EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 18 December 2020  
on the application of money laundering and terrorist financing  requirements to  
virtual currenc y service providers  
(CON/20 20/35) 
 
Introduction and legal basis  
On 29 October 2020 the European Central  Bank (ECB) received a request from  the Ministerio de Asuntos 
Economicos y Transformación Digital  (the Spanish Ministry of Economic Affairs and Digital 
Transformation)  for an opinion on a draft law  amending the Law on the prevention of money laundering 
and terrorism financing (hereinafter the ‘draft law’).  
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 indent  of Article 2(1)  of Council Decision 98/415/EC  of 
29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft 
legislative provisions1, as the draft l aw relates to Banco de España. 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 draft law  
1.1 The main purpose of the draft law, which amends the current Law on the prevention of money 
laundering and terrorist financing2 (hereinafter the Anti-Mone y Laundering/Combatting the 
Financing of Terrorism law (‘ AML/ CFT law’)), is to implement Directive (EU) 2018/843 of the 
European Parliament and of the Council3 into Spanish law. The draft law also introduces some 
amendments to include additional categories  of virtual currency service providers.   
1.2 More concretely, and as part of the amendments which implement Directive (EU) 2018/843, the 
draft law extends the addressees of the AML/CFT law4 to include  the providers of exchange 
services between virtual currenci es and fiat currencies , as well as custodian wallet service 
providers (defined as those natural or legal persons that provide private cryptographic key 
safeguarding services on behalf of their clients, for the holding, storing and transferring virtual 
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
2  Law 10/2010 of 28 April 2010 on the prevention of money laundering and terrorist financing,  
‘BOE’  no. 103 of 29 April 2010.  
3  Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 
2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial 
system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC (OJ L 
156, 19.6.2018, p. 43).  
4  See new Article 1(2) (v) of Law 10/2010  (section 2 of the sole Article of the draft law) . 
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2 currencies in a manner similar to that of the custody of traditional financial funds or assets) . Going 
beyond a transposition of Directive (EU) 2018/843, the draft law also incorporates additional 
categories  of virtual currency service providers , as addressees  of the AML/CFT law.  
1.3 The draft law requires the providers of : (i) exchange services between virtual currencies ; 
(ii) exchange services  between virtual currencies and fiat currencies ; and, (iii) custodial  wallet  
service  providers , who are located in Spain or provide services to residents in Spain,  to be entered 
in the regist er established for this purpose by Banco de España5. Banco de España will be 
required under the draft law to supervise the compliance of these service providers with the 
obligation to reg ister, as well as the ir compliance with the requirements  of good business and 
professional repute  to be determined. According to the draft law, these requirements will be 
established in an administrative norm6. In addition, Banco de España wi ll exercise sa nctioning 
power s, in line with the Spanish banking law7, in case s of non- compliance with the registration 
requirement8.  
 
2. General observation s 
2.1 This opinion does not address the issue of whether the draft law is compatible with Directive (EU) 
2018/843. The ECB has limited its  assessment of  the provisions of the draft law to  the issue of 
whether the conferral of a new task on the Banco de España complies with the  prohibition on 
monetary financing.  
 
3. Conferral of a new task on the Banco de España  
3.1 New task s of Banco de España  
3.1.1  It is envisaged that the tasks of operating the register, as wel l as supervision of compliance by the 
relevant service providers with the obligation to register  subject to the fulfilment of requirements  of 
good business and professional rep ute, will be conferred on  the Banco de España. It should be 
noted that the primary  AML/CFT authority in Spain is the Comisión de Prevención del Blanqueo de 
Capitales e Infracciones Monetarias  (Commission for the Prevention of Money Laundering and 
Monetary Offences ), which is a body  under the Ministry of Economic Affairs and Digital 
Transformation, responsible for developing and coordinating Spain’s policies on AML/CFT9. In 
order to carry out its tasks , the Commission is supported by the Servicio Ejecutivo de la Comisión 
de Prevención del Blanqueo de Capitales e Infracciones Monetarias  (SEPBLAC, Executive Service 
of the Commission for the Prevention of Money Laundering and Monetary Offences ) and the 
                                                 
5  See section 1 of the new Second Additional Disposition of L aw 10/2010 (section (52) of the sole Article of the draft 
law). 
6  See section 3 of the new Second Additional Disposition of Law 10/2010 (section (52) of the sole Article of the draft 
law). 
7  Law 10/2014 of 26 June 2014 on the regulation, supervision and solvency of credit institutions, ‘BOE’ no. 156 of 
27 June 2014, p age 49412.  
8   See section 4 of the new Second Additional Disposition of Law 10/2010 (section (52) of the sole Article of the draft 
law). 
9  Article 44 of Law 10/2010.   
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3 Commission ’s Secretariat10. SEPBLAC  acts as the Financial Int elligence Unit, and is also 
responsible for supervision in relation to AML/CFT matters  in all financial and non- financial sectors, 
in cooperation with sector al supervisors . Accordingly, since Banco de España is the supervisor of 
credit institutions and oth er non- credit financial institutions, such as payment institutions  and 
electronic money institutions , Banco de España also cooperates with S EPBLAC  in the supervision 
in relation to AML/CFT matters in financial institutions  under an agreement signed for thi s 
purpose.11 In this respect, Banco de España has the power to carry out inquiry measures , 
formulate recommendations and propose to the Commission’s Secretariat the formulation of 
requirements12.  
3.1.2  The ECB emphasises  that a proposed conferral of new tasks on a national central bank (NCB) 
participating in the European System of Central Banks (ESCB) must be assessed against the 
prohibition on monetary financing under Article 123 of the Treaty. For the purposes of that 
prohibition, Article 1(1)(b)(ii) of Council Regulation (EC) No 3603/9313 defines ‘other type of credit 
facility’ as, inter alia, ‘any financing of the public sector’s obligations vis -à-vis third parties’.   
3.1.3  Ensuring that Member States implement a sound budgetary policy is one of the key objectives of 
the prohibition on monetary financing, which may not be circumvented. Therefore, the task of 
financing measures, which are normally the responsibility of the Member States, and which are 
financed from their budgetary sources rather than by the NCBs, must not be entrusted to NCBs. To 
decide what constitutes financing of the public sector’s obligations vis -à-vis third parties  – which 
can be translated as the provision of central bank financing outside the scope of central bank tasks  
– it is necessary to carry  out, on a case- by-case basis, an assessment of whether the task to be 
undertaken by an NCB is a central bank task or a government task, i.e. a task within the 
responsibility of the Member States. In other words, adequate safeguards must be in place to 
ensure that circumventions of the objective of the prohibition on monetary financing,  which is to  
maintain sound budgetary policy by  Member States , do not take place.   
3.1.4  As part of its discretion in the exercise of its duty  – on the basis of Article 271(d) of t he Treaty and 
Article 35.6 of the Statute of the European System of Central Banks and of the European Central 
Bank (hereinafter the ‘Statute of the ESCB’)  – to ensure that NCBs honour the obligations laid 
down by the Treaty, the Governing Council has endor sed safeguards in the form of criteria for 
determining what may be considered as falling within the scope of ‘the public sector ’s obligations  
vis-à-vis third parties’ within the meaning of Article 1(1)(b)(ii) of Regulation (EC) No 3603/93 or, in 
other words, what constitutes a government task , as follows:  
 First, central bank tasks are,  in particular , those tasks that are related to the tasks that have been 
conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks are 
mainly  defined in Article 127(2), (5) and (6) , and Article 128(1) of the Treaty, as well as in Article 22 
and Article 25.1 of the Statute of the ESCB.  
                                                 
10  Article 45 of Law 10/2010 .  
11  Article 44 and Article 47 of Law 10/2010 .  
12  Article 44(2)(m) of Law 10/2010 .  
13  Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the 
prohibitions referred to in Articles 104 and 104b (1) of  the Treaty (OJ L 332, 31.12.1993).  
ECB -PUBLIC  
4  Second, as Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘functions  other than 
those specified in [the Statute of the ESCB] ’, new tasks, i.e. tasks that are not related to tasks that 
have been conferred upon the ECB and the NCBs, are not precluded per se. However, new tasks 
that are undertaken by an NCB and which are atypical of NCB tasks or which are clearly 
discharged on behalf of, and in the exclusive interest of the government or of other public sector 
entities , should be considered government tasks.  
Third, an important criterion for qualifying a new task as atypical of an NCB task , or as being clearly 
discharged on behalf of and in the exclusive interest of the government or other public sector 
entities , is the impact of the task on the institutional, financial and personal independence of that 
NCB.  
In particular, the following aspects should be taken into account:  
(a) whether the performance of the new task creates conflicts of interest with existing central 
bank tasks which are not adequately addressed, and its performance does not necessarily 
complement those existing central bank tasks. If a con flict of interest arises between existing 
and new tasks, sufficient safeguards to mitigate that conflict should be in place. The 
complementarity between a new task and existing central bank tasks should not be 
interpreted broadly so that it could lead to t he creation of an indefinite chain of ancillary 
tasks. Such complementarity should be examined in relation to the financing of those tasks;  
(b) whether without new financial resources the performance of the new task is disproportionate 
to the NCB’s financial or organisational capacity, and may have a negative impact on the 
capacity to properly perform the existing central bank tasks;  
(c) whether the performance of the new task fits into the institutional set -up of the NCB in the 
light of central bank independence and accountability considerations;  
(d) whether the performance of the new task harbours substantial financial risks;  
(e) whether the performance of the new task exposes the members of the NCB decision- making 
bodies to political risks that are disproportionate and m ay also have an impact on their 
personal independence and, in particular, on the guarantee of term of office set out in 
Article  14.2 of the Statute of the ESCB . 
3.2 Tasks related to the tasks conferred upon the ECB and the N CBs by the Treaty and the Statute of  
the ESCB  
 The tasks of operating a register and supervising compliance by the relevant virtual currency 
service providers with the obligation to register  subject to the fulfilment  of the requirements  of good 
business and professional repute to be determined,  are not related to the tasks conferred upon the 
ECB and the NCBs by the Treaty and the Statute of the ESCB.  
3.3 Tasks which are atypical of central bank tasks  
The tasks of operating a register and supervising compliance by the relevant virtual currency 
service providers with the obligation to register subject to the fulfilment of the requirements  of good 
business and professional repute to be determined,  are not atypical of central bank tasks  insofar as 
they complement  the existing roles  of a number of NCB s as supervisor s for the financial sector  in 
relation to AML/CFT matters . In this respect , it is noted that the majority of  ESCB NCBs  are 
ECB -PUBLIC  
5 supervisors in relation to AML/CFT  matters , a role which is complementary to their role as 
supervis ors of credit and/o r financial institutions . In the implementation of Directive (EU) 2018/843 
into national law , Member States have conferred the specific tasks of operating a register (and/or  
the related supervisory  tasks)  in respect of virtual currency service providers, on a wide range of 
public authorities including financial supervisory authorities ( some of whom are central banks), 
financial intelligence units , revenue services  and Government ministries. More concretely, the ECB 
has identified two  Member States  that have  directly conferred these particular tasks o n their 
NCB s14, five Member States that have conferred these tasks on  their national supervisory 
authorities15, and t hree other Member States  that have, either directly or indirectly,  conferred these 
tasks , in whol e or in part,  on their respective NCBs16. In addition,  the ECB understands that  certain 
Member Stat es which have not yet legislated on this matter are considering conferring these  tasks 
on their respective NCB s.    
Banco de España, as the body responsible for the supervision of credit institutions on the basis of 
Article 7.6 of Law 13/1994 on the autonomy of Banco de España17 and on the basis of Law 
                                                 
14  In the Netherlands, Article 23 (b) of the Law on m oney laundering and t errorist financing prevention  (Wet ter 
voorkoming van witwassen en financiering van)  requires anyone who offers professional or commercial services in 
or from the Netherlands for the exchange between virtual currency and fiduciary currency or custody wallets services 
to register with De Nederlandsche Bank (DNB). Articles 23( c) to 23 (f) of this same Act set out the actions that DNB 
may undertake in or der to ensure compliance with the obligation to register. In Portugal , the Law No.  83/2017 on 
theprevention of money laundering and terrorist financing (Lei de medidas de combate ao branqueamento de 
capitais e ao financiamento do terrorismo)  considers virt ual asset service providers as obliged entities required to 
comply with AML/CFT rules, and Banco de Portugal is the authority responsible for the registration and supervision 
of these entities for AML/CFT purposes.   
15  In Austria , Article 32( a) of the Law  on financial market anti-money- laundering,   the Finanzmarkt -Geldwäschegesetz ,  
confers these tasks on the Financial Market Authority (FMA). In Ge rmany , pursuant to section 32(1) of the Law on 
German banking, the Bundesanstalt für Finanzdienstleistungsaufs icht, keeps a register of all licensed service 
providers and is responsible for the respective ongoing supervision. In Finland, pursuant section 5 of the Law 
No. 572/2019 on the providers of virtual currencies  (Laki virtuaaliv aluutan tarjoajista)  Finanssivalvonta keeps a 
register of the virtual asset service providers which ensures that these providers comply with their statutory 
requirements concerning, for instance, the reliability of the provider. In Luxembourg, pursuant Articles 1(20c) and  
7-1(1) of th e Law 12 November 2004 on the fight against money laundering and terrorist financing as amended by 
the Law of 25 March 2020 on Loi du 12 novembre 2004 relative à la lutte contre le blanchiment et contre le 
financement du terrorisme, entities providing exchanges services between virtual currencies and fiat currencies, or 
between virtual currencies, as well as custodian wallet providers, need to register with the Commission de 
Surveillance du Secteur Financier . The registration of the above- mentioned services  providers shall be subject, as 
per Article 7- 1(3) of the AML/CFT Law, to an assessment of their professional standing. In Malta , according to the 
Law on virtual asset providers  of 1 November 2018,  the providers of the above- mentioned services need to regi ster 
in a financial register maintained by the Malta Financial Services Authority. The AML/CFT supervision of such 
licensed providers is executed by the Financial Intelligence Analysis Unit.  
16  In Italy, Legislative Decree N o. 90/2017 (Decreto Legislativo 25 maggio 2017, N. 90) , amending Legislative Decree 
No. 231/2007 setting out the Italian anti -money laundering rules, virtual asset service providers are required to 
register with the Organismo degli Agenti e dei Mediatori , a body subject to the supervisi on of Banca d’Italia, which is 
responsible for maintaining the registers of financial agents and credit brokers. In Lithuania , the Law of 
3 November  2019 on prevention of money laundering and terrorist financing,  amending the Law  of 19 June 1997  
(Pinigų pl ovimo ir teroristų finansavimo prevencijos įstatymas ), requires providers of exchange services between 
virtual currency and fiduciary currency and custody wallet service providers to notify the Registrar of Legal Entities 
about their activity no later than within 5 business days from the beginning or termination of such activities. The 
Financial Crime Investigation Authority (the FIU) supervises the activities of operators in the area of money 
laundering and/or terrorist financing prevention. The instructions that the FIU may address to these providers shall 
be approved in coordination with Lietuvos bankas and the Ministry of Finance. In Slovenia , according to Article 4( a) 
of the Law of 19 November 2016 on prevention of m oney laundering and t errorist financi ng (Zakon o preprečevanju 
pranja denarja in financiranja terorizma) , the register of providers of exchange services between virtual and fiat 
currencies and custodian wallet providers is maintained and managed by the Office for the prevention of money 
laund ering. However, pursuant to Articles 4(20d) and 151 of the above- mentioned Act, Banka Slovenije supervises 
compliance with the relevant statutory requirements.  
17  Law 13/1994 on the autonomy of Banco de España,  "BOE" no. 131 of 2 June 1994.  
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6 10/2014  on the regulation, supervision and solvency of credit institutions18, also cooperates with 
SEPBLAC  as supervisor in relation to AML/C FT matters  for credit institutions. Banco de España is  
also responsible for the supervision of other financial institutions  and hence,  as sector al supervisor  
also cooperates with S EPBLAC  in their supervision regarding AML/C FT matters .  
Given Banco de España ’s existing role in the supervision in relation to AML/ CFT matters of 
financial institutions  – a role which numerous other ESCB NCBs  fulfil in relation to such institutions 
in their respective Member States –  as well as the fact  that a number of Member States have 
conferred on their NCBs the specific tasks of operating a register (and/or the related supervisory 
tasks ) in respect of virtual currency service providers, Banco de España’s new tasks under the 
draft law are not  atypi cal of central bank  tasks .  
3.4 Tasks clearly discharged on behalf of and in the exclusive interest of the government  
For the same reasons, the tasks conferred by the draft law , of operating a register and supervising 
compliance by the relevant virtual currenc y service providers with the obligation to register subject 
to the fulfilment of the requirements  of good business and professional repute to be determined,  
are not tasks discharged on behalf of and in the exclusive interest of the government. Banco de 
España already plays a role in the supervision in relation to AML/CFT matters  of credit and certain 
financial institutions . There is no indication that, in carrying out the new tasks conferred by the draft 
law, Banco de España would be acting exclusively in t he interest of another public authority.  
3.5 Extent to which performance of the new tasks creates conflicts of interest with existing central bank 
tasks 
Since Banco de España’s new tasks under the draft law complement its existing tasks , no conflicts 
of interest arise with other aspects of Banco de España’s mandate.  
3.6 Extent to which the performance of the new tasks is disproportionate to Banco de España’s  
financial or organisational capacity  
 The ECB notes that it  is essential to  ensure that Banco de España has available to it  sufficient 
resources, including personnel, for the performance of assessments and the issuance of directions 
under the draft law, so that its  capacity to perform its ESCB -related tasks is not affected. In this 
regard, the draft law does not specifically address how  the additional expenses that arise from the 
grant to Banco de España  of additional powers  will be financed. The ECB understands that the 
additional resources required by Banco de España to exercise those additional powers  will be 
financed by Banco de España’s existing budgetary framework  and  so there will be no specific cost 
recovery mechanism designed to ensure the full recovery of the costs incurred in establishing and 
maintaining the register  and the supervision of compliance with the relevant obligations and 
requirements.  However, the performance of the new task s by Banco de España is not 
disproportionate to its financial or organisational  capacity .   
3.7 Extent to which performance of the new task s fits into the Banco de España’s  institutional set -up, in 
light of central bank independence and accountability considerations  
                                                 
18  Law 10/2014 of 26 June 2014 on the regulation, supervision and solvency of credit institutions , ‘BOE’ no. 156 of 
27 June 2014.  
ECB -PUBLIC  
7 The performance of the new tasks appears to be aligned with the Banco de España’s institutional 
set-up. As mentioned in paragraph 3.3, Banco de España cooperates  with the supervisor in relation 
to AML/CFT matters  in the supervision of credit and financial institutions.  
3.8 Extent to which the performance of tasks harbours substantial financial risks  
The performance of the new task s does not harbour substantial financ ial risks for Banco de 
España. The draft la w does not directly address Banco de España ’s potential liability in  the event of 
any legal action or other legal proceedings  for damages in relation to the exercise of its powers 
under the draft law. In this respect , Article 32 of Law 40/2015  on the l egal regime of the p ublic 
sector19 establishes the right for natural or legal persons to be compensated by public 
administration  bodies  in the exercise of their functions  for any damage those natural or legal 
persons  suffer to their property and/or  rights, except in cases of force majeure. Banco de España is 
included as a public administration body for those purposes by virtue of Article 1.2 of Law 
13/199420. Further , Article 25 of the internal rules21 of Banco de España states that Banco de 
España’s direct liability  extends to claims for compensation for damages and losses that individuals 
make against employees of Banco de España in the exercise of their functions, except in cases of 
gross negligence or  bad faith.  
3.9 Exten t to which the performance of the new task s exposes members of Banco de España’s 
decision -making bodies to disproportionate political risks and has an impact on their personal 
independence  
 The performance of the new tasks conferred by the draft law does not expose members of Banco 
de España’s decision- making bodies to any disproportionate political risk or have an impact on 
their personal independence.  
3.10 Conclusion  
The new tasks conferred by the draft law on Banco de España,  of establishing and maintaining a 
register and supervising compliance by the relevant virtual currency service providers  with the 
obligation to register  subject to the fulfilment of  the requirements  of good business and professional 
repute to be determined,  can be regarded as central bank tasks, as  they would complement Banco 
de España’s existing functions in  relation to the supervision in relation to AML/CFT matters in  
financial institutions. The new tasks conferred by the draft law are not atypical of central bank 
tasks,  and have been conferred upon a number of other ESCB NCBs .   
 
This opinion will be published on EUR -Lex.  
 
 
Done at Frankfurt am Main, 18 December  2020.  
 
                                                 
19  Law 40/2015 of 1 October 2015 on the l egal regime of the p ublic sector, ‘BOE’ no. 236 of 2 October 2015.  
20  Law 13/1994 1 June 1994] on the autonomy of Banco de España, ‘BOE’ no. 131, of 7 February 1994, p. 17400.   
21  Resolution of 28 March 2020, of the Governing Council of Banco de España by virtue of which the Internal Rules of 
Banco de España are approved.  
ECB -PUBLIC  
8 [signed]  
 
The President of the ECB  
Christine LAGARDE