Law 6/2023, of March 17, on Securities Markets and Investment Services

Law 6/2023, of March 17, on Securities Markets and Investment Services.

Head of State

"BOE" No. 66, of March 18, 2023
Reference: BOE-A-2023-7053

INDEX

Preamble ................................................................... 4
TITLE I. General Provisions ................................................... 15
CHAPTER I. Object and scope of application of the law ...................................... 15
CHAPTER II. On negotiable securities ............................................. 16
TITLE II. National Securities Market Commission (CNMV) ................................. 22
CHAPTER I. General Provisions ............................................... 22
CHAPTER II. Organization ...................................................... 24
TITLE III. Primary market for negotiable securities........................................ 28
CHAPTER I. General provisions ............................................... 28
CHAPTER II. Issuance of bonds or other negotiable securities that recognize or create debt ....... 30
TITLE IV. Trading venues, clearing, settlement and registration systems for financial instruments, periodic information obligations of issuers, information obligations on significant shareholdings and treasury shares, public takeover bids and voting advisors ..... 31
CHAPTER I. Trading venues ................................................ 31
Section 1. General provisions for trading venues ............................ 31
Section 2. Regulated markets ............................................. 36
Section 3. Multilateral trading facilities and organized trading systems ... 41
Section 4. Limits on positions in derivatives on commodities........................ 43
Section 5. Other forms of trading ............................................ 44

CHAPTER II. On clearing, settlement and registration systems for securities and post-trade infrastructures ............................................................ 45
Section 1. Mandatory intervention of a central counterparty and provisions relating to the settlement of securities ....................................................... 45
Section 2. General provisions for central securities depositories and central counterparties ................................................................ 46
Section 3. Specific provisions for central securities depositories ................... 49
Section 4. Specific provisions for central counterparties .................. 50
CHAPTER III. Periodic information obligations of issuers ........................... 52
CHAPTER IV. Information obligations on significant shareholdings and treasury shares ............ 55
CHAPTER V. On public takeover bids ...................................... 56
CHAPTER VI. Voting advisors ................................................... 62
TITLE V. Investment service companies and other persons and entities authorized to provide investment services .................................................................. 63
CHAPTER I. General provisions ............................................... 63
CHAPTER II. Authorization, registration, suspension and revocation ................................ 69
CHAPTER III. Branches and provision of services without a branch ............................... 74
Section 1. European Union ..................................................... 74
Section 2. Third Countries ................................................... 76
CHAPTER IV. Significant shareholdings ............................................ 78
CHAPTER V. Information requirements, corporate governance obligations and remuneration policy .. 80
CHAPTER VI. Systems, procedures and management mechanisms............................. 85
Section 1. Financial requirements ......................................... 85
Section 2. General requirements for internal organization and operation ...................... 86
Section 3. Internal organization and operation requirements for companies that facilitate direct electronic access or act as general clearing members....................... 89
Section 4. Procedures for reporting infringements ................................. 90
TITLE VI. Data supply services ............................................. 90
TITLE VII. Investment Guarantee Fund ........................................... 93
TITLE VIII. Conduct rules .................................................... 95
CHAPTER I. Conduct rules applicable to those providing investment services................. 95
Section 1. Obligated subjects and client classification .................................. 95
Section 2. General duties of conduct .......................................... 97
Section 3. Monitoring and control of financial services ................................... 97
OFFICIAL STATE GAZETTE

Section 4. Information duties ............................................... 97
Section 5. Assessment of suitability and appropriateness.................................. 98
Section 6. Other conduct obligations in the provision of services ....................... 102
Section 7. Payments and remuneration in the provision of services ............................ 103
Section 8. Management and execution of client orders............................... 105
Section 9. Conflict of interest policy ................................................ 107
CHAPTER II. Market abuse................................................... 107
TITLE IX. Supervision, inspection and sanction regime .................................... 109
CHAPTER I. General provisions for supervision and inspection and sanction regimes ......... 109
CHAPTER II. Supervision and inspection regime....................................... 113
Section 1. General provisions ............................................... 113
Section 2. Relationships between the CNMV and other national, European and third-country authorities .... 119
Section 3. Prudential supervision ................................................ 123
CHAPTER III. Sanctioning regime ................................................ 131
Section 1. General provisions on infringements and sanctions ..................... 131
Section 2. Infractions ....................................................... 134
Subsection 1. Reporting of infringements ....................................... 134
Subsection 2. Very serious and serious infringances ..................................... 136
Subsection 3. Minor infringances ............................................... 159
Subsection 4. Statute of limitations for infringances ...................................... 160
Section 3. Sanctions ........................................................ 160
TITLE X. Fiscal Regime of Securities Transactions .................................. 176
Additional Provisions ......................................................... 177
Transitional Provisions ......................................................... 180
Repealing Provisions ........................................................ 181
Final Provisions ............................................................ 182
OFFICIAL STATE GAZETTE

CONSOLIDATED TEXT
Last modification: August 02, 2024

FELIPE VI
KING OF SPAIN
To all who see and understand this.
Know: That the General Courts have approved and I come to sanction the following law:
PREAMBLE
I
The existence of a transparent and efficient securities market constitutes one of the basic elements of any developed and advanced social market economy. It fulfills an essential function in the allocation of financial resources to economic sectors, investment in productive assets, the promotion of public savings and the external opening of the economy and its integration into international financial and commercial flows. As is known, the legal framework applicable plays a critical role in the correct functioning and development of capital markets. Regulatory legislation is one of the determining factors in achieving stable, transparent and efficient financial markets, and guaranteeing the highest standards of protection for financial services clients and savers. Since the publication in 1988 of the first Securities Market Law, the regulatory framework for capital markets has been presided over by a "framework law" or flagship law. This law incorporates the basic characteristics of the different financial markets and their agents, establishes their essential obligations of conduct and information to guarantee the protection of financial clients, and attributes to the National Securities Market Commission (hereinafter, CNMV) the mission of supervising said markets for the benefit of transparency, the correct formation of prices and the protection of investors. In this sense, the framework regulatory legislation of securities markets has been transformed in recent decades by two phenomena: the increase in regulatory norms that develop it, and the incorporation of an increasing number of norms of European Union law. With regard to the increase in regulatory norms, although it is true that Law 24/1988, of July 28, was developed from its origins by a large number of regulations, there is no doubt that the number and extent of said regulatory norms has increased considerably in recent decades, due largely to the growing sophistication and complexity of capital markets. The other phenomenon in this area has been that of European integration itself. Although capital and financial services markets joined the European integration process later than other markets, such as the goods market, the fact is that the integration process of European capital markets has been very intense in recent years. Consequently, most of the current legal order in this area is the result of the transposition of European Union directives or is composed of EU regulations, which are directly applicable. This law stands in this sense as the new "framework law" of securities markets, replacing the current Royal Legislative Decree 4/2015, of October 23, approving the consolidated text of the Securities Market Law, which in turn succeeded Law 24/1988, of July 28, on the Securities Market. OFFICIAL STATE GAZETTE

II
In the framework of European integration, as an example of this phenomenon, we can highlight the recent approval of the following directives: (i) Directive 2019/2177 of the European Parliament and of the Council of December 18, 2019, amending Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), Directive 2014/65/EU on markets in financial instruments and Directive 2015/849 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing; (ii) Directive 2020/1504 of the European Parliament and of the Council, of October 7, 2020, amending Directive 2014/65/EU on markets in financial instruments; (iii) Directive 2021/338 of the European Parliament and of the Council of February 16, 2021, amending Directive 2014/65/EU as regards information requirements, product governance and position limits, and Directives 2013/36/EU and (EU) 2019/878 as regards their application to investment firms with a view to contributing to the recovery from the COVID-19 crisis; (iv) Directive 2019/2034 of the European Parliament and of the Council, of November 27, 2019 on the prudential supervision of investment firms, and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU; or (v) the Directive of the European Parliament and of the Council amending Directives 2006/43/EC, 2009/65/EC, 2009/138/EU, 2011/61/EU, 2013/36/EU, 2014/65/EU, (EU) 2015/2366 and (EU) 2016/2341. Precisely, and as will be explained below, these Directives are the subject of transposition into our legal order through this law. Without a doubt, new modifications of this law will be necessary in the near future. The current initiative for a Capital Markets Union driven by the institutions of the European Union will only accelerate this trend and will oblige us to continue modifying this law and its development regulations. Indeed, the Commission's new Action Plan on a Capital Markets Union for people and businesses, presented in September 2020, contemplates a total of 16 legislative actions, most of which will imply the reform of some European financial legislation directive and, consequently, also of this law. Therefore, this law represents a significant effort to adapt the national regulatory framework to European Union law. On the one hand, this law transposes various European Union directives; and, on the other hand, it was indispensable to purify the Securities Market Law of those provisions that had been regulating matters that have subsequently come to be regulated by directly applicable European regulations, such as for example the legal regime of central securities depositories or that of data supply service providers. As for the directives that are the object of transposition through this law, five are the directives transposed. First, Directive 2019/2177 of the European Parliament and of the Council, of December 18, 2019 is transposed. This Directive
transfers the authorization and supervision of certain data supply service providers, other than those related to authorized information systems and authorized publication agents, to the European Securities and Markets Authority (hereinafter, ESMA). Secondly, this law transposes Directive 2020/1504 of the European Parliament and of the Council, of October 7, 2020. This Directive excludes from the scope of application of Directive 2014/65/EU of the European Parliament and of the Council, of May 15, 2014, on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, legal persons authorized as providers of crowdfunding services under Regulation (EU) No 2020/1503 of the European Parliament and of the Council, of October 7, 2020, on European crowdfunding service providers for businesses, and amending Regulation (EU) 2017/1129 and Directive 2019/1937. Regulation (EU) No 2020/1503 of the European Parliament and of the Council, of October 7, 2020 is in turn the one that establishes uniform requirements for the provision of crowdfunding services, the organization and authorization and the supervision of crowdfunding service providers. Thirdly, Directive 2021/338 of the European Parliament and of the Council of February 16, 2021 is transposed, which forms part of a set of measures aimed at facilitating economic recovery after the COVID-19 pandemic, which also includes specific modifications of Regulation (EU) No 2017/1129 of the European Parliament and of the Council, of June 14, 2017, on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market and repealing Directive 2003/71/EC, as well as of Regulation (EU) 2017/2402 of the European Parliament and of the Council, of December 12, 2017, establishing a general framework for securitization and creating a specific framework for simple, transparent and standardized securitization, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012, among others. This Directive relaxes certain requirements applicable to financial agents to facilitate the economic recovery derived from the COVID-19 crisis and its objective is to allow investment services to play a key role in promoting a faster recapitalization and refinancing of European companies and thus facilitate investments in the real economy. Specifically, the Directive makes a specific adaptation of certain requirements established in Directive 2014/65/EU of the European Parliament and of the Council, of May 15, 2014, eliminating the administrative burdens created by rules on documentation and information disclosure that are not compensated by the corresponding increase in investor protection. The result is a simplification of information obligations directed to professional clients. It also adjusts the limitation of positions in certain derivatives and the corresponding hedging exemption regime in order to
give a boost to the new markets denominated in euros. Fourthly, the Directive of the European Parliament and of the Council amending Directives 2006/43/EC, 2009/65/EC, 2009/138/EU, 2011/61/EU, 2013/36/EU, 2014/65/EU, (EU) 2015/2366 and (EU) 2016/2341 is also transposed. This Directive accompanies the EU Regulation proposals relating to crypto-asset markets, the temporary regime for market infrastructures based on distributed ledger technology (DLT) and digital operational resilience. These Regulations aim to establish the fundamental rules regulating: i) the issuance, offering and admission to trading of crypto-assets, ii) crypto-asset service providers, iii) the conditions of the pilot regime for market infrastructures based on DLT, and iv) ICT risk management, incident reporting, testing and supervision. In order to achieve the objectives established in said Regulations, several directives are modified, such as for example Directive 2014/65/EU of the European Parliament and of the Council, of May 15, 2014, to include provisions relating to the continuity and regularity of the provision of services and the carrying out of investment activities, to the resilience and sufficient capacity of trading systems, to effective mechanisms for the continuity of activities and to risk management. In addition, it also modifies Directive 2014/65/EU of the European Parliament and of the Council, of May 15, 2014, in order to clarify the legal treatment of crypto-assets that may be considered financial instruments. To this end, it modifies the definition of "financial instrument" of said Directive in order to clarify, without any legal doubt remaining, that such instruments can be issued using distributed ledger technology. On the other hand, the necessary rules are incorporated to guarantee legal certainty in the representation of negotiable securities through systems based on distributed ledger technology, to allow the application in Spain of Regulation (EU) No 2022/858 of the European Parliament and of the Council, of May 30, 2022, on a pilot regime for market infrastructures based on distributed ledger technology and amending Regulations (EU) No 600/2014 and (EU) No 909/2014 and Directive 2014/65/EU. In this way, compliance with the mandate to Member States established in Article 18.2 of said Regulation is given. The provisions contained in this norm, with regard to the representation of securities through distributed ledger technology, will apply to those that have the status of negotiable securities according to what is established in this law. OFFICIAL STATE GAZETTE

This law also introduces the necessary adaptations for the application of the Regulation on crypto-asset markets. Specifically, with regard to the designation of the CNMV as the competent authority for the supervision of the issuance, offering and admission to trading of certain crypto-assets that are not financial instruments. In order for the CNMV to exercise the powers conferred by said Regulation, the regime of infringements and sanctions applicable in accordance with the same is also introduced. In short, all these provisions will allow the application in Spain of European regulations on crypto-assets, as soon as they are approved, since the CNMV will immediately have the necessary supervision powers to guarantee the protection of investors and financial stability in this area. And, finally, through this new Law, Directive (EU) 2021/2261 of the European Parliament and of the Council of December 15, 2021 amending Directive 2009/65/EC as regards the use of key information documents by management companies of undertakings for collective investment in transferable securities (UCITS), and Directive 2019/2034 of the European Parliament and of the Council, of November 27, 2019 on the prudential supervision of investment firms, and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU are transposed. Due to its importance, the main novelties of this Directive and the options exercised in its transposition are the subject of exposition in the following section. Finally, a series of matters have been identified that require updating and modernization, with the aim of improving the competitiveness and attractiveness of the Spanish securities markets, enhancing their capacity for corporate financing, always with the highest guarantees for the investor. III The main reasons that have led to the elaboration of this law have as their objective to address rigorously and with quality the mentioned phenomena. That is: incorporate the necessary improvements to facilitate the development of the Spanish securities markets in the current competitive environment; substantially improve the normative and systematic technique of this sector of the legal order; and, adapt national regulations to recent novelties in European law and exercise the alternatives recognized by the directives to be transposed in the most appropriate and favorable way for the interests of domestic securities markets, financial stability and the rights of financial services clients. ---