Digital markets, funding and payment services
Collective investment vehicles are mainly regulated under Law 35/2003 of 4 November on collective investment schemes and Law 22/2014 of 12 November on venture capital and other closed-ended investment schemes and management companies of the closed-ended investment schemes. There is no specific law for fintech collective investment vehicles.
As opposed to the rest of fintech, and as indicated in Section II, crowdfunding and crowd-lending platforms are subject to Law 5/2015, which, for the first time in Spain, regulates the activities of these platforms. These activities are currently subject to obtaining an authorisation that is granted by the CNMV (with the intervention of the BoS), but this authorisation regime will probably change as a result of the implementation of the Proposal. In this regard, the ESMA will be the relevant supervisory authority that may grant authorisations for the provision of crowdfunding and crowd-lending services. Peer-to-peer lending that is not performed through a crowd-lending platform is not regulated in Spain.
Spanish consumer lending regulations are applicable when a fintech is engaged in a credit transaction with a consumer. Loans and financings may be assigned by way of an assignment contract and it is very common to assign entire portfolios of loans. Such loans and financings may only be traded if they are converted into a security, which is assigned to a special purpose vehicle (SPV). Such SPV may then issue securities backed by the credit rights arising from loans. The above is the typical structure in securitisations.
The Spanish legal regime on securitisation was amended by Law 5/2015. The assignment of assets to a securitisation fund should comply with the following requirements:
- the transferor and, as the case may be, the issuer of the securities assigned to a securitisation fund must have audited their annual accounts for the last two financial years prior to the incorporation of the fund, except in certain cases;
- the transferor must disclose in its annual reports the current and future assignment of credit rights that impact each year;
- the assignment of the assets to the fund should be formalised in a contract; and
- the management company of the securitisation fund should submit a document to the CNMV for each asset assignment containing certain information on the assets.
We expect that Law 5/2015 will be further amended as a consequence of the publication of Regulation (EU) 2017/2402 and Regulation (EU) 2017/2401, which lay down a general framework for securitisation and create a specific framework for simple, transparent and standardised securitisation within the European Union.
Under Spanish law the rendering of payment services on a professional basis may only be conducted by entities authorised for such purposes. As indicated in Section II, the BoS is the competent authority to grant this authorisation.