SPAIN Law and Practice Contributed by: Antonio Paredes, Carlos Saldaña, Manuel Martínez and Román Mejías, ZADAL
term driver of rule changes affecting private credit funds active in Spain. Reforms Affecting Foreign Private Credit Lenders For foreign private credit lenders lending directly to Spanish corporates, the environment should remain relatively workable because corporate lending is not generally a regulated activity, and Spain’s framework is fundamentally open to cross-border financing. The more meaningful “harder v easier” shift is for foreign managers using fund structures (especially those mar - keting into the EU/Spain or running loan-origination strategies), who should expect more governance, policy, liquidity and disclosure-related requirements under AIFMD II – potentially raising operational com - plexity, but also increasing legal certainty via a more harmonised EU rulebook. 2. Regulatory Environment 2.1 Licensing and Regulatory Approval Licensing to Lend Into Spain As a general rule, Spanish law does not require a banking licence to grant loans into Spain, including by foreign lenders, because lending is not a reserved activity. Licensing and prudential supervision typi - cally become relevant only where a lender carries out reserved banking activities on a habitual basis in Spain, most notably taking repayable funds from the public (deposit-taking), which is limited to authorised credit institutions supervised by the Banco de España (and, where applicable, the ECB). EU credit institu - tions may lend into Spain under passporting without needing a separate Spanish licence. Taking and Enforcing Security The main qualification relates to certain consumer- facing segments, where specific registration or super - vision requirements can apply (for example, profes - sional residential mortgage lending within the scope of Law 5/2019). Separately, no licence or regulatory approval is generally required for Spanish or foreign lenders to take, hold or enforce security over Span - ish assets, but local formalities matter: security often requires notarial execution and, for certain assets such as real estate mortgages, registration to be effective
against third parties and to benefit from streamlined enforcement. 2.2 Regulators of Private Credit Funds Core Supervisor for Fund-Based Private Credit In Spain, the primary regulator for private credit activ - ity carried out through funds and fund managers is the CNMV ( Comisión Nacional del Mercado de Valores ). In practical terms, where private credit is originated by an AIF/AIFM platform (direct lending funds, pri - vate debt funds, etc), CNMV supervision is mainly felt through authorisation/registration, ongoing conduct and disclosure requirements, and oversight of mar - keting to investors in Spain. Prudential Supervisors Where the Lender is a Bank Where private credit activity is conducted by credit institutions (or bank-owned platforms), the relevant supervisors are the Banco de España and, for signifi - cant institutions, the European Central Bank under the Single Supervisory Mechanism (SSM). This matters because the same transaction can sit in a “private credit” commercial context but still be originated by a regulated bank subject to capital, governance and supervisory expectations. 2.3 Restrictions on Foreign Investments General Rule Spain does not impose a general restriction on foreign investors subscribing to private credit funds. In most cases, the real “filters” are AML/KYC and sanctions checks, plus whatever eligibility rules the fund applies (typically targeting professional investors). Main Practical Constraints Restrictions usually arise from marketing and distri - bution rules (how the fund is offered in Spain and to whom), rather than from the investor being foreign. In addition, Spain’s foreign investment screening can become relevant in limited cases where a non-EU/ EFTA investor (or a vehicle ultimately controlled by one) effectively acquires 10% or control of a Spanish target in a strategic sector – this is more often an issue at the portfolio investment level than for a standard LP commitment.
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