Opinion of the European Central Bank of 12 December 2008 at the request of the Spanish State Secretary for Economic Affairs on a draft law amending the Law on payment and securities settlement systems (CON/2008/87)
Date: 2008-12-12
Institutions: European Central Bank
Subjects: Spain, credit institution, investment company, payment system, single payment scheme

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 12 December 2008 

at the request of the Spanish State Secretary for Economic Affairs 

on a draft law amending the Law on payment and securities settlement systems 

(CON/2008/87) 

Introduction and legal basis 

On  10  November  2008  the  European  Central  Bank  (ECB)  received  a  request  from  the  Spanish  State 

Secretary  for  Economic  Affairs  for  an  opinion  on  a  proposal  for  a  draft  law  on  payment  services 

amending Law 41/1999 on payment and securities settlement systems (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  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  provisions1,  as  the  draft  law  relates  to  the  Banco  de  España  and  payment  systems.  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 

The draft law transposes Directive 2007/64/EC2. The sixth final provision of the draft law amends Law 

41/1999  on  payment  and  securities  settlement  systems,  which  transposed  Directive  98/26/EC  of  the 

European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities 
settlement  systems3  (hereinafter  the  ‘Settlement  Finality  Directive’).  This  opinion  focuses  on  the 

amendments to Law 41/1999, as the consulting authority requested the ECB’s comments only on the sixth 

final provision of the draft law.  

The proposed amendments are: 

– 

1  
2  

3  
4  

to  delete  the  Servicio  de  Liquidación  del  Banco  de  España  (SLBE,  the  Spanish  real-time  gross 
settlement  system  (RTGS)  component  of  TARGET4)  from  the  list  of  systems  designated  by  the 

competent  Spanish  authorities,  following  the  replacement  of  TARGET  by  TARGET2  and  the 

subsequent replacement of the SLBE by TARGET2-Banco de España; 

OJ L 189, 3.7.1998, p. 42.  
Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the 
internal  market  amending  Directives  97/7/EC,  2002/65/EC,  2005/60/EC  and  2006/48/EC  and  repealing  Directive 
97/5/EC (Text with EEA relevance), OJ L319, 5.12.2007. 
OJ L 166, 11.6.1998, p. 45. 
Trans-European Automated Real-time Gross settlement Express Transfer. 

 
 
 
 
                                                 
– 

to  extend  the  definition  of  system  participant  to  cover  credit  institutions  and  investment  firms 

authorised to operate in the European Economic Area (EEA), in order to allow their participation in 

systems designated by the competent Spanish authorities, thereby meeting the needs expressed by 

payment system market operators, in particular in the context of achieving the single euro payment 

area (SEPA); 

– 

to extend participation in the Sistema Nacional de Compensación Electrónica, (SNCE, the Spanish 

system  for  retail  transactions)  or  other  systems  managed  by  Sociedad  Española  de  Sistemas  de 

Pago, S.A. (Iberpay) to institutions authorised to operate in the EEA; 

– 

to  delete  the  requirement  that  Iberpay  systems  settle  fund  transfer  orders  only  on  a  cash  account 

with the Banco de España, in line with the current Article 3(d) of Law 41/1999, which is applicable 

to such systems and allows for settlement on a cash account with the Banco de España but also with 

the  ECB  or  a  national  central  bank  whose  system  is  connected  to  Banco  de  España’s  within  the 

European System of Central Banks; 

– 

also  with  regard  to  Iberpay  systems,  to  delete  the  requirement  to  publish  basic  system  operation 

rules in the Boletín Oficial del Estado, as this requirement is already laid down in Article 3(a) of 

Law 41/1999, which is applicable to all Spanish designated systems.  

2. 

Participation in designated systems 

The  ECB  welcomes  the  proposal  to  open  up  cross-border  participation  in  the  Spanish  retail  payment 

market, thereby helping to achieve the SEPA’s objective of one single payment area.  

The ECB also welcomes the proposal to extend the definition of system participant to cover institutions 

authorised  to  operate  in  the  EEA  in  order  to  allow  their  participation  in  systems  designated  by  the 

competent Spanish authorities, but notes that the list of institutions which may participate in payment or 

settlement  systems  designated  under  the  Settlement  Finality  Directive  should  include  any  undertaking 

whose head office is outside the Community and whose functions correspond to those of the Community 
credit institutions or investment firms5.   

3. 

Oversight of Iberpay 

Regarding the Banco de España’s oversight of Iberpay provided for in Article 17(3) of the draft law, the 

ECB notes that this competence has to be exercised in accordance with Eurosystem oversight standards 

and policies established on the basis of the fourth indent of Article 105(2) of the Treaty and Article 22 of 

the Statute of the European System of Central Banks and of the European Central Bank. 

5  

See Article 2(b), fourth indent of the Settlement Finality Directive. 

2 

 
 
 
 
 
                                                 
This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 12 December 2008. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

3