Opinion of the European Central Bank of 20 February 2012 on State guarantees (CON/2012/13)
Date: 2012-02-20
Institutions: European Central Bank
Subjects: Spain, State aid, credit institution, financial stability, guarantee, national law, securities

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 20 February 2012 

on State guarantees 

(CON/2012/13) 

Introduction and legal basis 

On  27  January  2012  the  European  Central  Bank  (ECB)  received  a  request  from  the  Governor  of  the 

Banco de España, on behalf of the Spanish State Secretary for Economic Affairs, for an opinion on a draft 

order developing Article 49(2)(b) of Law 39/2010 of 22 December 2010 on the State General Budget for 

2011, on State guarantees (hereinafter the ‘draft order’).  

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 on the third and sixth 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 provisions relate to the Banco de España and to rules 

applicable  to  financial  institutions  that  materially  influence  the  stability  of  financial  institutions  and 

markets. 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 order 

The  draft  order  lays  down  further  details  concerning  Article  49(2)(b)  of  Law  39/2010  of  22  December 

2010  on  the  State  General  Budget  for  2011  by  laying  down  rules  on  the  conditions  for  the  State 

guarantees,  the  eligibility  of  institutions  and  operations,  the  applicable  fees  and  the  requesting  and 

granting procedures. 

The draft order covers credit institutions with a registered office in Spain and which have issued, with or 

without State guarantees, similar securities to those covered by the present State guarantees scheme. 

The eligible bank bonds are non-subordinated securities, without any other type of guarantee, traded in 

Spanish  secondary  markets.  The  securities  can  be  issued  until  30  June  2012,  and  have  a  maturity  of 

between one and five years. The interest rate can be fixed or variable. The minimum amount of each issue 

is EUR 10 000 000.  

1  

OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
                                                 
ECB-PUBLIC 

The scheme contemplates two types of fees: a fee on the granting of the guarantee amounting to 0.5% of 

the guaranteed amount, and a fee on every guaranteed issue of securities. This fee will be calculated in 

accordance with a formula set out in an annex to the draft order, taking into account several factors and 
following European Commission criteria2. The maximum amount of the State guarantees is EUR 100 000 

million. 

2. 

General observations  

The consultation request was submitted on 27 January, and the consulting authority requested the ECB to 

consider  the  consultation  as  a  matter  of  urgency,  without  however  setting  a  time  limit.  On  1  February, 

without  further  notice,  the  draft  order  was  adopted  and  published  in  the  Boletín  Oficial  del  Estado 

including an annex on the fee structure that had not been included in the draft text submitted to the ECB. 

In  this  context,  the  ECB  would  like  to  remind  the  Spanish  authorities  that,  according  to  Article  4  of 

Decision 98/415/EC, the ECB must be consulted at an appropriate stage enabling the authority initiating 

the draft legislative provision to take into consideration the ECB’s opinion before taking its decision on 

the substance. Furthermore, it should be ensured that the ECB is able to perform its advisory role in an 

appropriate manner by making available the full draft text to it. 

3. 

Specific comments 

3.1  Pricing 

The ECB welcomes that Article 4(b) of the draft order specifies that guarantee fees applied to financial 

institutions benefiting from the State guarantees will be in line with criteria adopted by the Commission 

The ECB reiterates its view that coordination of the duration of national financial support schemes across 

the Union is of crucial importance to ensure a level playing field. In addition, the ECB notes the need for 

national support measures to be temporary in nature. 

3.2  Relationship with the single monetary policy  

According  to  Article  3  of  the  draft  order,  only  bank  bonds  (‘obligaciones’  and  ‘bonos’)  may  be 

guaranteed. The ECB understands that interbank deposits will not be guaranteed. This is in line with the 
view  stated  by  the  ECB  in  previous  opinions3,  whereby  the  extension  of  State  guarantees  to  interbank 

deposits should be avoided, as it could entail a substantial distortion in the various national segments of 

the  euro  area  money  market  by  potentially  increasing  short-term  debt  issuance  activity  across  Member 

States and therefore impairing the implementation of the single monetary policy. 

2  

3  

See Communication from the Commission on the application, from 1 January 2012, of State aid rules to support measures 
in favour of banks in the context of the financial crisis (OJ C 356, 6.12.2011, p. 7). 
Opinion  CON/2008/50,  paragraph  3.2,  Opinion  CON/2009/12,  paragraph 3.3.2,  Opinion  CON/2009/49,  paragraph  3.9 
and Opinion CON/2009/73, paragraph 3.1. 

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ECB-PUBLIC 

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

Done at Frankfurt am Main, 20 February 2012. 

[signed] 

The President of the ECB 

Mario DRAGHI 

3