Amendment of legislation (payment and securities settlement systems)

The new Law also extends to interoperable systems the legal regime under Law 41/1999 for
insolvency of a system participant, the procedures established and the effects on transfer orders
and on collateral. It should be noted that the opening of an insolvency proceeding against
a participant or operator of an interoperable system does not prevent the funds or securities
available in that participant’s liquidation account from being used to meet its obligations in that
system during the business day in which the insolvency proceeding was opened.
As regards Royal Decree-Law 5/2005, credit claims18 are included as part of the collateral
that can be used in financial transactions. However, credit claims in which the debtor is a
consumer, a micro enterprise or a small enterprise may not be used as financial collateral,
save where the collateral taker or the collateral provider of such credit claims is one of the
institutions listed in Royal Decree-Law 5/2005.19
It continues to be legally required that financial collateral agreements be in writing, or in a
legally equivalent form, with no further requirement for their creation, validity, perfection,
priority, enforceability or admissibility as evidence. The creation of the security interest shall
require, in addition to registration of the collateral agreement, the provision of the asset
designated as collateral, and registration of such provision in writing or in a legally equivalent
form. However, in the case of credit claims, the inclusion in a list of claims submitted in
writing, or in a legally equivalent manner, to the collateral taker is sufficient to identify the
credit claim and to evidence the provision of the claim provided as financial collateral between
the parties and against the debtor or third parties. A debtor that pays before being
notified of the provision of a security interest shall be released from the related obligation.
Debtors of credit claims may validly waive, in writing or in a legally equivalent manner: 1)
their rights of set-off vis-à-vis the creditors of the credit claim and vis-à-vis persons to
whom the creditor assigned, pledged or otherwise mobilised the credit claim as collateral;
and 2) their rights arising from banking secrecy rules.
Regarding the rights of substitution and disposal of collateral provided for in Royal Decree-
Law 5/2005, the right of disposal shall not apply when the collateral is a credit claim and the
right of substitution shall not apply when the collateral is a non-fungible credit claim.20
In the event of enforcement of collateral arrangements by the collateral taker due to non-compliance
with the obligations or any enforcement event agreed by the parties, when the collateral
is in the form of credit claims, these shall be realised by sale or appropriation and by setting
off their value against, or applying their value in discharge of, the relevant financial obligations.
Finally, the rest of the text of Royal Decree-Law 5/2005 is revised so as to correct and
clarify other matters not relating to the transposition of the directive, and to resolve some
problems of legal uncertainty.
In addition, Law 22/2007 of 11 July 2007 on the distance marketing of consumer financial
services was amended. Specifically, the consumer’s prior consent is required for a supplier
to use automated calling systems without human intervention or fax messages as a
means of distance communication.
The Law came into force on 1 July 2011, except for the amendment to Law 22/2007, which
came into force on 13 April 2011.