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In brief

The recent publication of Circular 2/2020, of the National Securities Market Commission (“CNMV”) on the advertising of investment products and services (“Circular 2/2020”) on November 13, 2020 includes new  rules in terms of advertising of investment products, adding clarifications that go beyond the MiFID package. These new rules affect not only Spanish entities but also foreign financial institutions providing services in Spain under freedom to provide services or right of establishment, including branches and agents.

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Obliged entities

The new rules will be applicable to the following entities:

(i) Investment firms;

(ii) Credit institutions;

(iii) Management companies of collective investment schemes  and management companies of closed-end collective investment schemes;

(iv) Crowdfunding platforms;

(v) EU Member State-authorized entities or third country entities of (i), (ii) and (iii) above when carrying out services in Spain by way of a branch, Spain-based agent or under freedom to provide services;

(vi) Any interested party in a public offer for the acquisition of securities or in a public offer for the sale or subscription of securities; and

(vii) Any entity that carries out, at their own initiative or on behalf of third parties, advertising activities aimed at potential investors resident in Spain.

Please note that entities (v) when acting under freedom to provide services, (vi) and (vii) are not subject to all the provisions set forth under Circular 2/2020 (i.e., those entities are exempted from some obligations).

Activities within the scope

Circular 2/2020 will be applicable to advertising activity addressed to Spain-domiciled investors or potential investors in relation to the following products and services:

(i) Financial instruments;
(ii) Investment services or activities and ancillary investment services;
(iii) Management of UCITS, AIF and securitization funds;
(iv) Structured deposits;
(v) Activities carried out by crowdfunding platforms; and
(vi) Any other financial products or services subject to the supervision of the CNMV.

Circular 2/2020 excludes from its scope (a) corporate advertising campaigns when providing general information; (b) documentation or information provided in presentations to analysts or institutional investors, made by representatives of entities, issuers or insurers during the placement period for the purpose of ascertaining the interest of institutional investors in an offering; (c) periodic publications issued by analysts and experts as defined in the Commission’s Delegated Regulation (EU) 2016/958 on financial instruments or services; (d) pre-contractual and contractual information or warnings on the characteristics and risks of the products or services provided to Spain-based investors prior to contracting products or services or carrying out a transaction on such products; and (e) documentation or information on Alternative Investment Funds provided to potential professional investors based or registered in the EU in order to verify their interest.

Advertising rules

Circular 2/2020 incorporates the developing rules governing advertising activity covering:

(i) Content and format of advertising messages;
(ii) Approval of a commercial communication policy and internal procedures and controls by the management body;
(iii) Internal record keeping obligations; and
(iv) The possibility of voluntarily joining advertising self-regulation systems in order to provide evidence of internal control compliance.


Supervision of advertising activity

The CNMV, in the exercise of its supervisory powers, may require obliged entities to provide specific information on advertising campaigns or specific ads in order to assess compliance with the requirements set forth under Circular 2/2020 and Spanish Order EHA/1717/2010, which also regulates financial services advertising.

Additionally, the CNMV may require suspension or rectification of marketing campaigns that do not comply with the provisions of Circular 2/2020, without prejudice to the application, where appropriate, of the sanctioning regime provided for in the applicable rules for each subject entity.

Entering into force

Circular 2/2020 will enter into force three months after its publication (i.e., February 13, 2021), with the exception of record-keeping obligations, which shall enter into force six months after the Bank of Spain publishes the record-keeping technical specifications, which would also apply to the CNMV-supervised entities subject to Circular 2/2020.


Paula De Biase heads the Fintech and Financial Services Regulation (FSR) Group in Spain, including also the Funds practice. She also sits in the Global FSR Steering Committee of the Firm and acts as co-lead of the FSR practice for the EMEA region.
With more than 15 years' experience in financial regulation, she has advised national and international clients in various areas of the financial services sector: payment services, fund management, investment services, consumer credit and other banking and insurance services, including Fintech initiatives and other online and mobile solutions.
Paula has taught Banking Law in the Master's programmes of several universities: the International Legal Consultancy degree at IE; the International Law, Foreign Trade and International Relations degree at ISDE; the Business Law degree at the Universidad de Navarra, and the Venture Capital and Entrepreneurship degree at INCARI/Rafael del Pino Foundation.
She is individually ranked in Chambers 2023 for FinTech and Financial Regulation. She is described in these publications as "an excellent lawyer: she is expert in all things FinTech, regulatory and payments. She has a deep understanding of financial regulation in Spain and has considerable experience dealing with regulatory authorities there. Her advice is always considered, comprehensive and most importantly practical and commercially focused."