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Law 12/1998, Of April 28, Amending The Law 13/1994 Of 1 June, Autonomy Of The Bank Of Spain.

Original Language Title: Ley 12/1998, de 28 de abril, por la que se modifica la Ley 13/1994, de 1 de junio, de Autonomía del Banco de España.

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TEXT

JOHN CARLOS I

KING OF SPAIN

To all those who present it, and understand.

Sabed: That the General Courts have approved and I come to sanction the following Law.

EXPLANATORY STATEMENT

Law 13/1994, of June 1, brought forward the adaptation of the legal status of the Banco de España to the provisions of the Treaty on European Union, granting it a regime of full autonomy in the development and implementation of the monetary policy with the ultimate aim of achieving price stability.

Law 66/1997, of December 30, of Fiscal, Administrative and Social Order Measures, in its additional twenty-fourth provision incorporated into the Spanish legal order all the requirements of the independence of the Bank of Spain required by Article 107 of the Treaty on European Community.

However, it is necessary to amend Law 13/1994, of Autonomy of the Banco de España, to ensure the full integration of the Banco de España into the European System of Central Banks, the basic information principle of the institution in the third stage of Economic and Monetary Union.

In order to satisfy this need, this Law is exclusively aimed at ensuring the integration of the Banco de España into the European System of Central Banks, recognizing, among other things, the Bank's powers. European Central in the definition of monetary policy in the euro area-and its implementation by the Banco de España-and the powers of the European Community in relation to the exchange rate policy.

In accordance with Article 108 of the Treaty on European Community, at the latest by the date of the establishment of the European System of Central Banks, each Member State shall ensure that its national legislation, including the the statutes of its National Central Bank, is compatible with the Treaty itself and with the Statute of the European System of Central Banks.

Article first. Amendments to Chapter I of the Law of Autonomy of the Banco de España.

The following amendments are made to Chapter I of Law 13/1994, of 1 June, of Autonomy of the Banco de España:

One. Article 1 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, is hereby amended as follows:

" Article 1. Nature and specific rules.

1. The Banco de España is an entity governed by public law with its own legal personality and full public and private capacity. In the development of its activity and for the fulfilment of its aims, it will act with autonomy in relation to the General Administration of the State, performing its functions in accordance with the provisions of this Law and the rest of the legal system.

2. The Bank of Spain shall be subject to private law, unless it acts in the exercise of the administrative powers conferred by it or other laws. In the exercise of such administrative powers, the Bank of Spain shall be applied by Law No 30/1992 of 26 November 1992 of the Legal Regime of Public Administrations and of the Common Administrative Procedure.

In any event, the Bank of Spain shall have administrative acts in respect of the functions referred to in Article 7.6 and Article 15 (4).

The Banco de España will not be subject to the provisions of Law 6/1997 of 14 April of the Organization and the Functioning of the General Administration of the State.

3. The Banco de España is an integral part of the European System of Central Banks (hereinafter the ESCB) and will be subject to the provisions of the Treaty on European Community (hereinafter referred to as the Treaty) and the Statute of the ESCB.

In the performance of the tasks arising out of its status as an integral part of the ESCB, the Banco de España shall comply with the guidelines and instructions issued by the European Central Bank (hereinafter referred to as the ECB) by virtue of these provisions. '

Two. Article 2 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, is hereby amended as follows:

" Article 2. Regime of impeachment.

1. The administrative acts dictated by the Bank of Spain in the exercise of the functions provided for in Section 1.a and Article 15 of Chapter II of this Law, as well as the penalties imposed as a result of the application of the These rules shall put an end to the administrative route.

2. The administrative acts dictated by the Banco de España in the exercise of other functions, as well as the penalties imposed by it, shall be subject to regular recourse to the Minister for Economic Affairs and Finance.

3. Without prejudice to the jurisdiction of the Court of Justice of the European Community, the Office of the Administrative Court of the National Court shall, in a single instance, know of the remedies against acts which are not subject to administrative action. The Bank of Spain and the Bank of Spain have issued a decision to settle ordinary appeals against acts dictated by the Bank of Spain. "

Three. Article 3 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 3. Provisions laid down by the Banco de España.

1. Without prejudice to Article 1.3, the Bank of Spain may lay down the detailed rules for the exercise of the functions provided for in Article 7.3, as set out in Section 1.a and Article 15 of Chapter II of this Law, which shall be they will call monetary ircular ''.

In addition, for the proper exercise of the rest of your powers, you may dictate the precise provisions for the development of those rules that expressly enable you to do so. Such provisions shall be referred to as "ircular".

2. Some and other provisions shall be published in the Official State of the State '' and shall enter into force in accordance with the provisions of Article 2 (1) of the Civil Code. Prior to the technical and legal reports required to issue the Bank's competent services and those other reports and advice it deems appropriate, they shall be drawn up. The provisions of Article 24 of Law 50/1997 of 27 November of the Government, although, in the case of the ircular ones, will not apply to them.

The provisions laid down by the Banco de España will be subject to direct challenge to the Chamber of the Administrative-Administrative Office of the National Court. "

Four. Article 4 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 4. Economic regime.

1. The laws governing the budgetary, patrimonial and contracting arrangements of public bodies which are dependent on or linked to the General Administration of the State shall not apply to the Banco de España, except where they expressly provide contrary.

2. The proposal for a budget for the operation and investment of the Banco de España, once approved by its Governing Council, according to Article 21.1.g), will be forwarded to the Government, which will move it to the General Cortes for approval. The budget of the Banco de España will be estimated and will not be consolidated with the remaining budgets of the state public sector.

It will be up to the government, on the proposal of the Minister of Economy and Finance, to approve the balance and accounts of the Bank's financial year, which will be sent to the General Cortes for their knowledge. Without prejudice to Article 27 of the Statute of the European System of Central Banks, the Banco de España shall be subject to the external audit of the Court of Auditors, in accordance with the provisions of the Organic Law 2/1982 of 12 May the Court of Auditors. The report accompanying the balance sheet and the accounts for the financial year shall be broken down, taking into account its nature, the various operations or headings in the Bank's balance sheet. In particular, the contributions made by the Bank to Deposit Insurance Funds, as well as loans or other operations in favour of any other entities or persons that would not have been concluded under market conditions, shall be detailed. or which, in any other way, involves a loss of profit or loss to the Bank, and in such cases the amount of any such loss or bankruptcy is expressly stated in such cases. "

Article 2. Amendments to Chapter II of Law 13/1994, of 1 June, of Autonomy of the Banco de España.

The following amendments are made to Chapter II of Law 13/1994, of 1 June, of Autonomy of the Banco de España:

One. Article 7 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 7. General principles.

1. The Bank of Spain shall be responsible for the exercise of the functions provided for in this Law, as well as those which may be entrusted to it by other laws.

2. Without prejudice to the main objective of maintaining price stability and the fulfilment of the tasks which it exercises as a member of the ESCB under Article 105.1 of the Treaty, the Bank of Spain shall support general economic policy. of the Government.

3. The Banco de España will participate in the development of the following basic functions attributed to the ESCB:

(a) Define and implement the monetary policy of the Community.

(b) Conduct foreign exchange transactions that are consistent with the provisions of Article 109 of the Treaty.

c) Poseer and manage the official foreign exchange reserves of the Member States. However, the government may have and manage foreign exchange operating funds as provided for in Article 105.3 of the Treaty.

d) Promote the smooth operation of the payment system.

e) Issue legal tender tickets.

(f) Other tasks arising from their status as an integral part of the ESCB.

4. Subject to the provisions of Article 1.3, in the exercise of the functions provided for in paragraph 3 of this Article, developed in Sections 1.a, 2.a and 4.a of Chapter II, but in the latter cases only where it is pronounced on Questions arising from the tasks of the European System of Central Banks, the Government or any other national or Community body may give instructions to the Bank of Spain, nor may it seek or accept them.

5. In accordance with the provisions of paragraph 2 of this Article, the Bank of Spain shall also exercise the following functions:

a) Poseer and manage the reserves of foreign currency and precious metals not transferred to the European Central Bank.

b) Promote the smooth functioning and stability of the financial system and, without prejudice to the provisions of the previous number 3, (d), of national payment systems.

(c) To put the metal currency into circulation and to carry out, on behalf of the State, the other functions entrusted to it.

(d) The treasury services and financial agent of the Public Debt, as set out in Section 3.a.

e) Advising the Government, as well as carrying out the reports and studies resulting from it.

(f) Develop and publish the statistics relating to their tasks and assist the ECB in collecting the statistical information necessary for the fulfilment of the tasks of the ESCB.

g) Exercise the other powers that the legislation gives you.

6. The Bank of Spain shall monitor, in accordance with the provisions in force, the solvency, performance and compliance with the specific rules of credit institutions and any other financial institutions and markets whose supervision is (a) to be attributed, without prejudice to the role of prudential supervision carried out by the Autonomous Communities in the field of their powers and the cooperation of the Autonomous Communities with the Bank in the exercise of such autonomous supervisory powers.

7. The Banco de España may perform the necessary actions for the exercise of its functions, as well as those relating to its own administration and its staff.

8. The Banco de España will be able to establish relations with other central banks, with financial supervision authorities and financial institutions from other countries, as well as with international monetary and financial organizations.

It may also be related to public financial institutions and to financial supervisory authorities at the regional level. "

Two. Article 8 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 8. Opening of accounts to entities.

In order to carry out its operations, the Banco de España may open accounts to credit institutions, public entities and other market participants, as well as to accept assets in collateral. "

Three. Article 9 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 9. Implementation of monetary policy.

1. In order to achieve the objectives of the ESCB and to carry out its tasks, the Banco de España may carry out all financial operations in accordance with the general principles and instruments laid down by the ECB, and in particular the following:

(a) Operate on financial markets by buying and selling spot and forward or with repurchase agreements; lending or borrowing securities and other financial instruments denominated in any currency or unit of account, as well as precious metals.

b) Conduct credit operations with credit institutions and other market participants, basing them on appropriate collateral.

2. The Bank of Spain may maintain the frozen funds arising from the establishment of minimum reserves imposed by virtue of provisions laid down in accordance with the Statute of the ESCB. '

Four. Article 10 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 10. Information and control in the field of monetary policy.

1. The Bank of Spain shall regularly inform the General Courts and the Government of the objectives and implementation of monetary policy, without prejudice to Article 107 of the Treaty and to the rules on professional secrecy of the ECB.

To this effect, the Governor of the Bank may be summoned, in accordance with the parliamentary regulations, to any of the committees of the Congress or the Senate or mixed of both Chambers, as well as to be convened to attend with such a purpose to the meetings of the Council of Ministers or to the meetings of its Committee for Economic Affairs.

2. In addition, the Governor of the Banco de España may be summoned to the meetings of the Fiscal and Financial Policy Council of the Autonomous Communities referred to in Article 3 of the Organic Law 8/1980, of 22 September, of Financing of the Autonomous Communities so that, in order to facilitate the exercise of the tasks of financial coordination conferred on the Council, report on matters falling within the competence of the Bank. '

Five. New title is given to Section 2.a of Law 13/1994, of 1 June, of Autonomy of the Banco de España, which will be the one that follows: "External operations".

Six. The following wording is given to Article 11 of Law 13/1994, of 1 June, of Autonomy of the Banco de España:

" Article 11. Exchange rate policy.

Without prejudice to the competence of the European Community, the Government may consult the Banco de España on matters relating to the exchange rate policy. "

Seven. The following wording is given to Article 12 of Law 13/1994, of 1 June, of Autonomy of the Banco de España:

" Article 12. Conduct of external operations.

Without prejudice to Article 1.3, the Bank of Spain may carry out the external operations it deems appropriate and in particular the following:

a) Poseer, manage or acquire and sell at the spot or in time any type of assets denominated in foreign currency or units of account, as well as precious metals.

(b) to carry out any type of banking transaction with domestic or foreign entities or with international bodies, including the granting and obtaining of loans. "

Eight. Article 15 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 15. Issue of banknotes.

1. It shall be for the Bank of Spain, subject to the authorisation of the ECB, the exclusive right to issue banknotes in pesetas which, without prejudice to the legal regime applicable to the metallic coin, shall be the only means of payment of legal tender within the Spanish territory, with full and unlimited free circulation, as long as the issue of euro banknotes by the ESCB does not occur.

2. The Banco de España will decide on the denominations and characteristics of the pesetas banknotes, which will be published in the Official State of the State.

3. When the Banco de España agrees to withdraw the circulation or exchange of banknotes in pesetas of a certain series or class, it shall publish the corresponding notice in the Official State of the State '', in which it shall indicate the period of exchange. After that period, the banknotes in unredeemed pesetas will no longer be legal tender, they will lose their discharge as a legal means of payment and will cause the Bank's liabilities to be low. However, the Bank of Spain shall proceed to the exchange even if they are submitted after the period set for that purpose.

4. The carrying out of advertising using, in whole or in part, banknotes or coins which have or have had legal tender, or their facsimile reproductions, must be authorized in each case with prior character by the Banco de España, in the terms and with the Regulatory requirements.

The public administrations and the public law entities of which they are dependent will not be required.

The Banco de España may, subject to the regulatory rules of the sanctioning procedure applicable to subjects acting on financial markets, impose fines of up to 100 million pesetas on natural persons and (a) the legal status of the person, and the administrators of the legal entities, who carry out advertising without such authorization or with any failure to comply with the conditions laid down therein. '

Article 3. Amendments to Chapter III of Law 13/1994, of 1 June, of Autonomy of the Banco de España.

The following amendments are made to Chapter III of Law 13/1994, of 1 June, of Autonomy of the Banco de España:

One. Article 18 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 18. Powers of the Governor.

It will be up to the Governor of the Bank of Spain:

a) Lead the Bank and chair the Governing Council and the Executive Committee.

b) To provide the Bank's legal representation for all purposes and, in particular, before the Courts of Justice, as well as to authorize contracts and documents and to carry out the other activities that are necessary for the performance of the performance of the tasks entrusted to the Bank of Spain.

c) Represent the Banco de España in the international institutions and bodies in which its participation is planned.

d) To become a member of the Governing Council and the General Council of the European Central Bank. "

Two. Article 21 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 21. Powers of the Governing Council.

1. It shall be for the Governing Council:

(a) Approve the general guidelines of the Bank's action for the fulfilment of the tasks entrusted to it.

(b) Discuss issues relating to monetary policy and monitor the Bank's contribution to the implementation of the ESCB monetary policy carried out by the Executive Committee, all in respect of the guidelines and instructions of the ECB and the independence and obligation of secrecy of the Governor as a member of the governing bodies of the ECB.

(c) Approve, on a proposal from the Executive Committee, the Bank's annual report and, where appropriate, the other reports to be submitted by the Banco de España to the General Cortes, to the Government or to the Minister for Economic Affairs and Finance.

d) Approve the Bank's '' and the ircular '' of the Bank.

(e) Raise the separation proposals referred to in Article 25 (4) (d) to the Government.

In the adoption of such decisions, the member of the Council referred to in the proposal for separation shall not vote.

f) Approve the Bank's Rules of Procedure, on a proposal from the Executive Committee.

g) Approve the Bank's budget proposal, as well as formulate its annual accounts and the proposed profit distribution.

h) Approve the staff policy guidelines and ratify the appointment of the CEOs.

i) Impose the sanctions whose adoption is the responsibility of the Banco de España.

j) Approve the proposals for sanctions that the Bank of Spain should raise to the Minister of Economy and Finance.

k) Solve the resources or claims brought against the decisions of the Banco de España, when their knowledge corresponds to it.

(l) Adopt any other precise arrangements for the performance of the tasks entrusted to the Banco de España by this Law that are not the exclusive competence of the Executive Committee, and may delegate to the Governor, in the Deputy Governor or in the Executive Committee the powers and tasks which it considers appropriate. It shall, in particular, establish cases where subdelegation is possible.

2. The Presidency of the Governing Council will be responsible for this:

1.o To The Governor.

2.o The Subgovernor.

3.o Senior non-nato counsellor.

3. The Governing Council shall meet at least 10 times a year and whenever the Governor calls it.

The Governor of the Bank, as President of the Council, will agree to the call and set the agenda for the sessions.

The members of the Governing Council may request their convocation, which shall be produced whenever the application has been formalised, at least, by two members. The request shall expressly indicate the order of the day of the special call.

4. The Governing Council shall be validly constituted with the presence of at least five of its members, excluding the natos, and of its Secretary. The agreements shall be taken by a majority of votes and in the event of a tie shall decide the vote of the President. "

Three. Article 23 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Article 23. Powers of the Executive Committee.

1. It shall be the responsibility of the Executive Committee, subject to the Governing Council's guidelines:

(a) Contribute to the implementation of the monetary policy developed by the ESCB in accordance with the provisions of Article 21.1.b).

b) Solve the administrative authorizations to be granted by the Banco de España.

(c) Organise the Bank and appoint Directors-General and Staff, setting their remuneration in accordance with the provisions of the Bank's Rules of Procedure and with the general guidelines approved by the Bank. the Governing Council. In any event, this body shall ratify the appointment of the Directors-General.

(d) Submit proposals to the Governing Council whose resolution or approval is in line with this.

e) To carry out the tasks that the Governing Council has expressly delegated to it.

(f) To provide credit institutions with the precise recommendations and requirements, as well as to agree with them and their administrative bodies and address the opening of sanctioning dossiers and the measures taken to intervention, to replace their administrations, or any other precautionary measures provided for in the legal order for which the Bank of Spain has been entrusted.

Of the precautionary measures adopted by the Executive Committee in the exercise of this competence, it will, as soon as possible, account for the Governing Council.

g) Manage the Bank in the sphere of private law and dispose of its assets.

(h) Agree to the other transactions or transactions to be performed by the Bank for the performance of its functions, by delegating to the commissions or persons it considers relevant.

2. The Executive Committee shall meet whenever the Governor's call is convened on his own initiative or at the request of two of its members.

The agreements will be taken by a majority of votes. In the event of a tie, the vote of the President shall be decided. "

Four. Article 26.2 of Law 13/1994, of 1 June, of Autonomy of the Banco de España, will be worded as follows:

" Directors may not exercise during their term of office professional activities related to credit institutions, whatever their nature, with the securities markets or with private financial institutions. The position of Counsellor of the Banco de España is compatible with the development of the teaching and research function. "

Single additional disposition. Amendment of Law 10/1975 of March 12 on the Regulation of Metal Currency.

The following wording is given to the first paragraph of Article 4 of Law 10/1975 of 12 March on the Regulation of Metal Currency:

"In accordance with the approval of the European Central Bank as regards the volume of issuance, as provided for in Article 105.A. 2 of the Treaty, the Ministry of Economy and Finance shall agree to the minting of metallic coins, in particular:"

Single transient arrangement. Application of the rules relating to the coefficient of box.

However, as provided for in the derogating provision of this Law, the rules relating to the coefficient of cash contained in Law 26/1988 of 29 July on Discipline and Intervention of Credit Entities, and, in The provisions of Articles 4 (n) and 5 (g) and 10 (b) shall apply to infringements committed prior to the entry into force of this provision. In these cases, the competition to instruct and resolve the files will be the responsibility of the Banco de España.

Single repeal provision.

1. The following provisions of Law 26/1988 of 29 July on Discipline and Intervention of Credit Entities are hereby repealed:

point (n) of Article 4.

Article 5 (g).

Article 10 (b).

2. The second additional provision of Law No 33/1987 of 23 December 1987 on the general budget of the State for 1988 is hereby repealed.

3. Article 18 of Decree-Law 18/1962, of 7 June, of Nationalization and Reorganization of the Bank of Spain, is repealed.

Final disposition first. Amendment of article 18 of the Law on Discipline and Intervention of Credit Entities.

Article 18 of Law 26/1988, of July 29, on Discipline and Intervention of Credit Entities, will be worded as follows:

" Article 18.

Without prejudice to the provisions of Article 42 of this Law, the competence for the instruction of the files referred to in this Title and for the imposition of the corresponding penalties shall be governed by the following: rules:

(a) It shall be competent for the instruction of the files of the Banco de España.

b) The imposition of sanctions for serious and minor infractions will be the responsibility of the Banco de España.

(c) The imposition of sanctions for very serious violations shall be the responsibility of the Minister of Economy and Finance, on a proposal from the Bank of Spain, except for the revocation of the authorization, which shall be imposed by the Council of Ministers. "

Final disposition second. Benefits of the Banco de España.

Reglamentarily will determine the income regime in the Public Treasury of the profits of the Banco de España.

Final disposition third.

This Law shall enter into force from the date of the participation of Spain in the third stage of Economic and Monetary Union, provided that Spain is not a Member State with a derogation, in accordance with the provisions of this Law. in Article 109.K) of the Treaty,

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this Law.

Madrid, April 28, 1998.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ