ANNEX I UNACC (NATIONAL CREDIT COOPERATIVE SOCIETIES UNION) CUSTOMER OMBUDSMAN SERVICE REGULATION

Transcription

1 ANNEX I UNACC (NATIONAL CREDIT COOPERATIVE SOCIETIES UNION) CUSTOMER OMBUDSMAN SERVICE REGULATION JULY 2004

2 SECTION I CONCERNING THE NATIONAL CREDIT COOPERATIVE SOCIETIES UNION CUSTOMER OMBUDSMAN INSTITUTION CHAPTER 1 APPLICABLE LEGISLATION, APPROVAL OF THE REGULATION AND INDEPENDENT STATUS OF THE SERVICE DIRECTOR Article 1. The present Regulation implements and regulates the Customer Ombudsman Institution of Credit Cooperative Societies forming part of the National Union of Credit Cooperative Societies (hereinafter, the UNACC ) under the name Customer Ombudsman Service The Customer Ombudsman Service is governed by Law 44/2002 of November 22 nd 2002, with respect to the Financial System Reform Measures, the Regulation governing the persons acting as Ombudsmen for Customers receiving financial services, approved by Royal Decree 303/2004 of February 20 th, 2004; Order ECO/734/ 2004 of March 11 th 2004, on the departments and services providing customer service in banks and savings banks, and other additional applicable provisions. The Regulation was approved by the Governing Council of the UNACC at its meeting held on June 9 th The Credit Cooperative Societies (hereinafter, the Savings Banks ) forming part of the UNACC Customer Ombudsman Service on the date of approve of the present Regulation are those listed at the end of the present Regulation. These Savings Banks must ratify their membership of the UNACC Customer Ombudsman Service through a resolution adopted by their Governing Councils, approving it as an integral part of their Customer Service Regulation, and notifying this to the UNACC. When mention is made to the Savings Banks, reference is also understood to be made to those Credit Entities in which Savings Banks that are members of the UNACC hold shares, if these Entities apply to be included in this Service, with express submission to the contents of the present Regulation. 2

3 Article 2. The objective of the Customer Ombudsman Service is to safeguard the rights and interests of customers of the Savings Banks from all actions affecting them that may be deemed contrary to the guidelines of transparency and customer protection, and proper banking practises and customs, within the limits and based on the requirements established in the present Regulation. Article 3. Customers from any of the Savings Banks shall have the right to submit any complaint they consider necessary to the knowledge and decision of the Customer Ombudsman Service, on the matters and subject to the guidelines set forth in the present Regulation. For the purposes foreseen in this Regulation, complaints are considered all those presented by customers of Savings Banks aimed at restoring their interests or rights, and which demonstrate the existence of specific facts referring to actions or omissions on the part of entities which damage the interests or rights of those making the complaint due to failure to comply with agreements, guidelines on transparency and customer protection or proper banking practices and customs. Article 4. The Customer Ombudsman Service director shall be the Legal Advisor of the UNACC, who is expressly designated to holder this office the Governing Council. The Service Director shall be a commercially honest and professional person, with sound knowledge and experience in exercising his functions under the terms set forth in paragraph one of Article 5 of Order ECO/734/2004, of March 11th 2004, on Customer Service Departments and Customer Ombudsman Services in banks and savings banks. The Service Director shall act independently from the Savings Banks and with total autonomy in terms of the criteria and directives to be applied in exercising his functions. In this regard, the Service Director may not be associated in any way with the Savings Bank against which the complaint he is responsible for settling is being made, based on a labour relationship or any formula of paid work, in order to guarantee the objectivity of his actions in processing the complaint. The designation of the Customer Ombudsman Service Director shall be notified to the Banking Services Customer Representative and to the Bank of Spain. 3

4 CHAPTER II CONCERNING THE TERM OF OFFICE AND CAUSE FOR TERMINATION Article 5. The appointment of the Customer Ombudsman Service Director shall have a term of 4 years which may be renewed for equal periods as often as considered necessary by the UNAC Governing Council. Article 6. The Customer Ombudsman Service Director shall resign from his post in the event of any of the following situations: a) Due to the expiry of the term of office for which he was designated, unless his term of office is renewed. b) Due to the loss of any of the requirements conditioning the eligibility of that person in accordance with this Regulation and the applicable legislation. c) Due to the death or incapacity of that person. d) Due to having been sentenced under criminal law, based on a firm ruling. e) Due to that person being declared insolvent or not rehabilitated to hold office. f) Due to the resignation of that person g) Due to the decision of the UNACC Governing Council. Once the post is vacant, and subject to compliance with the decisions already taken, the Governing Council shall designate a new Service Director no later than the thirty days immediately following the date on which the vacancy occurred. 4

5 CHAPTER III CONCERNING THE CUSTOMER OMBUDSMAN SERVICE RESPONSIBILITIES Article 7. The responsibilities of the Customer Ombudsman Service under the terms set forth in article 2 of the present Regulation, are to safeguard the rights and interests of Savings Banks customers arising from their relations with the same, and to ensure that these relations are at all times in keeping with the principles of goof faith, fairness and mutual trust. In developing its function, the Customer Ombudsman Service is responsible for the following: a) Knowing and settling all complaints made by customers in relation to the assumptions foreseen under article 10 of this Regulation. b) Presenting, formulating and presenting to the UNACC or if applicable, the Governing Council of any of the Savings Banks, its recommendations and proposals, on all aspects on which it holds authority, and which, in its opinion, may contribute to strengthening the positive relations and mutual trust that should exist between the Savings Banks and their customers. 5

6 CHAPTER IV CONCERNING THE OBLIGATIONS OF THE UNACC AND SAVINGS BANKS IN RELATION TO THE CUSTOMER OMBUDSMAN SERVICE Article 8. The UNACC shall take all necessary steps to ensure that the Customer Ombudsman Service carries out its functions in the best possible manner, in particular with a view to safeguarding the objectivity of its functions. In particular, the UNACC shall do the following, through its General Secretariat: a) Provide an annual expense budget for the normal operations of the Service. b) Assist the Service in all matters leading to the correct and efficient performing of its functions, providing it with any information it requires that needs to be provided by the UNACC. c) Inform the Savings Banks customers of the existence of this Service, and the contents of this Regulation. In particular, this information shall be provided by means of the publication of this Regulation and its Annex 1 in the UNACC website ( together with the guidelines on transparency and banking services customer protection. d) Receive and evaluate all complaints made in relation to the actions and operations of the Customer Ombudsman Service, taking the decisions it deems pertinent, and in particular, all decisions for the purposes of the provisions laid down in article 6. Article 9. The Savings Banks are obliged to provide the Customer Ombudsman Service with all the information it may request in relation to operations and Service agreements provided in rendering these operations that may give rise to complaints being presented by customers, if these refer to matters included within the scope of its authority, and try to ensure that their directors and employees provide any necessary collaboration in this respect. Furthermore, they shall inform their customers of the existence of the Customer Ombudsman Service in each and every one of the branch offices open to the public, and in their Websites, indicating their postal and addresses and the contents of this Regulation, as well as the obligation to have recourse to the channel open for making complaints to the customer service or department, depending on the case in question, in order to file their complaints with the Banking Services Customer Ombudsman Service. 6

7 The Savings Banks shall contribute to the Customer Ombudsman Service budget, depending on their total mean assets and/or the number of complaints made in their respect. 7

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9 SECTION II CONCERNING COMPLAINTS AND HOW THEY ARE PROCESSED CHAPTER 1 PURPOSE, FORM, REQUIREMENTS AND TERM FOR PRESENTING COMPLAINTS Article 10. All complaints shall be based on financial agreements and Service operations provided by the Savings Bank which in the opinion of the customer, contravene proper banking practices and customs, and affect already-recognised interests and legal rights arising from the agreements, regulations on the transparency and protection of customers or proper banking practices and customs, and in particular, the principle of fairness, with regard to which in the case of the Customer Ombudsman Service not existing, the complaint would have been directed to and settled by the Banking Services Customer Representative. Article 11. In all cases, the following are excluded from the Service s authority: a) Complaints that pertain to the Savings Banks. These complaints are considered to be those referring to the banking services rendered to Savings Banks customers and presented due to delay, negligence or any other type of anomaly observed in performing these operations. b) Claims for amounts of less than 100 euros and those amounting to more than 20,000 euros. c) Complaints made by customers after the two years have elapsed since the date on which the customer was aware of the facts giving rise to the complaint. d) Complaints related to labour relations between Savings Bank and their employees and other Banks or Savings Banks, and those relating to corporation relations. e) Complaints related to the Saving Banks discretion in entering into any agreement and Service operation as well as any other agreement or condition established in this manner. f) Complaints that have been subject to or settled by judicial or arbitrary decision or based on the report of the Banking Services Customer Representative. g) Complaints that are aimed at obstructing, harming or delaying the exercise of any rights of the Savings Banks with respect to their customers. 9

10 h) Complaints made by customers of Savings Banks who are not Spanish residents unless they refer to relations with branch offices located in Spain for operations in Spain. Article 12. The presentation and processing of complaints shall be free of charge, and customers may not be charged for this service. Article 13. The presentation of complaints may be done in person or through a duly authorised person, on paper or by digital, electronic or telematic channels, provided that these channels enable the documents to be read, printed and stored and in these cases, are in keeping with the requirements foreseen under Law 59/2003, of December 19 th 2003, on electronic signature. The complaints shall contain the following information: a) Name, surname and address of the interested party, and if applicable, the name of the person representing him/her, duly authorised; ID number for individuals and public registry data in the case of corporations. b) The ground for the complaints, specifying clearly the issues on which a decision has been requested. c) The Savings Bank against which the complaint is being made, making a special reference to the branch office or offices, department or service in which the acts in question took place. d) That to the best of the customer s knowledge, the issue in question is not being substantiated through any administrative, arbitrary or judicial proceedings. e) Place, date and signature. The documentary evidence in possession of the claimant and on which the complaint is based must be attached. Complaints must be addressed to the Customer Ombudsman Service and may be presented in person to this Service, and also to the customer departments or services of the Savings Banks, and if applicable, at any Savings Bank branch office that is open to the public, as well as to the address provided by the Savings Banks for that purpose. In the event the complaint is not presented directly to the Customer Ombudsman Service, the Savings Banks shall send it to this Service no later than 10 days after receiving the complaint. 10

11 Article 14. The term for presenting complaints shall be two years from the date on which the customer was aware of the facts giving rise to the same. Any complaints received by the Service after that time, and any complaints regarding matters that fall outside its scope of authority, in accordance with article 11 of this Regulation, shall be rejected. 11

12 CHAPTER II CONCERNING PROCESSING Article 15. Once a complaint has been received by the Service, under the terms set forth in article 13 of the present Regulation, the Service Director shall acknowledge receipt in writing and record the date of presentation for the purpose of calculating the maximum term of two months within which to close the file. During the ten days following reception, a decision shall be taken as to whether the complaint is admitted for processing and this decision shall immediately be notified to the customer and to the Savings Bank affected, in such a manner that if any complaint is refused admittance, it cannot be presented to the Service again. The following are causes for non-admittance of complaints for processing: a) In the event of omitting data that are essential for processing, which cannot be obtained, including cases in which the ground for making the complaint is not specified. b) In the event of attempting to file different appeals or actions as complaints, which should be admitted for processing by administrative, arbitrary or judicial organs, or if these are pending decision or litigation, or the matter has already been dealt with by those authorities, or when the matter is to be dealt with by the customer department or service. c) If the facts, grounds and request specifying the matters contained in the complaint do not refer to specific operations or fail to meet the requirements set forth in paragraph 2 of Order ECO/734/2004 of March 11 th 2004, governing customer departments and services and the Banking Services Customer Ombudsman. d) If complaints are filed reiterating other previous complaints that have already been settled, presented by the same customer in relation to the same facts. e) If the term for presenting complaints has elapsed, as set forth under the present Regulation. When a complaint has been refused admittance for processing, for any of the grounds given above, this shall be notified to the customer through a reasoned decision, giving the customer a term of ten calendar days during which to present his/her allegations. If the interested party has already replied, and the causes for non-admittance continue to exist, the final decision shall be notified to that party. 12

13 If a complaint is presented to the Customer Ombudsman Service which it has no authority to address, the Service shall send it to this customer department or service, informing the claimant of the institution that is competent to deal with the complaint. If the customer s identity has not been properly established, or if it were not possible to clearly establish the facts giving rise to the complaint, the signer shall be requested to complete the documentation presented within a term of ten calendar days, and notified that failure to do so will lead to the complaint being filed, without further processing. This term shall not be included in the calculation of the two-month term foreseen in paragraph one of this article. Article 16. Once a complaint has been admitted for processing, the Service Director may send a copy of the same to the Savings Bank affected, so that it can make any allegations it wishes within a term of fifteen days from the date of its reception. Admittance of a complaint for processing by the Customer Ombudsman Service shall mean that this complaint is not processed by the customer departments or services of the Savings Banks. The Service Director may, during the course of processing the files, obtain from the claimant and from the different customer departments and services of the Savings Bank affected, all the data, clarifications, reports or elements of proof he considers pertinent for taking his decision. In the event that the Savings Bank should settle the matter with the customer to the customer s entire satisfaction, this must be notified to the competent institution and justified in documentary form, unless the claimant ceases to pursue the matter. In these cases, the file will be closed without further processing. Customers may at any time decide not to continue making the complaint or claim, which shall give rise to the immediate closing of the proceedings insofar as the interested party is concerned. However, the Service Director may agree to continue processing the file within the framework of his responsibility to promote compliance of the guidelines on transparency and customer protection and proper banking practices and customs. 13

14 CHAPTER III CONCERNING THE DECISIONS TAKEN BY THE CUSTOMER OMBUDSMAN SERVICE AND THEIR EFFECTS Article 17. The file shall be closed once a Decision has been reached within the maximum term of two months from the date on which the complaint was presented to the Customer Ombudsman Service or if applicable, at the customer department or service or any branch office open to the public or the address of the Savings Banks. Grounds shall in all cases be given for reaching the Decision, and financial rights may be recognised in favour of the customer which should not exceed the amount of 200,000 euros for all concepts. The decisions shall contain clear conclusions in respect of the request made in each complaint based on the contractual clauses, applicable regulations governing transparency and customer protection, and proper banking practises and customs, in such a manner that in the case of the decision being contrary to the criteria set forth in similar previous cases, grounds for justifying this can be given. The Decision shall be notified to the interested parties within a term of ten calendar days from the date on which it was issued, in writing or through digital, electronic or telematic channels, provided that these channels permit the documents to be read, printed and stored, and comply with the requirements foreseen by Law 59/2003 of December 19 th 2003, on electronic signature, depending on the express designation of the customer and in the absence of this indication, through the same channel as the one used to present the complaint. All decisions in which the complaint is rejected may contain petitions or proposals addressed to both parties, aimed at finding a fair solution for both, and maintaining the bond of mutual trust established between them. All Decisions rejecting the complaint shall inform the customer of his/her right to bring the matter before the Banking Services Customer Representative. Article 18. All Decisions in which the complaint being filed is found to be favourable to the customer shall be binding on the Savings Banks. This obligation shall not, however, pose any problem in having recourse to other legal means for settling the conflict, or obtaining administrative protection. 14

15 The Savings Bank shall comply with the Decision, in all matters concerning them, within the term indicated and once the Customer has accepted the Decision, and waived his/her option of having recourse to any other actions. In the event of no term being established and if decision involves making a payment, this shall be made effective no later than thirty days following the reception of the customer s waiver to exercising any other action. Article 19. Acceptance of the decision issued by the Customer Ombudsman Service shall be voluntary for the customer. Article 20. The acceptance of the decision must be made in writing and be accompanied by the express waiver of the claimant to exercise any other action on the same question, whether this be administrative, judicial, arbitrary or of any other kind. This waiver is a previous condition that is necessary for executing the decision in its entirety, and must be made by the customer no later than thirty days following its reception, after which time if no response is forthcoming, it shall be understood that the customer has rejected the decision, which shall be notified to the Savings Bank in question. Article 21. The Customer Ombudsman Service may, prior to issuing its decision, take any steps it considers necessary aimed at finding a solution that is acceptable to both parties. Once that has been achieved, the decision shall be binding for both, and the Service shall consider its work concluded. The same shall apply if at any time, the Savings Bank should unilaterally satisfy the claimant s petition, or if the claimant should withdraw its complaint. Article 22. All information on the files and their contents being processed by the Customer Ombudsman Service is reserved for the affected parties. All files and records shall remain in possession of the Service Director or, if this post is vacant, in the possession of the UNACC. In the event that any Savings Bank should become separated from the present Regulation, all claims relating to that Savings Bank shall be delivered to the former, after first requesting them. 15

16 CHAPTER IV CONCERNING THE INCOMPATIBILITY OF SIMULTANEOUS ACTIONS BEING TAKEN AND THE INTERRUPTION OF THE PRESCRIBED TERM Article 23. All complaints presented to the Customer Ombudsman Service shall be incompatible if presented simultaneously to the exercising of any other claims on the same issue. To this effect, customers shall abstain from initiating actions of any kind through other channels, until the Service has reached a decision. In the event of failing to comply with this requirement, the file shall be closed with no further processing. If the Service becomes aware of the simultaneous processing of a complaint as well as any administrative, arbitrary or judicial proceedings being opened on the same issue, or being presented to the customer departments or services of the Savings Banks, or the Banking Services Customer Representative, it shall stop processing that complaint. Article 24. The presentation of a complaint before the Customer Ombudsman Service entails the acceptance of the present Regulation, and shall have the effect of interrupting the prescribing of actions recognised as pertaining to extrajudicial proceedings under article of the Civil Code. 16

17 SECTION III CONCERNING GENERAL RELATIONS, ANNUAL REPORT AND EXPENSES BUDGET CHAPTER 1 CONCERNING GENERAL RELATIONS Article 25. Apart form processing the files, the Customer Ombudsman Service Director may send the UNACC and Savings Banks requests, notifications, questions or communiqués of any kind on general or specific aspects of the Savings Banks activities to which his attention may have been drawn and which, in his opinion, are of interest to for the rights of customers. The UNACC and Savings Banks are obliged to respond directly, jointly and severally to these communiqués within a term of no more than thirty days. 17

18 CHAPTER II CONCERNING THE ANNUAL REPORT OF THE CUSTOMER OMBUDSMAN SERVICE Article 26. Within the first quarter of each calendar year, the Customer Ombudsman Service shall present to the Governing Council of the UNACC and Savings Banks an explanatory Report of the development of its duties during the preceding year, which shall contain at least the following: a) A statistical summary of all complaints and claims dealt with, with information on the number, admittance for processing and grounds for rejection, the reasons for these and the issues posed in these complaints and claims, as well as all sums and amounts involved. b) A summary of the decisions issued, indicating whether they are positive or negative for the claimant. c) The general criteria contained in the decisions. d) Any recommendations or suggestions arising from its experience, with a view to better achieving the purposes of informing on its activities. A summary of the Report at least shall be included in the annual report of the UNACC and the Savings Banks that are members of the Customer Ombudsman Service. 18

19 CHAPTER III CONCERNING THE EXPENSES BUDGET Article 27. Jointly with the Annual Report, the Customer Ombudsman Service Director shall present the settlement of the annual expenses budget to which the settlement refers, and the forecasts for the following year, including any organisational proposals he deems appropriate for improving the rendering of the Customer Ombudsman Service functions. 19

20 FINAL PROVISIONS One. Control of the Service Regulation may be modified by the decision of the Governing Council of the UNACC, although all mandates relating to the Customer Ombudsman Institution which set forth the regulatory guidelines of transparency and customer protection in Banks and Savings banks shall enter into force immediately without the need to modify the Regulation. Two. Subject to compliance of the decisions issued by the Customer Ombudsman Service and the decision on the complaints made, any Savings Bank that wishes to withdraw from the Service shall notify its intention to do so through its Governing Council, and this decision shall enter into effect thirty days after its reception by the UNACC. All withdrawals from the Service shall not exonerate the Savings Banks from complying with any financial commitments incurred against the existing budget. Three. The present Regulation shall enter into force from the date of its approval by the Governing Council of the UNACC (June 9 th 2004), and notification shall be sent to both the Banking Services Customers Ombudsman and Bank of Spain, together with a copy of the document appointing the Legal Counsel as Service Director. Four. The Governing Council of the UNACC is hereby authorised to insert all modifications to the Regulation suggested by the Banking Services Customers Ombudsman and the Bank of Spain. Five. For the purpose of complying with article 13 of this Regulation, the address of the Service is the following: SERVICIO DE DEFENSA DEL CLIENTE UNIÓN NACIONAL DE COOPERATIVAS DE CRÉDITO C/Virgen de los Peligros, nº 4-4ª Madrid 20

21 Six. All Savings Banks that are members of the UNACC and which, after the entry into force of this Regulation, agree to join the UNACC Customer Ombudsman Service, shall notify the agreement reached with the Service Director to their Governing Councils, approving the present Regulation, expressing their wish to join the Service. Likewise, they shall notify the Banking Services Customer Ombudsman Service and Bank of Spain or competent Body pertaining to the Autonomous Regional Community to which they belong, at which time their incorporation into the Service shall enter into effect. 21

22 LIST OF SAVINGS BANKS WHO ARE MEMBERS OF THE UNACC CUSTOMER OMBUDSMAN SERVICE CAJA RURAL DE ALBACETE CAYA RURAL DE CASAS IBAÑEZ CAJA RURAL DE LA RODA CAJA RURAL DE VILLAMALEA CAJA RURAL ALTEA CAJA RURAL DE CALLOSA D EN SARRIA CAJA RURAL CENTRAL DE ORIHUELA CAJA DE CRÉDITO DE PETREL, CAJA RURAL CAJA RURAL INTERMEDITERRÁNEA CAJA RURAL DE ASTURIAS CAJA RURAL DE GIJÓN CAJA RURAL DE EXTREMADURA CAJA RURAL DE ALMENDRALEJO CAJA RURAL BALEARS CAJA DE INGENIEROS CAJA DE ARQUITECTOS CAJA DE LOS ABOGADOS CAJA RURAL DE BURGOS C.R. SAN JOSÉ DE ALCORA C.R. SAN JOSÉ DE ALMASSORA C.R. SAN JAIME, ALQUERIAS NIÑO PERDIDO CAJA RURAL DE BETXI C.R. SANT ISIDRE DE BENICARLÓ C.R. SAN ANTONIO DE BENICASIM C.R. SAN JOSÉ DE BURRIANA C.R. SAN ISIDRO DE CASTELLÓN C.R. SAN ISIDRO, LES COVES DE VINROMA C.R. LA JUNQUERA DE CHILCHES C.R. SAN JOSÉ DE NULES C.R. NTRA. SRA. ESPERANZA DE ONDA C.R. LA VALL SAN ISIDRO DE VALL DE UXÓ C.R. SAN VICENTE FERRER, VALL DE UXÓ C.R. SAN ISIDRO DE VILAFAMES C.R. CATÓLICO AGRARIA DE VILLARREAL C.R. SAN JOSÉ DE VILLAVIEJA CAIXA RURAL VINAROS C.R. NTRA. SRA. DE GUADALUPE DE BAENA C.R. NTRA. SRA. DEL CAMPO CAÑETE TORRES C.R. NTRA. SRA. DEL ROSARIO, NUEVA CARTEYA 22

23 CAJA RURAL DE CUENCA C.R. COMARCAL DE MOTA DEL CUERVO CAJA RURAL DE GRANADA C.R. ARAGONESA Y DE LOS PIRINEOS CAJA RURAL DE JAÉN CAJA RURAL DE CANARIAS C.R. SANT FORTUNAT, CASTELLDANS CAIXA RURAL GALEGA C.R. REGIONAL SAN AGUSTÍN, FUENTE ALAMO CAJA RURAL DE SALAMANCA CAJA RURAL DE TENERIFE CAJA RURAL DE SEGOVIA CAJA RURAL DE FUENTEPELAYO CAJA RURAL DEL SUR CAJA RURAL DE UTRERA CAJA RURAL DE SORIA CAJA RURAL DE TERUEL CAJA RURAL DEL MEDITERRÁNEO, RURALCAJA CAJA RURAL DE ALBAL C.R. DE ALBALAT DELS SORRELLS CAJA RURAL DE ALGINET CAJA RURAL DE CHESTE CAJA CAMPO DE CHESTE CAJA CAMPO, Caja Rural CAIXA RURAL DE TORRENT CAIXA RURAL DE TURIS CAIXA POPULAR CRÈDIT VALENCIA,Caja Rural CAJA RURAL DE VILLAR CAJA RURAL DEL DUERO IPAR KUTXA RURAL CAJA RURAL DE ZAMORA CAJA RURAL DE ARAGÓN 23