EN ECB -PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 30 May 2014   
on the organisation, supervision and solvency of credit institutions  
(CON/20 14/40)  
 
Introduction and legal basis  
On 30 April 2014, the European Central Bank (ECB) received a request from the Spanish Secr etary of 
State for Economic Affairs and Business Support for an opinion on a draft law on the organisation, 
supervision and solvency of credit institutions (hereinafter the ‘draft law’).  
The ECB’s competence to deliver an opinion is based on Article 127 (4) and Article 282(5) of the Treaty 
on the Functioning of the European Union and on the third and sixth indents of Article  2(1) of Council 
Decision 98/415/EC1, as the draft law relates to the prudential supervision of credit institutions,  the Banco 
de España , and to 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 draft law  
1.1 The draft law finishes the transposition of Directive 2013/36/EU  of the European Parliament and of 
the Council2 into Spanish legislation that first took place on 29 November 2013  with the adoption 
of Royal Decree -Law 14/2013 , which  implemented the most urgent provisions of Directive 
2013/36/EU.  
1.2. Although the draft law is mainly a transposition of Directive 2013/36/EU , it also recasts current 
Spanish legislation on the organisa tion, supervision and solvency of credit institutions,  and includes  
a number of new provisions . 
(a) The Banco de España, in its capacity as national competent authority  for the banking sector  
and as an integral part of the Single Supervisory Mechanism (SSM) to gether with the ECB 
and other national competent authorities , is to exercise its supervisory powers in cooperation 
                                                 
1 Council Decision 98/415/EC of 29 June 1998 on the consultation o f the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p.  42). 
2  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit 
institutions a nd the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC 
and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).  
ECB -PUBLIC  
2 with the ECB and subject to the powers assigned to the ECB by Council Regulation (E U)   
No 1024/20133 (hereinafter the ‘SSM Regulation ’). 
(b) The Banco de España ’s comprehensive assessment of credit institutions under Article 33(4) 
of the S SM Regulation  is to be subject to a new, one -time fee. 
(c) The aggregate results of the annual stress tests to be conducted on credit institutions subject 
to the Banco de España ’s supervision  are to be sent to  the Spanish Parliament . 
(d) The Banco de España will have the power to withdraw banking authorisations , a task that 
was previously the responsibility of the Ministry for Economic Affairs and Competitiveness, 
as well  as the power to  authorise the establishment of branches and the free provision of 
services by non -Union credit institutions . 
(e) The Banco de España will be able to interven e in a credit institution and temporarily replac e 
its management where it determine s that shareholders’ actions could  be seriously detrimental 
to the credit institution’s  financial situation . 
(f) The remuneration policies concerning  the members of boards of directors of credit 
institutions are submitted to the shareholders meeting or an equival ent body for approval 
subject to the same conditions as those applicable to listed companies under Spanish 
mercantile law . 
(g) The administrative liability of members of the control committee  (comisión  de control ) of 
savings banks is clearly defined  and will c onsider  the following to be very serious 
infractions: (i)  serious and persistent negligence in fulfilling  statutory duties ; or (ii) failure  to 
propose the suspension of board of directors’ agreements that are manifestly illegal or 
seriously detrimental to the financial situation of the savings bank or its depositors or clients . 
(h) The composition  of the Steering Committee of the Deposit Guarantee Fund of Credit 
Institutions (DGF) will be changed to include a representative from the Ministry for 
Econom ic Affair s and Competitiveness and a representative from the Ministry of Finance 
and Public Administration.  
 
2. General observations   
The ECB welcomes th e use of  the draft law to recast the current, basic provisions governing the 
organisation, supervision and solve ncy of credit institutions  into a single , comprehensive  law, in order to 
improve the efficiency of the Spanish financial legal framework . Such consolidation  may, inter alia , assist 
in smooth ly integratin g the Spanish national banking supervisory structure into the SSM and ensur ing that 
there are no legal obstacles under national law to the ECB’s performance of banking supervisory tasks 
with the assistance of the national competent authority under the SSM Regulation. The ECB also 
                                                 
3  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring  specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions  (OJ L 287, 29.10.2013, p. 63). 
ECB -PUBLIC  
3 understands that the rules a re not intended to narrow or amend the scope of the SSM Regulation, which is 
directly applicable.  
In particular, it should be noted that a number of provisions under Spanish law with regard to  banking 
supervision may become outdated when , pursuant to the S SM Regulation, some of the tasks presently 
assigned to the Banco de España are assumed  by the ECB on 4 November 2014 . The ECB will then be 
the competent authority to authorise credit institutions, to withdraw authorisations and to assess the 
acquisition an d disposal of qualifying holdings for both significant and less significant  credit institutions. 
The ECB will also conduct direct supervision over significant credit institutions , which  will have an 
impact on most of the tasks allocated by the draft law to the Banco de España in respect of such credit 
institutions . Relevant procedures for conducting those tasks were  provided for  in Regulation (EU)                  
No 468 /2014 (ECB/2014 /17) of the European Central Bank  4 (hereinafter  the ‘ SSM Framework 
Regula tion’), which applies to public authorities and credit institutions. Both the SSM Regulation and the 
SSM Framework Regulation will have primacy over the draft law (once enacted)  and therefore the draft 
law must  be read an d applied in conjunction with these  regulations . 
  
3. Governance of the Deposit Guarantee Fund  
According to the draft law , the two new members of the Steering Committee of the DGF  are to be 
representatives of the Ministry for Econom ic Affairs and Competitiveness and the Ministry of Finance 
and Public Administration , respectively.  In this regard, the ECB draws attention to recital 8 and                 
Article 4(12) of the recent proposal  of the European Parliament and the Council5 to recast Directive 
94/19/EC of the European Parliament and o f the Council6, which  will require Member States to ensure 
that their Deposit Guarantee Schemes have sound governance practices in place. Despite the fact that  
having only  two government members on the Steering Committee of the DGF  implies  that government  
influence on the decisions  to be  taken by th at committee  will be limited , the ECB emphas ises that 
providing for  politi cally appointed person s to sit on  the DGF’s governing body  should not compromise its 
efficient functioning , and should not lead to any inc rease in political intervention in the res olution of 
credit institutions7. As previously pointed out, the DGF may have a role  in banking resolution procedures 
through the provision of finance for s uch resolution , as long as it does not  in any way  compromis e its core 
function of protecting insured deposits8. 
                                                 
4  Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the fram ework for cooperation 
within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and 
with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ L 141, 14.5.  2014, p. 1).  
5  Proposal f or a Directive of the European Parliament and of the Council on Deposit Guarantee Schemes . This proposal 
was approved by the European Parliament on 15 April 2014 but has not yet been published in the Official Journal.  
6  Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit -guarantee schemes                  
(OJ L 135 , 31.5.1994, p. 5).  
7  See paragraph 3.5 of Opinion CON/2011/21.  All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu. 
8  See paragraph 2.1 of Opinion CON/2013/25. 
ECB -PUBLIC  
4 In any case, the entire matter should soon be subject to a de tailed  review, in order to comply with the 
upcoming Union banking resolution framework (including the Banking Recovery and Resolution 
Directiv e9 and the Single Resolution Mechanism Regulation10). 
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main, 30 May 2014 . 
 
 [signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
9  Directive 2014 XX/EU of the European Parliament and of the Council establishing a framework for the recovery and 
resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 
2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and 
Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council . Not yet 
published in the Official Journal. 
10  Proposal  for a regulation of the European Parliament and of the Council establishing uniform rules and a uniform 
procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution 
Mechanism and a Single Bank Re solution Fund (COM (2013) 520 final).