Opinion of the European Central Bank of 26 May 2017 on the Commission for the monitoring of alternative dispute resolution procedures and the reserve funds of banking foundations (CON/2017/19)
Date: 2017-05-26
Institutions: European Central Bank
Subjects: Spain, alternative dispute resolution, banking supervision, consumer protection, credit institution, financial stability, national law, reserves

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 26 May 2017  

on the Commission for the monitoring of alternative dispute resolution procedures and the 

reserve funds of banking foundations 

(CON/2017/19) 

Introduction and legal basis 

On 25 April 2017, the European Central Bank (ECB) received a request from the Banco de España, on 

behalf  of  the  Secretary  of  State  for  Economy  and  Business  Support,  for  an  opinion  on  a  Royal  Decree 

creating and regulating the monitoring, control and evaluation commission for the out-of-court procedure 

established in Royal Decree-Law 1/2017, of 20 January 2017, on urgent consumer protection measures 
concerning floor clauses1 (hereinafter the ‘draft royal decree’). 

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/EC2,  as  the  draft  royal  decree  relates  to  the  Banco  de  España,  rules  applicable  to  financial 

institutions  that  materially  influence  the  stability  of  financial  institutions  and  markets  and  the  tasks 

conferred  on  the  ECB  pursuant  to  Article  127(6)  of  the  Treaty  concerning  the  prudential  supervision  of 

credit  institutions.  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 royal decree 

1.1.  Commission for the monitoring, control and evaluation of the compliance by credit institutions with 

Royal Decree-Law 1/2017 (floor clauses) 

1.1.1. The draft royal decree establishes a Commission that will monitor, control and assess compliance 

by  credit  institutions  with  the  provisions  of  Royal  Decree-Law  1/2017.  Royal  Decree-Law  1/2017 

instituted an  out-of-court procedure to settle  consumer claims and facilitate the  reimbursement of 

funds  unduly  paid  by  consumers  to  credit  institutions  following  the  application  of  certain  floor 

clauses contained in mortgage loans. Floor clauses lacking transparency were declared void on a 

retroactive basis by the rulings of the Spanish Supreme Court of 9 May 2013 in judgment no. STS 

1  

2  

Royal Decree-Law 1/2017, of 20 January 2017, on urgent consumer protection measures concerning floor clauses, 
BOE no. 18, 21.01.2017, p. 5379. 
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). 

 
 
 
 
                                                 
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1916/2013 and the Court of Justice of the European Union of 21 December 2016 in Joined Cases 
C-154/15, C-307/15 and C-308/15 Gutiérrez Naranjo3. 

1.1.2. The Commission  will formally depend  on  the Ministry of Economy, and  will therefore form  part of 

the  legal  personality  of  the  Spanish  State.  The  Commission  will  be  composed  of  eight  members, 

comprising the Vice Governor of the Banco de España as chair together with seven other members 

from different government ministries (including the Ministries of Economy, Justice and Health) and 

organisations representative of social interests (including consumers, advocates and the judiciary).  

1.1.3. The Banco de España will also appoint a Secretary, as well as technical experts if needed, and will 

be  generally  responsible  for  preparing  the  documents  and  steering  the  operation  of  the 

Commission.  

1.1.4. The Commission will monitor whether credit institutions are properly implementing the provisions of 

Royal Decree-Law 1/2017. Credit institutions must inform their clients of the existence of the out-of-

court procedure for claiming the excess amounts paid by them due to the existence of floor clauses 

in  their  mortgage  contracts.  To  this  effect,  credit  institutions  will  send  the  Commission,  on  a 

monthly  basis,  information  as  to  how  many  claims  have  been  received  from  clients,  how  many 

have been settled, and for what amount, and other compensatory measures agreed. The Ministry 

of  Justice  will  also  provide  statistics  regarding  the  number  of  court  procedures  related  to  floor 

clauses. 

1.1.5. The  establishment  of  the  Commission  will  be  achieved  without  increasing  public  expenditure. 

Therefore,  each  institution  participating  in  the  Commission  will  bear  the  cost  of  the  staff  and 

resources  dedicated  to  the  Commission,  with  costs  to  be  charged  to  that  institution’s  ordinary 

budget. 

1.2.  Amendment of reserve fund for banking foundations 

Under Law 26/2013 of 27 December on savings and banking foundations banking foundations that 

hold  a  highly  significant  stake,  amounting  to  at  least  30 %,  in  a  credit  institution  are  subject  to 

significant obligations. These include, for example, the obligation to prepare a stake management 

protocol  and  an  annual  financial  plan  for  submission  to  the  Banco  de  España.  Likewise,  holding 

controlling stakes (at least 50 % or effective control) in a credit institution is costly because of the 

obligation  to  prepare,  further  to  the  financial  plan,  an  investment  diversification  and  risk 

management  plan  and  to  create  a  reserve  fund  to  provide  for  possible  capital  shortfalls  of  the 

controlled credit institution. 

The  draft  royal  decree  reduces  from  50  %  to  30  %  the  mandatory  percentage  that  banking 

foundations  must  transfer  to  the  reserve  fund  out  of  the  dividends  received  in  cash  from  credit 

institutions. It also extends from five to eight years the time frame for banking foundations to build 

up their reserve funds. Banking foundations are given a three-month period to update their financial 

plan. 

3  

Gutiérrez Naranjo, Joined Cases C-154/15, C-307/15 and C-308/15, ECLI:EU:C:2016:980. 

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2. 

Conferral of new tasks on the Banco de España 

2.1  The draft royal decree confers on the Banco de España the new task of providing a Secretary and 

technical  experts,  if  needed,  to  support  the  operation  of  the  Commission  and  facilitate  the 

completion of the tasks attributed to it. Furthermore, the Vice Governor of the Banco de España is 

appointed  chair  of  the  Commission.  The  Banco  de  España  must  finance  the  staff  and  material 

resources allocated to the Commission out of its ordinary budget.  

In  the  context  of  a  proposed  conferral  of  new  tasks  on  a  national  central  bank  (NCB)  in  the 

European System of Central Banks (ESCB), it is necessary to assess whether such a conferral is 

in  line  with  Article  123  of  the  Treaty.  For  the  purposes  of  the  prohibition  of  monetary  financing, 
Article  1(1)(b)(ii)  of  Council  Regulation  (EC)  No  3603/934  considers  ‘any  financing  of  the  public 

sector’s obligations vis-à-vis third parties’ to be a type of credit facility of the Eurosystem NCBs in 

favour of governments that is accordingly prohibited pursuant to Article 123 of the Treaty.  

2.2  One of the objectives of the prohibition of monetary financing, which may not be circumvented, is to 

ensure that Member States maintain a sound budgetary policy. Consequently, the task of financing 

out-of-court procedures, which is normally the responsibility of the Member States and is to be met 

from their budgetary sources rather than from those of the NCBs, must not be entrusted to NCBs 

by law. In order to decide what constitutes a form of financing of the public sector’s obligations vis-

à-vis third parties, assessment of whether the task to be undertaken by an NCB is a central bank 

task  or  a  government  task  needs  to  be  carried  out  on  a  case-by-case  basis.  In  other  words, 

sufficient  safeguards  must  be  in  place  to  ensure  that  circumventions  of  the  objectives  of  the 

prohibition of monetary financing do not take place. 

2.3  As part of its discretion in the exercise of its duty, on the basis of Article 271(d) of the Treaty and 

Article 35.6 of the Statute of the European System of Central Banks and of the European Central 

Bank (hereinafter the ‘Statute of the ESCB’), to ensure that NCBs fulfil their obligations under the 

Treaties,  the  Governing  Council  has  endorsed  safeguards  to  that  effect  in  the  form  of  criteria  for 

determining what may be seen as falling within the scope of a public sector’s obligation within the 

meaning  of  Article  1(1)(b)(ii)  of  Regulation  (EC)  No  3603/93  or,  in  other  words,  constitute  a 

government task, as follows:  

First, central bank tasks are in particular those tasks that are  related to the tasks that have been 

conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks are 

mainly defined in Article 127(2), (5) and (6) and Article 128(1) of the Treaty, as well as Article 22 

and Article 25.1 of the Statute of the ESCB.  

Second, because Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘functions other 

than  those  specified  in  this  Statute’,  new  tasks,  i.e.  those  that  are  not  related  to  tasks  that  have 

been conferred upon the ECB and the NCBs, are not precluded per se. However, new tasks that 

are undertaken by an NCB and which are atypical of NCB tasks or which are clearly discharged on 

4  

Council  Regulation  (EC)  No  3603/93  of  13  December  1993  specifying  definitions  for  the  application  of  the 
prohibitions referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). 

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behalf of and in the exclusive interest of the government or of other public sector entities should be 

considered government tasks.  

Third, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly 

discharged  on  behalf  of  and  in  the  exclusive  interest  of  the  government  or  other  public  sector 

entities is its impact on the institutional, financial and personal independence of that NCB.  

In particular, the following aspects should be taken into account:  

(a)  Whether  performance  of  the  new  task  either  does  not  complement  existing  central  bank 

tasks  or  in  fact  creates  conflicts  of  interest  with  those  tasks  that  are  not  adequately 

addressed.  If  a  conflict  of  interest  arises  between  existing  and  new  tasks,  sufficient 

safeguards to mitigate that conflict should be in place. The complementarity between a new 

task  and  existing  central  bank  tasks  should  not  be  interpreted  broadly,  in  order  to  avoid  it 

leading  to  the  creation  of  an  infinite  chain  of  ancillary  tasks.  Such  complementarity  should 

also be examined in relation to the financing of those tasks. 

(b)  Whether  in  the  absence  of  new  financial  resources  the  performance  of  the  new  task  is 

disproportionate to the NCB’s financial or organisational capacity and may have a negative 

impact on the capacity to perform properly the existing central bank tasks. 

(c)  Whether performance of the new task fits into the institutional set-up of the NCB in light of 

central bank independence and accountability considerations. 

(d)  Whether performance of the new task entails substantial financial risks. 

(e)  Whether  performance  of  the  new  task  exposes  the  members  of  the  NCB  decision-making 

bodies  to  disproportionate  political  risks  that  may  also  have  an  impact  on  their  personal 

independence and, in particular, on the guarantee of term of office set out in Article 14.2 of 

the Statute of the ESCB.  

2.4  On the basis of the criteria set out above, the following paragraphs assess whether the Banco de 

España’s new tasks are in line with the prohibition of monetary financing.  

2.4.1  New tasks related to those conferred upon the ECB and the NCBs by the Treaty and the Statute of 

the ESCB 

The monitoring of credit institutions’ compliance with out-of-court procedures is not among any of 

the central banking tasks listed in Article 127(2) or (5) of the Treaty or otherwise conferred upon the 

NCBs  by  the  Statute  of  the  ESCB.  Furthermore,  this  new  task  does  not  have  a  prudential 

supervisory dimension, as it does not concern the analysis of how the solvency of credit institutions 

is  affected  by  the  out-of-court  procedure.  Against  this  backdrop,  the  new  task  conferred  on  the 

Banco de España under the draft royal decree is not among those conferred upon the ECB and the 

NCBs by the Treaty and the Statute of the ESCB. Consequently, the conferral of this task on the 

Banco de España must be closely scrutinised to assess whether it constitutes a government task 

and whether the related funding gives rise to monetary financing concerns.  

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2.4.2  Tasks which are atypical of NCB tasks  

Under the Spanish banking law,5 the Banco de España has a mandate concerning the protection of 

clients of credit institutions, particularly in respect of market conduct and transparency. It also has 

the  task,  as  the  competent  authority,  of  dealing  with  complaints  submitted  by  such  clients 

concerning  alleged  infringements  of  transparency  and  disclosure  regulations  or  good  banking 

practice. However, the new task conferred on the Banco de España in relation to the work of the 

Commission under the draft royal decree is of a distinct nature. Royal Decree-Law 1/2017 instituted 

a  specific  out-of-court  procedure,  designed  to  operate  prior  to  and,  if  successful,  in  lieu  of,  court 

proceedings.  The  purpose  of  this  procedure  is  to  settle  consumer  claims  and  thus  avoid  the 

creation of a backlog in the courts resulting from a large amount of legal claims being made against 

credit  institutions  due  to  the  high  number  of  potential  individuals  affected  by  the  retroactive 

annulment of floor clauses in mortgage contracts. Against this backdrop, it is necessary to analyse 

whether the new task proposed to be conferred on the Banco de España relating to the monitoring 

of credit institutions’ compliance with an out-of-court procedure concerning unfair or abusive terms 

in  consumer  contracts  is  a  typical  task  among  other  NCBs  of  the  European  System  of  Central 

Banks (ESCB). While the majority of NCBs of the ESCB do not appear ever to have been assigned 

tasks of this nature, the ECB has identified a number of Member States where NCBs are or have 

been  involved  in  alternative  dispute  resolution  mechanisms  available  to  the  clients  of  credit 

institutions. Some Member States have conferred on NCBs the responsibility for directly operating 
such  alternative  dispute  resolution  systems  for  consumers6.  Of  greater  relevance  to  the  specific 

tasks  proposed  to  be  conferred  on  the  Banco  de  España  is  the  fact  that  various  roles  within 

external  bodies  conferred  with  the  task  of  operating  such  alternative  dispute  resolution  systems 

have  been  assigned  to  several  NCBs.  These  roles  include  the  NCB  having  responsibility  for 

appointing  members  of  the  dispute  resolution  body’s  governing  bodies,  providing  the  secretariat 
and staff to the dispute resolution body and operating the dispute resolution body7.  

5  

6  

7  

Law  10/2014,  of  26  June  2014  on  the  regulation,  supervision  and  solvency  of  credit  institutions,  BOE  no.  156, 
27.06.2017, p. 49412. In particular, see Article 5. 
The following examples may be given. In Italy, Article 128-bis of Legislative Decree No. 385 of 1 September 1993, 
as  amended,  created  the  Arbitro  bancario  financiario  (ABF,  Banking  and  Financial  Ombudsman)  to  deal  with 
disputes arising in connection with banking services and transactions and, in general, fairness in client-intermediary 
relations,  including  in  respect  of  consumer  credit  and  payment  services.  Banca  d’Italia  hosts  the  ABF’s  technical 
secretariat and supplies its staff. In Cyprus, the Payment Services Laws 2009-2010 (no longer in force) entrusted the 
Central  Bank  of  Cyprus  with  the  task  of  operating  an  out-of-court  settlement  procedure  with  regard  to  payment 
services.  In  Lithuania,  Article 22(1)(2) of  the  Law  on  Consumer  Protection  confers  on  Lietuvos  bankas  the  task  of 
settling disputes between consumers and financial institutions, including credit institutions. In Hungary, Article 4(10) 
of the Act on the Magyar Nemzeti Bank confers on the Magyar Nemzety Bank (NMB) the task of achieving out-of-
court settlement of disputes between consumers and supervised entities relating to the use of banking services or 
loan contracts via the Financial Arbitration Board, an independent body operated by NMB. 
In  Bulgaria  the  Sectoral  Reconciliation  Commission  for  Financial  Services  (SRCFS)  is  an  alternative  dispute 
resolution body in charge of the resolution of national and cross-border disputes between consumers and traders in 
the  field  of  financial  services.  The  Българска  народна  банка  (Bulgarian  National  Bank)  is  assigned  the  task, 
pursuant to Articles 183a and 183b of the Law on Consumer Protection, of designating the chairperson and deputy 
chairperson  of  the  SRCFS.  In  Portugal,  pursuant  to  Law  58/2012,  of  9  November,  on  Extraordinary  Regime,  the 
Banco de Portugal is represented in, and provides the secretariat of, the Assessment Committee, which monitors an 
out-of-court procedure for household clients facing severe financial constraints in respect of arrears on housing loan 
agreements. In Romania the Banca Naţională a României appoints one of the five members of the Committee which 
coordinates  the  general  activity  of  the  Alternative  Dispute  Resolution  Centre  for  Banking,  a  legal  entity  which 
provides out-of-court resolution of consumer banking disputes. 

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The out-of-court procedures to which NCBs contribute concern payment systems, consumer claims 

regarding  the  provision  of  financial  services,  transparency  in  contractual  and  pre-contractual 

documentation,  consumer  loan  contracts  and  the  restructuring  of  debts  of  distressed  household 

clients.  

However, these examples do not involve the NCBs being conferred with tasks relating to an out-of-

court  alternative  dispute  resolution  procedure  specifically  relating  to  unfair  or  abusive  contract 
clauses under Council Directive 93/13/EEC8. The ECB understands that, in view of its responsibility 

for  the  secretariat  of  the  Commission,  the  Banco  de  España  may  have  to  review  the  decisions 

taken  by  credit  institutions  in  order  to  assess  the  degree  of  compliance  with  Royal  Decree-Law 

1/2017. In this respect, it may be argued that the particular task conferred on the Banco de España 

is atypical for a central bank. 

2.4.3  Tasks clearly discharged on behalf of and in the exclusive interest of the government 

The  draft  royal  decree  attributes  responsibility  for  monitoring  the  out-of-court  procedure  to  the 

Commission,  which  is  established  within  the  Ministry  of  Economy  and  will  therefore  share  in  the 

legal  personality  of  the  Spanish  State.  Furthermore,  the  preamble  of  Royal  Decree-Law  1/2017 

specifically states that one of its objectives is to avoid an increase in litigation in the civil courts, and 

the associated high costs of the administration of justice. The ECB understands in this context that 

the  out-of-court  procedure and the creation of the  Commission  are  intended to alleviate the  work 

involved  in  the  administration  of  justice,  which  is  a  government  task.  Therefore,  the  new  tasks 

conferred  on  the  Banco  de  España  that  facilitate  the  completion  of  the  tasks  attributed  to  the 

Commission are performed exclusively in the interest of the State.  

2.4.4  Impact of the tasks on the independence of the Banco de España 

The  issue  of  how  the  new  tasks  conferred  upon  the  Banco  de  España  by  the  draft  royal  decree 

may  impact  on  its  institutional  and  financial  independence  and  on  the  personal  independence  of 

the members of its decision-making bodies should also be considered. 

2.4.4.1  Extent to which the performance of the new tasks creates conflicts of interest with existing central 

bank tasks 

Given that the responsibility for monitoring the out-of-court procedure rests with the Commission, 

the  underlying  objectives of the  Commission’s mandate  are  not to be  pursued by the  Banco de 

España as such. Therefore, carrying out the new tasks under the draft royal decree is unlikely to 

create conflicts of interest with other central bank tasks conducted by the Banco de España.  

2.4.4.2  Extent to which the performance of the new tasks is disproportionate to the Banco de España’s 

financial or organisational capacity 

The principle of financial independence requires that Member States may not put their NCBs in a 

position where they have insufficient financial resources to carry out not only their ESCB-related 

tasks  but  also  their  national  tasks,  from  both  an  operational  and  financial  perspective. 

8  

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29). 

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Furthermore, when allocating specific new tasks to NCBs, each NCB concerned should be able 

to avail itself of additional financial resources so that these tasks may be carried out in a manner 

that  will  not  affect  the  NCB’s  operational  or  financial  capacity,  including  sufficient  human 

resources, to perform its ESCB tasks. At this early stage, it is difficult to predict what additional 

resources the Banco de España will have to assign to the Commission. However, at present the 

draft royal decree only establishes minimum requirements for the Commission’s operation, which 

means  that  the  preparatory  work  needed  in  order  to  set  up  the  Commission  will  fall  under  the 

responsibilities  of  the  Secretary  appointed  to  the  Commission  by  the  Banco  de  España. 

Moreover,  the  Banco  de  España  is  likely  to  have  to  dedicate  additional  human,  technical  and 

financial  resources  to  collect,  process  and  analyse  the  relevant  data  so  as  to  enable  the 

Commission  to  monitor  the  relevant  credit  institutions’  compliance  with  the  requirements  of  the 

out-of-court procedure. The processing of the information submitted by credit institutions pursuant 

to  the  draft  royal  decree  may  therefore  impose  a  burden  additional  to  the  existing  central  bank 

tasks performed  by  the  Banco  de España. In any  case, it may be  expected  that performing  the 

conferred task will involve a substantial amount of work for the Banco de España. In this respect, 

the  draft royal decree does not provide for the Banco  de España to be reimbursed the costs of 

carrying  out  this  additional  burden.  It  also  explicitly  provides  that  the  establishment  of  the 

Commission  will  not  increase  public  spending.  Accordingly,  the  Banco  de  España  will  have  to 

finance  the  personnel  and  material  resources  assigned  to  the  Commission  out  of  its  ordinary 

budget.  

2.4.4.3  Extent to which performance of the new tasks fits into the Banco de España’s institutional set-up, 

in light of central bank independence and accountability considerations 

While the Banco de España has a role in appointing the Secretary and steering the operation of 

the Commission, the latter is part of the Ministry of Economy, Industry and Competitiveness. If the 

technical experts appointed to the Commission are to be assigned to the Commission, to work on 

a  full-time  basis  and  peforming  governmental  functions,  the  ECB  considers  that  the  Banco  de 

España  should  be  free  from  any  liability  for  the  actions  and  omissions  of  those  staff  members 
while performing those functions9.  

2.4.4.4  Extent to which the performance of tasks entails significant financial risks 

The Banco de España appears not to be exposed to significant financial risks in the performance 

of the new tasks conferred upon it, as it is understood that liability for the Commission’s actions 

will  rest  with  the Commission,  and therefore  ultimately  with the  Spanish State,  and  not  with  the 

Banco de España.  

9  

See, in this regard, paragraph 3.2 of Opinion CON/2009/70. 

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2.4.4.5  Extent to which the performance of the new tasks exposes members of the Banco de España’s 

decision-making  bodies  to  disproportionate  political  risks  and  has  an  impact  on  their  personal 

independence 

Due consideration should be given to safeguarding the personal independence of the members of 
the  Banco  de  España’s  decision-making  bodies10.  This  is  a  significant  issue  both  in  relation  to 

their participation in collegiate bodies such as the Commission, which remains part of the Ministry 

of Economy, Industry and Competitiveness and, to an even greater extent, in relation to the fact 

that the chair of the Commission is to be assigned to the Vice Governor of the Banco de España.  

2.4.5  Conclusion  regarding  the  compatibility  of  the  draft  royal  decree  with  the  prohibition  of  monetary 

financing 

As the Commission is performing a State task by providing the resources necessary to enable the 

Commission to function, the Banco de España is taking over a government task. As the ECB has 

consistently held in the past, national laws requiring an NCB to finance bodies that are independent 

of the NCB and operate as an extension of the government are incompatible with the prohibition of 

monetary financing. In this respect, the prominent role assigned to the Banco de España within the 

Commission  raises  concerns.  In  order  to  ensure  compliance  with  the  prohibition  of  monetary 

financing,  a  new  task  entrusted  to  an  NCB  must  be  adequately  remunerated  if  it  is  linked  to  a 
government  task  and  performed  in  the  government’s  interest11.  Therefore,  the  ECB  strongly 

recommends  that  further  consideration  should  be  given  to  the  role  attributed  to  the  Banco  de 

España within the Commission, and that in any case the Banco de España be fully and adequately 

reimbursed for any costs incurred in relation to the performance of its new tasks with respect to the 

Commission in order to ensure compliance with the prohibition of monetary financing.  

3. 

Amendment of the reserve fund of banking foundations 

3.1.  The ECB is of the opinion that reducing the mandatory percentage which the banking foundations 

must  transfer  to  the  reserve  fund  out  of  dividends  from  50 %  to  30 %  and  extending  from  five  to 

eight  years  the  period  that  foundations  are  granted  to  comply  with  their  reserve  fund  target 

changes the  structure  of  the incentives  laid down in  Law  26/2013  on savings  banks  and  banking 
foundations12, and is contrary to the spirit of the original savings bank reform. The rationale behind 

the original reform of the savings bank sector was to set incentives to reduce controlling stakes of 

banking  foundations  in  banks  by  imposing  additional  costs  on  banking  foundations.  Amending 

those  provisions  significantly  reduces  the  incentives  for  banking  foundations  to  divest  their 

controlling stakes in credit institutions. The reform of the saving bank sector banks is one of the key 

pillars  of  the  financial  assistance  programme  in  Spain  and  the  amendments  appear  to  unduly 

weaken  its  importance.  The  ECB  considers  that  the  economic  rationale  of  the  measure  is  not 

sufficiently  explained  in  the  draft  royal  decree,  which  merely  mentions  the  ‘current  situation  of 

10  

11  
12  

See  paragraph  5  of  Opinion  CON/2012/106  and  paragraph  3.5  of  Opinion  CON/2010/94.  All  ECB  opinions  are 
published on the ECB’s website at www.ecb.europa.eu. 
See, in this regard, the ECB’s 2016 Convergence Report, p. 30. 

Law 26/2013 on savings banks and banking foundations, BOE no. 311, 28.12.2013, p. 105878. 

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ECB-PUBLIC 

financial  markets’  without  providing  further  explanation  as  to  the  substantive  reasons  for  the 

amendment  or  how  the  measure  will  help  banking  foundations,  or  the  credit  institutions  they 

control, in the current situation of the markets. Currently Spain is enjoying very strong and broad-

based  economic  growth,  from  which  the  financial  sector  is  benefiting.  Therefore  it  is  not  obvious 

what it is meant by the ‘current situation of financial markets’ and how this has been used to derive 

the extension of the horizon and the reduction of the percentage to be transferred for setting up the 

reserve fund. 

3.2.  The  ECB  also  considers  that  this  reduction  could  have  an  impact  on  the  level  playing  field,  as  it 

would  put  banking  foundations  that  have  already  chosen  to  disinvest  their  controlling  stakes  in 

credit  institutions  in  a  disadvantaged  position.  Therefore,  the  ECB  recommends  that  further 

consideration  should  be  given  to  the  proposed  amendment  of  the  reserve  fund  for  banking 

foundations. 

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

Done at Frankfurt am Main, 26 May 2017. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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