text: Draft law registered at the Romanian Senate under L528/03.09.2008.

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

text: Both opinions are available on the Romanian Senate’s website at www.senat.ro. 8 See ECB Convergence Report, May 2008, pp. 246 to 249, available on the ECB’s website at www.ecb.europa.eu. 9 See paragraph 2.1 of ECB Opinion

text: of 21 July 2008 at the request of the Romanian Parliament on a legislative proposal amending Law 312/2004 on the Statute of Banca Naţională a României. 10 See ECB Convergence Report, May 2008, p. 26.

text: See, similarly, paragraph 3.4 of the ECB Opinion

text: of 4 August 2008 at the request of the Swedish Ministry of Finance on a report concerning the financial independence of Sveriges Riksbank. Nevertheless, statutory requirements relating to the full legal integration of an NCB into the Eurosystem need only enter into force at the moment that full integration becomes effective, i.e. the date on which the Member State with a derogation adopts the euro. 12 See Article 105(1) of the Treaty and Article 2 of the ESCB Statute. 13 See paragraph 2.1 of ECB Opinion

text: of 24 May 2007 at the request of the Hungarian Ministry of Finance on a draft law amending the Law on the Magyar Nemzeti Bank. 14 See paragraph 6 of ECB Opinion

text: of 4 November 2004 at the request of the Hungarian Ministry of Finance on a draft law amending the Law on Magyar Nemzeti Bank. 15 See Article 105(5) of the Treaty and Article 3.3 of the ESCB Statute. 16 See paragraph 2.3 of ECB Opinion

text: . 17 See ECB Convergence Report, December 2006, p. 27; ECB Convergence Report, May 2008, p. 20.

text: See e.g. paragraph 9 of ECB Opinion

text: of 11 May 2004 at the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the protection of savings. See also paragraph 3.3 of ECB Opinion

text: of 21 May 2008 at the request of the Polish Minister for Finance on a draft law amending the Law on trading in financial instruments and other legislation. 19 OJ L 332, 31.12.1993, p. 1. 20 See

text: Article 1(1)

text: (b)(ii) of

text: Regulation (EC) No 3603/93

text: . 21 See paragraph 9 of 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. 22 See fifth paragraph of the explanatory memorandum to the draft law.

title: Opinion of the European Central Bank of 19 November 2008 at the request of the Romanian Parliament on a legislative proposal regarding the use of Banca Naţională a României's foreign reserves for tourism development and modernisation (CON/2008/72)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 19 November 2008 at the request of the Romanian Parliament on a legislative proposal regarding the use of Banca Naţională a României's foreign reserves for tourism development and modernisation (

text: ) Introduction and legal basis

text: On 10 October 2008 the European Central Bank (ECB) received a request from the Romanian Parliament’s Senate Commission for Budget, Finance, Banking and Capital Markets for an opinion on a legislative proposal regarding the use of Banca Naţională a României’s foreign reserves for tourism development and modernisation (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 Banca Naţională a României (BNR). 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 will allocate EUR 3 billion from Romania’s foreign reserves, managed by BNR, to set up the Fund for Development and Modernisation of Tourism (hereinafter the ‘Fund’) . In return, BNR is to receive interest equal to the average capitalisation of the foreign reserves for the last three years . Casa de Economii şi Consemnaţiuni C.E.C. - S.A. (CEC BANK – S.A.), a Stateowned undertaking operating as a bank, will manage the Fund. It will grant credit to eligible borrowers including tourist accommodation structures i.e. graded hotels or guest houses, tour operators and other public and private law entities involved in the development of ecotourism . The

text: credit may be granted for a maximum period of 20 years with a grace period of up to five years, except for the interest rate .

text: 2. General observations

text: 2.1 The draft law affects the manner in which BNR manages its foreign reserve holdings by requiring a part to be controlled by an outside body (CEC BANK – S.A) and used as funding for the loans to the tourism sector. In this respect, the draft law is incompatible with the requirement to ensure BNR’s independence under Article 108 of the Treaty, as well as with the prohibition on monetary financing specified in Article 101 of the Treaty. For the above reasons, the ECB does not support the draft law. The ECB notes that the Romanian Legislative Council and the Senate Commission for Economy, Industry and Services have also issued negative opinions on the draft law and have voiced concerns regarding its impact on BNR’s independence . 2.2 The compatibility of a Member State’s national legislation with the provisions of the Treaty and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘ESCB Statute’) on central bank independence and the prohibition on monetary financing must be ensured upon accession to the European Union. As already emphasised in the ECB’s 8 9 2008 Convergence Report and in a previous ECB opinion concerning BNR , the incompatibilities of the Romanian legislation with the Treaty and the ESCB Statute should have been addressed by 1 January 2007, in line with Article 109 of the Treaty. However, instead of addressing the current incompatibilities, the draft law introduces new incompatibilities by limiting BNR’s independence and by breaching the prohibition on monetary financing. The draft law is, therefore, fundamentally incompatible with the Treaty’s provisions on economic and monetary union (EMU) and its enactment could trigger infringement proceedings before the Court of Justice of the European Communities. 2.3 Moreover, the ECB would like to emphasise that, although Member States with a derogation do not yet participate in EMU, they have a legal duty to adapt the statutes of their national central banks (NCBs) ‘to ensure compatibility with the Treaty and the Statute in respect of Eurosystem-related tasks’ . In this respect, any legislative reform should aim to gradually achieve consistency with Eurosystem standards. In this case, it should facilitate the convergence of the Romanian legal framework, necessary for Romania to become a full participant in EMU without the need for

text: subsequent legislative reforms . In particular, Article 105(2) of the Treaty defines holding and management of the official foreign reserves of the Member States as a basic task to be carried out through the ESCB. This Treaty provision entails that the competence to take decisions on the use of an NCB’s assets remain with the NCB. The adoption of legislation that would impose a compulsory allocation of part of a Member State’s foreign reserves in contradiction with the assignment of this task to the NCB would be inconsistent with the Treaty, as it would deprive the NCB to that extent of one of its basic tasks under the Treaty and transfer from the NCB to a third party a competence that the Treaty clearly assigns to the NCBs.

text: 3. Specific observations

text: Central bank independence

text: 3.1. Article 108 of the Treaty, reinforced by Article 7 of the ESCB Statute, provides for the principle of

text: independence of the central banks within the ESCB. It ensures that the primary ESCB

text: objective of price stability is served by fully independent central banks with a precisely defined mandate . In particular, central bank independence crucially upholds credibility of the central bank’s monetary policy, which is a key condition for controlling inflationary expectations . Also contributions which the ESCB provides to stability of the financial system are rooted in independent and credible standing of the ESCB central banks. Hence, in ensuring BNR’s participation in the ESCB in compliance with the applicable Community law provisions it is of utmost importance to design an institutional structure that guarantees BNR’s functional, institutional, personal and financial independence . 3.2 In particular, BNR’s financial independence would be jeopardised if it could not autonomously avail itself of sufficient financial resources to fulfil its mandate, the key element of which is the price stability objective. As noted in the ECB Convergence Reports , Member States may not put their NCBs in a position where they have insufficient financial resources to carry out their functions. In this regard, NCBs must have sufficient means not only to perform their ESCB-related tasks but also their own national tasks, e.g. financing their administration and own operations, and covering their operational risks. The concept of central bank independence should therefore be assessed from the perspective of whether any third party is able to exercise influence, not only over

text: performance of an NCB’s tasks, but also over its ability to fulfil its mandate, understood both operationally in terms of manpower, and financially in terms of appropriate financial resources . 3.3 Under the draft law, part of BNR’s foreign reserve holdings would be taken outside BNR’s control and management, and hence BNR would not have the possibility to hold and manage such part of the foreign reserve holdings in an independent manner. Such draft law provisions are incompatible with the principle of central bank financial independence under Article 108 of the Treaty.

text: Compliance with the prohibition on monetary financing

text: 3.4 Article 101 of the Treaty provides that ‘overdraft facilities or any other type of credit facilities with the ECB or with the central banks of the Member States … in favour of … central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings … shall be prohibited …’.Article 21.1 of the ESCB Statute mirrors this provision.

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 (now Articles 101 and 103(1) of the Treaty) further clarifies the precise scope of application of the monetary financing prohibition. It specifies that the prohibition under Article 101 of the Treaty includes any financing of the public sector’s obligations vis-à-vis third parties . The abovementioned Community law provisions are therefore intended to prohibit NCBs from financing the public sector . 3.5 The draft law provisions allocating a part of BNR’s foreign reserve holdings as a contribution to the Fund so that they can be invested in tourism development and modernisation, i.e. with the view to providing credit to a specified national economic sector, and hence accepting a commensurate level of market and credit risk, constitute a breach of the monetary financing prohibition under Article 101 of the Treaty. Such allocation of foreign reserve holdings is not connected with any statutorily-defined BNR objectives or tasks. Noting that State support to the tourism sector is the declared purpose of the draft law , the draft law’s allocation of BNR’s foreign reserves needs to be considered as funding of credit facilities that would otherwise have to be financed at the State’s

text: expense, following normal budgetary procedures, i.e. financing of the public sector’s obligations vis-à-vis third parties, as prohibited by

text: Regulation (EC) No 3603/93

text: . This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 19 November 2008. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 See the ECB’s Convergence Report of May 2008, pp. 229-231.

text: COM(2008) 248 final, available on the Commission’s website at www.ec.europa.eu.

text: Law on BNB, published in Darjaven Vestnik No 46, 10.6.1997.

text: See the ECB’s Convergence Report of May 2008, p. 26: ‘To comply with Article 109 of the Treaty, national legislation had to be adjusted to ensure its compatibility by the date of establishment of the ESCB [European System of Central Banks] (as regards Sweden) and by 1 May 2004 or 1 January 2007 (as regards the Member States which joined the EU on these dates). Nevertheless, statutory requirements relating to the full legal integration of an NCB [national central bank] into the Eurosystem need only enter into force at the moment that full integration becomes effective, i.e. the date on which the Member State with a derogation adopts the euro’.

text: In particular, this draft law provision provides for the following: ‘The competent authority under

text: Article 12

text: may only remove a member of the Governing Council from office if they no longer fulfil the conditions required for the performance of his duties or if he has been guilty for serious misconduct incompatible with the performance of his duties’.

text: The ECB’s Convergence Report of May 2008, p. 20: ‘National legislation should also provide for a right of review by the national courts of a decision to dismiss any other member of the decision-making bodies of the NCB involved in the performance of ESCB-related tasks. This right can either be a matter of general law or can take the form of a specific provision. Even though it may be said that this right is available under the general law, for legal certainty reasons it could be advisable to provide specifically for such a right of review’.

text: See the ECB’s Convergence report of May 2008, p. 230.

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 21 November 2008 at the request of Българска народна банка (Bulgarian National Bank) on a draft law amending the Law on Българска народна банка (Bulgarian National Bank) (CON/2008/73)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 November 2008 at the request of Българска народна банка (Bulgarian National Bank) on a draft law amending the Law on Българска народна банка (Bulgarian National Bank) (

text: ) Introduction and legal basis

type: rubrik

text: On 22 October 2008 the European Central Bank (ECB) received a request from the Governor of Българска народна банка (Bulgarian National Bank) (BNB) for an opinion on a draft law amending the Law on Българска народна банка (Bulgarian National Bank) (hereinafter the ‘Law on BNB’) and on 13 November 2008 the ECB received a revised version of this draft law amending the Law on BNB (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: 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 BNB. 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: The main purpose of the draft law is to address the observations in the ECB’s Convergence Report of 2 3 May 2008 on legal convergence and in the European Commission’s Convergence Report of 2008 . In particular, the amendments aim to align the Law on BNB with the requirements for institutional and personal independence, confidentiality and with the monetary financing prohibition laid down in Article 101 of the Treaty. Finally, the draft law contains other functional, conceptual and sanctioning provisions concerning BNB unconnected with the ECB’s Convergence Report.

text: 2. General observations

text: 2.1 The ECB welcomes the Bulgarian authorities' efforts to achieve the required level of legal convergence by following the recommendations in the ECB’s Convergence Report. Bulgaria is a

text: Member State with a derogation and must therefore comply with Article 109 of the Treaty . In this respect, the ECB identified in its Convergence Report inconsistencies between Bulgarian legislation, on the one hand, and the Treaty and the Statute of the European System of Central Banks and the European Central Bank (hereinafter the ‘ESCB Statute’), on the other hand. This opinion addresses the inconsistencies in the areas of central bank independence, confidentiality and the prohibition on monetary financing and privileged access. 2.2 This opinion does not address the other incompatibilities between Bulgarian law and Community law with regard to BNB’s integration into the Eurosystem, relating to monetary policy, collection of statistics, official foreign reserve management, payment systems, issue of banknotes and coins, appointment of independent auditors, financial reporting, exchange rate policy and international cooperation, as they fall outside the scope of the draft law. In this respect, the Law on BNB would need further adaptation to ensure BNB’s full integration into the Eurosystem.

text: 3. Specific observations

text: 3.1 Institutional independence The proposed amendment to

text: Article 44

text: brings this provision in line with Article 108 of the Treaty and Article 7 of the ESCB Statute regarding the principle of institutional independence. 3.2 Personal independence

text: Minimum term of office for Governing Council members

text: The proposed amendment to

text: Article 14(2)

text: removes the incompatibility with the ESCB Statute regarding the minimum term of office for the members of BNB’s Governing Council and is in line with Article 14.2 of the ESCB Statute.

text: Grounds for dismissal of Governing Council members

text: Concerning the proposed amendment to Article 14(1) of the Law on BNB on the grounds for dismissal of a Governing Council member , the ECB recommends further amending this Article to fully mirror the grounds for dismissal laid down in Article 14.2 of the ESCB Statute. In particular, the words ‘incompatible with the performance of his duties’ should be deleted in Article 14(1) of the draft law.

text: Right of judicial review

text: Article 14(3) of the draft law grants jurisdiction to the Bulgarian Supreme Administrative Court (SAC) over decisions dismissing any Governing Council member including BNB’s Governor. The ECB welcomes this proposed amendment, which will confirm that, for the Governing Council members other then the Governor, a national court has jurisdiction over dismissal decisions . Moreover, concerning the Governor, the ECB notes that the proposed jurisdiction of SAC under Article 14(3) of the Law on BNB should be without prejudice to the jurisdiction of the Court of Justice of the European Communities under Article 14.2 of the ESCB Statute and Article 14(4) of the Law on BNB. 3.3. Confidentiality The draft law amends Articles 4(2), 13(1) and 23(2) of the Law on BNB and introduces the obligation of professional secrecy for BNB staff and the members of BNB’s Governing Council, which is in line with Article 38 of the ESCB Statute. 3.4 Monetary financing and privileged access The proposed amendment to Article 45(1) of the Law on BNB removes the inconsistency with Article 101(1) of the Treaty regarding the range of public sector entities covered by the prohibition on monetary financing. Moreover, acknowledging the particularities arising from the currencyboard regime, i.e. prohibition on BNB extending credit to credit institutions other than in the context of emergency liquidity operations, the ECB reiterates the need to bring Article 45(2) of the Law on BNB into line with Article 101(2) of the Treaty. Such alignment would certainly be mandatory on the introduction of the euro in Bulgaria.

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

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

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 See the first recital of the draft royal decree. 3 See in relation to the Royal Decree of 16 October 2008, ECB Opinion

text: of 17 October 2008 at the request of the Belgian Ministry of Finance on a draft royal decree adopted under

text: Article 117

text: bis of the Law of 2 August 2002 on the supervision of the financial sector and on financial services. All ECB opinions are available on the ECB website at www.ecb.europa.eu. 4 i.e.

text: Article 117

text: bis and 117ter of the Law of 2 August 2002 on the supervision of the financial sector and on financial services. On this provision, see paragraph 2.1 of ECB Opinion

text: and paragraph 1.1 of ECB Opinion

text: the provision of credit in the context of financial stability, in relation to the protection of deposits and life insurance and amending the Law of 2 August 2002 on the supervision of the financial sector and on financial services. 5 See the Report to the King which precedes the draft royal decree. 6 See the Report to the King which precedes the draft royal decree. 7 See Article 1 of the draft royal decree. 8 The ECB understands that mixed financial holding companies are covered by the draft royal decree in so far as they fall within the concept of financial undertakings belonging to a group over which the Commissie voor het Bank-, Financie- en Assurantiewezen/Commission bancaire, financière et des assurances exercises consolidated supervision referred to in

text: Article 117

text: ter of the Law of 2 August 2002. 9 See Article 2 of the draft royal decree. Despite the apparent inconsistency between the recital of the draft royal decree and Article 2 of the draft royal decree, it is understood that the main objective of the draft royal decree is to avoid the guaranteed entity or its subsidiaries from being exposed to a ‘serious need for additional liquidity’ and not exclusively to avoid ‘the risks of downgrading certain financial institutions’. 10 See Article 3 of the draft royal decree. Article 3 of the Royal Decree of 16 October 2008 lays down similar conditions. 11 See Article 4 of the draft royal decree. Article 4 of the Royal Decree of 16 October 2008 contains a similar provision.

text: The ECB has already been consulted by the Belgian authorities on three other draft legislative provisions adopted in this context: (i) ECB Opinion

text: of 8 October 2008 at the request of the Belgian Ministry of Finance on a preliminary draft law on measures promoting financial stability and in particular establishing a State guarantee for the provision of credit in the context of financial stability; (ii) ECB Opinion

text: ; and (iii) ECB Opinion

text: See ECB Opinion

text: , paragraph 3.1.

title: Opinion of the European Central Bank of 21 November 2008 at the request of the Belgian Ministry of Finance on a draft royal decree on the guarantee for certain risks assumed by financial institutions (CON/2008/74)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 November 2008 at the request of the Belgian Ministry of Finance on a draft royal decree on the guarantee for certain risks assumed by financial institutions (

text: ) Introduction and legal basis

text: On 17 November 2008 the European Central Bank (ECB) received a request from the Nationale Bank van België/Banque Nationale de Belgique (NBB), acting on behalf of the Belgian Ministry of Finance, for an opinion on a draft royal decree on the guarantee for certain risks assumed by financial institutions (hereinafter the ‘draft royal decree’). Given the current turbulence in the financial markets and the need for firm intervention by the authorities involved, the consulting authority has requested the ECB to provide its opinion as a matter of extreme urgency to allow the swift adoption of the draft royal decree. The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the sixth indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft royal decree 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 draft royal decree

text: 1.1 The draft royal decree is motivated by the current financial market crisis and by the Belgian authorities’ wish to preserve the stability of the Belgian financial system . The draft royal decree aims to complete the system for granting the guarantee of the Belgian State for liabilities entered into by financial institutions, which was established by the Royal Decree of 16 October 2008 and has the same legal basis .

text: 1.2 More specifically, the purpose of the draft royal decree is to avoid liquidity outflows . The need for the draft royal decree was triggered in particular by the commitments taken by certain financial institutions towards third parties under which, in the event the financial institutions or an entity in their group being downgraded, the third parties concerned may demand cash or other collateral or alternatively early repayment . 1.3 In this context, the draft royal decree empowers the Belgian Minister of Finance to grant a State guarantee to cover liabilities entered into by credit institutions, financial holding companies (financiële holdings/compagnies financières) or mixed financial holding companies (gemengde financiële holdings/compagnies financières mixtes; hereinafter together the ‘beneficiary entities’) , provided that: (i) the liabilities covered are commitments aiming at covering losses or a risk of losses on financial assets held by subsidiaries of a beneficiary entity, and (ii) these commitments and the State guarantee can therefore contribute to avoiding the beneficiary entity or its subsidiaries from being exposed to a serious need for additional liquidity, due in particular to a downgrading of their rating . The decision to grant a State guarantee would be subject to the conditions that: (i) the beneficiary takes measures aimed at supporting its financial situation, its solvency and its liquidity, or commits itself to taking such measures; and (ii) the granting of the guarantee is justified in the interests of the Belgian economy and by the need to protect all depositors . Under the draft royal degree the Minister for Finance would be empowered to lay down further detailed rules and conditions for a State guarantee, including setting its ceiling, specifying the remuneration to be paid for granting the guarantee, and any other detailed rule to ensure compliance with the two abovementioned conditions . The State guarantee would not be granted by means of a Ministerial Decree, but would be established by an agreement which would also define its detailed rules and conditions.

text: 2. General observations

text: The ECB has already opined on several elements of the general rescue package put in place by the Belgian authorities in response to the current turbulence in the financial markets . In this respect, the ECB underlines that all the comments and recommendations made in ECB Opinion

text: apply equally to the draft royal decree. In particular, the ECB first reiterates that arrangements which may be seen as providing preferential treatment to specified credit institutions should be avoided, as well as its recommendation to clarify in the draft royal decree or in the report to the King that the State guarantee will be granted to the beneficiary entities in accordance with the requirements of EC competition law and State aid rules. In this context, it should be ensured that the beneficiary institution(s) will not be unfairly advantaged by making undue use of their guaranteed status . Second, the ECB also notes the importance of ensuring the harmonisation of the price determination of such a guarantee within the euro area and the EU, where a level playing field is of essence. While the ECB understands that the conditions and the price of the State guarantee provided for in the draft royal decree will be determined on a case-by-case basis, it is important that the price should be risk-based and market-oriented, i.e. determined on the basis of the cost of obtaining a corresponding guarantee in the market. This point should be clarified in the draft royal decree. Third, the ECB also wishes to stress in this context that since the Minister for Finance’s decision to grant the State guarantee is, inter alia, subject to the condition that the beneficiary has taken or has committed itself to taking all measures which are useful to support its financial situation, its solvency and its liquidity , proper coordination with the supervisory authority will have to be ensured.

text: [signed]

text: The Vice-President of the ECB

text: Lucas D. PAPADEMOS


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

text: For further details, see press releases 164/2008 and 168/2008 of the Ministry of Finance, available on the Ministry’s website at www.vm.fi. As regards Government guarantees, the Finnish Government requested on 22 October 2008 the Parliament’s consent to State guarantees for debt instruments issued by banks (Government proposal HE 181/2008 vp). Recapitalisation of distressed banks would be, where necessary, conducted according to procedures laid down by the Law on the Government Guarantee Fund.

text: The Declaration is available on the French Presidency’s website at www.ue2008.fr.

text: ECB Opinion

text: at the request of the Finnish Ministry of Finance on a draft government proposal for laws amending the Law on the Government Guarantee Fund and the Law on credit institutions.

text: 2008/C 270/02. 6 Section 4 concerns recapitalisation measures to be used to support financial institutions that are fundamentally sound but may experience distress because of extreme conditions in financial markets. In this context, the Commission laid down the following general principles: (i) objective and non-discriminatory criteria for eligibility; (ii) the temporal scope of the scheme; (iii) limitation of the aid to the strict necessary; (iv) the need for safeguards against possible abuses and undue distortions of competition; and (v) the requirement for recapitalisation as an emergency measure to support the financial institution through the crisis. 7 See Section 4, ’Impacts of the proposal’. 8 See the Section 11a which it was proposed to add to the Law on the Government Guarantee Fund (379/1992) of 30 April 1992 by the draft law commented on in Opinion

title: Opinion of the European Central Bank of 24 November 2008 at the request of the Finnish Ministry of Finance on a draft law on state capital investment in deposit banks (CON/2008/75)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 24 November 2008 at the request of the Finnish Ministry of Finance on a draft law on state capital investment in deposit banks (

text: ) Introduction and legal basis

text: On 18 November 2008 the European Central Bank (ECB) received a request from the Finnish Ministry of Finance for an opinion on a draft proposal for a law on State capital investment in deposit banks (hereinafter the ‘draft law’), including as an annex a draft decree on State capital investment in deposit banks (hereinafter the ‘draft decree’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community 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 law 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 draft law

text: In consequence of the global financial crisis, the Finnish Government has announced measures that may be taken to stabilise the financial markets, including (i) State guarantees for new debt instruments issued by banks; (ii) State capital support for solvent financial institutions; and (iii) State recapitalisation of distressed banks . The draft law relates to the second measure, which is aimed at providing capital support to solvent deposit banks to ensure the proper financing of the economy. Capital support is proposed to be provided by subscribing a capital loan as referred to in Section 45 of the Law on credit institutions, i.e. an unsecured capital loan belonging to original own funds of the bank (Tier 1 capital). The terms of the loan must be approved by the Financial Supervision Authority (FSA). Support may be provided to sound and solvent Finnish deposit banks, including subsidiaries of foreign

text: credit institutions. According to the draft law, capital loans could be subscribed up to a maximum of EUR 4 billion in total, and up to 20 % of each supported bank’s original consolidated own funds. The State could subscribe capital loans until 30 April 2009 or, if the Government so decided, until 31 December 2009. The capital amount of a capital loan would only be repayable to the State after five years from the date of its issue, provided that certain solvency requirements were met and that the FSA gave its consent for the repayment. The Government would have no right to demand such repayment, but the capital of the loan would be gradually raised in the event of non-repayment. In the event of a deposit bank’s bankruptcy, other debts would have priority over capital loans. The interest rate of the capital loan would be the higher of the following: (i) 12-month Euribor plus a margin of seven percentage points; or (ii) a proportion of the issuer’s net earnings after tax, corresponding to the proportion of the subscribed capital loan of the issuer’s original consolidated own funds. Interest would be payable only if the deposit bank had distributable funds for the payment. If the deposit bank had not paid interest for two calendar years, the Government would be entitled to appoint two members to its board of directors. The draft law and draft decree contain certain restrictions applicable to issuers of a capital loan, inter alia with regard to profit distribution, business restructuring (such as mergers), marketing, expansion of the business activity and remuneration and benefits of the management. Compliance with the terms and conditions of the capital loan would be supervised by the FSA.

text: 2. General observations

text: 2.1 The ECB has issued recently a number of opinions with regard to measures taken by Member States in the context of the financial crisis. It has emphasised the importance of a common approach aimed at restoring confidence in the financial markets and compliance with the Declaration on a concerted European action plan of the euro area countries of 12 October 2008 (hereinafter the ‘Declaration’). Such an approach should include initiatives aimed at: (i) ensuring appropriate liquidity; (ii) facilitating the funding of banks through various means; (iii) providing additional capital resources to financial institutions; and (iv) recapitalisation of distressed banks. These principles were also endorsed by the European Council on 16 October 2008 in respect of all Member States. In this context, the ECB delivered on 13 November 2008 its opinion

text: on the Finnish draft legislation concerning the Government Guarantee Fund , making observations which also have a bearing in the context of the present opinion. 2.2 In line with its previous opinions, the ECB notes that it should be ensured that beneficiary institutions are not unfairly advantaged and that financial support arrangements which may be considered as providing preferential treatment to specific credit institutions should be avoided. It also notes that, in line with the Declaration, Member States must act in a coordinated manner to

text: avoid significant differences in national implementation of support measures from having a counterproductive effect and creating distortions in global banking markets. The ECB would also like to emphasise the importance of ensuring that such measures are in accordance with the requirements of EC competition law, in particular State aid rules, and that the State’s provision of capital to banks is limited in time. In this regard, reference should also be made to the criteria set out in the Commission’s Communication entitled ‘The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis’ (hereinafter the ‘Commission Communication’) and, in particular, to Section 4 concerning recapitalisation schemes .

text: 3. Specific observations

text: Eligibility criteria

text: 3.1 In line with the Commission Communication, the ECB notes that eligibility criteria should be objective and non-discriminatory. According to the draft law, capital support may be provided ‘to a deposit bank that is authorised to carry on credit institution activity in Finland’. The explanatory memorandum further clarifies the scope of this provision, referring to Finnish deposit banks including subsidiaries, but excluding branches of foreign credit institutions . The ECB welcomes this provision, as it avoids the preferential treatment of specific financial institutions and distortion of the level playing field. Moreover, only institutions fulfilling the solvency requirements laid down in Section 2(2) of the draft law would be eligible for capital support. The ECB understands that this condition differentiates the draft law from the special rescue provisions which were the subject of Opinion

text: and which were aimed inter alia at credit institutions whose solvency had decreased or was expected to decrease in such a way that they no longer fulfilled the conditions required to continue their operations . The ECB understands that the clear differentiation between two types of support is intended to be maintained (preventive support to sound credit institutions under the present draft law and reactive support to troubled institutions under the law commented on in Opinion

text: ). In this context, the ECB also welcomes the FSA’s involvement in the evaluation of the need for support of solvent institutions.

text: Conditions applicable

text: 3.2 In line with previous opinions, the ECB recalls that harmonisation and coordination of government measures intended to alleviate tensions in the financial markets is of crucial importance. The

text: recapitalisation measures considered in Member States are aimed at strengthening the capital position of fundamentally sound financial institutions in order to improve the functioning and stability of the banking system and ensure the proper financing of the economy. In particular, a consistent approach should be employed in defining the conditions for recapitalisations and the pricing of the instruments to provide Tier 1 capital to financial institutions, in order to support the implementation of the Declaration. Against this background, the ECB notes that in general the conditions for capital support should aim at protecting the interest of taxpayers and respecting the level playing field among institutions. Moreover, the ECB highlights that the pricing conditions for capital support should be risk-based and market-oriented, determined by taking into consideration the specific risk of both the specific instrument chosen for injecting capital and the institution concerned. Specific features of the instruments for capital injections (such as preferred shares and other hybrid instruments) should be appropriately chosen so that, while encouraging an early end of the State’s capital support of banks, they should not result in an excessive increase in the cost of capital. Finally, the temporary nature of the State’s intervention should be ensured by providing financial institutions with incentives to redeem such instruments as early as possible after a certain period of time. 3.3 The ECB notes that, according to the draft law, in the event that a deposit bank did not pay interest for two calendar years, the Government would be entitled to appoint two members to the bank’s board of directors. It also notes that the influence of such board members may vary depending on the management structure of the bank in question. In principle, such a provision should allow the involvement of the State to the extent necessary in the decision-making of the defaulting bank. Further, the ECB would like to reiterate that, as stated in the Commission Communication, the capital injection must be limited to the minimum necessary and should not allow the beneficiary to engage in aggressive commercial strategies or expansion of its activities or other purposes that would imply undue distortions in competition. 3.4 As regards the temporal scope of the scheme, as mentioned above the ECB notes that under the draft law capital loans could only be subscribed until 30 April 2009, or 31 December 2009 if the Government so decided.

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

text: Done at Frankfurt am Main, 24 November 2008.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: See Guide to consultation of the European Central Bank by national authorities regarding draft legislative provisions, Title IV, Section 1.

text: See ECB Opinions:

text: of 3 October 2008 at the request of the Irish Minister for Finance on a draft Credit Institutions (Financial Support) Bill 2008;

text: of 8 October 2008 at the request of the Belgian Ministry of Finance on a preliminary draft law on measures promoting financial stability and in particular establishing a State guarantee for the provision of credit in the context of financial stability;

text: of 15 October 2008 at the request of the Irish Minister for Finance on a draft Credit Institutions (Financial Support) Scheme 2008;

text: of 17 October 2008 at the request of the Belgian Ministry of Finance on a draft royal decree adopted under

text: Article 117

text: bis of the Law of 2 August 2002 on the supervision of the financial sector and on financial services;

text: of 17 October 2008 at the request of the Greek Ministry of Economy and Finance on a draft law on, inter alia, the establishment of the ‘Depositors and Investors of Credit Institutions Compensation Fund’;

text: of 17 October 2008 at the request of the Spanish State Secretary for Economic Affairs on a Royal Decree-Law creating a Fund for the acquisition of financial assets and on a Royal Decree-Law adopting urgent financial and economic measures in relation to the concerted European action plan of the euro area countries;

text: of 17 October 2008 at the request of the Danish Ministry of Economic and Business Affairs on a proposed Law on financial stability;

text: of 20 October 2008 at the request of the Austrian Ministry of Finance on draft legal measures to ensure the stability of the Austrian financial market;

text: of 21 October 2008 at the request of the Banque de France on a draft amending finance law for the financing of the economy;

text: of 21 October 2008 at the request of the German Ministry of Finance on a Law on the implementation of a package of measures to stabilise the financial market and an order on its implementation;

text: of 23 October 2008 at the request of the Banca d’Italia on behalf of the Italian Ministry for Economic Affairs and Finance on two Decree-Laws containing urgent measures to guarantee the stability of the banking system and the continuity of the provision of credit;

text: of 24 October 2008 at the request of the Swedish Ministry of Finance on a draft proposal on stabilising measures for the Swedish financial system;

text: of 27 October 2008 at the request of the Spanish State Secretary for Economic Affairs on a draft Order implementing Royal Decree-Law 6/2008 creating the Fund for the acquisition of financial assets and on a draft Basic Agreement of the Fund’s Executive Council;

text: of 28 October 2008 at the request of the Belgian Minister for Finance on a draft royal decree implementing the Law of 15 October 2008 on measures promoting financial stability and in particular establishing a State guarantee for the provision of credit in the context of financial stability, in relation to the protection of deposits and life insurance and amending the Law of 2 August 2002 on the supervision of the financial sector and on financial services;

text: of 29 October 2008 at the request of the Swedish Ministry of Finance on a draft ordinance on State guarantees for banks etc.;

text: of 12 November 2008 at the request of the Banca d’Italia on behalf of the Italian Ministry for Economic Affairs and Finance on a draft ministerial decree containing provisions to implement Decree-Law No 157/2008 on further urgent measures to guarantee the stability of the credit system;

text: of 13 November 2008 at the request of the Spanish Ministry for Economic Affairs and Finance on a draft order implementing Royal Decree-Law 7/2008 authorising State guarantees; and

text: of 13 November 2008 at the request of the Finnish Ministry of Finance on a draft government proposal for laws amending the Law on the Government Guarantee Fund and the Law on credit institutions. 6 According to these principles, (i) interventions should be timely and the support should in principle be temporary; (ii) the interests of taxpayers should be protected; (iii) existing shareholders should bear the due consequences of the intervention; (iv) the Government should be in a position to bring about a change of management; (v) management should not retain undue benefits; (vi) governments may have, inter alia, the power to intervene in remuneration; (vii) legitimate interest of competitors must be protected, in particular through the State aid rules, and (viii) negative spill-over effects should be avoided. 7 Available on the website of the French Presidency at www.ue2008.fr.

text: See, in particular, ECB Opinions

text: and

text: . 9 See ‘Communication from the Commission – The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis’ (2008/C 270/02) of 13 October 2008, available on the Commission’s website at www.ec.europa.eu. 10 Inserted by Article 4 of the draft law. 11 Inserted by Article 2 of the draft law. 12 Law on banking, published in Uradni list Republike Slovenije No 131/2006. 13 On these aspects see, in particular, ECB Opinions:

text: and

text: . 14 See paragraph 18 of the Commission’s guidance, specifying that ‘The eligibility criteria of financial institutions … must be objective, taking due account of their role in the relevant banking system and the overall economy, and nondiscriminatory so as to avoid undue distortive effects on neighbouring markets and the internal market as a whole. In application of the principle of non discrimination on the grounds of nationality, all institutions incorporated in the Member State concerned, including subsidiaries, and with significant activities in that Member State should be covered by the scheme’.

text: Inserted by Article 3 of the adopted law. 17 Inserted by Article 4 of the adopted law. 18 Inserted by Articles 2 and 3 of the adopted law respectively.

text: Inserted by Article 4 of the draft law. 20

text: Articles 310

text: to 329 of the Law on banking. 21 Pursuant to provisions of the Law on banking governing the deposit guarantee scheme in Slovenia, the banks having their corporate seat in Slovenia guarantee payment of guaranteed deposits held at a bank against which bankruptcy proceedings have been initiated. Upon the initiation of bankruptcy proceedings, Banka Slovenije assumes the obligation to pay the guaranteed deposits in its own name and on behalf of the banks. To cover this obligation it orders the banks to pay in their respective shares and forwards these funds to the successor bank authorised to execute the payments of guaranteed deposits to the depositors. In the bankruptcy proceedings, Banka Slovenije lodges claims arising from the guaranteed deposits and returns any funds retrieved from the bankruptcy estate to the banks according to their paid-in shares. 22 In the latest amendment to the Law on banking adopted on 11 November 2008, it was stipulated that the banks with their seat in Slovenia guarantee payment of guaranteed deposits of the bank in bankruptcy up to the amount of EUR 22 000 and the State guarantees the exceeding amount without limitation (Articles 310 and 313 of the amended Law on banking). 23 Upon the initiation of bankruptcy proceedings, Banka Slovenije assumes the obligation to pay the guaranteed deposits of the bank in bankruptcy in its own name and on behalf of the banks with their seat in Slovenia and of the State (Article 315 of the amended Law on banking).

title: Opinion of the European Central Bank of 25 November 2008 at the request of the Slovenian Ministry of Finance on a draft law amending the Law on public finance (CON/2008/76)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 25 November 2008 at the request of the Slovenian Ministry of Finance on a draft law amending the Law on public finance (

text: ) Introduction and legal basis

text: On 3 November 2008 the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance (hereinafter the ‘Ministry’) for an opinion on a draft law amending the Law on public finance (hereinafter the ‘draft law’ and the ‘Law’, respectively), which was adopted on 11 November 2008 (hereinafter the ‘adopted 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 sixth indent of

text: 1. Purpose of the draft law

text: 1.1 The draft law is aimed at limiting the effects of the global financial crisis in Slovenia and maintaining the stability of the domestic financial system. During the financial crisis, the draft law allows for additional State borrowing and issuing of State guarantees beyond the extent laid down in the existing budget legislation , without a prior budget adjustment and adoption of a special law on guarantees or the amending of the existing amounts of State guarantees projected in the existing budget, respectively. 1.2 The draft law provides for four categories of measures: (i) loans to credit institutions, insurance companies, reinsurance companies and pension companies having their corporate seat in Slovenia; (ii) purchase of claims from credit institutions with their seat in Slovenia; (iii) capital investments 1 Law on public finance, published in Uradni list Republike Slovenije No 79/1999. 2 OJ L 189, 3.7.1998, p. 42. 3 See Articles 29 and 31 of the Law on the implementation of the Republic of Slovenia Budget for 2008 and 2009, published in Uradni list Republike Slovenije No 114/2007.

text: by the State in credit institutions as well as in insurance companies, reinsurance companies and pension companies having their corporate seat in Slovenia; and (iv) State guarantees to credit institutions up to the total principal amount of EUR 8 billion, which was increased to EUR 12 billion in the adopted law. The criteria, conditions and charges for implementation of the abovementioned measures will be set out in separate decrees to be adopted by the Government for each measure. 1.3 The draft law provides for a general legal framework allowing the State to address the emergency situation in the financial markets, should the need arise. Detailed rules for the implementation of specific measures in individual cases, such as their content, extent, duration, as well as the designated beneficiaries, will be defined in a decision to be adopted by the Government on the proposal of the Ministry. These decisions will be based on the assessment by the competent supervisory authorities on the need for and appropriateness of individual measures. The Government is obliged to inform the Parliament of any measures taken under the draft law. 1.4 The provisions on measures introduced by the draft law will enter into force on the day after their publication and are of a temporary nature: they will apply until 31 December 2010.

text: 2. General observations

text: 2.1 The ECB was consulted by the Ministry on the draft law on 3 November 2008 and was asked to issue its opinion within one month after receiving the consultation request to enable the swift adoption of the draft law by the Slovenian Parliament. The ECB was not notified of any acceleration in the legislative procedure. However, the draft law was then adopted on 11 November 2008, without any prior notification of the ECB. In fact, the ECB was unofficially informed that the consultation request would be supplemented with a revised draft law and a draft government decree governing State guarantees. The ECB would like to point out that, in cases of particular urgency, which do not allow for a normal consultation period, the consulting authority may indicate such urgency in the consultation request and ask for a shorter deadline for adoption of the ECB’s opinion. This does not prejudice the national authorities’ duty under Article 105(4) of the Treaty to appropriately consult the ECB on national draft legislative provisions falling within its fields of competence. It follows from

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

text: that Member States are obliged to suspend the process of adoption of the draft legislative provision pending receipt of the ECB’s opinion. The adopting national authority should have the opportunity meaningfully to deliberate the ECB’s opinion prior to taking its decision on the substance. If a time limit has been set for submission of the ECB opinion and this time limit has expired, the national authority concerned may restart the adoption process .

text: 2.2 The ECB has issued several recent opinions on State measures taken to address the global financial

text: crisis , which all emphasise the importance of a common approach aimed at restoring confidence in

text: financial markets. Similarly, the ECB notes that the conclusions adopted at the Ecofin meeting on

text: 7 October 2008 highlighted common principles to guide the States’ actions . Moreover, the ECB

text: notes that on 12 October 2008 the Heads of State of the euro area issued a ‘Declaration on a

text: concerted European action plan of the euro area countries’ (hereinafter the ‘Declaration’), in which

text: they confirmed their commitment to act together in a decisive and comprehensive way in order to

text: restore confidence and the proper functioning of the financial system and to restore appropriate and

text: efficient financing conditions for the economy. They agreed on common principles to be followed

text: by the EU and euro area governments, central banks and supervisors, to avoid national measures

text: adversely affecting the functioning of the single market and the other Member States. This

text: coordinated approach includes initiatives aimed at ensuring appropriate liquidity, facilitating the

text: funding of banks by various means, providing additional capital resources to financial institutions

text: and recapitalising distressed banks. These principles were also endorsed for all Member States by

text: the European Council on 16 October 2008. As pointed out in these recent ECB opinions , it is of utmost importance that the operations conducted by national authorities do not interfere by any means with the single monetary policy and/or with the Eurosystem’s refinancing operations. 2.3 The ECB also wishes to underline the importance of ensuring that the proposed arrangements comply with the relevant Community law provisions and with criteria set out in the recently adopted Commission’s guidance on compliance by financial sector support schemes with EU State aid rules (hereinafter the ‘Commission’s guidance’), and that the State’s role as shareholder as a consequence of recapitalisation under the draft law is limited in time. 2.4 The ECB understands that the Slovenian Government intends to adopt decrees on the basis of the new

text: Article 88

text: .a(1) of the Law if it assesses that taking measures under the draft law may be necessary to address the situation in the Slovenian financial market. The ECB expects to be consulted on any new draft legislative provisions should they materially influence the stability of financial markets.

text: 3. Specific observations

text: Selection of beneficiary credit institutions

text: 3.1 Pursuant to the new

text: Article 81

text: .a of the Law , all credit institutions as defined in the Law on banking having their corporate seat in Slovenia are entitled to benefit from the measures under the draft law. The ECB understands, therefore, that this comprises banks, savings banks and e-money institutions where the term ‘bank’ applies to any bank having its corporate seat in Slovenia that was licensed by Banka Slovenije to provide banking services; subsidiaries of foreign banks are also included, but branches of foreign banks are not. The ECB welcomes the above provisions, as they avoid the preferential treatment of specified credit institutions, and the distortion of the level playing field as regards the treatment of domestic financial institutions and subsidiaries of foreign institutions . The ECB notes that, in the specific context of provision of State guarantees, the Commission’s guidance includes detailed rules on the eligibility criteria for the beneficiary institutions . In this context, the ECB appreciates that pursuant to the new

text: Article 88

text: .a(2) of the

text: Law , the Government’s decisions on measures under the draft law must be based on the assessment of the need for and appropriateness of the individual measures provided by the supervisory authority. Relationship of the draft law to the single monetary policy of the euro area 3.2 In line with the Declaration, Member States have to act in a coordinated manner to avoid significant differences in national implementation having a counter-productive effect and creating distortions in global banking markets. The euro area Heads of State also acknowledged the need to cooperate with the ECB to ensure consistency in liquidity management by the Eurosystem and compatibility with the operational framework of the Eurosystem. Against this background, the ECB notes that uncoordinated decisions among Member States should be avoided as they may involve a fragmentation of the euro area money market. 3.3 Pursuant to the new

text: Article 86

text: .a(4) of the Law , State guarantees may be issued to cover all liabilities of credit institutions vis-à-vis credit institutions and other financial companies with the exception of liabilities arising from: (i) structured financial instruments, (ii) subordinated liabilities of a credit institution and (iii) liabilities to the parent company and its associated entities. On this basis, the ECB understands that State guarantees may be issued to cover interbank deposits. This should be avoided as it could entail a substantial distortion in the various national segments of the euro area money market by potentially increasing short-term debt issuance activity across Member States, thus impairing the implementation of the single monetary policy, which is an exclusive Eurosystem competence under Article 105(2) of the Treaty. 3.4 Pursuant to the new

text: Article 88

text: .a(1) of the Law , the criteria, conditions and charges for implementation of the measures under the new

text: Articles 81

text: .a and 86.a of the Law will be set out in separate decrees to be adopted by the Government for each measure. The ECB would like to recall the need for its involvement in such concertation and the importance it attaches to the harmonisation of the pricing of guarantees and other measures under the draft law within the euro area and the EU aimed at creating the essential conditions for a level playing field. In particular, it is important to ensure that the price of the State guarantee is risk-based and market-oriented in that it is determined on the basis of the costs of a corresponding guarantee in the market. 3.5 Article 6 of the adopted law provides that the provisions of Articles 2, 3 and 4 of the draft law apply until 31 December 2010. The ECB notes that this provision is in line with the principles stated in the Declaration which point to the temporary features of such schemes. Moreover, the harmonisation regarding the end date of such schemes across the euro area and EU Member States is also crucial and the ECB should be involved in such concertation.

text: Role of the central bank

text: 3.6 The ECB understands that Banka Slovenije in its supervisory role will provide its assessment under the new

text: Article 88

text: .a (2) of the Law with respect to banks, savings banks and e-money institutions. 3.7 The ECB expects that the involvement of Banka Slovenije will not go beyond the supervisory function and, in particular, that it will fully comply with the prohibition on monetary financing laid down in Article 101 of the Treaty. According to the specific deposit guarantee scheme in Slovenia , Banka Slovenije pays in its name and on behalf of Slovenian banks and of the State the guaranteed deposits to depositors . To address the current financial crisis this scheme was recently changed to introduce an unlimited State guarantee for bank deposits . The ECB notes with concern that no legislative provision was envisaged in the draft law with regard to additional State borrowing which would ensure that sufficient funds are available to cover such potential amounts to be paid. Should the State not be able to transfer sufficient funds to Banka Slovenije, the latter may be put in a position where it has to provide, even if only temporarily, its own funds for financing the national deposit guarantee scheme which would be a clear breach of the monetary financing prohibition under the Treaty.

text: Done at Frankfurt am Main, 25 November 2008. [signed]

text: The Vice-President of the ECB

text: Lucas D. PAPADEMOS


text: KOM(2008) 717 slutlig/2.

text: Förordning

text: (EG) nr 332/2002

text: av den 18 februari 2002 om upprättandet av ett system för medelfristigt ekonomiskt stöd till medlemsstaters betalningsbalan (EGT L 53, 23.2.2002, s. 1).

text: Systemet enligt förordning

text: (EG) nr 332/2002

text: ersatte systemet enligt

text: rådets förordning (EEG) nr 1969/88 av den 24 juni 1988

text: om upprättandet av ett enda system för medelfristigt ekonomiskt stöd till medlemsstaters betalningsbalans (EGT L 178, 8.7.1988, s. 1).

text: Om rådet delegerade rätten att höja lånetaket till kommissionen skulle detta behöva ske i enlighet med artikel 202 i fördraget. Enligt EG-domstolens rättspraxis får rådet, när det överlåter genomförandebefogenheter till kommissionen, endast uppställa sådana krav avseende utövandet av dessa befogenheter som framgår av

text: rådets beslut 1999/468/EG av den 28 juni 1999

text: om de förfaranden som skall tillämpas vid utövandet av kommissionens genomförandebefogenheter (EGT L 184, 17.7.1999, s. 23), se

text: mål 25/70

text: av den 10 december 1970, Einfuhr- und Vorratsstelle für Getreide und Futtermittel/Köster (REG 1970, s. 1161). Det förfarande genom vilket ett kommissionsbeslut tas efter samråd med EFC är inte något av de förfaranden som framgår av beslut

text: . Om denna fråga skulle aktualiseras inför EG-domstolen anser ECB därför att det vore svårt att hävda att en sådan delegering står i överensstämmelse med gällande lagstiftning.

text: Europaparlamentets lagstiftningsresolution av den 20 november 2008 om förslaget till rådets förordning om ändring av förordning

text: (EG) nr 332/2002

text: om upprättandet av ett system för medelfristigt ekonomiskt stöd till medlemsstaters betalningsbalans, P6_TA(2008)0560.

sprak: sv

title: Europeiska centralbankens yttrande av den 25 november 2008 om ett förslag till rådets förordning om ändring av förordning (EG) nr 332/2002 om upprättandet av ett system för medelfristigt ekonomiskt stöd till medlemsstaters betalningsbalans (CON/2008/77)

text: Inledning och rättslig grund

text: Den 12 november 2008 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande över ett förslag till rådets förordning om ändring av förordning

text: (EG) nr 332/2002

text: om upprättandet av ett system för medelfristigt ekonomiskt stöd till medlemsstaters betalningsbalans (nedan kallat förslaget till förordning).

text: ECB:s behörighet att avge ett yttrande grundar sig på artikel 105.4 i fördraget om upprättandet av Europeiska gemenskapen eftersom ECB administrerar de lån som beviljas enligt systemet. I enlighet med

text: artikel 17.5

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

text: 1. Allmänna kommentarer

text: Den förordning som för närvarande är i kraft antogs i februari 2002 och sänkte det totala lånetaket som beslutats i föregående förordning från 16 miljarder EUR till 12 miljarder EUR. Under de aktuella ekonomiska omständigheterna räknar ECB med att medlemsstaterna utanför euroområdet sannolikt kommer att utnyttja systemet för medelfristigt ekonomiskt stöd i större utsträckning än vad som tidigare antagits, och att detta ekonomiska stöd sannolikt kommer att omfatta avsevärt högre belopp än vad som antogs 2002. Mot bakgrund av det internationella ekonomiska och finansiella läget anser ECB därför att efterfrågan på stöd kan komma att bli betydligt högre än 12 miljarder EUR. ECB är därför positiv till att lånetaket höjs till 25 miljarder EUR så att gemenskapen har möjlighet att bevilja ekonomiskt stöd om detta skulle efterfrågas.

text: 2. Specifika kommentarer

text: Förfarandet för att höja lånetaket

text: Förslaget innebär att ett nytt stycke 3 läggs till

text: artikel 1 i förordning (EG) nr 332/2002

text: som ger kommissionen rätt att ändra lånetaket efter att ha inhämtat Ekonomiska och finansiella kommitténs (EFC) yttrande avseende såväl beslutets brådskande karaktär som det nya lånetak som bör införas. ECB har allvarliga betänkligheter huruvida det föreslagna förfarandet är lämpligt. Dels anser ECB att brådska i sig inte rättfärdigar införandet av detta nya förfarande. Mot bakgrund av att man planerar att anta förslaget till förordning med mycket kort varsel skulle rådet även i framtiden kunna höja lånetaket med kort varsel. ECB hyser även tvivel huruvida en delegering av denna rätt till kommissionen står i överensstämmelse med gällande lagstiftning. ECB rekommenderar därför att man avstår från att införa det nya förfarandet enligt förordningen. Detsamma föreslås även i Europaparlamentets resolution i denna fråga och förutsågs även under det förberedande arbetet med förslaget till förordningen.

text: 3. Ändringsförslag

text: De ändringsförslag av förordningen som blir resultatet av rekommendationerna ovan framgår av bilagan.

text: BILAG

text: Kommissionens förslag | ECB:s ändringsförslag

text: Ett särskilt förfarande bör föreskrivas för kommande ändringar av lånetaket i syfte att öka gemenskapens förmåga att snabbt reagera på betydande förändringar av de finansiella förhållandena som påverkar det totala beloppet av det stöd som medlems¬staterna kan komma att behöva | [Utgår]

text: Motivering – se punkt 2 i yttrandet

text: Följande punkt ska läggas till som punkt 3:Om en allvarlig försämring av den finansiella situationen kräver att gemenskapen beviljar flera medlemsstater brådskande medelfristigt ekonomiskt stöd, får kommissionen besluta att ändra lånetaket efter att ha inhämtat Ekonomiska och finansiella kommitténs yttrande avseende såväl beslutets brådskande karaktär som det nya lånetak som bör införas. Det nya lånetaket ska träda i kraft dagen efter det att det har offentliggjorts i Europeiska unionens officiella tidning. | [Utgår]

text: Motivering – se punkt 2 i yttrandet


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

text: OJ L 319, 5.12.2007, p. 1.

text: OJ L 166, 11.6.1998, p. 45. The Settlement Finality Directive has already been transposed into Bulgarian legislation by several legal acts. The current transposition largely covers payment systems, whereas final settlement in securities settlement systems is provided for in the Law on the public offering of securities published in Darjaven Vestnik No 114 on 30 December 1999, as last amended on 5.8.2008.

text: OJ L 275, 27.10.2000, p. 39. The E-money Directive is already partly transposed by the Law on credit institutions published in Darjaven Vestnik No 59 on 21 July 2006, as last amended on 5.8.2008.

text: See the Proposal for a Directive of the European Parliament and of the Council of on the taking up, pursuit and prudential supervision of the business of electronic money institutions, amending Directives

text: and

text: and repealing Directive

text: (Text with EEA relevance) (COM(2008)627 final).

text: See Article 3 of the Settlement Finality Directive.

title: Opinion of the European Central Bank of 26 November 2008 at the request of Българска народна банка (Bulgarian National Bank) on a draft law on payment services and payment systems (CON/2008/78)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 26 November 2008 at the request of Българска народна банка (Bulgarian National Bank) on a draft law on payment services and payment systems (

text: ) Introduction and legal basis

text: On 22 October 2008 the European Central Bank (ECB) received a request from the Governor of Българска народна банка (Bulgarian National Bank) (BNB) for an opinion on a draft law on payment services and payment systems (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 fifth 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 the BNB 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 law

text: 1.1 The main purpose of the draft law is to transpose the following directives into Bulgarian legislation: (a) Directive

text: of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives

text: and

text: and repealing Directive

text: (hereinafter the ‘Payment Services Directive’) ; (b) Directive

text: of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (hereinafter the ‘Settlement Finality Directive’) ; and (c) Directive

text: of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions (hereinafter the ‘E-money Directive’) . The draft law also contains provisions relating to: (a) the licensing and supervision of payment

text: system operators by the BNB; (b) the operation and oversight of payment systems in Bulgaria; and (c) the functioning of the national real time gross settlement system (RINGS). In the light of the above, the scope of the draft law goes beyond the mere implementation of the abovementioned Community directives. 1.2 On the basis of

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

text: and in accordance with the BNB’s consultation request, this opinion only covers the provisions of the draft law that relate to licensing and supervising payment institutions and payment system operators by the BNB, the operation and oversight of payment systems in Bulgaria and the functioning of RINGS. Most provisions of the draft law relate to establishing a legal regime for the transposition of the Payment Services Directive. While acknowledging the importance of the Payment Services Directive for the realisation of the Single European Payments Area, the ECB provides no assessment in this opinion of the overall implementation of the Payment Services Directive, the Settlement Finality Directive and the E-money Directive in Bulgaria.

text: 2. General observations

text: 2.1 The ECB understands that the draft law will entrust the BNB new tasks, in particular, the licensing and supervision of payment institutions, payment system operators and oversight of payment systems. The ECB welcomes this widening of the BNB’s powers and recommends that the BNB should be provided with sufficient financial and personnel resources to implement them. 2.2 Furthermore, the ECB notes that a proposal of the Commission relating to the review of the Emoney directive (hereinafter the ‘proposal’) is currently under discussion. However, given that such legislative initiative is only at an early stage, the ECB recommends that the Bulgarian authorities should abide by the provisions of the E-money Directive currently in force and consult the ECB on any further draft legislative provisions having regard to ongoing work at Community level concerning the finalisation of the proposal.

text: 3. Specific observations

text: 3.1 Supervision of payment institutions Article 122(1) of the draft law provides that the BNB’s supervisory powers will cover ‘branches and agents of payment service providers having their head office in a Member State and operating on the territory of the Republic of Bulgaria by exercising the right of establishment’. Pursuant to Article 82(2) of the Payment Services Directive, the competent authorities of the host Member States only have the power to supervise foreign branches and agents as regards the application of Titles III and IV of the Payment Services Directive. For reasons of legal certainty, therefore, Article 122 (1) of the draft law could be amended to limit the BNB’s proposed powers over

text: branches and agents of payment service providers established in other Member States to the supervision of their compliance with the national law transposing Titles III and IV of the Payment Services Directive. 3.2 Payment systems

text: Irrevocability of transfer orders

text: 3.2.1 Article 83 of the draft law fixes the moment of irrevocability of a transfer order at ‘the point in time set in the rules of the system for accepting a transfer order’. The ECB presumes that the moment of acceptance of an order by a payment system means the same as the ‘entry of a transfer order’ under the Settlement Finality Directive . However, for reasons of legal certainty, the ECB strongly recommends that the draft law should be aligned with regard to this point by replacing the words ‘for accepting a transfer order’ and ‘accepted by the system’ with the words ‘for entering a transfer order’ and ‘entered in the system’, respectively.

text: RINGS

text: 3.2.2 The ECB notes that on adoption of the euro in Bulgaria, RINGS will have to be assessed against the rules of the Trans-European Automated Real-time Gross settlement Express Transfer system (TARGET2) and that the BNB may also be an operator of a TARGET2 component system. The ECB therefore welcomes the confirmation in the draft law that participation in TARGET2 will be effectuated in accordance with the rules of the system adopted by the ECB . The ECB’s comments in this opinion are, however, without prejudice to a future detailed assessment of RINGS against the rules of TARGET2.

text: Card fees

text: 3.2.3 Article 49(4) of the draft law forbids merchants to charge for card transactions. The ECB acknowledges that pursuant to Article 52(3) of the Payment Services Directive, Member States are allowed to forbid or limit the right to charge, if it is considered necessary to encourage competition and promote the use of efficient payment instruments. However the ECB notes that charging is a way to balance the high costs (interchange fees) of card transactions and should therefore be allowed. If merchants are not allowed to charge, cardholders tend to use the card which gives them the most benefits (miles, rebates, points etc.). Such cards usually have the highest interchange fees to enable cardholder benefits to be financed, which means the highest costs for merchants. Ultimately, such costs are passed on to all customers via higher prices on merchants’ goods or services.

text: 3.3 Alignment of legislation The draft law provides for amendments to Articles 2 and 3 of the Law on credit institutions. On 22 October 2008 the ECB received another request from the Governor of the BNB for an opinion on a draft law amending the Law on credit institutions, which also provides for amendments to Articles 2 and 3 of the Law on credit institutions. As both draft laws provide for entry into force at different points in time, the ECB recommends that they should be properly aligned to eliminate any inconsistencies between them.

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

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

text: [signed]

text: The Vice-President of the ECB

text: Lucas D. PAPADEMOS