EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 16 November 2009 
on the realisation of collateral provided to the Banco de España, to other national central banks of 
the Member States or to the European Centra l Bank in the performance of their tasks 
(CON/2009/96) 
 
Introduction and legal basis  
On 23 October 2009 the European Central Bank (E CB) received a request from the Spanish State 
Secretary for Economic Affairs for an opinion on th e second final provision of the draft State budget law 
for 2010 amending paragraph 2(b) of the sixth addi tional provision of Law 13/1994 on autonomy of the 
Banco de España (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 provisions1, 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 sixth additional provision of Law 13/1994 on aut onomy of the Banco de España lays down the rules 
applicable to collateral provided to the Banco de Es paña, to other national cent ral banks of the Member 
States (NCBs) or to the ECB in the performance of th eir tasks. In particular, paragraph 2(b) governs the 
realisation of such collateral.  
The draft law amends point (b) by: (i) repealing the requirement for a copy of the doc ument constituting the secur ity when realising the 
collateral. The purpose of this repeal is to fac ilitate collateral realisation, avoiding problems in 
interpreting the requirement to submit a copy of the document constituti ng the security in the 
context of cross-border use of dematerialised securities as collateral; and  
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2 (ii) specifically referring to appropriation of collatera l as a means of realisation subject to an agreement 
between the parties on such means of realisati on and on valuation of the provided collateral. 
Realisation through appropriation had already b een introduced in Spanish law by Royal Decree-
Law 5/2005 of 11 March 2005 on urgent reforms to foster productivity and improve public 
procurement, which completed the Spanish trans position of Directive 2002/47/EC of the European 
Parliament and of the Council of 6 June  2002 on financial collateral arrangements2. The Banco de 
España had recourse to realisati on through appropriation on the basis of Article 4(1) of the Royal 
Decree-Law, which lays down that the provisions on  financial collateral arrangements (including 
those on appropriation) apply to the Banco de España (as well as to other NCBs or to the 
ECB). The purpose of this draft amendment is therefore to incorporate a general provision already in force into the Banco de España’s special rules on this matter.   
 2. General observations  The ECB takes note of the proposed amendments, wh ich are consistent with Directive 2002/47/EC, and 
welcomes them inasmuch as they will facilitate the realisation of collateral provided to the Banco de 
España, to other NCBs or to the ECB in the perform ance of their tasks and enhance the transparency and 
legal certainty of the legal framework for providing such collateral. 
 
This opinion will be published on the ECB’s website. 
  Done at Frankfurt am Main, 16 November 2009. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
                                                 
2  OJ L 168, 27.6.2002, p. 43.