Real Decreto 1180/2023 sobre sistemas de indemnización de los inversores, y de instituciones de inversión colectiva.

The Royal Decree 1180/2023, enacted on December 27, 2023, brings about several adjustments to the Spanish financial regulatory framework, primarily focusing on modifications to the Investment Guarantee Fund (FOGAIN) and the implementing regulations for Law 35/2003 on collective investment schemes. The amendments aim to enhance the efficiency, competitiveness, and stability of the financial sector, aligning it with European directives while addressing specific challenges within the Spanish context.
The decree introduces changes to the requirements for the initial capital of financial advisory companies (EAFs) in accordance with IFD. The new prudential regime mandates an increased initial capital of 75,000 euros for EAFs, diverging from the previous 50,000 euros requirement or the option of holding liability insurance. The directive prohibits financial services companies from substituting insurance for the initial capital. Recognizing the potential impact on smaller EAFs, which form a highly fragmented subsector in Spain, the decree establishes a national regime allowing EAFs to continue operating with insurance, despite the EU directive’s inflexibility. This national approach is crucial for maintaining the viability of smaller EAFs facing challenges in the post-implementation scenario of MiFID II.
Moreover, the decree addresses changes in the contribution system to FOGAIN. The modifications focus on establishing a more proportional connection between the contributions made by entities and the risks they pose to the overall system. The amendments introduce a formula determining the threshold for a progressive reduction in contributions, along with adjustments to the calculation formula triggering the suspension of certain contributions. To facilitate a smooth transition, a voluntary and progressive adaptation regime is introduced for entities aligning with the new contribution system.
In addition to the changes in FOGAIN contributions, the decree also incorporates adjustments to the regulations governing collective investment schemes. These modifications aim to improve the competitiveness and functioning of these institutions in Spain by facilitating, amongst others, the marketing of investment funds.. The adjustments include changes to the fee structure aligned with ESMA guidelines, as well as modifications in the regulation of custody and administration fees for funds distributed through omnibus accounts.
Furthermore, the decree aligns Spanish regulations with European standards by eliminating quantitative limits on collective investment schemes‘ investments in instruments with voting rights on issuers. It introduces new provisions regarding the dissolution and liquidation of investment funds, allowing payments on account while the right of redemption is suspended. The decree also eliminates the requirement for a liquidity coefficient for collective investment institutions.