EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 14 September 2009 
on money laundering and terrorist financing preventi on provisions relating to the Banco de España  
(CON/2009/70) 
 
Introduction and legal basis  
On 11 August 2009 the European Central Bank (E CB) received a request from the Spanish State 
Secretary for Economic Affairs for an opinion on a draft law on the prevention of money laundering and terrorist financing (hereinafter ‘the draft law’).  
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and on the third indent of Article 2(1) of Council Decision 98/415/EC of 
29 June 1998 on the consultation of the European Ce ntral Bank by national authorities regarding draft 
legislative provisions
1, as the draft law contains provisions relati ng to the Banco de España. In accordance 
with the first sentence of Article 17.5 of the Rule s of Procedure of the European Central Bank, the 
Governing Council has adopted this opinion. 
 1.  Purpose of the draft law 
The draft law transposes Directive 2005/60/EC of the European Parliament and of the Council of 
26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing
2, Commission Directive 2006/70/EC of 1 August 2006 laying down implementing 
measures for Directive 2005/60/EC of the European  Parliament and of the Council as regards the 
definition of politically exposed person and the tech nical criteria for simplifie d customer due diligence 
procedures and for exemption on grounds of a fina ncial activity conducted on an occasional or very 
limited basis3, and Regulation (EC) No 1781/2006 of the Eu ropean Parliament and of the Council of 
15 November 2006 on inform ation on the payer accompanying transfers of funds4. 
The preamble to the draft law explains that, with a view to reducing adaptation costs, the current Spanish 
provisions in this field are maintained to the extent that they are not contrary to Community legislation. 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  OJ L 309, 25.11.2005, p. 15. 
3  OJ L 214, 4.8.2006, p. 29. 
4  OJ L 345, 8.12.2006, p. 1. 
2 The draft law unifies the rules on money laundering and terrorist financing prevention, putting an end to 
the current separation that may be described as follows. On the one hand,  money laundering prevention is 
governed by Law 19/1993 of 28 December 1993 on money laundering prevention measures, which 
created the Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias  (Commission 
for the prevention of money laundering and monetary  offences) (‘the Commission’) within the State 
Secretariat for Economic Affairs. Law 19/1993 al so created the Commission's Executive Service 
(‘SEPBLAC’), which is the Spanish financial intelligen ce unit and is attached to the Banco de España. 
Royal Decree 925/1995 of 9 June 1995 implementing Law 19/1993 laid down detailed provisions on the 
SEPBLAC. The Banco de Espa ña appoints the SEPBLAC's director and pays its costs. On the other hand, 
terrorist financing prevention is governed by La w 12/2003 of 21 May 2003 on prevention and blocking of 
terrorist financing, which created the Comisión de Vigilancia de Actividades de Financiación del 
Terrorismo  (Commission for the surveillance of terrorist  financing). Law 12/2003 regulates the freezing 
or blocking of funds potentially linked to terro rism, but also reproduces the prevention of money 
laundering obligations of Law 19/1993, which is clearly not ideal. 
A decision was therefore made to maintain the fre ezing and blocking provisions of Law 12/2003, as well 
as the Commission for the surveillance of terrorist financing’s competence to order the freezing or 
blocking of funds when there are grounds to do so, a nd to regulate terrorist financing prevention together 
with money laundering prevention in the draft law.  
The draft law also includes provisions regarding the Banco de España, on which the ECB is specifically 
consulted: 
(a) institutional organisation: the SEPBLAC depends  organically and functionally on the Commission 
but has the following links with the Banco de España: 
i. the SEPBLAC's director is appointed on the proposal of the Commission’s president after 
having consulted the Banco de España; 
ii. the Banco de España is in charge of the SEPBLAC’s financial, budgetary and procurement 
regime and will sign an agreement to this end with the Commission; 
iii. the Banco de España’s employees assigned to the SEPBLAC keep their employment 
relationship with the Banco de España, are subj ect to the Banco de Es paña’s staff rules but 
are under the SEPBLAC’s authority from a functional point of view; 
iv. the SEPBLAC’s budget is approved by the Comm ission and integrated on a separated basis 
into the Banco de España's budget for operati ng costs and investments. Expenses against this 
budget are payed by the Banco de España, whic h is reimbursed for them by drawing up an 
account to be submitted to the Directorate Gene ral of the Treasury and Financial Policy. The 
Directorate checks the account and reimburses the Banco de España. The account is balanced with the profits that the Banco de España transfers to the Treasury every year. 
3 (b) Banco de España's cooperation w ith the Commission and the SEPBLAC: 
i. the Banco de España reports to the Commiss ion's Secretariat any possible breaches of the 
obligations contained in the draft law obser ved in the course of its supervisory and 
inspection activities; 
ii. in relation to financial institutions subject to the Banco de España’s supervision, the 
SEPBLAC may obtain the necessary information and cooperation from the Banco de España; 
iii. the SEPBLAC has direct access to the statis tical information on capital movements and 
economic transactions with foreign countries re ported to the Banco de España in accordance 
with the regulations applicable to  such movements and transactions. 
 2. General observations  The ECB welcomes Spain’s transposition, albeit delayed, of the Community legislation on money 
laundering and terrorist financing prevention. The ECB understands that such delay: (i) has been due to 
lengthy discussions about the SEPBLAC’s institutional se tting and the merger of the current rules on the 
prevention of money laundering and terrorist financing; and (ii) is partially mitigated by Spain's current 
legal framework in both fields. The ECB also welcom es the enhanced clarity of the money laundering and 
terrorist financing prevention legal framework that the draft law will bring about. 
 
3. Specific comments  
3.1 The Banco de España’s financial role 
The ECB welcomes the economic and budgetary regime laid down in Article 43(3) and (4) of the 
draft law as a regime that is fully consiste nt with central bank financial independence.  It considers, 
however, that before the SEPBLAC’s budget is appr oved by the Commission, it should be agreed 
by the Banco de España as it will affect the fi nancial independence of the Banco de España. 
3.2 Liability 
The SEPBLAC is staffed by Banco de España’s  employees who are subject to the Banco de 
España's staff rules. This poses no problems if the SEPBLAC is subject to the Banco de España’s independent decision-making. However, if Span ish law provides for separate decision-making by 
the SEPBLAC, it is important to ensure that deci sions adopted by it do not endanger the financial 
independence of the Banco de Espa ña. In similar situations concer ning financial supervision being 
placed within an NCB, the ECB h as suggested that the national legislation should enable the NCB 
to have ultimate control over any decision by th e supervisory authorities that could affect its 
independence, in particular  its financial independence
5. As the staff members of SEPBLAC are 
                                                 
5  See ECB Convergence Re port, May 2008, p. 22.  
4 functionally dependent on the SEPBLAC and perform governmental functions, the ECB considers 
that the Banco de España should be  statutorily freed from any liability for the actions and omissions 
of those staff while performing those functions.  
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 14 September 2009. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET