EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 23 December 2004 
at the request of the Spanish Ministry for Econom ic Affairs and Finance on the draft State Budget 
Law for 2005 amending Law 41/1999 of 12 Decem ber 1999 on payment and securities settlement 
systems and Law 13/1994 of 1 June 1994 on the autonomy of the Banco de España 
(CON/2004/39) 
 
1. The European Central Bank (ECB) received on 5 November 2004 a request from the Spanish 
Ministry for Economic Affairs and Finance for an opinion on some provisions of the draft State budget law for 2005
1 (the draft law) amending Law 41/1999  of 12 December 1999 on payment and 
securities settlement systems (Law 41/1999) and Law 13/1994 of 1 June 1994 on the autonomy of 
the Banco de España (the Banco de España Statute) . 
2. The ECB’s competence to deliver an opinion on the draft law is based on the third and fifth indents 
of Article 2(1) of Council Decisi on 98/415/EC of 29 June 1998 on th e consultation of the European 
Central Bank by national authorities regarding draft legislative provisions2. 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. 
3. The draft law amongst others sets up a new manage ment structure for the Sistema Nacional de 
Compensación Electrónica (National Automated Clearing System; hereinafter ‘SNCE’), the domestic clearing system for retail payments. SN CE resulted from a concentration of all the 
provincial clearing houses into a single and decentralised electronic clearing system, due to technology improvements. It clears current account cheques and promissory no tes, credit transfers, 
direct debits, commercial bills, whether bills of exch ange or otherwise and fuel and travel cheques.  
4. In addition, the draft law amends the Banco de España’s Statute, laying down in detail the Banco 
de España’s powers to regulate and oversee payment clearing and settlement systems.  
Amendments to  Ley 41/1999, de 12 de noviembre, sobre sist emas de pagos y de liquidación de valores 
(Law 41/1999 of 12 November 1999 on payment and securities settlement systems)
3  
                                                      
1  Boletín Oficial de las Cortes Generales , 30.9.2004. 
2  OJ L 189, 3.7.1998, p. 42. 
3  B.O.E., Spanish Gazette, of 13 November 1999. 
 
 25. The Banco de España has managed the SNCE si nce 1987. The draft law provides that a public 
limited company (Sociedad Española de Sistemas de Pago, Sociedad Anónima; hereinafter the 
‘Company’) will take over SNCE’s management fro m the Banco de España. Ley 41/1999, which 
implements the Settlement Finality Directive4, is amended for this purpose. The draft law renames 
the public limited company, Servicio de Pagos Inte rbancarios, Sociedad Anónima (the Servicio), 
which becomes the Company. In addition, the Servic io’s purpose is modified to cover a wide range 
of payment services activities including, inter alia,  facilitating clearing and settlement of transfer 
orders among credit institutions regardless of thei r support, facilitating processing of any means of 
payment, providing technical assistance and any other activity that the Government, following a 
report from the Banco de España, may attribute to it.  
6. As part of the transformation of the Servicio into  the Company, the Servicio’s capital shares will be 
redistributed: the draft law provides that th e entities participating in SNCE, which accept 
obligations resulting from settlements, may become  initial shareholders of the Company. This 
initial distribution of capital will be proportional to the volume of their activity in SNCE. The 
Company’s internal rules will need to provide for the periodical review of this distribution. The 
Ministry for Economic Affairs and Finance, on a proposal from the Banco de España, may allow 
for extension of the participation in the Company’ s capital share to participants in SNCE that are 
not settling members. Finally, if the Company in th e future manages other systems than SNCE, its 
internal rules will need to provide for particip ation in the capital share of the Company of the 
participants in such other systems. 
7. The ECB takes note of  these developments. 
8. A consequence of the privatisation of SNCE’s management is that the Company, subject to 
authorisation by the Banco de España, will establis h the basic operating rules for SNCE and for the 
other systems that it may manage in the future.  
9. However, the draft law (new Article 17(2) of Ley 41/1999) imposes, inter alia , a limit on the 
Company when establishing the rules for participati on in SNCE or in the other systems it manages. 
This participation is limited by the draft law to cr edit institutions operating in Spain and registered 
with Banco de España’s compulsory Official Registers.  
10. As to the meaning of the expression ‘operating in Spain’, the ECB understands that, in addition to 
credit institutions operating on the Spanish market th rough a branch in Spain, all credit institutions 
in the EU can be considered as ‘operating in Spain’  for as long as they have recourse, in respect of 
the Spanish market, to the regime of free provision of services established in Articles 18 and 21 to 22 of Directive 2000/12/EC of the European Pa rliament and of the Council of 20 March 2000 
relating to the taking up and pursuit of the business of credit institutions
5. This interpretation would 
theoretically allow for direct remote participa tion in SNCE, which the ECB considers should in 
                                                      
4  Directive 98/26/EC of 19 May 1998 of the European Parliame nt and of the Council on settle ment finality in payment and 
securities settlement systems, OJ L 166, 11.6.1998, p. 45. 
5  OJ L 126, 26.5.2000, p. 1. 
 
 3principle be possible, while at the same time recognising the existence of presently different 
national technical and operational standards. 
11. In this regard, the ECB recalls that a very im portant Eurosystem objective and European banking 
industry project is the creation of a Single Euro  Payments Area (SEPA). The SEPA project means 
that all euro area payments should become domest ic at the euro area level and reach a level of 
reliability and efficiency at least on par with th e current best performing national payment systems 
by 2010. As part of the SEPA, Pan-European Automated Clearing Houses (PEACH) will cover the 
entire euro area. Decisions related to the next ge neration of national systems should in future be 
made from a pan-European perspective to ensure  compliance with SEPA instruments and standards 
and the overall SEPA infrastructure.  
12. In addition, the interpretation of the above limita tion on participation in SNCE or in the other 
systems managed by the Company is also releva nt to the possibility of participating in the 
Company’s share capital. Credit institutions in the EU  participating remotely in SNCE or the other 
systems managed by the Company should have the possibility of participating in the Company’s 
share capital, which is only open to participan ts in SNCE or such other systems.   
13. The ECB welcomes the option given to the Compan y by the draft law (final subparagraph of new 
Article 17(1) of Ley 41/1999) to establish relations  with other organisations or entities carrying out 
similar functions, and to manage other clearing and settlement systems, within or outside Spain as 
it opens up for pan-European ac tivities in line with the SEPA.  
14. Finally, the ECB welcomes the draft law’s inclusion (new Article 8(b) of Le y 41/1999) of SNCE as 
a system recognised under the Settlement Finality Di rective. The ECB notes, however, that the law 
(new additional eighth disposition of Ley 41/1999) introduces a special regime in the finality of the 
transfer orders sent to SNCE to allow refunds that may occur under SNCE’s rules. The ECB understands that this provision is intended to cl arify the Spanish implementation of the Settlement 
Finality Directive in respect of SNCE. 
Amendment to Law 13/1994 of 1 June on the Banco de España’s autonomy 15. The new Article 16 of the Banco de España’s Statute empowers Banco de España to regulate 
clearing and settlement systems by way of circulars, in order to comply with the objective of promoting the smooth functioning of payment systems, and as part of its functions as a member of the European System of Central Banks. Under th e draft law, the Banco de España may, in 
particular (but not limited to), develop or complete  the legal acts adopted by the ECB. In addition, 
such circulars may also incorporate recommenda tions by international organisations. Without 
prejudice to this clarification of the Banco de Es paña’s regulatory powers in this field, the ECB 
notes that the Banco de España retains the possib ility of managing, where appropriate, clearing and 
settlement systems.  
16. In addition, the new Article 16 of the Banco de España’s Statute grants  it detailed supervisory 
powers over the functioning of payment and settleme nt systems. The Banco de España may gather 
 
 4as much information and documentation as it considers necessary to evaluate their efficiency and 
reliability. In particular, the new Article 16 expressl y empowers the Banco de España to suspend, if 
necessary, the application of the decisions adopted  by the entity managing a payment system and to 
adopt the necessary measures.  
17. The ECB particularly welcomes the new Article 16 as it mirrors some of the ESCB’s powers under 
the Treaty and the ESCB Statute in the field of payment and settlement systems. 
18. This opinion will be published on the ECB’s website. 
  Done at Frankfurt am Main, 23 December 2004. 
 
[ signed ] 
 
The President of the ECB 
Jean-Claude TRICHET