text: EGT L 189, 3.7.1998, s. 42.

text: ECB:s Konvergensrapport, maj 2007, s. 19. 3 ECB:s Konvergensrapport, maj 2007, s. 19. 4 Se punkt 8 i ECB:s yttrande

text: av den 4 november 2004 på begäran av det ungerska finansministeriet om ett lagförslag om ändring av lagen om Magyar Nemzeti Bank, punkt 8 i ECB:s yttrande

text: av den 4 augusti 2005 på begäran av Národná banka Slovenska om ett utkast till lag om ändring av lag nr 566/1992 Zb. om Národná banka Slovenska, i sin ändrade lydelse, och om ändringar av vissa lagar, punkt 3.3 i ECB:s yttrande

text: av den 25 augusti 2006 på begäran av Banca d’Italia om den ändrade stadgan för Banca d’Italia, punkt 2.6 i ECB:s yttrande

text: av den 22 juni 2006 på begäran av den franska senaten om ett lagförslag om Banque de France, och punkterna 2.3 och 2.4 i ECB:s yttrande

text: av den 7 mars 2007 på begäran av det tyska finansministeriet om ett förslag till en åttonde lag om ändring av lagen om Deutsche Bundesbank.

title: Europeiska centralbankens yttrande av den 14 januari 2008 på begäran av Sveriges riksdag över ett förslag till lag om ändring i lagen om Sveriges riksbank som rör mandatperioden för ledamöterna i Riksbankens direktion (CON/2008/4)

text: EUROPEISKA CENTRALBANKENS YTTRANDE av den 14 januari 2008 på begäran av Sveriges riksdag över ett förslag till lag om ändring i lagen om Sveriges riksbank som rör mandatperioden för ledamöterna i Riksbankens direktion (

text: ) Inledning och rättslig grund

text: Den 9 oktober 2007 mottog Europeiska centralbanken (ECB) en begäran från finansutskottet i Sveriges riksdag om ett yttrande över ett förslag till lag om ändring i lagen om Sveriges riksbank som rör mandatperioden för ledamöterna i Riksbankens direktion (nedan kallat lagförslaget). ECB:s behörighet att avge ett yttrande grundas på artikel 105.4 i fördraget om upprättandet av Europeiska gemenskapen och artikel 2.1 tredje strecksatsen i

text: rådets beslut 98/415/EG av den 29 juni 1998

text: om nationella myndigheters samråd med Europeiska centralbanken rörande förslag till rättsregler , eftersom lagförslaget rör Sveriges riksbank. I enlighet med

text: artikel 17.5

text: första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: 1. Syftet med lagförslaget

text: För närvarande utses alla ledamöterna i Riksbankens direktion för en tid av sex år. När de nuvarande reglerna infördes 1999 var avsikten att upprätta ett system där ett direktionsmandat skulle förnyas varje år. Denna ordning har dock rubbats eftersom flera direktionsledamöter har avgått i förtid, något som kan tänkas ske igen i framtiden. För att åtgärda detta problem anger lagförslaget att direktionsledamöternas mandatperiod ska vara antingen fem eller sex år. Detta skulle ge en viss flexibilitet vid utnämningen av direktionsledamöter så att deras mandatperioder kan utformas så att inte flera direktionsledamöters mandattid går ut samtidigt.

text: 2. Allmänna kommentarer

text: 2.1 Den föreslagna mandatperioden uppfyller kraven enligt

text: artikel 14.2 i stadgan

text: för Europeiska centralbankssystemet och Europeiska centralbanken (nedan kallad ECBS-stadgan) som bl.a. anger att ämbetstiden för chefen för en nationell centralbank ska vara minst fem år. Trots detta vill ECB göra nedanstående kommentarer och rekommendationer som rör lagförslaget och kraven på centralbanksoberoende.

text: 2.2 Olika bestämmelser i fördraget och ECBS-stadgan kräver jämförbar anställningstrygghet för alla medlemmar av de nationella centralbankernas beslutande organ som för centralbankschefen. Artikel 14.2 i ECBS-stadgan begränsar inte anställningstryggheten till centralbankschefer, medan artikel 108 i fördraget och artikel 7 i ECBS-stadgan hänvisar till medlemmar av de nationella centralbankernas beslutande organ och inte specifikt till centralbankschefer . Detta gäller särskilt då centralbankschefen är den främste bland jämställda kolleger med lika rösträtt eller när sådana andra medlemmar kan behöva agera som centralbankschefens ställföreträdare . Det personliga oberoendet skulle äventyras om övriga medlemmar av de nationella centralbankernas beslutande organ som deltar i utförandet av ECBS-relaterade uppgifter inte också omfattades av samma regler om anställningstrygghet som centralbankscheferna . 2.3 Trots att ECB i princip föredrar att alla medlemmar i de nationella centralbankernas beslutande organ har samma mandatperiod kan undantag från detta vara lämpligt i vissa fall. Om medlemsstater önskar ha olika långa mandatperioder för sina direktionsledamöter är detta godtagbart förutsatt att motiven härför anges klart och tydligt och arrangemanget inte inkräktar på principen om centralbankers oberoende. I det aktuella fallet anges klart och tydligt i motiveringen till förslaget att avsikten med ändringen är att upprätta ett system där ett direktionsmandat förnyas varje år. Detta är en lösning som ECB inte motsätter sig, eftersom båda de föreslagna mandatperioderna (sex respektive fem år) uppfyller kraven enligt artikel 14.2 i ECBS-stadgan.

text: Detta yttrande ska offentliggöras på ECB:s webbplats.

text: Utfärdat i Frankfurt am Main den 14 januari 2008.

text: [Namnteckning]

text: Jean-Claude TRICHET

text: ECB:s ordförande


publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 17 January 2008 at the request of the Polish Minister for Finance on a draft law amending the Law on the Bank Guarantee Fund (CON/2008/5)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 17 January 2008 at the request of the Polish Minister for Finance on a draft law amending the Law on the Bank Guarantee Fund (

text: ) Introduction and legal basis

type: rubrik

text: On 22 October 2007 the European Central Bank (ECB) received a request from the Polish Minister for Finance for an opinion on a draft law amending the Law of 14 December 1994 on the Bank Guarantee Fund (hereinafter the ‘draft law’) . The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third and sixth indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to Narodowy Bank Polski (NBP) 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.

type: stycke

text: 1. Purpose of the draft law

text: 1.1 The draft law constitutes an updated version of amendments to the national deposit-guarantee scheme in Poland, as managed by the Bank Guarantee Fund (hereinafter the ‘Fund’) . The ECB has already been consulted on an earlier version of such amendments, relating to the method of financing, governance and supervision of the Fund, as described in detail in an earlier ECB opinion .

text: 1 Consolidated text: Dz.U. of 19 April 2007 No 70, Item 474.

text: 2 OJ L 189, 3.7.1998, p. 42.

text: 3 Participation in the deposit-guarantee scheme operated by the Fund is mandatory for all banks established in Poland, including cooperative banks, but not for the Polish variety of credit unions operating on the basis of the Law of 14 December 1995 on cooperative savings and loan associations (Dz.U. of 4 January 1996 No 1, Item 2, as amended). Branches of non-EU banks must, and branches of EU credit institutions may, be covered by the scheme to the extent that their home country schemes do not ensure deposit guarantees at the level established in Polish law (Articles

text: and

text: b of the Law of 14 December 1994 on the Bank Guarantee Fund (hereinafter the ‘Law on the Bank Guarantee Fund’)). For ease of reference, the entities covered by the mandatory deposit-guarantee scheme operated by the Fund are referred to in this opinion as ‘commercial banks’.

text: 4 See paragraphs 1.1 to 1.2 of ECB Opinion

text: of 27 August 2007 at the request of the Polish Minister for Finance on a draft law amending the Law on the Bank Guarantee Fund. 1.2 Compared with the original version of the draft law, the current version introduces the following new elements: (i) NBP’s right to extend credit facilities to the Fund is restricted to short-term credit facilities extended at NBP’s discretion to enable the Fund to repay guaranteed deposits, only in so far as the Fund’s own resources are not sufficient and only where the stability of the banking system is threatened . (ii) New rules are introduced on the Fund’s management of its financial resources. In particular, any balance sheet surplus of the Fund should, as a rule, be allocated to its ‘assistance fund’ supporting the Fund’s operations to the benefit of distressed but still solvent commercial banks, rather than to the Fund’s core resources securing the repayment of guaranteed deposits in the event of a bank insolvency . Wider powers are also given to the Fund as regards the offering of financial support for the consolidation and modernisation of cooperative banks . (iii) The draft law, similarly to the previously consulted provisions, contains proposals to amend the Fund’s governance, regulation and supervision. However, amendments in this area now ensure that NBP’s existing powers as regards the governance and regulation of the Fund are largely maintained .

text: 2. The ECB’s comments

text: 2.1 General comments The ECB welcomes the draft law in so far as it continues to propose abolishment of the annual subsidies contributed by NBP to the financing of the Fund and incorporates earlier ECB recommendations related to the need to maintain effective coordination of the deposit-guarantee scheme with the overall role of the central bank in safeguarding financial stability . In particular, the ECB welcomes the general aim of the draft law to preserve or strengthen the specific regulatory functions exercised in relation to the Fund by the President of NBP .

text: 5 See

text: Article 1(9)

text: and (12) of the draft law. At the same time, the draft amendments related to abolishing NBP’s nonrepayable annual subsidies for the Fund, as well as the changed method for calculating the commercial banks’ financial contributions, are maintained (see

text: Article 1(1)

text: and (8) of the draft law).

text: 6 See Article 1(10) of the draft law. The statutory application of the Fund’s various resources is regulated in paragraphs 28 to 31 of the Statute of the Bank Guarantee Fund (see the Annex to the Regulation of the Council of Ministers of 28 February 1995 on the adoption of the Statute of the Bank Guarantee Fund, Dz.U. of 6 March 1995 No 21, Item 113, as amended (hereinafter the ‘Fund Statute’)).

text: 7 See Article 2 of the draft law.

text: 8 See

text: Articles 1(2)

text: to (7), (11), (12) and (15) of the draft law. Among other things these amendments increase the regulatory and supervisory powers exercised in relation to the Fund by the Minister for Finance. Auditing powers exercised by the Supreme Chamber of Control, a state audit body, are also strengthened (Article 3 of the draft law).

text: 9 See paragraphs 2.2 and 3.3 of ECB Opinion

text: 10 Under the provisions of the Law on the Bank Guarantee Fund, as amended by the current version of the draft law, the President of NBP will: (1) agree with the Minister for Finance on the regulatory proposals submitted to the Council of Ministers for: (i) changes to the Fund Statute, (ii) additional tasks of the Fund concerning the provision of assistance to commercial banks, and (iii) emergency rates for commercial banks’ financial contributions to the Fund; (2) submit a non- 2.2 Compatibility of NBP’s extension of credit facilities to the Fund with the monetary financing prohibition The ECB recalls its stance on the prohibition on monetary financing, as expressed in its Convergence Report of December 2006. In the Report, the ECB stated that national legislation which provides for the ‘financing by NCBs [national central banks] of a public sector national deposit insurance scheme for credit institutions … would not be compatible with the monetary financing prohibition, if it is not short term, does not address urgent situations, systemic stability aspects are not at stake, and decisions do not remain at the NCB’s discretion’ . In the Report, the ECB further noted that the current Article 43 of the Law on Narodowy Bank Polski and Article 15(6) of the Law on the Bank Guarantee Fund, which give NBP the power to grant credit to the Fund, are incompatible with the Treaty provision on monetary financing . 2.3 The draft law will amend the conditions under which NBP may grant credit facilities to the Fund. Under the amended Article 34(3) of the Law on the Bank Guarantee Fund, such credit facilities may only be given for a short term, and only when: (i) the stability of the banking system is threatened; and (ii) the total amount of claims submitted for the repayment of guaranteed deposits exceeds the Fund’s accumulated resources . Further, Article 15(6) of the Law on the Bank Guarantee Fund, establishing the sources of finance of the Fund, is amended to reflect the amendments to Article 34(3) of the same Law . Other related provisions of the Law on the Bank Guarantee Fund, specifying the mode of application and repayment of NBP’s credits, are not affected; in particular, the Law continues to stipulate that NBP’s credit facilities may only be used to fulfill the Fund’s task of protecting guaranteed deposits, hence excluding the use of NBP’s credits to finance any of the Fund’s other operations (such as giving support to distressed but still binding opinion on draft regulations by the Minister for Finance relating to the conditions for the Fund’s trading in loans acquired from commercial banks threatened with insolvency; (3) set the remuneration of the Fund Council’s members in agreement with the Minister for Finance; and (4) establish the commercial banks’ reporting obligations to the Fund (

text: Article 3(4)

text: Articles 4

text: (2a) and 34(4) (as amended by

text: Article 1(5)

text: and (12) of the draft law) and Articles 4(3), 6(4) and 38(7) of the Law on the Bank Guarantee Fund). At the same time, President of NBP will retain his current powers related to the appointment of the Fund Council’s members and the selection of the Fund’s auditors (Articles 6(3) and 17(2) of the Law on the Bank Guarantee Fund). The President of NBP will also have a new right to receive, together with the Minister for Finance, quarterly reports on the activities and finances of the Fund (

text: Article 7(2)

text: (3a) of the Law on the Bank Guarantee Fund, as added by Article 1(6) of the draft law).

text: 11 See the ECB Convergence Report, December 2006, ‘Introduction and executive summary’, Section 2 (Compatibility of national legislation with the Treaty), Subsection 2.4 (Prohibition on monetary financing and privileged access), under the heading ‘Financial support for deposit insurance and investor compensation schemes’, p. 30.

text: 12 Law on Narodowy Bank Polski of 29 August 1997 (consolidated text: Dz.U. of 1 April 2005 No 1, Item 2, as amended (hereinafter the ‘Law on NBP’)).

text: 13 See the ECB Convergence Report, December 2006, Chapter 2 (Compatibility of national legislation with the Treaty), Section 7 (Poland), Subsection 7.3 (Monetary financing and privileged access), p. 229.

text: 15 The proposed wording of Article 15(6) of the Law on the Bank Guarantee Fund, as amended by Article 1(9) of the draft law, specifies ‘short-term credit facility extended by NBP pursuant to

text: Article 34(3)

text: [of the Law]’ as one of the sources of finance of the Fund. solvent commercial banks) . At the same time, the draft law amends Article 43 of the Law on NBP so that it will now only provide that ‘Narodowy Bank Polski may extend credit facilities to the Bank Guarantee Fund’, without referring to any conditions that must be agreed with the Fund’s management before such lending may take place . According to the consulting authority, the new regulation of conditions under which NBP’s credit facilities may be extended to the Fund is intended to ensure full compliance of the Law on the Bank Guarantee Fund with the monetary financing prohibition under Article 101(1) of the Treaty . 2.4 The ECB reiterates its position that the granting of a credit facility by NBP to the Fund falls under the prohibition contained in Article 101(1) of the Treaty. The Fund qualifies as a ‘body governed by public law’ covered by Article 101(1) of the Treaty, since it has been established as a legal person by the Law on the Bank Guarantee Fund, while its organisation and the exercise of its public functions and powers in relation to commercial banks is based on the provisions of this Law and of relevant secondary legislation . The Fund is also subject to public supervisory and auditing powers exercised by the Minister for Finance and NBP, as well as, in line with amendments introduced by the draft law, by the Supreme Chamber of Control . The characterisation of the Fund as a body covered by the Treaty prohibition on monetary financing is unaffected by the provisions of the draft law which, from the point of view of the Polish administrative and budgetary regime, classify the Fund as a non-state body outside the scope of the public finance sector . 2.5 While, subject to the conditions specified above, the provision of credit to funds vested with a deposit guarantee function may be justified , it needs to be ensured that the proposed amendments to the Law on the Bank Guarantee Fund incorporate all such specified conditions. In this regard, the following needs to be noted. (i) The conditions that: (1) the NCB crediting of the deposit guarantee scheme has a short-term character; and (2) the crediting decision remains at the discretion of the NCB, are both already incorporated in the amended provisions of the Law on the Bank Guarantee Fund .

text: Articles 16(1)

text: (2) together with

text: Article 15(6)

text: and

text: Article 4(1)

text: and (2) of the Law on the Bank Guarantee Fund. Any amounts recovered by the Fund from the insolvent estates of liquidated commercial banks must be applied in the first place to the repayment of money paid out under NBP’s credit facility and to the restoration of the Fund’s original statutory assets (Article 35(2) of the Law on the Bank Guarantee Fund).

text: 17 Article 43 of the Law on NBP as amended by Article 4 of the draft law.

text: 18 See the second paragraph of the letter of Minister for Finance of 15 October 2007 requesting the ECB’s opinion.

text: 19 See

text: Article 3(1)

text: to (4) of the Law on the Bank Guarantee Fund and paragraph 1 of the Fund Statute. See also the relevant secondary legislation adopted on basis of the provisions referred to in footnote 10 above.

text: 20 See footnotes 8 and 10 above.

text: 22 See paragraph 2.2 of this Opinion and paragraphs 10 to 14 of ECB Opinion

text: of 11 October 2001 at the request of the Portuguese Ministry of Finance on a draft decree law amending the legal framework of credit institutions and financial companies. (ii) The condition that the NCB credit addresses urgent situations is not incorporated. To this effect, the wording of the amended Article 34(3) of the Law on the Bank Guarantee Fund needs to specify that credit facilities should only be granted for urgent needs of the Fund. 2.6. As regards the condition that credit may only be extended if systemic stability aspects are at stake, the ECB notes that NBP’s credit facilities may only be extended to perform the Fund’s task of protecting guaranteed deposits. In this context, the ECB understands that the above-mentioned task in principle should be financed by way of increased financial contributions from commercial banks rather than by way of credit facilities extended by NBP. To this effect, the list of funding sources in Article 15 of the Law on the Bank Guarantee Fund could expressly provide that NBP credit facilities may only be extended in the absence of any other available sources . 2.7 Moreover, to rule out any breach of the monetary financing prohibition, it may be useful to specify explicitly in Article 34 of the Law of the Bank Guarantee Fund that the credit facilities extended by NBP to the Fund are based on adequate collateral and are granted without prejudice to Article 101 of the Treaty . 2.8 Finally, the proposed amendments to Article 43 of the Law on the NBP are not fully compatible with the monetary financing prohibition as long as they do not include an explicit cross-reference to the provisions of the Law on the Bank Guarantee Fund specifying the conditions that may justify the extension of credit to the Fund. The ECB considers that such an explicit cross-reference is necessary to avoid doubt and to ensure legal interpretation that complies with the monetary financing prohibition . This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 17 January 2008. [signed] The President of the ECB Jean-Claude TRICHET

text: 25 Article 15(6) of the Law on the Bank Guarantee Fund lists credit facilities extended by NBP among financial resources of the Fund. Special status of such credit facilities as the ‘last resort’ source of funding currently stems from systemic interpretation of the

text: Article 34(3)

text: in conjunction with

text: Article 34(1)

text: -(2) of the Law.

text: 26 See paragraph 13 of the ECB Opinion

text: . Under current Polish law, any credit facility agreement must, in particular, specify ‘the mode of securing the repayment of the credit’ (

text: Article 69(2)

text: (6) of the Law on banking of 29 August 1997 (consolidated text: Dz.U. of 12 June 2002 No 72, Item 665, as amended, hereinafter, the ‘Law on banking’)). The provisions of the Law on banking cover all types of credit facility agreements, including agreements related to credit facilities extended by NBP to the Fund.

text: 27 The draft law will amend with the same effective date the respective provisions of both the Law on the Bank Guarantee Fund and the Law on NBP, which may facilitate their consistent interpretation (

text: Article 1(9)

text: and (12) and

text: Article 4

text: in conjunction with Article 7 of the draft law). Nevertheless, introduction of an express cross-reference will ensure that any divergent application is excluded.

type: vagledning

utgivare: ecb


text: OJ L 189, 3.7.1998, p. 42.

title: Opinion of the European Central Bank of 1 February 2008 at the request of the Portuguese Parliament on a draft law on the principles, rules and structure of the National Statistical System (CON/2008/6)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 1 February 2008 at the request of the Portuguese Parliament on a draft law on the principles, rules and structure of the National Statistical System (

text: ) Introduction and legal basis

text: On 26 November 2007 the European Central Bank (ECB) received a request from the Parliamentary Commission for Budget and Finance for an opinion on a draft law on the principles, rules and structure of the National Statistical System (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the third and fourth indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to a national central bank and to the collection, compilation, and distribution of monetary, financial, banking payment systems and balance of payments statistics. 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.

text: 1. Purpose of the draft law

text: 1.1 The draft law introduces substantial changes to the current legal framework of the National Statistical System (NSS) and of the National Statistical Institute (INE). The Banco de Portugal, whose role in the statistical field is reinforced by the draft law, is formally incorporated in the NSS structure and, as such, is designated as a statistical authority. It is also entitled to have a representative in the Higher Statistical Council, whose composition and powers are revised. 1.2 Furthermore, the new draft law fully endorses the Fundamental Principles of Official Statistics adopted by the United Nations Statistical Commission, namely by regulating in Chapter II aspects such as technical independence, quality, access to official statistics and individual data protection. The guidelines contained in the European Statistics Code of Practice were also adopted and reflected in the fundamental principles of the NSS. With regard to statistical secrecy, the draft law regulates the circumstances in which access to individual statistical data can be granted for scientific purposes (

text: Article 6(7)

text: and (8)).

text: 2. General observations

text: 2.1 Ensuring effective co-operation between the national central bank, as a producer of statistics, and other statistical authorities is very important for the quality and cost-effectiveness of statistics. Depending on national circumstances and choices, this aim can be pursued through different institutional settings. Whatever the general setting, the specific arrangements should aim to optimise the reliability and efficiency of the statistical production process, while preserving in all respects the independence of the central bank. 2.2 A significant feature of the draft law refers to the recognition of the Banco de Portugal as a statistical authority (

text: Article 3(1)

text: (c)). Although the statistical responsibilities of the Banco de Portugal have always been established by its Organic Law, there was no such explicit recognition of this function in the Law on the national statistical system. Furthermore, Articles 19 and 20 of the draft law are fully in line with the Organic Law, so that both legal acts are consistent with national practice, according to which the Banco de Portugal has always been the national producer of official statistics in the fields of monetary, financial, foreign exchange and balance of payments statistics. The ECB also notes that

text: Article 20

text: expressly states that the participation of the Banco de Portugal in the NSS shall not prejudice the guarantees of independence deriving from its participation in the European System of Central Banks (ESCB), in particular, with regard to the performance of its duty to collaborate with the ECB on statistical matters. 2.3 The new structure of the Higher Statistical Council now ensures a more accurate and up to date representation of the producers and users of official statistics (

text: Article 10

text: ). This new structure will permit the definition of a coordinated and efficient national statistical working plan, including the efficient allocation of tasks on the execution of statistical operations; adoption of common methodology, concepts and nomenclature (

text: Article 13

text: ); and sharing of lists of statistical units and of administrative data (

text: Article 8

text: ). The new structure of the NSS relies on and promotes coordination between statistical authorities (

text: Article 9

text: ), in particular between the Banco de Portugal and the INE (

text: Article 21

text: ). The Banco de Portugal and the INE are party to several agreements for the purpose of statistical production, e.g., financial and non-financial accounts; government finance statistics; surveys of tourism expenditure and cross-border movements; and the simplified corporate information project. This is again the case where the new legal text formalises a practice that is already being followed by the producers of official statistics. 2.4 The ECB welcomes the new draft law as it clarifies the division of responsibilities between the various statistical authorities and formalises current best practices. The draft law will make the Portuguese statistical system more integrated and coordinated and will have a positive impact, both in terms of the quality of official statistics and with regard to cost savings. The ECB also welcomes that this system is more operationally effective and consequently more capable of responding to the existing and foreseeable future needs for official statistical data at both national and Community level.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 1 February 2008. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42.

text: See the Guide to consultation of the European Central Bank by national authorities regarding draft legislative provisions, p. 14. Also paragraph 2.5 of ECB Opinion

text: of 21 September 2007 at the request of Banca Naţională a României on a draft regulation on oversight of payment systems, securities settlement systems and payment instruments. Both available on the ECB’s website at www.ecb.int.

title: Opinion of the European Central Bank of 11 February 2008 at the request of Banca Naţională a României on two draft emergency ordinances amending Law No 58/1934 on bills of exchange and promissory notes and Law No 59/1934 on cheques (CON/2008/7)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 11 February 2008 at the request of Banca Naţională a României on two draft emergency ordinances amending Law No 58/1934 on bills of exchange and promissory notes and Law No 59/1934 on cheques (

text: ) Introduction and legal basis

text: On 13 December 2007 the European Central Bank (ECB) received a request from Banca Naţională a României (BNR) for an opinion on two draft emergency ordinances (hereinafter the ‘draft emergency ordinances’) amending Law No 58/1934 on bills of exchange and promissory notes and Law No 59/1934 on cheques, respectively. The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the second and fifth indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft emergency ordinances relate to means of payment, and to payment and settlement systems. 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.

text: 1. Purpose of the draft emergency ordinances

text: In contrast to credit payment instruments, which may already be electronically processed under Romanian law, manual processing of paper-based debit payment instruments such as cheques, bills of exchange and promissory notes is currently the only permitted option. The main purpose of the proposed amendments introduced by the draft emergency ordinances is therefore to allow the electronic processing and presentment for payment of such debit payment instruments as an alternative to their manual processing. In detail, the objectives of the draft emergency ordinances are as follows: (i) to regulate truncation; (ii) to define the concept of signature on cheques, bills of exchange and promissory notes more clearly; (iii) to eliminate post-dated cheques, the allonge and data/references to data on the back of cheques, bills of exchange and promissory notes; and (iv) to introduce a single period for presenting a cheque for payment, regardless of whether it is payable in the city where it was issued.

text: 2. General observations

text: The ECB welcomes the amendments proposed in the draft emergency ordinances, which will implement an automated processing solution for cheques, bills of exchange and promissory notes in Romania. The use of truncation and electronic presentment for payment can increase efficiency in the clearing and settlement of such debit payment instruments.

text: 3. Secondary legislation

text: The draft emergency ordinances state that BNR will issue secondary legislation to implement them. Once such secondary legislation has been drafted, BNR should consider whether it would be appropriate to submit it to the ECB for consultation. As the ECB has previously stated in this regard ‘an opinion should only be sought from the ECB on such draft secondary legislation if the subject matter is closely related to the ECB’s tasks and if the impact on areas within the ECB’s fields of competence is different from that resulting from the primary legislation itself’ .

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

text: Done at Frankfurt am Main, 11 February 2008.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: Organic Law No 2007-223 of 21 February 2007 (hereinafter the ‘Organic Law’). 3 The department of Guadeloupe is governed by Article 73 of the French Constitution. 4 Governed by Article 74 of the French Constitution.

text: Article L.711-1 of the Code, as amended. 7 Explanatory memorandum to the draft order, p. 1. 8 Provided for under Part Four of the Treaty. 9 OJ L 139, 11.5.1998, p. 1. 10 Pursuant to Articles LO 6213-1 and LO 6313-1 of the French General Code for Regional and Local Authorities, respectively. 11 As was the case when the two collectivities were part of Guadeloupe. 12 New

text: Article 311

text: a of the Treaty on the Functioning of the European Union. 13 Under the Treaty of Lisbon, the Community ceases to exist, hence the use of the expression ‘Union law’.

text: The European Council shall act unanimously after consulting the Commission; new

text: Article 311

title: Opinion of the European Central Bank of 14 February 2008 at the request of the French Ministry for Economic Affairs, Finance and Employment on a draft order on the application of the Monetary and Financial Code to Saint-Martin and Saint-Barthélemy (CON/2008/8)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 14 February 2008 at the request of the French Ministry for Economic Affairs, Finance and Employment on a draft order on the application of the Monetary and Financial Code to Saint-Martin and Saint-Barthélemy (

text: ) Introduction and legal basis

text: On 18 December 2007, the European Central Bank (ECB) received a request from the French Ministry for Economic Affairs, Finance and Employment for an opinion on a draft order issued pursuant to Article 19 of Law No 2007-224 of 21 February 2007 on statutory and institutional measures for overseas (hereinafter the ‘draft order’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the first and third indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft order relates to currency matters and the Banque de France. 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.

text: 1. Purpose of the draft order

text: A French organic law (hereinafter the ‘Organic Law’) has transformed Saint-Barthélemy and Saint- Martin, previously two municipalities of the French overseas department of Guadeloupe , into ‘overseas collectivities’ (hereinafter the ‘two collectivities’). The draft order introduces the legislative measures required to adapt the French Monetary and Financial Code (hereinafter the ‘Code’) following this change of status. The draft order inserts a reference to the two collectivities in the provisions of the Code which previously only referred to overseas departments. In particular, the provision of the Code concerning the territorial scope of issue of euro banknotes is amended so as to allow the Banque de France to issue euro

text: banknotes as legal tender in the two collectivities. In addition, another amendment of the Code aims at confirming that the monetary regime for the two collectivities remains unchanged and that the Banque de France remains competent in the two collectivities to carry out the tasks entrusted to it by virtue of its membership of the European System of Central Banks. The Institut d’Émission des Départements d’Outre-Mer continues to act in the two collectivities in the name, on behalf of and under the authority of the Banque de France.

text: 2. General observations

text: 2.1 The explanatory memorandum to the draft order states that ‘in the absence of a decision by the European authorities to include [the two collectivities] in the OCTs [i.e. overseas countries and territories enjoying a special ‘association’ status ], they continue to be governed by Community law.’ The ECB also understands that the two collectivities, despite their change of status under French law and as long as they do not become OCTs, will continue to be an integral part of the Community. Thus, they will continue to be governed by Community law, including directly applicable Community legal acts such as

text: Council Regulation (EC) No 974/98 of 3 May 1998

text: on the introduction of the euro . Moreover, the ECB is aware that following the change to the status of the two collectivities, French law, and in particular the Code and its provisions transposing Community 10 11 legislation, continues to apply automatically in the two collectivities . The ECB therefore understands that the change to the status of the two collectivities under French law does not affect the monetary regime applicable to them. 2.2 The ECB notes in this context that the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, which was signed on 13 December 2007, replaces the words ‘the French overseas departments’ currently used in Article 299(2) of the Treaty by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ . The ECB welcomes this clarification, which confirms that the two collectivities will remain subject to Union law once the Treaty of Lisbon has entered into force following its ratification. 2.3 It cannot be excluded that in future either or both of the two collectivities will ask for a change of status under French and Union law in order to obtain OCT status. The ECB understands that, to this date, such a change of status is foreseen in the Organic Law only for Saint-Barthélemy and that no formal step has been taken in this direction so far. Such change of status under Union law will be

text: facilitated by the Treaty of Lisbon, once it enters into force following its ratification, as a new provision is added, pursuant to which ‘the European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory .’ The ECB emphasises that, should OCT status be considered in future for either or both of the two collectivities, the issue of the applicable monetary regime would have to be addressed. In particular, the need for a specific decision regarding the monetary regime would have to be considered in view of the fact that the collectivity in question would cease to belong to the Union and to be subject to its laws.

text: Done at Frankfurt am Main, 14 February 2008.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42.

text: See ECB Convergence Report 2007, p. 19. 3 See ECB Convergence Report 2007, p. 20, footnote 7, referring, inter alia, to ECB Opinion

text: of 20 January 2004 at the request of the Economic Committee of the Finnish Parliament on a draft government proposal to amend the Suomen Pankki Act and other related acts, which concerned the reduction of primary capital of the Suomen Pankki and a limitation on Suomen Pankki’s right to create financial provisions.

text: Federal Administrative Court, judgment of 1 June 1995 - 2 C 16/94.

title: Opinion of the European Central Bank of 21 February 2008 at the request of the German Ministry of Finance on a draft law amending the Law on the Deutsche Bundesbank (CON/2008/9)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 February 2008 at the request of the German Ministry of Finance on a draft law amending the Law on the Deutsche Bundesbank (

text: ) Introduction and legal basis

text: On 9 November 2007 the European Central Bank (ECB) received a request from the German Federal Ministry of Finance (hereinafter the ‘Ministry of Finance’) for an opinion on a draft law on the reorganisation and modernisation of federal civil service law (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to the Deutsche Bundesbank. 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.

text: 1. Purpose of the draft law

text: Article 12 of the draft law amends § 31 of the Law on the Deutsche Bundesbank, which concerns the legal relationships between the Deutsche Bundesbank and its civil servants, employees and workers. The current § 31(4) and (6) of the Law on the Deutsche Bundesbank provides, as an exception to provisions on Federal civil servants which generally apply to the civil servants of the Bundesbank, that the Executive Board of the Deutsche Bundesbank (hereinafter the ‘Executive Board’) may regulate autonomously certain features of these relationships concerning, inter alia, the careers of Bundesbank staff by adopting Staff Regulations (Personalstatut) and other regulations (Laufbahn-, Ausbildungs- und Prüfungsordnungen). These regulations require the approval of the Federal Government (hereinafter the ‘Government’), or, depending on the aspect being regulated, the agreement of the Ministry of the Interior. Under the amended § 31(4) and (6) of the Law on the Deutsche Bundesbank, the Government will be authorised to regulate the abovementioned legal relationships either by adopting regulations itself, or by delegating the power to adopt regulations to the Executive Board. In the event that the Government

text: delegates this power, the regulations adopted by the Executive Board will require the agreement of the Ministry of the Interior alone or in agreement with the Ministry of Finance, as the case may be. The difference between the current legislation and the proposed amendments is that under the current § 31(4) and (6) of the Law on the Deutsche Bundesbank, upon the approval of the Government, the Executive Board can itself regulate certain matters concerning the Deutsche Bundesbank’s staff, and the Government is bound by its previous decisions to approve such regulations. The proposed amendments will allow the Government to decide whether to delegate its regulatory power to the Executive Board and, if it does, it will be possible for it to withdraw the delegation at any moment. This implies that the Government could indirectly revoke an approval it has given in the past. Apart from the abovementioned amendments, the draft law also provides that the Bundesbank’s Staff Regulations currently in force will cease to apply after a transitional period, at the latest on 31 December 2008.

text: 2. General observations

text: 2.1 The ECB welcomes this consultation request by the Ministry of Finance on the amendments to the Law on the Deutsche Bundesbank. As a matter of principle, any draft legislative provisions amending the statute of a national central bank (NCB) should be the subject of a formal consultation of the ECB under the third indent of

text: Article 2(1) of Council Decision 98/415/EC

text: . This consultation obligation also applies to amendments to special public sector employment regulations which only apply to NCB staff. 2.2 Such regulations must not impair the ability of an NCB to employ and retain the qualified staff necessary for the performance of the tasks conferred upon it by the Treaty, the Statute of the European System of Central Banks (hereinafter the ‘ESCB Statute’) and national legislation in an independent manner. The ECB has noted that Member States may not put their NCBs in a position where they have insufficient financial resources to carry out their ESCB- or Eurosystem-related tasks . Similarly, an NCB may not be put into a position where it has limited or no control over its staff, or where a government of a Member State seeks to influence it in the performance of its tasks, as has been stressed in various opinions of the ECB in recent years . 2.3 In this context, the ECB notes that the amendments to the Law on the Deutsche Bundesbank, according to the draft law’s explanatory memorandum, are of a technical nature and are not intended to change the substance of the provisions applicable to the staff of the Deutsche Bundesbank. Furthermore, the explanatory memorandum stresses that the Government intends to make full use of the power to delegate to the Executive Board its power to regulate the

text: legal relationships between the Deutsche Bundesbank and its staff. The ECB is also aware that the proposed amendments may be deemed necessary to make the legal situation compliant with the case law of the Federal Administrative Court . 2.4 The ECB considers that there is no need to amend § 31(4) and (6) of the Law on the Deutsche Bundesbank. The ECB is concerned about the Government’s discretionary powers to grant and withdraw the delegation, and to regulate directly the legal relationships of the Deutsche Bundesbank with all categories of staff as well as the careers of such staff. Although the Government’s approval is currently required for the adoption of regulations by the Executive Board, the ECB considers that the proposed amendments will give the Government increased discretion in this context, which will reduce the Deutsche Bundesbank’s autonomy in taking decisions concerning its staff regulations. With a view to the principle of central bank independence, the ECB would like to point out that the threat of withdrawing such delegated powers is a potential tool to influence an NCB unduly in fulfilling its tasks and thus limits that NCB’s independence. In this regard, it is useful to note that the ECB defines its staff policy autonomously and that this autonomy forms part of the ECB’s independence as guaranteed by Article 108 of the Treaty and Article 36 of the ESCB Statute. 2.5 As the proposed amendments entail a withdrawal of the Deutsche Bundesbank’s authority to determine the legal relationships and career polices for all categories of staff and a transfer of this authority to the Government, the ECB considers them to be a reduction of the independence of the Deutsche Bundesbank. The ECB therefore recommends that the new rules which will apply to the Deutsche Bundesbank should contain sufficient safeguards to ensure that the Deutsche Bundesbank’s ability to carry out all its tasks, particularly ESCB-related tasks, will not be affected. The intention of the Government to delegate some of these powers to the Executive Board creates insufficient safeguards in terms of independence, as the permanent threat of a withdrawal of such delegated powers constitutes a potential and ongoing means of influencing the relevant policies in all respects.

text: 2.6 Against that background, the ECB would welcome a revision of the proposed amendments, extending the powers of the Executive Board to adopt staff regulations. Finally, the ECB underlines that the Government should consult the ECB on any future amendment to the specific rules applicable to the Deutsche Bundesbank’s staff in accordance with

text: Council Decision 98/415/EC

text: . This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 21 February 2008. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42.

text: Gazzetta Ufficiale No 300, 28.12.2007, Supplemento ordinario No 285.

text: Presidential Decree No 398 of 30 December 2003 (Gazzetta Ufficiale No 57, 9.3.2007, Supplemento ordinario).

text: See ECB Opinion

text: of 18 June 2007 at the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the regulation and supervision of markets and the functioning of the competent independent authorities.

text: Decree-Law No 248 of 31 December 2007 (Gazzetta Ufficiale No 302, 31.12.2007, p. 4).

text: See ECB Convergence Report 2007, p. 20.

text: See ECB Convergence Report 2007, p. 19.

text: See ECB Opinion

text: of 25 August 2006, paragraph 3.2.

text: See ECB Convergence Report May 2007, p. 20.

text: Law No 483 of 26 November 1993 (Gazzetta ufficiale No 282, 1.12.1993).

text: The 2007 calendar for the issue of Treasury bills provides for the issue of six-month and 12 month Treasury bills, while it previously also issued three-month Treasury bills.

text: According to paragraph 20 of

text: Case 283/81

text: , Srl CILFIT and Lanficio di Gavardo SpA v Italian Ministry of Health [1982] ECR 3415 ‘every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof’.

text: See press release of the MEF and the Banca d’Italia of 13 April 2007, ‘Starting of the liquidity management transactions (OPTES)’.

title: Opinion of the European Central Bank of 21 February 2008 at the request of the Italian Ministry of Economic Affairs and Finance on some provisions of the Law on the State annual and pluriannual budget (2008 Budget Law) (CON/2008/10)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 February 2008 at the request of the Italian Ministry of Economic Affairs and Finance on some provisions of the Law on the State annual and pluriannual budget (2008 Budget Law) (

text: ) Introduction and legal basis

text: On 20 December 2007 the European Central Bank (ECB) received a request from the Italian Ministry of Economic Affairs and Finance (MEF) for an opinion on some provisions of the draft law on the composition of the State annual and pluriannual budget (hereinafter the ‘2008 Budget Law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third indent of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the law relates to the Banca d’Italia. 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. The Italian Council of Ministers approved the draft law on 15 November 2007 and the national Parliament adopted it on 24 December 2007 as Law No 244 . The subject of this opinion is the draft version of the law that the consulting authority sent to the ECB with its consultation request (Atto Camera 3256 – A), which was agreed by the Parliament only shortly before its adoption and corresponds fully to the final text that was adopted. This opinion relates only to the specific provisions identified by the consulting authority as relevant for the ECB.

text: 1. Purpose of the relevant provisions of the 2008 Budget Law

text: The specific provisions on which the MEF has consulted the ECB affect the role of the Banca d’Italia as a national central bank (NCB) of the Eurosystem and cover two different fields. On the one hand, Article 2(39) of the 2008 Budget Law implements a structural reform to the government account held at the Banca d’Italia by amending the Law on consolidation of legislative provisions and regulations on public debt (hereinafter the ‘2003 Consolidated Law’), which regulates the single Treasury account . On the other hand,

text: Article 3(44)

text: to (49) of the 2008 Budget Law relates to the overall financial treatment of the Banca d’Italia. According to

text: Article 3(45)

text: , the regulation of the financing modalities, expenditure control and remuneration of the Banca d’Italia will be delegated to a future law reforming the

text: independent authorities in Italy, including the Banca d’Italia. In this regard, it may be noted that the ECB has already opined earlier last year on a draft law reforming the independent authorities (Atto Senato 1366) .

text: 2. General observations

text: The ECB received the consultation request in the same week in which the law was adopted. The ECB understands that on 31 December 2007, shortly after adoption of the law, Decree-Law No 248 on the extension of deadlines set by legislative provisions and urgent provisions on financial matters (hereinafter the ‘Decree-Law’) was adopted . According to Article 42(1) of the Decree-Law, Article 2(39) of the 2008 Budget Law only enters into force following the adoption of the relevant ECB opinion, while Article 42(2) of the Decree-Law adds to Article 3(45) of the 2008 Budget Law the words ‘in compliance with the requirements provided for by Community law’ after the words ‘on the expenditure’. In view of these provisions of the Decree-Law and the late stage in the legislative process at which the ECB was consulted, the ECB would like to draw attention to

text: Article 4 of Council Decision 98/415/EC

text: , which requires Member States to ensure that the ECB is consulted at an appropriate point in time to allow the consulting authority to take its opinion into consideration before deciding on the substance of the draft legislative provisions. In the present matter, the ECB was consulted more than one month after approval of the draft Law by the Government and two working days before its final adoption by Parliament. On the other hand, the ECB appreciates that the consulting authority will take appropriate additional measures to reflect the ECB’s opinion to the extent appropriate. In addition, the ECB expects that for future amendments or implementing measures to the law, the obligation to consult the ECB is respected. More generally, internal administrative procedures should be in place to ensure that timely consultation of the ECB is foreseen whenever such consultation is mandatory.

text: 3. Specific observations

text: 3.1 Publicity and transparency

text: One aspect of Article 3(44) of the 2008 Budget Law is the application to the Italian public institutions of the general principles of publicity and transparency of the remuneration of public administration servants. These principles promote best practice in public administration and the ECB welcomes the fact that they apply to the Banca d’Italia, in addition to the other Italian independent authorities.

text: 3.2 Central bank independence – Personal independence

text: 3.2.1 Article 3(44) of the 2008 Budget Law also establishes limits to the ‘overall level of remuneration’ for anyone receiving payment from public finances within the scope of employment or selfemployment contracts with the public administration and exempts the Banca d’Italia from the scope of this general rule. However, Article 3(46) of the 2008 Budget Law provides for a specific

text: threshold for the overall remuneration of any Banca d’Italia servant, as well as in public administration and the independent authorities, of double the First President of the Supreme Court’s remuneration. The ECB understands that this threshold will apply to all Banca d’Italia servants. 3.2.2 The ECB notes that, under the current regime, the Banca d’Italia enjoys statutory autonomy in determining its servants’ salaries, including the Directorate. An act of the Board of Directors determines the remuneration of the Banca d’Italia’s servants, subject to internal and external controls. In this regard it may also be noted that the ECB defines autonomously its staff’s conditions of employment and that this autonomy forms part of the ECB’s independence as guaranteed by Article 108 of the Treaty and Article 36 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘ESCB Statute’). The new provisions of Article 3(46) of the 2008 Budget Law represent a departure from the current regime in that the determination of remuneration of Banca d’Italia’s servants will be subject to the limit referred to in that Article. In order to ensure that

text: Article 3(46)

text: is consistent with the Community requirements for personal independence of the members of NCBs’ decision-making bodies, the new legislation introducing a remuneration threshold for the Banca d’Italia should be implemented so as to ensure that it does not affect the terms under which the current members of its decisionmaking bodies have been appointed. Therefore, the new legislation should only apply to future appointments.

text: 3.3 Central bank independence – Financial independence

text: 3.3.1 The concept of financial independence is assessed from the perspective of whether any third party is able to exercise either direct or indirect influence not only on the performance of an NCB’s tasks, but also on its ability - both operational in terms of manpower and financial in terms of appropriate financial resources - to fulfil its mandate . The ECB has noted in the past that Member States may not put their NCBs in a position where they risk having insufficient financial resources to carry out such ESCB or Eurosystem-related tasks . In the present case, the ECB is concerned that the Banca d’Italia’s ability to carry out its tasks may be affected by future legislation foreseen in the 2008 Budget Law. 3.3.2 Article 3(45) of the 2008 Budget Law subjects the Banca d’Italia to a law to be adopted in the future, reforming the independent authorities, which will regulate their financing modalities, expenditure control and related issues. It has to be ascertained that this envisaged future legislation does not affect the Banca d’Italia’s financial independence In particular, it will need to take into account the Banca d’Italia’s status as a member of the Eurosystem and its specific auditing and controlling structure (Article 38 of the Banca d’Italia’s Statute), which the ECB welcomed in its opinion on the new Statute . Considering that the future legislation foreseen in Article 3(45) of the 2008 Budget Law is intended to regulate aspects such as, inter alia, expenditure control, the ECB

text: understands that such future legislation will exclude any ex ante third party intervention in the Banca d´Italia’s expenditure needed for the Banca d’Italia’s statutory tasks, including both its ESCB and non-ESCB related tasks, in compliance with the principle of financial independence, and that the scope of any such control will be clearly defined by the legal framework and be without prejudice to the activities of the Banca d’Italia’s independent external auditors, as laid down in Article 27.1 of the ESCB Statute . Along the same lines, as explained in paragraph 3.2.2, it is noted that also in this respect the new law would depart from the current regime which leaves regulation of these matters to the statutory autonomy of the Banca d’Italia and would consequently weaken its independence. Finally, Article 3(45) of the 2008 Budget Law departs from Article 17(9) of the draft law on the independent authorities, relating specifically to the organisation of the authorities, according to which the Banca d’Italia is fully exempted by the scope of

text: Article 17

text: itself. Such an exemption should specifically apply also to Article 3(45) of the 2008 Budget Law.

text: 3.4 Monetary financing prohibition

text: 3.4.1 The Law regulating the account held by the Italian Treasury with the Banca d’Italia to manage the Treasury services was adopted prior to European Monetary Union . Article 5(5) of the 2003 Consolidated Law, which mirrors the same provision already in force since 1993, provides that the Banca d’Italia attributes, at the beginning of each six months, interest equal to the average of Treasury bills issued in the previous six months to the ‘Treasury availability to provide Treasury services’ account . The 2003 Consolidated Law does not contain provisions on the maturity of deposits and, consequently, does not explicitly correlate the remuneration rate of the deposits with their maturity. 3.4.2 The 2003 Consolidated Law currently in force is constructed so that it does not exclude the possibility of Treasury deposit remuneration rates being higher than the market rates in particular for the remuneration of overnight deposits. Such a remuneration rate would contravene the objectives of the monetary financing prohibition under the Treaty . From an economic perspective, the prohibition of monetary financing by central banks of government activities is independent of its form, i.e. loans, or other direct financial means (e.g. the provision of direct, non-reimbursable funding to the public sector). Interest payments above market rates constitute a de facto advanced distribution of profits to the government. This, in turn, implies a de facto intra-year credit, contrary to the objective of the monetary financing prohibition. Therefore, the remuneration for government deposits should not go beyond the remuneration applied to a similar deposit made by a market counterparty. If the remuneration mechanism for government deposits allows the Government to systematically steer the remuneration by an NCB at a rate above the rate at which a similar deposit

text: would be remunerated by a market counterparty, in addition to constituting a breach of the monetary financing prohibition it may have undesired signalling effects. 3.4.3 The ECB notes that the draft 2008 budget law initially submitted to the Parliament aimed at remedying the above described problematic provisions by introducing the following provision in

text: Article 5(5)

text: , linking clearly the deposit remuneration rate to the market: ‘The Minister for Economic Affairs and Finance and the Banca d’Italia shall establish by means of agreements, to be agreed within 90 days of entry into force of this Law, the conditions for maintenance and remuneration of the account, which shall be linked to market rates’. However, the amendments introduced by Parliament to Article 5(5) of the 2003 Consolidated Act no longer contain this provision, thus maintaining the incompatibility of Italian law with the prohibition of monetary financing.

text: 3.5 Monetary policy implementation

text: 3.5.1 Government deposits held with the Eurosystem reduce the amount of liquidity available to the euro area’s banking sector. Therefore, the deposits have to be forecast when calibrating the ECB’s open market operations. The Banca d’Italia and the other NCBs of the Eurosystem provide these forecasts to the ECB on a daily basis. Since 1999, their precision has to a large extent depended on the procedures for the management of government deposits, which differ widely between the different countries of the euro area. On an aggregate level, errors in the forecast of government deposits have continuously caused a large part of the errors in the forecast of liquidity needs of the euro area banking sector as a whole. Given the particular nature of the procedures for managing government deposits in Italy, the ECB welcomes any effort to make the forecasts of government deposits at the Banca d’Italia more reliable. In that respect, the 2008 Budget Law provides that deposits in excess of a threshold agreed between the MEF and the Banca d’Italia in the context of the exchange of information on cash flows will no longer be remunerated. This can be expected to provide an incentive for the MEF to transfer funds in excess of this threshold to the banking sector. 3.5.2 This measure could indeed reduce forecasting errors in the liquidity management transactions (OPTES) procedures. These procedures were introduced in April 2007 to increase flexibility in the management of Treasury funds and thereby satisfy the MEF’s short-term financial needs and improve the predictability of the available account balance . As mentioned in the statement of reasons, the performance of OPTES with respect to avoiding forecasting errors could greatly improve by introducing transactions transferring surplus balances from the MEF’s account with the Banca d’Italia to the banking system. For these reasons, the change planned for the remuneration regime should be implemented as soon as possible. 3.5.3 The change planned for the remuneration regime is insufficient alone to achieve high precision in government deposit forecasting. However,

text: Article 5(5)

text: , as amended by the 2008 Budget Law, provides that ‘To stabilise the balance with the forecast, the liquidity management

text: modalities…shall be established by means of a later decree of the Minister for Economic Affairs and Finance.’ Without knowing these modalities in detail, it is not possible for the ECB to conclusively assess future government deposit management procedures in Italy. They should in any event leave no scope for liquidity management operations to be specified in accordance with interest rates. 3.5.4 The ECB expects that the exact specifications of the future procedures for the management of government deposits in Italy will be compatible with the efficient implementation of monetary policy. This may require further modifications to the law.

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

text: Done at Frankfurt am Main, 21 February 2008.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 OJ L 157, 9.6.2006, p. 87.

text: See ECB Opinions

text: of 5 October 2007 at the request of the Portuguese Ministry of Finance and Public Administration on a draft decree-law amending the legal framework of credit institutions and financial companies,

text: of 21 March 2007 at the request of the Czech Ministry of Industry and Trade on certain provisions of a draft law amending the Law on consumer protection relating to Česká národní banka,

text: of 13 September 2006 at the request of the Czech Ministry of Industry and Trade on an amendment to the Law on Česká národní banka, and

text: of 25 July 2006 at the request of the Bank of Greece on a draft provision on the Bank of Greece’s powers in the field of consumer protection.

text: See e.g. the ECB’s Convergence Report 2004, p. 28, and similarly in the ECB’s Convergence Report December 2006, p. 27.

title: Opinion of the European Central Bank of 26 February 2008 at the request of the Portuguese Ministry of Finance and Public Administration on two draft decree-laws transposing Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual and consolidated accounts, concerning the supervision of auditors (CON/2008/11)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 26 February 2008 at the request of the Portuguese Ministry of Finance and Public Administration on two draft decree-laws transposing Directive

text: ) Introduction and legal basis

text: On 16 November 2007 the European Central Bank (ECB) received a request from the Portuguese Ministry of Finance and Public Administration for an opinion on two draft decree-laws transposing Directive

text: of the European Parliament and of the Council of 17 May 2006 on statutory audit of annual and consolidated accounts (hereinafter the ‘draft decree-laws’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third indent of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as one of the draft decree-laws relates to the Banco de Portugal. 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.

text: 1. Purpose of the draft decree-laws

text: The draft legislation is intended to transpose into Portuguese law Directive

text: of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives

text: and

text: and repealing

text: Council Directive 84/253/EEC

text: (hereinafter the ‘Directive’) . The Directive imposes harmonised rules on statutory auditors and audit firms and requires Member States to organise an effective system of public oversight of such entities based on the principles of adequacy, effectiveness and independence. It further recommends that the competent authorities of the Member States cooperate with each other for the purpose of carrying out said duties. With this aim, the first draft decree-law establishes the National Audit Supervisory Council (Conselho Nacional de Supervisão de Auditoria, hereinafter the ‘CNSA’), charged with organising a system for the

text: public oversight of statutory auditors and audit firms in accordance with the Directive. The Statute of the CNSA (hereinafter the ‘CNSA Statute’) is published as an annex to the first draft decree-law and is an integral part of it. The second draft decree-law amends the Statute of the Association of Statutory Auditors (Ordem dos Revisores Oficiais de Contas) and has no connection with the Banco de Portugal. In view of the above, the present opinion deals only with the first draft decree-law.

text: 2. General observations

text: 2.1 Article 1 of the draft decree-law establishes the CNSA. According to its Statute, the CNSA is an independent body with no legal personality and subject to oversight by the Minister for Finance (

text: Article 2

text: ). The tasks entrusted to the new body by the draft decree-law include, inter alia, supervising the approval and registration of statutory auditors and audit firms and of the adoption of standards of professional ethics, internal quality assurance rules for audit firms and audit procedures (

text: Article 3(1)

text: (a)). The CNSA will also issue regulations on matters falling within the scope of its responsibilities, coordinate the different national entities with powers in the field of auditing and assist and cooperate with other international bodies with powers to approve, register, assure the quality of, inspect and discipline statutory auditors and audit firms (

text: Article 3(1)

text: (b),(c) and (d)). The powers conferred on the CNSA include issuing binding prior opinions on quality assurance system rules, ethical standards and auditing standards foreseen in

text: Article 11(1)

text: (c). 2.2 In accordance with the draft decree-law, (

text: Article 5

text: ), participation in the CNSA will become part of the Banco de Portugal’s statutory tasks. Such participation consists of one of the members of its Board of Directors being a permanent member of the CNSA (

text: Article 9(1)

text: (a) of the CNSA Statute). This new function is not related to the European System of Central Banks (ESCB) and, therefore, pursuant to the last sentence of Article 14.4 of the ESCB Statute, such new function would have to be performed on the Banco de Portugal’s responsibility and liability. However, as previously pointed out , and without prejudice to the Governing Council’s powers under Article 14.4 of the ESCB Statute, the ECB does not consider that the abovementioned tasks would interfere with the objectives and tasks of the ESCB or with the responsibilities of the Banco de Portugal as an integral part of the ESCB. In this context, the ECB notes that the CNSA will be an independent body (Article 2(1) of the CNSA Statute) and that the tasks of the CNSA will be without prejudice to the tasks and powers conferred by law to the Banco de Portugal (Article 3(2) of the CNSA Statute).

text: 3. Specific observations

text: 3.1 As regards responsibility, the ECB notes that the CNSA has no legal personality but enjoys the capacity to be party to judicial proceedings (

text: Article 2(1)

text: (3) of the CNSA Statute). The ECB considers that the implications of the lack of legal personality for the regime of non-contractual liability, which could rest on the CNSA’s members, may require adequate consideration. 3.2 On the other hand, the lack of legal personality requires proper consideration of the CNSA’s financing regime, as this would imply the allocation of human, technical and material resources by the entities comprising the CNSA (Articles 14(1) and 27(1) of the CNSA Statute). This allocation has to be subject to previous annual budgeting, so that those entities could mobilise the necessary resources. The ECB has consistently held the view that ‘Member States may not put their NCBs in the position of not having sufficient financial resources to carry out their ESCB or Eurosystemrelated tasks, as applicable’ . The ECB therefore expects that, when granting these additional functions to the Banco de Portugal, care will be taken to ensure that the Banco de Portugal’s operational capacity to carry out ESCB-related tasks will not be affected.

text: Done at Frankfurt am Main, 26 February 2008.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: KOM(2007) 653 slutlig.

text: Se artikel 6.5 i förslaget till förordning.

text: Se artikel 7.3 i förslaget till förordning.

text: Rådets förordning

text: (EEG) nr 2913/92

text: av den 12 oktober 1992 om inrättandet av en tullkodex för gemenskapen (EGT L 302, 19.10.1992, s. 1). Denna förordning har senast ändrats genom förordning

text: (EG) nr 1791/2006

text: (EUT L 363, 20.12.2006, s. 1).

text: ECB:s yttrande

text: av den 1 december 2003 på begäran av Europeiska unionens råd över ett förslag till Europaparlamentets och rådets förordning om gemenskapsstatistik över betalningsbalansen, internationell handel med tjänster och utländska direkta investeringar (KOM(2003) 507 slutlig) (EUT C 296, 6.12.2003, s. 5).

text: EUT L 102, 7.4.2004, s. 1.

sprak: sv

title: Europeiska centralbankens yttrande av den 3 mars 2008 på begäran av Europeiska unionens råd över ett förslag till Europaparlamentets och rådets förordning om gemenskapens statistik rörande utrikeshandel med tredjeländer och om upphävande av rådets förordning (EG) nr 1172/95 (CON/2008/12)

text: Inledning och rättslig grund

text: Den 7 februari 2008 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande över ett förslag till Europaparlamentets och rådets förordning om gemenskapens statistik rörande utrikeshandel med tredjeländer och om upphävande av

text: rådets förordning (EG) nr 1172/95

text: (nedan kallat förslaget till förordning).

text: ECB:s behörighet att avge ett yttrande grundas på

text: artikel 105.4

text: första strecksatsen i fördraget om upprättandet av Europeiska gemenskapen. I enlighet med

text: artikel 17.5

text: första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: Allmänna kommentarer

text: 1. ECB välkomnar förslaget till förordning som bör förbättra kvaliteten, jämförbarheten och aktualiteten på den europeiska utrikeshandelsstatistiken samt medföra en förbättrad koppling mellan denna och affärsstatistiken. I medlemsstaterna används utrikeshandelsstatistiken också som en källa för att sammanställa statistik över betalningsbalansen och nationalräkenskaperna, samt även för nationella bidrag till euroområdets betalningsbalans och finansräkenskaper för vilka ECB ansvarar.

text: 2. ECB noterar att medlemsstaterna enligt föreslaget till förordning endast är skyldiga att sammanställa och överföra följande data till EU-kommissionen om denna finns tillgänglig i den tulldeklaration som lämnats in till deras tullmyndigheter: i) vilken medlemsstat som är slutdestination (vid import), ii) från vilken medlemsstat den faktiska avsändningen sker (vid export) samt iii) transaktionstyp. På liknande sätt ska en medlemsstat endast ha skyldighet att överföra uppgifter om export eller import till en annan medlemsstat när tullmyndigheterna i de båda medlemsstaterna har inrättat en mekanism för ömsesidigt utbyte av relevanta data på elektronisk väg. ECB noterar att ovannämnda uppgifter är viktiga för att säkerställa hög kvalitet på euroområdets statistik som nämns i punkt 1, och rekommenderar att åtgärder omedelbart vidtas för att genomföra nödvändiga ändringar i gemenskapens tullkodex och i mekanismen för utbyte av data mellan EU:s tullmyndigheter så att kvaliteten på uppgifterna inte försämras.

text: 3. Såsom framgår av ett tidigare yttrande delar ECB Europaparlamentets uppfattning om att eurons internationella betydelse bör följas upp. I detta sammanhang välkomnar ECB särskilt artikel 6.3 i förslaget till förordning enligt vilken handelsstatistik avseende export och import av varor till och från länder utanför EU ska sammanställas efter fakturavalutan. ECB granskar användningen av euron utanför euroområdet och publicerar en årlig översikt över eurons internationella roll vilken bl.a. innehåller ett avsnitt om hur euron används i internationell handel. Eurons internationella roll varierar kraftigt mellan olika regioner och är mest framträdande inom EU. Uppgifter om handelsstatistikens uppdelningen efter valuta är också en viktig källa för ECB:s makroekonomiska prognoser som används för att analysera prisstabilitet, eftersom de innehåller information om i vilken utsträckning valutakursförändringar påverkar priserna på importer och inhemskt producerade varor.

text: 4. ECB välkomnar att rapporteringsbördan för de ekonomiska aktörerna förväntas minska och att förslaget till förordning bör leda till en förbättrad användning av administrativa data.

text: 5. ECB utgår från att förslaget till förordning kan medföra att Intrastat-rapporteringen, som upprättats genom

text: Europaparlamentets och rådets förordning (EG) nr 638/2004 av den 31 mars 2004

text: om gemenskapsstatistik över varuhandeln mellan medlemsstaterna och om upphävande av

text: rådets förordning (EEG) nr 3330/91

text: , måste ändras och rekommenderar att dessa ändringar diskuteras snarast.

text: Utfärdat i Frankfurt am Main den 3 mars 2008.

text: Jean-Claude Trichet

text: ECB:s ordförande


text: OJ L 189, 3.7.1998, p. 42.

text: Law on social security reform and other provisions (Government Gazette, Vol A/165).

text: ECB Convergence Report of May 2007, p. 19. See also ECB Opinion

text: of 21 February 2008 at the request of the German Ministry of Finance on a draft law amending the Law on the Deutsche Bundesbank and ECB Opinion

text: of 21 February 2008 at the request of the Italian Ministry of Economic Affairs and Finance on some provisions of the Law on the State annual and pluriannual budget (2008 Budget Law). 4 See ECB Opinion

text: of 2 December 2003 at the request of the Austrian Federal Ministry of Finance on a draft Federal law on the National Foundation for Research, Technology and Development.

text: By Article 5 of Law 3029/2002 on the reform of the social security system (Government Gazette, Vol A/160, 11.7.2002).

text: See Article 134 of the draft law, which amends Article 36 of Law 3556/2007.

text: OJ L 332, 31.12.1993, p. 1.

text: Articles 5 and 6 of Law 3029/2002 provided for the integration of a number of pension branches of various funds as part into the State-run IKA-ETAM and IKA-ETEAM with regard to main and auxiliary pensions, respectively.

text: See ECB Opinion

title: Opinion of the European Central Bank of 19 March 2008 on a draft law concerning the reform of the Greek social security system (CON/2008/13)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 19 March 2008 on a draft law concerning the reform of the Greek social security system (

text: ) Introduction and legal basis

text: On 6 March 2008 a draft law entitled ‘Administrative and organisational reform of the social security systems and other social security provisions’ (hereinafter the ‘draft law’) was submitted for adoption to the Greek Parliament by the Minister for Employment and Social Protection. As part of the legislative procedure, the competent Permanent Committee for Social Affairs convened on 11, 12 and 13 March 2008 and adopted the draft law by a majority of its members including amendments and improvements, thereafter proposing it for enactment by the Parliament. The competence of the European Central Bank (ECB) to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third indent of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to a national central bank (NCB). In particular, the draft law introduces a number of provisions that could affect the status of the Bank of Greece, inter alia by integrating the main pension fund of its members of staff (hereinafter the ‘BoG Pension Fund’) into a State-run fund, namely the IKA-ETAM. In the light of the above and considering the nature of the abovementioned provisions which could affect the status of the Bank of Greece as an independent authority, the ECB has decided to submit this owninitiative opinion, with a view to assisting in the ongoing legislative procedure by commenting on specific provisions. 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.

text: 1. Purpose of the draft law

text: 1.1 The purpose of the draft law, as stated in its explanatory memorandum, is to reform the social security system, especially as the ratio between active and retired employees has severely deteriorated, entailing the creation of deficits within social security entities, which may require

text: subsidising by the State. 1.2 The draft law aims at: (i) implementing an administrative reform, by drastically reducing the existing high number of social security entities; (ii) adjusting specific social security arrangements that require a more efficient approach, increasing the sustainability of the pension system, inter alia by providing for special retirement age, providing incentives for staying in service and by regulating issues relating to supplementary retirement schemes; and (iii) introducing institutional changes in the social security system. 1.3 The draft law is structured to consist of a Part A on administrative and organisational reform, basically providing for the integration of several individual entities, including the BoG Pension Fund, and a Part B on specific provisions and arrangements on social security.

text: 2. Description of the reform under the draft law

text: 2.1 According to the explanatory memorandum to the draft law, the basic principles of the envisaged social security reform are the following: (i) the public, redistributive and compulsory character of the social security system; (ii) a three-pillar structure, i.e. main and supplementary social security, occupational social security (occupational funds) and free financing (private social security); (iii) the three fundamental parameters of the system (general retirement age limits, level of pensions, level of contributions), with ‘mature’ pension rights remaining unaffected; and (iv) the application of certain social security arrangements to persons insured before 1 January 1993, taking into account the general uniform rules pursuant to Law 2084/1992 . 2.2 In terms of the administrative reform being undertaken, the explanatory memorandum states that today public social security in Greece is provided by 155 separate entities. In order to limit the resulting fragmentation and achieve economies of scale, to ensure capability for substantial control and supervision, to overcome administrative and organisational difficulties and reduce administrative and operational cost, the draft law proposes to consolidate funds or integrate entities in already existing social security organisations under specific terms and conditions. In this context the BoG Pension Fund is to be integrated into the State-run pension fund IKA-ETAM. 2.3 Finally, the Greek legislator intervenes in some specific social security arrangements pertaining, inter alia, to retirement age limits and incentives to stay in service for a longer time, taking into account increasing life expectancies, as well as to supplementary pensions. Furthermore, the legislator seeks to protect mothers’ rights, create a social security capital fund for solidarity among generations with the task of financing social security entities as from 1 January 2019 and introduce a social security registration number for all citizens.

text: 3. Economic analysis of the pension reform

text: Greece is expected to experience a strong increase in age-related public spending, which will negatively affect the long-term sustainability of public finances. Greece is therefore in the group of high-risk countries in this respect. The EU Council opinion on the updated 2007 stability programme therefore calls for reforms to the Greek pension system. Moreover, in the absence of commonly agreed long-term projections of pension expenditures, the Greek authorities are urged to produce such projections as soon as possible. Taking account of the available information on the planned pension reform, the ECB welcomes the overall objective of the pension reform to be brought about by the draft law as it is intended to improve the sustainability of the Greek pension system and therefore of public finances. The ECB understands that consolidating existing pension funds would also render long-term projections of pension expenditures easier, which would improve the transparency of Greek public finances and also support the assessment of the stability programme as required under the Stability and Growth Pact.

text: 4. Central bank independence

text: 4.1 Article 2(4) of the draft law states that the resources of the state-run IKA-ETAM will also include those of the entities being integrated, namely contributions of employers and employees, revenues from social resources, property revenues, remuneration of capital and reserves and any other revenue of such entities. This Article goes beyond a mere consolidation and restructuring by introducing a requirement for the Bank of Greece to pay the amount of EUR 23 million annually into the IKA-ETAM for a period of 15 years (i.e. a total of EUR 345 million), such amount corresponding to the Fund’s deficit as calculated on 31 December 1992. 4.2 The ECB is concerned about those provisions of the draft law that oblige the Bank of Greece to make annual contributions to the state-run IKA-ETAM, which may undermine the Bank of Greece’s financial independence. The ECB has consistently stated in its Convergence Reports that even if an NCB is fully independent from a functional, institutional and personal point of view, its overall independence would be jeopardised if it could not autonomously avail itself of sufficient financial resources to fulfil its mandate . It would be inconsistent with the Treaty for a member of the European System of Central Banks (ESCB) to be under a legal obligation to provide financial support, potentially by drawing on its own funds, for activities that are normally sponsored by the State . 4.3 The ECB therefore recommends that the new rules which apply to the Bank of Greece should contain sufficient safeguards to ensure that the Bank of Greece’s ability to carry out its tasks, in

text: particular ESCB-related tasks will not be affected. Such provisions should therefore be drafted in cooperation with the Bank of Greece.

text: 5. Monetary financing aspects of the proposal

text: 5.1 The IKA-ETAM constitutes a body governed by a public law for the purposes of the monetary financing prohibition in Article 101 of the Treaty. First, Article 11 of Law 1846/1951 provides that the Social Insurance Institute (IKA) is a legal person governed by public law. The IKA was renamed the IKA-ETAM, integrating a number of pension entities as part of the social security system reform undertaken by law . Second, Governors and Presidents of Social Security Organisations such as the IKA-ETAM are approved by a Parliamentary Committee after a proposal made by the Minister of Employment and Social Protection, following selection of a candidate by a Committee composed in its majority of public sector representatives including the Governor or Vice Governor of the Bank of Greece . It is further noted that, pursuant to Article 5 of the draft law, the Governing Committee of the Office in charge of the BoG Pension Fund, after its integration in the IKA-ETAM, will be composed of four representatives: two public sector officials, one representative of the insured persons and one representative of employers (Hellenic Banks Association or Ethniki Insurance Company), but without any participation of a representative of the Bank of Greece. In terms of financing the IKA-ETAM, Article 2(8) of the draft law states that within six months from the integration, a special economic study to be tendered and awarded by the Minister of Economy and Finance will be conducted for each individual entity and fund being integrated. In the cases where deficits are identified under this provision, the State will undertake to meet the costs of such deficits. In other respects, the provisions of Article 4 of Law 3029/2002 will apply as regards the financing of the IKA-ETAM. 5.2 In accordance with

text: Article 237

text: (d) of the Treaty, the ECB is under an obligation to ensure the NCBs’ compliance with the monetary financing prohibition. Based on the information available to the ECB, it would appear that the draft law contains provisions that might put the Bank of Greece in a position where national law requires it to conduct transactions that would constitute a breach of the monetary financing prohibition. More specifically, Article 2 of the draft law requires the Bank of Greece to pay an amount corresponding to the deficit of the BoG Pension Fund as determined on 31 December 1992 (i.e. EUR 23 million), annually, for 15 years. Notwithstanding this requirement, the ECB understands that the BoG Pension Fund may no longer face any solvency deficit. Accordingly, provisions of

text: Article 2

text: could be understood as requiring the Bank of Greece to finance a body governed by public law (i.e. the IKA-ETAM). Such requirement would be contrary to

text: Article 1(1)

text: (b)(ii) of

text: Council Regulation (EC) No 3603/93 of 13 December 1993

text: specifying definitions for the application of the prohibitions referred to in Articles

text: and

text: b (1) of the

text: Treaty , which prohibits any financing by the central banks of public sector obligations vis-à-vis third parties. If the draft law is adopted, the BoG Pension Fund will be integrated into the IKA- ETAM and the Bank of Greece will have no control or influence over the Fund’s asset management. Accordingly, the Bank of Greece will no longer be in a position to ensure the payment of pensions to its employees, which can no longer be considered to be a task of the Bank of Greece but rather a State task.

text: 6. Proposed changes to the current regime under the Bank of Greece’s statute

text: 6.1 The Bank of Greece’s statute stipulates the Bank’s duty to provide social security coverage for its staff. In this context, it should be noted that the Bank of Greece’s statute forms part of an International Convention ratified by Law 3424/1927 and, as such, it has superior status relative to ordinary laws (acts of Parliament) in accordance with Article 28(1) of the Greek Constitution. In particular, the first sentence of Article 38(4) of the Bank of Greece’s statute establishes the Bank’s obligation not only to remunerate its current employees but also to pay pensions to its retired staff, under terms and conditions specified by decisions of its General Council (subject to generally applicable legislation). This obligation is further confirmed elsewhere in the Bank of Greece’s statute, namely in

text: Article 71(1)

text: , which mentions the Bank’s pension payments to its retired staff as a regular expenditure item deducted from its gross income when calculating net annual profit, and in

text: Article 74

text: , which states that, in the event of dissolution of the Bank, the Greek State ‘shall assume unimpaired full liability for obligations previously attaching to the Bank towards its serving and pensioned staff in respect of all their rights.’ 6.2 Recent Greek legislation has confirmed the Bank of Greece’s statutory obligation to ensure the payment of staff pensions. Thus, the BoG Pension Fund was exempted from the scope of Articles 5 and 6 of Law 3029/2002 pursuant to which the IKA absorbed the individual pension funds of commercial banks. Further, Article 18 of Law 3193/2003 explicitly reconfirmed that the payment of staff pensions is a statutory obligation of the Bank of Greece under Articles 38 and 71 of its statute. This provision states that ‘the Bank of Greece shall continue to fully ensure, by any appropriate means, the viability of the relevant Social Security Funds and the social security benefits payable to the Bank’s staff in accordance with the Charters of the Funds and the legislation in force’ and that, by exception from the single-fund scheme introduced for commercial banks, ‘the Bank of Greece staff funds shall operate under their existing legal form and shall remain independent […]’ . 6.3 In summary, therefore, the introduction of provisions in the draft law relating to the BoG Pension Fund touches upon the provisions of Articles 38, 71 and 74 of the Bank of Greece’s statute.

text: Pursuant to Article 7 of that statute, any amendment thereof is subject to a prescribed procedure and must involve specifically defined bodies (decision of the General Meeting of the Bank’s Shareholders ratified by an act of Parliament). It cannot take effect directly and immediately by the enactment of a new law alone. The Bank of Greece should therefore be involved in any legislative procedure possibly affecting its status. With a view to the principle of central bank independence, the ECB would like to point out that limiting the Bank of Greece’s role in this way is a potential tool to influence it unduly in fulfilling its tasks, thus limiting its independence. In this regard, it is useful to note that the ECB defines its staff policy autonomously and that this autonomy forms part of the ECB’s independence as guaranteed by Article 108 of the Treaty and Article 36 of the Statute of the European System of Central Banks and of the European Central Bank . 6.4 In the light of the above, Article 1 of the draft law envisaging the integration of the now independent BoG Pension Fund into the IKA-ETAM might have implications for the legal relationships and career policies of the Bank of Greece, insofar as it could impair the Bank of Greece’s ability to employ and retain the qualified staff necessary for the performance of its ESCB tasks. Sufficient safeguards are therefore necessary to avoid any potential reduction of the Bank of Greece’s independence.

text: 7. Cooperation with the Bank of Greece and the obligation to consult the ECB

text: Finally, the ECB underlines that the Greek Government should cooperate closely with the Bank of Greece and consult the ECB on any future amendment to the specific rules applicable to the Bank of Greece in accordance with

text: Council Decision 98/415/EC

text: , as the provisions of the Bank of Greece’s statute entrust the Bank of Greece with the task of ensuring the social security coverage for its employees.

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

text: Done at Frankfurt am Main, 19 March 2008.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET