Resolution of 16 November 2011 by the CNMV Creating and Regulating the Electronic Registry

OFFICIAL STATE GAZETTE
No. 292 Monday, 5 December 2011 Sec. I. Page 129054

I. GENERAL PROVISIONS
COMMISSION OF THE NATIONAL SECURITIES MARKET (CNMV)

19080 Resolution of 16 November 2011 of the Commission of the National Securities Market, creating and regulating the Electronic Registry of the Commission of the National Securities Market.

Article 45 of Law 30/1992, of 26 November, on the Legal Regime of Public Administrations and Common Administrative Procedure, provided that public administrations shall promote the use and application of telematic techniques and means for the development of their activities and the exercise of their competencies, also enabling citizens, when compatible with available technical means, to interact with administrations through electronic and computerized techniques, always adhering to the requirements and guarantees provided for in each procedure. Article 38 of the same Law, drafted in accordance with Article 68 of Law 24/2001, of 27 December, on Fiscal, Administrative and Social Order Measures, authorized the creation of telematic registries to facilitate and promote communications between public administrations and citizens.

Royal Decree 263/1996, of 16 February, which regulated the use of electronic, computerized and telematic techniques by the General State Administration, addressed the development of Article 45 of Law 30/1992, of 26 November, with the intention of delimiting, within the scope of the General State Administration, the guarantees, requirements and circumstances for the use of electronic, computerized and telematic techniques.

More specifically, Royal Decree 772/1999, of 7 May, regulating the submission of applications, written documents and communications to the General State Administration, the issuance of copies of documents and return of originals, and the regime of registration offices, expressly admitted the submission of applications, written documents, documents and communications by computerized, electronic or telematic means.

Additionally, Royal Decree 209/2003, of 21 February, regulating telematic registries and notifications, as well as the use of telematic means to substitute the submission of certificates by citizens, incorporated Chapter VI into Royal Decree 772/1999, of 7 May, to regulate telematic registries and establish the minimum content of the provisions creating them.

For its part, Article 4 of Law 59/2003, of 19 December, on Electronic Signatures, established the use thereof within public administrations, their public bodies, and entities dependent on or linked to them, and in the relations maintained between them or with private individuals.

In the aforementioned normative context, the Council of the Commission of the National Securities Market (hereinafter, CNMV) adopted the Agreement of 15 September 2006, regarding the adaptation of the CIFRADOC/CNMV System (created by Agreement of the CNMV Council of 11 March 1998) to certification and recognized electronic signature services, through which the Telematic Registry of the CNMV was created.

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The Agreement of the CNMV Council of 15 September 2006 regulates the criteria governing the telematic submission with recognized electronic signature of written documents, applications and communications addressed to the CNMV, fixes the procedures in which it is applicable, creates the Telematic Registry responsible for the receipt and maintenance of said written documents, applications and communications, and refers to the status of the CNMV as an accreditation office for obtaining the recognized electronic signature certificate, as provided in Article 12 of Royal Decree 1317/2001, of 30 November, developing Article 81 of Law 66/1997, of 30 December, on Fiscal, Administrative and Social Order Measures, regarding the provision of security services by the National Currency and Stamp Factory-Real Mint, in communications through electronic, computerized and telematic means with public administrations.

Law 11/2007, of 22 June, on citizens' electronic access to public services, contains, in its Articles 24, 25 and 26, a new regulation of electronic registries, provisions which are developed by Royal Decree 1671/2009, of 6 November, which partially develops the aforementioned Law and regulates the conditions of its operation.

Although Law 11/2007, of 22 June, itself provides, in its single transitional provision, for the automatic transformation of previous telematic registries into electronic registries, the better application of the provisions contained therein as well as the incorporation of recent experience to improve services provided to citizens and security in telematic relations with them, advise carrying out a new regulation of the Electronic Registry of the CNMV.

On the other hand, Royal Decree 1671/2009, of 6 November, which partially develops Law 11/2007, of 22 June, specifically determines in Article 27.1 that electronic registries shall be created by Order of the corresponding Minister or Resolution of the head of the Public Body, determining the minimum content of these norms, which must be published in the "Boletín Oficial del Estado".

This Resolution creates the Electronic Registry of the CNMV and with its implementation intends to determine the procedures within its competence, in which the electronic registry service is available for the receipt and dispatch of corresponding documents, as well as the general conditions for the submission of standardized electronic documents.

Consequently, I resolve:

First. Object and scope of application.

1. The purpose of this Resolution is to regulate the Electronic Registry of the CNMV (hereinafter Electronic Registry), accessible at its electronic headquarters, for the receipt and dispatch of applications, written documents and communications relating to its scope, in the manner and with the extent provided in Article 24 of Law 11/2007, of 22 June, and in Articles 26 to 30 of Royal Decree 1671/2009, of 6 November.
2. Within its scope of application, the use of the Electronic Registry shall be mandatory in applications, written documents and communications with citizens in which, in accordance with general rules, their registry annotation must be carried out, in accordance with Article 38 of Law 30/1992, of 26 November, on the Legal Regime of Public Administrations and Common Administrative Procedure and its development provisions, and this annotation may not be replaced by others in non-electronic registries or in the registries of the computer applications managing the services, procedures and procedures. For the purposes of this Resolution, the concept of citizen shall be that defined in the annex to Law 11/2007, of 22 June.
3. Under no circumstances shall corporate email boxes assigned to employees and the various bodies, directions and departments of the CNMV have the status of Electronic Registry.

Second. Competent bodies.

1. The body responsible for the management of the Electronic Registry, without prejudice to what is established in the tenth provision of this Resolution, is the General Secretariat of the CNMV.
2. It is the responsibility of the President of the CNMV to approve and modify the list of standardized applications, written documents and communications corresponding to specific services, procedures and procedures, in accordance with the provision of letter a) of paragraph 2 of Article 24 of Law 11/2007, of 22 June. This list and its modifications shall be published in the Boletín Oficial del Estado and disseminated through the electronic headquarters of the CNMV.

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Third. Admissible documents.

1. The Electronic Registry shall admit the documents referred to in points a) and b) below:
   a) Standardized electronic documents, submitted by natural or legal persons corresponding to the procedures specified in Annex I of this Resolution, managed through the corresponding computer applications. b) Any application, written document or communication addressed to the CNMV, with the extent established in letter b) of paragraph 2 of Article 24 of Law 11/2007, of 22 June, which shall be submitted using the form established in Annex II of this Resolution.
2. The electronic headquarters of the CNMV, at the address https://sede.cnmv.gob.es, shall systematically and orderly include the updated list of procedures referred to in Annex I and the forms of Annex II, as well as the link to the corresponding managing computer applications.
3. When electronic documents other than those mentioned in point 1 of this third section are submitted to the Electronic Registry and cannot be rejected in accordance with Article 29.1.d) of Royal Decree 1671/2009, of 6 November, they shall be forwarded to the body or organization deemed competent, either because the sender indicates so or because it can be deduced from their content. This forwarding shall be carried out via the route that best guarantees agility, security and confidentiality, in accordance with the development of electronic instruments for registry management.
4. The Electronic Registry shall automatically reject, when possible, the applications, written documents and communications referred to in Article 29.1 of Royal Decree 1671/2009, of 6 November, providing in the same session the information and warnings referred to in paragraph 2 of said Article and giving the interested party the option to request the proof of submission attempt referred to in the same provision, mentioning the circumstances of the rejection, unless the information on such attempt is on the same screen in a printable or downloadable format for the interested party.
5. When the circumstances for the rejection of applications, written documents and communications have not resulted in automatic rejection and registry annotation and acknowledgment of receipt have been carried out, the CNMV, applying what is provided in Article 29.3 of Royal Decree 1671/2009, of 6 November, shall require the corresponding correction, warning that if the requirement is not complied with, the submission shall be deemed not made. In the event of definitive rejection, it shall be recorded in the Electronic Registry for subsequent accreditation purposes.
   The preceding paragraph shall also apply when, requiring the submission of an application, written document or communication using specific forms containing mandatory completion fields or regarding which particular congruence criteria have been agreed, the submission is made without using said form.
6. The mere confirmation of the existence of malicious code or a device capable of affecting the integrity or security of the system, in any of the electronic documents or forms, shall be sufficient cause for the blanket rejection of the submission. In these cases, once the detected problem has been documented with reasons and the interested party has been informed of the cause of the rejection in the manner provided in the previous points of this section, the destruction of these documents may proceed.
7. The rejection of the submission due to the omission of completing fields required as mandatory in the resolution approving the corresponding standardized electronic document, or due to the existence of inconsistencies or omissions preventing its processing, must be carried out at the very moment of its electronic submission, with automatic indication of the omitted fields or detected inconsistencies. To this effect, the fields of mandatory completion must be indicated precisely and the criteria of congruence between the various data must be explicit. Omissions of data or inconsistencies detected after submission shall not give rise to its rejection; in these cases, correction must be made by requiring the submitter in accordance with what is provided in point 5 of this third section.
8. In order to enable their reading and preservation, the electronic headquarters of the CNMV shall contain information on the formats and versions to which presented electronic documents must adhere, applying the criteria for the use of open standards or, where applicable, those other criteria generally used by citizens.

Fourth. Submission of complementary documentation.

1. If, at the initiative of the interested parties or due to a prior requirement, complementary documentation must be provided to a previously submitted communication, written document or application, the interested parties may make such submission through any of the following means:
   a) Through the system provided for in point 1.a) of the third section of this Resolution, provided that said procedure is expressly contemplated in Annex I of this Resolution. b) Through the system provided for in point 1.b) of the third section of this Resolution, when the procedure is not listed in Annex I of this Resolution and concerns documents susceptible to telematic submission. c) Through any of the means provided for in Article 38.4 of Law 30/1992, of 26 November, when the interested party opts for any of them or when it concerns documents not susceptible to submission by electronic means.
2. When the electronic submission system does not allow automatic determination of the communication, written document or application to which the submitted documentation is complementary or the procedure or file with which it is related, the interested party must mention the individualized registration number referred to in point 3 of the ninth section of this Resolution, or the information allowing identification of the file in which it is to take effect.

Fifth. Channels and access requirements to the Electronic Registry.

1. Citizens' access to the Electronic Registry shall always be carried out through the computer applications managing the presentation and communication systems, using the electronic channels enabled for this purpose and in accordance with the computer specifications required by said applications, specifications of which, in the case of relations with citizens, shall be informed through the electronic headquarters of the CNMV.
2. Specifically, the possibility may be enabled to submit electronic documents and attached documentation or to make communications in XML, XBRL or other structured information format, relating to a web service or FTP of the CNMV.

Sixth. Accreditation of identity and representation.

1. For the purposes of applications, written documents and communications that must take effect in the Electronic Registry, natural persons may accredit their identity through the electronic signature systems related in Article 13.2 of Law 11/2007, of 22 June. In particular:

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No. 292 Monday, 5 December 2011 Sec. I. Page 129058 a) The electronic signature system incorporated in the National Identity Document. b) In procedures and actions for which they are expressly accepted, advanced electronic signature systems, including those based on recognized electronic certificates, provided they have been admitted in accordance with what is established in Articles 15.2 of Law 11/2007, of 22 June, and 23.3 of Royal Decree 1671/2009, of 6 November. When an application admits identification and signature through the aforementioned systems, it must admit the use of all electronic certificates regarding which admission is agreed in accordance with the mentioned norms. c) When approved in accordance with what is established in Article 11 of Royal Decree 1671/2009, of 6 November, the electronic signature systems referred to in Article 13.2.c) of Law 11/2007, of 22 June, with restricted application to the actions determined, in accordance with what is provided in paragraph 3 of Article 11 of said Royal Decree.
2. For the purposes of applications, written documents and communications that must take effect in the Electronic Registry, legal persons may accredit their identity through the electronic signature systems related in Article 13.2 of Law 11/2007, of 22 June. In particular:
a) In the procedures and actions collected in Annex I of this Resolution, electronic signature systems based on electronic certificates issued in accordance with Article 7 of Law 59/2003, of 19 December, on Electronic Signatures, provided they have been admitted in accordance with what is established in Articles 15.2 of Law 11/2007, of 22 June and 23.3 of Royal Decree 1671/2009, of 6 November. Prior to their first use before the Electronic Registry, verification of the capacity of the legal person holding the electronic signature certificate for the corresponding procedure or actions shall be required, in accordance with what is established in the fourteenth section of this Resolution. b) When approved in accordance with what is established in Article 11 of Royal Decree 1671/2009, of 6 November, the electronic signature systems referred to in Article 13.2.c) of Law 11/2007, of 22 June, with restricted application to the actions determined, in accordance with what is provided in paragraph 3 of Article 11 of said Royal Decree.
3. The electronic headquarters of the CNMV shall inform on the identification and signature systems for natural and legal persons admitted at any time in relation to the various procedures and actions within its scope, in accordance with the list of identification systems contained in this section.
The systems for presenting documents or forms electronically shall automatically reject the submission when identification and signature systems other than those mentioned in the preceding paragraph are used, or when, regarding admitted electronic certificates, they are not valid at the moment of submission, indicating in such case the cause of the rejection.
The electronic submission of any document or form with an admitted and non-revoked signature instrument, but issued for purposes different from those for which it is used, shall give rise to the initiation of the correction procedure provided in Article 71 of Law 30/1992, of 26 November, provided that the defect is not detected at the very moment of submission, in which case the submission shall be rejected informing the interested party of the error noted.
4. Identification and authentication before the Electronic Registry may also be carried out through authorized CNMV personnel, through the procedure provided in Article 22 of Law 11/2007, of 22 June and in Article 16 of Royal Decree 1671/2009, of 6 November.

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5. Citizens may also relate to the Electronic Registry through the following procedures:
a) Action through a representative or attorney, under the terms regulated in Article 32 of Law 30/1992, of 26 November, or specific applicable regulations, accrediting the personality and condition of the representative and the scope of representation, when necessary according to the indicated norms. Citizens may opt to carry out this accreditation before the Electronic Registry of Authorizations regulated in Article 15 of Royal Decree 1671/2009, of 6 November, provided that the validity of the representation incorporated into the registry has been determined in accordance with what is established in paragraph 4 of the cited article. b) Submission through a representative or attorney, under the terms regulated in Article 32 of Law 30/1992, of 26 November or specific applicable regulations, using the enabled representation procedure before the Administration regulated in Article 23 of Law 11/2007, of 22 June, and in Articles 13 and 14 of Royal Decree 1671/2009, of 6 November. When representation is not accredited or cannot be presumed, action shall be taken in accordance with what is provided in Article 32 of Law 30/1992, of 26 November.
6. The signature specifications of the documents referred to in this section, collected in the electronic headquarters of the CNMV, shall adhere to the electronic signature and certificate policy within the scope of the General State Administration and its public bodies.

Seventh. Delivery of documents and computation of deadlines.

1. The computer applications managing the services, procedures and procedures that make use of the Electronic Registry will allow the submission of applications, written documents and communications every day of the year, during the twenty-four hours of the day, without prejudice to technical or operational maintenance interruptions contemplated in Article 30.2 of Royal Decree 1671/2009, of 6 November, which will be announced with the possible advance in the respective electronic headquarters.
2. In services, procedures and procedures that allow it, the necessary systems will be enabled so that an eventual interruption of the service provision by the Electronic Registry does not translate into the interruption of the receipt of applications, written documents and communications by the various computer applications managing the services, procedures and procedures.
3. When due to unplanned interruptions preventing the submission of applications, written documents and communications, whether in the computer applications managing the services, procedures and procedures, or in the one supporting the Electronic Registry, it is not possible to announce them in advance, action shall be taken in accordance with what is established in Article 30.2 of Royal Decree 1671/2009, of 6 November, to which effect, unless a legal norm expressly prohibits it, the deadlines for imminent expiration shall be extended for the time necessary, of which a record shall be left in the electronic headquarters.
4. In accordance with what is established in Article 26.1 of Law 11/2007, of 22 June, on citizens' electronic access to public services, the submission of documents to the Electronic Registry shall be deemed made at the date and time indicated by the system, provided that the interested party has received an acknowledgment of receipt.

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8. The acknowledgment of receipt shall be issued automatically by the system, containing the registration number, the date and time of submission, the identity of the submitter, and a summary of the submitted document. The acknowledgment of receipt shall have the effects of proof of submission and shall be issued in a format that allows its printing and preservation.

Eighth. Security and integrity of the Electronic Registry.

1. The Electronic Registry shall ensure the integrity, confidentiality and availability of the submitted documents, as well as the non-repudiation of the submissions.
2. The CNMV shall adopt the necessary security measures to prevent unauthorized access, alteration, loss or destruction of the data contained in the Electronic Registry.
3. The Electronic Registry shall maintain a log of all activities carried out, including submissions, modifications, and access by authorized personnel, which shall be stored for a period of at least five years.

Ninth. Registry entries and access to information.

1. The Electronic Registry shall maintain a record of all submissions, including the acknowledgment of receipt, the status of the procedure, and any subsequent actions taken.
2. Interested parties may access their submissions and the status of their procedures through the electronic headquarters of the CNMV, using their identification credentials.
3. The CNMV shall provide mechanisms for interested parties to obtain certified copies of the documents submitted and the acknowledgments of receipt.
4. The individualized registration number referred to in point 2 of the fourth section of this Resolution shall be unique and shall be assigned automatically by the system upon submission.

Tenth. Final provisions.

1. The General Secretariat of the CNMV shall issue the necessary instructions to ensure the proper functioning of the Electronic Registry.
2. The CNMV shall publish on its electronic headquarters the list of standardized documents and procedures referred to in Annex I, as well as the forms referred to in Annex II.
3. Any modifications to this Resolution shall be published in the Boletín Oficial del Estado.

Eleventh. Entry into force.
This Resolution shall enter into force on the day following its publication in the Boletín Oficial del Estado.

Madrid, 16 November 2011.

The President of the Commission of the National Securities Market, [Signature]

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