Royal Decree-Law 16/2011, October 14, Which Is Created By The Deposit Guarantee Fund Of Credit Institutions.

Original Language Title: Real Decreto-ley 16/2011, de 14 de octubre, por el que se crea el Fondo de Garantía de Depósitos de Entidades de Crédito.

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
I along them last thirty years them systems of guarantee of deposits is have seated in the environment European as one of them elements indispensable to ensure the confidence of savers and depositors in the joint of the system banking. In Spain, the early creation in 1977 of them first funds of warranty of deposits in establishments banking and in boxes of savings, to which would accompany subsequently the of cooperative of credit, through a regime of contributions prior or ex before, constituted to the same time a symptom of the evolution of our system financial and an impulse to its modernization in a context of crucial social, political and economic changes in our history recent.

Subsequent reforms of that first system warranty, over three decades, are understood today, with the proper perspective, as unique landmarks that have accompanied the progressive development, in complexity, capacity and volume of our financial system. A first time of review of the system had place early on them years eighty, few years after its creation, since while is perceived to them funds as a valuable instrument to face them problems of the system banking, is found that it complexity legal and economic of the crisis of an establishment banking made suitable expand them possibilities of performance of them funds , so that its object was not simply the guarantee deposits in case of receivership or bankruptcy of an entity, but alternatively that could help strengthen the solvency and the functioning of institutions, avoiding ultimately an eventual, and possibly more expensive, payment of deposits.

Since that time, Spanish deposit guarantee funds have maintained as a second hallmark - next contribution ex ante - its dual objective or function: on the one hand, guarantee deposits in money (and later also in values) in credit institutions; and, by another, perform those actions necessary for strengthen the solvency and the operation of them entities in difficulties, in defense of them interests of them depositors and of the own Fund. Ultimately this dual function is identified with an immediate and eventual objective, guarantee the savings of depositors, and a mediate and permanent objective the maintenance of the stability of the financial system of the country, through the confidence of depositors. In it successive, after the paper played in benefit of the stability financial in the crisis Bank of late of them seventy and principles of them eighty, the double function of them funds them will consolidate as an element indispensable of security of our institutions financial, next to the regulation and to the supervision financial.

A second time or rather stage of review of our deposit insurance system took place from the mid-1990s, directly related to our participation in the process of building European and, more specifically, with financial integration considered essential to the achievement of an internal market. Thus, the Real Decree-Law 12 / 1995 and its standards of development incorporated to the ordering legal Spanish the directive community 94 / 19 / CE on systems of warranty of deposits, whose main landmark was the harmonization of a level minimum of coverage of them deposits-20,000 euros-in the joint of the Union European. Much later, in 2009, that level will reach the current figure of 100,000 euros as cover for deposits minimum and maximum for the 27 Member States of the European Union. Can say is, therefore, that in this second stage of review of our system of warranty, appears the element essential of the context European: the integration financial leads inexorably to the gradual integration of the networks of security of the system. In conclusion, in these more than thirty years of history of the Spanish system of guarantee of deposits, its three characteristic features or identity, the first two, its double function of deposit insurance and strengthening of institutions and its Constitution as former Endowment Fund before, are strongly bound, as the third of them, its inclusion in a pan-European safety net It appears as a necessary destination within a process of harmonisation not yet finalized.

II with this historical background, the present Royal Decree-law constitutes a third milestone in the revision of the regulation of the Spanish system of deposit insurance. As the previous, this review not is alien to the context and the evolution of our system financial, but, all it contrary, has place in the time of culmination of the more important restructuring financial of our history democratic. After two years of structural reforms, whose cornerstones are the Royal Decree-Law 9/2009, of 26 June on bank restructuring and reinforcement of the resources of the credit institutions, the Royal Decree-Law 11/2010, July 9, of governing bodies and other aspects of the legal regime of the boxes of savings and the Royal Decree-Law 2/2011 18 February, to the strengthening of the financial system, we are faced with a culminating moment in which this Royal Decree-law operates as closing element and guarantee of internal coherence of the set of reforms.

A time after the recapitalization of the sector banking in accordance with it stipulated in the Real Decree-Law 2 / 2011, of 18 of February, for the strengthening of the system financial, and restructured the subsector of them boxes of savings, that in the last year have last of 45 to 15 entities, increasing the volume average of active of them entities of 28.504 million of euros to 85.512 million and equating its structure of Government to the of them banks quoted to through, basically, its legal transformation in cases of indirect exercise, the Government considers essential to complete reforms and adapting the regulation of the Spanish system of deposit insurance to the new reality of the sector.

Two are them main objectives of this Real Decree-law that comes to culminate the recapitalization and restructuring of the system financial keeping them traits essential of the same:-the unification of them until now three funds of warranty of deposits in a unique Fund of warranty of deposits of entities of credit, that keeps them functions and traits characteristic of them three funds to which replaces.

-The update and strengthening of the second function of the system: the reinforcement of the solvency and operation of them entities, also known as function of resolution, in order ensure the performance flexible of the new Fund unified.

Both of these objectives contribute to the essential principle that both the international financial bodies and the Government of the nation have been located on the base of public intervention in the financial crisis: that is the financial sector who assume the costs caused by its sanitation and recapitalization, with the purpose that the package of reforms do not assume costs for the Exchequer , ultimately, to the taxpayer.

III the present Royal Decree-law is composed of three titles, divided in thirteen articles, a provision repealing, four provisions transitional and three provisions late.

Title I covers general provisions as the defining elements of the new Fund, elements that replicate fundamentally provided to date for the three extinct funds: they fundamentally own standard of creation and subrogation of the background in the legal position of the dissolved funds, of nature and of private law legal regime of heritage and organization of government regulations through the Fund's Management Committee composed of representatives of the entities and of the Bank of Spain.

Moreover, titles II and III are dedicated respectively to develop the two functions of the Fund: the guarantee of deposits and actions in reinforcing the solvency and sanitation entities. It is, on the one hand, bring greater legal certainty to legislation on sensitive material that was scattered so far in a plurality of standards; It is on the other hand, increase the capacity and flexibility of action of the Fund in terms of reinforcement of capital of entities in such a way that it is the sector itself who is in position to support the end of the process from the greater efficiency.

Finally, the final provisions provide for the repeal express a neat set of rules governing guarantee funds to date, in order to achieve a higher degree of legal certainty. For its part, the transitional provisions are directed to ensure a simple and orderly traffic of the previous system based on three sectoral funds to the new single fund, by temporarily adjusting the composition of the Management Committee and the regime's contributions to the establishment of a system based on the risk profile of each entity in the whole of the European Union. Made explicit, in addition, the entry into force of the Royal Decree 2606 / 1996 and remaining regulations of development that is not contrary to the present Royal Decree-law.

The adoption of the measures provided for in this Royal Decree-law is essential to strengthen the confidence in our financial system and complete their process of recapitalisation and restructuring. Indeed, the application of the Real Decree-Law 2 / 2011, of 18 of February, for the reinforcement of the system financial has reached its development practically full, so is just in this time when is timely and urgent the reordering of the system of warranty of deposits, to the object of activate all them resources financial available. In addition, the special sensitivity of the matter makes it necessary to avoid any possible uncertainty for the modification of the rules process as it happened in the past in which the deposit-guarantee systems was reformed, in 1980, 1982 and 1995, respectively. Is by all this that the adoption of such measures requires go to the procedure of the Real Decree-Law, complying is them requirements of the article 86 of the Constitution Spanish for his extraordinary and urgent need.

By virtue, making use of the authorisation contained in article 86 of the Spanish Constitution, on the proposal of the Vice-President of the Government for Economic Affairs and Minister of economy and finance and prior deliberation of the Council of Ministers at its meeting of October 14, 2011, I have: TITLE I General provisions article 1. Object.

This Royal Decree-Law aims at the creation of the guarantee fund for deposits of credit institutions.

Article 2. Creation of the guarantee fund for deposits of credit institutions.

1. you create credit deposit guarantee fund, hereinafter the Fund, in order to guarantee the deposits in credit institutions up to the limit laid down in the Royal Decree-law. Also, the Fund will have by object the realization of actions that strengthen the solvency and operation of an entity in difficulties, in defense of them interests of them depositors, of the own Fund and of the joint of the system integrated by them entities of credit attached to the same.

2 are declared dissolved in savings deposits guarantee fund, the deposit guarantee fund banking institutions and the guarantee fund of deposits in credit unions, whose assets will be integrated into the guarantee fund for deposits of credit institutions in accordance with article 6, carry in all rights and obligations of those provisions.

Article 3. Nature and legal regime.

1. the Fund will have personality legal own, with full capacity for the development of its purposes, in regime of right private and without clamping to the standards regulatory of them agencies public and them societies commercial State.

2 the tax regime of the Fund shall be as follows: to) shall be exempt from tax as provided for in article 9(1). c) of the consolidated text of the law on corporation tax adopted by the Royal Legislative Decree 4/2004, of 5 March.

(b) is are available exempt of them taxes indirect that could earn is by reason of its Constitution, of its operation and of them acts u operations that perform in the compliance of their purposes, included which could earn is as consequence of the dissolution of them three funds pre-existing, of it integration of its heritage in the of the Fund and of the subrogation of this in all their rights and obligations according to it planned in the present real decree-law. Also, is keep them exemptions current to the entry in force of the present real Decree-Law on them operations taxed by tributes indirect whose amount should impact is to the Fund under them provisions of right internal or community that them regulate.

Article 4. Functions.

Shall fund the deposit guarantee and the reinforcement of the reliability and performance of the credit institutions, in accordance with provisions respectively by titles II and III of this Royal Decree-Law and its implementing regulations.

The Fund shall be such functions in defense of the interests of depositors, the Fund itself and the whole of the system composed of credit institutions attached to it.

Article 5. Member institutions.

1. all Spanish credit institutions shall vest on a mandatory basis, to the deposit guarantee fund of credit provided for in this Royal Decree-law.

The obligation referred to in the previous subparagraph shall not apply to the financial credit establishments, or the official credit Institute.

2. the branches of foreign credit entities operating in Spain will be incorporated into the background assumptions and form to be determined by regulation.

3 credit institutions that do not carry out properly their contributions to the guarantee fund for deposits of credit institutions or fail to comply with any of the obligations that correspond to it, can be excluded from the Fund, once they have failed the measures to be taken to ensure compliance. It will be competent to agree exclusion holder of the Ministry of economy and finance, on the proposal of the Bank of Spain and report of the Management Committee of the Fund.

Article 6. Heritage.

1. the assets of the deposit guarantee funds in savings, banking institutions and credit unions, will be integrated into the guarantee fund of deposits in credit institutions with effects from the entry into force of this Royal Decree. The Fund is subrogated in all the rights and obligations of the dissolved funds.

2. the Fund is nutria, in terms which is determined according to the rules, with annual contributions of credit institutions integrated into it, the amount of which will be up to a maximum of 2 per thousand of the deposits that extends your warranty, depending on the type of credit institutions.

When the Fund's unencumbered assets reaches negative values, the Management Committee may decide, by a majority of two thirds of all its members, levies among the participating institutions conducting. These levies shall be distributed according to the basis of calculation of the contributions, and the total amount may not exceed the amount necessary to eliminate that deficit.

Contributions to the Fund shall be suspended when the capital fund not engaged in operations of the background object equals or exceeds 1 per 100 of deposits of the entities attached to it.

Article 7. Commission management.

1. the Fund will be governed and managed by a Management Committee composed of twelve members, six appointed by the Bank of Spain and six by the representative associations of member credit institutions, in the terms provided for by law.

2. the representatives of the Bank of Spain will be appointed by its Executive Committee. One of them will be the Deputy Governor that will hold the Presidency of the Commission with vote of quality in case of tie in the vote of them agreements to adopt. His vacant, absence or disease will be covered prior designation by its Commission Executive by one of them representatives holders of the Bank of Spain, who will be replaced, to his time in the Commission Manager, by one of them members alternate.

The representatives of the member institutions will be designated two by the representative associations of banks, two savings banks and two of credit unions, in the terms provided for by law.

The appointees shall be persons of recognized commercial and professional repute and possess expertise and experience appropriate for the exercise of their functions. In the determination of the conditions will attend the criteria referred to in article 2 of the Royal Decree 1245 / 1995, of July 14, about creation of banks, cross-border activity and other issues relating to the legal regime of credit institutions.

By the same procedure it shall appoint two alternate representatives of the Bank of Spain and one from each of the designated by the participating institutions, which will replace the holders in the event of vacancy, absence or illness. In the case of representatives of institutions, also must be replaced by indication of the President of the management Commission of the Fund, when the Management Committee will address issues directly affecting an entity or group of entities with which it is linked as administrator, Manager, contract labour, civil or commercial or any other relationship that could impair the objectivity of their decisions determining their abstention.

3. the term of office of the members of the Management Committee shall be four renewable years.

4 representatives of credit institutions attached to the Fund shall be terminated in office by the following causes: a) expiry of the term of his mandate.

(b) waiver.

(c) separation agreed by the Commission Manager by breach serious of their obligations, inability to permanent for the exercise of its function or missing sudden of repute.

Them representatives of the Bank of Spain will cease, in addition to by them same causes planned in the paragraph above, by agreement of its Commission Executive.

5. for the validity of them meetings of the Commission Manager will be required the assistance of the half of its members. Their agreements is adopted by most of its members, enjoying the Member that holds the Presidency of vote of quality.

However, is will require most of two thirds to agree the realization of levies, according to it planned in the paragraph 2 of the article 6, and for the measures planned in the article 11.

6. the Commission Manager shall establish its own rules of operation for the due exercise of their functions.

TITLE II function of guarantee of deposits article 8. Guarantee of deposits.

(1. the Fund will satisfy to their holders the amount of them deposits guaranteed in them terms planned regulations when is produce any of them following made: to) that the entity has been declared or is have judicially by requested the statement in competition of creditors;

(b) that, having produced non-payment of deposits, the Bank of Spain. determine that the entity is unable to return them immediately for reasons directly related to its financial situation. He Bank of Spain will take such determination to the greater as soon as possible and, in any case, should resolve within the term maximum that is determine regulations, after have proven that the entity not has attained restore them deposits vanquished and enforceable.

2 the Fund will satisfy the holders of securities or other financial instruments entrusted to a credit institution the amounts secured when any of the following events occurs: to) that the credit institution has been declared or is judicially by requested the Declaration of bankruptcy, and these situations involve the suspension of the restitution of the securities or financial instruments; However, not proceed the payment of those amounts if, within the term planned regulations to start its disbursement, is lifted the contest mentioned.

(b) that, having produced the non-restitution of the securities or financial instruments, the Bank of Spain can determine that the credit institution is unable to restore them in the near future for reasons directly related to its financial situation. The Bank of Spain will make that determination as soon as possible and, in any case, shall resolve on the appropriateness of the compensation within the maximum period to be determined by regulation.

3. all them payments that perform the Fund under them two paragraphs earlier is held in euros, well in effective or through another medium of payment of general acceptance, valuing is for them them values u others instruments financial in the form that regulations is determine.

By the mere fact of the payment, the Fund shall be subrogated rights corresponding to the amount paid, the creditor or investor being sufficient title the document evidencing the payment.

In the so-called of that them values u others instruments financial confident to the entity were restored by this with after to the payment, of an amount guaranteed depending on the paragraph 2 of this article, the Fund may compensate is of the amount satisfied, total or partially, if the value of which has of restore was greater that the difference between the of which were committed to the entity and the amount paid to the inverter , being empowered, to such end, to dispose of it in the amount that is coming, according to the procedure and criteria of attribution and valuation that regulations is set.

Article 9. Other guarantees.

The Fund will reimburse investors who entrusted to a credit institution attached to them monies, securities or other financial instruments, your deposit and administration or to the realization of any investment services referred to in the law 24/1988, of July 28, of the securities market, in the cases referred to in the previous article. This coverage will have the form, time and scope to be determined by regulation.

Article 10. Amounts secured.

1. the guaranteed amount of deposits will be as limit the amount of 100,000 euros or, for deposits nominated in another currency, its equivalent by applying appropriate exchange rates, as all the terms provided for by law.

2. the guaranteed amount to investors who have entrusted to the credit institution, securities or financial instruments shall be independent of the provisions in the preceding paragraph and will reach a maximum amount of 100,000 euros, in the terms provided for by law.

TITLE III function of reinforcement of the solvency and operation of the entities of credit article 11. Sanitation and preventive measures designed to facilitate the viability of an entity.

1. without prejudice to the provisions of the following article, when the situation of a credit institution, according to the information provided by the Bank of Spain, is such that make foreseeable that the Fund is liable to pay, in accordance with the reasons provided for by law, the Fund may adopt sanitation and preventive measures to facilitate the feasibility of the entity to overcome the crisis situation within the framework of an action plan agreed by the Agency and approved by the Bank of Spain.

(2) a plan of action containing measures that require approval of the Board or general Assembly of the affected entity, shall be considered conditional and will not run until fall the agreements that make it possible.

Meanwhile, if required by the situation of the entity, the Fund may perform temporary aid, provided that they are duly guaranteed, in the opinion of the Management Committee.

3. by adopting these measures, the Fund will take into account the financial cost of these dependants to be equated with the expenditures would have to choose, at the time of the adoption of the plan, by instead paying for the amounts secured.

Article 12. Support measures for the restructuring and strengthening of the equity of an entity.

1. in the event that you proceed with the orderly restructuring of a credit institution carried out within its plan approved by the Bank of Spain in the cases referred to in article 7.1 of Royal Decree-Law 9/2009, of 26 June on bank restructuring and reinforcement of the resources of credit institutions, the Commission management of the Fund of guarantee deposit in credit institutions may decide the dedication to lost Heritage Fund available to the participating financial institutions in the restructuring to the extent of the losses caused by such an operation.

Of the same mode, where is adopt measures of support financial for the strengthening of them resources own of an entity of credit under the article 9 of the Real Decree-Law 9 / 2009, of 26 of June, the Commission Manager of the Fund may decide the dedication to fund lost of the heritage available of the same to them entities financial participating in the operation of support until the limit of them losses caused by such operation.

2. the Management Committee may agree as provided for in the preceding paragraph taking into account the benefit of the whole of the system of committed organizations and provided that the estimate of the cost to charge is lower than expenditure that had to choose, at the time of the adoption of the plan, by instead paying for guaranteed amounts.

Article 13. Content of the action plans.

1 the plan of action to an entity in crisis which is referenced in the former article 11 which envisages aid of credit deposit guarantee fund, may include the following actions: to) financial aid, which may consist of grants to repayable, granting of guarantees, loans at favourable conditions, subordinate financing, acquisition by the Fund of assets damaged or not profitable appearing on the balance sheet of the entity and any other support financial.

(b) restructuring of the capital of the entity, which may entail, inter alia, the proper application of the own resources of the entity to absorb their losses, according to the uniqueness of each case; facilitate processes of merger or absorption with other entities of recognized solvency or the transfer of its business to another entity's credit; subscription by the Fund of enlargements of capital, according to it willing in them paragraphs following, and the adoption by them bodies corresponding of the entity affected of all those agreements that ensure the proper application of them supports borrowed by the Fund.

(c) measures of management that improve the Organization and the systems of procedure and control internal of the entity.

2. them measures planned in this article must go aimed to procure the viability of it entity in a term reasonable, to trial of the Fund, well reinforcing the heritage and solvency of the same, well facilitating its fusion or absorption by another of recognized solvency or the transfer of its business to another entity of credit.

Provision repealing only.

They are hereby repealed many rules of equal or lower rank are opposed to provisions in the present Royal Decree-Law and in particular: the Royal Decree-Law 4/1980, of 28 March, giving legal status to the guarantee fund of deposits and other measures complementary.

Royal Decree-Law 18 / 1982, of 24 of September, about funds of guarantee of deposits in boxes of saving and cooperative of credit.

The article 1 and them paragraphs 1, except for the paragraph quarter, and 6 of the article 2 of the Real Decree 2606 / 1996, of 20 of December, on funds of guarantee of deposits of entities of credit.

Available to transient first. Validity of certain regulations.

He Real Decree 2606 / 1996, of 20 of December, on funds of guarantee of deposits of entities of credit, will remain current in what not is oppose to it planned in the present real decree-law until the Government approve the corresponding standard of development of the same.

In addition, the order ECO/318/2002, of February 14, remain in force order ECO/2801/2003 of 3 October and the order EHA/3515/2009, of 29 December.

References to funds dissolved foreseen in the regulations shall be deemed performed in the new background and references to the respective management committees shall be made to the new Management Committee of the Fund.

Second transitional provision. Contribution regime.

The regime's contributions to the guarantee fund for deposits of credit institutions will be established in this Royal Decree-Law and its implementing regulations, until the moment in which in accordance with the relevant regulations of the European Union a new regime of contribution based, to develop regulations in addition to in the volume of deposits, the risk profile of each attached entities.

Available to transient third. Designation of the members of the Management Committee.

Representatives of the entities of the credit and the Bank of Spain in its Management Committee shall be appointed in accordance with article 7, within the two months following the entry into force of the present Royal Decree-law provisions.

Insofar as not is appropriate to the choice in the referred term of them new members of the Commission Manager of the Fund of warranty of deposits of entities of credit according to it planned in this real decree-law, them representatives of them entities attached in it same will be those that were part of them commissions managing of them three funds extinguished to the entry in force of the present real decree-law jointly corresponding to 50% of the total votes of the Commission.

Equally, the representatives of the Bank of Spain will be those who form part of the management committees of three extinct funds jointly corresponding to 50% of the total votes.

Fourth transitional provision. Ongoing processes.

The provisions of title III of the present Royal Decree-Law will be applicable to the processes of restructuring and strengthening of the resources of credit institutions which are not concluded or which are likely to produce legal effects to the entry into force of the present Royal Decree-law.

First final provision. Enabling legislation.

It empowers the Government to dictate how many provisions are necessary for the development, implementation and enforcement of the provisions of this Royal Decree.

Second final provision. Titles competence.

The present Royal Decree-Law dictates the amparo rules pursuant 6th, 11th, and 13th in article 149.1 of the Spanish Constitution, which attributes to the State competition on commercial law, bases of management of credit, banking and insurance and bases and coordination of the general planning of economic activity, respectively.

Third final provision. Entry in force.

The present Royal Decree-Law shall enter into force the day of its publication in the «Official Gazette».

Given in Madrid, on October 14, 2011.


The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO

Related Laws