text: KOM(2010) 377 slutlig.

text: KOM(2010) 376 slutlig.

text: Se artikel 128.1 tredje meningen i fördraget.

text: Kommissionens rekommendation av den 22 mars 2010 om omfattningen och effekterna av eurosedlars och euromynts ställning som lagliga betalningsmedel (EUT L 83, 30.3.2010, s. 70).

text: Se ECB:s yttrande

text: av den 5 juli 2006 på begäran av Europeiska unionens råd över två förslag till rådets beslut om handlingsprogrammet för utbyte, stöd och utbildning med avseende på skydd av euron mot förfalskning (Perikles-programmet) (EUT C 163, 14.7.2006, s. 7).

text: Text markerad med fet stil anger ECB:s förslag till ny text. Genomstruken text anger de strykningar som ECB föreslår.

title: Europeiska centralbankens yttrande av den 5 oktober 2010 över två förslag till förordningar om yrkesmässig gränsöverskridande vägtransport av kontanter i euro mellan medlemsstaterna i euroområdet (CON/2010/72)

text: Inledning och rättslig grund

text: Den 6 september 2010 mottog Europeiska centralbanken (ECB) en begäran från Europaparlamentet om ett yttrande över ett förslag till Europaparlamentets och rådets förordning om yrkesmässig gränsöverskridande vägtransport av kontanter i euro mellan medlemsstaterna i euroområdet (nedan kallat förslaget till förordning). Den 20 september 2010 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om förslaget till förordning. Den 27 september 2010 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande över ett förslag till Europaparlamentets och rådets förordning nr xx/yy om yrkesmässig gränsöverskridande vägtransport av kontanter i euro mellan medlemsstaterna i euroområdet (nedan kallat förslaget till utvidgad förordning) (nedan tillsammans kallade de föreslagna förordningarna).

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

text: och

text: i fördraget om Europeiska unionens funktionssätt, eftersom de förslagna förordningarna innehåller bestämmelser om gränsöverskridande transport av kontanter i euro och det är ECB-rådet som har ensamrätt att tillåta utgivning av eurosedlar. I enlighet med artikel 17.5 första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: Allmänna kommentarer

text: De föreslagna förordningarna kommer att maximera fördelarna av fjärrtillträde till de nationella centralbankernas kontanttjänster genom att eurosedlar och -mynt i största möjliga utsträckning kan cirkulera fritt mellan euroområdets medlemsstater. Detta är viktigt eftersom endast sedlar och mynt i euro utgör lagliga betalningsmedel inom euroområdet.

text: Konceptet med lagliga betalningsmedel har särskild betydelse för användningen av intelligenta system för neutralisering av sedlar enligt definitionen i förslaget till förordning. I egenskap av den institution som har ensamrätt att tillåta utgivning av eurosedlar som lagliga betalningsmedel vill ECB påpeka att neutraliserade sedlar fortsätter att vara lagliga betalningsmedel, något som redan godtagits av kommissionen.

text: Vad gäller förslaget till utvidgad förordning avseende medlemsstater som ej ingår i euroområdet, anser ECB att man bör fortsätta den praxis som redan etablerats innan fördraget trädde i kraft. ECB anser att alla bestämmelser i förslaget till förordning även bör gälla för sådana medlemsstater. Medlemsstater som ej ingår i euroområdet kan inte vara hemmedlemsstater eller värdmedlemsstater enligt förslaget till förordning. De bör dessutom kunna bli medlemsstater som passeras, i annat fall skulle sådana medlemsstater i euroområdet som endast kan nås via vägar som passerar genom en medlemsstat som ej ingår i euroområdet, diskrimineras.

text: I de fall där ECB rekommenderar att de föreslagna förordningarna ändras anges de specifika förslagen i bilagan tillsammans med en förklaring.

text: BILAGA

text: Kommissionens förslag | ECB:s ändringsförslag

text: f) medlemsstat som passeras en eller flera andra medlemsstater än företagets hemmedlemsstat som måste passeras av värdetransportfordonet för att nå fram till värdmedlemsstaten/värdmedlemsstaterna eller för att återvända till hemmedlemsstaten. | [ECB:s ändringsförslag berör inte den svenska språkversionen.]

text: Förklaring Det är visserligen klart att hemmedlemsstaten och värdmedlemsstaten måste vara deltagande medlemsstater, men det är möjligt att ett värdetransportfordon även måste färdas över en icke-deltagande medlemsstats territorium för att nå en värdmedlemsstat. Det kan inte vara kommissionens avsikt att exkludera deltagande medlemsstater som omges av icke-deltagande medlemsstater från den förslagna förordningens tillämpningsområde. Lagstiftningen i den medlemsstat som passeras måste alltid respekteras, i enlighet med artikel 6.1 i förslaget till förordning.

text: 1. Transporter av eurosedlar och -mynt som utförs på uppdrag av och mellan deltagande medlemsstaters centralbanker, sedeltryckerier och/eller myntverk och som eskorteras av militär eller polis ska undantas från denna förordnings tillämpningsområde. 2. Transporter av enbart euromynt som utförs på uppdrag av och mellan deltagande medlemsstaters centralbanker eller myntverk och som eskorteras av militär, polis eller privata vaktbolag i särskilda fordon ska undantas från denna förordnings tillämpningsområde. | 1. Transporter av eurosedlar och -mynt som a) utförs på uppdrag av och mellan nationella och mellan deltagande medlemsstaters centralbanker eller mellan sedeltryckerier och/eller myntverk i deltagande medlemsstater och berörda nationella centralbanker, samt b) som eskorteras av militär eller polis ska undantas från denna förordnings tillämpningsområde. 2. Transporter av enbart euromynt som a) utförs på uppdrag av och mellan nationella och mellan deltagande medlemsstaters centralbanker, eller mellan deltagande medlemsstaters myntverk och berörda nationella centralbanker, samt b) som eskorteras av militär, polis eller privata vaktbolag i särskilda fordon ska undantas från denna förordnings tillämpningsområde.

text: Förklaring Termen NCB förklaras i skäl 1 i förslaget till förordning, men används inte här. Transporter av eurosedlar eller -mynt mellan en nationell centralbank och sedeltryckeri/myntverk sker alltid på uppdrag av den nationella centralbanken som beställt de aktuella sedlarna eller mynten.

text: Rådets förordning (EG) xx/yy ska tillämpas på territoriet för en medlemsstat som ännu inte har infört euron från och med dagen för rådets beslut enligt artikel 140.2 i fördraget om att upphäva dess undantag från deltagande i euroområdet. | Tillämpningen av rådets förordning (EG) xx/yy ska utvidgas tillämpas till på territoriet för en medlemsstater som ännu inte har infört euron som valuta. För att undvika missförstånd ska, från och med dagen för rådets beslut enligt artikel 140.2 i fördraget om att upphäva dess en medlemsstats undantag från deltagande i euroområdet, den berörda medlemsstaten även kunna vara en värdmedlemsstat enligt definitionen i rådets förordning (EG) xx/yy.

text: Förklaring Det är visserligen klart att hemmedlemsstaten och värdmedlemsstaten måste vara deltagande medlemsstater, men det är geografiskt möjligt att ett värdetransportfordon måste färdas genom icke-deltagande medlemsstater för att nå en värdmedlemsstat. Det kan inte vara kommissionens avsikt att exkludera deltagande medlemsstater som omges av icke-deltagande medlemsstater från den förslagna förordningens tillämpningsområde. Under perioden mellan det att en medlemsstats undantag upphävs och införandet av euron i denna medlemsstat, bör en sådan medlemsstat tillåtas bli en värdmedlemsstat.


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

text: of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast) (OJ L 302. 17.11.2009, p. 32) and Directive

text: of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) (OJ L 177, 30.6.2006, p. 1) (hereinafter ‘CRD’). 3 Article 6(1) of the draft law. 4

text: Article 2

text: (definition of the term ‘asset’) read in conjunction with

text: Article 14(1)

text: (d) and Article 18(2) of the draft law. CRD-compliance criteria for covered bonds will be the subject matter of the CBC Directive referred to in paragraph 2.2. of this opinion. 5 Article 14(4) of the draft law.

text: Article 14(1)

text: read in conjunction with

text: Article 18(1)

text: , (2) and (5) to (7) of the draft law. 7

text: Article 40(5)

text: and (6),

text: Article 41

text: and Article 43(1) of the draft law. 8 Articles 74 and 75 of the draft law. 9 Law 66(I)/1997, Episimi Efimerida tis Dimokratias, Annex I(I), No 3168, 18.7.1997.

text: Cap. 224. 11 Law 64 (I)/1997, Episimi Efimerida tis Dimokratias, Annex I(I), No 3168, 18.7.1997. 12 Article 71 of the draft law. 13 Articles 5(2) and 12(2) of the draft law, respectively.

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 14 October 2010 on a legislative framework enabling credit institutions to issue covered bonds (CON/2010/73)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 14 October 2010 on a legislative framework enabling credit institutions to issue covered bonds (

text: ) Introduction and legal basis

type: rubrik

text: On 13 September 2010, the European Central Bank (ECB) received a request from the Cypriot Ministry of Finance for an opinion on a draft law on covered bonds (hereinafter ‘the draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and on the third, fifth 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 contains provisions concerning the Central Bank of Cyprus (CBC) and relates to payment and settlement systems 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 and outline of the draft law

text: The purpose of the draft law is to set up the legal basis for the issuance of covered bonds in Cyprus complying with Union legislation . Accordingly, and in line with international legislative practice, the draft law regulates, in particular, (a) the eligibility of the issuers of covered bonds (all credit institutions, including cooperative credit institutions, incorporated in Cyprus are to qualify as ‘eligible issuers’) , (b) the eligibility of assets, primary or complementary, for inclusion in the cover pool , (c) the registration, in Cyprus, of foreign covered bonds (in case of a cross-border merger, involving the absorption of an issuing credit institution incorporated under European Economic Area law by another credit institution incorporated in Cyprus) , (d) the covered bonds’ issuance model (covered bond pools are

text: to remain separately identifiable in the issuer’s balance sheet, rather than being transferred to a special purpose vehicle) , (e) the registration and supervision of eligible issuers and covered bonds (these tasks are to be the responsibility of the CBC, where the issuer is a bank, and of the Cooperative Societies’ Supervision and Development Authority, where the issuer is a cooperative credit institution), and (f) the impact of insolvency proceedings on the rights of the covered bond holders and their preferential treatment (in the event of the issuer’s insolvency, the covered bond holders are to have priority on the proceeds of the cover pool vis-à-vis all of the issuing bank’s secured or unsecured creditors) .

text: 2. General observations

text: 2.1 The ECB welcomes the draft law and, in particular, its thorough, rules-based approach, reflecting the shared intention of the consulting authority and the CBC of setting up a comprehensive legal framework, permitting credit institutions incorporated in Cyprus to issue UCITS and CRDcompliant covered bonds under terms and conditions equivalent to those applicable to credit institutions incorporated elsewhere in the Union. At the same time, the ECB stresses the significant role of Union covered bonds for Union financial markets, the conditionality to which their privileged treatment under Annex VI to the CRD is subject and the importance of sound legal rules, allowing some measure of discretion to the competent authorities, for the safety, liquidity and transparency of covered bonds, both from the point of view of their conditional eligibility for Eurosystem monetary policy operations and from a broader, financial stability perspective. 2.2 The introduction to the explanatory memorandum states that the national authorities will complement the draft law with a CBC directive, which is currently undergoing a national consultation process. The directive in question would, inter alia, address issues of relevance to the assessment of the adequacy and quality of the cover pool, the CRD compliance of the covered bonds, and the issuers’ disclosure requirements. The directive has not yet been submitted to the ECB for consultation. Taking into account the importance of the issues to be addressed in the directive for a meaningful assessment of the safety, liquidity and transparency of the covered bonds to be issued by credit institutions in Cyprus, the ECB will only address those aspects of the proposed legal and regulatory framework once the directive has been submitted to it for consultation. 2.3 The draft law disapplies, under ‘Miscellaneous’, specific sections or parts of the Laws on companies, banking and cooperative companies . Moreover, as mentioned in the explanatory memorandum, the application of specific sections of the draft law, including those of relevance to the exercise by bondholders of their proposed right of recourse to the estate of the issuer, in case of the latter’s insolvency, is conditional on the prior amendment to other relevant laws. However, neither the requisite amendments to the Law on banking (expressly referred to in the explanatory

text: memorandum), nor those that the ECB would expect to the Law on real estate and transfer of banking business and collateral have been made available to the ECB for its consideration. In light of the above, this opinion does not assess all the parameters for the eventual implementation of the draft law in Cyprus nor of its interplay with other relevant Cypriot legislation that may have an impact on the rights of bondholders, in particular, vis-à-vis the issuers of Cypriot law-governed covered bonds.

text: 3. Specific observations

text: The draft law empowers the CBC and the Cooperative Societies’ Supervision and Development Authority (CSSDA) to act as supervisors of eligible issuers and covered bonds. In order for the CBC and the CSSDA to be in a position to perform their registration and supervisory tasks effectively, it is essential that they dispose of sufficient human and material resources in addition to those that the CBC devotes to the pursuit of its ESCB-related tasks. The ECB notes, in this regard, that the draft law empowers the CBC and the CSSDA to require institutions to pay fees . It also provides for the payment of a fee for inspecting the registers of approved institutions and covered bonds . Moreover, given the separate supervision of banks and cooperative credit institutions, the ECB sees the need for close cooperation by the CBC and the CSSDA as supervisory authorities to ensure that the same material standards apply to the registration and supervision of eligible issuers and covered bonds in Cyprus, irrespective of their corporate organisation as banks or as cooperative credit institutions.

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

text: Done at Frankfurt am Main, 14 October 2010

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET

type: vagledning

utgivare: ecb


text: OJ L 189, 3.7.1998, p. 42. 2 BGBl. I No 70/2010. 3 BGBl. No 64/1998.

text: OJ L 332, 31.12.1993, p. l. 5 The 14th recital of

text: Regulation (EC) No 3603/93

text: provides: ‘Whereas the financing by the central banks of obligations falling upon the public sector vis-à-vis the International Monetary Fund or resulting from the implementation of the medium-term financial assistance facility set up within the Community results in foreign claims which have all the characteristics of reserve assets; whereas it is, therefore, appropriate to authorise them’. 6 See Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 7 See Opinion

text: . 8 See also Opinions

text: and

title: Opinion of the European Central Bank of 18 October 2010 on an increase of the New Arrangements to Borrow with the International Monetary Fund (CON/2010/74)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 18 October 2010 on an increase of the New Arrangements to Borrow with the International Monetary Fund (

text: ) Introduction and legal basis

text: On 9 September 2010, the European Central Bank (ECB) received a request from the Austrian Ministry of Finance for an opinion on a draft Federal law on an increase of the New Arrangements to Borrow (NAB) with the International Monetary Fund (IMF) (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third 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 Oesterreichische Nationalbank (OeNB). 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 authorises the OeNB to increase on behalf of Austria, the credit limits for the NAB with the IMF to a maximum of SDR 3 600 million. The Minister for Finance will be in charge of implementing the law. 1.2 The draft law will enter into force on the date on which the NAB enters into force. At the same time, the Federal Law on a bilateral loan between the International Monetary Fund and the Oesterreichische Nationalbank and the Federal Law on Austria’s participation in the new arrangements to borrow with the International Monetary Fund will cease to apply. These laws will apply, for the last time, to loans granted before the draft law enters into force. 1.3 The increase in the NAB, as approved by the IMF’s Executive Board on 12 April 2010, includes both credit lines from new NAB participant countries and additional credit lines from existing NAB participants, such as Austria. Under the expanded and more flexible NAB, credit amounts of up to SDR 367 470 million (approximately EUR 436 720 million) will be available. The EU Member States have agreed to contribute approximately EUR 128 000 million to the expanded NAB. Austria’s share of this contribution is SDR 3 600 million and this is to be funded from the OeNB’s

text: resources. Since 1998, Austria has participated in the NAB with a current amount of SDR 408 million (approximately EUR 485 million).

text: 2. General observations

text: It is necessary to assess whether the draft law complies with the prohibition on monetary financing under Article 123(1) of the Treaty, which prohibits, inter alia, overdraft facilities or any other type of credit facility with national central banks in favour of central governments. This prohibition is subject to certain exceptions contained in Article 123(2) of the Treaty and in

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 Treaty . In particular,

text: Article 7 of Regulation (EC) No 3603/93

text: provides that the financing by national central banks of obligations falling upon the public sector vis-à-vis the IMF is not regarded as a credit facility within the meaning of the Treaty . The draft law is similar to that addressed in Opinion

text: , where the EMI considered that the OeNB’s authorisation to grant a loan to the IMF on behalf of Austria under the NAB scheme was not a credit facility within the meaning of the Treaty, but fell within the exception in

text: Article 7 of Regulation (EC) No 3603/93

text: . The ECB came to the 6 7 same conclusion with regard to laws authorising Banka Slovenije and the OeNB , respectively, to provide payments to the IMF on the basis of bilateral agreements with the IMF. The OeNB’s authority, under the draft law, to increase the credit limits for the NAB should also be considered to be within the exception in

text: Article 7 of Regulation (EC) No 3603/93

text: and should therefore not be regarded as a form of monetary financing prohibited by the Treaty . It is also necessary to ensure that the possible euro liquidity injections under the NAB do not interfere with the implementation of the single monetary policy. Under paragraph 23 of the IMF’s Proposed Decision to Modify the New Arrangements to Borrow, there is a presumption that the IMF will notify the respective central bank at least five business days prior to the settlement of a possible drawing. This will allow for possible euro liquidity injections under the NAB to be taken into account when implementing the single monetary policy.

text: Done at Frankfurt am Main, 18 October 2010. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.

text: See Opinion

text: , paragraph 2,

text: , paragraph 2 and

text: , paragraph 2.1. 4 See Opinions

text: and

text: . 5 See Opinions

text: , paragraph 3.1,

text: , paragraph 2.5.2 and

text: , paragraph 3.2.

title: Opinion of the European Central Bank of 2 November 2010 on the extension of the Irish State guarantee of certain liabilities of credit institutions (CON/2010/75)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 2 November 2010 on the extension of the Irish State guarantee of certain liabilities of credit institutions (

text: ) Introduction and legal basis

text: On 28 October 2010 the European Central Bank (ECB) received a request from the Irish Minister for Finance (hereinafter the ‘Minister’) for an opinion on a draft Credit Institutions (Eligible Liabilities Guarantee) (Amendment) (No 2) Scheme 2010 (hereinafter the ‘draft scheme’) amending the Credit Institutions (Eligible Liabilities Guarantee) Scheme 2009 (hereinafter the ‘ELG Scheme’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the sixth 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 scheme relates 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.

text: 1. Purpose of the revised draft scheme 1.1 The ELG Scheme was signed into law on 9 December 2009. The ECB was consulted on the ELG Scheme at the draft stage and adopted its Opinion

text: . Subsequently the ECB adopted Opinions

text: and

text: on proposed amendments to the ELG Scheme. 1.2 The Irish Government now proposes a further prolongation of the validity of the ELG Scheme by 12 months, i.e. that eligible liabilities may be issued until 31 December 2011 together with some minor technical changes.

text: 2. The appropriate time to consult the ECB The ECB notes that the Minister for Finance has requested that the ECB provides its opinion as soon as possible in order to ensure that Union State aid approval for the draft scheme can be obtained quickly and the draft scheme presented for parliamentary approval. The ECB reiterates its view as expressed in previous opinions that the consultation should take place at a point in the legislative process which affords the ECB sufficient time to examine the draft legislative provisions and to adopt its opinion in all required language versions, and which also enables the relevant national authorities to take the ECB’s opinion into consideration before the provisions are adopted.

text: Article 3(4) of Decision 98/415/EC

text: also obliges Member States to suspend the adoption process for draft legislative provisions, pending receipt of the ECB’s opinion. The ECB would appreciate the Department of Finance giving due consideration to honouring their obligation to consult the ECB in the future, in accordance with Decision

text: 3. The draft scheme 3.1 The purpose of the draft scheme is the extension of the issuance period under the ELG Scheme from 31 December 2010 to 31 December 2011. The Minister in his request for an opinion advises that a positive assessment by the ECB on financial stability grounds of the requirement for a prolongation of the guarantee of short term and interbank liabilities is considered essential by the European Commission to the Commission’s approval process. 3.2 The ECB reiterates the views expressed in previous opinions . In particular, it recalls that coordination of the duration of national financial support schemes across the Union is of crucial importance in order to ensure a level playing field . 3.3 Taking into account financial stability considerations, an extension of the ELG Scheme may be beneficial. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 2 November 2010. [signed] The President of the ECB Jean-Claude TRICHET


text: On 19 October 2010, the Hungarian Ministry of Public Administration and Justice submitted an updated version of the draft law on legislation. 2 OJ L 189, 3.7.1998, p. 42.

title: Opinion of the European Central Bank of 3 November 2010 on amendments to the Constitution and on the Law on legislation, regarding the legislative powers of the Magyar Nemzeti Bank (CON/2010/76)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 3 November 2010 on amendments to the Constitution and on the Law on legislation, regarding the legislative powers of the Magyar Nemzeti Bank (

text: ) Introduction and legal basis

text: On 28 September 2010, the European Central Bank (ECB) received a request from the Hungarian Ministry of Public Administration and Justice for an opinion on a draft law on legislation (hereinafter the ‘draft law on legislation’) . On 1 October 2010, the ECB received a request from the Hungarian Ministry of Public Administration and Justice for an opinion on a draft law amending Law XX of 1949 on the Constitution of the Hungarian Republic (hereinafter the ‘draft law amending the Constitution’) (the draft law on legislation and the draft law amending the Constitution, hereinafter collectively referred to as ‘the draft laws’). Since the subject matter of the draft laws is closely related, the ECB has merged the two consultations. The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft laws relate to the Magyar Nemzeti Bank (MNB). 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 laws

text: In its Decision 121/2009 (XII.17.) the Hungarian Constitutional Court annulled Law XI of 1987 on legislation from 1 January 2011. The reason for the annulment was that most provisions of the Law on legislation did not comply with constitutional developments that had taken place since its adoption. Since the remaining provisions were insufficient to constitute a legal act, the Constitutional Court annulled the Law on legislation as a whole, with such annulment to take effect in the future. The Constitutional Court also requested the legislator to adopt a new law on the same subject matter by 31 December 2010. In response to the Constitutional Court’s decision, the draft law on legislation has been prepared and

text: submitted to the Hungarian Parliament for adoption. This draft law is to replace the Law on legislation and thus reestablish the legislation framework in Hungary. The decision of the Constitutional Court also obliged the legislator to regulate certain issues in the Constitution instead of the Law on legislation. The draft law amending the Constitution incorporates these issues into the Constitution. The draft law on legislation establishes the general requirements regarding legislation and regulates the scope, amending procedures, drafting and publication of legal acts, as well as the continuous monitoring of the legal system and the publication of legal acts. Under the draft law on legislation, a Government decree will regulate in further detail the consultation procedures to be carried out with the institutions of the European Union, including with the ECB. The draft law amending the Constitution provides, inter alia, what constitutes a legal act, how legal acts should be adopted and published and also refers to the powers of the MNB’s Governor to adopt decrees.

text: 2. General observations

text: 2.1 The ECB understands the importance of the adoption of the draft laws since a valid legislative framework creates the foundation for the national legislative processes. The ECB also welcomes the establishment of an up to date legislative framework in Hungary that will ensure that the Hungarian authorities duly comply with their consultation obligations at European level. 2.2 The ECB notes that under the draft law amending the Constitution, a decree of the MNB’s Governor maintains its position in the legislative hierarchy and is at the same level as Government decrees.

text: 3. Specific comments

text: 3.1 The ECB welcomes the fact that the draft law on legislation establishes the general rules regarding the consultation procedures to be carried out with the EU institutions and also foresees the adoption of a Government decree that will regulate such procedures in detail. The ECB expects this future Government Decree to comply with Decision

text: . 3.2 The ECB would like to point out that the duty to consult with the ECB is not limited to draft legislative provisions which are to be adopted by a parliament. Decision

text: covers all types of legally binding provisions, including secondary legislation, as well as generally applicable acts of NCBs or supervisory authorities where these bodies have regulatory powers. However, this does not mean that the ECB should be consulted on all secondary legislation implementing primary legislation falling within the ECB’s fields of competence. Given the objectives of Decision

text: , it is clear that an opinion should only be sought from the ECB on such draft secondary legislation if its subject matter is closely related to the ECB’s tasks and if the impact on areas within the ECB’s fields of competence differs from that resulting from the primary legislation itself.

text: 3.3 The ECB notes that under Article 20(4) of the draft law on legislation, the MNB’s Governor maintains the right to initiate consultation procedures with the ECB with regard to decrees of the MNB’s Governor. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 3 November 2010. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: See ECB Opinions

text: and

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.

title: Opinion of the European Central Bank of 5 November 2010 on amendments to the monetary policy operations framework with a view to further harmonising it with the Eurosystem (CON/2010/77)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 5 November 2010 on amendments to the monetary policy operations framework with a view to further harmonising it with the Eurosystem (

text: ) Introduction and legal basis

text: On 8 October 2010 the European Central Bank (ECB) received a request from Latvijas Banka for an opinion on draft amendments to the Regulation on the use of Latvijas Banka’s monetary policy instruments (hereinafter the ‘draft legislation’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and

text: Article 2(2) 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 legislation relates to instruments of monetary policy in a Member State whose currency is not the euro. 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 legislation

text: The main objective of the draft legislation is to further harmonise the monetary policy operations framework of Latvijas Banka with that of the Eurosystem by (i) updating valuation haircuts to assets rated AAA/Aaa to A–/A3; (ii) introducing a new set of valuation haircuts for BBB+/Baa1 to BBB–/Baa3 rated assets and repealing the existing 5% additional valuation haircut regarding these assets; and (iii) imposing an additional valuation haircut in the form of a valuation markdown of 5% to theoretically valued covered bank bonds and other debt instruments issued by credit institutions.

text: 2. Observations

text: 2.1 Although Member States whose currency is not the euro retain their powers in the field of monetary policy, it is nevertheless beneficial for them to gradually achieve consistency with the operational framework for the implementation of the ECB’s monetary policy so that credit institutions operating in their territories can become acquainted with the requirements that will

text: apply once these Member States have adopted the euro. Such gradual harmonisation prior to the adoption of the euro will contribute to the smooth integration of the national central bank into the Eurosystem. 2.2 The ECB has previously commented on the Regulation on the use of Latvijas Banka’s monetary policy instruments, as well as other regulations relating to monetary policy instruments . In its opinions, the ECB emphasises the need to further align the Latvian minimum reserves regime with Eurosystem standards, including the point that contrary to the current arrangements Latvian credit unions will be subject to the Eurosystem’s minimum reserves requirements when Latvia adopts the euro. The ECB notes that all comments previously made on the Latvian minimum reserves regime still remain valid. 2.3 The ECB welcomes the amendments to risk control measures introduced by the draft legislation that will contribute to the alignment of the monetary policy operations frameworks of Latvijas Banka and the Eurosystem.

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

text: Done at Frankfurt am Main, 5 November 2010.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 267, 10.10.2009, p. 7.

text: OJ L 146, 10.6.2009, p. 37.

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

text: ECB Opinion

text: . All ECB opinions are available on the ECB’s website at www.europa.eu.

text: The concept of depositor, under the draft law, is to be understood, in the light of Article 2 of the Law of 1 August 2001 on the circulation of securities and other fungible instruments as encompassing the credit institutions, to be investment firms, professional depositories of securities as well as national and international public bodies established in Luxembourg and acting in the financial sector.

text: See in this sense paragraph 8 of ECB Opinion

text: and paragraph 1 of ECB Opinion

title: Opinion of the European Central Bank of 5 November 2010 on amendments to the legislation on financial collateral arrangements as regards credit claims (CON/2010/78)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 5 November 2010 on amendments to the legislation on financial collateral arrangements as regards credit claims (

text: ) Introduction and legal basis

text: On 23 September 2010 the European Central Bank (ECB) received a request from the Luxembourg Ministry of Finance for an opinion on a draft law transposing Directive

text: of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives

text: and EC/

text: and repealing Directive

text: and Directive

text: of the European Parliament and of the Council of 6 May 2009 amending Directive

text: on settlement finality in payment and securities settlement systems and Directive

text: on financial collateral arrangements as regards linked systems and credit claims (hereinafter referred to as ‘the draft law’) which amends (a) the Law of 10 November 2009 relating to payment services, the business of electronic money and settlement finality in payment and securities settlement systems, (b) the Law of 5 August 2005 on financial collateral arrangements, (c) the Law of 12 November 2004 relating to the fight against money laundering and financing of terrorism, (d) the Law of 5 April 1993 relating to the financial sector and (e) the Law of 23 December 1998 establishing a commission for the supervision of the financial sector. The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the second, fifth 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 contains provisions on means of payment, payment and settlement systems as well as rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. The scope of the draft law goes beyond the transposition of Union directives into national law, so the exception contained in

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

text: does not apply. 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: In addition to transposing Directives

text: and

text: , the draft law amends as follows

text: Article 5(2)

text: (a) of the Law of 5 August 2005 relating to financial collateral arrangements: ‘Financial instruments that may be transferred by entering into an account may be validly dispossessed: (i) by entering into the pledge contract if the depositor of these financial instruments is the pledge creditor; (ii) by an agreement between the pledgor, the pledge creditor and the depositor or by an agreement between the pledgor and the pledge creditor notified to the depositor according to which the depositor will act in accordance with instructions from the pledge creditor concerning these financial instruments and without any other agreement by the pledgor; (iii) by entering these financial instruments into an account of the pledge creditor; (iv) by entering these financial instruments, without indicating the number, onto an account opened for a depositor in the name of the pledgor or a person to be agreed acting as a third party holder, the financial instruments having been designated in the depositor’s accounts individually or collectively by reference to the relevant account in which they have been entered as pledged.’ .

text: Article 2(2)

text: (a) in fine of the draft law provides that the ‘dispossession [mechanisms] as provided under points (ii), (iii) and (iv) shall be considered as a waiver by the depositor of their pledge’s ranking over the same financial instruments unless agreed otherwise or merely notified to the depositor in accordance with point (ii).’.

text: 2. The financial collateral arrangements as regards credit claims

text: 2.1 The draft law amends and simplifies the regime for the creation of collateral arrangements as regards credit claims. Under Article 5(3) of the Law of 5 August 2005 on financial collateral arrangements, the creation of a pledge over a credit claim is only valid and effective against third parties upon notification or acceptance by the debtor of the pledged credit claim. Under the draft law, a financial collateral arrangement regarding credit claims is to be valid and enforceable visà-vis all third parties, provided that (a) a pledge agreement has been entered into between the collateral taker and the collateral giver and (b) the said claims have been included in a list of claims submitted in writing to the collateral taker or by any other legally equivalent manner . The debtor of the pledged credit claims may also waive the right of set-off as well as of any other exceptions in relation to the creditor of the claim provided as collateral and in relation to persons to whom the creditor has granted an assignment, pledge or any other mobilisation of the claim. Such waiver will be valid between the parties and against third parties .

text: 2.2 In order to avoid the abovementioned notification or acceptance conditions provided under Article 5(3) of the Law of 5 August 2005 on financial collateral arrangements, the Law of 13 July 2007 had introduced, in Article 22(1) of the Organic Statute of the Banque centrale du Luxembourg (BCL), a regime for the creation and enforceability of financial collateral arrangements as regards claims in favour of the BCL, either acting on its own behalf or on behalf of the ECB or other central banks forming an integral part of the European System of Central Banks, within the context of the credit operations of monetary policy. Under that regime, which was subject to a previous ECB opinion , pledges of claims were enforceable vis-à-vis third parties as soon as they were entered in a BCL register and made accessible to third parties for this purpose. 2.3 The draft law would significantly simplify the rules on the creation, enforcement and enforceability of financial collateral arrangements as regards credit claims and would strengthen the overall legal soundness of the relevant mechanism, especially by allowing the debtor to waive its right of set-off and any other exceptions. However, the ECB recommends that the Luxembourg legislator address the interaction between the proposed new regime and the regime governing the pledging of claims in favour of the BCL. The ECB understands that, in the absence of any specific provisions to the contrary, the two regimes would simply co-exist. In the interests of transparency and legal certainty, the draft law should instead extend the possible contractual waiver by the debtor of the pledged claim of its right of set-off or any other exception also to any pledge of claims registered on the BCL register.

text: 3. Waiver by the depositor of the ranking of its pledge over the underlying financial instruments subject to financial collateral arrangements in favour of third parties

text: 3.1 The draft law also simplifies the possible conflict of rank between, on the one hand, a depositor and, on the other hand, the pledge creditor in respect of financial instruments that have either been entered into an account of the pledge creditor, or an account opended with a depositor in the name of the pledgor, or that are governed by an agreement between the pledgor, the depositor and the pledge creditor. In these cases the depositor would act in accordance with the pledge creditor’s instructions in respect of such instruments. Unless agreed otherwise, if the depositor registers the underlying financial instruments on a separate account or accepts or notifies the agreement entered into between the pledgor and the pledge creditor as regards the management of the account in accordance with the pledge creditor’s instructions, this implies the waiver by the depositor of its pledge’s ranking over such financial instruments. In this case, the Luxembourg legislator would simplify the rules enabling the creation of higher ranking pledges

text: over such financial instruments , as the depositor’s consent would now no longer be required in this respect. 3.2 Under Article 18 of the Statute of the European System of Central Banks and of the European Central Bank, credit operations conducted by the national central banks (NCBs) must be based on adequate collateral. Moreover, pursuant to Standard 1 of the ‘Standards for the use of EU Securities Settlement Systems in ESCB Credit Operations’ the NCBs’ rights in respect of securities held in their accounts in securities settlement systems must be adequately protected . In this context, the financial instruments serving as collateral for monetary policy purposes are transferred by the BCL’s counterparties either to the account opened in the name of the BCL with the domestic central securities depository (CSD) or, as regards new collateral management products offered by the BCL to counterparties, to the account opened in the counterparties’ names with such CSD. The ECB understands that, without prejudice to the earmarking operations that take place on the BCL’s books in the first scenario, such transfer will give effect to the dispossession mechanism described in

text: Article 2(2)

text: (a)(iii) of the draft law and will imply the waiver, by the CSD as depositor, of its pledge’s ranking over such financial instruments. The ECB therefore considers that the BCL’s rights as first-rank collateral taker will be reinforced by the introduction of such provision into Luxembourg law.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: See Article 1 of the draft law.

text: See Article 2 of the draft law.

text: See §3 of the Transitional and Final Provisions of the draft law.

text: Directive

text: of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ L 309, 25.11.2005, p. 15).

text: See

text: recital 19

text: of

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

text: on the introduction of the euro (OJ L 139, 11.5.1998, p. 1).

text: See paragraph 5 of Opinion

text: , reiterated in paragraph 2.3.2 of Opinion

text: The legal tender status of lev is laid down in

text: Article 24

text: and Article 25(2) of the Law on the Bulgarian National Bank, published in Darjaven vestnik, issue 46 of 10 June 1997.

title: Opinion of the European Central Bank of 10 November 2010 on restrictions on cash payments (CON/2010/79)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 10 November 2010 on restrictions on cash payments (

text: ) Introduction and legal basis

text: On 4 October 2010 the European Central Bank (ECB) received a request from the Bulgarian Ministry of Finance for an opinion on a draft law on restrictions on cash payments (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the second and fifth indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to means of payment and 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 law

text: 1.1 The draft law is intended to limit cash payments within Bulgaria to BGN 5 000 (around EUR 2 557) or its foreign currency equivalent. Payments amounting to or exceeding BGN 5 000 are to be made either via a transfer or a deposit in a payment account. Also, in order to avoid circumvention of this restriction, the draft law provides that separate cash instalments on a single contractual monetary obligation must also be made via a transfer or a deposit in a payment account, if such contractual monetary obligation amounts to or exceeds BGN 5 000 . This prohibition applies equally to individuals and legal entities with the only distinction being the difference in the amount of the fine to be imposed in the case of non-compliance . In addition, the draft law amends Bulgaria’s Labour Code, providing for payment of any employment remuneration only to the payment account specified by an employee or a worker if payment services providers operate at the place of residence or work of that employee or worker .

text: 1.2 According to the explanatory memorandum, the widespread practice of not recording cash flows for accounting purposes constitutes a major problem for the Bulgarian economy. Cash payments are currently used to settle transactions involving legal entities and individuals and to pay employment remuneration. This has resulted in tax evasion and lower social insurance and pension contribution payments. Therefore, the adoption of the draft law aims at significantly increasing national revenue and helping to shrink the grey economy in Bulgaria. 1.3 In addition, the introduction of restrictions on cash payments is intended to provide for a stricter measure tailored to the specific situation in Bulgaria, to properly address the risk involved with large cash payments, as described in

text: recital 18

text: of

text: Directive 2005/60/EC

text: . 1.4 The explanatory memorandum further points out that the banking sector in Bulgaria has built up a widespread bank branch network, which will be able to process the increased volume of non-cash payments, following the adoption of the draft law.

text: 2. Specific observations

text: 2.1 The ECB notes that Union law only regulates restrictions on cash payments in euro . However, for consistency reasons, the ECB considers it appropriate to assess the draft law’s provisions against the relevant Eurosystem practices. 2.2 In this context, the ECB notes that the draft law is in compliance with Union law , and in particular with

text: recital 19

text: of

text: Council Regulation (EC) No 974/98

text: , which states that ‘limitations on payments in notes and coins, established by Member States for public reasons, are not incompatible with the status of legal tender of euro banknotes and coins, provided that other lawful means for the settlement of monetary debts are available’. The ECB acknowledges that such other lawful means are available in Bulgaria. The ECB further notes that the draft law’s prohibition of cash payments of and above BGN 5 000 does not affect the legal tender status of lev banknotes . 2.3 Finally, the ECB acknowledges that the draft law’s objectives of: (i) addressing national revenue shortages, especially at times when Member States are urged to implement necessary fiscal consolidation measures; (ii) shrinking the grey economy in Bulgaria; and (iii) enforcing stricter anti-money-laundering measures tailored to the Bulgarian situation, qualify as public benefits outweighing the impact of the draft law’s restrictions on cash payments. Therefore, the ECB

text: considers the draft law’s limitations on cash payments in lev banknotes and coins proportionate to the objectives pursued. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 10 November 2010. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: Pursuant to Article 2(1) of Law No 3/2004 of 15 January on public institutes, the BdP is part of the indirect administration of the State. See also paragraph 3.1 of this Opinion.

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

text: See, for example, the ECB’s Convergence Report 2007, p. 20.

text: See, for example, the ECB’s Convergence Report 2010, p. 23.

text: See Opinions

text: and

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.

text: See Opinions

text: and

text: Opinion

text: , paragraph 2.5.

text: Article 57 of the Organic Law of the BdP.

text: Article 56 of the Organic Law of the BdP.

text: See, for example, Opinion

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

text: See paragraph 9 of Opinion

text: See paragraph 3.5.

title: Opinion of the European Central Bank of 12 November 2010 on the Banco de Portugal’s staff remuneration and the budget (CON/2010/80)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 12 November 2010 on the Banco de Portugal’s staff remuneration and the budget (

text: ) Introduction and legal basis

text: On 25 October 2010, the European Central Bank (ECB) received a request from the President of the Portuguese Parliament for an opinion on several provisions of the draft law containing the annual State budget proposed by the Government for 2011 (hereinafter the ‘2011 draft budget law’). Once approved, such provisions will apply to the whole public sector, including the Banco de Portugal (BdP) . The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and on 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 2011 draft budget law relates to the BdP. 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 2011 draft budget law

text: 1.1 The 2011 draft budget law contains exceptional austerity measures, mostly focusing on tax increases and public spending cuts. The Portuguese Government deems these measures necessary for the progressive stabilisation of public finances, which it proposes to achieve through the reduction of the budgetary deficit to 4.6 % of GDP in 2011. 1.2 The planned measures are not only aimed at restoring the budgetary balance but also Portugal’s reputation in the international community, thereby ensuring the regular financing of the economy and the sustainability of social policies. The measures will apply without exceptions and supersede all currently applicable lex specialis regimes, collective bargaining agreements and individual employment contracts. 1.3 The draft provisions on which the ECB is consulted will directly affect the BdP from 1 January 2011 in the following ways:

text: (a)

text: Article 17

text: introduces a progressive reduction rate up to 10 % on the excess amount of gross total monthly remunerations above EUR 1 500 earned by staff and members of decisionmaking bodies; (b)

text: Article 20

text: introduces the same reduction rate to the amount paid to any person under a service provision contract. The conclusion or renewal of such contracts requires the prior authorisation of the Ministry of Finance. Failure to obtain authorisation could mean that such contracts are declared void; (c)

text: Article 22

text: prohibits the BdP from awarding its staff or managers any salary increases, performance-related bonuses or cash payments of a similar nature. In addition, the BdP is prohibited from: (i) opening procedures for promotion to specific positions and it must suspend any such ongoing procedures, (ii) granting any seniority-based automatic career progression, and (iii) undertaking career restructuring or reclassifications, until 31 December 2011 at the earliest. Acts carried out in breach of the above will be void and will result in the persons responsible for such acts incurring civil, financial and disciplinary liability; (d)

text: Article 25

text: prohibits the BdP from hiring or recruiting any new staff, regardless of the type and duration of the employment relationship, unless exceptionally justified by a significant public interest. In such case, the BdP is to provide information on recruitment on a quarterly basis to the Minister for Finance. 1.4 In addition, the 2011 draft budget law caps the amount of the meal allowance, prohibits the award of variable performance-related pay to managers and officers and imposes a tax surcharge of 10 % on any pension payments by the BdP exceeding EUR 5 000 per month.

text: 2. General observations

text: 2.1 The ECB understands and very much welcomes that the 2011 draft budget law is intended to serve the purpose of reducing public expenditure. 2.2 The President of the Parliament has requested the ECB to deliver an opinion by 12 November 2010. The ECB notes that, in cases of particular urgency which do not allow for the normal consultation period, the consulting authority may indicate such urgency in its consultation request and ask for a shorter deadline for the adoption of the ECB’s opinion. However, even though the ECB welcomes this consultation request and understands the need for an accelerated legislative procedure, it would have appreciated being consulted by the authority preparing the draft legislation at an earlier stage. 2.3

text: Article 4 of Decision 98/415/EC

text: 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. The ECB therefore expects that the consulting authority will take any additional measures necessary to reflect the ECB’s opinion to the extent appropriate. It also encourages further consultation on any new amendments to the adopted law or any related implementing measures which fall within its field of competence,

text: provided that such measures do not merely constitute the implementation of the ECB’s recommendations. More generally, internal administrative procedures should be in place to ensure that timely consultation of the ECB is taken into account whenever such consultation is mandatory.

text: 3. Specific observations

text: 3.1 Scope of the draft legal provisions 3.1.1 In the absence of an express exemption, the provisions apply to the BdP and to its Pension Fund , even though they are not specifically mentioned. Since the BdP is statutorily classified as a public institution governed by a lex specialis , it simultaneously falls within the corresponding category of addressees foreseen in

text: Article 17(9)

text: (q) and (s) of the 2011 draft budget law. 3.1.2 For this reason, the spending cuts and additional fiscal surcharges on salaries and pensions provided in the 2011 draft budget law will directly affect the members of the BdP’s decisionmaking bodies and its staff. 3.2 Central bank independence The 2011 draft budget law has implications for central bank independence, in particular financial and institutional independence, as well as the personal independence of the members of the BdP’s decision-making bodies. Financial independence 3.2.1 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 a national central bank’s (NCB) tasks, but also on its ability, both operational in terms of manpower and financial in terms of appropriate financial resources, to fulfil its mandate . As stated in the ECB’s 6 7 convergence reports and several ECB opinions on issues concerning autonomy in staff matters, as provided for under Article 130 of the Treaty, a Member State may not impair the ability of its central bank to employ and retain the qualified staff necessary to perform independently the tasks conferred on it by the Treaty, the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) and national legislation. In addition, a Member State may not put its NCB in a position where it has limited or no control over its staff, or where the government of that Member State can influence its policy on staff matters. Autonomy in staff matters extends to issues relating to staff pensions. 3.2.2 In order to protect the BdP’s autonomy in staff matters, the Portuguese authorities are under an obligation to ensure that the specific set of draft provisions on which the ECB was consulted, and

text: which are set out in paragraph 1.3, are decided on by the competent Portuguese authorities in close cooperation with the BdP . Such cooperation must ensure the ongoing ability of the BdP to perform independently the tasks conferred on it by the Treaty, the Statute of the ESCB and national legislation. To this end, the BdP should be involved in drawing up the relevant parts of the draft legislative provisions in an effective manner so as to safeguard central bank independence. Taking this into account, effective cooperation with the BdP would require: (a) that the competent Portuguese authorities invite the BdP in a timely and transparent manner to consider whether the overall objectives of the 2011 draft budget law can be achieved without affecting the BdP’s ability to carry out its tasks and, if so, to present the measures the BdP intends to autonomously implement in the area of staff matters, and in particular staff remuneration, for the purposes of achieving the overall objectives of the 2011 draft budget law; and (b) that the BdP’s position is properly considered and reflected in the 2011 draft budget law prior to its final adoption with a specific focus on ensuring the BdP’s ongoing ability to carry out its tasks. Opinion

text: provides a good example of effective cooperation between a government and an NCB. The Italian legislative provisions exempted the NCB from its scope, while at the same time inviting the NCB to consider, taking into account its own legal order, whether the underlying reasons for the legislative provisions can be achieved without prejudicing the performance of the NCB’s tasks under the Treaty, the Statute of the ESCB and national legislation. The Portuguese authorities could follow the same or a similar approach in order to achieve effective cooperation and to safeguard central bank independence. 3.2.3 In the light of the BdP’s expanded tasks, including in the fields of consumer protection and the increased prudential supervisory responsibilities, notably in the field of macroprudential supervision, the ECB is particularly concerned that qualified and sufficient human resources will be required, in addition to adequate financing. The ECB refers to Opinion

text: which highlighted the importance of having appropriate and available resources to ensure BdP’s performance of the new tasks . 3.2.4 The combination of salary reductions with the prohibition on both: (a) hiring or recruiting new staff, unless exceptionally justified by a significant public interest accompanied with the duty to provide information on recruitment on a quarterly basis to the Minister for Finance; and (b) undertaking career restructuring, promotions or reclassifications, directly impairs the ability of the BdP to employ and even possibly retain qualified staff and may amount de jure to depriving its decision-making bodies from their powers of internal organisation and control over staff, or at least to significantly limiting them.

text: 3.2.5 The ECB is not aware of any cooperation between the Portuguese authorities and the BdP in drawing up the 2011 draft budget law. The ECB understands that Parliament is currently debating the 2011 draft budget law, and therefore the BdP could still be given the opportunity to express its views to accommodate a specific legal solution subject to the general qualifications made in paragraph 3.2.2. In this regard, the ECB understands that the BdP’s remuneration structure differs from that of the rest of the public sector, which is an additional reason that effective cooperation is necessary in order to take account of this difference, including any possible distortive effects. Absence of effective cooperation as set out in paragraph 3.2.2 would amount to a serious infringement of the principle of central bank independence. Institutional independence 3.2.6 Article 130 of the Treaty prohibits third parties from giving instructions to NCBs and requires governments of the Member States to respect this prohibition. Under the current regime, the BdP enjoys statutory autonomy in determining its personnel policy and the BdP’s staff are subject to individual employment law and collective bargaining agreements entered into between the BdP and banking sector unions , which are complemented by internal rules. 3.2.7 The proposed changes to the 2011 draft budget law represent a departure from this current regime. In particular, the 2011 draft budget law indirectly requires the BdP to take specific personnel measures, i.e. not to hire or recruit new staff, unless exceptionally justified by a significant public interest accompanied with the duty to provide information on staff recruitments on a quarterly basis to the Ministry of Finance, and not to undertake career restructuring, promotions or reclassifications. 3.2.8 Taking into account that these measures go beyond what is considered necessary to give full effect to the objective of reducing public expenditure, it would be a breach of the BdP’s institutional independence if such requirement would lead to an authorisation procedure whereby staff recruitment by the BdP could be rejected by the Ministry of Finance. The ECB considers that the exception from this requirement provided in the 2011 draft budget law based on a significant public interest reason does not offers sufficient safeguards for the protection of central bank independence and therefore recommends that it be amended. Personal independence 3.2.9 The 2011 draft budget law not only affects the remuneration of the BdP’s staff, but also that of the members of its decision-making bodies. Article 130 of the Treaty requires governments of the Member States to respect the principle of central bank independence and not to seek to influence the members of an NCB’s decision-making bodies in the performance of their tasks. To comply with the Treaty requirements with regard to personal independence of members of decision-making bodies, any adjustments to the salaries of the Governor and other members of the BdP’s decision-

text: making bodies who are involved in the performance of ESCB-related tasks should not affect the terms under which they have been appointed and should only apply to future appointments. 3.2.10 The ECB understands that the proposed legislative changes apply not only to the BdP’s decisionmaking bodies, but also more generally to the management of public institutions in Portugal and as such are not seeking directly or indirectly to influence the BdP’s decision-making bodies in the performance of their tasks. However, the ECB considers that the 2011 draft budget law provisions may not be considered compatible with the principle of personal independence unless the qualifications made in respect of the principle of financial independence are taken into account. 3.3. Prohibition of monetary financing - use of the funds resulting from the reduction in salaries 3.3.1 The provisions on NCB salary reductions must also comply with the monetary financing prohibition laid down in Article 123 of the Treaty, as further clarified in

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

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

text: Articles 104

text: [now 123] and 104b(1) [now 125(1)] of the Treaty . This provision prohibits overdraft facilities or any other type of credit facility with the ECB or NCBs in favour of Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of Member States, and the purchase directly from these public sector entities by the ECB or NCBs of debt instruments. With a view to preserving the integrity of the NCB’s balance sheet, the monetary financing prohibition is of key importance in ensuring the primary monetary policy objective of price stability, which must not be impeded. Therefore, the prohibition must be interpreted extensively to ensure its strict application. Even if Article 123(1) of the Treaty refers literally to ‘credit facilities’, i.e. with an obligation to repay such credit, the prohibition also applies a fortiori to other forms of funding, i.e. without an obligation to repay, since it has the overall aim of public finance discipline and of prohibiting NCBs from financing the public sector. This implies that both the ultimate objective and the spirit of this provision must be taken into account in its interpretation . 3.3.2 From an accounting perspective, a reduction in staff salaries will reduce an NCB’s operational costs, resulting in an increase in its financial results and leading to a potential increase in its financial resources. The principle of central bank financial independence guarantees that the BdP can independently use its financial resources as it sees fit to fulfil its mandate. The ECB notes that the BdP must be fully independent in deciding how to use the funds resulting from any reduction in salaries or pensions that it pays. 3.3.3 Under current Portuguese law, part of the NCB’s profits for the fiscal year (80 %) must be transferred to the State as a dividend, or to other reserves proposed by the Board of Directors and approved by the Minister for Finance, as provided for in

text: Article 53(2)

text: (c) of the Organic Law of the BdP. In the absence of effective cooperation with the BdP as set out in paragraph 3.2.2, the 2011

text: draft budget law could be interpreted as restricting the BdP’s freedom with respect to staff matters, for example, as regards the hiring of new staff or deciding on promotions of existing staff. Consequently, the BdP would not be seen as having full independence in deciding how to use the funds resulting from the reduction in salaries or pensions. If the BdP is not free to use the increased funds in accordance with the principle of financial independence, this could be considered as an increase in the funding of the Portuguese State at the BdP’s expense. 3.3.4 The draft law does not contain any provisions changing the rules on the BdP’s profit distribution. In particular, the BdP does not seem to be required to transfer to the State any net savings from the reduction in staff salaries and pensions during the fiscal year. As recently pointed out in Opinion

text: , if the main purpose of the salary reductions was to eventually increase the financial resources of the State through an interim distribution of increased profits from the NCB to the State, this would appear to be a circumvention of the objectives of the prohibition on monetary financing. In this respect, the ECB notes that any financial transfer of this nature from the BdP to the State budget, without the BdP having the opportunity to use the related resources independently for the fulfilment of its tasks, could be assimilated to monetary financing under Article 123 of the Treaty. By contrast, a decrease in the NCB’s operational costs with a view to increasing its own financial resources to strengthen the performance of its mandate would be acceptable.

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

text: Done at Frankfurt am Main, 12 November 2010

text: [signature]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: Credit institutions registered in Poland are legally referred to as ‘banks’ (this legal term does not cover credit unions) because the term ‘credit institutions’, under Polish law, only relates to European Economic Area (EEA) credit institutions from outside Poland. Non-EEA credit institutions are referred to under Polish law as ‘foreign banks’ (

text: Article 2

text: Article 4(3)

text: and

text: Article 4(1)

text: (17) to (20) of the Law on banking of 29 August 1997 (consolidated text: Dziennik Ustaw (Dz. U.) of 12 June 2002 No 72, Item 665, hereinafter, the ‘Law on banking’)). 4 Articles 4 and 8 of the draft law.

text: See the Law of 5 June 1997 on building societies and State support for home savings schemes (Dz. U. of 28 July 1997, No 85, Item 538), repealed on 1 January 2002. 6 See ECB Opinions on national legislation on credit unions, in particular paragraphs 10 to 14 of ECB Opinion

text: , paragraph 3.1 of ECB Opinion

text: ), paragraphs 10 to 17 of ECB Opinion

text: and paragraph 2.1 to 2.5 of ECB Opinion

text: . All ECB opinions are available on the ECB’s website at www.ecb.europa.eu. 7 See Article 2(1) of Regulation ECB/2003/9 of 12 September 2003 on the application of minimum reserves (OJ L 250, 2.10.2003, p. 10). 8 Directive

text: of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) (OJ L 177, 30.6.2006, p. 1). 9 Article 4 of the draft law. See also paragraph 2 of the Opinion of the European Monetary Institute CON/94/12. 10 See paragraph 14 of ECB Opinion

text: , paragraphs 10 and 17 of ECB Opinion

text: and paragraph 2.3 of ECB Opinion

text: . 11 Further in this context, it should also be noted that being subject to the Eurosystem minimum reserves regime is one of the general criteria for eligibility to participate in Eurosystem monetary policy operations; the other general eligibility criteria include: (i) being financially sound and, in principle, being subject to at least one form of harmonised EU/EEA supervision by national authorities; and (ii) fulfilment of any operational criteria specified in the relevant contractual or regulatory arrangements applied by the respective national central bank (see Section 2.1 of Annex I to Guideline ECB/2000/7 of 31 August 2000 on monetary policy instruments and procedures of the Eurosystem, OJ L 310, 11.12.2000, p. 1). 12 See

text: Article 7 of Council Regulation (EC) No 2531/98 of 23 November 1998

text: concerning the application of minimum reserves by the European Central Bank (OJ L 318, 27.11.1998, p. 1) and Regulation ECB/1999/4 of 23 September 1999 on the powers of the European Central Bank to impose sanctions (OJ L 264, 12.10.1999, p. 21).

text: See paragraph 3.1 of ECB Opinion

text: and paragraph 2.4 of ECB Opinion

text: . Compare paragraph 2.1 of ECB Opinion

text: . 14 Article 42 of the Law of 29 August 1997 on Narodowy Bank Polski (consolidated text: Dz. U. of 1 April 2005 No 1, Item 2). 15 See paragraph 2.4 of ECB Opinion

text: . 16 Article 18 of the draft law. 17 Under the rules currently in force, the amount of contributions is set as a percentage of the base amount defined by reference to applicable capital requirements, the maximum contribution being 0.3% of such base amount (see

text: Article 13(1)

text: to (1a) of the Law on the Bank Guarantee Fund, consolidated text Dz. U. of 4 June 2009 No 84 Item 711). 18 See ‘Proposal for a Directive …/ …/ EU of the European Parliament and of the Council on Deposit Guarantee Schemes [recast] of 12 July 2010 (COM/2010/0368 final - COD 2010/0207, published on the European Commission’s website at www.ec.europa.eu, hereinafter the ‘proposed recast Directive

text: ’). 19 See Article 11 of the proposed recast Directive

title: Opinion of the European Central Bank of 15 November 2010 on building societies (CON/2010/81)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 15 November 2010 on building societies (

text: ) Introduction and legal basis

text: On 11 October 2010 the European Central Bank (ECB) received a request from the Polish Parliament for an opinion on a draft law on building societies and State support for home savings schemes (hereinafter ‘the draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union, the sixth indent of Article 2(1) and

text: Article 2(2) 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 the rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets, as well as to instruments of monetary policy of Member States other than Member States whose currency is the euro. 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: The draft law provides for a legal framework for the operation of building societies (kasy oszczędnościowo-budowlane), classifying them as a sub-category of credit institutions (banks ), operating in the form of joint-stock companies . The business of building societies will exclusively comprise receiving deposits from natural persons and granting mortgages to such persons with the aim of financing housing-related investments specifically enumerated in the draft law . The draft law is an attempt to re-

text: establish the system of building societies which had been first introduced in the legal provisions in 1997 ,

text: but never realised in practice.

text: 2. ECB comments

text: 2.1 Obligation to maintain minimum reserves with the central bank

text: 2.1.1 The draft law proposes an arrangement under which building societies are to be excluded from the

text: obligation to hold minimum reserves with Narodowy Bank Polski (NBP).

text: 2.1.2 In past opinions , the ECB has maintained that the Eurosystem’s minimum reserves obligations

text: apply to entities that fulfil the functional criteria of a ‘credit institution’ according to the definition

text: contained in the Eurosystem’s minimum reserves rules , which cross-refers to criteria defined in

text: whose business is: (i) to receive deposits or other repayable funds from the public; and (ii) to grant

text: credit for their own account. The ECB notes that building societies will fulfil both of the functional

text: criteria of a ‘credit institution’, namely that they will: (i) receive deposits from natural persons, i.e.

text: deposits ‘from the public’ within the meaning of the Directive

text: ; and (ii) grant credit for

text: their own account . Consequently, in line with its previous opinions , the ECB considers that

text: building societies will be subject to the Eurosystem’s minimum reserves requirements when Poland

text: adopts the euro . Such requirements, and the sanctions related to them , will apply directly by the

text: operation of the Union law.

text: 2.1.3 As regards the period before the adoption of the euro by Poland, the ECB would welcome the

text: inclusion of building societies in NBP’s minimum reserves regime as a measure facilitating the

text: harmonisation of Polish law with the Eurosystem requirements . Moreover, since building societies are defined by the draft law as a sub-category of banks, they will be eligible to access central bank liquidity, i.e. refinancing credit from NBP , in accordance with the same rules as those applying to regular banks. This extension to building societies of the central bank’s liquidity providing operations should be accompanied by the application of the minimum reserves obligations, which constitute a complementary monetary policy instrument, structurally linked to liquidity providing operations . 2.2 Calculation of contributions to the deposit-guarantee scheme The draft law sets the maximum level of contributions to be paid by the building societies to the Polish deposit-guarantee scheme (Bank Guarantee Fund, the ‘Fund’) at 0.1% of the building societies’ risk-weighted balance sheet assets and guarantees and endorsements . First, the ECB notes that the draft law may need to be updated to refer to the method for calculating maximum contributions to the Fund specified in the currently binding provisions . Second, the ECB understands that the intended effect of Article 18 of the draft law is to impose on the building societies a level of contributions to the Fund lower than that applicable to regular banks. In this context, the ECB draws the Polish authorities’ attention to an advanced proposal by the European Parliament and Council to recast Directive

text: on Deposit Guarantee Schemes . The amendments introduced in the proposed recast Directive aim, inter alia, at harmonising the calculation of contributions paid by all types of credit institutions to the deposit guarantee schemes . The ECB recommends that the Polish authorities take due account of this ongoing legislative process when defining the building societies’ contributions to the Fund.

text: Done at Frankfurt am Main, 15 November 2010. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET