Order ECC/2502/2012 regulating the procedure for submitting complaints to the complaint services of the Bank of Spain, the CNMV, and the DGSPFP

OFFICIAL STATE GAZETTE No. 281 Thursday, November 22, 2012 Sec. I. Page 81342

I. GENERAL PROVISIONS MINISTRY OF ECONOMY AND COMPETITIVENESS

14363 Order ECC/2502/2012, of November 16, regulating the procedure for submitting complaints to the complaint services of the Bank of Spain, the National Securities Market Commission, and the General Directorate of Insurance and Pension Funds.

Article 31 and the eleventh final provision of Law 2/2011, of March 4, on the Sustainable Economy, have modified the Spanish regime for handling complaints in the financial sector, with the express purpose of protecting the rights of clients in each of the three areas of financial activity: banking, securities, and insurance.

In accordance with the wording of Article 30 of Law 44/2002, of November 22, on Measures for the Reform of the Financial System, the complaint services of the Bank of Spain, the National Securities Market Commission, and the General Directorate of Insurance and Pension Funds have been conceived as the most appropriate bodies to exercise the function of attending to and resolving complaints, claims, and queries that financial clients may lodge. Their actions must adhere to the principles of independence, transparency, contradiction, efficiency, legality, freedom, and representation.

This regulation aims to improve the efficiency of the complaint services' functioning and, through them, to foster the effective application of financial service user protection regulations and best practices in the financial sector, while increasing the level of legal certainty in relations between entities and clients.

The Order regulates the fundamental aspects of the procedure for processing complaints, claims, and queries before the three complaint services, in compliance with the mandate provided for in Article 30.3 of Law 44/2002, of November 22, on Measures for the Reform of the Financial System.

Therefore, with the prior approval of the Minister of Finance and Public Administrations, and in agreement with the Council of State, I decree:

Article 1. Purpose. This ministerial order aims to establish the procedure applicable to the submission of queries, complaints, and claims before the complaint services of the Bank of Spain, the National Securities Market Commission, and the General Directorate of Insurance and Pension Funds, hereinafter referred to as complaint services, in accordance with Article 30.3 of Law 44/2002, of November 22, on Measures for the Reform of the Financial System.

Article 2. Definitions.

1. For the purposes of this Order, complaints shall be considered those submitted by users of financial services regarding delays, neglect, or any other type of deficient performance observed in the operation of the financial entities against which the complaint is filed.

2. Claims shall be considered those submitted by users of financial services that demonstrate, with the intention of obtaining restitution of their interest or right, specific facts regarding actions or omissions by the claimed financial entities that cause harm to the interests or rights of the person filing them, and which derive from alleged breaches by the claimed entities of transparency and client protection regulations or of best practices and financial usages.

3. Queries shall be considered requests for advice and information regarding matters of general interest concerning the rights of users of financial services in terms of transparency and client protection, or regarding the legal channels for exercising such rights.

4. Best practices shall be considered those that, although not imposed by contractual or supervisory regulations nor constituting a financial usage, are reasonably required for the responsible, diligent, and respectful management of financial business with clients.

5. Transparency and client protection regulations shall be considered those containing specific provisions regarding the supervised entities mentioned above, and which, with the aim of protecting the legitimate interests of clients, establish a set of specific obligations applicable to contractual relations between them, require the communication of basic conditions of operations, and regulate certain aspects of their advertising, conduct rules, and information.

Article 3. Standing to file complaints, claims, and queries by users of financial services.

1. All natural or legal persons, Spanish or foreign, who are duly identified, in their capacity as users of financial services provided by any of the entities supervised by the Bank of Spain, the National Securities Market Commission, and the General Directorate of Insurance and Pension Funds, may file complaints or claims and formulate queries, personally or through representation, provided they refer to their legally recognized interests and rights, or concern a query about their rights in terms of transparency and client protection and the existing legal channels for their exercise.

2. Persons or entities acting in defense of the particular interests of their clients, participants, or investors, policyholders, insured persons, beneficiaries, third parties harmed, or heirs of any of them, as well as participants and beneficiaries of pension plans, are entitled to file complaints or claims and formulate queries in their capacity as users of financial services.

3. Similarly, associations and organizations representing legitimate collective interests of users of financial services may file complaints or claims and formulate queries, provided such interests are affected and they are legally authorized for their defense and protection and meet the requirements established in Royal Legislative Decree 1/2007, of November 16, approving the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws, or, where applicable, in autonomous legislation on consumer defense.

4. Offices and services for information and customer service referred to in Royal Legislative Decree 1/2007, of November 16, approving the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws, are also entitled to formulate queries.

5. When complaints or claims involve the processing or communication of users' personal data, the express consent of said users shall be required.

Article 4. Competence of the complaint services.

1. Any claim or complaint may be filed indistinctly before any of the three complaint services, regardless of its content. In the event that the complaint service receiving the claim or complaint is not competent to process it, it shall be responsible for immediately forwarding it to the competent complaint service.

2. When a complaint, claim, or query corresponds, by reason of its content, to the competence of two or more complaint services, the file shall be processed by the complaint service corresponding to the legal nature of the claimed entity. In these cases, the complaint service responsible for processing the file shall request reports from the other complaint services on matters corresponding to their areas of competence, integrating such reports into the final report issued.

Likewise, the complaint services may reach agreements among themselves to articulate assistance that may be sought in the exercise of their competencies, with the aim of harmonizing and improving practices in the exercise of their functions.

Article 5. Submission of complaints or claims.

1. The submission of complaints or claims may be made by the following means: a) On paper support. b) By electronic means, through the electronic registers enabled for this purpose at the Bank of Spain, the National Securities Market Commission, and the General Directorate of Insurance and Pension Funds, under the terms provided in the applicable regulations.

2. The submission of complaints or claims may be made in accordance with the form developed for this purpose by the complaint services, which shall contain, at a minimum, the information established in Article 6.

Financial entities shall make this form available to users of financial services, either upon request or ex officio, at the time of processing the claim or complaint that they have raised before the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made.

3. All claims or complaints presented, regardless of the form and place of presentation, shall be formally recorded in the corresponding complaint service that receives them, independent of the services to which the claim or complaint refers.

4. The lodging of claims or complaints formulated under this Order shall not stay the resolution and processing of the corresponding procedures. However, the deadlines established for the exercise of actions or rights, in accordance with the regulating legislation, that may be exercised by those listed as interested parties, shall be suspended or interrupted.

Likewise, the use by users of financial services of the complaint services to address their complaints or claims is understood without prejudice to the use of other protection systems provided for in current legislation, especially in arbitration and consumer regulations.

Article 6. Content of the claim or complaint.

1. Claims or complaints must contain: a) Identifying data of the claimant, name and surname, or corporate name in the case of legal persons, address for notifications, and identification number of natural persons or entities, or, where applicable, data from the public registry of the entity in question. If filed through a representative, representation shall be accredited by any means admitted in law. b) Identification of the claimed entity, as well as the branch or office to which the claim or complaint refers, where applicable. c) The reason for the claim or complaint filed in relation to their legally recognized interests and rights, expressly stating that it is not pending resolution or litigation before administrative, arbitral, or judicial bodies. Under no circumstances may facts different from those alleged in the previous claim or complaint before the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made, be alleged, except for related facts that occurred subsequent to its processing. d) Proof that two months have elapsed since the date of submission of the claim or complaint before the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made, without it having been resolved, or that the admission was denied or the request dismissed, in whole or in part. e) Place, date, and signature.

2. Along with the claims or complaints, all documentation essential to resolve the issues raised by the claim or complaint must be attached, without prejudice to the complaint service obtaining from the claimed entity the documentation that should be in its possession regarding them.

3. Claims or complaints submitted by electronic means in the electronic registers referred to in Article 5 must meet the requirements established in current regulations regarding citizens' electronic access to public services.

Article 7. Previous claim or complaint before the customer service department or service, or, where applicable, the ombudsman or participant.

1. For the admission and processing of claims or complaints before the corresponding complaint service, it is essential to prove that they were previously filed with the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made.

2. If the admission of the claims or complaints is denied, or their request is dismissed in whole or in part, or if two months have elapsed since the date of their submission to the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made, without it having been resolved, the interested party may file their claim or complaint indistinctly before any of the complaint services, regardless of its content, under the terms established in the previous article.

3. Upon receiving the claims or complaints by the complaint service competent to know them by reason of the subject matter, it shall verify the concurrence of the circumstances provided for in the previous paragraphs, and if the necessary requirements are met, a file shall be opened for each claim or complaint, in which all actions related to this shall be included; otherwise, the claimant shall be required to complete the information within ten working days from the date the claimant receives the notification, specifying clearly what information is missing to complete the claim or complaint, with the warning that if it is not completed, they shall be considered to have withdrawn.

4. It shall not be necessary for the admission and processing of claims or complaints before the corresponding complaint service to prove that they were previously filed with the customer service department or service, or, where applicable, the ombudsman or participant, when they concern the delay or non-compliance with a decision of the customer service department or service, or, where applicable, the ombudsman or participant of the entity, in a sense favorable to the client, which had addressed the object of the complaint or claim.

Article 8. Accumulation of files.

1. The accumulation of files for joint processing may be agreed upon in the following cases: a) When they are claims or complaints filed by different persons, and refer to the same financial entity, that bear a substantial identity or an intimate connection in the facts or problems manifested. b) When they are claims or complaints filed by the same person regarding issues that bear a substantial identity or an intimate connection, and do not consist of a mere repetition.

2. The accumulation of files shall not affect the individual mention of the claims or complaints in the statistical summary that must contain the annual report referred to in Article 30.4 of Law 44/2002, of November 22, on Measures for the Reform of the Financial System.

Article 9. Collective claims and complaints.

1. A single joint claim or complaint may be filed by different claimants when they are affected by conduct that has identical or substantially similar content and basis, from the same entity.

2. The submission of collective claims or complaints shall be made through a single representative.

3. The collective claim or complaint must contain all the elements established in Article 6.

4. The complaint services must process collective claims or complaints as a single file and rule on them in a single resolution.

Article 10. Grounds and procedure for inadmissibility of claims or complaints.

1. Grounds for inadmissibility due to lack of competence by the complaint services for claims or complaints: a) When it is intended to process as claims or complaints regulated in this procedure resources or actions other than those whose knowledge is the competence of administrative, arbitral, or judicial bodies, or those that are pending litigation before these bodies. b) When the claim or complaint raises controversies over certain facts whose proof can only be carried out in a judicial channel. c) When controversies are raised over the economic quantification of damages and losses that the action, even sanctionable, of entities subject to supervision may have caused to users of financial services, or over any other economic valuation. d) When the claim or complaint is based on a controversy whose resolution necessarily requires the valuation of experts with specialized knowledge in a technical matter unrelated to transparency and client protection regulations or to best practices and financial usages.

2. Claims or complaints shall also not be admitted: a) When a lack of foundation or non-existence of a claim is observed due to the omission of essential data for processing, including cases where the reason for the claims or complaints is not specified, or it is not proven that two months have elapsed since the date of submission before the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made, without the claim or complaint having been resolved, or that the admission was denied or the request dismissed, in whole or in part, unless it concerns the delay or non-compliance with a decision of the customer service department or service, or, where applicable, the ombudsman or participant of the entity, in a sense favorable to the client, which had addressed the object of the complaint or claim. b) When the facts, reasons, and request specifying the issues object of the claims or complaints do not refer to specific operations or are different from those alleged before the customer service department or service, or, where applicable, the ombudsman or participant of the entity against which the claim is made. c) When queries regarding rights in terms of transparency and client protection, as well as regarding the existing legal channels for their exercise, are articulated as claims or complaints, without prejudice to their processing as such a query, of which the interested party shall be informed. d) When claims or complaints are filed that reiterate previous ones resolved and that have identical or substantially similar content and basis, regarding the same subject and based on the same object. e) When claims or complaints are filed before the complaint service of the General Directorate of Insurance and Pension Funds regarding large risk contracts, collective insurance, or pension plans that instrument commitments by companies with their workers or beneficiaries, that do not refer to the status of user of financial services of the insurance entities or pension fund management entities. f) When the deadline for the prescription of actions or rights, in accordance with what is provided in the contracts or in the regulating legislation that is applicable, may be exercised by the person filing or the person on whose behalf the claim or complaint is filed, and in any case when a period of 6 years has elapsed since the occurrence of the facts without the claim or complaint having been filed.

3. When claims or complaints are not admissible for processing, due to any of the causes indicated in this article, the interested party shall be made aware in a reasoned report, giving them a deadline of ten working days to present arguments, if applicable. When the interested party has responded and the grounds for inadmissibility remain, the final decision adopted shall be communicated.

4. When there is knowledge of the simultaneous processing of claims or complaints and an administrative, arbitral, or judicial procedure on the same subject matter, the processing of the former shall be abstained from, and the file shall be archived without further ado, after communication to the interested party.

Article 11. Processing of claims.

1. Once a file is opened for each of the claims or the accumulation of files is agreed upon, within ten working days, the interested party shall be informed that the processing is understood without prejudice to the actions they have to assert their rights and the deadlines and channels for their exercise, as well as that it shall not stay the resolution and processing of the corresponding procedures and that its termination in the final report of the complaint service does not have a binding nature nor the consideration of an appealable administrative act.

Within said deadline, a copy of the claims and the documents submitted shall also be sent to the entity against which the claim is directed, so that within fifteen working days they present to the complaint service the arguments and documentation they deem appropriate, without prejudice to the possibility of directly requesting from the claimed entities the information necessary for adequate knowledge of the claim submitted. The complaint services shall send a copy of the aforementioned arguments and documentation to the claimant. The transfer of this information may, however, be executed directly by the claimed entities, if so determined by the corresponding complaint services.

The claimant may respond to the entity's arguments within fifteen working days.

All requirements made to the entity must be fulfilled within fifteen working days, after which, without response, they shall be considered unfulfilled for the purposes of continuing the processing of the file.

2. The claimant and the claimed entity may access the actions incorporated into the file.

3. In the case where a controversy is raised in the claim between the arguments formulated by the claimant and the entity, it shall be for the latter to substantiate its arguments in accordance with the information available.