Circular 2/2025 of the National Securities Market Commission amending Circulars 1/2021, 1/2010, and 5/2009

Circular 2/2025, of March 26, of the National Securities Market Commission, amending Circulars 1/2021, of March 25, 1/2010, of July 28, and 5/2009, of November 25, of the National Securities Market Commission.

Published in:
« BOE » No. 99, of April 24, 2025, pages 55598 to 55832 (235 pages)

Section:
I. General Provisions

Department:
National Securities Market Commission

Reference:
BOE-A-2025-8206

Permalink ELI:
https://www.boe.es/eli/es/cir/2025/03/26/2

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Co-official languages:
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Text

ORIGINAL TEXT

I

Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets, amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937, establishes a new regime for the provision of crypto-asset services, as well as a new class of regulated entity with the capacity to provide such services, namely crypto-asset service providers. These crypto-asset service providers may be either certain entities already subject to supervision by the Bank of Spain (credit institutions and electronic money institutions) or by the CNMV (investment service firms (ISFs), market operators, Management Companies for Collective Investment Institutions (MCs) and Management Companies for Closed-Ended Investment Companies (CEICs)), or new entities that will become subject to CNMV supervision upon the entry into application of Regulation (EU) 2023/1114. These new supervised entities are subject to a prior authorization process in accordance with Articles 59(1)(a), 62, and 63 of Regulation (EU) 2023/1114 (hereinafter, PSC).

For its part, Article 251(h) of Law 6/2023, of March 17, on Securities Markets and Investment Services, establishes that the National Securities Market Commission is the competent authority for supervising compliance with the aforementioned Regulation, without prejudice to the fact that the Bank of Spain is responsible for exercising supervision, inspection, and sanctioning functions regarding the obligations provided for in the aforementioned Regulation concerning issuers of electronic money tokens and asset-referenced tokens.

Article 94 of Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 provides competent authorities with broad powers, including the ability to request all relevant information from crypto-asset service providers for the performance of their functions or to outsource verifications or investigations to auditors or experts.

In order for the National Securities Market Commission to adequately perform its supervisory duties regarding compliance with Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023, concerning these new crypto-asset services provided by crypto-asset service providers, it may be necessary to have data on the actual activities carried out by them, financial and prudential information of these entities, as well as reports issued by external auditors on their financial situation and activities. The Circular does not develop aspects contained in Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023, but rather only details in advance the specific information that the CNMV could request from entities via individual mandatory orders in exercise of the powers contained in its Article 94. In short, the Circular will allow entities to be prepared to comply with mandatory orders they may receive from the CNMV.

On the other hand, Law 6/2023, of March 17, on Securities Markets and Investment Services, and Royal Decree 813/2023, of November 8, on the legal regime of investment service firms and other entities providing investment services, which develops it, establishes a new class of supervised entity, national financial advisory companies (hereinafter, EAFN), which it is necessary to include within the scope of application of various current CNMV circulars. Article 232 of Law 6/2023, of March 17, on Securities Markets and Investment Services, includes EAFNs within its supervisory scope with the same supervisory powers as those for ISFs. The inclusion of these EAFNs that are legal persons will not entail significantly different obligations than those they previously had as financial advisory companies, without prejudice to the fact that the models of reserved information they must submit to the CNMV will be modified.

II

Circular 1/2021, of March 25, of the National Securities Market Commission, on accounting standards, annual accounts, and financial statements of Investment Service Firms and their consolidatable groups, Management Companies for Collective Investment Institutions, and Management Companies for Closed-Ended Investment Companies, establishes the content of the reserved financial information that must be submitted periodically, as well as their obligations regarding the preparation and submission of annual accounts, for ISFs and their consolidatable groups, MCs, and CEICs.

This Circular modifies for the first time Circular 1/2021, of March 25, with the priority objective of incorporating two new types of entities into its scope of application that fall under CNMV supervision: PSCs and EAFNs. The circular details the obligations regarding the preparation and submission of their annual accounts, and incorporates the reserved statement models that EAFNs must submit. In the case of PSCs, the request for this information would be made via specific mandatory orders from the CNMV, but all relevant information regarding the reserved statement models and the potential frequencies of submission is included in the Circular with the aim of ensuring entities are prepared to comply with such mandatory orders, if applicable.

On the other hand, for ISFs, with the exception of EAFNs, as well as for ISF consolidatable groups (hereinafter, GC ISFs), a second objective is sought: to reduce the administrative burden related to the submission of reserved information. To this end, some reserved statements have been suppressed, and the submission frequency of other reserved statements has been reduced, especially for ISFs considered as small and non-interconnected companies in accordance with Article 12 of Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment service firms, and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014, and (EU) No 806/2014.

In the case of financial advisory companies (hereinafter EAFs), the SEAFI1 statement has been suppressed, but new obligations for submitting reserved statements have been incorporated, with the aim of aligning the supervision of these entities with that of the rest of the ISFs, taking into account a general principle of proportionality in establishing these new obligations for submitting reserved information.

Additionally, to the extent that ISFs can provide crypto-asset services, adjustments have been made to the reserved statement models so that they can submit specific information referred to this new activity, if applicable.

Regarding the reserved information provided by MCs and CEICs, it has been observed since the entry into force of Circular 1/2021 that the activities carried out by the types of managers, except those not expressly permitted, are increasingly similar; therefore, information breakdowns are introduced that unify the data reported by both types of entities.

Similarly, since both MCs and CEICs can provide crypto-asset services, the reserved statement models are adjusted to collect information referred to said activity.

Additionally, another modification of Circular 1/2021 is the establishment of a new reserved information statement on anti-money laundering and counter-terrorist financing (statement BCFT1), of an annual nature, which must be submitted by ISFs other than EAFs, as well as by MCs, CEICs, and PSCs – the latter subject to the prior submission of a mandatory order from the CNMV –.

This new reserved statement will allow the CNMV to have periodically updated information on the situation and activities of entities, of interest in the field of anti-money laundering and counter-terrorist financing, which allows for the evaluation of the establishment of internal control mechanisms, as well as policies and procedures to detect, assess, and manage risks in this area. Within the ISF sector, EAFs are not included among the entities subject to the duty to submit the anti-money laundering statement given the lower money laundering risk they generally entail, as they are entities that only provide investment recommendations and do not intermediate in transactions or manage assets, with advised assets being deposited in other entities subject to anti-money laundering regulations. Nor are branches in Spain of ISFs or managers authorized in other EU states generally subject to the duty to submit the anti-money laundering statement, as they are entities that generally carry out limited activity. Nevertheless, the CNMV reserves the possibility of requesting this information via mandatory order from one or more of the indicated entities using the established model when deemed appropriate considering the activity and estimated risks of their operations.

The modifications introduced in Circular 1/2021, of March 25, to achieve these objectives are as follows:

1. Modify its title, to clarify that it refers both to ISFs and their consolidatable groups, MCs, and CEICs, as well as to PSCs and EAFNs that are legal persons.

2. Modify Rule 1st, to establish that the scope of application also includes PSCs and EAFNs that are legal persons, as well as to clarify that ISF consolidatable groups authorized to apply the group capital test established in Article 8 of Regulation (EU) 2033/2019 are not included within its scope of application.

3. Modify Rule 2nd, to add that EAFNs that are legal persons may opt to apply the General Accounting Plan for Small and Medium-sized Enterprises, just as financial advisory companies do.

4. Modify Rule 3rd, to update normative references to the new Law 6/2023, of March 17, on Securities Markets and Investment Services.

5. Modify Rule 4th, to include PSCs and EAFNs that are legal persons among the entities obliged to submit annual accounts. In the case of PSCs, the obligation will be determined by an express mandatory order from the CNMV.

6. Modify Rule 5th, to include PSCs and EAFNs that are legal persons among the entities whose annual accounts content must be adapted to the annexes of the circular.

7. Modify Rule 6th, to include PSCs and EAFNs that are legal persons among the entities obliged to submit annual accounts via the CIFRADOC electronic service.

8. Modify Rule 7th, to establish or modify the submission frequencies of reserved statements, as well as to determine the specific reserved statement models that each type of supervised entity must submit, suppressing some of them, specifically the reserved statements M51, M7, T2, and T3. In the case of ISFs, in general, the number of reserved statements to be submitted and their submission frequency will be determined by the class of entity for prudential regulatory purposes. For EAFNs that are legal persons and PSCs, the new reserved statements they must submit, as well as the frequencies for their submission, are specified. For PSCs, the obligation to present information will be determined, if applicable, by an express mandatory order from the CNMV, but including the models in the Circular and their potential frequencies will allow them to be prepared to comply with mandatory orders they may receive from the CNMV.

The reserved statement M1 (reserved balance sheet) is modified among other aspects so that ISFs separate cash and client guarantees accounts related to financial instrument operations from cash deposited in the entity for crypto-asset operations.

It is specified that reserved statements M3, M4, and M51 of ISFs take on a statistical nature. Two new statements, M6 and M7, are established with the information previously included in sections J and I, respectively, of statement M4.

A new tracking reserved statement M8 is established, which must be submitted by those ISFs expressly included in a specific tracking situation. In these cases, the general submission date for all reserved information will be modified, advancing to the 15th day of the month following the reference date of the information, instead of the 30th.

A new statement F is established with the relevant information for the calculation of contributions to FOGAIN, which entities must submit both to the FOGAIN Management Company and to the CNMV, information previously included in section H of statement M4.

In the case of MCs and CEICs, reserved statements G11 and R09 are suppressed, and a new reserved statement R11 and the aforementioned reserved statement F are included.

A new reserved information statement on anti-money laundering and counter-terrorist financing (statement BCFT1), of an annual nature, is established, which must be submitted by ISFs other than EAFs, as well as by MCs, CEICs, and PSCs. In the case of PSCs, the submission of the information contained in this model would be carried out, if applicable, prior to a mandatory order from the CNMV.

9. Modify Rule 8th, to modify the statements that ISF consolidatable groups must present, suppressing some of them, specifically the reserved statements CS3, CS5, CS6, CS7, and CA1. A new tracking reserved statement CSS is established, which must be submitted by those ISF consolidatable groups expressly included in a specific tracking situation. In these cases, the general submission date for all reserved information will be modified, advancing to the 15th day of the month following the reference date of the information, instead of the 30th.

10. Eliminate Rule 10th, to the extent that, although supervised entities must submit relevant information to the CNMV for the purposes of calculating contributions to the Investment Guarantee Fund in addition to submitting information to the FOGAIN Management Company, it will be the Management Company itself that determines the instructions for its completion.

11. Renumber Rule 11th, which becomes Rule 10th.

12. Modify Additional Provision Second to include EAFNs that are legal persons within the scope of submission of the Internal Audit Report, as well as to modify the reference to the Annual Report on Internal Capital and Liquidity Self-Assessment (previously Annual Report on Capital Self-Assessment).

13. Modify Annexes I, II, III, and IV of Circular 1/2021, to:

Annex I:

– Modify statements M1 and M2 to include the new information on the provision of crypto-asset services that ISFs must submit, as well as detailed information on cash and client balances. In the balance sheet liability, ISFs must distinguish cash and guarantees linked to financial instrument operations from cash deposited for crypto-asset operations.

– Eliminate reserved statements M5, M7, T2, T3 for ISFs and statement SEAF1 for financial advisory companies.

– Modify the content of reserved statements M3 and M51 to suppress sections that are not necessary to cover the statistical purposes of these statements.

– Modify the content of reserved statement M4, suppressing sections A, E, G, H, I, and J and renaming sections B, C, D, and F, which become sections A, B, C, and D, respectively. Sections I and J become the new reserved statements M7 and M6, respectively, and section H becomes the new statement F.

– Establish a new reserved statement M6 (former section J of statement M4), where modifications are included to incorporate new information on the provision of crypto-asset services.

– Establish a new reserved statement M7 with the content of the former section I of statement M4.

– Establish a new tracking statement M8, which will be applicable to ISFs that the CNMV expressly indicates are in a specific tracking situation.

– Establish a new statement F with the relevant information for the calculation of contributions to FOGAIN, which entities must submit both to the FOGAIN Management Company and to the CNMV.

Annex II:

– Modification of statements G01 and G02 to include information on the provision of crypto-asset services.

– A new statement F is added with the relevant information for the calculation of contributions to FOGAIN, which entities must submit both to the FOGAIN Management Company and to the CNMV.

Annex III:

– Modification of statements R01 and R02 to include information on the provision of crypto-asset services. Additionally, new concepts of paid and received commissions are introduced in R02.

– In R05, a type of managed vehicle is added: «Foreign CEICs» and the type of management performed: GEST/DELEG.

– A new statement R11 is added to report received complaints.

– A new statement F is added with the relevant information for the calculation of contributions to FOGAIN, which entities must submit both to the FOGAIN Management Company and to the CNMV.

Annex IV:

– Modify statements CS1 and CS2 to include the new information on the provision of crypto-asset services that ISF consolidatable groups must submit, as well as detailed information on client balances and guarantees.

– Eliminate reserved statements CS3, CS5, CS6, CS7, and CA1.

– Establish a new tracking statement CSS, which will be applicable to GC ISFs that the CNMV expressly indicates are in a specific tracking situation.

14. A new Annex V is included in Circular 1/2021, through which 5 new reserved statements are established to obtain financial and solvency data from PSCs prior to an express mandatory order from the CNMV. The 5 statements are specifically the following:

– Statement PC1: Reserved Balance Sheet. Balance data is collected in a format similar to that of ISFs, but simplified.

– Statement PC2: Reserved Income Statement. Income statement data is collected in a format similar to that of ISFs, but simplified.

– Statement PC3: Client Balances. Data on the client balances held by the entity for the provision of crypto-asset services is collected.

– Statement PC4: Solvency. Solvency information data is collected to comply with the prudential requirements established in Article 67 of Regulation (EU) 1114/2023.

– Statement PC5: Tracking. It will be applicable to PSCs that the CNMV expressly indicates are in a specific tracking situation.

The inclusion of this Annex V aims to detail in advance the specific information that the CNMV could request from entities via individual mandatory orders, in exercise of the powers contained in Article 94 of MICAR, allowing entities to be prepared to comply with mandatory orders they may receive.

15. A new Annex VI is included in Circular 1/2021, through which the reserved statement BCFT1 on Information on Anti-Money Laundering and Counter-Terrorist Financing is established, which must be submitted annually by ISFs other than EAFs, as well as by MCs, CEICs, and PSCs (in the latter case, if requested by the CNMV).

Taking into account the modifications that must be introduced in Circular 1/2021, of March 25, as a consequence of the introduction of new supervised entities into its scope of application, as well as the inclusion of new reserved statements, the separation of reserved information that each entity must submit based on its solvency class and type of ISF, and the convenience of updating its text to adapt references and frequencies that have been modified, it has been decided to completely replace its first, seventh, and eighth Rules, as well as its annexes. Necessary adjustments are also introduced in Rules second, third, fourth, fifth, and sixth to ensure coherence with these modifications. Rule tenth is suppressed, and Rule eleventh is renumbered, becoming Rule tenth. Finally, the content of Additional Provision Second is modified.

III

Circular 1/2010, of July 28, of the National Securities Market Commission, on reserved information of entities providing investment services, established for the first time the content of the reserved information that companies providing investment services must submit periodically. This Circular has been modified, for various reasons, on five occasions: by Circular 7/2011, of December 12, on information brochure of tariffs and content of standard contracts; by Circular 1/2014, of February 26, on internal organization requirements and control functions of entities providing investment services; by Circular 3/2014, of October 22, amending Circular 1/2010, of July 28, on reserved information of entities providing investment services and Circular 7/2008, of November 26, on accounting standards, annual accounts, and reserved information statements of Investment Service Firms, Management Companies for Collective Investment Institutions, and Management Companies for Venture Capital Entities; by Circular 4/2018, of September 27, amending Circular 1/2010, of July 28, on reserved information of entities providing investment services and Circular 7/2008, of November 26, on accounting standards, annual accounts, and reserved information statements of Investment Service Firms, Management Companies for Collective Investment Institutions, and Management Companies for Venture Capital Entities; and by Circular 5/2018, of November 26, amending Circulars 4/2008, 7/2008, 11/2008, and 1/2010, on public and periodic information of Collective Investment Institutions, accounting standards, annual accounts, and reserved information statements of Venture Capital Entities, Management Companies for Collective Investment Institutions, and Venture Capital Entities and branches of managers