Royal Decree 164/2019 establishing a free basic payment account regime for vulnerable persons or those at risk of financial exclusion

OFFICIAL STATE GAZETTE No. 80 Wednesday, April 3, 2019 Sec. I. Page 34468 I. GENERAL PROVISIONS MINISTRY OF ECONOMY AND ENTERPRISE 4906 Royal Decree 164/2019, of March 22, establishing a free basic payment account regime for the benefit of persons in a situation of vulnerability or at risk of financial exclusion.

The Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, the transfer of payment accounts and access to basic payment accounts, establishes the general right of access to a basic payment account for every person and establishes that Member States may require credit institutions to apply more advantageous conditions for vulnerable consumers, as measures to promote social inclusion within the Union's financial products market. That Directive delimits the set of services included in the basic payment account, leaving it to the discretion of Member States to determine the specific fees associated with it.

The transposition of this Directive into the Spanish legal system began with Royal Decree-Law 19/2017, of November 24, on basic payment accounts, transfer of payment accounts and comparability of fees. In that royal decree-law, the system is articulated in two levels of fees: a first general level where clients must pay a maximum monthly fee that remunerates the entity for the costs it must bear, and a second level with more advantageous conditions for that group in a situation of vulnerability or financial exclusion, which is articulated through this royal decree, opting for free access.

Regarding the first general level of maximum fees for basic payment accounts, Order ECE/228/2019, of February 28, sets it at 3 euros monthly, which includes the most common operations: opening, use and closing of the account, deposit of cash funds in euros, withdrawals of cash in euros at the entity's offices or ATMs located in Spain or in other Member States of the European Union, payment operations using a debit or prepaid card, including online payments in the European Union and up to 120 annual payment operations in euros within the European Union consisting of direct debits or transfers. Furthermore, the order establishes that fees for operations exceeding the aforementioned 120 cannot be higher in annual calculation than the average fees or expenses applied by the entity for each type of operation. Finally, said order clarifies that the entity may pass on to the client the fees incurred for cash withdrawals at another entity's ATMs, in accordance with the additional provision second of Royal Decree-Law 19/2018, of November 23, on payment services and other urgent measures in financial matters.

Since Royal Decree-Law 19/2017, of November 24, entered into force, financial entities must offer basic payment accounts. However, a specific access regime for this type of account for the most vulnerable consumers has not been defined; for this reason, they are excluded from access to financial services considered essential to participate in economic activity. Article 9.4 of said royal decree-law establishes that by regulation, different regimes of more advantageous conditions regarding fees may be established based on the special situation of vulnerability or risk of financial exclusion of potential clients. This royal decree complies with said provision and establishes the requirements for the most vulnerable population group to access these accounts free of charge for the receipt of services specifically indicated in Article 4.2 of Order ECE/228/2019, of February 28, and to which we refer in the previous paragraph. For other services, the limitations established in said order continue to apply.

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OFFICIAL STATE GAZETTE No. 80 Wednesday, April 3, 2019 Sec. I. Page 34469 When determining the group of people who benefit from free access, it should be highlighted that the prior conditions are, on the one hand, compliance with the conditions established in Article 3 of Royal Decree-Law 19/2017, of November 24, and, on the other, that none of the causes for denial in Article 4 of the same norm exist, one of which being being the holder of a payment account that allows performing the services contemplated in Article 8.1 of the royal decree-law and developed in Article 4.2 of Order ECE/228/2019, of February 28.

Once these requirements are met, to determine the specific beneficiary group of free access within the group of beneficiaries of basic payment accounts, two wealth indicators have been chosen. First, the public indicator of multiple-effect income (IPREM) referred to the family unit is used, such that an income level below the threshold determines the free access of the basic payment account for adult members or legally emancipated minor members of the family unit. The choice of the family unit as a reference for computing income is fundamental to ensure that free access is applied coherently with the principle of ability to pay, without prejudice to the fact that the request for free access to the basic payment account is a right that must be exercised individually.

Secondly, assets other than the main residence or real rights over it are also taken into account, so that it will not be considered that there is a situation of special vulnerability when any of the members of the family unit is the holder of commercial companies, real estate, or real rights over them.

Both the income scale to be considered and the concept of family unit and the use of assets except the main residence to determine the group in a situation of vulnerability or risk of financial exclusion are based on Law 1/1996, of January 10, on free legal assistance.

Another issue addressed in this royal decree is the way to prove the income level and the composition of the family unit, aspects in which it is key to simplify their practical application, placing the verification of the information necessary to complete the information with the entity, when telematic access is technically feasible.

This royal decree consists of seven articles, three additional provisions, one transitional provision, one repealing provision, and two final provisions. The articles address its object, scope of application, the concept of free access to the basic payment account, the delimitation of the special situation of vulnerability or risk of financial exclusion, its proof, information to the client about access to free access, the duration of the free access conditions, and the obligations to preserve documentation to prove some of these aspects.

As for the additional provisions, the first grants this royal decree the character of an ordering and disciplinary norm. The second establishes the submission of the norms of this royal decree to the system of extrajudicial resolution of conflicts in the financial field. The third arises from the need to assess the effectiveness of the basic payment account regime and its free access to guarantee financial inclusion of the most vulnerable groups and to make, if necessary, the appropriate adjustments. For this purpose, the Ministry of Economy and Competitiveness is mandated to prepare a report that evaluates access to basic payment accounts and the definition of special situation of vulnerability or risk of financial exclusion, in order to, if necessary, elaborate normative proposals for improvement of the applicable regulatory framework.

The transitional provision, for its part, establishes the sources of verification of the real ownership of companies until the creation of the Unique Register of Real Owners by the Ministry of Justice.

Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, requires that norms respond to the principles of necessity, effectiveness, proportionality, legal certainty, transparency, and efficiency. As for the principle of necessity, this royal decree constitutes the instrument required to determine what is to be understood as a situation of vulnerability or risk of financial exclusion and to benefit from the free access of the basic payment account.

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OFFICIAL STATE GAZETTE No. 80 Wednesday, April 3, 2019 Sec. I. Page 34470 The efficiency of the introduced regulation is ensured insofar as this royal decree does not impose additional administrative burden in the definition of the group of vulnerable persons beyond what is reasonable by complying with the provision being developed. In this sense, it should be highlighted the possibility given to the entity to obtain by telematic means the information necessary to accept or deny a request for free access to a basic payment account.

Regarding the principle of proportionality, it should be noted that this norm maintains a balance between the establishment of free access and its scope, limited to the group formed by persons for whom such benefit is truly essential. Completely dispensing with the instrument of free access would have been harmful and inefficient in achieving the objective of financial inclusion; likewise, extending free access beyond the group that really needs it, the vulnerable group, would have constituted an unnecessary and disproportionate interference in terms of impact regarding the achievement of the pursued objective.

Likewise, the norm ensures the principle of legal certainty by designing an application framework with clear rules in the precise determination of cases of vulnerability or risk of financial exclusion, within the framework provided by Royal Decree-Law 19/2017, of November 24, as the enabling norm.

In the processing of this royal decree, the autonomous communities and the Spanish Federation of Municipalities and Provinces were heard. It has also been informed by the Spanish Data Protection Agency and the Council of Consumers and Users.

Therefore, on the proposal of the Minister of Economy and Enterprise, in agreement with the Council of State, and after deliberation by the Council of Ministers in its meeting of March 22, 2019,

I HEREBY ORDER:

Article 1. Object and scope of application. This royal decree aims to establish a regime of conditions for basic payment accounts established by Royal Decree-Law 19/2017, of November 24, more advantageous in terms of fees based on the special situation of vulnerability or risk of financial exclusion of the holders of said accounts, consisting in the free access to the services indicated in Article 4.2 of Order ECE/228/2019, of February 28, on basic payment accounts, procedure for transfer of payment accounts and requirements of comparison websites.

Article 2. Free access to the basic payment account.

1. The credit institution may not demand the fee established in Article 4.2 of Order ECE/228/2019, of February 28, for the provision of the services indicated in said paragraph and with the limits provided in said Article 4, when all holders and authorized persons of a basic payment account are in the special situation of vulnerability or risk of financial exclusion indicated in Article 3 and this has been recognized in accordance with what is provided in this royal decree.
2. The client may request the credit institution to recognize the right referred to in the previous paragraph once they are in the situation of vulnerability or risk of financial exclusion. The effects of said recognition will take place from the date of the client's request to the credit institution.

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OFFICIAL STATE GAZETTE No. 80 Wednesday, April 3, 2019 Sec. I. Page 34471

Article 3. Special situation of vulnerability or risk of financial exclusion.

1. A client will be understood to be in a special situation of vulnerability or at risk of financial exclusion when: a) The gross economic income, computed annually and per family unit, does not exceed the following thresholds:
2. Two times the public indicator of multiple-effect income of twelve installments, in force at the time of making the request, when it concerns persons not integrated into any family unit.
3. Two and a half times said indicator when it concerns persons integrated into any of the modalities of family unit with fewer than four members.
4. Three times said indicator when it concerns family units integrated by four or more members or that have recognized their status as large families according to current regulations.
5. Three times said indicator when it concerns family units that have a person with a disability degree equal to or greater than 33 percent officially recognized by a resolution issued by the Institute for the Elderly and Social Services or by the competent body of the autonomous communities. b) There is no direct or indirect ownership, or real right over real estate, excluding the main residence, nor real ownership of commercial companies, by any of the members who make up the family unit.
6. For the determination of the concept of family unit in its various modalities, the provisions of Article 82 of Law 35/2006, of November 28, on Personal Income Tax and partial modification of the laws on Corporate Tax, on Non-Resident Income Tax and on Wealth Tax, shall apply; however, for the purposes of this royal decree, de facto couples constituted in accordance with the requirements applicable to them shall have the same consideration as spouses not legally separated.

Article 4. Proof of vulnerability or risk of financial exclusion.

1. The concurrence of the circumstances specified in Article 3 in all holders and authorized persons in the account shall be proven by the client providing the corresponding credit institution with the following information from all persons forming the family unit referred to in Article 3.2: a) Number of people composing the family unit, for which proof of the family book or document accrediting registration as a de facto couple shall be provided. b) Receipt of income by members of the family unit, for which each of its members shall provide one of the following documents:
2. Certificate of income and, if applicable, certificate regarding the presentation of the Wealth Tax, issued by the State Tax Administration Agency or the competent body of the Autonomous Community, relating to the last tax year.
3. Last three pay slips received.
4. Certificate issued by the entity managing unemployment benefits or subsidies, stating the monthly amount received for said concepts.
5. Certificate accrediting social salaries, minimum insertion incomes or analogous social assistance aids granted by the autonomous communities and local entities.
6. In the case of self-employed workers, the certificate issued by the managing body stating the monthly amount received if they were receiving the cessation of activity benefit.

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OFFICIAL STATE GAZETTE No. 80 Wednesday, April 3, 2019 Sec. I. Page 34472 2. When the documentation referred to in paragraph 1 is not available, the client must provide a report indicating the composition of the family unit or motivating the suitability for access to free access to a basic payment account, as appropriate. This report shall be issued by the social services of the municipality where the client is registered. 3. The credit institution may request the client's authorization to obtain by telematic means: a) The information indicated in the previous paragraph from the competent Administration, provided that this telematic information retrieval service is available from said Administration. b) The absence of direct or indirect ownership of real rights over real estate, excluding the main residence, and of real ownership of commercial companies through:

1. Negative simple note of location stating that they are not the holder of real rights obtained through the Localizer File of Registered Owners (Floti).
2. Negative certification of the real ownership of commercial companies obtained through the Unique Register of Real Owners of the Ministry of Justice. The cost of obtaining the information referred to in this paragraph may not be passed on in any form to the client by the credit institution.
3. The recognition or denial of the free access condition shall be communicated to the client, in writing and free of charge, within a maximum period of thirty days from the date of the client's complete submission of the information indicated in paragraph 1. The credit institution will be understood to recognize free access once that period has passed without sending communication to the client. The written notice shall include information about the client's right to file a complaint against the denial, in accordance with what is provided in the additional provision second.

Article 5. Information to the client on the conditions for recognition of free access. The credit institution shall include information regarding the conditions to obtain recognition of free access to the basic payment account for persons in a situation of vulnerability or risk of financial exclusion as collected in Articles 3 and 4, within the information provided in Article 10 of Royal Decree-Law 19/2017, of November 24, and in Article 8 of Order ECE/228/2019, of February 28, on basic payment accounts, procedure for transfer of payment accounts and requirements of comparison websites, and shall inform clients about said conditions at the time of contracting the basic payment account.

Article 6. Duration of the free access condition.

1. The free access to the basic payment account shall be maintained for a period of two years from the date of the effects of its recognition, unless the entity can prove that the client has ceased to be within the group of vulnerability or risk of financial exclusion. Two months before the end of this period, the credit institution may obtain telematically, in accordance with Article 4.3 or, when not possible, request the client to update the information indicated in Article 4, which must be provided to the entity within one month from the receipt of the request.
2. Once the maintenance of the special situation of vulnerability or risk of financial exclusion provided for in Article 3 is proven within the period indicated in the previous paragraph, free access shall be extended for successive periods of two years.
3. After the period indicated in paragraph 1 has passed without the information indicated in Article 4 being obtained or the lack of concurrence of any of the circumstances indicated in Article 3 being confirmed, the client will lose the right to free access to the basic payment account.

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OFFICIAL STATE GAZETTE No. 80 Wednesday, April 3, 2019 Sec. I. Page 34473 4. The credit institution shall inform the client, at least fifteen days in advance of the end of the two-year period referred to in paragraph 1, of the extension of the free access to the basic payment account or of the loss of such right in accordance with what is provided in paragraph 3.

Article 7. Documentary preservation.

1. In order to verify compliance, credit institutions shall preserve, in accordance with what is established in Article 30 of the Code of Commerce, for a minimum period of 6 years, the documentation indicated in Articles 4, 5 and 6, regardless of whether the free access condition of the account has been recognized or not.
2. The computation of the period indicated in the previous paragraph shall begin from when the free access condition was denied or from the moment of the end of the free access condition of the account if it was accepted.

Additional Provision First. Ordering and disciplinary norms. The provisions contained in this royal decree shall have the character of ordering and disciplinary norms.

Additional Provision Second. Submission to the dispute resolution system in the financial field.

1. Complaints and claims presented by clients that are related to their legally recognized interests and rights, and that derive from alleged breaches by credit institutions of the provisions of this royal decree, shall be resolved in accordance with what is provided in the additional provision first of Law 7/2017, of November 2, which incorporates into the Spanish legal system Directive 2013/11/EU of the European Parliament and of the Council of May 21, 2013, on alternative dispute resolution in consumer matters.
2. The rest of the entities accredited in accordance with what is provided in Law 7/2017, of November 2, which cover consumer claims from all economic sectors, may also know of this type of disputes, provided that both parties have voluntarily submitted to their jurisdiction.

Additional Provision Third. Evaluation report. Within 12 months from the entry into force of this royal decree, the Ministry of Economy and Enterprise shall carry out a report evaluating access to basic payment accounts and the definition of special situation of vulnerability or risk of financial exclusion, in order to, if necessary, elaborate proposals for improvement of the applicable regulatory framework.

Sole Transitional Provision. Transitional regime for obtaining negative certification of ownership of commercial companies. Until the Unique Register of Real Owners of the Ministry of Justice is created, the authorization to obtain the information referred to in Article 4.3 b) 2. may refer to the Register of Real Owners of the Official College of Property, Commercial,