Opinion of the European Central Bank of 23 December 2004 at the request of the Spanish Ministry for Economic Affairs and Finance on the draft State Budget Law for 2005 amending Law 41/1999 of 12 December 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)
Date: 2004-12-23
Institutions: European Central Bank
Subjects: Spain, banking supervision, central bank, credit institution, national law, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 23 December 2004 

at the request of the Spanish Ministry for Economic Affairs and Finance on the draft State Budget 

Law for 2005 amending Law 41/1999 of 12 December 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 20051 (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 Decision 98/415/EC of 29 June 1998 on the 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  management  structure  for  the  Sistema  Nacional  de 

Compensación  Electrónica  (National  Automated  Clearing  System;  hereinafter  ‘SNCE’),  the 

domestic  clearing  system  for  retail  payments.  SNCE  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 notes, credit transfers, 

direct debits, commercial bills, whether bills of exchange 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 sistemas de pagos y de liquidación de valores 
(Law 41/1999 of 12 November 1999 on payment and securities settlement systems)3  

1  
2  
3  

Boletín Oficial de las Cortes Generales, 30.9.2004. 
OJ L 189, 3.7.1998, p. 42. 
B.O.E., Spanish Gazette, of 13 November 1999. 

 
 
 
                                                      
5. 

The  Banco  de  España  has  managed  the  SNCE  since  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 from 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  Interbancarios,  Sociedad  Anónima  (the  Servicio), 

which becomes the Company. In addition, the Servicio’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 their 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  the  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 the future manages other systems than SNCE, its 

internal  rules  will  need  to  provide  for  participation  in  the  capital  share  of  the  Company  of  the 

7. 

8. 

participants in such other systems. 

The ECB takes note of  these developments. 

A  consequence  of  the  privatisation  of  SNCE’s  management  is  that  the  Company,  subject  to 

authorisation by the Banco de España, will establish 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 participation in SNCE or in the other systems it manages. 

This participation is limited by the draft law to credit 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 through 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  Parliament  and  of  the  Council  of  20  March  2000 
relating to the taking up and pursuit of the business of credit institutions5. This interpretation would 

theoretically  allow  for  direct  remote  participation  in  SNCE,  which  the  ECB  considers  should  in 

4  

5  

Directive 98/26/EC of 19 May 1998 of the European Parliament and of the Council on settlement finality in payment and 
securities settlement systems, OJ L 166, 11.6.1998, p. 45. 
OJ L 126, 26.5.2000, p. 1. 

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principle  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 important 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  domestic  at  the  euro  area  level  and  reach  a  level  of 

reliability and efficiency at least on par with the 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  generation  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  limitation  on  participation  in  SNCE  or  in  the  other 

systems  managed  by  the  Company  is  also  relevant  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 participants in SNCE or such other systems.   

13.  The ECB welcomes the option given to the Company 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 activities in line with the SEPA.  

14.  Finally, the ECB welcomes the draft law’s inclusion (new Article 8(b) of Ley 41/1999) of SNCE as 

a system recognised under the Settlement Finality Directive. 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 clarify 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  the  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  recommendations  by  international  organisations.  Without 

prejudice  to  this  clarification  of  the  Banco  de  España’s  regulatory  powers  in  this  field,  the  ECB 

notes that the Banco de España retains the possibility 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 settlement systems. The Banco de España may gather 

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as much information and documentation as it considers necessary to evaluate their efficiency and 

reliability. In particular, the new Article 16 expressly 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 

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