Publicador de contenidos
Back to 2013_05_30_ECO_Fundación Caja Navarra_profesional o politizada
María Amparo Salvador Armendáriz, ProfesoraTitular de Administrative Law (acr). University of Navarra
Fundación Caja Navarra: professional or politicized?
In the author's opinion, the solution to be adopted must respect the historical competences of the Comunidad Foral in the framework of the basic state law on the subject
María Amparo Salvador.
Last Wednesday, the PSN presented in the Parliament of Navarre a proposal of Foral Law to regulate the governing bodies of the foundations of special character. Foundation of special character" is the legal figure that currently houses the "heirs" of the old Savings Banks. These have lost their status as credit entities and have become mere shareholders -in varying percentages- of the so-called instrumental banks. This is the case of Caja Navarra, with 1.2% of Caixabank and a not inconsiderable, due to its legal consequences, right to a seat in its committee of Administration. This socialist initiative comes to coincide in time with the last procedure of the Government of Navarra for the approval of the new statutes of the Fundación Caja Navarra as a ¿foundation of special character". This procedure initiated by the Government only needs the agreement of the Ministry of Economics. With this approval, the process opened in January of this year will culminate, when the Vice-President of the Government of Navarra proceeded to appoint a management committee, replacing the previous committee of Administration, a body that, by virtue of Law 9/2012, of November 14, had been automatically dissolved.
In the aforementioned proposal for a Foral Law, the aim is to transfer to the Parliament of Navarre -through the appointment of the majority of the trustees (6 out of 11)- the control of the Caja Navarra Foundation. Apart from the political assessments -few matters have raised so much concern in Navarre's society as this CAN issue-, this proposal gives rise to the following legal reflections.
The state regulatory framework that currently governs the operation of savings banks and special foundations is in the process of undergoing profound changes.
profound changes. On May 3, the committee de Ministros announced the approval of the project de Ley de Cajas de Ahorro y Fundaciones Bancarias (Savings Banks and Banking Foundations Law). If this rule is finally approved -which is more than likely-, the Spanish banking system will definitively say goodbye to the model of Savings Banks that we have known and that has ended so sadly.
The transformation of the old savings banks into banking foundations (the name that in the future will be adopted by the so-called "special character" banks) is a requirement included in the Memorandum of Understanding agreed between Spain and the EU, a requirement that conditions the attendance program for the recapitalization of our financial sector. In the framework of this agreement, Spain has assumed the commitment to "clarify the role of the savings banks as shareholders" of the instrumental banks and to "propose measures to consolidate the rules of suitability ¿ and requirements of incompatibility of the governing bodies of the former savings banks". It is to this framework, national and European, that the model of the governing bodies of the future Fundación Caja Navarra will have to be adapted -with the particularities of the region-. The main idea that inspires the future State Law regarding the new banking foundations is to avoid, as far as possible, the interference of political criteria in the management of the banks that are the heirs of the old savings banks. To this end, it is foreseen to reinforce in the persons of the trustees, the required requirements of commercial and professional honorability, as well as suitability and political independence.
Thus, the model of board of trustees that finally governs the CAN Foundation is of special relevance. At first sight, the model promoted by the Government of Navarre seems to have taken more into account the framework of the European and State rules and regulations , by establishing strong restrictions to reach the condition of trustee, while in the case of the proposal of the PSN it seems to be designed a model of trustee compatible with the condition and political representation.
The second aspect to be considered is framework of the regional powers in subject of savings banks, which, I understand, the future CAN Foundation is heir to. As the TSJNav. has recognized, the Lorafna includes a historical and singular foral skill in subject of Savings Banks. This skill has determined in the past the particular legal regime of Caja Navarra which is manifested, among other aspects, in the agreed nature -between the Government of Navarra and the Ministry of Economics, with the participation of the Bank of Spain- of the procedure for the approval and modification of the statutes of the entity. From this perspective, the initiative of the PSN would imply a rupture of the model expressly included in the Lorafna (without prejudice to the special regime of Agreements in this subject", art. 56.f ) and the possible loss of one of our historical competences.
Undoubtedly, it is premature to venture the result of the open process of transformation of the old -and several times modified- Caja Navarra into the future Fundación Caja Navarra. However, in my opinion, the prevailing criterion should not be the interest in recovering lost spaces of power. The solution adopted must respect the historical competences of the Comunidad Foral de Navarra in the framework of the basic state law in the subject. These will have to be the legal coordinates that frame a solution whose only goal is to guarantee the fulfillment of the foundational purposes of a charitable-social nature that shaped the creation of the Caja de Ahorros de Navarra in 1921, since the financial activity has been entrusted to the instrumental bank.