PKF Attest

Capital markets

PKF Attest new BME market member

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BME announced today the incorporation of PKF Attest as a new member of the Equity market. This is the first incorporation of a new member so far in 2024. PKF Attest will act as of today in the equity market on the Madrid Stock Exchange and BME Growth.

As the benchmark market for Spanish securities, BME offers the best quality metrics on order book depth and spread. Participating entities enjoy direct access to trading and a broad portfolio of services on a robust and solid infrastructure. BME provides market members with different methods of connecting and entering orders to the Spanish Stock Exchange Interconnection System (SIBE).

PKF Attest is a multidisciplinary firm of professional services for companies and institutions and, currently, one of the ten largest in Spain with more than 700 professionals and present in 11 cities. Since 1990 it offers tax and legal advisory services, information technology, capital markets, auditing, M&A, corporate finance advisory and strategic consulting in all areas of business. Since 2010 it belongs to the PKF network of firms present in more than 150 countries.

Beatriz Alonso-Majagranzas, Head of Markets at BME "We are delighted to welcome this new member of the equity market. It is always good news when the family of participants in the Spanish financial markets expands".

In the words of Jokin Cantera, partner of PKF Attest Capital Markets SV "at PKF Attest Capital Markets SV we are delighted to acquire the status of Member of the Madrid Stock Exchange. Undoubtedly, this is a further step in our mission to be able to help all our clients during the process of seeking financing, either via Equity and/or Debt, in the Capital Markets. This milestone will allow us, among others, to offer the services of Liquidity Provider in BME Growth and Management of Share Buyback Programs, which join those we already offer as Registered Advisor, Placement Entity and Investor Relations. This allows us to offer a comprehensive, efficient, and centralized service to all our clients."

Source: BME

Preliminary Draft Bill for the Creation of the Independent Administrative Authority for the Defense of Financial Customers

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The purpose of the draft bill is to create the Independent Administrative Authority for the Defense of Financial Customers, to establish a system for the out-of-court resolution of disputes arising between financial institutions and financial customers and to promote financial education.

In order to increase the protection of the clients of financial entities, to increase legal certainty in the area of the rules of conduct that financial entities must observe, and to contribute to the extension of common practices in the relations of financial entities with their clients, with adequate and common standards of protection, in which transparency, the financial inclusion of vulnerable groups and competition in terms of quality of service are strengthened, for the benefit of society as a whole.

This modification is due to the need to introduce, within the framework of the reconfiguration of Spanish financial institutions, a general principle to guarantee the personalized provision of financial services, understood as that which takes into consideration the age of the person to whom it is providing or will provide services, the characteristics of the geographical area in which the person resides in terms of population and the level of digital skills of that person, among other characteristics.

Lack of access to financial services is a complex phenomenon in which factors such as the distribution of the population in the territory, its age structure, its socioeconomic characteristics and the distribution channels of available financial services are interrelated.

First, a substantial number of Spanish municipalities lack a bank branch. This fact makes access to financial services difficult, although it does not necessarily imply that the residents of these localities do not have access to them.

  • On the one hand, in some cases the credit institutions themselves offer face-to-face service alternatives through collaborating agents, mobile employees or mobile offices. In addition, various organizations and public administrations are carrying out different initiatives to improve access to face-to-face financial services.
  • On the other hand, residents of these municipalities can access financial services through digital and telematic channels.

However, in some populations, face-to-face service alternatives are not available and, in other cases, digital and telematic channels are not adapted to the level of familiarity of some segments of the population with these technologies, preventing their use in practice.

Secondly, difficulties in accessing financial services may also arise in municipalities that do have a bank branch in their municipal district. In these cases, the apparent offer of face-to-face service may not be effective for different reasons, such as referral to automatic teller machines or telematic channels for queries and procedures, limited opening hours for certain procedures or the lack of service adapted to the needs of some segments of the clientele. It is therefore necessary to guarantee the personalized provision of financial services.

The service will be free of charge for financial clients, who will be able to file claims without the need for a lawyer or solicitor. In order to ensure adequate and inclusive access to this alternative dispute resolution system, the principle of personalized attention is established. To this end, the age, the characteristics of the geographical area and the level of skills of citizens will be taken into account, and face-to-face, telephone and telematic channels, adapted and accessible to vulnerable groups, will be guaranteed for filing claims.

The law consists of a preliminary title and five other titles, with a total of 61 articles, as well as six additional provisions, four transitory provisions, one derogatory provision and twelve final provisions.

Preliminary Title. General Provisions (Articles 1 to 4)

The preliminary title contains the general principles applicable to the institutional system created for the out-of-court resolution of conflicts between financial institutions and their customers, establishing its purpose and scope of application, the definitions of the concepts used throughout the text, and the legal regime applicable to it.

Complaints may be filed with the Authority by individuals or legal entities that are customers of financial services for possible breaches of rules of conduct, good financial practices and usages, as well as for abuse of clauses declared as such by the corresponding courts in relation to financial contracts.

The draft bill affects all financial institutions: credit institutions, investment services companies, insurance companies, financial credit institutions, participatory financing platforms, lenders and credit intermediaries, payment and electronic money institutions or issuers and service providers of the so-called fintech sector and crypto-asset services.

Title I. Out-of-Court Dispute Resolution System ( Articles 5 to 7)

Title I establishes the institutional system for the out-of-court resolution of conflicts between financial entities and their clients and its legal regime.

Title II. Independent Administrative Authority for the Defense of the Financial Customer ( Articles 8 to 47)

Title II creates the Independent Administrative Authority for the Defense of the Financial Customer (Chapter 1ª), establishing its organization (Chapter 2ª), legal and personnel regime (Chapter 3ª), its operating principles (Chapter 4ª), the procedure to be followed in the resolution of the conflict between the financial entity and its customer, in which a novelty compared to the previous regime is the binding nature of the resolutions for the financial entities (Chapter 5ª); and the information to be provided, including the parliamentary control of its operation (Chapter 6ª). This Authority is destined to be the mechanism through which an adequate solution can be found to the claims of financial customers against financial institutions that may arise in the future in this area.

Title III. Cooperation with other bodies (Articles 48 to 50)

Title III, contains the cooperation of the Independent Administrative Authority for the Defense of Financial Customers with the Ministry of Economic Affairs and Digital Transformation, the Ministry of Consumer Affairs and the supervisory authorities for conduct in the financial sector.

Title IV. Promotion of Financial Education (Articles 51 and 52)

Title IV regulates the promotion by the Bank of Spain, the National Securities Market Commission and the Directorate General of Insurance and Pension Funds, in coordination with the Independent Administrative Authority for Customer Protection, of financial education for customers, especially in the areas of savings, investment, loans and credit and debt management and insurance, promoting customer responsibility in the contracting of financial products.

Title V. Penalty Regime (Articles 53 to 61)

Title V establishes the sanctioning regime attributed to the Independent Administrative Authority for the Defense of the Financial Customer. Failure to comply with the Authority's binding resolutions, as well as certain other actions by financial institutions, may be subject to sanctions by the Authority. In addition, the Authority's protection system complements the conduct supervision of financial supervisors.

The resolutions will be issued in an expeditious manner, based on uniform criteria, within a period not exceeding 90 days, and will be binding on the financial institutions when the claims are for an amount of less than 20,000 euros.

Additional Provisions

The first five additional provisions regulate relevant issues to ensure that the implementation of the system is carried out in an agile, fluid manner, as an evolution from the current scheme. Thus, they deal with issues such as its financing, based fundamentally on a fee contributed by the financial sector itself, as provided for in the first additional provision. It is worth noting that the fee, in addition to contributing to the financing of the new Authority, will encourage institutions to resolve their customers' claims amicably, before they go to the Authority. The fee will be 250 euros per admitted claim and the Government may introduce modifications to the fee in the corresponding General State Budget Law.

The second additional provision, for its part, establishes the obligation for financial institutions to disseminate the system among their customers, a necessary premise for the generalization of its use. Finally, the third additional provision provides for the collaboration that, exceptionally and in the event of insufficient resources, public and private entities may provide to the Independent Administrative Authority for the Defense of Financial Customers; the fourth provision provides for the preparation of an impact report on the implementation of the institutional system for the out-of-court resolution of conflicts; and the fifth provision provides for legal advice. A sixth additional provision is also included, which regulates the obligations of the authority in the event of actions involving the execution of the Recovery, Transformation and Resilience Plan.

Transitional Provisions

The first transitory provision sets forth the rules for processing claims initiated before the entry into force of this law; the second deals with the possibility for customers who, at the entry into force of this law, were litigants in civil court proceedings on any matter whose resolution falls within the jurisdiction of the Independent Administrative Authority for the Defense of Financial Customers, to unilaterally withdraw from the legal proceedings before a judgment has been handed down, in order to submit the matter in question to the Independent Administrative Authority for the Defense of Financial Customers; the third one relating to the first term of office of the elected directors of the Governing Council of the Authority and their renewal by halves, and the fourth one conditions the effective start-up of the entity to the existence of a specific budget allocation in the corresponding General State Budget Law.

Repealing provision

The repeal, on the other hand, puts an end to the validity of article 30 of Law 44/2002, of November 22, article 31 of Law 2/2011, of March 4, on Sustainable Economy, as well as Order ECC/2502/2012, of November 16, which regulates the procedure for submitting complaints to the complaints services of the Bank of Spain, the National Securities Market Commission and the Directorate General of Insurance and Pension Funds, which until now established the legal regulation of the complaints system by the supervisors, implicitly maintaining the validity of the rest of the provisions that do not oppose the provisions of this law.

Final Provisions

The twelve final provisions introduce various legal amendments: of Law 8/1989, of April 13, 1989, on Public Fees and Prices, to include the new fee within the substantive regulation of public fees and prices; of Law 29/1998, of July 13, 1998, regulating the Contentious-Administrative Jurisdiction to attribute to the Contentious-Administrative Chamber of the National High Court the competence to hear in sole instance appeals against resolutions issued by the Authority; of Law 7/2017, of November 2, to appoint the Ministry of Economic Affairs and Digital Transformation as the accreditation authority in the financial sector; and of Law 3/2015, of March 30, regulating the exercise of senior positions in the General State Administration, to attribute the status of senior position to the persons holding the presidency and vice-presidency of the Authority;

The third, fourth, fifth and sixth provisions, which amend the main regulations governing the three financial sectors, as well as Royal Decree-Law 3/2020, of February 4, on urgent measures for the incorporation into Spanish law of various European Union directives in the areas of public procurement in certain sectors; private insurance; pension plans and funds; taxation and tax litigation, stand out among the others.Law 10/2014, of June 26, on the regulation, supervision and solvency of credit institutions, the revised text of the Securities Market Law, approved by Royal Legislative Decree 4/2015, of October 23 and Law 20/2015, of July 14, on the regulation, supervision and solvency of insurance and reinsurance companies.

Finally, in the tenth, eleventh and twelfth final provisions, the title of competence, the regulatory development and its entry into force are established.

The deadline for comments is May 12, 2022.

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Contact us for any questions you may have.

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CNMV sets crypto-asset advertising regulations

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Circular 1/2022, of January 10, 2010, of the National Securities Market Commission, regarding the advertising of crypto-assets presented as investment objects.

Its objective is to develop the rules, principles and criteria to which crypto-asset advertising activity must be subject. Specifically, it will delimit the objective and subjective scope of application, as well as the powers of the CNMV in matters of supervision and control of the advertising of cryptoassets, in accordance with the provisions of Article 240 bis of the revised text of the Securities Market Law approved by Royal Legislative Decree 4/2015, of October 23.

This Circular consists of seven rules, one final provision and two annexes.

  • The first and second rules, referring to object and definitions.
  • The third rule establishes the objective scope of application of the Circular and delimits the activities that are considered as advertising activities. On the other hand, it determines that certain professional activities ("white papers", publications on cryptoassets issued by analysts or independent commentators and which are not sponsored or promoted), or certain unique non-fungible assets or those which, due to their characteristics, are not susceptible to being the object of investment, shall not be considered as advertising activities.
  • The fourth rule establishes the subjective scope of application. It will include cryptoasset service providers when they carry out advertising activities and advertising service providers, as well as any other natural or legal person who, either on its own initiative or through third parties, carries out an advertising activity on cryptoassets.
  • The fifth rule refers to the format and content requirements to be met by advertising campaigns, as well as the information on the risks of the product being advertised that must be included in commercial communications, highlighting the requirement that advertising must be clear, balanced, impartial and not misleading, in the case of those commercial communications and advertising pieces that provide information on the cost or profitability of a crypto-asset, these must contain clear, exact, sufficient and updated information, in a manner appropriate to their nature and complexity, the characteristics of the media used and the target audience to which they are addressed.
  • The sixth rule refers to the supervisory functions of the CNMV, distinguishing between mass campaigns aimed at the general public and other advertising actions.
  • The seventh rule establishes the prior notification regime to which mass advertising campaigns must be subject. Obligated parties must provide, at least ten working days prior to the execution of the campaign, a document of prior notice of mass advertising campaign, which shall be in accordance with the model that the CNMV includes for this purpose on its website, as well as the other documentation detailed in the aforementioned rule.
  • The Annexes to this Circular contain the general principles and criteria to which advertising must conform, as well as the minimum content of the information on the nature and risks to be provided to potential investors in cryptoassets. The Board of the CNMV, in accordance with its powers, following a report from the CNMV's Advisory Committee and having heard the Council of State, has approved the Circular.

The circular will enter into force one month after its publication in the BOE.

 

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Public Hearing on the submission of payment statistics to the Bank of Spain

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Draft circular on rules for sending payment statistics to the Banco de España, in accordance with ECB Regulation (EU) 1409/2013 of November 28 and Article 67.4 of Royal Decree-Law 19/2018 of November 23.

This draft Circular establishes rules on:

  • The procedure for the submission of statistical information to the Bank of Spain by reporting agents.
  • The periodicity of the statistical information to be submitted to the Bank of Spain.
  • The power of the Bank of Spain to exempt certain reporting agents from complying with statistical reporting obligations.

The Circular consists of 6 rules, a transitory provision, a derogatory provision and a final provision. The most important contents are the following:

  • This Circular shall be applicable to payment service providers, as defined in Article 3(32) of Royal Decree-Law 19/2018, with an establishment in Spain; and payment system operators, as defined in Article 1(d) of Regulation 1409/2013, established in Spain.
  • The statistical data on fraud related to different means of payment referred to in Article 67.4 of Royal Decree-Law 19/2018 shall be understood to be provided to the Bank of Spain with the remittance by the payment service providers of the corresponding statistical information.
  • Reporting agents shall submit the statistical information specified in Regulation 1409/2013, by telematic means, to the Payment Systems Department of Banco de España, in accordance with the formats, conditions and requirements established in the technical applications for the development of this Circular.
  • The statistical information specified in Regulation 1409/2013 shall be transmitted to the Bank of Spain by the reporting agents that correspond in each case with the following periodicity: quarterly, half-yearly, annual.
  • The Bank of Spain may exempt from compliance with the statistical reporting obligations referred to in Article 3, paragraph 1, of Regulation 1409/2013 the individuals or legal entities that provide payment services under the exemption regime provided for in Article 14 of Royal Decree-Law 19/2018, provided that the conditions set forth in Article 4, paragraph 3, of said Regulation are met, and in accordance with the procedure established for such purpose in the technical applications for the development of this Circular.
  • The submission to the Bank of Spain by reporting agents of quarterly and half-yearly statistical information will commence with the submission of quarterly data for the first quarter of 2022 no later than the last working day of April 2022, and with the submission of half-yearly data for the first half of 2022 no later than the last working day of August 2022.

The public hearing will be open until January 17, 2022.

We offer regulatory advisory services in a business environment in which it is essential to have as much information as possible to support decision making. From the Regulation & Public Policy Group we are able to help manage business regulatory risk through our regulatory monitoring and regulatory intelligence services. Contact us for any questions you may have.

New Banco de España Circular published on supervision and solvency of credit institutions

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Bank of Spain Circular 5/2021, of September 22, amending Circular 2/2016, of February 2, to credit institutions, on supervision and solvency, which completes the adaptation of the Spanish legal system to Directive 2013/36/EU and Regulation (EU) No. 575/2013.

This circular regulates the establishment of the countercyclical capital buffer on one or several sectors, the limits on exposures to certain sectors and the possibility of establishing limits and conditions on the granting of loans and other transactions by institutions for operations with the private sector in Spain.

First, this circular incorporates into the countercyclical buffer framework much of the Basel Committee on Banking Supervision (BCBS) guiding principles published in November 2019. For the activation and determination of the countercyclical buffer on specific sectors, a broad set of variables are identified that have the capacity to act as early warning indicators of sectoral imbalances. In particular, the following categories of indicators are considered:

  • sectoral credit volume indicators - measures of credit growth, intensity and gaps;
  • asset price indicators -evolution and specialized imbalance measures for each sector-, and
  • indicators of sectoral macro-financial imbalances -indebtedness, net wealth, financing capacity or need, savings rate, and consumption and investment gaps, among others-.

As regards sectoral limits on the concentration of exposures, a continuity is established with the countercyclical capital buffer on one or more sectors. The only difference between these measures, in terms of the sectoral segmentation of the credit portfolio, is that two additional sectors are added to include exposures to the financial sector. In addition, concentration is defined in terms of the weight that this exposure has on equity; in this case, on the institution's CET1.

In this way, an absolute limit on exposures is not established, but depends on the institutions' resources to cover potential losses. Another difference between these measures and the countercyclical capital buffer is that the exposures to which they refer are not risk-weighted. These limits may be required for a particular sector, or for several of them together, and may be in place in conjunction with other macroprudential tools. An adjustment time period will be specified to facilitate rapid convergence towards these limits. To determine the concentration limits, the Bank of Spain will take into account, among other criteria, the evolution of the aggregate exposure in each sector, its historical weight in the total portfolio of exposures and its recent evolution, its relevance in the GDP and in the sectoral value added, and its weight in the aggregate CET1.

Regarding the setting of limits and conditions on the granting of loans and other transactions, this circular establishes different conditions that may be activated. Thus, according to the explanatory memorandum of Royal Decree-Law 22/2018, the Bank of Spain may set limits on the maximum indebtedness that a borrower may obtain:

  • given the collateral provided (loan to value);
  • to the portion of disposable income that can be used to pay its debt (debt service to income);
  • to the level of debt to income (debt to income) and;
  • to the maturity date of the transaction, among other measures.

These limits may be activated individually or jointly, and other macroprudential instruments may be in force at the same time. Furthermore, these limits may be different for certain groups, both in the case of individuals and legal entities.

In order to determine the need to activate these tools, the Bank of Spain will analyze, among other criteria, the recent evolution of credit and real activity, the characteristics of the granting of loans and multiple indicators of the degree of solvency, income and indebtedness of individuals and legal entities.

Formally, the regulation is made up of a single amending article, a final provision and an annex.

This circular shall enter into force on the twentieth day following its publication in the BOE.