EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 21 December  2018  
on macroprudential tools  
(CON/20 18/58) 
 
Introduction and legal basis  
On 21 November 2018 the European Central Bank (ECB) received a request from the Banco de España , 
on behalf of the Spanish State Secretary for Economy and Business Support,  for an opinion on several 
provisions1 of a draft royal decree -law on payment services and other urgent financial measures 
(hereinafter the ‘draft royal decree -law’). 
On 23 November 2018, the draft royal decree -law was adopted by the Spanish Council of Ministers  (the 
‘first royal decree -law’)2 and will be ratified by the  Parliament within 30 days following this adoption. The 
first royal decree -law did not include the provisions contained in the draft royal decree -law on which the 
ECB w as consulted  relating to macro prudential tools . Instead, the se provisions relating to macro 
prudential tools were included in a royal decree -law on the creation of macroprudential tools , adopted by 
the Council of Ministers on 14 December3 (the ‘second royal decree -law’, together with the first royal 
decree -law, the ‘royal decree -laws’ ). 
The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the European Union and the  third and sixth indent s of Article  2(1) of Council Decision 
98/415/EC4, as the draft royal decree -law relates to the Banco de España  and rules applicable to financial 
institutions insofar as they materially influence the stability of financial institutions and markets, and the 
specific tas ks conferred on the ECB concerning the prudential supervision of credit institu tions under 
Article 127(6) of the Treaty . In accordance with the first sentence of Article  17.5 of the Rules of Procedure 
of the European Central Bank, the Governing Council has adopted this opinion.  
 
1. Purpose of the royal decree -laws 
1.1 The second  royal decree -law increases the number of macroprudential tools available to the Banco 
de España . In particular, the Banco de España  may (1) require the application of the 
                                                 
1  In particular, the ECB is consulted on the 4th additional provision, the 10th transitional provision, the 4th final 
provision and the 6th final provision, points 2, 4 and 5.  
2  Royal  decree -law 19/2018, of 23 November, on payment services and other urgent financial measures.  
3  Royal Decree -law 22/2018, of 14 December, establishing macro prudential tools.   
4  Council Decision 98/415/EC of 29  June 1998 on the consultation of the Europe an Central Bank by national 
authorities regarding draft legislative provisions ( OJ L 189, 3.7.1998, p. 42). 
ECB -PUBLIC  
2 countercyclical capital buffer (CCyB) to all exposures of a credit institution or group5 of credit 
institutions,  or the exposures of a specific sector ; (2) require credit institutions to limit their 
exposure to a specific sector of the  economy if the aggregate expo sure of credit institutions 
reaches levels that may pose an element of systemic risk; and  (3) set limits and conditions on 
lending and acquiring fixed -income securities and derivatives by credit institutions, for transactions 
with agents from the private sector based in Spain.  
1.2 The second  royal decree -law also introduces an obligation for the Banco de España to 
communicate its intention to adopt a macroprudential tool seven days in advance to the 
Macroprudential Authority Financial Stability Council (AMCESFI) and, until such authority is 
created, to the Financial Stability Council (CESFI) . The draft royal decree -law defines 
‘macroprudential tools’ for this purpose as those  designed to prevent systemic risks and to 
generate a sustainable contribution from the financial system to economic growth. ‘Systemic risk’ is 
defined for this purpose as the risk that a deterioration of all or part of the financial system may 
cause a disruption in the provision of financial services that ultimately has a negative effect on the 
real economy.  
1.3 Finally, the first royal decree -law, which does n ot regulate macro -prudential tools,  amends the 
Spanish Law on corporations , adopted by Royal legislative decree No 1/2010 . This amendment  
provides that shareholders' right of separation (i.e. the right for shareholders’ shareholding s to be 
acquired or redeemed by the company) due to a failure to distribute d ividends as contemplated in 
the Law on corporations  does  not apply to shareholders of credit institutions . 
 
2. Sectoral CCyB 
2.1 The ECB welcomes the draft royal decree -law insofar as it equips the Banco de España with new 
macroprudential tools intended to ensure that, as macroprudential authority, it can conduct its 
macroprudential tasks . It understands that the Banco de España’s  primary m onetary policy 
objective to maintain price stability, as defined in the Treaty, remains unaffected.  
2.2 The ECB notes that the possibility of  adding  sectoral capital buffers  to the macroprudential 
framework s is being explored at the international level and discussions on this issue are ongoing 
also in Europe  in the context of the review of Directive  2013/36/EU6. If an international agreement 
on sectoral capital buffers is reached and such instruments are implemented as binding 
requirements at the EU level , the Spanish authorities may need to reassess the design of the 
proposed national sectoral  CCyB to ensure consistency with the EU framework. The ECB notes in 
this respect that an EU framework for sectoral CCyB would increase the effectiveness of the 
                                                 
5  For this purpose, a group is defined as a group of companies in the sense of Article 42 of the Spanish Commercial 
Code; i.e. where one exercises control over the others, or in the sense of Articles 4, 5, 6 and 7 of Commission 
Delegated Regulation (EU) N o 241/2014  of 7 January 2014 supplementing Regulation (EU) No  575/2013 of the 
European Parliament and of the Council with re gard to regulatory techn ical standar ds for Own Funds requirements 
for institutions  (OJ L 74, 14.3.2014, p. 8) , which are  que linked amongst them by a relationship as described in 
Article 10(1), 113(6) or 113(7) of Regulation (EU) no. 575/2013 .   
6  See Basel Committee on Banking Supervision: ‘Towards a sectoral application of the countercyclical capital buffer: A 
literature review ’, Working Paper 32, March 2018 , available on the  Bank for International Settlements’ website 
atwww.bis.org , and Presidency compromise text on the proposal for a Directive of the European Parliament and of 
the Council amending Directive 2013/36/EU, available on the Council’s website at www. consilium.europa.eu . 
ECB -PUBLIC  
3 national  measure, as it would ad d reciprocity arrangements and avoid the risk of possible overlaps 
and double counting of risks, in particular with Article 130 et seq. of Directive 2013/36/EU7.  
 
3. Conditions relating to lending and other transactions  
The conferral on the Banco de Espa ña of the power to set limitations and conditions to avoid excessive 
risk taking or over -indebt edness of private economic agents  can be considered a reasonable measure to 
mitigate concentration risks in the banking sector . The ECB understands that this power  does not restrict 
or affect the powers that the ECB may exercise for prudential supervisory purposes , and in particular the 
power to restrict or limit the business, operations or network of institutions or to request the di vestment of 
activities that pose excessive risk to the soundness of an institution , as laid down in Article 16(2)(e) of 
Council Regulation (EU) No 1024/20138. 
 
4. Right of separation from a financial institution due to a failure to distribute dividends   
The intended change in Spanish corporate law abolishing the right of shareholders to demand the 
acquisition or redemption of their shares by the company due to a failure to distribute dividends can, so 
far as Spanish credit institutions are concerned,  contribute to a more resilient and stable banking system, 
especially in times of macroeconomic stress. The intended change furthermore brings Spanish corporate 
law in line with the regulatory capital requirements of Regulation (EU) No 575/2013 of the European 
Parliament and of the Council9, ensuring that share capital fulfils the qualitative requirements for Common 
Equity Tier 1 instruments laid down in this Regulation at all times and under all conditions.  
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main, 21 December 2018 . 
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
7  Directive 2013/36/EU of the European Parliament and of  the Council of 26 June 2013 on access to the activity of 
credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 
2002/87/EC and repealing Directives 2006/8/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).  
8  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).  
9  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential 
requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 
27.6.2013, p. 1).