Royal Decree-Law 3/2020 of 4 February on Urgent Measures Incorporating EU Directives into Spanish Law in Public Procurement, Private Insurance, Pension Plans, Taxation, and Fiscal Litigation

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10562 I. GENERAL PROVISIONS HEAD OF STATE 1651 Royal Decree-Law 3/2020, of February 4, on urgent measures to incorporate various directives of the European Union into the Spanish legal order in the field of public procurement in certain sectors; private insurance; pension plans and funds; the tax field and fiscal litigation.

INDEX Book One. Transposition of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement procedures of entities operating in the water, energy, transport and postal services sectors, and Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts. Title I. General provisions. Chapter I. Subject matter and definitions. Article 1. Subject matter of Book One of the Royal Decree-Law. Article 2. Definitions. Article 3. Nomenclature. Article 4. Methods for calculating the estimated value of contracts, framework agreements and dynamic purchasing systems. Chapter II. Subject scope of application. Article 5. Entities subject to this Royal Decree-Law. Article 6. Special or exclusive rights. Chapter III. Objective scope of application. Section 1. Regulated activities. Article 7. Common provisions. Article 8. Water. Article 9. Gas and heating. Article 10. Electricity. Article 11. Transport services. Article 12. Ports and airports. Article 13. Postal services. Article 14. Prospecting and extraction of petroleum, gas, coal and other solid fuels, and making available transport terminals. Article 15. Mixed contracts. Article 16. Legal regime of contracts intended for the performance of several activities. Section 2. Exclusions. Subsection 1. Exclusion of activities subject directly to competition. Article 17. Exclusion of activities subject directly to competition. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10563 Subsection 2. Excluded contracts. Article 18. Contracts excluded by reason of their purpose. Article 19. Exclusions in the fields of water and energy. Article 20. Specific exclusions relating to service contracts and service concession contracts. Article 21. Contracts and project competitions related to the international field. Article 22. Service contracts awarded on the basis of an exclusive right. Article 23. Contracts in the fields of defence and security. Article 24. Contracts with associated companies and joint ventures. Subsection 3. Excluded public cooperation systems. Article 25. Assignments to personified in-house bodies. Article 26. Agreements. Chapter IV. Contracting principles and confidentiality. Article 27. Principles of contracting. Article 28. Confidentiality. Article 29. Conflicts of interest. Title II. Capacity and classification of economic operators. Chapter I. Capacity and solvency of bidders. Article 30. Capacity of economic operators and other participation conditions. Article 31. Business groupings. Chapter II. Classification of companies. Article 32. Classification regime. Article 33. Own classification system. Article 34. Publicity of the own classification system of contracting entities. Article 35. Classification agreements. Article 36. Requirements relating to capacities of other entities. Article 37. Information to candidates. Article 38. Impartiality in classification and list of classified companies. Article 39. Cancellation of classifications. Article 40. Call for tenders by means of an announcement on the existence of a classification system. Title III. Preparation and documentation of the contract. Article 41. Preliminary market consultations. Article 42. Delimitation of the subject matter of the contract. Article 43. Tender specifications, worker succession and tender budget. Article 44. Communication of specifications. Article 45. Technical specifications. Article 46. Labels. Article 47. Test reports, certification and other means of proof. Article 48. Quality assurance standards and environmental management standards. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10564 Article 49. Mutual recognition regarding technical or financial conditions and regarding certificates, tests and justifications. Article 50. Definitions of technical specifications. Article 51. Mandatory technical instructions and regulations. Title IV. Award procedures for contracts. Chapter I. Subject matter, minimum content and duration of contracts. Article 52. Subject matter of the contract. Article 53. Minimum content of the contract. Article 54. Duration of contracts. Chapter II. Requirements for candidates and bidders. Article 55. Requirement of solvency. Article 56. Qualitative selection criteria for candidates and bidders. Article 57. Documentation proving compliance with requirements to contract. Chapter III. Award procedures. Section 1. General rules. Article 58. General principles. Article 59. Obligation to notify and exclusion of actions and practices restricting competition. Article 60. Calculation of time limits. Article 61. Rules applicable to communications. Article 62. Prior participation of candidates or bidders. Article 63. Invitation to selected candidates. Article 64. Information to candidates and bidders. Article 65. Reserved contracts. Article 66. Contract award criteria. Article 67. Life cycle costing. Article 68. Admission of variants. Article 69. Abnormally low tenders. Article 70. Preference for Community tenders in supply contracts. Article 71. Decision not to award or conclude the contract and withdrawal of the award procedure by the contracting entity. Article 72. Award of contracts. Article 73. Perfection and formalization of contracts. Section 2. Publicity of tenders. Article 74. Contracting profile. Article 75. Public Sector Procurement Platform. Article 76. Indicative periodic notices. Article 77. Call for tenders. Article 78. Tender notices. Article 79. Notices of formalization of contracts. Article 80. Criteria and modalities for the publication of notices. Section 3. Types of procedure. Article 81. Award procedures. Article 82. Open procedure. Article 83. Restricted procedure. Article 84. Competitive negotiation procedure. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10565 Article 85. Negotiated procedure without prior publication. Article 86. Competitive dialogue. Article 87. Innovation partnership. Title V. Techniques for rationalizing contracting and project competitions. Chapter I. Rationalization Techniques. Section 1. Central purchasing bodies. Article 88. Centralized purchasing activities and central purchasing bodies. Article 89. Sporadic joint contracting. Article 90. Contracting with the intervention of contracting entities from different Member States of the European Union. Article 91. Contracts and framework agreements concluded with central purchasing bodies. Section 2. Framework agreements. Article 92. Framework agreements. Section 3. Dynamic purchasing systems. Article 93. Delimitation. Article 94. Rules applicable to dynamic purchasing systems. Article 95. Incorporation of companies into the system. Article 96. Award of specific contracts within the framework of a dynamic purchasing system. Section 4. Electronic auctions and electronic catalogues. Article 97. Electronic auctions. Article 98. Electronic catalogues. Chapter II. Project competitions. Article 99. Organization of the project competition. Article 100. Number of participants Article 101. Scope of application of the project competition. Article 102. Publicity of the project competition. Article 103. Communications in project competitions. Article 104. Jury of the project competition. Title VI. Execution and termination of contracts. Chapter I. On the execution of the contract. Article 105. Execution conditions of the contract of a social, ethical, environmental or other nature. Article 106. Obligations relating to provisions on tax, environmental protection, employment and working conditions and on hiring a specific percentage of people with disabilities. Article 107. Subcontracting. Article 108. Payments to subcontractors and suppliers and verification thereof. Chapter II. On the modification of contracts. Article 109. Cases of modification. Article 110. Modifications foreseen in the tender specifications. Article 111. Modifications not foreseen in the tender specifications. Article 112. Procedure and publicity of modifications. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10566 Chapter III. On the resolution of contracts. Article 113. Resolution of contracts. Title VII. Invalidity, claims and extrajudicial dispute resolution. Chapter I. Invalidity regime. Article 114. Cases of invalidity. Article 115. Causes of nullity derived from administrative law. Article 116. Causes of voidability derived from administrative law. Article 117. Effects of the declaration of nullity. Article 118. Causes of invalidity of civil law. Chapter II. Claims in contract award procedures. Article 119. Subject matter of claims. Article 120. Competent body for the resolution of the claim. Article 121. Legal regime of the claim. Article 122. Effects of the resolution of the claim in contracting matters. Chapter III. Extrajudicial dispute resolution. Article 123. Arbitration. Title VIII. Administrative organization and governance obligations. Article 124. Information on contracts. Article 125. Contract Registers. Article 126. Governance. Book Two. Measures to adapt Spanish law to European Union legislation on private insurance and pension plans and funds. Title I. Transposition of Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution. Chapter I. General provisions. Article 127. Subject matter. Article 128. Definitions. Article 129. Objective scope of application. Article 130. Subject scope of application. Article 131. Registration obligation. Chapter II. Supervisory bodies and competences. Article 132. Distribution of competences. Article 133. Administrative register of insurance and reinsurance distributors. Chapter III. On the activities of insurance and reinsurance distributors resident or domiciled in Spain. Section 1. Insurance distributors. Subsection 1. Classification. Article 134. Classes of insurance distributors. Article 135. Classes of insurance mediators. Article 136. General obligations and prohibitions applicable to insurance mediators. Article 137. External collaborators of insurance mediators. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10567 Subsection 2. On the insurance distribution activity carried out by insurance entities. Article 138. Distribution of insurance products by employees of insurance entities. Article 139. Requirements for employees of insurance entities participating in insurance distribution. Subsection 3. On the insurance distribution activity carried out by insurance agents. Article 140. Concept of insurance agent. Article 141. Insurance agency contract. Article 142. Requirements to guarantee obligations towards third parties. Article 143. Professional civil liability. Article 144. Advertising and commercial documentation of private insurance distribution by insurance agents. Article 145. Incompatibilities of insurance agents. Article 146. Communication regime. Article 147. Registration and internal registry of exclusive insurance agents. Article 148. Agreements for the transfer of exclusive insurance agent networks. Article 149. Registration and requirements of linked insurance agents. Article 150. Concept of bancassurance operator. Article 151. Applicable regulations for bancassurance operators. Article 152. Requirements for bancassurance operators. Article 153. Advertising and commercial documentation of the private insurance distribution activity of bancassurance operators. Article 154. Incompatibilities of bancassurance operators. Subsection 4. Insurance brokers. Article 155. Concept of insurance broker. Article 156. Relations with insurance entities and clients. Article 157. Requirements for insurance brokers. Article 158. Advertising and commercial documentation of the private insurance distribution activity of insurance brokers. Article 159. Incompatibilities of insurance brokers. Subsection 5. Close links and significant participations in bancassurance operators and insurance brokers. Article 160. Close links and regime of significant participations. Section 2. Reinsurance distributors. Article 161. Distribution of reinsurance products by employees of reinsurance entities. Article 162. Concept of reinsurance broker. Article 163. Relations with reinsurance entities and clients. Article 164. Obligations towards third parties. Section 3. Training courses for insurance and reinsurance distributors. Article 165. Requirements and organization of training courses. Section 4. Dispute resolution mechanisms. Article 166. Obligation to attend and resolve complaints and claims. Article 167. Client Ombudsman. Article 168. Administrative protection of financial services clients. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10568 Section 5. On the activity of insurance and reinsurance mediators resident or domiciled in Spain under the free provision of services and under the right of establishment regimes in other Member States of the European Union. Article 169. Exercise of activity under the free provision of services regime. Article 170. Exercise of activity under the right of establishment regime. Article 171. General reference. Section 6. Information obligations and conduct rules. Subsection 1. General information obligations. Article 172. General principle. Article 173. General prior information to be provided by the insurance mediator. Article 174. General prior information to be provided by the insurance entity. Article 175. Prior information and advice that insurance distributors must provide on the insurance contract. Article 176. General duty of prior information on the insurance contract other than life insurance: prior information document. Article 177. Exemption from the obligation of prior information. Subsection 2. Additional requirements relating to the distribution of insurance-based investment products. Article 178. Scope of application of additional requirements. Article 179. Prevention of conflicts of interest. Article 180. Prior information to be provided to clients. Article 181. Suitability and appropriateness analysis and information to clients. Subsection 3. Modalities of information transmission. Article 182. Modality of transmission of general information. Article 183. Modality of transmission of information in the case of insurance-based investment products. Subsection 4. Bundled and tied selling practices. Article 184. Bundled and tied selling practices. Subsection 5. Product control and governance requirements. Article 185. Requirements in the design, approval and control of products and in governance matters. Section 7. Regulatory and supervisory competences. Subsection 1. Competences of the General State Administration. Article 186. Control of insurance and reinsurance distributors. Article 187. Accounting obligations and duty of statistical-accounting information. Article 188. Duty of professional secrecy. Article 189. Duty of collaboration with other supervisory authorities. Article 190. Cancellation of the registration of the administrative register of insurance and reinsurance distributors. Subsection 2. Liability towards the Administration and regime of offences and sanctions. Article 191. Offending subjects. Article 192. Offences. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10569 Article 193. Prescription of offences. Article 194. Sanctions. Article 195. Liability of those holding administrative positions, the person responsible for the distribution activity or those who are part of the management body responsible for the distribution activity in insurance and reinsurance entities, insurance agency companies, bancassurance operators, insurance brokerage companies and reinsurance brokerage companies. Article 196. Criteria for grading sanctions. Article 197. Prescription of sanctions. Article 198. Administrative competences. Article 199. Public denunciation and referral to the sanctioning regime of insurance entities. Article 200. Special control measures. Article 201. Publication of sanctions and other measures. Article 202. Transmission of information on sanctions and other measures to the European Insurance and Occupational Pensions Authority. Subsection 3. Protection of personal data. Article 203. Status of data controller or processor. Article 204. Other data protection rules. Section 8. Insurance mediator colleges and their general council. Article 205. Insurance mediator colleges. Chapter IV. Insurance and reinsurance distributors resident or domiciled in other Member States of the European Union. Section 1. On the activity in Spain of insurance and reinsurance mediators resident or domiciled in other Member States of the European Union. Article 206. General rules. Article 207. Distribution of competences between Member States. Article 208. Compliance with legal provisions. Article 209. Compliance with legal provisions adopted for reasons of general interest. Article 210. Intervention measures. Section 2. General interest rules applicable to insurance and reinsurance distributors resident or domiciled in other Member States of the European Union. Article 211. General interest rules. Title II. Partial transposition of Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of occupational pension funds. Article 212. Modification of the consolidated text of the Law on the Regulation of Pension Plans and Funds, approved by Royal Legislative Decree 1/2002, of November 29. Title III. Modification of Law 20/2015, of July 14, on the organization, supervision and solvency of insurance and reinsurance entities. Article 213. Modification of Law 20/2015, of July 14, on the organization, supervision and solvency of insurance and reinsurance entities. cve: BOE-A-2020-1651 Verifiable at https://www.boe.es

OFFICIAL STATE BULLETIN No. 31 Wednesday, February 5, 2020 Sec. I. Page 10570 Book Three. Measures to adapt Spanish law to certain European legislation in fiscal matters. Title I. Transposition of Council Directive (EU) 2018/1910 of 4 December 2018 amending Directive 2006/112/EC as regards the harmonisation and simplification of certain rules relating to the value added tax system in the taxation of exchanges between Member States, and Council Directive (EU) 2019/475 of 18 February 2019 amending Directives 2006/112/EC and 2008/118/EC as regards the inclusion of the Italian municipality of Campione d'Italia and the Italian waters of Lake Lugano in the customs territory of the Union and in the territorial scope of application of Directive 2008/118/EC. Chapter I. Modification of Law 37/1992, of December 28, on Value Added Tax. Article 214. Modification of Law 37/1992, of December 28, on Value Added Tax. Chapter II. Modification of Law 38/1992, of December 28, on Special Taxes. Article 215. Modification of Law 38/1992, of December 28, on Special Taxes. Chapter III. Modification of the Regulation on Value Added Tax, approved by Royal Decree 1624/1992, of December 29. Article 216. Modification of the Regulation on Value Added Tax, approved by Royal Decree 1624/1992, of December 29. Title II. Transposition of Council Directive (EU) 2017/1852 of 10 October 2017 on tax dispute resolution mechanisms in the European Union, thereby harmonising the framework for amicable procedures and strengthening legal certainty. Chapter I. Modification of the consolidated text of the Law on Non-Resident Income Tax, approved by Royal Legislative Decree 5/2004, of March 5. Article 217. Modification of the consolidated text of the Law on Non-Resident Income Tax, approved by Royal Legislative Decree 5/2004, of March 5. Chapter II. Modification of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction. Article 218. Modification of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction. Additional Provision First. Clause of non-less favourable treatment. Additional Provision Second. Value Added Tax. Additional Provision Third. Liability of personnel serving contracting entities belonging to the Public Sector. Additional Provision Fourth. Accessibility. Additional Provision Fifth. Legal regime applicable to contracts excluded from the scope of this Royal Decree-Law that are concluded by Public Sector entities. Additional Provision Sixth. Update of fixed amounts...