Opinion of the European Central Bank of 30 May 2014 on the organisation, supervision and solvency of credit institutions (CON/2014/40)
Date: 2014-05-30
Institutions: European Central Bank
Subjects: Spain, banking supervision, credit institution, financial solvency, financial stability, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 30 May 2014  

on the organisation, supervision and solvency of credit institutions 

(CON/2014/40) 

Introduction and legal basis 

On 30 April 2014, the European Central Bank (ECB) received a request from the Spanish Secretary of 

State  for  Economic  Affairs  and  Business  Support  for  an  opinion  on  a  draft  law  on  the  organisation, 

supervision and solvency of credit institutions (hereinafter the ‘draft law’). 

The ECB’s competence to deliver an opinion is based on Article 127(4) and Article 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/EC1, as the draft law relates to the prudential supervision of credit institutions, the Banco 

de España, and to rules applicable to financial institutions insofar as they 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 law 

1.1  The draft law finishes the transposition of Directive 2013/36/EU of the European Parliament and of 
the Council2 into Spanish legislation that first took place on 29 November 2013 with the adoption 

of  Royal  Decree-Law  14/2013,  which  implemented  the  most  urgent  provisions  of  Directive 

2013/36/EU. 

1.2.  Although  the  draft  law  is  mainly  a  transposition  of  Directive  2013/36/EU,  it  also  recasts  current 

Spanish legislation on the organisation, supervision and solvency of credit institutions, and includes 

a number of new provisions. 

(a)  The Banco de España, in its capacity as national competent authority for the banking sector 

and as an integral part of the Single Supervisory Mechanism (SSM) together with the ECB 

and other national competent authorities, is to exercise its supervisory powers in cooperation 

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2  

Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit 
institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC 
and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). 

 
 
 
 
                                                 
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with the ECB and subject to the powers assigned to the ECB by  Council  Regulation (EU)   
No 1024/20133 (hereinafter the ‘SSM Regulation’). 

(b)  The Banco de España’s comprehensive assessment of credit institutions under Article 33(4) 

of the SSM Regulation is to be subject to a new, one-time fee. 

(c)  The aggregate results of the annual stress tests to be conducted on credit institutions subject 

to the Banco de España’s supervision are to be sent to the Spanish Parliament. 

(d)  The  Banco  de  España  will  have  the  power to  withdraw  banking  authorisations,  a  task  that 

was previously the responsibility of the Ministry for Economic Affairs and Competitiveness, 

as  well  as  the  power  to  authorise  the  establishment  of  branches  and  the  free  provision  of 

services by non-Union credit institutions. 

(e)  The Banco de España will be able to intervene in a credit institution and temporarily replace 

its management where it determines that shareholders’ actions could be seriously detrimental 

to the credit institution’s financial situation. 

(f) 

The  remuneration  policies  concerning  the  members  of  boards  of  directors  of  credit 

institutions  are  submitted  to  the  shareholders  meeting  or  an  equivalent  body  for  approval 

subject  to  the  same  conditions  as  those  applicable  to  listed  companies  under  Spanish 

mercantile law. 

(g)  The  administrative  liability  of  members  of  the  control  committee  (comisión  de  control)  of 

savings  banks  is  clearly  defined  and  will  consider  the  following  to  be  very  serious 

infractions: (i) serious and persistent negligence in fulfilling statutory duties; or (ii) failure to 

propose  the  suspension  of  board  of  directors’  agreements  that  are  manifestly  illegal  or 

seriously detrimental to the financial situation of the savings bank or its depositors or clients. 

(h)  The  composition  of  the  Steering  Committee  of  the  Deposit  Guarantee  Fund  of  Credit 

Institutions  (DGF)  will  be  changed  to  include  a  representative  from  the  Ministry  for 

Economic  Affairs  and  Competitiveness  and  a  representative  from  the  Ministry  of  Finance 

and Public Administration. 

2. 

General observations  

The  ECB  welcomes  the  use  of  the  draft  law  to  recast  the  current,  basic  provisions  governing  the 

organisation, supervision and solvency of credit institutions into a single, comprehensive law, in order to 

improve the efficiency of the Spanish financial legal framework. Such consolidation may, inter alia, assist 

in smoothly integrating the Spanish national banking supervisory structure into the SSM and ensuring that 

there are  no legal obstacles  under national law to the ECB’s  performance of banking supervisory tasks 

with  the  assistance  of  the  national  competent  authority  under  the  SSM  Regulation.  The  ECB  also 

3  

Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). 

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understands that the rules are not intended to narrow or amend the scope of the SSM Regulation, which is 

directly applicable. 

In particular, it should be noted that  a number of provisions  under Spanish law with regard to banking 

supervision  may  become  outdated  when,  pursuant  to  the  SSM  Regulation,  some  of  the  tasks  presently 

assigned to the Banco de España are assumed by the ECB on 4 November 2014. The ECB will then be 

the  competent  authority  to  authorise  credit  institutions,  to  withdraw  authorisations  and  to  assess  the 

acquisition and disposal of qualifying holdings for both significant and less significant credit institutions. 

The  ECB  will  also  conduct  direct  supervision  over  significant  credit  institutions,  which  will  have  an 

impact on most of the tasks allocated by the  draft law to the Banco de España in respect of such credit 

institutions.  Relevant  procedures  for  conducting  those  tasks  were  provided  for  in  Regulation  (EU)                 
No  468/2014  (ECB/2014/17)  of  the  European  Central  Bank  4  (hereinafter  the  ‘SSM  Framework 

Regulation’), which applies to public authorities and credit institutions. Both the SSM Regulation and the 

SSM Framework Regulation will have primacy over the draft law (once enacted) and therefore the draft 

law must be read and applied in conjunction with these regulations. 

3. 

Governance of the Deposit Guarantee Fund 

According  to  the  draft  law,  the  two  new  members  of  the  Steering  Committee  of  the  DGF  are  to  be 

representatives  of  the  Ministry  for  Economic  Affairs  and  Competitiveness  and  the  Ministry  of  Finance 

and  Public  Administration,  respectively.  In  this  regard,  the  ECB  draws  attention  to  recital  8  and                 
Article  4(12)  of  the  recent  proposal  of  the  European  Parliament  and  the  Council5  to  recast  Directive 
94/19/EC of the European Parliament and of the Council6, which will require Member States to ensure 

that  their  Deposit  Guarantee  Schemes  have  sound  governance  practices  in  place.  Despite  the  fact  that 

having only two government members on the Steering Committee of the DGF implies that government 

influence  on  the  decisions  to  be  taken  by  that  committee  will  be  limited,  the  ECB  emphasises  that 

providing for politically appointed persons to sit on the DGF’s governing body should not compromise its 

efficient  functioning,  and  should  not  lead  to  any  increase  in  political  intervention  in  the  resolution  of 
credit institutions7. As previously pointed out, the DGF may have a role in banking resolution procedures 

through the provision of finance for such resolution, as long as it does not in any way compromise its core 
function of protecting insured deposits8. 

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5  

6  

7  

8  

Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation 
within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and 
with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ L 141, 14.5. 2014, p. 1). 
Proposal for a Directive of the European Parliament and of the Council on Deposit Guarantee Schemes. This proposal 
was approved by the European Parliament on 15 April 2014 but has not yet been published in the Official Journal. 
Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes                 
(OJ L 135 , 31.5.1994, p. 5). 
See paragraph 3.5 of Opinion CON/2011/21. All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu. 
See paragraph 2.1 of Opinion CON/2013/25. 

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In  any  case,  the  entire  matter should  soon  be  subject  to  a  detailed review,  in  order  to  comply  with  the 

upcoming  Union  banking  resolution  framework  (including  the  Banking  Recovery  and  Resolution 
Directive9 and the Single Resolution Mechanism Regulation10). 

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

Done at Frankfurt am Main, 30 May 2014. 

 [signed] 

The President of the ECB 

Mario DRAGHI 

9  

10  

Directive 2014XX/EU of the European Parliament and of the Council establishing a framework for the recovery and 
resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 
2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and 
Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council. Not yet 
published in the Official Journal. 
Proposal for a regulation of the European Parliament and of the Council establishing uniform rules and a uniform 
procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution 
Mechanism and a Single Bank Resolution Fund (COM (2013) 520 final). 

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