Royal Decree-Law 11/2018 of 31 August on transposition of directives on pension commitments, anti-money laundering, and third-country nationals entry and residence, and amending the Common Administrative Procedure Law

Go to content

Consult the Official State Gazette (BOE)

You are here

Home

BOE

Document BOE-A-2018-12131

previous

next

Document BOE-A-2018-12131

Royal Decree-Law 11/2018, of 31 August, on the transposition of directives in matters of protection of pension commitments with workers, prevention of money laundering and terrorist financing, and entry and residence requirements for nationals of third countries, and amending Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations. View consolidated text

Published in:

« BOE » no. 214, of 4 September 2018, pages 86686 to 86733 (48 pages)

Section:

I. General Provisions

Department:

Head of State

Reference:

BOE-A-2018-12131

Permalink ELI:

https://www.boe.es/eli/es/rdl/2018/08/31/11

Other formats:

PDF

EPUB

XML

Co-official languages:

PDF Catalan

PDF Galician

PDF Basque

Text

ORIGINAL TEXT

I

The timely transposition of European Union directives currently constitutes one of the priority objectives established by the European Council. The European Commission submits periodic reports to the Competitiveness Council, which are given high political value as they serve to measure the effectiveness and credibility of Member States in implementing the internal market.

The fulfillment of this objective is even more critical today given the scenario designed by the Treaty of Lisbon, which amends the Treaty on European Union and the Treaty establishing the European Community, regarding failures to transpose directives on time. In such cases, the Commission may request the Court of Justice of the European Union to impose significant financial penalties in an accelerated manner (Article 260.3 of the Treaty on the Functioning of the European Union – TFEU).

Spain has consistently met transposition objectives within committed deadlines since their establishment. However, at present, there is a delay in the transposition of certain directives that require a law-level norm for incorporation into the domestic legal order, as there is a risk of fines based on Article 260.3 of the TFEU.

Given the gravity of the consequences of continuing to accumulate delays in incorporating such directives into the Spanish legal order, it is necessary to approve a Royal Decree-Law to proceed with such transposition, which will allow closing the infringement procedures opened by the European Commission.

Finally, regarding the existence of "infringement procedures against the Kingdom of Spain," it must be noted that despite the optional nature provided in Article 260.3 of the Treaty on the Functioning of the European Union, in its Communication of 13 December 2016, "EU Law: Better Results through Better Application," the Commission announced a change in approach, moving to systematically request lump-sum payments. The logical consequence of the lump-sum payment approach is that, in cases where a Member State remedies the infringement by transposing the directive during an infringement procedure, the Commission will no longer withdraw its action solely for that reason.

As a transitional provision, the Commission has indicated that it will not apply this new practice to procedures whose letter of formal notice predates the publication of said communication in the Official Journal of the European Union, which took place on 19 January 2017. Consequently, it is of extraordinary and urgent necessity to proceed with transposition before the lawsuit is formalized before the Court of Justice, thereby avoiding a judicial procedure that would conclude with a judgment declaring the Kingdom of Spain's failure to comply with its obligations under EU Law.

Regarding the use of the Royal Decree-Law as a transposition instrument, it should be noted that the Constitutional Court, in Judgment 23/1993, of 21 January, states that the Royal Decree-Law is a constitutionally lawful instrument to address problematic economic situations, and in its Judgment 1/2012, of 13 January, it validates the concurrence of the enabling budget of extraordinary and urgent necessity under Article 86.1 of the Constitution when "patent delay in transposition" and the existence of "infringement procedures against the Kingdom of Spain" coincide. In the following sections of this Statement of Reasons, the reasons justifying the extraordinary and urgent necessity of transposing the various directives in each of the scenarios covered by this Royal Decree-Law will be specified.

II

Title I, which comprises Article 1, contains the modifications derived from the transposition of Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements to enhance worker mobility between Member States by improving the acquisition and maintenance of supplementary pension rights.

Based on Article 45 of the Treaty on the Functioning of the European Union, which establishes the freedom of movement of workers, Directive 2014/50/EU of 16 April 2014 aims to reduce obstacles to worker mobility between Member States created by certain rules regarding supplementary pension schemes linked to an employment relationship. To this end, the Directive limits the waiting and vesting periods required in such supplementary pension schemes, sets a limit regarding the minimum age to acquire corresponding rights, regulates the refund of premiums or contributions made in case of termination of the employment relationship before rights are acquired, establishes the maintenance of acquired rights when such termination occurs, and imposes information obligations on workers regarding the conditions for acquisition, the amount of acquired rights, and the treatment of these rights following the termination of the employment relationship.

The transposition into the Spanish legal order of Directive 2014/50/EU of 16 April 2014 requires modifying the First Additional Provision of the Consolidated Text of the Law on the Regulation of Pension Plans and Funds, approved by Royal Legislative Decree 1/2002 of 29 November. This additional provision establishes the obligation to implement through collective insurance and employment pension plans the pension commitments assumed by companies with workers linked to certain contingencies, including retirement, while also establishing the basic conditions for insurance suitable for this purpose. In the case of collective insurance, a modality in which premiums paid by the company are not fiscally attributed to workers, the conditions for acquisition and maintenance of rights in case of termination of the employment relationship currently depend on the terms of collective agreements or equivalent provisions in which pension commitments are established.

Title I modifies the aforementioned Consolidated Text of the Law on the Regulation of Pension Plans and Funds, approved by Royal Legislative Decree 1/2002 of 29 November, specifically the aforementioned First Additional Provision, to introduce the provisions of the European norm regarding the limitation of age requirements and waiting and vesting periods, the conservation of acquired rights in case of termination of the employment relationship, and information obligations to workers on such aspects.

Although Directive 2014/50/EU of 16 April 2014 is applicable, as stated, to workers who terminate their employment relationship and move to other Member States, in the transposition to Spanish legislation, it has been opted to extend its application to all workers, making use of the authorization established in Recital 6 of the Directive itself, which allows Member States to expand the scope of its application to those who move within the same Member State.

The transposition of the aforementioned Directive is completed with norms regulating the information regime for workers in case of termination of the employment relationship prior to retirement, as well as the regime for the future treatment of acquired rights once such termination has occurred.

Finally, in the aforementioned Consolidated Text of the Law on the Regulation of Pension Plans and Funds, approved by Royal Legislative Decree 1/2002 of 29 November, two new transitional provisions, ninth and tenth, are added. The ninth transitional provision regulates the minimum amount of acquired rights in case of termination of the employment relationship for reasons other than retirement having acquired rights, taking into account that, in accordance with Article 2.4 of the Directive, it will apply only to periods of employment that elapse from 21 May 2018 (the deadline for transposition of the Directive); it also provides, in accordance with Article 2.2.a) of the Directive subject to transposition, that in the case of pension commitments that as of 20 May 2014 (the date of entry into force of the Directive) had ceased to include new workers and remain closed to new workers, the rights acquisition regime they had stipulated will apply; finally, it establishes periods for insurance entities and pension fund management entities to adapt their procedures to comply with new information obligations, as well as for the express inclusion of certain contents, where applicable, in insurance contracts and the specifications and technical bases of pension plans, without prejudice to the effective application of the rights established in the First Additional Provision of the Consolidated Text of the Law on the Regulation of Pension Plans and Funds as amended by this Royal Decree-Law. The tenth transitional provision establishes that the application of the modifications introduced by this Royal Decree-Law cannot result in a reduction of rights acquired prior to its entry into force, nor prejudice the right to information, nor establish less favorable acquisition conditions than those stipulated before its entry into force.

The transposition of Directive 2014/50/EU by this Royal Decree-Law is motivated by the expiration of the transposition deadline, as, according to Article 8 of the Directive, Member States shall adopt the necessary legal, regulatory, and administrative provisions to comply with its provisions by 21 May 2018 at the latest, or ensure that, by that date, social partners have introduced the necessary provisions by agreement. Considering that the regulatory alternative is more effective to fulfill the duty of transposition and offers greater legal certainty, it is deemed appropriate to issue a norm with the rank of law, given that, as a consequence of the transposition, rights are created for workers and obligations for companies, as well as for insurance entities in collective insurance that instrument the pension commitments referred to retirement.

Directive 2014/50/EU provides for the recognition of pension rights acquired in favor of workers who terminate their employment relationship before retirement from 21 May 2018, the deadline for transposition. The lack of legal recognition of that right by 21 May 2018 generates a situation of uncertainty and legal insecurity that seriously compromises workers' rights, their employment opportunities, and their fundamental freedom of free movement recognized in the Treaty on the Functioning of the European Union, and distorts the integration of the Spanish labor market into the Internal Market and, ultimately, the efficiency of the labor market. The expiration of the transposition deadline for this Directive has motivated the European Commission to initiate a formal infringement procedure no. 2018/0162.

Consequently, reasons exist that justify the extraordinary and urgent necessity required by Article 86.1 of the Constitution to transpose the Directive without further delay through this Royal Decree-Law.

III

Title II, which comprises Article 2, contains the modifications derived from the transposition of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (hereinafter Directive (EU) 2015/849 of 20 May).

The anti-money laundering and terrorist financing prevention regime in force in Spain was subject to profound modification with the approval of Law 10/2010 of 28 April on the prevention of money laundering and terrorist financing. This norm, partially modified by Law 19/2013 of 9 December on transparency, access to public information, and good governance, was subsequently completed with the publication of Royal Decree 304/2014 of 5 May, approving the Development Regulation of Law 10/2010 of 28 April on the prevention of money laundering and terrorist financing.

This regulatory framework allowed, first, to incorporate into Spanish Law the Recommendations of the Financial Action Task Force (FATF) of February 2012. Furthermore, these two reforms represented the anticipatory implementation of much of the content of Directive (EU) 2015/849 of 20 May 2015. This is because EU law is directly inspired by FATF Recommendations when establishing harmonized regulation on this matter.

However, although most obligations of Directive (EU) 2015/849 of 20 May originate from FATF standards, the European norm goes further in some aspects. It establishes additional obligations, such as the license or registration requirement for corporate service providers – opting for registration due to its greater economy and ease – or harmonizing aspects not detailed in FATF Recommendations, such as the maximum possible amount of sanctions to be imposed in case of non-compliance with prevention obligations.

Among the modifications derived from the transposition of the pending elements of Directive (EU) 2015/849 of 20 May, the issues concerning the sanctioning regime in a broad sense stand out especially. Thus, the maximum amounts of sanctions are increased, in line with what is provided by the Directive, although the minimum amounts are maintained, as there is no harmonization on this point and it is considered appropriate to maintain that minimum amount to guarantee the correct application of the norm.

Regarding the publicity of sanctions, although Spanish law already contemplated the option of publicity in the case of serious and very serious offenses, the additional element of anonymous publicity of imposed sanctions is incorporated, in the case that publication is not agreed upon.

Another aspect of Directive (EU) 2015/849 oriented towards the improvement of supervision and sanctioning of infringements of prevention law is the establishment of reporting channels, both public and within the scope of the subjects obliged by the law. Obligated subjects must have specific channels for internal reporting of conduct contrary to the law or to the internal procedures of the entity approved to comply with it. In parallel, reporting channels to the Administration of potential non-compliance by obligated subjects with the requirements of administrative law on the prevention of money laundering and terrorist financing will be created.

Likewise, this norm revises the regime applicable to persons with public responsibilities. The system of the 2010 law, following the FATF approach, was based on the differentiation of these persons into two large groups.

First, foreign persons with public responsibilities were always subject to the application of enhanced due diligence measures provided by law due to their lack of connection with our country and difficulties in accessing information about them. On the other hand, national persons with public responsibilities were subject to an adapted approach on a case-by-case basis, depending on the specific person and their functions, and the product contracted, the application or not of these measures or the degree thereof.

With Directive (EU) 2015/849 of 20 May, this regime is unified, considering all persons with public responsibilities, both national and foreign, as deserving of the application of enhanced due diligence measures in any case.

Regarding the recourse to the Royal Decree-Law as a transposition instrument, it should be noted, first, that it is motivated by the expiration of the deadline for the transposition of Directive 2015/849/EU. According to its Article 67, Member States were to bring into force the necessary legal, regulatory, and administrative provisions to comply with its provisions by 26 June 2017 at the latest.

Secondly, regarding the specific situation to be regulated, it is necessary to guarantee the full validity of the Directive in order to safeguard the effectiveness of the fight against flows of illicit origin.

Money laundering and terrorist financing, in addition to the undeniable social risks they pose, also generate economic and financial risks. Particularly, money laundering can affect and distort financial and real movements, by allocating resources that are not based on economic or profit considerations, but respond to other interests. Along with this, this type of criminal activity implies very significant reputation risks, both for entities considered individually and for the national financial system as a whole. These are risks that must be mitigated with the greatest speed.

The norm is oriented towards perfecting the instruments and mechanisms that must be implemented by subjects obliged by the Law, in order to effectively prevent money laundering and terrorist financing. Both illicit activities are characterized by evolving and adapting to the different control and prevention mechanisms deployed, so the rapid adaptation of the norm to this changing scenario is a fundamental element of system effectiveness. But it is not enough, of course, to adopt adequate norms, but those norms must be fully complied with by those obliged to do so. To this end, it is necessary to arbitrate, with the greatest speed, changes oriented towards strengthening the mechanisms and systems guaranteeing compliance.

In this case, the European Commission initiated a formal infringement procedure no. 2017/0527 for failure to communicate the transposition measures of Directive 2015/849/EU (currently in the reasoned opinion phase).

Consequently, the circumstances of extraordinary and urgent necessity required by Article 86 of the Spanish Constitution as an enabling premise for resorting to this type of norm concur in the measure that it is adopted, by its nature, purpose, and the context in which it is issued.

IV

Title III comprises Articles 3 and 4. Article 3 contains the modification that incorporates into the domestic legal order Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange programmes or educational projects and au pair placements.

The conclusions of the European Council of June 2014 set as one of the political priorities of the European Union to try to "continue to be an attractive destination for people with talent and capacity." Subsequently, the European Migration Agenda, published on 13 May 2015, considered the approval of a norm in the terms of today's Directive (EU) 2016/801 as one of the fundamental instruments for the construction of an Europe attractive to students, researchers, and generally to attract foreign talent and entrepreneurship.

With these antecedents, and in accordance with the new conception of the European Union's migration policy, in which legal migration, and especially qualified migration, are understood as co-factors of growth and job creation, the Directive aims to improve the position of the European Union in the global competition to attract talent and promote it as a global center of excellence for study and training, by removing migration barriers and providing better opportunities for mobility and employment.

To this end, it establishes harmonized conditions for entry and residence in the European Union of third-country nationals for the purposes of research, studies, training, or voluntary service in the European Voluntary Service, of mandatory transposition; and others for volunteers outside the European Voluntary Service, students, and au pairs, of an optional nature for Member States.

It should be noted that a large part of the provisions of the Directive are already included in our legal order: either in the international mobility section of Law 14/2013 of 27 September on support for entrepreneurs and their internationalization; or in Organic Law 4/2000 of 11 January on the rights and freedoms of foreigners in Spain and their social integration, and its Regulation, approved by Royal Decree 557/2011 of 20 April.

Specifically, the alignment of objectives between Directive (EU) 2016/801 and the international mobility section of Law 14/2013 determines that the incorporation of the mandatory aspects of the Community norm not yet present in the Spanish legal order and whose regulation requires a law-level norm shall be transposed through the modification of this law. Specifically:

Article 72 is modified to provide for a residence authorization for researchers included in the subjective scope of the Directive, who will have the right to mobility within the European Union provided for in the Community norm; maintaining for other researchers, under the authorization given by Recital 29 of the Directive, the existing authorization in our legal order, which will not grant access to said mobility.

Furthermore, the researcher is enabled, once the research activity has ended, to remain in our country for a limited time to seek employment or to start a business project, in line with Article 25 of the Dir