Royal Decree-Law 14/2018 of 28 September modifying the Consolidated Text of the Securities Market Law

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Document BOE-A-2018-13180

Document BOE-A-2018-13180

Royal Decree-Law 14/2018, of 28 September, modifying the Consolidated Text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of 23 October.

[Repealed Provision]

Published in:

« BOE » no. 236, of 29 September 2018, pages 93738 to 93817 (80 pages)

Section:

I. General Provisions

Department:

Office of the Prime Minister

Reference:

BOE-A-2018-13180

ELI Permalink:

https://www.boe.es/eli/es/rdl/2018/09/28/14

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Text

ORIGINAL TEXT

I

This Royal Decree-Law aims to complete the transposition into legal rank norms of Directive 2014/65/EU of the European Parliament and of the Council, of 15 May 2014, on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU; Directive 2016/1034 of the European Parliament and of the Council, of 23 June 2016, amending Directive 2014/65/EU on markets in financial instruments; as well as Delegated Directive 2017/593/EU of the Commission of 7 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards safeguards for financial instruments and funds belonging to clients, product governance obligations, and rules applicable to the payment or receipt of fees, commissions, or other monetary or non-monetary benefits.

Directive 2014/65/EU of 15 May 2014 was already subject to partial transposition at legal rank through Royal Decree-Law 21/2017, of 29 December, on urgent measures to adapt Spanish law to European Union regulations in the matter of the securities market. Through this new Royal Decree-Law, the transposition of those provisions of the Directive that must be transposed into a legal rank norm is completed. Specifically, the provisions of the Directive transposed in this Royal Decree-Law are, fundamentally, those regulating the authorization, conduct, and supervision regime of investment firms, those recognizing new supervisory powers to the CNMV (National Securities Market Commission), and those establishing new cooperation obligations between the CNMV, the remaining EU national supervisory authorities, and the European Securities and Markets Authority (ESMA).

In this regard, it is important to highlight that this Royal Decree-Law continues the work of rationalization and technical improvement already initiated by Royal Decree-Law 21/2017. Both instruments aim to reduce the content of the Consolidated Text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of 23 October, to the minimum content necessary to be contained in legal rank norms. In this way, following the approval of this Royal Decree-Law, the consolidated text will become a true framework law regulating securities markets and investment services and activities companies, following in this sense the recommendation formulated by the Council of State.

Unlike Royal Decree-Law 21/2017, it has been considered more appropriate for this Royal Decree-Law to have the character of a modifying text of the Consolidated Text of the Securities Market Law. This is because the regulation of trading venues in accordance with Directive 2014/65/EU of 15 May 2014 required not only an adjustment of the content of the norms applicable to these infrastructures, but also a review of the systematics followed in the consolidated text regarding this matter. Given that the regulation of investment services and activities companies, the conduct norms ensuring adequate investor protection, and the supervision, inspection, and sanction regime respond in their structure and systematics to the approach taken by the Directive on these issues, it favors legal certainty to proceed with the modification of the consolidated text to complete the transposition of the aforementioned Directive at the legal rank.

II

Circumstances of extraordinary and urgent necessity also concur in this case, as in the approval of Royal Decree-Law 21/2017, of 29 December.

First, it is urgent to complete the transposition because the transposition deadline for the Directive has expired and the European Commission has sued the Kingdom of Spain before the Court of Justice of the European Union (CJEU) for failure to fully transpose this Directive.

Furthermore, it is urgent to complete the transposition of the Directive to avoid serious harm to Spanish investment services and activities companies. The regulatory uncertainty to which these companies are subjected due to the lack of timely transposition causes them significant cost and uncertainty affecting their competitiveness in European markets, uncertainty that is not dispelled by the so-called direct effect of Directives.

Likewise, the lack of timely transposition is already affecting the attractiveness of the Spanish market as a market where new investment services and activities companies from other countries can establish themselves. In a context of increasing mobility of these companies, many of which are currently considering relocating their registered office to other EU Member States, the existence of a certain and stable regulatory framework becomes an absolutely essential condition determining their investment decisions. It must also be taken into account that the European Union initiative known as the "Capital Markets Union" will increase the mobility of capital and investment services and activities companies in the EU. Consequently, it becomes imperative and urgent to have a complete legal framework transposing Directive 2014/65/EU of 15 May 2014 and its Delegated Directive as soon as possible.

Finally, the adoption of this Royal Decree-Law is justified by the extraordinary and urgent need to equip the CNMV with the new supervisory powers and inter-administrative cooperation tools that the Directive grants to public supervisory bodies of investment services and activities companies and securities markets of the European Union. The Directive expands the intervention powers recognized to competent authorities to improve the effectiveness of their supervisory activities and intensifies the cooperation obligations between said authorities and the ESMA. Thus, to guarantee the effectiveness of these new powers and foster the cooperation of the CNMV with other competent national authorities of the EU and the ESMA, it is considered indispensable to complete the transposition of the Directive as soon as possible.

Furthermore, this Royal Decree-Law does not affect the organization of the basic institutions of the State, the rights, duties, and freedoms of citizens regulated in Title I of the Constitution, the regime of the Autonomous Communities, nor general electoral law.

III

This Royal Decree-Law responds to the principles of necessity, effectiveness, proportionality, legal certainty, transparency, and efficiency. With regard to the principles of necessity and effectiveness, it is the optimal instrument to carry out the partial transposition of Directive 2014/65/EU of 15 May 2014 and thus comply with the obligations of the Kingdom of Spain regarding the incorporation of European Union law norms into our legal order.

As for the principle of proportionality, certainly the transposition of Directive 2014/65/EU maintains the necessary balance between providing an adequate, agile legal framework that favors the development and competitiveness of our financial sector, on one hand; and guaranteeing investor protection, which will result in greater confidence in the financial sector and better performance by this sector in the functions it must carry out in the Spanish economy as a whole, on the other.

The principle of legal certainty is reinforced, insofar as the Royal Decree-Law transposes only those matters of the Directive that require transposition into a legal rank norm, leaving for subsequent regulatory development those issues that, due to their level of detail or eminently technical character, must be regulated in regulatory rank norms.

In this way, the Royal Decree-Law advances in the configuration of the current Consolidated Text of the Securities Market Law as a true framework law of financial markets, in the sense of a norm that establishes the principles and bases of securities markets, respectful of the distinction of matters between law and regulation. Although it is not the priority objective of this Royal Decree-Law, there is no doubt that this labor is positive and will result in greater certainty regarding the applicable legal order. The requirement of Article 9.3 of the Spanish Constitution regarding the principle of legal certainty implies that norms must pursue clarity and not normative confusion and must avoid causing objectively confusing situations. The distribution between law and regulation advanced through this Royal Decree-Law thus improves the knowledge and understanding of the norms by their addressees, facilitating their interpretation and application and allowing the legal order in this area to adapt without carrying out constant legislative modifications or carrying out the fewest possible.

In application of the principle of transparency, both in the public consultation phase and in the public hearing phase, interested parties had access to the draft of the Bill of the Securities Market Law, from which this Royal Decree-Law derives, and other supporting documents on the electronic headquarters of the Ministry of Economy and Enterprise.

Finally, regarding the principle of efficiency, this Royal Decree-Law does not impose any additional administrative burden that is not strictly necessary to comply with the obligations derived from Directive 2014/65/EU of 15 May 2014.

IV

Next, the main content of this Royal Decree-Law is presented in a summarized and non-exhaustive manner.

First, the preliminary title is modified, which contains general provisions and delimits the entities excluded from the scope of application of the Consolidated Text of the Securities Market Law in relation to the content corresponding to Directive 2014/65/EU of the European Parliament and of the Council, of 15 May 2014.

Chapter V of Title IV is modified, incorporating the possibility that the CNMV may impose limits on the volume of a net position that can be maintained in certain derivatives, as well as the obligations to disseminate and communicate positions in certain derivatives by trading venues. A reference is also made to Regulation (EU) No 600/2014 of the European Parliament and of the Council, of 15 May 2014, and to the delegated and implementing acts of the European Commission that develop it, as norms regulating pre- and post-trade transparency obligations for trading venues, which is a fundamental element of the overall reform.

The Royal Decree-Law fundamentally modifies Chapters III, V, and VI of Title V of the consolidated text, which contains the legal regime applicable to investment services and activities companies, and its main novelties are as follows: in the field of cross-border activity, provisions are established regarding the establishment of branches and the free provision of services, distinguishing their regulation within the European Union and in third countries. It is also noteworthy that the establishment of branches of investment services and activities companies authorized in other Member States does not require prior authorization from the CNMV but simply prior notification. The regulation regarding linked agents that branches or entities acting under the free provision of services regime in our country may designate is also noteworthy.

Regarding cross-border activity with non-EU Member States, the regulation of the activity in Spain of third-country companies stands out, which must necessarily establish a branch if the provision of investment services and activities they intend to develop is directed at retail clients.

Other novelties in the field of operational requirements for investment services and activities companies are the obligations they must comply with when carrying out algorithmic trading activities, the specialties to be taken into account when carrying out market-making activity in this context, as well as the obligations they must comply with when providing direct electronic access to a market.

A new Title V bis is introduced regulating a reality addressed for the first time in a European Directive, namely data reporting services, detailing the fundamental elements of the authorization procedure to which providers of such services must be subject as well as the internal organization requirements they must comply with.

Title VII is also modified, which refers to the conduct norms that investment services and activities companies must respect to guarantee adequate investor protection. This is an extensive title that incorporates important novelties from Directive 2014/65/EU of 15 May 2014. In addition to the reinforcement of diligence and transparency obligations and those related to conflict of interest management, the new prescriptions on the surveillance and control of financial products stand out, whereby investment services and activities companies that design financial instruments for sale to clients must ensure a minimum quality of them and their suitability for the market segment to which they are directed.

Regarding the information that investment services and activities companies must provide to their clients, first, the content of the information that investment services and activities companies must provide to their clients and potential clients before the provision of the service is detailed, especially regarding the type of advice offered, and on the financial instruments and investment strategies proposed and the costs and expenses associated with the investment service. The existence of a standardized format to offer all this information is foreseen. Special mention deserves the distinction that the Directive obliges to make regarding advice, to clarify whether it is provided independently or not.

Second, once the service has been provided, the investment services company must also provide information on the costs of operations and services performed, considering the type and complexity of the financial instruments and the nature of the service.

Finally, special attention is paid to cases where an investment service is offered as part of a financial product, or an investment service is offered together with another service or product or as part of a package or as a condition of the same agreement or package. The investment services and activities company must inform the client of the possibility of buying or not buying the different components separately and the costs and charges of each of them.

Section 7 of Chapter I of this Title VII deals with payments and remuneration in the provision of services and includes some of the most significant novelties of Directive 2014/65/EU of 15 May 2014. Thus, the general rule is made explicit that remuneration does not conflict with the obligation of the investment services and activities company to act in the best interest of its clients. The admissible conditions for the provision of independent advice and discretionary portfolio management service are detailed. The obligations and necessary conditions to be able to receive incentives are also established. Thus, if obligations such as increasing the quality of service for the client are not met, incentives for marketing cannot be received, beyond (in vertically integrated financial entity groups) the result of the distribution of the general profits of the company producing the financial instrument to be marketed, for the performance of its activity. Finally, this section is closed with a reference to the knowledge and competencies that persons providing advice or information to clients must possess.

Section 8 and last of Chapter I of Title VII deals with the management and execution of client orders, an area that has also been strengthened to guarantee better investor protection, where the specialties for the case of execution of limit price orders stand out. The concept of total consideration is also included to determine the best possible result for a client when their orders are executed, and the method to compare execution venues to determine the best possible result for the client.

Two other important new elements appear in this area: the first is the prohibition of the investment services and activities company receiving any remuneration, discount, or non-monetary benefit for directing orders to a specific trading or execution venue. And the second is the obligation to publish annually the five main execution venues with which they work, accompanied by information on the quality of execution.

As can be seen, the instruments used by European Law to guarantee adequate investor protection are essentially the same as those collected in Law 47/2007, of 19 December, which modified Law 24/1988, of 28 July, of the Securities Market, for the transposition of Directive 2004/39/EC, known as Directive "MiFID I" and which is the immediate antecedent of Directive 2014/65/EU, of 15 May 2014. The difference is that the level of requirement and concreteness in client information obligations, or the degree of control required over any circumstance affecting the conflicts of interest of an investment services and activities company, are much more intense now.

Regarding supervisory powers, some are modified and added in accordance with what is provided in Directive 2014/65/EU of 15 May 2014. For example, the power of the CNMV to require or request information on the volume of a position, to limit the capacity of any person to subscribe to a derivatives contract on commodities, or to suspend the marketing or sale of certain financial instruments is incorporated.

Also, notable modifications are introduced in Chapter II of Title VIII, which refers to cooperation with other authorities. Regarding the cooperation of the CNMV with other European Union authorities, matters collected in Regulation (EU) No 600/2014 of the European Parliament and of the Council, of 15 May 2014, those related to emission allowances and the cooperation of the CNMV with the Spanish Office for Climate Change, as well as those concerning derivatives on agricultural commodities and the cooperation of the CNMV with the Ministry of Agriculture, Fisheries and Food, are included.

An article is also added to incorporate the obligation of the CNMV to notify the European Securities and Markets Authority (ESMA) of any requirement to limit positions and any limit on the capacity of persons to contract a financial instrument.

Regarding the possibility that the CNMV reaches cooperation agreements with other competent authorities of non-EU Member States, including the exchange of information, mention is made of the supervision of persons operating in the markets for greenhouse gas emission allowances and derivatives on agricultural commodities, to have a view of financial and spot markets.

Similarly, four exceptions to the obligation of professional secrecy by the CNMV are added, relating to information on emission allowances, information relating to derivatives on agricultural commodities, information that the CNMV provides to other competent authorities of the European Union, and information that the CNMV exchanges with other competent authorities of non-EU Member States. In all cases, within the framework, with the limits, and with the requirements imposed by applicable regulations.

Two new chapters are introduced in Title X regarding the communication of infringements and the publicity thereof, incorporating the novelties derived from the transposed European regulations.

By virtue thereof, making use of the authorization contained in Article 86 of the Spanish Constitution, at the proposal of the Minister of Economy and Enterprise and prior deliberation of the Council of Ministers in its meeting of 28 September 2018,

I HEREBY ORDER:

Sole Article. Modification of the Consolidated Text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of 23 October.

The Consolidated Text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of 23 October, is modified as follows:

One. Article 1 is drafted as follows:

"Article 1. Object and content.

This law aims to regulate the securities market and investment services and activities in Spain and refers, among other matters, to the issuance and offer of financial instruments, to trading venues and clearing, settlement, and registration systems for financial instruments, to the authorization regime and operational conditions of investment services and activities companies, to the provision of investment services and activities in Spain by third-country companies, to the authorization and operation of data reporting service providers, and to the supervision, inspection, and sanction regime under the responsibility of the National Securities Market Commission (CNMV)."

Two. Article 2 is drafted as follows:

"Article 2. Financial instruments subject to this law.

1. The financial instruments collected in its Annex are included in the scope of this law. The Government is empowered to modify by Royal Decree the list of financial instruments appearing in this article with the aim of adapting it to the modifications established in European Union regulations.

2. To financial instruments other than transferable securities, the rules provided in this law for transferable securities shall apply, with the adaptations that, if necessary, are precise.

3. Points b), f), g), and j) of the annex of this law shall be applied in accordance with what is established in Delegated Regulation (EU) 2017/565 of the Commission, of 25 April 2016, supplementing Directive 2014/65/EU as regards organizational requirements and operational conditions of investment firms and investment firms...