EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 16 November 2021  
on the Banco de España’s  new and expanded tasks relating to covered bonds   
and the single euro payments area  
(CON/20 21/34) 
 
Introduction and legal basis  
On 14 October 202 1 the European Central Bank (ECB) received a request from the Ministry of Economic 
Affairs and Digital Transformation for an opinion on a draft law  on covered bonds  (hereinafter the ‘draft 
law’).  The draft law was approved as a Royal Decree- Law on 2  November 2021 and published in the Official 
Journal a day later.1 The Royal Decree- Law is currently pending ratification by the Congress .   
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/EC2, as 
the draft l aw relates to the Banco de España and the ECB’s tasks concerning the prudential supervision of 
credit institutions pursuant to Article 127(6) of the Treaty . 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 is to implement  Directive (EU) No 2019/2162 of the European 
Parliament and of the Council3 in Spanish law . The draft law  accordingly designates the Banco de 
España as the competent authority responsible for the public supervision of covered bonds  issued 
by credit institutions  and confers on it supervisory, investigatory and sanctioning powers  in relation 
to the compliance with the requirements of the draft law and i ts implementing administrative 
regulations of credit institutions issuing covered bonds , including under covered bond 
programmes4. More particularly, the Banco de España is to authori se the issuance by credit 
institutions  of a covered bonds programme  and to approve the appointment  of the monitoring body 
for the cover pool (the ‘cover pool monitor’), whether this is an external service provider or internal 
to the credit institution issuing the covered bonds5. The Banco de España must  keep a register of 
 
1  BOE, n úm. 263 of 3 de Noviembre 2021 . 
2  Council Decision 98/415/EC of 29  June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions (O J L 189, 3.7.1998, p. 42).  
3  Directive (EU) 2019/2162 of the European Parliament and of the Council of 27 November 2019 on the issue of 
covered bonds and covered bond public supervision and amending Directives 2009/65/EC and 2014/59/EU (OJ L 
328, 18.12.2019, p. 29).  
4  Article 31 (4) and Articles 33 and 36 of the draft law.  
5  Article 31(4) of the draft law.  
ECB -PUBLIC  
2 the cover pool monitors detailing the programme or programmes for which each monitor has been 
authorised. It may r equire credit institutions to make changes to the cover pool policies and 
procedures based on cover pool risk diversification  considerations6. The Banco de España is also 
required to make certain disclosures,  including the publication on its website of the list of credit 
institutions permitted to issue covered bonds7. In the event of the insolvency of a credit institution 
issuing covered bonds under that programme t he presiding judge must consult the Banco de 
España on the appointment of a special administrator to adminis ter a covered bond programme . 
The Banco de España may also adopt non- binding instruments and technical guidelines in relation 
to the supervision of covered bonds.  
1.2 The draft law also designates Banco de España as the competent authority responsible for 
ensuring compliance with the payment accessibility requirement of Article 9 of Regulation (EU) 
No 260/2012 of the European Parliament and of the Council8 in relation to companies, 
entrepreneurs or professionals acting on the basis of their commercial or professional activities 
which are not payment service providers and are beneficiaries of a payment order whose originator 
is another company, entrepreneur or professional acting on the basis of their commercial or  
professional activity that is not a payment service provider. In this respect the Banco de España 
may request the necessary information to ascertain whether companies, entrepreneurs or 
professionals which are the beneficiaries of a payment are not requiri ng that transfers and direct 
debits are made only through accounts located in their country of origin.  The Banco de España 
may also impose sanctions in this respect9. 
 
2. Specific observation s 
2.1 Directive (EU) No 2019/2162 must be interpreted in line with Council Regulation (EU) 
No 1024/201310, to which it refers11. Article  4(1)(a) of Regulation (EU) No 1024/2013 gives the ECB 
the exclusive task of authorising credit institutions and withdrawing authorisations of credit 
institutions . The draft law’s provisions implementing Directive (EU) No 2019/2162 regarding the 
right to issue authorisations for the issuance of covered bonds must also be interpreted in line with 
Regulation (EU) No 1024/2013. In accordance with Article 6(4) of Regulation (EU) No 1024/2013, 
the ECB exercises this responsibility in respect of both significant and less significant institutions. 
This task is exercised for all banking activities listed in Annex I of Directive 2013/36/EU  of the 
 
6  Article 37 of the draft law.  
7  Article 38 of the draft law.  
8  Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical 
and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No  924/2009 
(OJ L 94, 30.3.2012, p. 22).  
9  Paragraphs 2 to 5 of the fourth additional disposition of  Real Decreto -ley 19/2018, de 23 de noviembre, de servic ios 
de pago y otras medidas urgentes en materia financiera, BOE núm. 284, e 24 de noviembre de 2018, páginas 
114474 a 114568.  
10  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning poli cies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).  
11  Recital 27 of Directive (EU) No 2019/2162.  
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3 European Parliament and of the Council12 as well as for any additional activity allowed under 
national law13. 
2.2 The draft law implements Article 19 of Directive (EU) 2019/2162, which requires permission for a 
covered bond programme to be obtained before issuing covered bonds under it. Under Article 34( 1) 
of the draft law the issuance of a covered bond programme requires the Banco de España’s pr ior 
authorisation.  
2.3 The ECB has previously opined on the allocation of competences between the ECB  and the 
national competent authorities ( NCAs ) in the Single Supervisory Mechanism14, noting that Directive 
(EU) 2019/2162 makes provision for the supervision of covered bonds by the NCAs and that this 
product supervision is distinct from and without prejudice to the ECB’s prudential supervisory tasks 
under Regulation (EU) No 1024/2013 and, in particular, does not affect the ECB’s exclusive task 
of authorising credit institutions and withdrawing authorisations of credit institutions, which may, 
depending on the national legal framework, include a general authorisation to issue covered bonds. 
Similarly, the ECB remains competent to ensure that the prudential risks arising from covered bond 
issuances as well as investments in covered bonds are adequately manag ed and assessed by 
credit institutions. The ECB has also previously noted15 that any possible authorisation for a specific 
covered bond programme or supervision of covered bonds as a financial product would be 
considered as a product -specific regulation and, as such, to fall under the supervision of an  NCA . 
2.4 Accordingly, the competence conferred on the Banco de España by the draft law to authorise the 
issuance by a credit institution of a covered bonds programme should be without prejudice t o the 
ECB’s competence to issue authorisations for credit institutions.  
 
3. Conferral of new task s on the Banco de España  as to  the supervision of covered bonds  
3.1 New task s of the Banco de España  
3.1.1  The draft law confers tasks concerning the supervision of covered bonds o n the Banco de España. 
It should be noted that the existing national covered bonds legislation already confers certain 
specific supervisory tasks in relation to the monitoring and inspection of covered assets  on the 
Banco de España. These tasks vary depending on the type of instrument concerned. In particular, 
certain specific supervisor y tasks have been conferred on the Banco de España in relation to 
mortgage covered bonds ( cédulas y bonos hipotecarias ), internationalisation covered bonds 
(cédulas y bonos de internacionalización) and public sector covered bonds ( cédulas territoriales ). 
Despite the conferral of these specific supervisory tasks o n the Banco de España, the existing 
 
12  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of 
credit institutions and 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).  
13  See paragraph 3.1 of Opinion CON/ 2019/1 and paragraph 3.1 of Opinion CON/ 2021/26. All ECB opinions are 
published on EUR -Lex. 
14  See General observations in  Opinion of the European Central Bank of 22 August 2018 on a proposal for a 
directive of the European Parliament and of the Council on the issue of covered bonds and covered bond public 
supervision and amending Directive 2009/65/EC and Directive 2014/59/EU; and on a proposal for a regulation of the 
European Parliament and of the Council on amending Regulation (EU) No 575/2013 as regards  exposures in the 
form of covered bonds (CON/2018/37)  (OJ C 382, 23.10.2018, p. 2)  and paragraph 3. 3 of Opinion CON/ 2021/26 . 
15  See paragraph 3.1 of Opinion CON/2019/1  and paragraph 3. 3 of Opinion CON/ 2021/26 . 
ECB -PUBLIC  
4 Spanish covered bonds legislation provides a general competence to the Ministry of Economy to 
ensure compliance with the requirements established in this legislation, including those 
requirements applicable to the different types of covered bonds, without prejudice to the specific 
powers of the Banco de España16. The general tasks which are proposed to be conferred on the 
Banco de España by the draft law may therefore be properly characterised as new tasks of the 
Banco de España.  
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 asses sed 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 3603/9317 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. 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 wheth er 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.  
3.1.4  As part of its discretion in the exercise of its duty , on the basis of Article 271(d) of the 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 endorsed 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 constit utes 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.  
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 conf erred 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 
 
16  See Article 21 of L ey 2/1981 , de 25 marzo, de  regulación del mercado hipotecario, BOE  núm. 90, de 15 de abril de 
1981, páginas 8148 a 8150 .  
17  Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the 
prohibitions referred to in Articles 104 an d 104b (1) of the Treaty (OJ L 332, 31.12.1993, p. 1 ). 
ECB -PUBLIC  
5 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 conflict of interest aris es 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 the 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 capac ity, 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 cons iderations;  
(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 may 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.  
3.1.5  The systematic categorisation of tasks assigned to NCBs as central banking or government tasks 
applies to genu inely new tasks that did not exist in the past or did not form an integral part of the 
central banking tasks already assigned to the NCB in the past. In recognition of the different 
Member States’ legal frameworks, central banking traditions and national s et-ups, the tasks 
currently discharged by an NCB as central banking tasks are not reviewed and re- categorised, but 
may be reassessed if they are subject to legislative amendments of substance18. On the basis of  
the criteria set out in paragraph 3.1. 4, the following paragraphs assess whether the draft law  is in 
line with the prohibition on monetary financing.  
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 Banco de España’s proposed task of supervising covered bon ds is not related to the tasks 
conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB.  
 
18  This statement of the approach taken reflects, for example, paragraph 2.3.1 of Opinion CON/2015/22.  
ECB -PUBLIC  
6 3.3 Tasks which are atypical of central bank tasks  
The task of supervising covered bonds  is not atypical of central bank tasks.  This task complement s 
the existing role of several  NCBs as supervisor s of credit institutions . A central bank acting as a 
banking supervisor may be entrusted with the task of supervising covered bonds due to its specific 
expertise regarding credit institutions’ balance sheets , which is relevant  to ensuring compliance 
with the requirement s relating to the high quality of cover ed assets with the purpose of ensuring 
the robustness of the covered pool.  
In the implementation of Directive (EU) 2019/2162, or under other relevant provisions of  national 
law, Member States have conferred supervisory tasks in relation to covered bonds on a wide range 
of public authorities including central banks, financial supervisory authorities (some of wh ich are 
central banks), and securities market supervisors . More concretely, the ECB has identified nine 
Member States that had  directly conferred these supervisory tasks or a substantial part of these  
supervisory tasks on their NCBs19. The ECB also understands that in the implementation of 
 
19  In Belgium , the law of August 3, 2012 establishing a legal regime for Belgian covered bonds designates the National 
Bank of Belgium ( NBB)  as the relevant authority to grant two types of authorisations to credit institutions for the 
issuance of covered bonds . A first  type is to verify that credit institutions  have the organizational capacity to issue 
covered bonds. In this respect, NBB is responsible for granting such authorisation vis -à-vis less significant 
institutions. The second type, which is granted by NBB regardless  of the significance of the institution, aims to verify 
whether the credit institution satisfies all requirements  specifically related to the issuance of the covered bonds.  In 
Cyprus , Law (130 (I)/2010) on covered bonds, designates the Central Bank of Cyprus (CBC) as the competent 
authority for the purpose of the inscription and maintenance of a covered bonds registe r (sections 12 to 17). The 
CBC is also entitled to appoint a covered bond monitor in certain circumstances. Administrative Decision 463/2006 
issued under the provisions of the above Law constitutes the regulatory framework for the issue of covered bonds. 
In the Czech Republic , Act No. 6/1993 on Czech National Bank (CNB) refers to the supervisor of entities operating 
in the financial market as one of the functions of CNB. On this basis, Act No. 190/2004 Coll., on Bonds, refers to 
CNB as the authority which must be informed by the issuer institutions of  their compliance with the terms of the Act 
(Article 32) or the authority in charge of appointing the forced administrator of covered pools (Article 32.d).  In Greece,  
article 152 of Law 4261/201 4 and the Bank of Greece’s Governor’s Act No 2620/2009 currently set the conditions 
for qualifying the bonds issued by credit institutions as covered bonds for supervisory purposes. Bank of Greece  has 
been designated as the competent authority in this respect and has been empowered, among other things, to define 
the assets that form the cover pool, to establish rules on the assets’ valuation and to ensure proper monitoring of 
the coverage. In addition, the covered bond program must be authorized by the Bank  of Greece  before issuance 
takes place. Bank of Greece  may also appoint an administrator in the event of the issuer’s insolvency.  In Ireland , 
under section  54 of the Asset Covered Securities Act, 2001, the Central Bank of Ireland (CBI ) is entitled to have 
access to the issuing institution’s register of public credit covered securities. On the basis of this same provision, the 
CBI may specify requirements in relation to the valuation of the assets in the covered pool held by the issuer 
institutions. The CBI may appoint the cover assets monitor in specific circumstances and possesses investigative 
powers in relation to the activities that the issuer institutions carry out on the basis of the Act ( Part 5 ). In Netherlands , 
sections  3:33a and 3:33b of  the amendment of the Financial Supervision Act ( Wet op het financieel toezicht ), 
Section 40d up to and including Section 40k of the Decree on Prudential Rules for Financial Undertakings ( Besluit 
prudentiële regels), and section 20d up t o and including Section 20i of the Regulation Implementing the Financial 
Supervision Act ( Uitvoeringsregeling), set the conditions and minimum requirements that an issuing institution must 
meet if bonds issued or to be issued by that institution are to qua lify as covered bonds that may be entered in the 
public register of covered bonds maintained by De Nederlansche Bank (DNB). In addition to maintaining the public 
register of covered bonds, DNB is responsible to assess the conditions and minimum requirement s referred to above. 
In the Explanatory Memorandum ( memorie van toelichting ) accompanying the introduction of this legal framework, 
it is mentioned that the scope of supervision by DNB is extended with the introduction of this legal framework. In  
Romania , Law no.304/2015 on mortgage bonds issuance and Regulation no. 1/2016 on the activity of issuing 
mortgage bonds confers supervisory powers on the Banca Naţională a României regarding mortgage bonds issued 
by credit institutions, such as the prior authorisat ion of each issuance of mortgage bonds by the issuer institution. In 
Slovakia , according to the law amending and supplementing the Act No 483/2001 Coll. on Banks, Národná banka 
Slovenska, as a national competent authority for supervision of the financial m arket, is designated as the only 
competent authority for the purpose of Division Twelve (“Covered Bonds Programmes”) of the Act . In Slovenia , the 
Mortgage Bond and Municipal Bond Act ( Zakon o hipotekarni in komunalni obveznici ) requires from the issuing 
institution the need to obtain an authorisation from Banka Slovenije before issuing mortgage and municipal bonds. 
To that end, this Act establishes the methodology for determining the conditions for obtaining such authorisation 
(Articles  8 and 9). Banka Slovenije is also responsible for issuing and withdrawing the authorisation to the custodian 
of the cover register (Article 43).  
ECB -PUBLIC  
7 Directive (EU) 2019/2162 several Member States are considering confer ring tasks relating to the 
supervision of covered bonds on  their respective NCBs.  
The 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  the Banco de España20 and on the basis of Law 
10/2014  on the regulation, supervision and solvency of credit institutions21, may supervis e credit 
institutions that issue covered bonds in Spain.  Given the Banco de España’s existing role in the 
supervision of credit  institutions , a role which  numerous other ESCB NCBs  fulfil in relation to such 
institutions in their respective Member States , as well as the existing specific tasks conferred on 
the Banco de España in relation to the supervision of covered bonds, its new tasks under the draft 
law are not  atypical 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 Banco de España’s supervisory tasks in relation to covered bonds 
issued by credit institutions  conferred by the draft law  are not tasks discharged on behalf of and in 
the exclusive interest of the government. The Banco de España already plays a role in  both the 
supervision of covered bonds and in  the prudential supervision of credit institutions . There is no 
indication that, in carrying out the new tasks conferred by the draft law,  the Banco de España would 
be acting exclusively in the interest of another public authority.  
3.5 Extent to which performance of the new tasks creates conflicts of interest wi th existing central bank 
tasks 
Since the Banco de España’s new tasks under the draft law complement its existing tasks , no 
conflicts of interest arise with other aspects of the Banco de España’s mandate.  
3.6 Extent to which the performance of the new tasks is disproportionate to the Banco de España’s  
financial or organisational capacity  
 The ECB notes that it  is essential to  ensure that the 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 ing the Banco de España these additional powers  will be financed. The ECB understands that 
the additional resources required by the Banco de España to exercise these additional powers  will 
be financed through its existing budgetary framework  and so there will be no specific cost recovery 
mechanism designed to ensure the full recovery of the costs incurred in carrying out the supervision 
of covered bonds. However, the performance of the new task s by the Banco de España is not 
disproportionate to its financial or organisational  capacity . 
 
20  Ley 13/1994, de 1 de junio, de Autonomía del Banco de España, BOE núm. 131, de 2 de junio de 1994,  
páginas 17400 a 17408.  
21  Ley 10/2014, de 26 de junio, de ordenación, supervisión y solvencia de entidades de crédito, BOE núm. 156, de 27  
de junio de 2014, páginas 49412 a 49549.  
ECB -PUBLIC  
8 3.7 Extent to which performance of the new task s fits into the Banco de España’s institutional set -up, 
in the light of central bank independence and accountability considerations  
The performance of the new tasks appears to be aligned with the Banco de España’s institutional 
set-up. As mentioned in paragraphs  1.2 and 3.3, the Banco de España already has specific 
competences in respect of the supervision of covered bonds and is a prudential supervisor of credit 
institutions . 
3.8 Extent to which the performance of the new tasks harbours substantial financial risks  
The performance of the new task s does not harbour substantial financial risks for the Banco de 
España. The draft law does not directly address the 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 , under Article 32 of Law 40/2015 on the legal regime of 
the public sector22 natural or legal persons have a right to be compensated by p ublic 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. Under Article 1(2) of Law 13/1994 
the Banco de España is included as a public administration body for the se purposes.  Further , the 
internal rules23 of the Banco de España state that the Banco de España ’s direct liability  extends to  
claims for compensation for damages and losses that individuals make against employees of the 
Banco de España in the exercise of their functions, except in cases of gross negligence or  bad 
faith.  
3.9 Extent to which the performance of the new task s exposes members of the 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 the 
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 the Banco de España as to supervision of  the issuance 
of covered bonds by credit institutions  can be regarded as central bank tasks, as  they would 
complement the Banco de España’s existing functions in relation to the prudential  supervision of 
credit  institutions. The new tasks conferred by the draft law are not atypical of central bank tasks 
and have been conferred on a number of other ESCB NCBs . 
 
4. Substantial amendment of tasks  conferred on the Banco de España in relation to the Single 
Euro Payments Area  
4.1 Substantial amendment of the tasks of the Banco de España  
4.1.1  The ECB understands that the objective of the draft law is to ensure compliance with Regulation 
 
22  Ley 40/2015, de 1 de octubre, de Régimen Jurídico del Sector Público, BOE núm. 236, de 2 de octubre de 2015, 
páginas 89411 a 89530.  
23  See Article 25 of Resolución de 28 de marzo de 2000, del Consejo de Gobierno del Banco de España, por la que 
se aprueba el Reglamento Interno del Banco de España, BOE núm. 83, de 6 de abril de 2000, páginas 14323 a  
14340 . 
ECB -PUBLIC  
9 (EU) No 260/2012. The ECB welcomes this, in particular with regard to the right to payment 
accessibility, under which the beneficiary of a payment cannot requir e transfers and direct debits 
to be made only through accounts located in its country of residence.   
4.1.2  The Banco de España is currently one of the competent authorities in Spain  responsible for 
ensuring compliance with Regulation  (EU) No 260/2012. More concretely, under Royal  Decree-
Law 6/201324 , the Banco de España is the competent authority for ensuring the compliance of 
payment service providers (PSPs) with Regulation (EU) No  260/2012. The draft law designates the 
Banco de España  as the competent authority responsible for ensuring compliance with Article 9 of 
Regulation (EU) No 260/2012 with respect to companies, entrepreneurs or professionals that act 
on the basis of their commercial or professional activities and are not considered to be PSPs25. 
Article 9 of Regulation (EU) No 260/2012 relates to the acceptance of any euro payment account 
within the U nion for making or receiving payments and contains obligations vis -à-vis payment 
service users (PSUs)26. In particular, Article 9 ensures that payers (are able to) make credit 
transfers to, and payees (are able to) collect funds by accepting credit transfers or by using direct 
debits from, payment accounts held with PSPs which are located in any Member State, provided 
that the payment  account is reachable in accordance with Article 3 of Regulation (EU) No 260/2012. 
Accordingly, the draft law, in the context of non- PSP company -to-company  relations under Article 
9 of Regulation (EU) No 260/2012, designates Banco de España as the competent authority and 
confers sanctioning powers on the Banco de España for non- compliance with Article 9 in that 
context27.  
4.1.3  The addition of PSUs which are non- PSP companies, entrepreneurs or professionals to the group 
of entities whose compliance the Banco de España is now tasked with  monitor ing and sanction ing 
is a substantial expansion of the Banco de España’s existing tasks  under Regulation (EU) 
No 260/201228.  
4.1.4  A proposed conferral of new or substantially amended tasks on a n NCB in the ESCB must be 
assessed against the prohibition on monetary financing laid down in Article 123 of the Treaty  based 
on the considerations  set out in paragraphs 3.1.2 to 3.1. 5. 
4.2 Tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the Statute of 
the ESCB  
The task s of ensuring compliance with Article 9 of Regulation (EU) No 260/2012 , and sanctioning 
companies , entrepreneurs and professionals, whether PSPs or PSUs , for non- compliance with this 
provision , are not among the basic tasks listed in Article 127(2) and (5) of the Treaty or otherwise 
conferred upon the NCBs by the Statute of the ESCB. However, insofar as the Single Euro 
Payments Area ( SEPA ) project is designed to achieve a fully integrated internal market for 
 
24  Real Decreto -ley 6/2013, de 22 de marzo, de protección a los titulares de determinados productos de ahorro e 
inversión y otras medidas de carácter financiero, BOE núm. 71, de 23 de marzo de 2013, páginas 22901 a 22911. 
The first paragraph of the Third final disposition of the draft law reconfirms the Banco de España’s role as competent 
authority responsible for ensuring the compliance of PSPs with Regulation (EU) No 260/2012.  
25  See second paragraph of the fourth additional disposition of Real Decreto- Ley 19/2018.  
26  Under Article 2(9) of Regulation  (EU) No 260/2012 a ‘PSU’ means a natural or legal person making use of a payment 
service in the capacity of payer or payee.  
27  See the third paragraph of the Third final disposition of the draft law.  
28  See paragraphs 3.1.1 and 3.1.2 of Opinion CON/2020/23.  
ECB -PUBLIC  
10 payments and payment services, thereby enhancing public  confidence in the euro, the expanded 
tasks conferred on the Banco de España as a result of the draft law could be regarded as being 
linked to the basic ESCB task of promoting the smooth operation of payment systems29. 
4.3 Tasks which are atypical of central banks  
The ECB notes that Member States have followed different approaches when designating 
authorities responsible for ensuring  PSPs and PSUs ’ compliance  with Regulation  (EU) No 
260/2012. The majority of Member States, including in the euro area, have followed a bifurcated 
approach whereby the competent authority as regards compliance by PSPs is the respective 
central bank or financial supervision authority, and the competent authority as regards compliance 
by PSUs is a national consumer protection or competition authority. However, a number of Member 
States, including in the euro area, have designated their respective NCBs as competent authorit ies 
as regards compliance by both PSPs and PSUs30. For that reason, the expanded tasks conferred 
on the Banco de España by the draft law are  not atypical of central bank tasks31. 
4.4 Tasks clearly discharged on behalf of and in the exclusive interest of the government  
The promotion of the smooth operation of payment systems is one of the core tasks to be carried 
out by the ESCB. In that respect, the ECB has always been firmly committed to, and has actively 
promoted, a fully integrated payment area for the euro, recognis ing that this would help reduce 
substantially and eventually eliminate the differences in cost and convenience of making domestic 
and cross -border payments. As previously noted, the ECB considers that the creation of a single 
payment area for the euro is desirable in order to enhance public  confidence in the single 
currency32. The recitals  to Regulation (EU) No 260/2012 clarif y that the creation of a single payment 
area for the euro is necessary for the proper functioning of the internal market and aims to provide 
Union citizens and businesses with secure, competitively priced, user -friendly, and reliable 
payment services in eur o, regardless of location within the Union. The expanded tasks conferred 
on the Banco de España by the draft law are directly connected with these overarching objectives 
of the SEPA project and is therefore not considered as tasks that are clearly discharg ed on behalf 
of and in the exclusive interest of the government33. 
4.5 Exten t to which performance of the new task s creates conflicts of interest with existing central bank 
tasks 
In principle, the new task s as to  ensuring compliance by companies , entrepreneurs  and 
professionals which are not PSPs  in respect of their company  -to-company  relations with Article 9 
of Regulation (EU) No 260/2012 conferred upon the Banco de España as a result of the draft law  
are not expected to create any conflict of interest with existing central bank tasks. The ECB 
understands that the new task s will supplement  the Banco de España’s existing tasks under 
 
29  See paragraph 3.2 of Opinion CON/2020/23.  
30  See the Annex to the Report from the Commission to the European Parliament and to the Council on the application 
of Regulation EU n° 260/2012 establishing technical and business requirements for credit transfers and direct debits 
in euro and amending Regulation (EC) No 924/2009 , COM/2017/0683 final . Available on the European 
Commission’s website at ec.europa.eu . 
31  See paragraph 3.3 of Opinion CON/ 2020/23.  
32  See, for example, Opinion CON/2009/1 , Opinion CON/2011/32 , Opinion CON/2014/3 and Opinion CON/2020/23.  
33  See paragraph 3.4 of Opinion CON/ 2020/23.  
ECB -PUBLIC  
11 Regulation (EU) No 260/2012 regarding compliance by PSPs. In that regard, t he expanded  tasks 
are expected to ensure compliance by an important number of  PSUs which are participants in the 
market for payments and payment services with Regulation (EU) No 260/2012 and thereby 
enhance confidence in the single currency. The conferral of th ese new  tasks on the Banco de 
España is therefore aligned with the conferral on it of its existing tasks under Regulation (EU) No 
260/2012, as well as with  its competence to oversee payment systems and payment instruments34. 
4.6 Exten t to which performance of  the expanded tasks is disproportionate to the financial or 
organisational capacity of the Banco de España  
The ECB notes that PSUs which are non- PSP companies , entrepreneurs  or professionals are not 
entities already supervised by the Banco de España, and that the Banco de España will be required 
to commit additional resources , both human and financial , to carry out the new task conferred on it 
by the draft law. In this regard, the ECB would li ke to reiterate that Member States may not put their 
NCBs in a position where they have insufficient operational and financial resources to carry out 
their ESCB or Eurosystem- related tasks, as applicable. Therefore, it is necessary that the 
performance of this additional task does not affect the Banco de España’s operational or financial 
capacity to carry out other ESCB -related tasks.  
The draft law  does not specify the resources to be used by the Banco de España for the discharge 
of the abovementioned tasks , nor does it provide an estimate of the costs likely to be incurred in 
the performance of these tasks. It cannot,  therefore,  be excluded that the new task may have an 
impact on the Banco de España’s  regular budget. It is therefore important that adequate resources 
are available to the Banco de España in order to ensure that it can properly perform its tasks, while 
maintaining, at all times, sufficient means to carry out its ESCB -related and national tasks and to 
meet its administrative and operational expe nses35. 
4.7 Exten t to which performance of the new tasks  fits into the institutional set -up of the Banco de 
España, in the light of central bank independence and accountability considerations  
The performance of the Banco de España’s  expanded tasks  appears to be consistent with its 
institutional set -up and not to raise any issues in terms of accountability considerations, as the 
Banco de España has been carrying out other tasks in relation to Regulation (EU) No 260/2012 , 
as one of the competent authorities , since 2013.  
It should also be noted that, insofar as the draft law extends the Banco de E spaña’s existing 
competence to non- supervised entities, notably non- supervised PSUs in the context of Article 9 of 
Regulation  (EU) No 260/2012 , it deviates fr om the existing allocation of competences as 
established in Royal  Decree- Law 6/2013. In this regard, the ECB takes note of the fact that, as the 
explanatory memorandum of the draft law states, the relevant organisms of the Autonomous 
Communities already do the work of ensuring compliance with Article 9 of Regulation (EU) No 
260/2012 when there is a payment relationship in which natural persons or natural persons and 
companies are involved.  
 
34  See Article 7(5)(b) of Ley 13/1994 and Ley 41/1999, de 12 de noviembre, sobre sistemas de pagos y de liquidación 
de valores, BOE núm. 272, de 13 de noviembre de 1999, páginas 39646 a 39653.  
35  See paragraph  3.6 of Opinion CON/ 2020/23. 
ECB -PUBLIC  
12 4.8 Exten t to which the performance of the task harbours substantial financial risks  
The performance of the expanded tasks does not harbour substantial financial risks for the Banco 
de España. The draft law does not directly address the Banco de España’s potential l iability 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 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. The Banco de España is included as a public administration body for 
those purposes by virtue of Article 1( 2) of Law 13/1994. Further, Article 25 of the internal rules of 
the Banco de España states that the Banco de España’s direct liability extends to claims for 
compensation for damages and losses that individuals make agai nst employees of the Banco de 
España in the exercise of their functions, except in cases of gross negligence or bad faith.  
4.9 Exten t to which the performance of the new tasks  exposes members of the decision- making bodies 
of the Banco de España  to disproportionate political risks and impacts on their personal 
independence  
The performance of the expanded tasks conferred by the draft law does not expose members of 
the Banco de España’s decision- making bodies to any disproportionate political risk or have an 
impact on their personal independence.  
4.10 Conclusion  
Insofar as the SEPA project is designed to achieve a fully integrated internal market for payments 
and payment services, thereby enhancing public  confidenc e in the single currency, the new tasks 
conferred on the Banco de España by the draft law are considered to be linked to the basic ESCB 
task of promoting the smooth operation of payment systems. Moreover, these  tasks are not atypical 
of central bank tasks, as a number of Member States have designated their respective NCBs as 
competent authorities for ensuring compliance by PSUs with Regulation (EU) No 260/2012.  
 
This opinion will be published on EUR -Lex. 
 
 
Done at Frankfurt am Main,  16 November 2021.  
 
[signed]  
 
The President of the ECB  
Christine LAGARDE