FAQs about how the regulatory and disciplinary rules for supervised entities are interpreted and applied
Introduction
This section contains some FAQs on the different criteria resulting from the external enquiries resolved by the Banco de España about how the regulatory and disciplinary rules for entities supervised by the Banco de España are interpreted and applied. It does not include any criteria relating to market conduct, bank transparency and customer protection or accounting regulations.
Disclaimer
The content provided in this section has no legal effect. This section aims to disclose the interpretation criteria that the Banco de España considers appropriate for the purpose of complying with the regulatory and disciplinary rules applicable to the entities that it supervises.
These criteria are general guidelines, and their application in each case therefore requires a detailed, individual assessment of the specific circumstances. Additionally, these criteria may be subject to further reviews and updates on an ongoing basis, either as a result of enquiries made to the Banco de España or to ensure their consistency with other criteria issued by the Banco de España or by the competent European bodies or authorities. In such cases, the date of review of the relevant interpretation criteria will be indicated for reference purposes.
These criteria apply without prejudice to any rules on consumer protection, anti-money laundering, securities markets or any other relevant laws or regulations that may also be applicable to the activity in question, as well as any other civil, commercial, tax or other specific obligations or requirements in connection with the pursuit of such business or activity.
Activities subject to prior authorisation
The provision of safe custody services on a professional basis is not subject to prior authorisation from, or notification, to the Banco de España.
Lending
No. Although these activities are generally performed by credit institutions and specialised credit institutions (establecimientos financieros de crédito), they may be carried out by other (natural or legal) persons, and prior authorisation from the Banco de España is not necessary.
Payment services
General questions
Yes. Account information services include consolidating the information on the payment accounts held by payment service users with other payment service providers, including credit institutions established in other EU Member States.
Yes. Account information service providers may carry out other business activities, subject to the relevant applicable legislation.
Sensitive payment data are those that may be used to commit fraud, including personalised security credentials. For the purposes of account information services, the name of the account owner and the account number are not considered sensitive payment data.
A payment institution can receive funds from a customer in a payment account for the purpose of executing future payment transactions, including as yet unspecified payment orders. In any event, the payment institution must safeguard such funds, pursuant to Article 21 of Royal Decree-Law 19/2018, and may not hold them longer than is strictly necessary to provide the payment service to the customer.
No. The amounts are not relevant for the purposes of classifying such activities as payment services, in accordance with the payment service regulations.
Pursuant to Article 3(1) of Royal Decree-Law 19/2018 of 23 November 2018, “direct debit” means a payment service for debiting a payer’s payment account, where a payment transaction is initiated by the payee on the basis of the consent given by the payer to the payee, to the payee’s payment service provider or to the payer’s own payment service provider.
Under Article 3(2) of Royal Decree-Law 19/2018, “acquiring of payment transactions” means a payment service provided by a payment service provider contracting with a payee to accept and process payment transactions, which results in a transfer of funds to the payee.
Finally, pursuant to Article 3(45) of Royal Decree-Law 19/2018, “credit transfer” means a payment service for crediting a payee’s payment account with a payment transaction or a series of payment transactions from a payer’s payment account by the payment service provider which holds the payer’s payment account, based on an instruction given by the payer.
Professional cash delivery services to a commercial establishment, where such cash is held in its bank account, does not require prior authorisation from the Banco de España, provided that the service provider does not carry out any foreign exchange transactions pursuant to Article 2 of Royal Decree 2660/1998 of 14 December 1998 on foreign exchange transactions in establishments open to the public other than credit institutions or execute payment transactions pursuant to Article 3(26) of Royal Decree-Law 19/2018.
The above applies without prejudice to the obligations under Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting and Law 10/2010 of 28 April 2010 on the prevention of money laundering and terrorist financing.
Exclusions
Activities solely entailing the collection of payments from end users, in the name and on behalf of professional service providers, are not sufficient grounds for exempting a company from payment services legislation under the exclusion for commercial agents. To qualify for such an exclusion, commercial agents must be authorised to negotiate or conclude the sale of goods or services on behalf of only the payer or only the payee.
The company would not be able to apply the exclusion for commercial agents, as it cannot negotiate or conclude the sale of tickets on behalf of the event organisers.
Yes. The company has an agreement with the landlord to negotiate or conclude, for the sole account of the latter, the lease agreement with the tenant.
No. Royal Decree-Law 19/2018 does not apply to services where cash is provided by the payee to the payer as part of a payment transaction following an explicit request by the payment service user just before the execution of the payment transaction through a payment for the purchase of goods or services.
Article 4(k)(1) of Royal Decree-Law 19/2018 may be applicable, provided that the use of the gift cards is limited to the company’s online store, its physical stores or its franchise stores. Nevertheless, the company must apply technical and contractual restrictions, to limit the use of the gift cards to the purchase of clothing in such stores.
The provision of account activity and account balance services for a payment account by means of ATMs are not payment services. As a consequence, ATM operators are not required to apply for authorisation to exclusively provide such services under Article 5 of Royal Decree-Law 19/2018.
Agents of payment institutions
Joint ownerships are not legal entities. They cannot be appointed as agents of payment institutions, nor can they be entered into the Banco de España’s special agents register.
Safeguarding requirements
Yes. The Banco de España must be notified of the existence and amount of any surpluses. This obligation is not applicable to the funds received from payment service users or through another payment service provider for the purpose of executing payment transactions.
Yes. Electronic money institutions can safeguard funds received from their customers in exchange for electronic money issued or for the rendering of payment services not linked to such issuance, in accounts in an EU credit institution without a permanent establishment in Spain.
Representative offices of credit institutions
Pursuant to Article 19 of Royal Decree 84/2015 of 13 February 2015 implementing Law 10/2014 of 26 June 2014 on the regulation, supervision and solvency of credit institutions, representative offices are structurally and functionally dependent establishments belonging to a credit institution authorised in another country, such that this office’s activity consists of providing information or commercial services relating to banking, financial or economic matters, that serve as a material support for the provision of services without an establishment.
Representative offices may not render lending or credit services, take deposits or act as financial intermediaries, nor may they provide any type of banking service except the channelling of third party funds to their parent credit institutions.
Accordingly, the activities of representative offices must be strictly limited to providing information, commercial services or material and documentary support. Thus, representative offices may receive, and deliver, documentation and information from, and to, its credit institution and carry out purely marketing and commercial activities.
In any case, representative offices must carry out their activities ensuring that customers who are resident in Spain are fully aware that the banking services are being provided in Spain by the credit institution to which the representative office belongs.
Cryptoassets
Investing in cryptoassets does not require prior authorisation from the Banco de España or prior registration with the special register of providers engaged in exchange services between virtual currency and fiat currencies and custodian wallet providers, referred to in the Second Additional Provision of Law 10/2010 of 28 April 2010 on the prevention of money laundering and terrorist financing, provided that this activity is carried out by the natural person acting exclusively in their own name and on their own account, for managing their own assets without offering services to third parties.
In any case, investments in cryptoassets involve significant risks for consumers, as highlighted in the following press statements and warnings from the Spanish National Securities Market Commission (CNMV), the Banco de España and the Directorate General of Insurance and Pension Funds (DGSFP):
- Joint press statement by the CNMV and the Banco de España on “cryptocurrencies” and “initial coin offerings” (ICOs), dated 8 February 2018
(176 KB); - Joint press statement by the CNMV and the Banco de España on cryptocurrency investment risks, dated 9 February 2021
; and - Joint press statement by the Banco de España, CNMV and DG de Seguros on the warning by European financial regulators regarding the risks of crypto-assets, dated 17 March 2022 (376 KB).
Appraisal companies
Corporate purpose
The issuance of energy performance certificates by appraisal companies goes beyond the corporate purpose envisaged in Article 3(1)(c) of Royal Decree 775/1997 of May 30 1997 on the legal regime for the official recognition of appraisal services and companies, which provides that, among the requirements for obtaining and retaining official recognition, these companies must “statutorily limit their corporate purpose to the valuation of all types of goods, undertakings or assets”. One can therefore conclude that they are not permitted to engage in such activities.
Corporate form
It is not a regulatory requirement for the company to be newly established in order to be officially recognised as an appraisal company.
Electronic money institutions
This average value is calculated by applying the average spot exchange rate for each day in the reference period to the daily balance in that period.
Specialised lending institutions
Article 123 CRR does not apply to reverse mortgage exposures, since the debt repayment in a reverse mortgage does not fall due until the death of the borrower, who therefore does not have to pay back any amount owed during the life of the operation. The risk − the exposure − is actually secured by the property used as collateral for the loan. For this reason, Article 123(a) of the CRR, which requires the exposure to be to one or more natural persons or to a small or medium-sized enterprise (SME), would not be met and the risk weight of 75% would not apply. Generally, and in accordance with the European Banking Authority's Q&A 4934 on the prudential treatment of residential reverse mortgages, a 100% risk weight should be applied, in line with Article 124(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (CRR).