Royal Decree 1336/2012 of 21 September amending certain royal decrees in relation to the powers of the European Supervisory Authorities

OFFICIAL BULLETIN OF THE STATE
No. 240 Friday, 5 October 2012 Sec. I. Page 70869
I. GENERAL PROVISIONS
MINISTRY OF ECONOMY AND COMPETITIVENESS
12425 Royal Decree 1336/2012 of 21 September amending certain royal decrees in relation to the powers of the European Supervisory Authorities.

Royal Decree-Law 10/2012 of 23 March, amending certain financial rules in relation to the powers of the European Supervisory Authorities, initiated the transposition into the Spanish legal order of Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010, amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in relation to the powers of the European Supervisory Authority (European Banking Authority), the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority).

That directive forms part of the so-called supervision package, which created the aforementioned European supervisory authorities, as well as a macroeconomic-level supervisory authority: the European Systemic Risk Board (ESRB). In particular, the directive introduces modifications to the sectoral directives to integrate these authorities into the European framework for cooperation between supervisors and to enable these authorities to perform the functions established in their respective regulations.

This royal decree completes the transposition of Directive 2010/78/EU of 24 November, in order to incorporate the obligation of the competent authorities, Banco de España and the Comisión Nacional del Mercado de Valores (CNMV), to collaborate, inform, and communicate with the corresponding European supervisory authorities. In this way, the adaptation of the national supervision scheme to the obligations derived from Union law that establish the aforementioned European supervision framework, equipped with those instruments considered essential to prevent the recurrence of financial practices that were at the origin of the economic crisis, is finalized.

Taking these premises into account, this royal decree is composed of seven articles, each of which introduces modifications, along the lines indicated above, in the following rules: the Regulation for the development of Law 13/1989 of 26 May on Credit Cooperatives, approved by Royal Decree 84/1993 of 22 January; Royal Decree 1245/1995 of 14 July on the creation of banks, cross-border activity and other matters relating to the legal regime of credit institutions; Royal Decree 1310/2005 of 4 November, partially developing Law 24/1988 of 28 July on the Securities Market, regarding the admission of securities to trading on official secondary markets, public offers of sale or subscription and the prospectus required for such purposes; Royal Decree 1332/2005 of 11 November, developing Law 5/2005 of 22 April on the supervision of financial conglomerates and amending other laws in the financial sector; Royal Decree 1362/2007 of 19 October, developing Law 24/1988 of 28 July on the Securities Market, regarding transparency requirements relating to information on issuers whose securities are admitted to trading on an official secondary market or another regulated market of the European Union; Royal Decree 216/2008 of 15 February on own funds of financial entities; and Royal Decree 217/2008 of 15 February on the legal regime of investment service companies and other entities providing investment services, partially amending the Regulation of Law 35/2003 of 4 November on Collective Investment Institutions, approved by Royal Decree 1309/2005 of 4 November.

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The royal decree concludes with a repealing provision, which contains a general clause, and three final provisions. As stated in the first final provision, the royal decree is issued in accordance with the competence titles set out in Articles 149.1.6th, 11th and 13th of the Spanish Constitution. Finally, the second and third final provisions contain, respectively, the reference to the incorporation of European Union Law and the date of its entry into force.

The processing of this royal decree observed the public hearing period and the mandatory reports were obtained, including those from the CNMV and Banco de España, as they are the Spanish competent authorities that assume the obligation of collaboration, information and communication with the European Supervisory Authorities.

Accordingly, on the proposal of the Minister of Economy and Competitiveness, with the prior approval of the Minister of Finance and Public Administrations, in agreement with the Council of State and after deliberation by the Council of Ministers in its meeting on 21 September 2012.

I HEREBY ORDER:

Article 1. Amendment of the Regulation for the development of Law 13/1989 of 26 May on Credit Cooperatives approved by Royal Decree 84/1993 of 22 January.

Paragraph 5 of Article 1 of the Regulation for the development of Law 13/1989 of 26 May on Credit Cooperatives, approved by Royal Decree 84/1993 of 22 January, shall be worded as follows:

«5. The entries in the special register referred to in the preceding paragraph 3, as well as the cancellations thereof, shall be published in the «Official Bulletin of the State» and communicated to the European Banking Authority.»

Article 2. Amendment of Royal Decree 1245/1995 of 14 July on the creation of banks, cross-border activity and other matters relating to the legal regime of credit institutions.

Paragraph 4 of Article 1 of Royal Decree 1245/1995 of 14 July on the creation of banks, cross-border activity and other matters relating to the legal regime of credit institutions, shall be worded as follows:

«4. The entries in the Special Register referred to in the preceding paragraph 3, as well as the cancellations thereof, shall be published in the «Official Bulletin of the State» and communicated to the European Banking Authority.»

Article 3. Amendment of Royal Decree 1310/2005 of 4 November, partially developing Law 24/1988 of 28 July on the Securities Market, regarding the admission of securities to trading on official secondary markets, public offers of sale or subscription and the prospectus required for such purposes.

Royal Decree 1310/2005 of 4 November, partially developing Law 24/1988 of 28 July on the Securities Market, regarding the admission of securities to trading on official secondary markets, public offers of sale or subscription and the prospectus required for such purposes, shall be amended as follows:

One. Paragraphs 3, 5 and 6 of Article 24 shall be worded as follows:

«3. The CNMV shall notify the person requesting admission to trading on a Spanish official secondary market or another regulated market domiciled in the European Union of its decision regarding the approval of the prospectus within a maximum period of 10 business days from the submission of the draft prospectus.
The CNMV may establish shorter periods depending on the format of the prospectus, the type of security and the type of issuer.
The lack of an express resolution by the CNMV within the period established in this article shall be deemed dismissive, in accordance with Article 26.4 of Law 24/1988 of 28 July on the Securities Market.
The CNMV shall notify the European Securities and Markets Authority of the approval of the prospectus and any possible supplements thereto at the same time that such approval is notified to the person requesting admission to trading on a regulated market. The CNMV shall simultaneously provide the European Securities and Markets Authority with a copy of the aforementioned prospectus and any possible supplements.»

«5. When the CNMV is responsible for approving the prospectus because Spain is the home Member State, the CNMV may transfer this competence to the competent authority of another Member State of the European Union, after notifying the European Securities and Markets Authority and provided that it has the agreement of the competent authority. This decision shall be notified to the person requesting admission to trading within three business days following its adoption.

6. The CNMV may accept, after notifying the European Securities and Markets Authority, the transfer of prospectuses from the competent authority of another Member State of the European Union for approval. The period referred to in paragraph 3 shall apply from the date on which the competent authority of the home Member State notifies the transfer.»

Two. The first paragraph of paragraph 1 of Article 25 shall be worded as follows:

«1. Once the prospectus has been approved by the CNMV, it shall be registered in the corresponding administrative register and made available to the public by the person requesting admission to trading as soon as possible and, in any event, within a reasonable period prior to the admission to trading of the securities in question or, at the latest, at that time. The inclusion of the prospectus in the register referred to in Article 92(b) of Law 24/1988 of 28 July does not constitute publication for the purposes of this article.»

Three. Article 29 shall be worded as follows:

«Article 29. Cross-border effectiveness of prospectuses approved by the CNMV.

1. In accordance with the first paragraph of Article 29 of Law 24/1988 of 28 July, the prospectus approved by the CNMV, as well as its supplements, shall be valid for admission to trading on any regulated markets of the host Member States, provided that the CNMV notifies the European Securities and Markets Authority and the competent authority of the host Member State thereof, in accordance with the following paragraph.
2. At the request of the person applying for admission or the person responsible for drawing up the prospectus, the CNMV, within a period of three business days from that request or, if the request is submitted together with the draft prospectus, on the next business day following its approval, shall provide the European Securities and Markets Authority and the competent authority of the host State or host Member States with an approval certificate attesting that the prospectus has been drawn up in accordance with the rules adopted by the Member States for the transposition of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC, and a copy of said prospectus. Where appropriate, this notification shall be accompanied by the translation of the summary drawn up under the responsibility of the person applying for admission or the person responsible for drawing up the prospectus. The same procedure shall apply to any supplement to the prospectus.
3. Where the inclusion of certain information has been exempted in accordance with the ministerial order developing Article 27.4 of Law 24/1988 of 28 July, this shall be stated in the certificate, together with its justification.
4. The list published on the CNMV website referred to in the second paragraph of Article 29 of Law 24/1988 of 28 July shall be kept up to date and each of its elements shall be retained on the website for a minimum period of twelve months.»

Four. Article 30 shall be worded as follows:

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«Article 30. Effectiveness in Spain of prospectuses approved in other Member States of the European Union.
In accordance with the third paragraph of Article 29 of Law 24/1988 of 28 July, the prospectus approved by the competent authority of the home Member State, as well as its supplements, shall be valid for admission to trading on Spanish official secondary markets, provided that such competent authority forwards to the European Securities and Markets Authority and the CNMV the documentation indicated in paragraph 2 of the preceding article of this royal decree. In this case, the CNMV shall refrain from approving said prospectus or carrying out any administrative procedure relating to it. Where appropriate, the European Securities and Markets Authority and the CNMV may draw the attention of the competent authority of the home Member State to the need to publish a supplement to the prospectus if new significant factors, inaccuracies or material errors arise.»

Five. Paragraph 1 of Article 44 shall be worded as follows:

«1. In accordance with Article 85 of Law 24/1988 of 28 July on the Securities Market, the CNMV may request from the persons listed in Article 84 of that Law any information it deems pertinent regarding the matters covered by this royal decree. In particular, it may:
a. Require the person responsible for the prospectus to complete the information provided to comply with the requirements of the corresponding section of the prospectus template. b. Require issuers, offerors or persons requesting admission to trading on a Spanish official secondary market or a regulated market, and persons controlling them or controlled by them, to provide information and documents regarding the matters covered by this royal decree.
c. Require directors of the issuer, offeror or person requesting admission to trading on a Spanish official secondary market or a regulated market, as well as financial intermediaries responsible for making a public offer or requesting admission to trading, to provide information on the matters covered by this royal decree.
d. Carry out any inspections deemed necessary.
The European Securities and Markets Authority may participate in on-site inspections carried out jointly by the CNMV and another competent authority of the European Union.»

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Article 4. Amendment of Royal Decree 1332/2005 of 11 November, developing Law 5/2005 of 22 April on the supervision of financial conglomerates and amending other laws in the financial sector.

Royal Decree 1332/2005 of 11 November, developing Law 5/2005 of 22 April on the supervision of financial conglomerates and amending other laws in the financial sector, shall be amended as follows:

One. A new letter c) is added to paragraph 3 of Article 11:

«c) Mechanisms established to contribute to the preparation and development, where necessary, of resolution and recovery instruments and plans. Such mechanisms shall be updated regularly in accordance with what the coordinator determines.»

Two. Paragraph 3 of Article 15 shall be worded as follows:

«3. The coordinator shall also inform the competent authorities that have authorized the regulated entities of the financial conglomerate, the competent authorities of the Member State in which the holding company's registered office is located, if any, and the Joint Committee of the European Supervisory Authorities referred to in Articles 54 to 57 of Regulations (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) and No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), of the identification carried out, the designation of the obligated entity and its status as coordinator.»

Article 5. Amendment of Royal Decree 1362/2007 of 19 October, developing Law 24/1988 of 28 July on the Securities Market, regarding transparency requirements relating to information on issuers whose securities are admitted to trading on an official secondary market or another regulated market of the European Union.

A new paragraph 3 is added to Article 21 of Royal Decree 1362/2007 of 19 October, developing Law 24/1988 of 28 July on the Securities Market, regarding transparency requirements relating to information on issuers whose securities are admitted to trading on an official secondary market or another regulated market of the European Union:

«3. The CNMV shall inform the European Securities and Markets Authority of the exemptions it grants in accordance with the provisions of this article.»

Article 6. Amendment of Royal Decree 216/2008 of 15 February on own funds of financial entities.

Royal Decree 216/2008 of 15 February on own funds of financial entities shall be amended as follows:

One. A new paragraph is added at the end of paragraph 2 of Article 76 bis:

«If at the end of the initial two-month period any of the interested competent authorities has referred the matter to the European Banking Authority in accordance with Article 19 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC, Banco de España shall defer its resolution and await the decision that the European Banking Authority may adopt in accordance with Article 19(3) of that Regulation. Subsequently, it shall resolve in accordance with the decision of the European Banking Authority. The two-month period shall be considered the conciliation period for the purposes of Article 19 of that Regulation. Banco de España may not refer the matter to the European Banking Authority once the initial two-month period has expired or after a joint decision has been adopted.»

Two. Paragraph 1 of Article 76 ter shall be worded as follows:

«1. The following may participate in the supervisory colleges referred to in Article 14 of Law 13/1985 of 25 May: the European Banking Authority as it deems appropriate in order to promote and monitor the efficient, effective and coherent functioning of such colleges in accordance with Article 21 of Regulation (EU) No 1093/2010, the competent authorities responsible for the supervision of subsidiaries of a Union parent credit institution or a Union parent financial holding company, and the competent authorities of the Member State in which significant branches are established, central banks where applicable, as well as, where appropriate, competent authorities of third countries, subject to confidentiality requirements that are equivalent, in the opinion of all competent authorities, to those stipulated in Article 6 of Royal Legislative Decree 1298/1986 of 28 June.»

Three. A new paragraph is added at the end of paragraph 2 of Article 107 bis:

«If at the end of the initial two-month period any of the interested competent authorities has referred the matter to the European Securities and Markets Authority in accordance with Article 19 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC, the CNMV shall defer its resolution and await the decision that the European Securities and Markets Authority may adopt in accordance with Article 19(3) of that Regulation. Subsequently, it shall resolve in accordance with the decision of the European Securities and Markets Authority. The two-month period shall be considered the conciliation period for the purposes of Article 19 of that Regulation. The CNMV may not refer the matter to the European Securities and Markets Authority once the initial two-month period has expired or after a joint decision has been adopted.»

Four. Paragraph 1 of Article 107 ter shall be worded as follows:

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«1. The following may participate in the supervisory colleges referred to in Article 91 septies of Law 24/1988 of 28 July on the Securities Market: the European Securities and Markets Authority as it deems appropriate in order to promote and monitor the efficient, effective and coherent functioning of the supervisory colleges in accordance with Article 21 of Regulation (EU) No 1093/2010, the competent authorities responsible for the supervision of subsidiaries of a Union parent investment firm or a Union parent financial holding company, and the competent authorities of the Member State in which significant branches are established, central banks where applicable, as well as, where appropriate, competent authorities of third countries, subject to confidentiality requirements that are equivalent, in the opinion of all competent authorities, to those stipulated in Article 90 of Law 24/1988 of 28 July on the Securities Market.»

Five. Letters d) and e) of paragraph 1 of Article 108 shall be worded as follows:

«d) In accordance with Article 91 bis of Law 24/1988 of 28 July on the Securities Market, conclude coordination and cooperation agreements with other competent authorities aimed at facilitating and establishing effective supervision of the groups entrusted to their supervision and assuming the additional tasks resulting from such agreements.
Specifically, and as provided for in Article 85.1 b) of Law 24/1988 of 28 July on the Securities Market, the CNMV, when it is responsa