text: COM(2014) 724 final.

text: Rådets förordning

text: (EG) nr 2494/95

text: av den 23 oktober 1995 om harmoniserade konsumentprisindex (EGT L 257, 27.10.1995, s. 1).

text: Se artikel 127.1 i fördraget och

text: artikel 2

text: första meningen i stadgan för Europeiska centralbankssystemet och Europeiska centralbanken (nedan kallad ECBS-stadgan).

text: Se

text: artikel 127.2

text: första strecksatsen och

text: artikel 127.5

text: jämförd med artikel 139.2 c i fördraget samt första strecksatsen i

text: artikel 3.1

text: och

text: artikel 3.3

text: . jämförda med artikel 42.1 i ECBS-stadgan.

text: Se

text: artikel 5.3 i förordning (EG) nr 2494/95

text: enligt vilken kommissionen ska hålla samråd med ECB och begära ett yttrande om de åtgärder som kommissionen föreslår ska överlämnas till kommittén för det europeiska statistiksystemet.

text: Se till exempel punkt 1.3 i Europeiska centralbankens yttrande av den 15 februari 2007 på begäran av Europeiska unionens råd över förslag om ändring av de åtta direktiven

text: och

text: , avseende kommissionens genomförandebefogenheter (

text: ), (EUT C 39, 23.2.2007, s. 1) och punkt 2 i Europeiska centralbankens yttrande av den 19 oktober 2012 över ett förslag om ändring av

text: kommissionens förordning (EG) nr 2214/96

text: om harmoniserade konsumentprisindex (HIKP): överföring och spridning av HIKP:s delindex, vad gäller införande av harmoniserade konsumentprisindex med konstant skattenivå, och ett förslag till kommissionens förordning med tillämpningsföreskrifter för

text: rådets förordning (EG) nr 2494/95

text: ), (EUT C 73, 13.3.2013, s. 5).

text: Dom av den 10 juli 2003 i

text: mål C-11/00

text: , Europeiska gemenskapernas kommission mot Europeiska centralbanken, REG 2003, s. I-7147, särskilt punkterna 110 och 111. EU-domstolen förtydligade att skyldigheten att höra ECB huvudsakligen [har] till syfte att säkerställa att den som upprättar en sådan rättsakt avvaktar med att anta denna till dess det organ hörts som, genom de specifika uppgifter som det har på det aktuella området enligt gemenskapsrätten och med sin stora sakkunskap, särskilt kan bidra till det planerade lagstiftningsförfarandet.

text: Se

text: artikel 5.3

text: . i förordning

text: (EG) nr 2494/95

text: Se artikel 5.6 och 5.7 i förslaget till förordning.

text: Kommissionens förordning

text: (EU) nr 93/2013

text: av den 1 februari 2013 med tillämpningsföreskrifter för

text: rådets förordning (EG) nr 2494/95

text: om harmoniserade konsumentprisindex vad gäller fastställande av egnahemsprisindex (EUT L 33, 2.2.2013, s. 14).

text: Priser ska sammanställas varje månad. Om mindre ofta förekommande sammanställning inte hindrar upprättande av ett HIKP som uppfyller villkoren för jämförbarhet som avses i

text: artikel 4

text: kan kommissionen (Eurostat) medge undantag från månatlig sammanställning. Denna bestämmelse utgör inget hinder mot oftare förekommande sammanställning.

title: Europeiska centralbankens yttrande av den 13 mars 2015 om ett förslag till Europaparlamentets och rådets förordning om harmoniserade index för konsumentpriser och om upphävande av rådets förordning (EG) nr 2494/95 (CON/2015/10)

text: Inledning och rättslig grund

text: Den 17 december 2014 mottog Europeiska centralbanken (ECB) en begäran från Europaparlamentet om ett yttrande över ett förslag till Europaparlamentets och rådets förordning om harmoniserade index för konsumentpriser (HIKP) (nedan kallat förslaget till förordning). Rättsakten skulle upphäva och ersätta

text: rådets förordning (EG) nr 2494/95

text: . Den 26 januari 2015 ombads ECB av EU-rådet att yttra sig över det förslaget.

text: ECB:s behörighet att avge ett yttrande grundar sig på artiklarna

text: och

text: i fördraget om Europeiska unionens funktionssätt. Förslaget till förordning faller inom ECB:s behörighetsområde eftersom ECB är en av de viktigaste användarna av HIKP-statistik Harmoniserade konsumentprisindex är viktiga indikatorer för penningpolitiken. De har stor betydelse för ECB:s huvudmål att upprätthålla prisstabilitet i hela euroområdet eftersom de penningpolitiska besluten är beroende av tillförlitlig HIKP-statistik av hög kvalitet. De behövs också som stöd för Eurosystemets uppgift att bidra till det finansiella systemets stabilitet.

text: 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: ECB stöder EU-kommissionens (Eurostat) arbete med översynen och moderniseringen av EU:s rättsliga ram för sammanställningen av HIKP-statistik.

text: 2. ECB:s yttranden samt hur ECB involveras i det förberedande arbetet och i genomförandet

text: 2.1 Mot bakgrund av ECB:s kontinuerliga bidrag till HIKP-ramverket och betydelsen av HIKP-statistik av hög kvalitet för det penningpolitiska arbetet och särskilt för ECB:s huvudmål att upprätthålla prisstabilitet, bör ECB även fortsättningsvis höras om framtida förändringar av detta ramverk.

text: 2.2 Särskilt enligt artiklarna 127.4 och 282.5 i fördraget ska ECB höras om alla genomförandeakter och delegerade akter som kommissionen antar enligt det reformerade rättsliga ramverket för HIKP. EU-domstolen förtydligade att skyldigheten och fördelarna med att höra ECB i Kommissionen mot ECB.

text: 2.3 I linje med existerande regler i förordning

text: (EG) nr 2494/95

text: , och utan att det påverkar samarbetet med att förbereda rättsakter, bör skäl 2 i förslaget till förordning spegla ECB:s behörighet att höras om alla genomförandeakter och delegerade akter som antas med stöd av förslaget till förordning.

text: 3. Användningen av delegerade akter och genomförandeakter

text: 3.1 Angående kommissionens befogenhet att anta akter i enlighet med artikel 290 i fördraget anser ECB att det tröskelvärde under vilket det inte är obligatoriskt för en medlemsstat att tillhandahålla delindex av harmoniserade index, samt förteckningen över delindex som medlemsstaterna inte behöver framställa är viktiga delar i förslaget till förordning. Dessa poster har avgörande betydelse för att säkerställa sunda och harmoniserade konsumentprisindex. Om dessa parametrar förändras får detta direkta konsekvenser för indexens täckning och sundhet. De har stor betydelse för kvaliteten och tillförlitligheten på indexen. ECB anser därför att delegerade akter inte är ett lämpligt rättsligt instrument när man skapar regler med betydelse för dessa nyckelelement i HIKP-ramverket. Dessa aspekter bör fastställas i förslaget till förordning. ECB föreslår att man i artikel

text: och

text: tar med de väl etablerade tröskelvärdena av 1/1000 viktning av de totala utgifterna som täcks av HIKP respektive 1/100 vad gäller fastställande av egnahemsprisindex.

text: 3.2 ECB stöder den föreslagna artikeln 5.1 tillsammans med

text: artikel 2 q

text: om insamlingen av information om reglerade priser som en del av basinformationen som ska tillhandahållas med hänvisning till HIKP (och HIKP med konstant skattenivå). ECB granskar utvecklingen av priser som antingen sätts direkt, eller i betydande utsträckning påverkas av, den offentliga sektorn (på central, regional eller lokal nivå, inklusive nationella lagstiftare) samt vilka konsekvenser dessa har på HIKP som helhet. Denna information är mycket värdefull för inflationsanalysen. Det behövs dock tydligare anvisningar för hur man klassar priser som helt, delvis eller inte alls direkt satta. Klassificeringen är ofta otydlig. För index som hänvisar till, eller exkluderar priser som sätts direkt, skulle ECB välkomna om kommissionen gav ut riktlinjer som säkerställer en harmoniserad definition och tillämpning av dessa koncept i form av en genomförandeakt som antas med stöd av artikel 4.4 i förslaget till förordning.

text: 4. Metodfrågor

text: 4.1 ECB håller med kommissionen om att den nya rättsliga ramen inte bör sänka gällande krav vad gäller de harmoniserade indexens kvalitet och konsekvens. De resultat som uppnåtts under de gångna tjugo åren sedan

text: rådets förordning (EG) nr 2494/95

text: antogs bör upprätthållas och om möjligt förstärkas.

text: 4.2 Artikel 4.2 b i förslaget till förordning introducerar en större tolerans för systematiska skillnader i den årliga ökningen av egnahemsprisindex och bostadsprisindex som kan bli resultatet av avsteg från koncepten eller metoderna som framgår av föreslaget till förordning. Trots att

text: kommissionens förordning (EU) nr 93/2013

text: inte nämner denna aspekt, rekommenderar ECB uttryckligen att man tillämpar standarden av 0,1 procentpunkter som används för att bedöma jämförbarheten av delindex till HIKP. Detta skulle kunna uppnås genom att stryka artikel 4.2 b i förslaget till förordning och ta bort begränsningen av täckningen i

text: artikel 4.2 a

text: . Om man luckrar upp jämförbarhetskraven skulle detta leda till att kvaliteten på delindexen för egnahemspriser och bostadspriser försämras.

text: 4.3 Produktion av delindex i intervaller som är mindre frekventa än vad som krävs av förslaget till förordning bör även fortsättningsvis kräva kommissions (Eurostat) förhandsgodkännande. Detta säkerställs för närvarande av

text: artikel 8.2 i förordning (EG) nr 2494/95

text: . Samme regler skulle kunna tas in i artikel 6.3 i förslaget till förordning samt även i genomförandeförordningen.

text: I de fall där ECB rekommenderar att förslaget till förordning ska ändras anges de specifika förslagen i ett tekniskt arbetsdokument som åtföljs av en förklaring.


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

text: Regulation (EU) No 575/2013

text: of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending

text: Regulation (EU) No 648/2012

text: (OJ L 176, 27.6.2013, p. 1). 3 Directive

text: of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive

text: and repealing Directives

text: and

text: (OJ L 176, 27.6.2013, p. 338).

text: Dziennik Ustaw (Dz. U.) of 2003, No. 99, item 919. 5 Dz. U. of 2012, item 1112.

text: Dz. U. of 2014, item 851. 7 Dz. U. of 2012, item 361. 8 Dz. U. of 2013, item 989, 289 and 1717. 9 Dz. U. of 2013, item 1450.

text: OJ C 119, 25/4/2013, p. 1.

text: Directive

text: of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending

text: Council Directive 82/891/EEC

text: , and Directives

text: and

text: , and Regulations

text: (EU) No 1093/2010

text: and

text: (EU) No 648/2012

text: , of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 20 March 2015 on the legal framework for covered bonds and mortgage banks (CON/2015/11)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 20 March 2015 on the legal framework for covered bonds and mortgage banks (

text: ) Introduction and legal basis

type: rubrik

text: On 5 February 2015 the European Central Bank (ECB) received a request from the Polish Ministry of Finance for an opinion on a draft law amending the Law on covered bonds and mortgage banks and certain other laws (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 sixth indent of

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

text: , 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.

type: stycke

text: 1. Purpose of the draft law

text: 1.1 The main purpose of the draft law is to enhance the availability of well-diversified funding sources from capital market investors to the Polish banking sector. This is in order to address the potential threat to the stability of the Polish banking sector caused by maturity mismatches in mortgage financing, primarily based on short-term liabilities such as deposits. The differences in the maturities of their assets and liabilities expose credit institutions to liquidity risks. In addition, the draft law contributes to the preparations by the Polish financial sector to comply with

text: Regulation (EU) No 575/2013

text: of the European Parliament and of the Council and Directive

text: of the European Parliament and of the Council , in particular the liquidity coverage and stable funding requirements. 1.2 The draft law seeks to achieve these aims by changing the funding model for mortgage lending through the development of long-term debt instruments. This will enable credit institutions to reduce liquidity shortages due to maturity mismatches and thereby facilitate their compliance with, in particular, regulatory liquidity standards. This could be achieved by developing a market for covered bonds that, while allowing Polish credit institutions to reduce the maturity mismatches, is

text: considered attractive to investors. To ensure a wider use of covered bonds by banks for refinancing purposes, the draft law introduces amendments aimed at eliminating current barriers to the development and the use of such instruments. 1.3 To this end, the draft law amends the Law on covered bonds and mortgage banks of 29 August 1997 (hereinafter the ‘Law on covered bonds’) by: (a) compelling a mortgage bank to over-collateralise its covered bonds by at least 10% of the issue, and to establish a liquidity buffer in order to secure the payment of interest on covered bonds within a period of 6 consecutive months; (b) clarifying that a bondholder does not have a statutory or contractual right to redeem the covered bonds prematurely. At the same time, this does not affect the issuer’s right to exercise the early redemption of covered bonds; (c) increasing the limit applicable to residential loans secured by a mortgage from 60% to 80% of the mortgage lending value of a property, for purposes of the issuance of covered bonds; (d) providing that regular asset coverage and liquidity tests should be performed by mortgage banks as well as authorising the Minister for Finance to further define, in a separate regulation, the specific technical aspects of such tests; (e) clarifying that the eligibility criteria for a single loan secured by a mortgage (hipoteka) does not exceed 100% of the mortgage lending value of a property. This will be calculated at the date of granting or, if a mortgage credit receivable is purchased by the mortgage bank, at the date of purchasing of a given credit, rather than as an ongoing obligation to keep the loan-tovalue ratio (LTV) at a maximum level of 100% during the life of mortgage credit; (f) addressing issues identified with regard to the financing of development projects under construction. The draft law introduces the right for a mortgage bank to request that the relevant court enters a claim for the registration of the mortgage on a property, on which a development project is implemented, even without the prior consent of the relevant developer. The disclosure of this claim is a condition for the disbursement of funds from a loan granted for the purchase of a development property that is under construction. At the same time, there is no change to the principle that covered bonds may be issued in relation to such credit receivables only upon the registration of the mortgage. 1.4 With a view to ensuring the adequate and timely service of bondholders in the event of an issuer’s insolvency, thereby securing a more favourable rating agency assessment of the Polish covered bond issuers, the draft law also introduces amendments to the Law on bankruptcy and rehabilitation of 28 February 2003 (hereinafter the ‘Law on bankruptcy’). The key features of the draft law in this respect include: (a) a mandatory 12 month extension of the redemption date of all covered bonds. The proposed extension period starts on the date the Polish mortgage bank issuer is declared insolvent;

text: (b) the introduction of an asset coverage test, which verifies whether the separate insolvency estate is sufficient to fully satisfy the claims of the bondholders on the verification date, and a liquidity test, which verifies whether the separate insolvency estate is sufficient to fully satisfy the claims of the bondholders on the extended redemption dates. The results of these tests are approved by the Polish Financial Supervision Authority and further procedure is determined based on such results; (c) the clarification of the rules on convening bondholder meetings and voting majorities; (d) rules on the “earmarking” of funds in a separate insolvency estate; (e) the clarification that set-off is not permitted, other than in respect of claims arising under hedging transactions, and in respect of settlements processed under a payment or securities settlement system. 1.5 The draft law also eliminates some of the barriers to the development of covered bonds that were present in Polish tax legislation. Namely, it amends the Law on corporate income tax of 6 7 15 February 1992 and the Law on personal income tax of 26 July 1991 , by introducing the following measures: (a) an exception from the tax at source, which would normally need to be withheld by the bonds’ issuers on interest paid abroad to entities that are tax residents in jurisdictions other than Poland, but who have a taxable source of income in Poland; and (b) enabling the mortgage banks to recognise specific provisions, particularly impairment losses, made for receivables arising from credits, which are purchased by them from other banks, in tax deductible expenses and to write-off such receivables as irrecoverable after having documented the inability to recover them. This will ensure the equal treatment of credits granted by mortgage banks and credits purchased by such entities in the area of tax law. 1.6 Additionally, the draft law introduces solutions aimed at facilitating the investment in covered bonds by Polish domiciled pension funds. To this effect, the draft law amends the Law on the organisation and operation of pension funds of 28 August 1997 by excluding covered bonds from the subjective limits imposed collectively on a certain group of financial instruments by reducing investments in securities of a single issuer to the level of 10% of a fund’s assets, and imposing a single limit of 5% of a fund’s assets in relation to covered bonds issued by a single issuer or a group of issuers. 1.7 Finally, the draft law amends the Law on cooperative savings and credit unions of 5 November 2009 and enables Polish domiciled credit unions to invest directly and unconditionally in covered bonds. This is justified by the fact that such credit unions, similarly to Polish domiciled commercial banks, are subject to supervision of the Polish Financial Supervision Authority and are covered by the Polish deposit guarantee scheme.

text: 2. General observations

text: 2.1 The ECB broadly welcomes the draft law intended to promote the development of the Polish covered bond market. In particular, the ECB welcomes the envisaged over-collateralisation requirement as a risk mitigation tool and the requirement for regular asset coverage and liquidity tests to be performed by the mortgage banks. At the same time, the Polish authorities may wish to consider the level of the over-collateralisation requirement, taking into account the level of asset encumbrance. Moreover, better-capitalised covered bond issuers typically do not need high levels of over-collateralisation to enhance the creditworthiness of their covered bonds. Hence, providing more flexibility in terms of over- collateralisation may improve the attractiveness of issuing covered bonds particularly for better-capitalised banks. 2.2 The measures included in the draft law may benefit from the solutions included in the Recommendation of the European Systemic Risk Board of 20 December 2012 on funding of credit institutions (

text: ) , and should be assessed against the recommendations for improving covered bond frameworks set out by the European Banking Authority (EBA) in its Report on EU Covered Bond Frameworks and Capital Treatment, published in July 2014 which defines best practises with regard to, among other things, valuation of mortgage cover assets, LTV criteria, coverage principles and over-collateralisation. 2.3. Given the complexity of the subject matter and the legal framework for covered bonds and mortgage banks in Poland, the draft law would undoubtedly benefit from an explanatory memorandum, explaining in detail the reasoning behind particular amendments and how they relate to each other and to other Polish legislation. The detailed description of the draft law contained in the present ECB Opinion should facilitate the preparation of such explanatory memorandum.

text: 3. Safety thresholds and concentration of secured long-term debt instruments

text: 3.1 The current framework provides for an eligibility threshold where the LTV for a single loan secured by a mortgage may not be higher than 100%. In addition, the law establishes limits on the applicable mortgage lending values for the purposes of the issuance of covered bonds. In this regard, lower ratios increase the resilience of banks and their borrowers to adverse shocks, thereby enhancing the resilience of the financial system as a whole. Hence, given market practices, in certain Member States with active covered bond markets, the threshold is lower than 80% with respect to residential mortgages. 3.2 Coherence of the Polish covered bond laws with European standards and covered bond frameworks that are already in place should support the liquidity of covered bonds issued under the new draft law, thereby further increasing investor interest and contributing to resilience of the Polish covered bond market. The best practises published by the EBA in July 2014 serve as an indicative benchmark to achieve the warranted level of standardisation. 3.3 In order to enhance the clarity of the legal framework, the wording of the existing provisions in the current Law on covered bonds concerning the applicable lending limits for the purposes of the

text: issuance of covered bonds should be made clearer (see, in particular, paragraph 1 of Article 13 of the Law on covered bonds). Moreover, as regards the calculation of the ongoing cover for mortgage covered bonds, we understand that such calculations consider only disbursed amounts and this should be stipulated clearly in the amended

text: Article 18

text: . 3.4 As an additional safeguard, the draft law should include a provision ensuring that the valuation for purposes of determining the mortgage lending values is carried out by an expert who is independent from the credit approval process. As regards the eligibility threshold, the monitoring and updating of the valuation of the collateral assets and the corresponding LTV calculations, at least on an annual basis, could also strengthen the regime. 3.5 In addition to the proposed provisions related to development projects under construction, consideration could be given to the inclusion of a robust mechanism for the valuation of such projects to ensure that the mortgage lending value for the purposes of the covered bond does not exceed the status value of the achieved construction stage, as certified by an independent expert.

text: 4. Amendments to the provisions related to bankruptcy and rehabilitation

text: 4.1 The ECB welcomes the proposed changes to the Law on bankruptcy to the extent that they clarify the treatment of covered bondholders in the event of the issuer’s insolvency and therefore provide for more transparency and legal certainty. However, it is noted that the current insolvency regime in Poland may need to be adapted to transpose Directive

text: of the European Parliament and of the Council and that a draft of a new restructuring law is currently being considered by the Polish authorities. To this end, the ECB invites the Polish Ministry of Finance to clarify the scope and relationship of the draft law with Directive

text: and the proposed provisions of the new restructuring law, in order to ensure a consistent approach to these legislative initiatives. 4.2 The draft law provides for a mandatory automatic extension of the redemption dates of all relevant covered bonds by 12 months with the extension to become effective on the date of declaration of the issuer’s insolvency. Notwithstanding any further possible changes to Polish law as a result of the transposition of Directive

text: , it should be clarified that the extension is warranted in all circumstances and especially in situations where asset coverage tests and liquidity tests have been performed successfully according to the schedule set out in the law. The ECB understands that it is the intention of the Polish authorities to provide sufficient time for maximum realisation of the value of the cover pool in the event that an issuer is declared insolvent. The ECB welcomes this notion but recommends an optional rather than mandatory process at the discretion of the resolution authority or insolvency practitioner. The minimising of the extension risk could promote a more robust access by mortgage banks to longer-term funding as well as underpin the stability of the asset class for investors. Moreover, the ECB recommends that mortgage banks should be required to put in place appropriate and prudent operational procedures aimed at ensuring an orderly functioning of the covered bond programme upon default or resolution of an issuer.

text: 4.3 The draft law provides that the amended

text: Article 446

text: c(3) of the Law on bankruptcy will allow a twothirds majority of bondholders to decide that the pass-through procedure will not apply. However, unlike in the proposed amended

text: Article 446

text: d(1) of the Law on Bankruptcy, the draft law does not specify any alternative measures that may be adopted by bondholders. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 20 March 2015. [signed]

text: The President of the ECB

text: Mario DRAGHI

type: vagledning

utgivare: ecb


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

text: Diário da República No 115 series 1 of 17 June 2009.

text: See Article 13 of Decree-Law No 144/2009 of 17 June 2009. This Article is not modified by the draft law.

text: See the ECB’s June 2014 Convergence Report, p. 29, as well as paragraph 2.1 of Opinion

text: and paragraph 3 of Opinion

text: See the ECB’s Convergence Report of June 2014, p. 25. 6 See for instance paragraph 3 of Opinion

text: , paragraph 3.3 of Opinion

text: , paragraph 9 of Opinion

text: , paragraph 3.1.2 of

text: and paragraph 3.1 of

title: Opinion of the European Central Bank of 24 March 2015 on the credit mediator legal framework (CON/2015/12)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 24 March 2015 on the credit mediator legal framework (

text: ) Introduction and legal basis

text: On 14 January 2015 the European Central Bank (ECB) received a request from the Portuguese Ministry of Finance for an opinion on a draft decree-law (hereinafter the ‘draft law’) amending Decree-Law No 144/2009 of 17 June 2009 establishing the Portuguese credit mediator legal framework. The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third and sixth indents of

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

text: , as the draft law relates to the Banco de Portugal (BdP) 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.

text: 1. Purpose of the draft law

text: 1.1. The draft law introduces changes to the credit mediator legal framework, which was approved by Decree-Law No 144/2009 of 17 June 2009 . The main purpose of the credit mediator is to defend and promote the rights and interests of any natural or legal persons that: (a) have applied for a loan (including renewals of credit) and the credit institution refused to grant it; or (b) have received one or more loans from a credit institution and wish to restructure or consolidate, after the credit institution has denied such restructuring or consolidation. To that end, the mediation between customers and credit institutions, whenever the credit mediator is requested, aims at facilitating the debtor's relationship with the credit institution. 1.2. According to the draft law, despite the success of the introduction of the credit mediator, its services have been used almost exclusively by individuals and only by a very limited number of companies. The draft law intends, in view of the current focus of the credit mediator on facilitating the relationship of the debtor with the financial institutions, to raise awareness of the role the credit mediator could also play in streamlining the processes of restructuring corporate financial debt, both in terms of response times and, where applicable, of the level of coordination between the entities involved.

text: 1.3. Therefore, the purpose of the draft law is to adopt measures that promote the use of the credit mediator’s services by commercial companies, in particular in connection with financial debt restructuring. For this purpose, the draft law amends the credit mediator regime by expressly conferring on it the following functions: (a) to provide overall assistance with credit and financial restructuring activity, and (b) to coordinate mediation activity between bank customers and credit institutions for the purpose of helping to streamline financial debt restructuring. In addition, the draft law introduces procedural rules for when the mediation relates to debt restructuring. 1.4. Another purpose of the draft law is to promote better coordination between the credit mediator and the Portuguese Ministry of Economy. In addition, the annual report from the credit mediator will be not only sent for approval to the member of Government responsible for finance but also to the member of Government responsible for the economy. There are also specific content requirements for this annual report regarding corporate debt restructuring. 1.5. Under the current legal framework the credit mediator coordinates a council that assists in the performance of the mediator’s duties. Under the draft law the credit mediator and the council will receive additional support from three consultative members with unpaid consultative functions who will be appointed by the member of Government responsible for the economy. They will assume particular responsibility for the overall assessment of cases relating to access to credit and corporate debt restructuring, where mediation has been requested. 1.6. As per the legal framework of the credit mediator, BdP will remain responsible for the technical, administrative and financial support of the credit mediator’s duties.

text: 2. General observations

text: 2.1. The ECB welcomes the draft law as it establishes an additional mechanism to help relations between bank customers and credit institutions by means of fostering the use of the services of the credit mediator. Generally, the ECB recognises the purpose of supporting the rights of any natural or legal person in a credit relationship (or that wishes to enter into such relationship) with a credit institution, improving access to credit by individuals and companies and improving communication between these parties. Mediation provides an alternative form of solving or avoiding disputes and litigation if both parties can reach an understanding. 2.2. Specifically, the ECB acknowledges the purpose of developing policies that better support and strengthen the economy by helping to restructure debt in the financial sector, in particular for bank customers that are commercial companies and that can benefit from the intervention of a credit mediator. This assists companies in dealing with financial difficulties and possibly avoiding bankruptcy by restructuring financial debt.

text: 3. Specific observations

text: 3.1. Scope of the intervention by the credit mediator 3.1.1. While reiterating its support for the draft law, the ECB notes that the scope of the intervention by the credit mediator is already very wide. It encompasses all types of banking customers, without

text: any limitation related to the amount of credit involved or, specifically, to the nature of the banking customer, be they natural or legal persons, small or medium-sized enterprises or large companies. 3.1.2. Since the purpose of the draft law is to explicitly list commercial companies as key users of credit mediator services, in particular in connection with financial debt restructuring, it is possible that a positive reaction from the market could result in significant additional and unexpected demand for such services. In this case, it is possible that the quality and promptness of the service might suffer. Moreover, the credit mediator will potentially be requested to assess debt restructuring operations, including complex cases in a multi-creditor context, which may affect the financial position as well as, potentially, the reputation of the banks concerned. 3.1.3. Therefore the ECB encourages the Portuguese authorities to be aware of such potential impacts and to adopt measures to ensure the quality of the service is maintained, while at the same time trying to avoid inappropriate recourse to the credit mediator. 3.2. Resources and funding of the credit mediator 3.2.1. While the credit mediator will receive additional consultative resources under the draft law, in a potential scenario of intense use of the mediation mechanism by commercial companies, the credit mediator may be required to commit considerable own resources, including technical, financial and human, to the task of mediation in the restructuring of corporate financial debt in the private sector. As already indicated, this task will be in addition to all other tasks already referred to in the credit mediator legal framework. Moreover, the draft law increases the depth of reporting by the credit mediator to the government member responsible for finance, and extends the scope of the reporting to include the member responsible for the economy. This increase will also require the credit mediator to commit additional resources. Therefore the ECB encourages the Portuguese authorities to be aware of the resources implications of the draft law. 3.2.2. Under the current legal framework,which is not modified in this respect by the draft law, these resources will come from BdP. Although the credit mediator is independent from BdP, the bank pays for the services and provides the technical, administrative and financial support necessary for the credit mediator and the council to carry out their duties . 3.2.3. BdP’s financing and support of the credit mediator, which is neither based on the Treaty or the Statute of the European System of Central Banks and of the European Central Bank, nor of a supervisory nature, gives rise to the following issues. (a) BdP’s resources would be used simultaneously for the mediation of credit relations between customers and credit institutions as well as for the supervision of those institutions, a task which falls upon BdP as the national supervisory authority. This contradiction will be amplified under the draft law as the credit mediator encompasses in its scope of intervention the coordination of the financial debt restructuring affecting credit institutions under the supervision of BdP. Subsequently, a solution that would ensure that the performance of the credit mediator’s tasks was not dependent on BdP’s resources would not only be beneficial

text: from the point of view of BdP’s independence but also from the point of view of the credit mediator’s independence. (b) The ECB underlines the importance of safeguarding compliance with the prohibition on monetary financing laid down in Article 123(1) of the Treaty. As already indicated, the tasks entrusted to the credit mediator under the original and the draft law are governmental and independent from BdP, yet BdP must assume their financing and provide all necessary support in order for these tasks to be carried out. Therefore, in this specific context, full compliance with the monetary financing prohibition would only be achieved if the credit mediator, its tasks and those of the council are fully financed in advance and not dependant on BdP’s resources . (c) In particular, in respect of the facilitating of debt restructuring which is pursued by the draft law, the ECB would like to reiterate that ‘Member States may not put their NCBs in a position where they have insufficient financial resources to carry out their ESCB or Eurosystemrelated tasks’ . Therefore, the Portuguese authorities will need to ensure that the performance of these additional tasks will not affect BdP’s operational capacity to carry out tasks as part of the ESCB. Previous ECB opinions have pointed out that the allocation to the NCBs of specific non-ESCB related tasks need to be accompanied by the allocation of adequate human and financial resources allowing such tasks to be carried out in a manner which will not affect the NCBs’ ability to carry out their ESCB or Eurosystem-related tasks from an operational and financial point of view. (d) In view of the abovementioned obstacles, the credit mediator should, ideally, be hosted or established outside BdP. If, in the end, this is not the case, the agreement of BdP will be necessary as regards the conditions under which BdP would be able to host the credit mediator without BdP’s ability to carry out its ESCB/Eurosystem and supervisory tasks being affected from an operational and financial point of view, or the monetary financing prohibition being infringed.

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

text: Done at Frankfurt am Main, 24 March 2015. [signed]

text: The President of the ECB

text: Mario DRAGHI


text: Gazzetta Ufficiale della Repubblica Italiana No 19, 24.01.2015.

text: Council Decision 98/415/EC of 29 June 1998

text: on the Consultation of the European Union by national authorities regarding draft legislative provisions (OJ 189, 3.7.1998, p. 42).

text: Gazzetta Ufficiale della Repubblica Italiana No 230, 30.09.1993

text: More specifically, holders of financial instruments, in accordance with the memorandum of association, might appoint up to one third of the supervisory board members and one third of the management board members in case of twotier governance system (

text: Article 1(1)

text: (d)(1) of the Decree- Law, amending

text: Article 150

text: -bis(2) of Legislative Decree No 385 of 1 September 1993, in conjunction with Article 2544(2) of the Civil Code) or - alternatively - up to one third of the directors in case the one-tier governance system applies (

text: Article 1(1)

text: (d)(1) of the Decree- Law, amending

text: Article 150

text: -bis(2) of Legislative Decree No 385 of 1 September 1993, in conjunction with Article 2544(3) of the Civil Code).

text: Amendments made by the Chamber of Deputies in the process of conversion exclude the power of the Banca d’Italia to limit the right to redeem shares in case of death of the shareholder.

text: See Title IV, Section I of the Guide to consultation of the European Central Bank by national authorities regarding draft legislative provisions, which is available from the ECB’s website.

text: See ECB Opinion

text: Regulation (EU) No 575/2013

text: of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending

text: Regulation (EU) No 648/2012

text: (OJ L 176, 27.6.2013, p. 1). 9 Commission delegated

text: Regulation (EU) No 241/2014

text: (OJ L 74, 14.3.2014, p. 8). 10

text: Council Regulation (EU) No 1024/2013

text: conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). 11 Directive

text: of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive

text: and repealing Directives

text: and

text: (OJ L 176, 27.6.2013, p. 338).

title: Opinion of the European Central Bank of 25 March 2015 on the reform of popolari banks (CON/2015/13)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 25 March 2015 on the reform of popolari banks (

text: ) Introduction and legal basis

text: On 20 February 2015, the European Central Bank (ECB) received a request from the Ministry of Economy and Finance for an opinion on Article 1 of Decree-Law No 3 of 24 January 2015 on urgent measures for the banking system and investments (hereinafter the ‘Decree-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 and sixth indents of

text: , as the Decree-Law relates to the Banca d’Italia and to the supervisory tasks conferred upon the ECB 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.

text: 1. Purpose of the Decree-Law

text: 1.1 Popolari banks are currently set up as cooperative companies limited by shares. Their distinguishing features are, inter alia, the fact that shareholdings are limited to 1 per cent of share capital, except where a bank’s articles of association provide for lower limits (between 0.5 and 1 per cent), the ‘one member one vote’ principle, and the fact that the board of directors reserves the right to approve the admission of new members. The purpose of Article 1 of the Decree-Law is to reform popolari banks by amending Legislative Decree No 385 of 1 September 1993 . 1.2 A distinction can be made between popolari banks which are relatively small and have limited territorial coverage, and those which have cross-border operations or are listed on the stock exchange. In line with this distinction, the Decree-Law divides popolari banks into two categories, depending on the value of their total assets. Those with assets of more than EUR 8 billion are obliged to either convert to joint-stock companies (with subsequent application to them of the ordinary regime for such companies), wind up or reduce their assets to below that threshold. In order to facilitate such a conversion, the qualified majority voting threshold has been lowered for approving changes to the legal form of a popolare bank, as well as for decisions on mergers and acquisitions.

text: 1.3 Popolari banks with assets of EUR 8 billion or less are also affected by the Decree-Law. In contrast to the current regime, under the Decree-Law, a popolare bank’s memorandum of association may allow for the issuance of financial instruments bearing certain economic and administrative rights. Owners of these financial instruments may, where so provided by the memorandum of association, exercise voting rights up to a maximum of one third of the total votes in the general assembly of shareholders and appoint as many as one third of the members of the managing and supervisory bodies of the bank . Furthermore, company members who are legal persons may cast up to five votes if the memorandum of association so provides. In addition, under the Decree-Law, where proxy voting is allowed, the applicable voting right ceiling should not be set below 10 and may be increased to 20. A popolare bank with assets below the EUR 8 billion threshold will apply the lower qualified majority voting threshold, should it decide to convert into a joint-stock company. In addition, the requirement that the majority of directors are appointed from among the members or, where members are legal entities, from among persons designated by them, is removed. 1.4 Finally, under the Decree-Law, the right to redeem shares in the event of withdrawal from the cooperative, even in the event of transformation, death or exclusion of shareholders , may be limited by the Banca d’Italia if such measure is deemed necessary in order to preserve the adequacy of the Common Equity Tier 1 capital.

text: 2. The appropriate time to consult the ECB

text: 2.1 The ECB must be consulted at an appropriate stage in the legislative process. This should be at a time that enables the ECB to adopt its opinion in all required language versions and that enables the authority initiating the legislative provision to take the ECB’s opinion into account before it decides on the substance . 2.2 In the Italian legal system, a decree-law, adopted by the Government, enters into force following publication in the Gazzetta Ufficiale and must be submitted on the same day to Parliament for conversion into law. If not converted within 60 days of publication, the decree-law is rendered invalid with retroactive application. In the light of the above, the ECB should be consulted before the adoption of a decree-law . 2.3 In the present case, as the Decree-Law was adopted and published on 24 January 2015, not only was the ECB not consulted before its adoption but the submission of the consultation request was unnecessarily delayed. The request was received by the ECB on 20 February 2015, when the Ministry of Economy and Finance asked the ECB to consider the consultation as a matter of

text: urgency in view of the short deadline for conversion. This situation is unfortunate and the ECB would like to emphasise to the Ministry the need for proper consultation.

text: 3. General observations

text: 3.1 The ECB welcomes the proposed reform of popolari banks as an essential step towards addressing shortcomings regarding their governance, and supports the Italian authorities in giving this reform permanent effect without delays. 3.2 The ECB understands that the Decree-Law addresses certain rigid features of the governance framework of popolari banks with the aim of: (i) enhancing the effective monitoring power of the shareholders vis–à–vis the management; (ii) increasing the banks’ capital-raising capacity; (iii) reducing the risk of concentration of power in a minority group of shareholders, and; (iv) providing opportunities to look for synergies and economies of scale, resulting in efficiency gains within the banking segment, for instance through mergers and acquisitions. 3.3 The ECB notes that popolari banks with assets above EUR 8 billion represent a significant proportion of the popolari segment in terms of loan amounts, number of branches and number of employees. Therefore, the threshold set for mandatory conversion seems to be expedient for the achievement of the objectives of the Decree-Law for a significant part of the popolari segment of the Italian banking sector. The ECB understands that the asset size criterion is coherent with the current distinctions between popolari banks with a wide territorial and operational outreach, having a business model similar to the one adopted by commercial banks, and those with a cooperative and mutual banking model. In light of this, the ECB welcomes the Decree-Law, which realigns the company and governance structure of larger popolari banks with those of their commercial peers while not prejudicing the ability of popolari banks to finance the local regional economy. 3.4 As far as popolari banks with assets of EUR 8 billion or less are concerned, the ECB would like to emphasise the importance of measures aimed at strengthening their governance structures. A more appropriate structure could help enhance their risk management capabilities, their internal capital generation ability as well as their potential for attracting additional capital, and their competence to withstand financial and economic crises of significant magnitude. This would enable popolari banks to continue to provide credit to the regional and local economies even during difficult times. 3.5 Given the importance of the Decree-Law in addressing one of the vulnerabilities of the Italian banking sector, the ECB strongly supports the essential elements of the proposed reform which it feels should not be substantially amended. The ECB, furthermore, advocates for its timely implementation.

text: 4. Supervisory implications for larger popolari banks

text: 4.1 The ECB notes that most of the popolari banks with assets above EUR 8 billion are directly supervised by the ECB. Against this backdrop, the ECB welcomes the Decree-Law, which is intended to reshape the governance structure of popolari banks with a wider territorial and operational outreach.

text: 4.2 Under the current prudential regulatory framework, both strong governance arrangements and a solid capital structure are crucial concerns for the banking supervisor. To this end, the ECB notes that the transformation of the biggest popolari banks into joint-stock companies would facilitate their ability to raise capital and enhance the shareholders’ control over the management. In addition, this could make it easier for the capital instruments issued to be included as part of the fulfilment of the Common Equity Tier 1 requirements. Under

text: Regulation (EU) No 575/2013

text: of the European Parliament and of the Council , as supplemented by Commission delegated

text: Regulation (EU) No 241/2014

text: , for capital instruments to qualify as Common Equity Tier 1 a number of conditions, in addition to those applicable to capital instruments issued by joint stock companies, have to be met. 4.3 The transformations envisaged by the Decree-Law will lead to substantial changes, particularly with regard to the capital structure and the governance arrangements of the credit institutions undergoing such transformation. To that end, the ECB notes that, pursuant to

text: Article 9(1)

text: , subparagraph 2,

text: Article 4(1)

text: (e) and

text: Article 4(3) of Council Regulation (EU) No 1024/2013

text: , and

text: Article 104(1)

text: (b) of Directive

text: of the European Parliament and of the Council , the ECB shall have all the powers of the competent and designated authorities under the applicable Union law to ensure compliance with requirements regarding robust governance arrangements with regard to significant institutions. These powers include assessing whether such arrangements would jeopardise the safety and the soundness of the credit institution in question, and whether the changes to its governance structure are consistent with the credit institution’s sound and prudent management and with SSM standards. 4.4 Moreover, the ECB welcomes the fact that Decree-Law explicitly confers upon the Banca d’Italia the capacity to limit the shareholders’ redemption rights should the exercise thereof cause the banks’ own funds to be reduced, as this explicit conferral will facilitate the exercise of the powers of the supervisory authority. In light of the competences conferred on the ECB by

text: Article 4(1)

text: (d) and the second subparagraph of

text: Article 9(1) of Regulation (EU) No 1024/2013

text: , i.e. to ensure compliance with own funds requirements, the ECB notes that, for significant institutions, it is for the ECB alone to assess in each case whether such limitation of the shareholders’ redemption rights is necessary. Finally, it is understood that the Decree-Law is without prejudice to other supervisory,

text: enforcement and sanctioning powers conferred on the ECB. This does not prejudice the Banca d’Italia’s regulatory powers under the Decree-Law. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 25 March 2015. [signed]

text: The President of the ECB

text: Mario DRAGHI


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

text: FEK A 228/31.12.2013.

text: See paragraph 2.4 of ECB opinion

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

text: The Eurogroup agreement of 20 February 2015 includes the following commitment: ‘The Greek authorities commit to refrain from any rollback of measures and unilateral changes to the policies and structural reforms that would negatively impact fiscal targets, economic recovery or financial stability, as assessed by the institutions.’

text: See paragraphs 1.2 and 3.3 of ECB opinion

text: on new general measures stemming from the Supreme Court’s decision on consumer loancontracts.

title: Opinion of the European Central Bank of 10 April 2015 on the prohibition of the auction of primary residences (CON/2015/14)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 10 April 2015 on the prohibition of the auction of primary residences (

text: ) Introduction and legal basis

text: On 4 March 2015 the European Central Bank (ECB) received a request from the Greek Ministry of Economy, Infrastructure, Maritime Affairs and Tourism for an opinion on a draft law introducing provisions for suspending auctions of the primary residences of eligible debtors (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 sixth indent of

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

text: , 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: The stated purpose of the draft law is to tackle the current humanitarian crisis in Greece by protecting eligible debtors from the auction of their primary residences. Guarantors of eligible debtors are also granted protection from the auction of their property. Under the draft law, for a period of two months from the publication of the law or from the service of a notification for execution, debtors may establish that they are eligible for protection. The ECB understands that the protection offered under the draft law is limited to the prohibition of auctions, without impeding the foreclosure process for the protected properties. Under the draft law, the auction by banks of primary residences, the objective value, for taxation purposes, of which does not exceed EUR 300 000, is prohibited. This prohibition will apply until 31 December 2015. In order to be eligible for protection, debtors must fulfil, notably, the following criteria: (a) their net annual income must not exceed EUR 50 000; and (b) the total value of their movable and immovable assets must not exceed EUR 500 000, of which the total amount of deposits and other movable assets in Greece and abroad on 20 November 2013 must not exceed EUR 30 000 (periodical benefits from insurance and pension schemes are excluded). During the prohibition period beneficiary debtors with an annual household income of up to EUR 35 000 are obliged to pay to the creditor a monthly instalment equal to 10% of their net monthly income. If the annual family income exceeds the threshold of EUR 35 000 the debtors are obliged to pay to the creditor a monthly instalment equal to 10%

text: up to the threshold of EUR 35 000 and 20% on the incremental income above that threshold. More vulnerable categories of debtors are granted protection under more favourable conditions. The protection afforded by the draft law is subject to compliance by debtors with the duty to disclose their property and account transactions. Furthermore, if a debtor does not comply with the obligation to pay the envisaged instalments for six consecutive months, the protection will be suspended.

text: 2. General observations

text: 2.1 The ECB understands that the draft law aims at reintroducing the prohibition on auctions of the primary residences of eligible debtors following the expiration of the pre-existing framework of Law 4224/2013 at the end of 2014. The ECB notes that Law 4224/2013 was adopted in December 2013 as a temporary scheme offering protection to eligible households from auctions of primary residences. The ECB notes that, in comparison with Law 4224/2013, the draft law sets out significantly broader eligibility criteria in terms of the value of the protected property, the annual household income, the value of immovable and movable assets and the amount of deposits. Under Law 4224/2013, which already provided broad protection clearly going beyond the most vulnerable households, the protection from auctions was granted provided, inter alia, that: (i) the objective value, for taxation purposes, of the primary residence did not exceed EUR 200 000, whereas the draft law sets a threshold of EUR 300 000; (ii) the debtor’s annual household income did not exceed EUR 35 000, whereas the draft law sets a threshold of EUR 50 000; (iii) the value of the debtors’ movable and immovable property did not exceed EUR 270 000, whereas the draft law sets a threshold of EUR 500 000; and (iv) the total value of deposits and other movable assets in Greece and abroad on 20 November 2013 must not exceed EUR 15 000, whereas the draft law sets a threshold of EUR 30 000. Law 4224/2013 was adopted following the expiration of the broadbased moratorium on auctions of primary residences that was in force from September 2010 until the end of December 2013 (the ‘broad-based moratorium’).

text: 2.2 The ECB notes that the broad-based moratorium has had an adverse impact on the payment culture in Greece and was also one of the major impediments to the effective working out and resolution of the very high amount of non-performing loans (NPLs) of Greek banks. If banks are deprived of efficient tools to work out NPLs in an effective manner this could result in unnecessarily high levels of NPLs and private sector debt, which in turn have an adverse impact on financial stability. At the same time, high levels of debt also negatively affect household expenditure plans, contributing to dampening of demand for new credit and overall economic activity.

text: 2.3 Broad-based prohibitions on the auction of primary residences, which are not well-targeted at a relatively narrow group of vulnerable debtors in real need of protection, are not an appropriate means of tackling a high volume of distressed debt, as they create moral hazard and undermine future credit supply. It is likely that the prohibitions contained in the draft law will incentivize debtors

text: that are not in real need of protection to stop meeting their obligations or reduce them significantly even if they have the means to meet them in full. Banks which anticipate the negative impact these prohibitions could have on the payment culture are likely to provide less credit and ask for higher interest rates, which would subsequently undermine growth and job creation. As indicated, measures like a prohibition on auctions should be carefully targeted at vulnerable households and accompanied by further effective safeguards to prevent strategic defaults and avoid a negative impact on future credit growth. In the absence of the above conditions, the soundness of credit institutions may be adversely affected, as impairments may remain sustained or even increase due to the lack of sufficient incentives for repayment, thereby posing risks to financial stability with possible adverse spill over effects on the economy. 2.4 Moreover, this insufficiently targeted prohibition on auctions is also likely to be perceived as unfair from a social perspective. The tackling of the humanitarian crisis, the stated purpose of the draft law, is something for which the ECB, like the Institutions, certainly has understanding. The development of a social safety net would be a preferable solution for tackling this issue as it would be more effective and not trigger the abovementioned adverse effects. Prohibitions on auctions, well-targeted at vulnerable households, could, under certain conditions limiting such adverse effects, be introduced in order to accompany the development of the social safety net. Like the Institutions, the ECB stands ready to offer constructive advice with a view to achieving these objectives. Also, as indicated in Section 3, other reforms, when successfully completed, will contribute towards providing more solid ground in the relations between creditors and debtors.

text: 3. Impact of the draft law on effective debt resolution processes and financial stability

text: 3.1 As indicated, the ECB notes that the draft law grants protection from the auction of primary residences to a very wide group of debtors who have a net annual income of up to EUR 50 000 and a total value of movable and immovable assets not exceeding EUR 500 000. Thus, in practical terms, the draft law materially reinstates the broad-based moratorium. The very broad scope of eligible debtors, which goes beyond the protection of vulnerable and low-income debtors, may create moral hazard and could lead to strategic defaults, further undermining the payment culture and future credit growth, as explained above. 3.2 The repeated extension of broad-based prohibitions on auctions for primary residences does not constitute a sustainable solution for addressing the high level of NPLs in the Greek financial sector. First, it minimises incentives for debtors to cooperate with creditors in restructuring NPLs through efficient processes that take into account the debtor’s capacity to repay. Second, the draft law could undermine the effectiveness of recent reforms that have been implemented in Greece with a view to enhancing corporate and personal debt resolution frameworks. Such recent reforms include notably the establishment of a Government Council for the Management of Private Debt, the adoption of a code of conduct to regulate banks’ engagement with debtors, the establishment of an out-of-court debt restructuring framework to facilitate the early rehabilitation of viable firms that are suffering with debt, and the adoption of definitions of a cooperative borrower and reasonable living expenses for use in debt workouts.

text: 3.3 The effective workout and resolution of NPLs is of the utmost importance for the economic recovery and has to be addressed by a comprehensive strategy and implementation plan that requires the coordinated efforts of various stakeholders . Building further on the recent reforms aimed at enhancing corporate and personal debt resolution frameworks, as explained above, and the commitments underpinning the Master Financial Assistance Facility Agreement (MFFA) between the European Financial Stability Facility and the Hellenic Republic , this strategy should focus on policies that can further contribute to sustainable debt resolution. These policies include, inter alia, the modernisation of the personal and corporate insolvency framework, the further improvement of the functioning of the judicial system, the introduction of debt counselling services and information campaigns, and the development of a social safety net for vulnerable home owners as a permanent solution. 3.4 The ECB suggests that the Greek authorities carry out a thorough impact analysis of the possible effects of the draft law including the solvency and liquidity position of affected creditors, as the measures included in the draft law could put a significant strain on them and the stability of the Greek financial sector as a whole . 3.5 The ECB notes that, in principle, the draft law does not seem consistent with the commitments of the Hellenic Republic underpinning the MFFA. As discussions on the path forward for the Hellenic Republic are currently underway between the Eurogroup and the Greek government with the support of the Institutions, a final evaluation of the draft law is expected to take place within this process. The Institutions will contribute to this evaluation.

text: Done at Frankfurt am Main, 10 April 2015.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: MNB Decree 14/2014 (V.19.) regulating credit institutions’ maturity mismatches in foreign currency positions and amending MNB Decree 43/2013 (XII. 29.) on the obligations of money and credit market institutions to report data to the central bank’s information system primarily to enable the Magyar Nemzeti Bank to carry out its supervisory duties.

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

text: See Opinion

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

text: The draft decree on mismatches in HUF positions defines the types of assets and liabilities which may be used to calculate the MFAR and sets a number of eligibility conditions.

text: For more details on these legislative measures see the following ECB Opinions:

text: and

title: Opinion of the European Central Bank of 21 May 2015 on regulating open positions in assets on the balance sheets of credit institutions (CON/2015/15)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 May 2015 on regulating open positions in assets on the balance sheets of credit institutions (

text: ) Introduction and legal basis

text: On 9 April 2015, the European Central Bank (ECB) received a request from the Magyar Nemzeti Bank (MNB) for an opinion on two draft decrees. The first draft decree amends MNB Decree 14/2014 to address maturity mismatches in credit institutions’ foreign currency positions (hereinafter the ‘draft decree on maturity mismatches in foreign currency positions’). The second defines the rules applicable to the denomination of credit institutions’ assets and liabilities. On 10 April 2015 the ECB received a further request from the MNB for an opinion on a draft decree regulating maturity mismatches in credit institutions’ Hungarian forint (HUF) positions. Given that the three draft decrees concern related issues, the ECB has adopted one single opinion. 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: , as the three draft decrees concern 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. Background information and the purpose of the draft decrees

text: 1.1 The ECB was consulted on MNB Decree 14/2014 in its draft form in 2014 and adopted Opinion

text: . As indicated, the draft decree on maturity mismatches in foreign currency positions amends MNB Decree 14/2014. By doing so, it aims to enhance the stability of the financial system by means of (a) derecognising long term (meaning those with a maturity greater than one year) net FX swaps against HUF as an accepted source of stable long-term funding, and (b) bringing forward the full implementation of the Foreign Funding Adequacy Ratio (FFAR) requirement by 15 months to 1 October 2015.

text: 1.2 The draft decree on denomination of credit institutions’ assets and liabilities, introduces a new macro-prudential tool, the foreign exchange coverage ratio (FECR), aimed at limiting the overall level of currency mismatches of credit institutions in Hungary. It sets a maximum absolute FECR of 15%. 1.3 The draft decree on maturity mismatches in HUF positions introduces the Mortgage Funding Adequacy Ratio (MFAR), which targets excessive maturity mismatches between mortgage loans denominated in HUF and their funding sources. The explanatory memorandum attached to this draft decree states that the conversion of foreign currency loans into HUF, which took place on 1 February 2015, resulted in ‘serious systemic HUF maturity mismatches’. The MFAR requires credit institutions’ share of HUF-denominated mortgage-backed liabilities to reach at least 15% of the total value of their residential mortgage loans by 1 July 2016 .

text: 2. General Observations

text: 2.1 Recent major legislative changes in Hungary have significantly weighed on the profitability of the banking sector with possible implications for its capital position. 2.2 The explanatory memoranda attached to the draft decrees state that the proposed measures are justified by those recent legislative changes and may be instrumental in addressing potential sources of systemic risk. The ECB emphasises the need for constant monitoring of the new measures and the required ratios. The ECB also recommends that the MNB consider preparing an impact assessment of the measures contained in the three draft decrees on the Hungarian banking sector as well as on its capital position. 2.3 In Opinion

text: the ECB noted that the provisions of MNB Decree 2014/14 regarding maturity mismatches in foreign currency positions would benefit from being aligned with the Net Stable Funding Ratio (NSFR) currently being developed by the Basel Committee on Banking Supervision (BCBS) under the Basel III framework. The ECB reiterates the need to align MNB Decree 2014/14 with the NSFR upon its finalisation by the BCBS and subsequent implementation in the European Union.

text: 3. Specific Observation

text: 3.1 As regards point 3(d) of Annex 1 of the draft decree on maturity mismatches in HUF positions, which prohibits a credit institution from taking into account liabilities recorded on the balance sheets of other members of the group when calculating the MFAR, the ECB notes the aim of this draft decree of ensuring that credit institutions’ external funding sources are more balanced. The ECB also takes note of point 4 of Annex 1 of this draft decree, which eases the conditions for certain assets to be accepted as stable long-term funding sources. The consulting authority should pay due attention to whether these measures provide for a level playing field for all market

text: participants, particularly as regards whether they are currently entitled to issue mortgage bonds or not. The timing of the introduction of these measures should also foster a level playing field. 3.2 The ECB understands that credit institutions which do not already operate mortgage units will need to rely on licensed market participants to fulfil the MFAR requirements set out in points 2(c) and (d) of Annex 1 of the draft decree on maturity mismatches in HUF positions, alternatively, they will have to set up a separate subsidiary for the issuance of mortgage bonds or mortgage backed securities acceptable for MFAR purposes. Against this background and with a view to ensuring a level playing field, the ECB underlines the importance of operating a smooth and efficient licensing mechanism in Hungary that will allow credit institutions to have equal access to the mortgage bond market or other forms of external funding, in order to ensure their ability to meet the MFAR requirements in the future.

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

text: Done at Frankfurt am Main, 21 May 2015.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: Council Decision 98/415/EC of 29 June 1998

text: Zakon o ukrepih Republike Slovenije za krepitev stabilnosti bank (ZUKSB) (Uradni list RS, Nos 105/2012, 63/13 – ZS-K and 23/14 – ZDIJZ-C). 3 Uredba o izvajanju ukrepov za krepitev stabilnosti bank (Uradni list RS, No 103/13). 4 See ECB Opinions

text: and

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

text: See second subparagraph 7 of the Opinion

text: . 6 See paragraph 6 of the ECB Opinion

text: and paragraph 7 of the ECB Opinion

text: . 7 See paragraphs 4.1, 4.3 and 4.4 of the ECB Opinion

text: . 8 See

text: Article 4(7)

text: Article 10

text: a(9) to (15) and Article 12(3) of the Law on bank stability, as amended by the draft law.

text: See the explanatory memorandum and

text: Article 10

text: a(15) of the Law on bank stability as amended by the draft law. 10 See paragraph 5.5 of ECB Opinion

text: and paragraph 5 of ECB Opinion

text: . 11 See Article 11(2) of the Law on bank stability as amended by the draft law. 12 I.e. in those companies, in which the BAMC already holds shares or against which the BAMC already has claims as a result of having received those claims and shares when their transfer to the BAMC was implemented as a stabilisation measure under the Law on bank stability, 13

text: Regulation (EU) 575/2013

text: of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending

text: Regulation (EU) No 648/2012

text: (OJ L 176, 27.6.2013, p. 1). 14 Directive

text: of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive

text: and repealing Directives

text: and

text: (OJ L 176, 27.6.2013, p. 338). 15 See

text: Article 10

text: a(5) of the Law on bank stability as amended by the draft law and the explanatory memorandum thereto. 16 See Article 11(9) of the Law on bank stability as renumbered by the draft law.

title: Opinion of the European Central Bank of 28 May 2015 on amendments to the legal framework governing the Slovenian Bank Asset Management Company (CON/2015/16)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 28 May 2015 on amendments to the legal framework governing the Slovenian Bank Asset Management Company (

text: ) Introduction and legal basis

text: On 24 April 2015 the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance for an opinion on a draft law amending the Law on Slovenia’s measures to strengthen bank stability (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 and sixth indents of

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

text: , as the draft law relates to Banka Slovenije 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.

text: 1. Purpose of the draft law

text: 1.1 The Law on Slovenia’s measures to strengthen bank stability (hereinafter the ʻLaw on bank stabilityʼ) entered into force in December 2012. With the objective to strengthen the stability of the Slovenian financial system, it provided for the establishment of the State-owned Bank Asset Management Company (BAMC) and a number of stabilisation measures including: (i) the transfer of banks’ impaired assets to the BAMC; (ii) the issuance of State guarantees for the liabilities of the BAMC; and (iii) the recapitalisation of banks by the State. Detailed rules implementing the Law on bank stability were laid down in secondary legislation, specifically the Regulation on the implementation of measures to strengthen bank stability (hereinafter the ʻRegulationʼ). Both legislative acts were the subject of consultations with the ECB . 1.2 The stabilisation measures provided for in the Law on bank stability have been implemented in certain distressed Slovenian banks. According to the explanatory memorandum to the draft law, although the impaired assets have been removed from the balance sheets of these banks, and

text: they have been recapitalised, this is not enough to ensure that they operate successfully as, to provide credit, banks also need restructured companies with sound business plans. It is therefore important to actively and comprehensively pursue the restructuring of companies and the BAMC plays an important role in this process. 1.3 In order to further improve the efficient functioning of the BAMC in that role, the draft law introduces a number of adjustments and amendments to the Law on bank stability, in particular to better clarify the legal framework of the BAMC and of its activities. The draft law specifies more clearly the objectives of the Law on bank stability, in particular the role of the BAMC in corporate restructuring. The draft law sets out the criteria under which the BAMC may engage in the restructuring of companies of which it is a shareholder or creditor, and allows the BAMC to carry out any legal transaction necessary for the successful restructuring of such companies, including providing loans to its debtors or guaranteeing its debtors’ liabilities. The draft law sets out the conditions under which the BAMC may establish, and purchase new shares in, companies, including special purpose vehicles, also with a view to achieving a more economical or specialised management and disposal of the BAMC’s assets. In addition, the draft law provides that the BAMC may require a bank, which was previously subject to stabilisation measures under the Law on bank stability, to transfer to the BAMC claims against or shares in a company in which the BAMC already holds shares or against which the BAMC already has claims, in exchange for cash compensation equal to the market value of the assets being acquired. The draft law also extends the BAMC’s mandate from 2017 until 2022, with the aim of maximising returns on public funds. 1.4 Some of the proposed amendments under the draft law incorporate legislative provisions which were originally contained in the Regulation, which is secondary legislation, into the Law on bank stability, the national primary legislation. These proposed amendments refer, in particular, to the BAMC’s borrowing, its debt management, limitations on the payment of its dividends and the provision of information on the BAMC’s activities to the ECB. 1.5 The draft law also includes an explicit requirement that the BAMC operates in a transparent, economical, efficient and effective manner, and contains further provisions to this end. In addition, it aims to ensure the independence of the BAMC in managing its assets, inter alia, by clarifying that the supervisory competences of the Ministry of Finance encompass the lawfulness of the BAMC’s operations. For this purpose the Ministry of Finance may issue guidelines to the BAMC to be followed, which must, however, be general and may not constitute instructions for action in individual cases. The draft law also explicitly clarifies that the responsibility for the management of the BAMC rests with its executive directors. 1.6 Additionally, the draft law removes the liability of the State for all liabilities of the BAMC. This amendment is not in any way related to, and does not affect, the guarantees that the State issues for the BAMC’s bonds in the context of a stabilisation measure provided for by the Law on bank stability. 1.7 The draft law also contains amendments to other provisions of the Law on bank stability. Among others, it removes the requirement for the BAMC to set up a ‘fund’ without legal personality, which proved to be an obsolete requirement and leaves creating such a fund optionally. The draft law also provides for certain exemptions for the BAMC in the application of various national laws.

text: Finally, the draft law clarifies the consultative role of Banka Slovenije in the adoption of the rules implementing the Law on bank stability. Accordingly, when Banka Slovenije is to be consulted in the preparation of acts implementing the Law on bank stability, the Ministry of Finance shall explain any deviation from Banka Slovenije’s opinion.

text: 2. General observations

text: The ECB recognises the effort to enhance the role of the BAMC in facilitating the restructuring of companies. This should ultimately help improve access to credit for the corporate sector, facilitate lending to it by the banking sector, as well as support the recovery and functioning of the real economy. The ECB also notes and supports the effort to ensure that the BAMC operates in a transparent, economical, efficient and effective manner, with a view to maximising the recovery value of assets acquired and, thus, minimising the costs borne by the public. As noted in previous Opinions , conforming with a comprehensive and transparent asset management and divestiture strategy, observing internationally recognised best practice as regards corporate governance, including maintaining independent management of the BAMC, is important for achieving the targets the BAMC has been set.

text: 3. Specific observations

text: 3.1. Provision of information to the ECB and Banka Slovenije, BAMC’s cash protocol and the eligibility

text: of bonds in Eurosystem operations

text: 3.1.1 In its previous Opinions the ECB recommended, in the context of a financial plan, that the necessary legal arrangements are provided to ensure, in a transparent manner, the timely redemption of State-guaranteed BAMC bonds and other financial instruments or credit claims of transferring banks (hereinafter the ‘cash protocol’) . This recommendation has been followed by the Slovenian authorities in the Regulation and the ECB notes that several of its observations are reflected in the final text thereof. The ECB further notes that such final text also included a new provision according to which the BAMC may share with the ECB the information on its operations. 3.1.2 The draft law incorporates certain provisions from the Regulation that constitute the framework for the BAMC’s cash protocol and permit the BAMC to provide information on its operations, within their respective areas of competence, to the ECB and Banka Slovenije . The ECB understands that these proposed amendments are aimed at increasing legal certainty and that the provisions regarding the detailed elements of the cash protocol in the Regulation remain unchanged in substance. 3.1.3 The draft law infers that the cash protocol arrangements for the BAMC and the provision of information on its operations to the ECB and Banka Slovenije are aimed at ensuring that the

text: BAMC’s State-guaranteed bonds qualify as eligible collateral for ECB monetary policy operations . The ECB reiterates that it remains the prerogative of the Eurosystem to decide, on the basis of any information it may consider relevant within the legal framework laid down in and according to Article 18.1 of the Statute of the European System of Central Banks and of the European Central Bank, whether the relevant financial instruments and credit claims fulfil the criteria of its collateral framework . 3.2 Transfer of assets from banks at market value, granting loans and providing guarantees by the

text: BAMC

text: 3.2.1 The ECB understands that the purpose of the option under the draft law for the BAMC to require the transfer of certain assets from banks is to enhance its ability to concentrate claims and equity participations in particular companies within the BAMC in order to strengthen the BAMC’s position relative to other creditors and/or shareholders in those companies, and with a view solely to facilitating the restructuring processes of those companies. In this regard the ECB notes that the BAMC should not require such transfers where it could lead to non-compliance by the original asset holder with prudential requirements as laid down in

text: Regulation (EU) 575/2013

text: of the European Parliament and of the Council and Directive

text: of the European Parliament and the Council . In this regard the ECB recommends implementing a provision requiring the consultation of the competent supervisory authority prior to a request for the transfer of assets. The ECB further notes that any transfer of assets to the BAMC must comply with EU State aid rules and the applicable valuation standards in determining the market value of the asset. In this context, the determination of the market value in accordance with the International Valuation Standards by an independent appraiser is important. 3.2.2 According to the draft law, the BAMC may grant loans and provide guarantees to debtors in whose restructuring it has participated . In this context, the ECB notes that the BAMC is not subject to prudential regulation or supervision, nor does it aim to perform any activities which would require a licence for the provision of banking services within Slovenia or abroad . However, as the BAMC may, by requesting assets, granting loans and providing guarantees, be exposed to significant credit risks, the ECB recommends that the draft law provides safeguards preventing the BAMC from incurring losses due to an inappropriate management of that credit risk. In this regard, the ECB expects the BAMC to grant loans and provide guarantees to its debtors only on the basis of

text: sound economic criteria and a rigorous assessment of the borrowers’ creditworthiness, avoiding any distortion to markets. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 28 May 2015. [signed]

text: The President of the ECB

text: Mario DRAGHI