Royal Decree 815/2023 developing the Securities Markets and Investment Services Law regarding CNMV registers, cooperation, and supervision

I. GENERAL PROVISIONS MINISTRY OF ECONOMIC AFFAIRS AND DIGITAL TRANSFORMATION 22765 Royal Decree 815/2023, of November 8, developing Law 6/2023, of March 17, on Securities Markets and Investment Services, in relation to the official registers of the National Securities Market Commission, cooperation with other authorities, and the supervision of investment service firms.

I Properly regulated and supervised securities markets can make a significant contribution to the overall economy by efficiently allocating financial resources and fostering the internationalization of companies and the economy. However, previous financial crises have demonstrated that capital markets have significant destructive potential, and that crises originating in financial markets can rapidly and virulently spread to economies and other productive sectors. To ensure the correct and orderly functioning of securities markets, it is fundamental that they be regulated by a legal framework that is as clear, stable, and coherent as possible. But in addition to a high-quality legal framework, it is indispensable that compliance with said framework be supervised by an independent administrative authority endowed with the necessary administrative powers and human and material resources. This function is performed in our legal system by the National Securities Market Commission (hereinafter, CNMV) since 1988. Indeed, the CNMV supervises the correct functioning of securities markets, as established by Law 6/2023, of March 17, on Securities Markets and Investment Services. These markets are characterized by their high technical complexity, sophistication, and growing integration into European and international financial markets. Hence, the CNMV must guide its functioning and supervisory activities by the highest standards of professionalism, technical competence, and independence; and it must be endowed with the most modern and extensive possible supervisory techniques and administrative powers, in order to achieve its objectives with maximum efficacy. But at the same time, as an administrative authority fulfilling an essential public interest, its actions must always be guided by the principles of legality, transparency, and proportionality. In this sense, this Royal Decree aims to develop in a unitary and coherent manner the supervisory administrative powers and faculties attributed to the CNMV by the Law. Specifically, Law 6/2023, of March 17, on Securities Markets and Investment Services expressly but generically attributes to the CNMV certain powers and faculties of inspection, verification, investigation, etc., which are complemented and developed in their detailed aspects by this Royal Decree. This regulatory development is also congruent with Article 4.2 of Law 40/2015, of October 1, on the Legal Regime of the Public Sector, which recognizes public administrations a wide range of inspection and verification faculties. It thus follows the system of other similar regulations that develop supervisory and inspection powers, such as, for example, Royal Decree 84/2015, of February 13, developing Law 10/2014, of June 26, on the ordering, supervision, and solvency of credit institutions, or the General Regulation of tax management and inspection actions and procedures.

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By developing and systematizing in a single regulation these supervisory powers and faculties, the knowledge and application of these supervisory powers and faculties are facilitated, and their exercise in the most coherent and predictable manner. Furthermore, the regulation develops the registration obligations and inter-administrative relations of the CNMV that Law 6/2023, of March 17, establishes in its essential elements. Likewise, this Royal Decree regulates numerous issues that were included in the previous consolidated text of 2015 of the Securities Market Law. As the Council of State had observed in various opinions, that Law suffered from an excessive regulatory character. Therefore, the new law contains only the basic configurative elements of the legal regime of CNMV supervision and intervention, a legal regime that is completed and developed by this executive Royal Decree. Thus, two important objectives are achieved: on the one hand, Law 6/2023, of March 17, is relieved of detailed technical issues not pertinent to the text of a framework law, thereby reducing not only its length but also its complexity. And, on the other hand, it allows those detailed issues to be adapted in the future much more agilely and quickly to possible normative modifications derived from European Union Law through the adaptation of this regulatory norm.

II The content of this Royal Decree corresponds fundamentally to the development of the supervisory administrative powers and faculties attributed to the CNMV by the Law for the fulfillment of its purposes. First, this Royal Decree includes the detail of the official registers that the CNMV must establish and maintain, which constitute an essential piece of the transparency that must guide the functioning of securities markets. Law 6/2023, of March 17, refers to numerous registers in various matters (prospectuses, entities entrusted with keeping the accounting register, national financial advisory firms) which are specified in Article 2 of this Royal Decree. An exhaustive list is thus made of the official public registers that the CNMV will maintain. Second, the regulation details the inter-administrative cooperation relations that must guide the actions of the CNMV when exercising competencies that may affect the competencies of other national, European, or third-country supervisory authorities. Thus, specific provisions are dedicated to cooperation relations with the Bank of Spain, the supervisory authorities of other EU Member States, the European Securities and Markets Authority (ESMA), and the supervisory authorities of third countries. In this sense, cooperation with other national authorities is regulated. In Article 3, criteria are established to cooperate with other national supervisory authorities, namely the Bank of Spain and the General Directorate of Insurance and Pension Funds, establishing requirements for information exchange between them. Likewise, the situations in which the CNMV must request a prior report from both entities are fixed. Article 5, for its part, fixes the cooperation relations with a series of other entities or national authorities, in relation to Law 1/2005, of March 9, regulating the regime for the trading of greenhouse gas emission allowances and derivatives on agricultural commodities. Likewise, the situations in which the CNMV or the Ministry of Economic Affairs and Digital Transformation will cooperate, guaranteeing the exchange of information with other competent authorities of the European Union, with the European Systemic Risk Board (hereinafter, ESRB), and with other members of the European System of Financial Supervision, in order to comply with Law 6/2017, of March 17, are fixed. Criteria for information exchange between the CNMV and European authorities are also fixed. Likewise, exceptional situations are established in which the CNMV may refuse to process a request for cooperation in an investigation, an on-site verification, or supervision in Article 10.

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An important aspect regulated in this Royal Decree relates to specific provisions on the supervision of investment service firms, and it is here that the partial transposition of Directive 2019/2034 is mainly contained. Investment service firms constitute one of the most relevant categories of financial intermediaries in securities markets in terms of number and importance. Therefore, the regulation provides for some specialties regarding the exercise of powers and faculties of supervision over them. To a large extent, these faculties have their origin in European Union Law, and especially in Directive (EU) 2019/2034 of the European Parliament and of the Council, of November 27, 2019, on the prudential supervision of investment firms, amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU, and 2014/65/EU. The Royal Decree consists of an explanatory statement, 31 articles organized in four chapters, and 4 final provisions. Chapter I contains the general provisions regarding the object of the Royal Decree. Chapter II is regarding public registers, in which the list of official registers whose maintenance is the responsibility of the CNMV stands out. Chapter III regulates the cooperation relations of the CNMV with other supervisory authorities, both national and from the EU or third countries. It also includes in this chapter what relates to information exchanges between competent authorities. Chapter IV contains the specific provisions on the supervision of investment service firms, and it is here that the partial transposition of Directive 2019/2034 is mainly contained. Therefore, Chapter IV is divided into three sections. The first determines the objective and subjective scope of this supervisory function. It establishes the elements that will be the subject of supervisory evaluation. It also sets a maximum of three years for the review of compliance by investment service firms with the requirements applicable to models whose use for the calculation of own funds requirements requires prior authorization. The second develops how the CNMV will collaborate with other supervisory authorities of other Member States. Specifically, Article 17 indicates the information that the CNMV must send to ESMA and also in emergency situations, the latter in compliance with Article 262 of Law 6/2023, of March 17. Furthermore, supervision based on consolidatable and consolidated groups is developed concretely. The functioning of supervisory colleges is also developed, in development of Article 264 of Law 6/2023, of March 17. Finally, the third section regulates disclosure and information obligations. Article 30 marks the information that the CNMV must publish on its website regarding solvency, in addition to developing specifically how Articles 6 and 7 of Regulation (EU) No 575/2013 of the European Parliament and of the Council, of June 26, 2013, will be applied. For its part, Article 31 indicates the information, regarding solvency, that investment service firms must publish, integrated into a single document called "Solvency Information". This report must have at least an annual nature. Finally, 4 final provisions are regulated, relating to entry into force, the Union law being transposed, the competential titles to issue the Royal Decree, and the authorization for the development of this norm. The first final provision enunciates the enabling competential titles of the State, while the second final provision identifies the European Union Directives that are the object of transposition. Finally, the third final provision authorizes the person holding the position of Minister of Economic Affairs and Digital Transformation and, with express authorization from this, the CNMV, to issue the necessary provisions for the proper execution of this Royal Decree, while the fourth final provision orders the entry into force of the norm the day after its publication in the "Official State Gazette".

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III This Royal Decree responds to the principles of necessity, efficacy, proportionality, legal certainty, transparency, and efficiency, which are provided for in Article 129 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations. With regard to the principles of necessity and efficacy, it is the optimal instrument to carry out the partial transposition of Directive (EU) 2019/2034 of the European Parliament and of the Council, of November 27, 2019, and thus comply with the obligations of the Kingdom of Spain regarding the incorporation of European law norms into our legal system. Furthermore, it is the optimal and necessary instrument to reduce the matters that until now had been regulated in the legal sphere in the field of securities markets and that have a more suitable location in a regulatory rank norm. As for the principle of proportionality, the partial transposition of Directive 2019/2034 of the European Parliament and of the Council, of November 27, 2019, maintains the necessary balance between the need to mitigate risks derived from the activity of entities in the financial sector and the regulatory boost to their competitiveness and profitability. Likewise, the regulation by this Royal Decree of the various administrative powers, official registers, and inter-administrative relations that the CNMV maintains and which are provided for in this Royal Decree is also respectful of the principle of proportionality. In all these aspects, this Royal Decree complies with what is provided in Article 4 of Law 40/2015, of October 1, on the Legal Regime of the Public Sector. The principle of legal certainty is reinforced significantly, insofar as this Royal Decree systematizes and reorders issues that until now were regulated in the consolidated text of the Securities Market Law. In this way, various sub-principles derived from the principle of legal certainty are deepened, such as the cognoscibility of norms and the quality of norms. The distribution between law and regulation advanced through the new Law 6/2023, of March 17, and this Royal Decree thus improves the knowledge and understanding of norms by their recipients, facilitating their interpretation and application and allowing the legal system in this area to adapt without constant legislative modifications or making the fewest possible. In application of the principle of transparency, interested parties had access to the draft of this Royal Decree and other documents (Draft Law on Securities Markets and Investment Services, Draft Royal Decree on instruments, registers, and infrastructure, Draft Royal Decree on Investment Service Firms) on the website of the Ministry of Economic Affairs and Digital Transformation during both the public consultation phase and the public hearing phase. In this sense, two public hearing processes were carried out. The first took place from May 5 to May 25, 2021, while the second was held from September 21 to September 28, 2023. In the first of these hearings, the participating entities made few observations to this Royal Decree, with the exception of the CNMV. The same occurred in the second hearing, where the most relevant contributions were received from the CNMV and the Bank of Spain. Finally, regarding the principle of efficiency, this Royal Decree imposes no additional administrative burden that is not strictly necessary to comply with the obligations derived from Directive 2019/2034 of the European Parliament and of the Council, of November 27, 2019, on the prudential supervision of investment service firms. It has been submitted to public consultation and hearing procedures, and during its processing, reports were requested from the General Technical Secretariats of the Ministry of Justice, the Ministry for Ecological Transition and the Demographic Challenge, as well as from the Ministry of Economic Affairs and Digital Transformation, while receiving reports from the CNMV, the Bank of Spain, the Spanish Data Protection Agency, and the Council of State.

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Therefore, upon proposal of the Minister of Economic Affairs and Digital Transformation, with the prior approval of the Minister of Finance and Public Function, in accordance with the Council of State, and after deliberation by the Council of Ministers in its meeting on November 7, 2023, I HEREBY ORDER:

CHAPTER I General Provisions

Article 1. Object. This Royal Decree aims to develop Law 6/2023, of March 17, on Securities Markets and Investment Services, specifically the legal regime of the administrative powers and faculties of the National Securities Market Commission (hereinafter CNMV).

CHAPTER II Official Registers

Article 2. Official Registers. The CNMV will maintain the following official public registers, to which the public will have free access: a) A register of entities entrusted with keeping the accounting register corresponding to each of the issuances of securities represented by book-entry accounts. b) A register of entities responsible for the administration of the inscription and registration of negotiable securities represented by systems based on distributed ledger technology corresponding to an issuance. c) A register that will contain the prospectuses approved by the CNMV pursuant to what is provided in Law 6/2023, of March 17, on Securities Markets and Investment Services. d) A register of the documents referred to in Article 37.1 a) and b) of Law 6/2023, of March 17, when in the case of admission to trading, the CNMV is responsible for verifying the admission to trading requirements as provided in Article 63 of Law 6/2023, of March 17. For public offers for sale or subscription of negotiable securities not exempt from the obligation to publish a prospectus, a register of the documents referred to in Article 37.1 a) of Law 6/2023, of March 17. e) A register of investment service firms operating in Spain and, where applicable, their administrators, executives, and equivalent personnel. f) A register of national financial advisory firms (EAFN) and, where applicable, their administrators, executives, and equivalent personnel. g) A register of agents or attorneys who act habitually on behalf of investment service firms, and of national financial advisory firms (EAFN) that are legal entities. h) A register of regulated information, which must include the information indicated in Articles 99, 100, 103, 105, 106, and 228 of Law 6/2023, of March 17. It will also include official requirements from the CNMV for the submission, expansion, or revision of the content of the information referred to in Articles 99 to 102 of Law 6/2023, of March 17. This register will have the status of a central mechanism for information storage. i) A register of listed companies provided for in Article 495 of Royal Legislative Decree 1/2010, of July 2, approving the consolidated text of the Capital Companies Law. j) A register in which, in accordance with what is provided in Article 334 of Law 6/2023, of March 17, sanctions imposed in the last five years for the commission of serious and very serious offenses by natural and legal persons subject to the scope of supervision, inspection, and sanction provided for in Title IX of said law will be recorded. k) A register of regulated markets, of whose content and modifications the supervisory bodies of other European Union Member States and ESMA will be informed. l) A register of Spanish multilateral trading facilities. m) A register of Spanish organized trading facilities (OTFs). ñ) A register of credit institutions and investment service firms that carry out the regulated activity of systematic internalization. o) A register of bank asset funds referred to in the additional tenth provision of Law 9/2012, of November 14, on the restructuring and resolution of credit institutions, in which facts and acts subject to registration at the CNMV in accordance with applicable regulations will be inscribed. p) A register of crowdfunding platforms. q) A register of securitization funds, in which facts and acts subject to registration at the CNMV in accordance with applicable regulations will be inscribed. r) A register of insider information relating to issuers of financial instruments that have been admitted to trading on regulated markets or for which admission to a regulated market has been requested. s) A register of data supply service providers. t) A register of corporate governance information and other information that issuing companies must submit to the CNMV in compliance with regulatory provisions and which are not defined in the previous registers. u) A register of prospectuses for public offers for the acquisition of shares approved by the CNMV pursuant to what is provided in Law 6/2023, of March 17, as well as exceptions to the formulation of public offers for the acquisition of shares.

CHAPTER III Cooperation with Other Authorities

Article 3. Cooperation with other national supervisory authorities.

1. The Bank of Spain, the CNMV, and the General Directorate of Insurance and Pension Funds of the Ministry of Economic Affairs and Digital Transformation, within their respective legal competencies regarding the control and inspection of financial entities, will cooperate closely with the aim of harmonizing, where appropriate, and improving, based on their mutual experience, the criteria and programs that underpin the techniques and practices of supervision they use in the exercise of those competencies.
2. To this end, they will periodically exchange information...