Opinion of the European Central Bank of 16 November 2009 on the realisation of collateral provided to the Banco de España, to other national central banks of the Member States or to the European Central Bank in the performance of their tasks (CON/2009/96)
Date: 2009-11-16
Institutions: European Central Bank
Subjects: Spain, central bank, guarantee, national law, securities

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 16 November 2009 

on the realisation of collateral provided to the Banco de España, to other national central banks of 

the Member States or to the European Central Bank in the performance of their tasks 

(CON/2009/96) 

Introduction and legal basis 

On  23  October  2009  the  European  Central  Bank  (ECB)  received  a  request  from  the  Spanish  State 

Secretary for Economic Affairs for an opinion on the second final provision of the draft State budget law 

for 2010 amending paragraph 2(b) of the sixth additional provision of Law 13/1994 on autonomy of the 

Banco de España (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 sixth additional provision of Law 13/1994 on autonomy of the Banco de España lays down the rules 

applicable to collateral provided to the Banco de España, to other national central banks of the Member 

States (NCBs) or to the ECB in the performance of their tasks. In particular, paragraph 2(b) governs the 

realisation of such collateral.  

The draft law amends point (b) by: 

(i) 

repealing the requirement for a copy of the document constituting the security when realising the 

collateral.  The  purpose  of  this  repeal  is  to  facilitate  collateral  realisation,  avoiding  problems  in 

interpreting  the  requirement  to  submit  a  copy  of  the  document  constituting  the  security  in  the 

context of cross-border use of dematerialised securities as collateral; and  

1  

OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
                                                 
(ii) 

specifically referring to appropriation of collateral as a means of realisation subject to an agreement 

between  the  parties  on  such  means  of  realisation  and  on  valuation  of  the  provided  collateral. 

Realisation  through  appropriation  had  already  been  introduced  in  Spanish  law  by  Royal  Decree-

Law  5/2005  of  11  March  2005  on  urgent  reforms  to  foster  productivity  and  improve  public 

procurement, which completed the Spanish transposition of Directive 2002/47/EC of the European 
Parliament and of the Council of 6 June 2002 on financial collateral arrangements2. The Banco de 

España had recourse to realisation through appropriation on the basis of Article 4(1) of the Royal 

Decree-Law,  which  lays  down  that  the provisions  on  financial  collateral  arrangements  (including 

those  on  appropriation)  apply  to  the  Banco  de  España  (as  well  as  to  other  NCBs  or  to  the 

ECB). The purpose of this draft amendment is therefore to incorporate a general provision already 

in force into the Banco de España’s special rules on this matter.   

2. 

General observations  

The ECB takes note of the proposed amendments, which are consistent with Directive 2002/47/EC, and 

welcomes  them  inasmuch  as  they  will  facilitate  the  realisation  of  collateral  provided  to  the  Banco  de 

España, to other NCBs or to the ECB in the performance of their tasks and enhance the transparency and 

legal certainty of the legal framework for providing such collateral. 

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

Done at Frankfurt am Main, 16 November 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

2  

OJ L 168, 27.6.2002, p. 43. 

2