EN  
ECB-PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 9 October 2012  
on European Financial Assistance 
(CON/2012/75) 
 
Introduction and legal basis 
On 17 July 2012, the European Central Bank (ECB ) received a request from the Banco de España, on 
behalf of the Ministry of Economic Affairs a nd Competitiveness for an opinion on Royal Decree-Law 
21/2012 of 14 July 2012 on liquidity measures for th e General Government and in the financial sector 
(hereinafter the ‘Royal Decree-Law’). The ECB wa s only consulted on the Fifth Additional Provision of 
the Royal Decree-Law which relates to the financia l assistance for the recapitalisation of financial 
institutions in Spain by the European Financial St ability Facility (hereinafter  the ‘financial assistance 
programme’). 
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 indents 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 Royal Decree-Law concerns the Banco de España and rules 
applicable to financial institutions insofar as they materially influence the stability of financial institutions 
and markets. 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-Law 
The purpose of the Fifth Additional Provision is to cl arify the competences of the different institutions 
involved in the implementation of the financial assist ance programme, in order to ensure its successful 
launch. In particular, the Fifth Additional Provi sion provides for the following clarifications: 
1.1 The information to be provided by the Banco de  España to the European Commission, the ECB, the 
European Banking Authority (EBA), the International Monetary Fund (IMF), the European Financial Stability Facility (EFSF) and, where applicable, the Europ ean Stability Mechanism 
(ESM) within the framework of the financial assistance programme shall be exempt from the 
secrecy obligation under Article 6 of Royal Decree -Legislation 1298/1986 insofar as disclosure of 
the relevant information is required for the perfo rmance of the functions of those institutions in 
connection with the financial assistance programme.  
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
ECB-PUBLIC  
2 1.2 The Fund for Orderly Bank Restructuring (FROB) is  authorised to enter into any agreements or 
contracts as required in order to formalise the financial assistance and to make the financial 
assistance programme available to the State and the FROB.  
1.3 In the context of recapitalisation, the FROB ma y advance, as a loan, in cash or in securities, the 
amount of aid requested by participating credit institutions. The advance payment is subject to 
certain circumstances which, in the Banco de Espa ña’s view, may ultimately impair the stability of 
the credit institution during the time frame require d for the effective subscription and payment of 
the requested financial aid by the FROB. This advance payment will be offset as a credit claim 
against the credit institution on the date of sub scription and disbursement of the instruments 
representing the equivalent amount of own resources.  If, the subscription and disbursement do not 
ultimately take place, the credit institution will be ob liged to immediately repay to the FROB all of 
the cash or securities granted under the loan. If the amount of the financial support granted is lower 
than the amount of the advance, the credit ins titution will immediately repay the corresponding 
excess amount. 
1.4 The Deposit Guarantee Fund (DGF) may adopt me asures to facilitate the implementation of the 
financial assistance programme. The DGF may also dispose of its assets for the constitution of 
guarantees requested in the context of such fina ncial assistance. Such commitment and guarantees 
may be assumed by the credit institutions in th e framework of the recapitalisation plans, as 
approved by the Banco de España. 
 2. Duty to consult the ECB The Spanish government approved the Royal Decree -Law on 13 July 2012 and it was published in the 
Boletín Oficial del Estado  on 14 July 2012, entering into force on the following day. The urgent 
consultation request was received by the ECB on 17 Ju ly 2012, which effectively meant that the ECB was 
consulted on an adopted legislation and not on a draf t law. The ECB would like to draw the Ministry’s 
attention to the proper procedure for its consultations
2. 
 3. Information shared by the Banco de España 3.1 The confidentiality regime under Article 6 of Royal Decree-Legislation 1298/1986 imposes a 
secrecy obligation regarding all data, documents and information in the Banco de España’s 
possession. However, in the performance of its superv isory role, this provision allows the Banco de 
España to share certain information with central banks and other similar monetary authorities when 
the information is relevant for the performance of th eir relevant statutory functions, for example, in 
the implementation of monetary policy and the corresponding provision of liquidity, the oversight 
of payment, netting and clearing systems and the stability of the financial system.  
                                                 
2 See Title IV, Section I of the Guide to consultation of the European Central Bank by national authorities regarding draft 
legislative provisions, available on th e ECB’s website at www.ecb.europa.eu. 
ECB-PUBLIC  
3 3.2 The ECB understands that the supervisory informa tion to be provided by the Banco de España to 
the ECB in the context of the financial assist ance programme would be covered by the above 
mentioned Article 6, which perm its the provision of supervisory information to central banks 
generally. Against this background,  the ECB understands that, as far as concerns the information to 
be provided by the Banco de España to the ECB in particular, as distinct from the other institutions 
involved in the financial assistance programme, na mely the Commission, the IMF, the EBA and 
the EFSF or the ESM, the new exemption regarding the Banco de España’s secrecy obligations has 
no material legal impact. The ECB therefore has no objection to the insertion, for the avoidance of 
any possible doubt, of this specific additional clau se for the provision of supervisory information 
by the Banco de España to the ECB. 
 4. Advance of the financial assistance as a loan by the FROB. The ECB takes note of the possibility contained in the Fifth Additional Provision for the FROB to 
advance to any credit institution in the form of a loan , in cash or in securities, the amount of the financial 
aid requested by the participating credit institutions, and acknowledges that this tool will provide the 
FROB with additional flexibility to perform the duti es conferred under the Financial Assistance Facility 
Agreement
3. 
 This opinion will be published on the ECB’s website.    Done at Frankfurt am Main, 9 October 2012. 
 
[signed] 
 
The President of the ECB 
Mario DRAGHI 
                                                 
3  Master Financial Assistance Facility Agreement between the EFSF,  the Kingdom of Spain, the FROB and the Banco de 
España, available at http://www.eurozone.e uropa.eu/media/776296/2012-07-20-ffa-spain.pdf.