Opinion of the European Central Bank of 21 December 2018 on macroprudential tools (CON/2018/58)
Date: 2018-12-21
Institutions: European Central Bank
Subjects: Spain, credit institution, financial risk, financial stability, financial supervision, macroeconomics, monetary policy

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 21 December 2018  

on macroprudential tools 

(CON/2018/58) 

Introduction and legal basis 

On 21 November 2018 the European Central Bank (ECB) received a request from the Banco de España, 

on behalf of the Spanish State Secretary for Economy and Business Support, for an opinion on several 
provisions1  of  a  draft  royal  decree-law  on  payment  services  and  other  urgent  financial  measures 

(hereinafter the ‘draft royal decree-law’). 

On 23 November 2018, the draft royal decree-law was adopted by the Spanish Council of Ministers (the 
‘first royal decree-law’)2 and will be ratified by the Parliament within 30 days following this adoption. The 

first royal decree-law did not include the provisions contained in the draft royal decree-law on which the 

ECB  was  consulted  relating  to  macro  prudential  tools.  Instead,  these  provisions  relating  to  macro 

prudential tools were included in a royal decree-law on the creation of macroprudential tools, adopted by 
the  Council  of  Ministers  on  14  December3  (the  ‘second  royal  decree-law’,  together  with  the  first  royal 

decree-law, the ‘royal decree-laws’). 

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/EC4, as the draft royal decree-law relates to the Banco de España and rules applicable to financial 

institutions  insofar  as  they  materially  influence  the  stability  of  financial  institutions  and markets,  and  the 

specific  tasks  conferred  on  the  ECB  concerning  the  prudential  supervision  of  credit  institutions  under 

Article 127(6) of the Treaty. 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 royal decree-laws 

1.1  The second royal decree-law increases the number of macroprudential tools available to the Banco 

de  España.  In  particular,  the  Banco  de  España  may  (1)  require  the  application  of  the 

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In  particular,  the  ECB  is  consulted  on  the  4th  additional  provision,  the  10th  transitional  provision,  the  4th  final 
provision and the 6th final provision, points 2, 4 and 5.  

Royal decree-law 19/2018, of 23 November, on payment services and other urgent financial measures. 
Royal Decree-law 22/2018, of 14 December, establishing macro prudential tools.  
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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countercyclical  capital  buffer  (CCyB)  to  all  exposures  of  a  credit  institution  or  group5  of  credit 

institutions,  or  the  exposures  of  a  specific  sector;  (2)  require  credit  institutions  to  limit  their 

exposure  to  a  specific  sector  of  the  economy  if  the  aggregate  exposure  of  credit  institutions 

reaches  levels  that  may  pose  an  element  of  systemic  risk;  and  (3)  set  limits  and  conditions  on 

lending and acquiring fixed-income securities and derivatives by credit institutions, for transactions 

with agents from the private sector based in Spain. 

1.2  The  second  royal  decree-law  also  introduces  an  obligation  for  the  Banco  de  España  to 

communicate  its  intention  to  adopt  a  macroprudential  tool  seven  days  in  advance  to  the 

Macroprudential  Authority  Financial  Stability  Council  (AMCESFI)  and,  until  such  authority  is 

created, 

to 

the  Financial  Stability  Council  (CESFI).  The  draft  royal  decree-law  defines 

‘macroprudential  tools’  for  this  purpose  as  those  designed  to  prevent  systemic  risks  and  to 

generate a sustainable contribution from the financial system to economic growth. ‘Systemic risk’ is 

defined  for  this  purpose  as  the  risk  that  a  deterioration  of  all  or  part  of  the  financial  system  may 

cause a disruption in the provision of financial services that ultimately has a negative effect on the 

real economy. 

1.3  Finally,  the  first  royal  decree-law,  which  does  not  regulate  macro-prudential  tools,  amends  the 

Spanish  Law  on  corporations,  adopted  by  Royal  legislative  decree  No  1/2010.  This  amendment 

provides that shareholders' right of separation (i.e. the right for shareholders’ shareholdings to be 

acquired or redeemed by the company) due to a failure to distribute dividends as contemplated in 

the Law on corporations does not apply to shareholders of credit institutions. 

2. 

Sectoral CCyB 

2.1  The ECB welcomes the draft royal decree-law insofar as it equips the Banco de España with new 

macroprudential  tools  intended  to  ensure  that,  as  macroprudential  authority,  it  can  conduct  its 

macroprudential  tasks.  It  understands  that  the  Banco  de  España’s  primary  monetary  policy 

objective to maintain price stability, as defined in the Treaty, remains unaffected. 

2.2  The  ECB  notes  that  the  possibility  of  adding  sectoral  capital  buffers  to  the  macroprudential 

frameworks is being explored  at the international  level and  discussions on this issue are ongoing 
also in Europe in the context of the review of Directive 2013/36/EU6. If an international agreement 

on  sectoral  capital  buffers  is  reached  and  such  instruments  are  implemented  as  binding 

requirements  at  the  EU  level,  the  Spanish  authorities  may  need  to  reassess  the  design  of  the 

proposed national sectoral CCyB to ensure consistency with the EU framework. The ECB notes in 

this  respect  that  an  EU  framework  for  sectoral  CCyB  would  increase  the  effectiveness  of  the 

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For this purpose, a group is defined as a group of companies in the sense of Article 42 of the Spanish Commercial 
Code;  i.e.  where  one  exercises  control  over  the  others,  or  in  the  sense  of  Articles  4,  5,  6  and  7  of  Commission 
Delegated  Regulation  (EU)  No  241/2014  of  7  January  2014  supplementing  Regulation  (EU)  No 575/2013  of  the 
European Parliament and of the Council with regard to regulatory technical standards for Own Funds requirements 
for  institutions  (OJ  L  74,  14.3.2014,  p.  8),  which  are  que  linked  amongst  them  by  a  relationship  as  described  in 
Article 10(1), 113(6) or 113(7) of Regulation (EU) no. 575/2013.   

See Basel Committee on Banking Supervision: ‘Towards a sectoral application of the countercyclical capital buffer: A 
literature  review’,  Working  Paper  32,  March  2018,  available  on  the  Bank  for  International  Settlements’  website 
atwww.bis.org, and Presidency compromise text on the proposal for a Directive of the European Parliament and of 
the Council amending Directive 2013/36/EU, available on the Council’s website at www.consilium.europa.eu. 

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national measure, as it would add reciprocity arrangements and avoid the risk of possible overlaps 
and double counting of risks, in particular with Article 130 et seq. of Directive 2013/36/EU7.  

3. 

Conditions relating to lending and other transactions 

The conferral on the Banco de España of the power to set limitations and conditions to avoid excessive 

risk taking or over-indebtedness of private economic agents can be considered a reasonable measure to 

mitigate concentration risks in the banking sector. The ECB understands that this power does not restrict 

or affect the powers that the ECB may exercise for prudential supervisory purposes, and in particular the 

power to restrict or limit the business, operations or network of institutions or to request the divestment of 

activities  that  pose  excessive  risk  to  the  soundness  of  an  institution,  as  laid  down  in  Article  16(2)(e)  of 
Council Regulation (EU) No 1024/20138. 

4. 

Right of separation from a financial institution due to a failure to distribute dividends   

The  intended  change  in  Spanish  corporate  law  abolishing  the  right  of  shareholders  to  demand  the 

acquisition or redemption of their shares by the company due to a failure to distribute dividends  can, so 

far as Spanish credit institutions are concerned, contribute to a more resilient and stable banking system, 

especially in times of macroeconomic stress. The intended change furthermore brings Spanish corporate 

law  in  line  with  the  regulatory  capital  requirements  of  Regulation  (EU)  No  575/2013  of  the  European 
Parliament and of the Council9, ensuring that share capital fulfils the qualitative requirements for Common 

Equity Tier 1 instruments laid down in this Regulation at all times and under all conditions. 

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

Done at Frankfurt am Main, 21 December 2018. 

[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 2006/8/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). 
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). 
Regulation  (EU)  No  575/2013  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  prudential 
requirements  for  credit  institutions  and  investment  firms  and  amending  Regulation  (EU)  No  648/2012  (OJ  L  176, 
27.6.2013, p. 1). 

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