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2009-12-18

Circular 1/2009 of the Bank of Spain on Information Regarding Capital Structure, Participatory Quotas, Branches, and Senior Management of Supervised Entities

The Bank of Spain issued Circular 1/2009 to update regulatory requirements for credit institutions and other supervised entities regarding the reporting of capital structure, participatory quotas, branch networks, and senior management positions. This circular harmonizes data declarations into a single framework, incorporates recent legal modifications, and establishes specific electronic signature protocols for financial statements. It explicitly repeals numerous previous regulations concerning high-level positions and capital information to streamline supervisory oversight and data management.

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Circular 1/2009, of December 18, of the Bank of Spain, to credit institutions and other supervised entities, regarding information on the capital structure and participatory quotas of credit institutions, and on their offices, as well as on the senior management of supervised entities (BOE of December 31)

This Circular aims to update the Bank of Spain's regulations regarding the information that credit institutions must communicate to it about their shareholders or partners, and about their operational offices (regulated, respectively, in Circular 6/1995, of October 31, on Information on the capital structure of credit institutions, and in Circular 8/1990, of September 7, on Transparency of operations and consumer protection), with the objective of incorporating modifications in the regulation affecting them, as well as harmonizing the data to be declared to facilitate their processing and computerized management.

Likewise, this Circular regulates for the first time the information that savings banks issuing participatory quotas must communicate, in accordance with Article 11 of Royal Decree 302/2004, of February 20, on participatory quotas of savings banks.

Similarly, it aims to simultaneously harmonize in a single regulation and a single form the communications that the different types of supervised entities, for supervisory reasons or by imposition of the respective senior management registers created by the legislation, must send to the Bank of Spain regarding their administration and management positions, consequently repealing Circular 13/1988, of October 27, on senior management of credit institutions.

The powers of the Bank of Spain in this area are consequently conferred by two types of sources:

First, the various sectoral state norms listed below for each class or type of entity, which impose the creation and management by the Bank of Spain of official registers of senior management:

Banks and branches of foreign credit institutions: Decree 702/1969, of April 26, developing Law 31/1968, of July 27, on the regime of incompatibilities and limitations of senior management in banking and determination of limits in credit granting, itself developed by the Order of May 22, 1969, of the Ministry of Finance.

Parent companies of banks: Royal Decree 1245/1995, of July 14, on the creation of banks, cross-border activity and other matters relating to the legal regime of credit institutions (art. 2.6).

Credit cooperatives: Law 13/1989, of May 26, on credit cooperatives (art. 9.9) and its implementing regulation (art. 28), approved by Royal Decree 84/1993, of January 22.

Credit financial institutions and their non-financial parent companies: Royal Decree 692/1996, of April 26 (art. 5.3).

Electronic money institutions and their parent companies: Royal Decree 322/2008, of February 29 (art. 6, paragraphs 5 and 6, respectively).

Mutual guarantee societies: Law 1/1994, of March 11 (art. 14).

Surety societies: Royal Decree 1644/1997, of October 31 (art. 6).

Valuation societies: Royal Decree 775/1997, of May 30 (art. 14).

And secondly, with regard to supervisory reasons, Law 26/1988, of July 29, on the Discipline and Intervention of Credit Institutions, as well as other sectoral state norms, which grant the Bank of Spain powers of control, supervision, and sanctioning over certain entities and their administration and management positions, for the exercise of which it is necessary for the Bank to possess certain information concerning these. In particular, regarding senior executives, and for the purpose of having complete information on those entities that, due to their size or complexity, usually have, rather than a single general director, assimilated positions (or commissions or executive bodies responsible for the daily management of the entity) directly dependent on the board of directors, it has been considered necessary to extend the information obligations to these persons, with the clear understanding that this does not imply an intention to expand the incompatibilities established by law, which only affect those indicated by the norms, nor the scope of the corresponding senior management registers of the Autonomous Communities when they have them.

Finally, various clarifications are made regarding the regulation on electronic signature contained in Circular 4/2004, of December 22, on Financial Public and Reserved Information Standards and Financial Statement Models, and in Circular 3/2008, of May 22, on the determination and control of minimum own resources.

Consequently, in exercise of the powers granted, the Governing Council of the Bank of Spain, upon proposal of the Executive Commission, has approved this Circular, which shall be governed by the following rules:

CHAPTER I

Credit Institutions: Capital Structure and Participatory Quotas [ 1 ]

[1]

Repealed by Circular 1/2024, of January 26, of the Bank of Spain, to banks, credit cooperatives and other supervised entities, regarding information on capital structure and amending Circular 1/2009, of December 18, to credit institutions and other supervised entities, regarding information on capital structure and participatory quotas of credit institutions, and on their offices. (BOE of February 1, 2024), single repealing provision.

First Rule.

Information on capital structure [ 2 ]

[2]

Second Rule.

Information on the structure of participatory quotas [ 3 ]

[3]

CHAPTER II

Offices of Credit Institutions

Third Rule.

Information on offices of credit institutions

Credit institutions shall communicate to the Bank of Spain, as soon as they occur and at the latest within fifteen calendar days, the opening of offices in Spain, as well as the transfer, assignment, closure, or any variation on the previously provided data of any of them. These communications shall be made using the model included in Annex IV.
Credit institutions, excluding branches in Spain of foreign credit institutions, shall communicate to the Bank of Spain, as soon as they occur and at the latest within fifteen calendar days:

a) The opening of operational offices in countries where the opening of a branch has been authorized in accordance with Chapter II of Title I [ 4 ] of Royal Decree 1245/1995, of July 14, on the Creation of Banks, Cross-Border Activity and Other Matters Relating to the Legal Regime of Credit Institutions, as well as the closure or any variation on the previously provided data of any of them. All this without prejudice to compliance with what is established in point 4 of Article 13 of said Royal Decree.

b) The opening of representation offices referred to in Article 14 of Royal Decree 1245/1995, of July 14, on the Creation of Banks, Cross-Border Activity and Other Matters Relating to the Legal Regime of Credit Institutions, as well as the closure or any variation on the previously provided data of any of them.

These communications shall be made using the model included in Annex IV.

[4]

Although the Rule refers to Chapter II of Title I, the reference should be understood as being to Title II of the Royal Decree.

CHAPTER III

Senior Management of Credit Institutions, Their Parent Companies, and Other Supervised Entities by the Bank of Spain [ 5 ]

[5]

Fourth Rule.

Information on senior management [ 6 ]

[6]

Fifth Rule.

Annual list of senior management [ 7 ]

[7]

CHAPTER IV

Other Rules

Sixth Rule.

Submission of information to the Bank of Spain [ 8 ]

The submission to the Bank of Spain of the information referred to in the third rule of this circular must be made by electronic transmission, in accordance with the technical specifications communicated for this purpose. Exceptionally, and only for duly justified causes, the Financial Information and CIR Department may authorize the submission of information on paper.
The Bank of Spain may develop technical applications to facilitate the preparation of the information to be sent to it.

[8]

Drafted according to Circular 1/2024, of January 26, of the Bank of Spain, to banks, credit cooperatives and other supervised entities, regarding information on capital structure and amending Circular 1/2009, of December 18, to credit institutions and other supervised entities, regarding information on capital structure and participatory quotas of credit institutions, and on their offices. (BOE of February 1, 2024), final provision first.

First Transitional Provision.

Credit institutions shall electronically transmit to the Bank of Spain before July 16, 2010:

a) For all their offices open as of June 30, 2010, the data listed for new entries in Annex IV.

b) For capital participations that meet the criteria of letter a) of the first rule of this Circular as of June 30, 2010, the data listed in Annex I,

The information on capital structure referred to in letter c) of the first rule of this Circular corresponding to March 31, 2010, shall be submitted with the format, deadline, and submission method prior to the modification introduced by this Circular.

Second Transitional Provision.

Before June 30, 2010, all entities cited in paragraphs 1 and 2 of the Fourth Rule shall request from interested parties, and inform the Bank of Spain about them, by processing the form incorporated in Annex V, the positions that their management positions, indicated in paragraph 5 of said Rule, hold in foreign companies and in those Spanish companies that do not have the status of anonymous companies, indicating those that involve executive functions.

With the aim of contributing to the accuracy of such declaration and, in general, to that of the corresponding Register or database, the Bank of Spain shall transmit, during the month following the entry into force of this Circular, the data it holds regarding the senior management of the aforementioned entities.

First Additional Provision.

Paragraph 6 of the First Additional Provision. Submission of statements and other information to the Bank of Spain, of Circular 4/2004, of December 22, to credit institutions, on Financial Public and Reserved Information Standards and Financial Statement Models, is modified, which shall be drafted as follows [ 9 ] :

«The submission of statements to the Bank of Spain must be made by electronic transmission, in accordance with the technical specifications communicated for this purpose.

Regardless of the responsibility of the entity and its board of members, or equivalent body, with respect to all statements sent to the Bank of Spain, the statements corresponding to other individual quarterly public information, the reserved consolidated sectoral information statements, and the total statements of changes in equity and cash flows, individual and consolidated, must be electronically signed by the president, chief executive officer, general director, or assimilated position within the meaning of number 4 of Article 1 of Law 26/1988, of July 29, on the Discipline and Intervention of Credit Institutions, or by any other executive with functions limited to an area of activity among whose responsibilities is the preparation of the entity's financial information, who depends directly on the administration body, or executive commissions or chief executive officers of that body, at least for the purposes of preparing the financial information, provided that, in the latter case of an executive with limited functions, the Board of Directors, or equivalent body, has expressly designated them as responsible for such purposes.

In the case of branches of foreign credit institutions, the statements must be electronically signed by any of the executives who are directly responsible for the management of the branch in Spain, or by any other person whose data is recorded in the Senior Management Register of the Bank of Spain, provided that they have been expressly designated for this purpose by those responsible.

Entities may designate more than one person so that, interchangeably, they can electronically sign the aforementioned financial information.

The executives with limited functions referred to in the second paragraph must prove, in addition to their designation to electronically sign the statements, the extent of their powers and their direct dependence on the bodies mentioned in that paragraph. The data of these executives shall be communicated to the Bank of Spain through the procedure established for the remaining executive positions, which will record them with the remaining senior executives of the entity for merely informative and control purposes of the sender of the statements.

The statements referred to in this provision must be sent, in any case, within the maximum deadline established for this purpose in the respective regulations. However, without prejudice to that obligation of submission, the electronic signature of the statements may be carried out within the ten calendar days following the expiration of the aforementioned maximum deadline.

The Bank of Spain may also individually request the confirmation in printed form, duly completed, of any of the statements sent via electronic transmission.

Exceptionally, and only for duly justified causes, the Financial Information and Risk Central Department may authorize the submission of all or some of the statements in forms prepared by the Bank of Spain, which will be delivered dated, stamped, and countersigned on all pages, and signed by a person with sufficient authority from the sending entity, except when it concerns the statements referred to in the second paragraph of this section, which must be signed by one of the persons indicated in said paragraph.»

Paragraph 13 of the First Additional Provision. Submission of statements and other information to the Bank of Spain, of Circular 4/2004, of December 22, to credit institutions, on Financial Public and Reserved Information Standards and Financial Statement Models, is modified, which shall be drafted as follows [ 9 ] :

«13. The submission of the information required in the preceding paragraphs 8 to 12 shall be made by electronic transmission in accordance with the technical specifications communicated for this purpose. The documents listed in paragraph 8 must be electronically signed by one of the persons authorized to electronically sign the statements listed in the second paragraph of paragraph 6.

Regardless of the electronic signature obligation referred to in the previous paragraph, the entity shall be responsible, in any case, for the documents sent electronically being a faithful copy of the originals, which must be available to the Bank of Spain at all times.»

[9]

Text incorporated into Circular 4/2004, of December 22.

Second Additional Provision.

Paragraph 7 of the one hundred twenty-first rule of Circular 3/2008, of May 22, to credit institutions, on the determination and control of minimum own resources, is modified, which shall be drafted as follows [ 10 ] :

«7. The submission of statements to the Bank of Spain must be made by electronic transmission, in accordance with the technical specifications communicated for this purpose.

Regardless of the responsibility of the entity and its Board of Directors, or equivalent body, with respect to all statements sent to the Bank of Spain, the RP10 statement must be electronically signed by the president, chief executive officer, general director, or assimilated position within the meaning of number 4 of Article 1 of Law 26/1988, of July 29, on the Discipline and Intervention of Credit Institutions, or by any other executive with functions limited to an area of activity among whose responsibilities is the preparation of the entity's financial information, who depends directly on the administration body, executive commissions, or chief executive officers of that body, at least for the purposes of preparing the financial information, provided that, in the latter case of an executive with limited functions, the Board of Directors, or equivalent body, has expressly designated them as responsible for such purposes.

In the case of branches of foreign credit institutions, the RP10 statement must be electronically signed by any of the executives who are directly responsible for the management of the branch in Spain, or by any other person whose data is recorded in the Senior Management Register of the Bank of Spain, provided that they have been expressly designated for this purpose by those responsible.

Entities may designate more than one person so that, interchangeably, they can electronically sign the aforementioned information.

The executives with limited functions referred to in the second paragraph must prove, in addition to their designation to electronically sign the RP10 statement, the extent of their powers and their direct dependence on the bodies mentioned in that paragraph. The data of these executives shall be communicated to the Bank of Spain through the procedure established for the remaining executive positions, which will record them with those of the remaining senior executives of the entity for merely informative and control purposes of the sender of the RP10 statement.

The RP10 statement must be sent, in any case, within the maximum deadline established in the one hundred twenty-second rule. However, without prejudice to that obligation of submission, the electronic signature of the statements may be carried out within the ten calendar days following the expiration of the aforementioned maximum deadline.

The Bank of Spain may also individually request the confirmation in printed form, duly completed, of any of the statements sent via electronic transmission.

Exceptionally, and only for duly justified causes, the Financial Information and Risk Central Department may authorize the submission of all or some of the statements in forms prepared by the Bank of Spain, which will be delivered dated, stamped, and countersigned on all pages, and signed by a person with sufficient authority from the sending entity, except when it concerns the RP10 statement, which must be signed by one of the persons indicated in the second paragraph of this section.»

[10]

Text incorporated into Circular 3/2008, of May 22.

Repealing Provision.

This Circular expressly repeals the following regulations:

Circular of the Bank of Spain 39/1969, of May 26, to Private Banking, on the Official Register of Senior Management of Banking.

Circular of the Bank of Spain 41/1969, of July 1, to Private Banking, on the Official Register of Senior Management of Banking.

Circular of the Bank of Spain 50/1970, of December 10, to Private Banking, by which part of Circular no. 45 is left without effect and compliance with the OM of 22.5.1969 is normalized.

Title I of the Circular of the Bank of Spain 38/1978, of December 15, to Savings Banks, on the Register of Senior Management of Savings Banks and the regime of authorizations for operations in which they intervene or have their signature committed by the same or natural or legal persons linked to them.

Circular 12/1980, of January 3, to Cooperative Credit Entities on Special Register of Senior Management.

Letter-circular to Private Banking (CV 3/86), of February 24, on the Official Register of Senior Management.

Circular of the Bank of Spain 13/1988, of October 27, on Senior Management of Credit Institutions.

Circular of the Bank of Spain 11/1996, of November 29, to credit institutions, on the modification of Circular 13/1998, of October 27, on senior management of credit institutions.

Circular of the Bank of Spain 6/1995, of October 31, to credit institutions, on Information on the capital structure of credit institutions.

Rule twenty-nine of the Circular of the Bank of Spain 8/1990, of September 7, to credit institutions, on Transparency of operations and consumer protection.

Final Provision Single. Entry into force