Opinion of the European Central Bank of 14 September 2009 on money laundering and terrorist financing prevention provisions relating to the Banco de España (CON/2009/70)
Date: 2009-09-14
Institutions: European Central Bank
Subjects: Spain, central bank, fight against crime, money laundering, national law, terrorism financing

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 14 September 2009 

on money laundering and terrorist financing prevention provisions relating to the Banco de España  

(CON/2009/70) 

Introduction and legal basis 

On  11  August  2009  the  European  Central  Bank  (ECB)  received  a  request  from  the  Spanish  State 

Secretary for Economic Affairs for an opinion on a draft law on the prevention of money laundering and 

terrorist financing (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  on  the  third  indent  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 contains provisions relating to the Banco de España. 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  2005/60/EC  of  the  European  Parliament  and  of  the  Council  of 

26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering 
and terrorist financing2, Commission Directive 2006/70/EC of 1 August 2006 laying down implementing 

measures  for  Directive  2005/60/EC  of  the  European  Parliament  and  of  the  Council  as  regards  the 

definition  of  politically  exposed  person  and  the  technical  criteria  for  simplified  customer  due  diligence 

procedures  and  for  exemption  on  grounds  of  a  financial  activity  conducted  on  an  occasional  or  very 
limited  basis3,  and  Regulation  (EC)  No  1781/2006  of  the  European  Parliament  and  of  the  Council  of 
15 November 2006 on information on the payer accompanying transfers of funds4. 

The preamble to the draft law explains that, with a view to reducing adaptation costs, the current Spanish 

provisions in this field are maintained to the extent that they are not contrary to Community legislation. 

1  
2  
3  
4  

OJ L 189, 3.7.1998, p. 42.  
OJ L 309, 25.11.2005, p. 15. 
OJ L 214, 4.8.2006, p. 29. 
OJ L 345, 8.12.2006, p. 1. 

 
 
 
 
                                                 
The draft law unifies the rules on money laundering and terrorist financing prevention, putting an end to 

the current separation that may be described as follows. On the one hand, money laundering prevention is 

governed  by  Law  19/1993  of  28  December  1993  on  money  laundering  prevention  measures,  which 

created the Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias (Commission 

for  the  prevention  of  money  laundering  and  monetary  offences)  (‘the  Commission’)  within  the  State 

Secretariat  for  Economic  Affairs.  Law  19/1993  also  created  the  Commission's  Executive  Service 

(‘SEPBLAC’), which is the Spanish financial intelligence unit and is attached to the Banco de España. 

Royal Decree 925/1995 of 9 June 1995 implementing Law 19/1993 laid down detailed provisions on the 

SEPBLAC. The Banco de España appoints the SEPBLAC's director and pays its costs. On the other hand, 

terrorist financing prevention is governed by Law 12/2003 of 21 May 2003 on prevention and blocking of 

terrorist  financing,  which  created  the  Comisión  de  Vigilancia  de  Actividades  de  Financiación  del 

Terrorismo (Commission for the surveillance of terrorist financing). Law 12/2003 regulates the freezing 

or  blocking  of  funds  potentially  linked  to  terrorism,  but  also  reproduces  the  prevention  of  money 

laundering obligations of Law 19/1993, which is clearly not ideal. 

A decision was therefore made to maintain the freezing and blocking provisions of Law 12/2003, as well 

as  the  Commission  for  the  surveillance  of  terrorist  financing’s  competence  to  order  the  freezing  or 

blocking of funds when there are grounds to do so, and to regulate terrorist financing prevention together 

with money laundering prevention in the draft law.  

The draft law also includes provisions regarding the Banco de España, on which the ECB is specifically 

consulted: 

(a) 

institutional organisation: the SEPBLAC depends organically and functionally on the Commission 

but has the following links with the Banco de España: 

i. 

the  SEPBLAC's  director  is  appointed  on  the  proposal  of  the  Commission’s  president  after 

having consulted the Banco de España; 

ii. 

the Banco de España is in charge of the SEPBLAC’s financial, budgetary and procurement 

regime and will sign an agreement to this end with the Commission; 

iii. 

the  Banco  de  España’s  employees  assigned  to  the  SEPBLAC  keep  their  employment 

relationship with the Banco de España, are subject to the Banco de España’s staff rules but 

are under the SEPBLAC’s authority from a functional point of view; 

iv. 

the SEPBLAC’s budget is approved by the Commission and integrated on a separated basis 

into the Banco de España's budget for operating costs and investments. Expenses against this 

budget are payed by the Banco de España, which is reimbursed for them by drawing up an 

account to be submitted to the Directorate General of the Treasury and Financial Policy. The 

Directorate  checks  the  account  and  reimburses  the  Banco  de  España.  The  account  is 

balanced with the profits that the Banco de España transfers to the Treasury every year. 

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(b)  Banco de España's cooperation with the Commission and the SEPBLAC: 

i. 

the  Banco  de  España  reports  to  the  Commission's  Secretariat  any  possible  breaches  of  the 

obligations  contained  in  the  draft  law  observed  in  the  course  of  its  supervisory  and 

inspection activities; 

ii. 

in  relation  to  financial  institutions  subject  to  the  Banco  de  España’s  supervision,  the 

SEPBLAC  may  obtain  the  necessary  information  and  cooperation  from  the  Banco  de 

España; 

iii. 

the  SEPBLAC  has  direct  access  to  the  statistical  information  on  capital  movements  and 

economic transactions with foreign countries reported to the Banco de España in accordance 

with the regulations applicable to such movements and transactions. 

2.  General observations  

The  ECB  welcomes  Spain’s  transposition,  albeit  delayed,  of  the  Community  legislation  on  money 

laundering and terrorist financing prevention. The ECB understands that such delay: (i) has been due to 

lengthy discussions about the SEPBLAC’s institutional setting and the merger of the current rules on the 

prevention of money laundering and terrorist financing; and (ii) is partially mitigated by Spain's current 

legal framework in both fields. The ECB also welcomes the enhanced clarity of the money laundering and 

terrorist financing prevention legal framework that the draft law will bring about. 

3. 

Specific comments  

3.1  The Banco de España’s financial role 

The ECB welcomes the economic and budgetary regime laid down in Article 43(3) and (4) of the 

draft law as a regime that is fully consistent with central bank financial independence. It considers, 

however, that before the SEPBLAC’s budget is approved by the Commission, it should be agreed 

by the Banco de España as it will affect the financial independence of the Banco de España. 

3.2  Liability 

The  SEPBLAC  is  staffed  by  Banco  de  España’s  employees  who  are  subject  to  the  Banco  de 

España's staff rules. This poses no problems if the SEPBLAC is subject to the Banco de España’s 

independent  decision-making.  However,  if  Spanish  law  provides  for  separate  decision-making  by 

the SEPBLAC, it is important to ensure that decisions adopted by it do not endanger the financial 

independence of the Banco de España. In similar situations concerning financial supervision being 

placed within an NCB, the ECB has suggested that the national legislation should enable the NCB 

to  have  ultimate  control  over  any  decision  by  the  supervisory  authorities  that  could  affect  its 
independence,  in  particular  its  financial  independence5.  As  the  staff  members  of  SEPBLAC  are 

5  

See ECB Convergence Report, May 2008, p. 22.  

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functionally dependent on the SEPBLAC and perform governmental functions, the ECB considers 

that the Banco de España should be statutorily freed from any liability for the actions and omissions 

of those staff while performing those functions.  

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

Done at Frankfurt am Main, 14 September 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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