BOLETÍN OFICIAL DEL ESTADO

Núm. 9 Friday, January 10, 2014 Sec. I. Page 1396

I. GENERAL PROVISIONS

MINISTRY OF ECONOMY AND COMPETITIVENESS

Order ECC/2515/2013, of December 26, developing Article 86.2 of Law 24/1988, of July 28, on the Securities Market.

The National Securities Market Commission (hereinafter, CNMV) is entrusted with the function of supervising securities markets. In order to perform this supervisory and monitoring role over markets efficiently, the CNMV must not only be able to obtain information from investment service firms and the companies managing market infrastructures, but it must also be able to establish the accounting standards and financial models that such investment service firms and companies managing market infrastructures must use when transmitting such information.

Article 86.2 of Law 24/1988, of July 28, on the Securities Market, empowers the Minister of Economy and Competitiveness and, with their express authorization, the CNMV, to establish and modify, prior to the report of the Institute of Accounting and Auditing of Accounts (ICAC), the accounting standards and models to which the financial statements of companies managing market infrastructures and investment service firms must adhere, as well as those related to the compliance with established coefficients, arranging the frequency and detail with which the corresponding data must be supplied to the Commission or made public generally by the entities themselves. Likewise, it empowers the Minister of Economy and Finance, and with their express authorization, the CNMV, to regulate the registers, internal or statistical databases, and documents that the aforementioned entities must maintain and, regarding their securities market operations, credit institutions. These powers granted to the Minister of Economy and Competitiveness and, with their express authorization, to the CNMV, are without prejudice to what is established in Title III of Book I of the Commercial Code.

The information established in the previous article regarding activity, financial, accounting, statistical, registers, and databases that the CNMV may request from both investment service firms and companies managing market infrastructures allows the CNMV to exercise its supervisory function over them. Likewise, by empowering the CNMV to decide how this information must be presented, it is possible to have concordant, uniform, and grouped activity data according to accepted conventions, an aspect that will improve the comparability of Spanish securities trading and post-trading infrastructures. Consequently, it is foreseen that this order will contribute to a more effective exercise of the CNMV's supervisory power regarding one of the fundamental pillars in the functioning of securities markets: transparency.

The main objective of this ministerial order is to grant the aforementioned authorization to the CNMV in development of the new wording given to Article 86.2 of Law 24/1988, of July 28, by Law 2/2011, of March 4, on the Sustainable Economy. Likewise, it updates the current legal framework of the Order of the Ministry of Economy and Finance of July 26, 1989, to the developments that have taken place in the matter of account auditing pursuant to the new accounting framework of the General Accounting Plan, approved by Royal Decree 1514/2007, of November 16, and other developments of the Commercial Code and the consolidated text of the Capital Companies Law approved by Royal Legislative Decree 1/2010, of July 2, and the Standards for the Formulation of Consolidated Annual Accounts approved by Royal Decree 1159/2010, of September 17.

The final part of this order includes two modifications in two ministerial orders.

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First, Order EHA/3537/2005, of November 10, developing Article 27.4 of Law 24/1988, of July 28, is modified. The objective is to make technical adjustments following the modifications made to Law 24/1988, of July 28, and Royal Decree 1310/2005, of November 4, which partially develops Law 24/1988, of July 28, on the Securities Market, in matters of admission to trading of securities on official secondary markets, public offers for sale or subscription, and the prospectus required for such purposes, due to the transposition of Directive 2010/73/EU of the European Parliament and of the Council of November 24, 2010, which amends Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading and Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market.

Likewise, the model of national prospectus established for atypical contracts in Circular 3/2000, of May 30, of the National Securities Market Commission, which modifies for the first time Circular 2/1999, of April 22, of the National Securities Market Commission, is replaced by the model provided for debt or derivative securities in the European Commission Regulation. And the definition of financial contracts provided by said CNMV Circular is included in Order 3537/2005, of November 10, developing Article 27.4 of Law 24/1988, of July 28, on the Securities Market.

Secondly, Order ECC/461/2013, of March 20, determining the content and structure of the annual corporate governance report, the annual remuneration report, and other information instruments of listed joint-stock companies, savings banks, and other entities issuing securities admitted to trading on official securities markets, is modified, with the objective of clarifying the functioning of the second transitional provision of the aforementioned order regarding the mandate of independent directors.

This order has been informed by the Spanish Data Protection Agency and by the Institute of Accounting and Auditing of Accounts.

By virtue thereof, in accordance with what is established in Article 86 of Law 24/1988, of July 28, on the Securities Market and with the Council of State, I order:

Article 1. Authorization to the National Securities Market Commission.

1. The National Securities Market Commission (hereinafter, CNMV) is authorized to establish, modify, and regulate the information listed below from the entities cited in Article 84.1 of Law 24/1988, of July 28, on the Securities Market.
   a) The models and accounting standards relating to annual or interim financial statements as well as those related to the compliance with established coefficients. b) The registers, internal or statistical databases, and documents that they must maintain.

2. The CNMV is authorized to regulate what is provided in paragraph b) with respect to the entities contemplated in Article 65 of Law 24/1988, of July 28, in relation to their securities market operations.

Article 2. Public and Reserved Nature of Information.

The information listed in the previous article may be:
a) Of a public nature, as information to third parties regarding the asset, economic, and financial situation of the respective Entities. b) Of a reserved nature, whose purpose will not be general dissemination, but information to the CNMV so that it can fulfill its functions of supervision and inspection of the markets and of the natural or legal persons related to their trading.

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Article 3. Powers of the National Securities Market Commission.

1. In the exercise of the authorization contained in Article 1 and in relation to the entities referred to in Article 84.1 of Law 24/1988, of July 28, the CNMV:
   a) Will determine the form, detail, frequency, and deadline for the presentation of public financial statements. b) Will determine the form, detail, frequency, and deadline for the presentation of reserved financial statements, without prejudice to its ability to individually request from the Entities any additional information necessary for the fulfillment of its functions. c) Will establish the correlations between public and reserved financial statements. d) May issue rules on the deadlines for submission to the CNMV and for dissemination and publicity of annual account audits and the corresponding management report.

2. Likewise, for the entities referred to in Articles 84.1 and 65 of Law 24/1988, of July 28, the CNMV may establish the form and minimum content to which the registers, internal or statistical databases, and documents that, at a minimum, must be maintained by the aforementioned entities must adapt, specifying the characteristics, formats, frequencies, deadlines, and systems for transmission or submission of data to the CNMV and other technical requirements thereof.

Article 4. Publicity Criteria and Accounting Standards and Models.

1. In the exercise of the functions attributed to it, the CNMV will apply homogeneous publicity criteria for all entities of the same category.

2. In the elaboration of accounting standards and models, the CNMV will adhere to the provisions in the field of accounting contained in the Commercial Code, in the consolidated text of the Capital Companies Law approved by Royal Legislative Decree 1/2010, of July 2, in the General Accounting Plan approved by Royal Decree 1514/2007, of November 16, and its development regulations, as well as, when applicable, in the regulations and other European legislation in force at any given time regarding financial and accounting information.

For the establishment or modification of public models of financial statements or for the fixing or alteration of recording and valuation criteria, the prior report of the Institute of Accounting and Auditing of Accounts (ICAC) is mandatory, which will be understood as issued if it has not been emitted within thirty days.

Article 5. Use of Public Models of Financial Statements.

The public models of financial statements will be mandatory for the entities referred to in Article 84.1 of Law 24/1988, of July 28, in their annual accounts subject to audit. Such entities may not modify the structure of general rubrics or headings nor suppress any of the concepts, which must always appear even if they have a zero balance, without prejudice to greater breakdowns that they voluntarily wish to reveal. General rubrics or headings are understood as those whose balances are the result of an algebraic sum of data from others appearing in the financial statements.

Individual rubrics or headings to which no amount corresponds in the current and preceding period may be omitted to favor the clarity of the financial statements. Likewise, individual rubrics or headings may be grouped when the balances they represent are an immaterial amount to show a true and fair view or if this favors clarity. Individual rubrics or headings are understood as those whose balances are not the algebraic sum of others appearing in the financial statements.

The data of a nature, accounting, financial, or statistical published by entities in their annual accounts, journals, prospectuses, bulletins, or announcements and web pages, whatever the communication medium used, must correspond to those contained in the public and reserved statements and in the activity and statistical data information submitted to the CNMV for review or supervision.

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Article 6. Reserved Nature Information.

The reserved nature information related in Article 1 will be subject to what is established in Article 90 of Law 24/1988, of July 28, and in Organic Law 15/1999, of December 13, on the protection of personal data, regarding its treatment, use, and dissemination. Whenever the other requirements of such laws are met, the CNMV may carry out the aggregated publication of reserved data that it considers convenient for statistical purposes.

Article 7. Requirements of Financial Statements.

The financial statements established in accordance with the models and norms that the CNMV establishes in the exercise of the power conferred by this order will be understood to meet the requirements that, if any, are or may be required in the field of financial-accounting information.

Single Repealing Provision. Repeal of Regulations.

All norms of equal or lower rank that oppose what is established in this ministerial order are repealed, and in particular the Order of the Ministry of Economy and Finance of July 26, 1989, and Circular 3/2000, of May 20, of the National Securities Market Commission, which modifies for the first time Circular 2/1999, of April 22, of the National Securities Market Commission.

Final Provision First. Modification of Order EHA/3537/2005, of November 10, developing Article 27.4 of Law 24/1988, of July 28, on the Securities Market.

Order EHA/3537/2005, of November 10, developing Article 27.4 of Law 24/1988, of July 28, on the Securities Market, is modified in the following terms:

One. A new paragraph is added to paragraph 1 of Article 2 with the following wording:

"Financial contracts referred to in Article 1.3 of Royal Decree 1310/2005, of November 4, shall be understood as non-negotiated contracts on official secondary markets by which a credit institution receives money or securities, or both, from its clientele assuming a repayment obligation consisting either in the delivery of certain quoted securities, or in the payment of a sum of money, or both, depending on the evolution of the quotation of one or more securities, or the evolution of a stock index, without commitment to full repayment of the principal received. The prospectus model applicable to said financial contracts will be the one provided for in Annex XII of Commission Regulation (EC) No 809/2004 of April 29, 2004, implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference, publication of such prospectuses, and dissemination of advertising, for derivative securities."

Two. A new paragraph 4 is added to Article 4 with the following wording:

"4. When securities are guaranteed by a Member State, information about the guarantor may not be included in the prospectus."

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Three. A new wording is given to paragraph 1 of Article 5:

"1. The prospectus may contain information by reference to one or more documents that have been published prior to or simultaneously with the approval of the prospectus. Such documents must either have been approved by the CNMV or deposited with it, in accordance with what is established in Royal Decree 1362/2007, of October 19, developing Law 24/1988, on the Securities Market, in relation to transparency requirements regarding information on issuances whose securities are admitted to trading on an official secondary market or another regulated market of the European Union, or have been approved by, or deposited in, the competent authority of another Member State of the European Union provided that it is the State of origin of the issuer. This information must be the latest available to the issuer."

Four. Paragraph three of the second transitional provision is repealed.

Final Provision Second. Modification of Order ECC/461/2013, of March 20, determining the content and structure of the annual corporate governance report, the annual remuneration report, and other information instruments of listed joint-stock companies, savings banks, and other entities issuing securities admitted to trading on official securities markets.

The second transitional provision of Order ECC/461/2013, of March 20, determining the content and structure of the annual corporate governance report, the annual remuneration report, and other information instruments of listed joint-stock companies, savings banks, and other entities issuing securities admitted to trading on official securities markets, is modified, which shall have the following wording:

"Second Transitional Provision. Independent Directors.

Directors who were performing their functions as independent on June 30, 2013, will continue with such status until the end of the current mandate, even if during that period they exceed the 12-year limit. Those who have exceeded the 12-year limit at the end of the mandate may not be designated as independent again.

In accordance with the preceding paragraph, in annual corporate governance reports relating to the years 2013 and subsequent, directors who have held their position for a period exceeding 12 years during those fiscal years may continue to be qualified as independent, provided they do not incur in any of the other causes provided for in paragraph 4 of Article 8 that prevent them from maintaining such qualification."

Final Provision Third. Competence Titles.

This order is issued in accordance with what is provided in Articles 149.1.6th and 11th of the Spanish Constitution, which attribute to the State exclusive competence over commercial legislation and over the bases of the organization of credit, banking, and insurance, respectively.

Final Provision Fourth. Entry into Force.

This order will enter into force the day following its publication in the "Boletín Oficial del Estado".

Madrid, December 26, 2013.–The Minister of Economy and Competitiveness, Luis de Guindos Jurado.

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