percent of its capital.

Article 26. Professional secrecy.

All persons performing an activity for the Bank of Spain and they had knowledge of confidential data are sworn to secrecy without prejudice to the obligations imposed by the Spanish criminal procedural law, as provided by the last paragraph Article 11 of this royal decree. The breach of this obligation shall determine criminal liability and the other provided by law. Such persons may not testify or testimony or publish, communicate or display data or confidential documents, even after leaving the service, unless express permission granted by the competent body of the Bank of Spain. If such permission was not granted, the person concerned will keep the secret and shall be exempt from the liability which emanating.

Article 27. Penalty system.

1. A The electronic money institutions, as well as those who hold administrative or management positions in them, they shall apply the sanctions regime established in Title I of Law 26/1988 of 29 July, on discipline and intervention Credit Institutions.


The scheme also apply to natural or legal persons who hold a significant stake in the electronic money institution, as provided in Article 4.2 of Law 21/2011, of July 26, and those that having Spanish nationality , control an electronic money institution of another member state of the European Union. The responsibility will also reach those who hold administrative or management positions in the responsible entities.

2. In accordance with the provisions of Article 4-m) of Law 26/1988, of July 29, reiteration in serious breach by the electronic money institution shall be considered a very serious offense when during the previous five years his commission had been imposed on the firm entity sanction for the same type of infringement.

3. Purely occasional or isolated from the disciplinary rules set out in Article 23.2 of the Law 21/2011, of 26 July breach, where this does not cause a serious risk to the electronic money institution, or affect users of its services or the payment system as a whole shall be punished as a minor offense.

4. The electronic money institutions and those holding administrative or management positions in them, violating the rules of order and discipline set out in Article 23.2 of the Law 21/2011, of July 26, commit serious offense punishable under with title I of Law 26/1988 of 29 July.

This responsibility also apply to natural or legal persons who hold a significant stake in the electronic money institution, as provided in Article 4.2 of Law 21/2011, of July 26, and those that having Spanish nationality , control an electronic money institution of another member state of the European Union. The responsibility will also reach those who hold administrative or management positions in the responsible entities.

Single transitional provision. transitional regime for electronic money institutions authorized under Article 21 of Law 44/2002 of 22 November on measures to reform the financial system.

1. The electronic money institutions that have been authorized to issue electronic money before April 30, 2011, pursuant to Article 21 of Law 44/2002 of 22 November on measures to reform the financial system shall be required to retain such authorization, compliance with all the requirements established by Law 21/2011, of July 26, and in this royal decree, except as provided in the following section.

2. For the sole purpose of accreditation provided for in paragraph 2 of the transitional provision of Law 21/2011, of July 26, the aforementioned electronic money institutions need not provide, unless required by the General Secretariat of the Treasury and Financial Policy the documentation provided for in points a), c), d), f), g), h), i), j), l) and m) of Article 3.1 of this royal decree.

Single derogatory provision. Repeal legislation.

Are repealed few rules of equal or lower rank opposing the provisions of this Royal Decree and, in particular, Royal Decree 322/2008, of 29 February, on the legal regime of electronic money institutions.

First final provision. competential title.

This royal decree is issued under the provisions of Article 149.1.6.ª, 11th and 13th of the Constitution.

Second final provision. Incorporation of European Union law.

By incorporating this royal decree is completed by Spanish law Directive 2009/110 / EC of the European Parliament and of the Council of 16 September 2009, on access to the activity of electronic money institutions and exercise and prudential supervision of these entities, Directives 2005/60 / EC and 2006/48 / EC amending and Directive 2000/46 / EC is repealed.

Final disposition third. Enabling the Bank of Spain.

The Bank of Spain is empowered to:

A) The creation and management of senior Registry Article 5.1 of this Royal Decree concerns.

B) define and implement the system of transparency, information and resources, in the terms provided in Articles 9.3, 17.2, 19.2, 20 and 25 of this royal decree, and exercise the powers that provide these precepts.


C) To authorize the opening of branches and the free provision of services by entities in a Spanish electronic money, and the creation or acquisition of shares in electronic money from a non-member State not a member of the European Union the European Union in accordance with the provisions of articles 12 and 13 of this royal decree.

D) Determine what elements are considered safe and low-risk assets in accordance with the provisions of Article 16.2, last paragraph of this royal decree.

E) Require the establishment of a separate issuance of electronic money and the provision of payment services, in accordance with the provisions of article 22 of this royal decree entity.

Fourth final provision. Entry into force.

The Royal Decree shall enter into force on the day following its publication in the "Official Gazette" day.

Given in Madrid on 4 May 2012.
JUAN CARLOS R.


The Minister of Economy and Competitiveness,

Luis de Guindos JURY