Resolution of July 28, 2011, of the Board of the National Securities Market Commission regarding evidentiary value of supervisory findings

OFFICIAL STATE GAZETTE No. 187 Friday, August 5, 2011 Sec. I. Page 89582

I. GENERAL PROVISIONS NATIONAL SECURITIES MARKET COMMISSION

13458 Resolution of July 28, 2011, of the Board of the National Securities Market Commission, in application of Article 85.7 of Law 24/1988, of July 28, on the Securities Market.

Law 2/2011, of March 4, on the Sustainable Economy, added a paragraph, number 7, to Article 85 of Law 24/1988, of July 28, on the Securities Market, which provides as follows:

“7. The facts established in the exercise of their supervision and inspection functions by the personnel of the National Securities Market Commission, duly authorized by the Board in accordance with the Internal Regulations, shall have evidentiary value without prejudice to the evidence that interested persons or entities may point to or provide in defense of their respective rights or interests.”

Given the particular institutional configuration of the CNMV and the functions attributed to this body, this provision introduces a rebuttable presumption of truth regarding the facts established by the duly authorized technical staff, which can be considered a special rule with respect to the general rule established in Article 137.3 of Law 30/1992, of November 26, on the Legal Regime of Public Administrations and Common Administrative Procedure, which provides that: “The facts established by officials recognized as having the status of authority, and formalized in a public document observing the pending legal requirements, shall have evidentiary value without prejudice to the evidence that the administrative parties themselves may point to or provide in defense of their respective rights or interests.”

Regarding the CNMV personnel to whom the aforementioned provision applies, it is a necessary requirement, first, that they be duly authorized to perform supervision and inspection functions by the CNMV Board, pursuant to its Internal Regulations approved by Resolution of July 10, 2003 of the Board (RRI).

This requirement is met in Article 31 of the RRI, which assigns the following functions to the Departments mentioned below:

.–To the Department of Supervision of Investment Services Companies and Credit and Savings Entities –paragraph 1, letter b–, dependent on the General Directorate of Entities, the exercise of the functions described in letters d) and g) of Article 30.2 of the RRI, that is: “d) Supervise and inspect investment services companies, their branches, and their agents or representatives; g) Supervise and inspect credit entities, their branches, and their agents or representatives in their activities related to securities markets.”

.–To the Department of Collective Investment Institutions and Venture Capital Entities –paragraph 1, letter c–, also dependent on the General Directorate of Entities, the exercise of the functions described in letters e) and f) of Article 30.2 of the RRI, that is: “e) Supervise and inspect Collective Investment Institutions, their management companies, agents or representatives, as well as their depositary entities; f) Supervise and inspect Venture Capital Entities, as well as their management companies.”

.–To the Primary Markets Department –paragraph 2, letter a–, dependent on the General Directorate of Markets, the functions described in letter j) of Article 30.3 of the RRI, that is: j) Supervise and inspect the activities carried out in the securities markets.”

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.–To the Secondary Markets Department –paragraph 2, letter b–, dependent on the General Directorate of Markets, the functions described in letters d), e), f) and j) of Article 30.3 of the RRI, that is: “d) Control communications regarding relevant information from securities issuers; e) Supervise the governing bodies, members of secondary securities markets, clearing and settlement services, and the Stock Exchange Society; f) Initiate, where legally appropriate, proceedings regarding the suspension of trading of securities in official markets, or the exclusion of trading of certain securities; j) Supervise and inspect the activities carried out in the securities markets.”

.–To the Financial and Accounting Reports Department –paragraph 2, letter c–, dependent on the General Directorate of Markets, the functions described in letters c), g), h), i) and j) of Article 30.3 of the RRI, that is: “c) Control and analyze communications regarding significant holdings in listed companies, as well as regarding treasury shares held by them; g) Control, verify and analyze the audit reports of the accounts of Securities Issuing Companies and Companies with securities admitted to trading, as well as process the corresponding registration proceedings in the Special Registers; h) Control, verify and analyze the periodic information that the aforementioned Companies must submit to the CNMV, as well as process the corresponding registration proceedings; i) Develop any other functions related to the audit of accounts and accounting of Companies with securities admitted to trading, which are attributed to the CNMV; j) Supervise and inspect the activities carried out in the securities markets.”

.–To the Market Surveillance Unit – established pursuant to the exercise by the Board of the power contained in Article 43 of the RRI to approve the organizational structure, and whose dependence on the General Directorate of Markets is stated in the CNMV organizational chart adopted by the Board, at the proposal of its President, in a session on June 13, 2007, and to which correspond the functions described in letter j) of Article 30.3 of the RRI, that is: “j) Supervise and inspect the activities carried out in the securities markets”, according to an instruction issued by the President under the authority of Article 12 of the RRI.

Additionally, the President, in exercise of the power attributed by Article 18 f) of the Securities Market Law and 12.1.k) of the RRI to perform the supreme headship of all Commission personnel, may assign technical personnel from other Directorates and Departments of the CNMV to the performance of supervision and inspection functions if the action requires it for reasons of specialization and efficiency.

For all the above reasons, it is resolved, in accordance with Articles 12, 30, 31 and 43 of the Internal Regulations and the CNMV organizational chart adopted by its Board on June 13, 2007, at the proposal of the President, to attribute evidentiary value, in accordance with paragraph 7 of Article 85 of the LMV, to the facts established in the exercise of their supervision and inspection functions by the technical personnel of the CNMV assigned to the following departments and units:

.–Department of Supervision of Investment Services Companies and Credit and Savings Entities.

.–Department of Collective Investment Institutions and Venture Capital Entities.

.–Primary Markets Department.

.–Secondary Markets Department.

.–Financial and Accounting Reports Department.

.–Market Surveillance Unit.

.–Any other member of the CNMV technical staff attached to other CNMV departments who is designated for this purpose by the President when, due to their professional specialty and the supervision and inspection tasks to be performed at each moment, it is deemed necessary for reasons of efficiency in carrying them out.

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This Resolution shall enter into force the day following its publication in the “Official State Gazette”.

Madrid, July 28, 2011.–The President of the National Securities Market Commission, Julio Segura Sánchez.

cve: BOE-A-2011-13458 http://www.boe.es OFFICIAL STATE GAZETTE D. L.: M-1/1958 - ISSN: 0212-033X