Opinion of the European Central Bank of 10 June 2015 on the recovery and resolution of credit institutions and investment firms (CON/2015/19)
Date: 2015-06-10
Institutions: European Central Bank
Subjects: Spain, banking supervision, credit institution, financial intervention, financial stability, investment company, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 10 June 2015  

on the recovery and resolution of credit institutions and investment firms 

(CON/2015/19) 

Introduction and legal basis 

On  13  May  2015  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  recovery  and 

resolution of credit institutions and investment firms (hereinafter the ‘draft law’). 

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  the  third  and  sixth  indents  of  Article 2(1)  of  Council  Decision 
98/415/EC1,  as  the  draft  law  relates  to  the  Banco  de  España  and  to  the  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 

The purpose of the draft law is to implement Directive 2014/59/EU of the European Parliament and of the 
Council2  and  Directive  2014/49/EU  of  the  European  Parliament  and  of  the  Council3.  The  draft  law 

introduces  provisions  to  establish  a  national  resolution  mechanism,  as  envisaged  under  Directive 

2014/59,  as  well  as  for  coordination  of  this  national  resolution  mechanism  with  the  Single  Resolution 
Mechanism4, which should be fully operational from 2016. 

The draft law builds on Law 9/2012 on the restructuring and resolution of credit institutions5, which took 

into  account  the  preparatory  work  underlying  Directive  2014/59/EU.  The  draft  law  is  a  recast  of  Law 

9/2012 including the transposition of those aspects of Directive 2014/59/EU pending implementation. The 

draft law repeals Law 9/2012 for the sake of clarity.   

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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 2014/59/EU of the European Parliament and of the Council of 15 May 2014 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 (OJ L 173, 12.6.2014, p. 190). 
Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes 
(OJ L 173, 12.6.2014, p. 149). 
Established  by  Regulation  (EU)  No  806/2014  of  the  European  Parliament  and  of  the  Council  of  15  July  2014 
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 Resolution Fund and amending Regulation 
(EU) No 1093/2010 (OJ L 225, 30.7.2014, p. 1). 

Law 9/2012 of 14 November 2012 on the restructuring and resolution of credit institutions (BOE 275 of 15.11.2012). 

 
 
 
 
                                                 
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2. 

Scope of this Opinion  

This Opinion focuses on aspects of the draft law that have an impact on the Banco de España. It should 
be noted that the ECB had previously been consulted on the main elements of Law 9/20126.  

3. 

The Banco de España’s role 

3.1  The ECB notes that the draft law provides for a separation of resolution powers into recovery and 

preparatory  resolution  powers  (the  so-called  ‘resolution  prevention  functions’)  including  resolution 

planning,  which  are  allocated  to  the  Banco  de  España  for  credit  institutions  and  to  the  National 
Securities  Market  Commission  for  investment  firms7,  and  executive  resolution  powers,  such  as 

applying resolution tools, which are allocated to the FROB.  

3.2  While  such  separation  of  resolution  powers  is  permitted  under  Directive  2014/59/EU  on  an 

exceptional basis, it needs to be ensured that such separation does not hamper the effectiveness 

of  resolution  action.  Separation  creates  a  need  for  close  cooperation  and  adequate  information 

sharing between the FROB and the Banco de España, and the FROB and the National Securities 

Market  Commission,  notably  to  ensure  that  timely  resolution  action  can  be  taken.  Given  that  the 

Banco de España will be in the lead for resolution planning and the FROB will be responsible for 

execution,  it  is  essential  that  there  is  a  common  understanding  on  the  resolution  plan.  The  ECB 

welcomes the fact that the draft law, in this respect, has specific provisions on the cooperation and 

coordination between national authorities and with other authorities such as the Single Resolution 

Board, the ECB and foreign authorities assigned supervision or resolution tasks. Similarly, the ECB 

welcomes the provisions on functional and hierarchical separation between supervision on the one 

hand,  and  recovery  and  preparatory  resolution  powers  on  the  other,  as  well  as  the  legislator’s 

stated  purpose to review  this institutional set-up in  light of the experience gained from  the Single 

Resolution Mechanism in order to increase its efficiency. 

3.3  As mentioned above, the draft law assigns the Banco de España powers provided for in Directive 

2014/59/EU which are viewed by the legislator as being closer in nature to the supervisory tasks of 
the  Banco  de  España  under  Regulation  (EU)  No  1024/20138,  such  as  preparing  resolution  plans 

and  assessing  resolvability  for  the  purpose  of  opening  a  resolution  process.  In  this  respect,  the 

ECB  notes  that  Directive  2014/59/EU  assigns  the  failing  or  likely  to  fail  assessment  to  the 

respective  supervisory  authority,  i.e.  the  ECB  or  national  competent  authorities,  in  line  with  the 

distribution  of  competences  provided  for  in  Regulation  (EU)  No  1024/2013.  The  ECB  also  notes 

that, pursuant to Article 9(1), subparagraph 2, Article 4(1)(e) and Article 4(3) of Council Regulation 

(EU) No 1024/2013, and Article 104(1)(b) of Directive 2013/36/EU of the European Parliament and 

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See ECB Opinion CON/2012/108, Opinion CON/2013/3 and Opinion CON/2013/25. All ECB Opinions are published 
on the ECB’s website at www.ecb.europa.eu.  

In line with Directive 2014/59/EU the scope of the draft law includes investment firms. 
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 L287, 29.10.2013, p. 63). 

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of  the  Council9,  the  ECB  shall  have  all  the  powers  of  the  competent  and  designated  authorities 
under the applicable Union law to ensure compliance with regard to significant institutions10. 

3.4  The  Banco  de  España  is  also  entrusted  with  checking  the  financial  resilience  of  the  Deposit 

Guarantee  Fund  (DGF)  at  least  every  three  years  in  view  of  its  role  as  bank  supervisor  and  its 

statutory function of promoting financial stability. The ECB understands that these stress tests to a 

large  extent  rely  on  the  results  of  the  stress  tests  the  Banco  de  España  is  already  required  to 

perform on credit institutions. Hence, it does not constitute a substantive change in the supervisory 

and  financial  stability  tasks  carried  out  by  the  Banco  de  España  and  is  expected  to  have  a  very 

small  impact  on  the  overall  functions  carried  out  by  it.  In  addition  to  stress  testing  the  financial 

condition  of  the  DGF,  the  authorities  should  mandate  the  DGF  to  conduct  regular  testing  of 

systems and other operational capabilities as required under Article 4(10) of Directive 2014/49/EU. 

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

Done at Frankfurt am Main, 10 June 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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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). 

See ECB Opinion CON/2015/13. 

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