The Government approves the preliminary draft law creating the Independent Administrative Authority for the Defence of Financial Customers

According to the government, the creation of the Authority will increase the protection of citizens as financial customers, who will be able to submit their complaints free of charge in the banking, insurance and financial investment fields to a single body, which will result in a better analysis of conflicts and a faster service. In this way, this new institution will centralise the current complaints services of the Bank of Spain, the National Securities Market Commission and the Directorate General for Insurance and Pension Funds.

More protection for clients

Among the main new features incorporated into the draft following the Public Hearing is the extension of the entities that may be subject to complaints by customers.

Likewise, the role of the Codes of Good Practice and self-regulation in the financial sector has been strengthened, assimilating them to rules of conduct that will be mandatory once they have been signed, and may be subject to complaints in the event of non-compliance. In this respect, financial supervisors are obliged to draw up and update an Annual Compendium of Good Practices and Financial Uses, which will be taken into account by the Authority when resolving conflicts.

It also extends the type of complaints that may be lodged, which may or may not have financial content, to cover claims, for example, for lack of information or for failure to open a basic payment account, as well as for possible breaches of financial sector self-regulation.

In this regard, it is clarified that when the complaint has a financial content, binding decisions may determine the refund of amounts duly collected plus interest for late payment. For claims without financial content, the Authority may award the customer compensation of between €100 and €2,000, depending on the nature, scope and particular circumstances of the claim.

In addition, the instruments to ensure financial inclusion are strengthened through personalised attention, particularly for the elderly, the disabled and vulnerable groups who wish to file a complaint. To this end, a simple and accessible form will be drawn up for citizens to detail their complaints, which can be submitted in person, by telephone or telematically.

Finally, as a novelty and with the aim of favouring all possible alternatives for the parties, the possibility is expressly included for the parties to voluntarily submit to a conciliation or mediation mechanism once the procedure has been initiated, even if the customer has already initiated the complaint procedure before the Authority.

Functioning of the Financial Ombudsman Authority

Complaints may be lodged with the Authority by natural or legal persons who are customers of financial services for possible breaches of rules of conduct, good financial practices and usages, as well as for the unfairness of clauses declared as such by the corresponding high courts, or, where appropriate, have been registered as such in the Register of General Contracting Conditions, in relation to financial contracts.

Decisions will be handed down swiftly, in accordance with uniform criteria, within no more than 90 calendar days of the file being complete, and will be binding on financial institutions when the claims are related to conduct and customer protection regulations, or to abusive clauses declared as such by the high courts and for an amount of less than €20,000.

In all other cases, when the resolutions are not binding because they are not related to rules of conduct or are for an amount of more than €20,000, they will have the value of an expert report if they are decided to be used in legal proceedings in defence of their interests.

Failure to comply with the authority’s binding rulings, as well as late or defective compliance, may be subject to sanctions by the authority.

The new Authority will be financed by the payment by financial institutions of a fee of €250 for each admissible complaint. This is a fee per activity and service so that, in addition to contributing to the financing of the institution, it will encourage institutions to resolve complaints in advance.

In order to prevent abuse, the Authority may impose fines of up to €500 in the event of repeated rejection of the same claimant over a period of one year for complaints that prove to be unfounded.

Structure of the Financial Ombudsman Authority

The Financial Customer Ombudsman Authority, which will be attached to the Ministry of Economic Affairs and Digital Transformation, will have functional autonomy and independence and will be financed, when fully operational, by fees collected from admissible complaints.

At the organisational level, the Authority will have a Chairperson and a Deputy Chairperson who will be appointed by the Council of Ministers for a non-renewable term of six years.

The Authority will be organised into Directorates-General and Sections, which will be the collegiate bodies responsible for resolving complaints. In addition, the members of the Board will be given a high degree of independence.

In addition, in order to guarantee the homogeneity of criteria in the resolution of complaints, the existence of a question of unification of criteria to be resolved by a Special Section is envisaged.

Finally, the Authority will have an Advisory Committee, which will be an advisory body and will be made up of the Chairman and Vice-Chairman of the Authority, as well as twelve members representing the Consumers and Users Council, the employers’ associations in the financial sector and representatives of the autonomous communities and cities, and two independent experts from the academic world with knowledge of financial matters.

The creation of this Authority complements the institutional system for resolving complaints in the financial sphere, which is currently organised on three levels: firstly, the customer care services of the financial institutions themselves; secondly, the out-of-court complaint resolution services of the supervisory bodies; and finally, the judicial bodies.

If you have any doubts on this subject, please do not hesitate to contact us, either by telephone to Carles Monfort Codina or by e-mail to cmc@btsasociados.com. We will be delighted to help you.