text: OJ L 189, 3.7.1998, p. 42. 3 Sections 9 and 10 of the draft law.

text: Financial Statement of the Minister for Finance, 7 April 2009, available on the Department of Finance’s website at: www.budget.gov.ie. 5 Section 68(2) and (3) of the draft law. 6 Statement by Minister for Finance on NAMA legislation draft paper, 30 July 2009, available on the Department of Finance’s website at www.finance.gov.ie. 7 Section 53(1) of the draft law. 8 Section 55(1) of the draft law. 9 Section 56(1) of the draft law. 10 Section 56(4) and (5) of the draft law.

text: Section 58(3) of the draft law. 17 Section 58(4), (5) and (6) of the draft law. 18 Sections 72, 76 and 96 to 104 of the draft law. 19 Sections 101 and 102 of the draft law. 20 Section 102(3) of the draft law. 21 Section 102(4) of the draft law. 23 Section 176 of the draft law. 24 The NAMA Board will comprise seven members appointed by the Minister, the Chief Executive Officer (CEO) of the Irish Government’s debt management agency, the National Treasury Management Agency (NTMA), which will provide resources and staff to NAMA, and the CEO of NAMA, who will be appointed by the Minister after consultation with the NAMA Chairperson and the NTMA CEO. Sections 17 to 41 of the draft law.

text: Sections 13 and 14 of the draft law. 27 Section 9(3) of the draft law. 29 See, for example, Opinion

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

text: Guiding Principles for Bank Asset Support Schemes, 25 February 2009, available on the ECB’s website at www.ecb.europa.eu. 31 See, for example, Opinion

text: and Opinion CON2008/60.

text: Opening Statement to Joint Committee on Finance and the Public Sector by the Minister for Finance, 26 May 2009, available on the Department of Finance’s website at www.finance.gov.ie. 33 Opening Statement to Joint Committee on Finance and the Public Sector by the Minister for Finance, 26 May 2009, available on the Department of Finance’s website at www.finance.gov.ie.

title: Opinion of the European Central Bank of 31 August 2009 on the establishment of the National Asset Management Agency (CON/2009/68)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 31 August 2009 on the establishment of the National Asset Management Agency (

text: ) Introduction and legal basis

text: On 30 July 2009 the European Central Bank (ECB) received a request from the Irish Minister for Finance (hereinafter the ‘Minister’) for an opinion on the National Asset Management Agency Bill 2009 (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third and sixth indents of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to the Central Bank and Financial Services Authority of Ireland (CBFSAI) and 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 purposes of the draft law are, inter alia, to remove uncertainty about the valuation and location of certain assets of credit institutions of systemic importance to the Irish economy, to facilitate their restructuring, to restore confidence in the banking sector, to facilitate the availability of credit in the Irish financial markets, and to address the serious threat to the Irish economy and the stability of credit institutions in Ireland generally . To this end, the draft law provides for the establishment of a corporate body, the National Asset Management Agency (NAMA), to acquire eligible bank assets from participating institutions, expeditiously deal with the assets acquired by it and protect or otherwise enhance the long-term economic value of those assets, in the interests of the Irish State . According to the Minister, the potential maximum book value of loans that will be transferred to the NAMA is estimated to be in the region of EUR 80 to EUR 90 billion, although the amount paid by NAMA will be significantly less than this to reflect the loss in value of the

text: assets . Regarding the payment for bank assets, NAMA or the NAMA group entity which acquires the bank asset concerned will transfer or issue to the participating institution debt securities issued by the Minister, NAMA or the relevant NAMA group entity equal to the acquisition value of the bank asset . As noted by the Minister, replacing property related loans with Irish Government bonds will strengthen the balance sheets of the banks and this will increase their capacity to access liquidity in the financial markets and, if necessary, through Eurosystem liquidity operations, making them better able to lend and support the Irish economy . 1.2 Under the draft law, a credit institution may apply to the Minister, within 28 days (or such longer period that the Minister prescribes) after the establishment date for the scheme, for it and its subsidiaries to be designated as participating institutions . The Minister, after consultation with the Governor of the CBFSAI and the Irish Financial Services Regulatory Authority (hereinafter the ‘Regulatory Authority’), may designate a credit institution as a participating institution if satisfied that: (a) the credit institution is systemically important to the financial system in Ireland; and (b) the acquisition of eligible bank assets from the credit institution is necessary to achieve the purposes of the draft law, having regard to (i) support available to, or received by, the credit institution from the State, any other Member State or a member of the group of the credit institution, (ii) the financial situation of the credit institution, and (iii) the resources available to the Minister . 1.3 Under the draft law, the Minister may, after consultation with NAMA, the Governor of the CBFSAI and the Regulatory Authority, prescribe classes of bank asset as eligible bank assets, including: (a) credit facilities provided by a participating institution for the purpose of purchasing, exploiting or developing development land, or where the security connected with the credit facility is development land or an interest in a company engaged in purchasing, exploiting or developing development land; (b) other credit facilities whose total indebtedness is such that, in the Minister’s opinion, acquisition by NAMA is necessary for the purposes of the draft law; and (c) any other class of bank asset the acquisition of which, in the Minister’s opinion, is necessary for the purposes of the draft law . A class of bank asset so prescribed by the Minister will not include any bank asset entered on a participating institution’s balance sheet after 31 December 2008 (although bank assets that are renegotiated, restructured or refinanced after that date may be included provided they were entered on the balance sheet on or before 31 December 2008) . Eligible assets may include foreign assets, meaning bank assets governed in whole or in part by the law of a State or territory other than Ireland .

text: 1.4 Under the draft law, the acquisition value of a bank asset is its long-term economic value as determined by NAMA, meaning the value that it can reasonably be expected to attain in a stable financial system when current crisis conditions are ameliorated . NAMA will determine the longterm economic value of a bank asset by reference to: (a) the current market value of the property comprised in the security for the credit facility; (b) the current market value of the bank asset by reference to market rates and accepted market methodology; and (c) the long-term economic value of the property, meaning the value that the property can reasonably be expected to attain in a stable financial system when current crisis conditions are ameliorated and in which a future price or yield of the asset is consistent with reasonable expectations having regard to the long-term historical average . 1.5 In determining the acquisition value of a bank asset, NAMA will have regard to: (a) any value that the participating institution concerned submits as being, in its opinion, the current market value of the property comprised in the security for the credit facility; (b) the acquisition value already determined in accordance with the valuation methodology of another similar bank asset; (c) the credit worthiness of the debtor or obligor concerned; (d) the performance history of the debtor or obligor in respect of that asset; and (e) any reports of an expert furnished to NAMA concerning factors relevant to the determination of the value of property or property of a particular type or in specific locations or with specific features . 1.6 The Minister may make regulations providing for adjustment factors to be taken into account in determining the long-term economic value of a bank asset and the property comprised in the security for a credit facility, having regard to: (a) Community State aid rules and any relevant Commission guidance; (b) in relation to determining the long-term economic value of the property, the extent to which the price or yield of the asset has deviated from the long-term historical average, supply and demand projections by reference to the type of asset and its location, macroeconomic projections for growth in GDP and inflation, demographic projections, land and zoning considerations, and future transport planning; (c) in relation to the long-term economic value of bank assets, the net present value of the anticipated income stream associated with the loan asset, current and projected vacancy rates for rental property, loan margins, an appropriate discount to reflect NAMA’s cost of funds plus a margin that represents an adequate remuneration to the State that takes account of the risk in relation to the bank assets acquired by NAMA, the mark-tomarket value of any derivative contracts associated with the bank asset, any ancillary security (e.g., personal guarantees, corporate assets), fees reflecting the costs of loan operation, maintenance and enforcement; and (d) any other matter that the Minister considers relevant .

text: 1.7 Under the draft law, NAMA will be required to determine the long-term economic value of a bank asset in accordance with, inter alia, Community State aid rules . In this respect, NAMA may, if it considers it appropriate after consultation with the Minister, and subject to any regulations made by the Minister for this purpose, having regard to, inter alia, Community State aid rules, determine that the acquisition value to be assigned to particular bank assets or class of bank assets will be their current market value or a greater value (not exceeding their long-term economic value) that NAMA considers appropriate in the circumstances . 1.8 The draft law contains detailed provisions on adjudication by a valuation panel having relevant expertise on disputes referred to it by NAMA relating to the eligibility of assets for acquisition by NAMA and the total portfolio acquisition value determined by NAMA . Regarding disputes over total portfolio acquisition values, the valuation panel advises the Minister as to the correctness of NAMA’s valuation having regard to current market values; on this basis the Minister may either confirm the advice of the valuation panel or remit the matter to the valuation panel for reconsideration . Where the current market value of the portfolio concerned is not greater than the acquisition value of the portfolio, no adjustment will be made to the total portfolio acquisition value regardless of the basis on which that value was determined . Subject to this, where the Minister’s determination is that the total portfolio acquisition value of the acquired portfolio as determined by NAMA should be increased, the Minister may direct NAMA to compensate the participating institution . 1.9 The draft law provides that the Regulatory Authority may, with the Minister’s approval, give directions to participating institutions in order to achieve the purposes of the draft law, to restrict balance sheet growth, restrict the institution’s ability to take over other credit institutions, require balance sheet reduction or restrict or require consolidation and merger of participating institutions . The Minister, after consultation with the Governor of the CBFSAI and the Regulatory Authority, may direct a participating institution to draw up, submit or amend, within a specified period, a restructuring plan or a business plan . 1.10 Regarding NAMA’s administrative functioning, under the draft law there will be a Board of NAMA . The Minister may advance to NAMA (or a NAMA group entity) such sums of money as are necessary for performance of its functions, and NAMA (or a NAMA group entity) may, with

text: the Minister’s approval, borrow, with or without the Minister’s guarantee, such sums as it determines to be necessary for the performance of its functions (including debt securities borrowed from the Minister or NTMA and debt securities issued by NAMA or a NAMA group entity to provide consideration for the acquisition of bank assets) . The Minister, after consultation with the Governor of the CBFSAI, may issue written guidelines to NAMA in connection with any of its functions under the draft law, and may give binding written directions to NAMA concerning the achievement of the draft law’s purposes . NAMA is otherwise stated to be independent in the performance of its functions . In general, neither NAMA nor any NAMA group entity will be taken to be providing a service or carrying out an activity which would require it to be authorised or regulated by the CBFSAI .

text: 2. General observations

text: 2.1 In line with its previous opinions, the ECB emphasises that, when adopting measures to deal with the financial crisis, Member States should act in a coordinated manner in order to avoid significant differences in national implementation having a counter-productive effect, which may involve distortions in global banking markets. Moreover, it is crucial to ensure consistency with the management of liquidity and with the operational framework of the Eurosystem . Against this background, any measure implemented in an individual Member State should ensure a sufficiently level playing field within the euro area, which is of key importance to maintain the integrity of the euro area banking system. 2.2 It is understood that NAMA will not purchase any assets eligible as collateral in Eurosystem operations. NAMA may of course purchase assets that could alternatively be used as underlying assets for Eurosystem eligible asset-backed securities. However, as NAMA will finance asset acquisitions by transferring newly-issued bonds issued or guaranteed by the Irish State to participating institutions, it may be expected that NAMA’s activities will increase the amount of Eurosystem eligible collateral available to Eurosystem counterparties. Irish Eurosystem counterparties may therefore find it easier to raise liquidity in central bank operations. Moreover, as government bonds are generally accepted as collateral in interbank repo markets, Irish banks may be in a better position to borrow in the market. Accordingly, the NAMA scheme may contribute to improve the funding situation of Irish banks. 2.3 Regarding the features and implementation modalities of asset support schemes, the Eurosystem has developed a number of guiding principles aimed at attaining the following objectives: (i) safeguarding financial stability and restoring the provision of credit to the private sector while

text: limiting moral hazard; (ii) ensuring that a level playing field within the single market is maintained to the maximum extent possible; and (iii) containing the impact of possible asset support measures on public finances. 2.4 The Eurosystem has identified seven guiding principles which can be seen as sufficiently broad to apply to all schemes falling under the wide category of asset support measures . The NAMA asset removal scheme is broadly consistent with these principles. 2.4.1 First, participation in the NAMA scheme is voluntary, and the eligibility criteria have been carefully crafted so as to ensure that institutions with the largest concentration of impaired assets will be given priority, having due regard to the systemic relevance of the institutions concerned, as well as the support available to these institutions from other sources and the financial situation of individual institutions. 2.4.2 Second, while eligible assets are largely focused on development loans arising out of projects both within and outside Ireland, the draft law contains the necessary degree of flexibility to allow the classes of assets eligible for acquisition by NAMA to be expanded, thereby ensuring that the definition of eligible assets is, in legal terms, kept relatively broad. Also, by excluding assets entering institutions’ balance sheets after 31 December 2008, the NAMA asset removal scheme does not provide banks with wrong incentives, encouraging them to originate assets following the announcement of the scheme. 2.4.3 Third, regarding the valuation of eligible assets, asset-specific haircuts on the eligible assets’ book values appear to be contemplated, and independent third-party expert opinions play a role in the valuation process for the NAMA scheme. The detailed provisions of the draft law regarding valuation issues reflect the fact that the pricing of eligible assets is a crucial and complex issue that is likely to determine the overall success of the NAMA scheme. Although the measures contemplated by the draft law should restore confidence in the Irish banking system, the ECB considers it important, in line with previous opinions that the pricing of acquired assets is mostly risk-based and determined by market conditions . The preference expressed in the draft law for the long-term economic value of assets, rather than current market values, requires careful consideration in this context. In particular, it should be ensured that the assumptions to determine the long-term economic value of bank assets will not involve undue premium payments to the participating financial institutions to avoid creating inappropriate incentives from their side as regards the use of the scheme. 2.4.4 Fourth, regarding risk-sharing between NAMA and the participating institutions, the ECB understands that in the longer-term, if NAMA were to fall short of recouping all of the costs of the

text: scheme, the Irish government intends that a levy should be applied to recoup any shortfall . The ECB considers that a guiding principle for the scheme should be that there is an adequate degree of risk sharing in order to limit the cost to the government, to provide the right incentives and to maintain a level playing field across the participating institutions. 2.4.5 Fifth, the NAMA asset removal scheme appears to be constructed so as to have a sufficiently long duration to address the significant challenges presented by such a scheme. This is counter-balanced by the imposition of a 28-day extendible deadline within which credit institutions must apply to participate in the scheme, which should support the need for the scheme to be temporary in nature, and the need for harmonisation across the EU, and in particular within the euro area, which is of crucial importance. 2.4.6 Sixth, the ECB notes that the Irish Government shares the guiding principle that the preservation of private ownership is preferable to nationalisation . If the NAMA scheme will be successful in this respect, this strategy should help to avoid, in the short-term, the high costs involved in nationalisations and, in the medium-term, the risk of banks’ objectives being diverted from profit maximisation to alternative goals that might distort the market structure and jeopardise the level playing field. 2.4.7 Seventh, given that an ultimate aim of any asset removal scheme is to help banks restore an adequate flow of lending into the economy and, to the extent possible, avoid large scale and expensive direct government ownership, it will be necessary to carefully monitor the institutions participating in the NAMA scheme to ensure that their self-interest does not cause them to focus on preserving and rebuilding their own equity, instead of lending into the economy. 2.5 The ECB welcomes that the NAMA scheme has been designed to comply with Community State aid rules.

text: 3. Specific comments

text: 3.1 Role of the CBFSAI The ECB understands that the role of the Governor of the CBFSAI will be exclusively limited to providing advice and opinions through consultations on the activation and operation of the scheme and the restructuring and business plans of participating institutions. The provisions of the draft law requiring the Governor of the CBFSAI to be consulted with respect to various matters should reinforce the Governor’s financial stability responsibilities under Irish law. While the ECB appreciates that the provisions of the draft law recognise the CBFSAI’s expertise in this field, the ECB emphasises that functions to be performed by the CBFSAI for the benefit of the scheme must

text: be conducted in a manner that is fully compatible with the CBFSAI’s institutional and financial independence, in order to safeguard the proper performance of its existing tasks under the Treaty and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’). In this regard, the ECB welcomes that the provision of the draft law authorising the Governor to disclose to the Minister and the Regulatory Authority any information that the Governor receives concerning a participating institution or any of its subsidiaries is subject to the requirements of the Treaties governing the European Communities and the Statute of the ESCB . The ECB also welcomes the clarification that nothing in the draft law prevents the Governor or the Regulatory Authority from performing their functions in relation to any credit institution or other person authorised or regulated in the State, or affects any obligation arising under the Treaties governing the European Communities . The specific manner in which this latter provision is formulated could be helpfully aligned with similar provisions of Irish legislation adopted during the current financial crisis which are designed to protect the independent performance by the CBFSAI of the tasks and duties conferred upon the CBFSAI by the Treaty, and which also make explicit reference to the obligations arising under the provisions of the ESCB Statute annexed to the Treaty . 3.2 Prohibition of monetary financing It is understood that the draft law will comply fully with the prohibition of monetary financing laid down in Article 101(1) of the Treaty, read in conjunction with

text: Articles 104

text: [now 101] and 104b(1) [now 103(1)] of the Treaty (‘

text: Council Regulation (EC) No 3603/93

text: ’) . In this respect, NAMA will qualify as a ‘public undertaking’ within the meaning of Article 101(1) of the Treaty and

text: Article 8 of Council Regulation (EC) No 3603/93

text: as NAMA is to be established under the draft law as a ‘public undertaking’ over which the Irish State may exercise a dominant influence by virtue of its ownership of it, its financial participation therein and the rules which govern it. In particular, the Minister advances to NAMA the funds that are necessary for performance of its functions, and appoints all the members of the NAMA Board. Moreover, the Minister (after consultation with the CBFSAI Governor, acting independently) will have the power to issue written guidelines to NAMA in connection with its functions, and may give binding written directions to NAMA concerning the achievement of NAMA’s purposes. NAMA’s assets will thus be under the effective control of the Irish State. Therefore, overdraft facilities or any other type of credit facility with the CBFSAI in favour of NAMA, as well as the direct purchase from NAMA by ESCB central banks of debt instruments, will not be possible, in view of the prohibition of monetary financing under Article 101 of the Treaty.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 31 August 2009. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: Presidential Decree No 398 of 30 December 2003 (Gazzetta Ufficiale No 57, 9.3.2004, Supplemento ordinario).

text: See Opinions

text: and

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

text: Law No 244 of 24 December 2007 (Gazzetta Ufficiale No 300, 28.12.2007, Supplemento ordinario).

text: At the present time, the draft ministerial decree has not been adopted.

text: See paragraph 2.1 of Opinion

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 1 September 2009 on the remuneration of the Treasury availability account held with the Banca d'Italia (CON/2009/69)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 1 September 2009 on the remuneration of the Treasury availability account held with the Banca d'Italia (

text: ) Introduction and legal basis

type: rubrik

text: On 30 July 2007 the European Central Bank (ECB) received a request from the Italian Ministry of Economic Affairs and Finance (hereinafter the ‘MEF’) for an opinion on a draft law on accounting and public finance (hereinafter the ‘draft law’) and specifically on Article 48 thereof (hereinafter the ‘draft article’). 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 the Banca d’Italia. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion. The draft law was approved on 24 June 2009 by the Senate of the Republic and transmitted to the Chamber of Deputies for its approval and adoption. The subject of this opinion is the version of Article 48 of the draft law that the consulting authority sent to the ECB with its consultation request.

type: stycke

text: 1. Purpose of the draft article

text: 1.1 The draft article contains provisions implementing the structural reform, which was initiated at the end of 2007, of the Treasury availability accounts held with the Banca d’Italia, regulated by the Law on consolidation of legislative provisions and regulations on public debt (hereinafter the ‘2003 Consolidated Law’) . The draft article amends once more Article 5(5) of the 2003 Consolidated Law, which relates to the conditions under which the availability account is held and, in particular, its remuneration regime. According to the draft article, the conditions concerning the maintenance and remuneration of the account will be established by an agreement between the MEF and the Banca d’Italia and will be linked to market parameters. The draft article also amends provisions concerning the remuneration of other accounts held by the Treasury with the Banca d’Italia and lays down transitional provisions for the period preceding the entry into force of the new regime.

text: Furthermore, it provides that accounting methods and criteria concerning the transactions connected to the abovementioned accounts will be determined by ministerial decree. 1.2 The ECB has already been consulted twice by the MEF on draft legislative provisions related to Article 5(5) of the 2003 Consolidated Law, which were aimed at initiating and improving the reform of the maintenance and remuneration regime of the Treasury availability account held with the Banca d’Italia . The first consultation concerned amendments to

text: Article 5(5)

text: by the then draft Article 2(39) of the 2008 Budget Law ; the second consultation request was received in February 2009 and referred to a draft ministerial decree containing amendments to the OPTES procedures . On these occasions, the ECB analysed the draft provisions intended to amend

text: Article 5(5)

text: from the point of view of compliance with the prohibition of monetary financing and with regard to implementation of monetary policy. It generally welcomed the efforts made to address the problematic provisions of the legislation in force, but also called on the Italian Government to undertake further legislative change to complete the structural reform of the availability account in a way that would meet Treaty requirements regarding the prohibition of monetary financing.

text: 2. General observations

text: Compliance of the legislation with the prohibition of monetary financing 2.1 The ECB welcomes the fact that paragraph 1 of the draft article amends Article 5(5) of the 2003 Consolidated Law by making reference to an agreement between the MEF and the Banca d’Italia, to be concluded within three months of the entry into force of the draft law, under which the conditions of maintenance and remuneration of the availability account are to be established. Most importantly, the remuneration rate that the Banca d’Italia will pay is linked to market parameters. 2.2 The ECB had already identified in its 2008 opinion that the legislation then in force, regulating the account held by the Treasury with the Banca d’Italia, did not contain provisions on the maturity of deposits and, consequently, did not explicitly correlate the remuneration rate of the deposits with their maturity. This meant that the account arrangement was constructed in a way that did not exclude the possibility of Treasury deposit remuneration rates being higher than the market rates, in particular for the remuneration of overnight deposits. Such a remuneration rate would contravene the objectives of the monetary financing prohibition under the Treaty . The attempt to amend

text: Article 5(5)

text: in order to address this issue was represented by the then draft Article 2(39) of the 2008 Budget Law, referred to above, which contained a provision which would have introduced a reference to market parameters regarding the remuneration of the account. However, this reference was deleted by the Parliament. The ECB, in the opinion given on the then draft Article 2(39) of the

text: 2008 Budget Law, expressed its concerns in this regard and insisted, on the occasion of its subsequent opinion on the draft ministerial decree concerning the OPTES procedures that, until appropriate amendments to

text: Article 5(5)

text: were introduced, it would continue to consider the Italian legislation in force as incompatible with the prohibition of monetary financing . 2.3 The ECB is therefore pleased to note that paragraph 1 of the draft article reintroduces a reference to market parameters, to which the interest rate to be paid by the Banca d’Italia will be linked. The ECB considers that this amendment would overcome the incompatibility with regard to the prohibition of monetary financing referred to in the previous paragraph.

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

text: Done at Frankfurt am Main, 1 September 2009.

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 OJ L 309, 25.11.2005, p. 15. 3 OJ L 214, 4.8.2006, p. 29. 4 OJ L 345, 8.12.2006, p. 1.

text: See ECB Convergence Report, May 2008, p. 22.

title: Opinion of the European Central Bank of 14 September 2009 on money laundering and terrorist financing prevention provisions relating to the Banco de España (CON/2009/70)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 14 September 2009 on money laundering and terrorist financing prevention provisions relating to the Banco de España (

text: ) Introduction and legal basis

text: On 11 August 2009 the European Central Bank (ECB) received a request from the Spanish State Secretary for Economic Affairs for an opinion on a draft law on the prevention of money laundering and terrorist financing (hereinafter ‘the draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the third indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law contains provisions relating to the Banco de España. 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 transposes Directive

text: of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing ,

text: Commission Directive 2006/70/EC of 1 August 2006

text: laying down implementing measures for Directive

text: of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis , and

text: Regulation (EC) No 1781/2006

text: of the European Parliament and of the Council of 15 November 2006 on information on the payer accompanying transfers of funds . The preamble to the draft law explains that, with a view to reducing adaptation costs, the current Spanish provisions in this field are maintained to the extent that they are not contrary to Community legislation.

text: The draft law unifies the rules on money laundering and terrorist financing prevention, putting an end to the current separation that may be described as follows. On the one hand, money laundering prevention is governed by Law 19/1993 of 28 December 1993 on money laundering prevention measures, which created the Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias (Commission for the prevention of money laundering and monetary offences) (‘the Commission’) within the State Secretariat for Economic Affairs. Law 19/1993 also created the Commission's Executive Service (‘SEPBLAC’), which is the Spanish financial intelligence unit and is attached to the Banco de España. Royal Decree 925/1995 of 9 June 1995 implementing Law 19/1993 laid down detailed provisions on the SEPBLAC. The Banco de España appoints the SEPBLAC's director and pays its costs. On the other hand, terrorist financing prevention is governed by Law 12/2003 of 21 May 2003 on prevention and blocking of terrorist financing, which created the Comisión de Vigilancia de Actividades de Financiación del Terrorismo (Commission for the surveillance of terrorist financing). Law 12/2003 regulates the freezing or blocking of funds potentially linked to terrorism, but also reproduces the prevention of money laundering obligations of Law 19/1993, which is clearly not ideal. A decision was therefore made to maintain the freezing and blocking provisions of Law 12/2003, as well as the Commission for the surveillance of terrorist financing’s competence to order the freezing or blocking of funds when there are grounds to do so, and to regulate terrorist financing prevention together with money laundering prevention in the draft law. The draft law also includes provisions regarding the Banco de España, on which the ECB is specifically consulted: (a) institutional organisation: the SEPBLAC depends organically and functionally on the Commission but has the following links with the Banco de España: i. the SEPBLAC's director is appointed on the proposal of the Commission’s president after having consulted the Banco de España; ii. the Banco de España is in charge of the SEPBLAC’s financial, budgetary and procurement regime and will sign an agreement to this end with the Commission; iii. the Banco de España’s employees assigned to the SEPBLAC keep their employment relationship with the Banco de España, are subject to the Banco de España’s staff rules but are under the SEPBLAC’s authority from a functional point of view; iv. the SEPBLAC’s budget is approved by the Commission and integrated on a separated basis into the Banco de España's budget for operating costs and investments. Expenses against this budget are payed by the Banco de España, which is reimbursed for them by drawing up an account to be submitted to the Directorate General of the Treasury and Financial Policy. The Directorate checks the account and reimburses the Banco de España. The account is balanced with the profits that the Banco de España transfers to the Treasury every year.

text: (b) Banco de España's cooperation with the Commission and the SEPBLAC: i. the Banco de España reports to the Commission's Secretariat any possible breaches of the obligations contained in the draft law observed in the course of its supervisory and inspection activities; ii. in relation to financial institutions subject to the Banco de España’s supervision, the SEPBLAC may obtain the necessary information and cooperation from the Banco de España; iii. the SEPBLAC has direct access to the statistical information on capital movements and economic transactions with foreign countries reported to the Banco de España in accordance with the regulations applicable to such movements and transactions.

text: 2. General observations

text: The ECB welcomes Spain’s transposition, albeit delayed, of the Community legislation on money laundering and terrorist financing prevention. The ECB understands that such delay: (i) has been due to lengthy discussions about the SEPBLAC’s institutional setting and the merger of the current rules on the prevention of money laundering and terrorist financing; and (ii) is partially mitigated by Spain's current legal framework in both fields. The ECB also welcomes the enhanced clarity of the money laundering and terrorist financing prevention legal framework that the draft law will bring about.

text: 3. Specific comments

text: 3.1 The Banco de España’s financial role The ECB welcomes the economic and budgetary regime laid down in

text: Article 43(3)

text: and (4) of the draft law as a regime that is fully consistent with central bank financial independence. It considers, however, that before the SEPBLAC’s budget is approved by the Commission, it should be agreed by the Banco de España as it will affect the financial independence of the Banco de España. 3.2 Liability The SEPBLAC is staffed by Banco de España’s employees who are subject to the Banco de España's staff rules. This poses no problems if the SEPBLAC is subject to the Banco de España’s independent decision-making. However, if Spanish law provides for separate decision-making by the SEPBLAC, it is important to ensure that decisions adopted by it do not endanger the financial independence of the Banco de España. In similar situations concerning financial supervision being placed within an NCB, the ECB has suggested that the national legislation should enable the NCB to have ultimate control over any decision by the supervisory authorities that could affect its independence, in particular its financial independence . As the staff members of SEPBLAC are

text: functionally dependent on the SEPBLAC and perform governmental functions, the ECB considers that the Banco de España should be statutorily freed from any liability for the actions and omissions of those staff while performing those functions. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 14 September 2009. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 OJ L 133, 22.5.2008, p. 66. 3 See

text: Article 21

text: and Part Five of the draft law. 4 Pursuant to Article 44(1) of Law No 6/1993 Coll. on Česká národní banka, these entities include banks, foreign bank branches, cooperative banks, electronic money institutions, capital market entities, insurance corporations and pension funds. 5 The Czech Trade Inspectorate supervises compliance with the conditions laid down in the currently applicable consumer credit law, i.e. Law No 321/2001 Coll. on certain conditions of consumer credit and amending Law No 64/1986 Coll.

title: Opinion of the European Central Bank of 14 September 2009 on Česká národní banka’s supervisory tasks relating to consumer credit (CON/2009/71)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 14 September 2009 on Česká národní banka’s supervisory tasks relating to consumer credit (

text: ) Introduction and legal basis

text: On 25 August 2009 the European Central Bank (ECB) received a request from the Czech Ministry of Industry and Trade for an opinion on a draft law on consumer credit and amending certain other laws (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 Česká národní banka (ČNB). 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 purpose of the draft law is to transpose into Czech law Directive

text: of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing 2 3

text: Council Directive 87/102/EEC

text: . Under the draft law , the supervision of compliance with consumer credit obligations is included in the supervisory tasks of ČNB with regard to those entities falling under its supervision . Non-banking entities carrying out business activities on the basis of a trade licence will be supervised by the Czech Trade Inspectorate .

text: 2. Extension of ČNB’s supervisory tasks

text: The ECB understands that the underlying reason for allocating the supervisory tasks relating to consumer credit to ČNB is the fact that ČNB already has overall responsibility for the supervision of the Czech financial market. The ECB considers that the new tasks complement ČNB’s existing supervisory powers and thus contribute to the preservation of confidence in the marketplace. However, it should be ensured that ČNB has sufficient human and material resources to carry out these new tasks without affecting its capacity to carry out its ESCB-related tasks.

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

text: Done at Frankfurt am Main, 14 September 2009.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 OJ L 319, 5.12.2007, p. 1.

text: See the ECB Convergence Report, May 2008, p. 20. See also Opinion

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

title: Opinion of the European Central Bank of 15 September 2009 on payment services (CON/2009/72)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 15 September 2009 on payment services (

text: ) Introduction and legal basis

text: On 26 August 2009 the European Central Bank (ECB) received a request from the Romanian Ministry of Finance for an opinion on a draft emergency ordinance on payment services (hereinafter the ‘draft emergency ordinance’). 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: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft emergency ordinance relates to Banca Naţională a României (BNR) and to payment systems. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft emergency ordinance

text: The main purpose of the draft emergency ordinance is to transpose into Romanian legislation 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: . The draft emergency ordinance establishes the requirements for the provision of payment services in Romania and regulates the prudential supervision of payment institutions, as well as the rights and obligations of users and providers of payment services in the context of the professional provision of payment services.

text: 2. General observations

text: 2.1 The ECB welcomes the draft emergency ordinance which will comprehensively regulate payment transactions in Romania in accordance with Directive

text: . While acknowledging the importance of Directive

text: for the realisation of the Single European Payments Area, in this opinion the ECB does not make a comprehensive assessment of the provisions of the draft

text: emergency ordinance implementing Directive

text: . Instead, this opinion only focuses on the provisions that go beyond such implementation and that relate to payment systems and BNR. 2.2 The draft emergency ordinance only transposes

text: Articles 1

text: to 4, 6, 7, 9 to 27, 29 to 88 and 93 of Directive

text: . The ECB understands that the technical details concerning the licensing and supervision of payment institutions will be established separately by BNR (see Article 186(1) of the draft emergency ordinance). 2.3 The draft emergency ordinance extends BNR’s competence by giving it new tasks concerning the licensing and supervision of payment institutions (see, in particular, Sections 1, 2 and 9 in Title II of the draft emergency ordinance). The ECB welcomes this widening of BNR’s competence in so far as, in accordance with the principle of central bank independence, BNR can independently avail itself of sufficient financial and personnel resources, both in terms of quantity and quality, to carry out tasks related to the European System of Central Banks as well as its own tasks, including its new tasks based on the draft emergency ordinance .

text: Done at Frankfurt am Main, 15 September 2009.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: Currently, the Royal Decree of 16 October 2008 empowers the Belgian Minister for Finance to grant a State guarantee to cover liabilities of credit institutions and/or financial holding companies (financiële holding/compagnies financières) as well as their issuance vehicles vis-à-vis other credit institutions and/or professional counterparts belonging to the categories identified by the Minister for Finance provided that such liabilities mature at the latest on 31 October 2011 and that they have been entered into or renewed between 9 October 2008 and 31 October 2009 (Article 2 of the Royal Decree). See ECB Opinion

text: ; all ECB opinions are published on the ECB website at www.ecb.europa.eu. The legal basis for the Royal Decree of 16 October 2008 is

text: Article 117

text: bis of the Law of 2 August 2002 (see, concerning this provision: ECB Opinion

text: , in particular paragraphs 1.1, 2.1 and 5; ECB Opinion

text: , in particular paragraph 2.1; and ECB Opinion

text: Article 1 of the draft royal decree, amending

text: Article 2

text: , first subparagraph of the Royal Decree of 16 October 2008.

text: Article 2 of the draft royal decree, amending

text: Article 2

text: , second subparagraph of the Royal Decree of 16 October 2008.

text: For a summary of the other conditions laid down in the Royal Decree of 16 October 2008, see ECB Opinion

text: , especially paragraph 1.2.

text: Report to the King preceding the draft royal decree, paragraph 3.

text: See the press release of 18 September 2009 issued by the Communications Office of the Belgian Council of Ministers. 8 See the Guide to consultation of the European Central Bank by national authorities regarding draft legislative provisions, Title IV, Section 1.

text: The related ECB opinions on Belgian draft legislative provisions are: (i)

text: ; (ii)

text: ; (iii)

text: ; (iv)

text: ; (v)

text: ; (vi)

text: ; and (vii)

text: . 10 See ‘Immediate Responses to Financial Turmoil’, Ecofin Council Conclusions of 7 October 2008, available on the former French Presidency’s website at www.ue2008.fr. The Ecofin Council recommended that: (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 interests of competitors must be protected, in particular through State aid rules; and (viii) negative spill-over effects should be avoided. 11 The text of the Declaration is available on the former French Presidency’s website at www.ue2008.fr. The Member States agreed to: (i) ensure appropriate liquidity conditions for financial institutions: (ii) facilitate the funding of banks; (iii) provide financial institutions with additional capital resources to continue to ensure the proper financing of the economy; (iv) allow for an efficient recapitalisation of distressed banks; (v) ensure sufficient flexibility in the implementation of accounting rules; and (vi) enhance cooperation procedures among European countries. 12 See Brussels European Council of 15 to 16 October 2008, paragraph 3 of the Presidency Conclusions. 13 See notably ECB Opinions

text: , paragraph 2.2 and

text: , paragraph 2.4.

text: See ECB Opinion

text: , paragraph 3.2 and the reference to the press release of 10 October 2008 issued by the Secretariat of the Belgian Deputy Prime Minister and Minister of Finance. 15 Recommendations of the Governing Council of the European Central Bank on government guarantees for bank debt, 20 October 2008, available on the ECB’s website. 16 See notably ECB Opinions

text: , paragraph 3.3.3 and

text: , paragraph 3.9. 17 See ECB Opinion

text: , paragraph 2.3. 18 See ECB Opinion

text: , paragraph 3.2, and more recently ECB Opinions

text: , paragraph 3.3.2 and

text: , paragraph 3.9. 19 See also ECB Opinion

text: , in particular paragraph 3.7, and more recently ECB Opinions

text: , paragraph 3.3.2 and

text: , paragraph 3.9. 20 See notably ECB Opinions

text: , paragraph 3.3.2 and

text: , paragraph 3.9.

text: See notably ECB Opinions

text: , paragraph 3.1 and

text: , paragraph 2.5.2. 22 See notably ECB Opinions

text: , paragraph 2.2 and

text: , paragraph 3.3.

title: Opinion of the European Central Bank of 23 September 2009 on an extension of the State guarantee covering liabilities of credit institutions (CON/2009/73)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 23 September 2009 on an extension of the State guarantee covering liabilities of credit institutions (

text: ) Introduction and legal basis

text: On 14 September 2009 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 for Finance, for an opinion on a draft royal decree amending the Royal Decree of 16 October 2008 implementing Article 117bis of the Law of 2 August 2002 on the supervision of the financial sector and on financial services (hereinafter 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: 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 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 need to preserve confidence in the Belgian financial system and by the continuation of financial market turbulence. In this context, it aims to extend the scope of the State guarantee scheme laid down in the Royal Decree of 16 October 2008 implementing

text: Article 117

text: bis of the Law of 2 August 2002 on the supervision of the financial sector and on financial services, on which the ECB has already been consulted .

text: First, the draft royal decree would extend the ultimate maturity date of the liabilities that can be covered by the State guarantee under the Royal Decree of 16 October 2008 (i.e. the ultimate maturity date would be 31 October 2014, instead of 31 October 2011 as currently) . Second, it would also extend the period during which such liabilities must have been entered into or renewed (i.e. the “issuing window” would be the period between 9 October 2008 and 31 October 2010, instead of the period between 9 October 2008 and 31 October 2009 as currently) . The draft royal decree would not amend the other conditions for granting the State guarantee under the Royal Decree of 16 October 2008 . 1.2 The Belgian authorities consider that the above extension of the State guarantee scheme is necessary given the continuation of financial market turbulence, and in particular financial institutions’ continued refinancing difficulties. They also point out that the extension of the ultimate maturity date would allow the beneficiary institutions to avoid an excessive concentration of maturities for guaranteed obligations with a determined maturity date .

text: 2. General observations

text: 2.1 The ECB understands that, although it was asked to issue its opinion within one month of receipt of the consultation letter on 14 September 2009, the Belgian Council of Ministers approved the draft royal decree already on 18 September 2009 without any prior notification to the ECB of any acceleration in the adoption process. 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 affect the national authorities’ duty under Article 105(4) of the Treaty to 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 such draft legislative provisions pending receipt of the ECB’s opinion. The adopting national authority should have the opportunity to meaningfully deliberate the ECB’s opinion prior to taking its decision on the substance . 2.2 The ECB has issued a number of opinions at the request of the competent Member States’ authorities on national measures adopted in response to the global financial crisis, and has notably already delivered opinions on several elements of the rescue package put in place by the Belgian

text: authorities in response to the current financial market turbulence . The ECB invites the consulting authority to take into account the relevant observations made in its previous opinions on similar draft legislative provisions in other Member States, some of which are repeated below. In particular, all of the comments and recommendations made by the ECB in its Opinion

text: apply equally to the draft royal decree. 2.3 The ECB also draws attention to the guidance provided by the Ecofin Council to the Member States in the Conclusions of its meeting of 7 October 2008 , and to the Declaration issued by the Heads of State of the euro area on 12 October 2008 (hereinafter the ‘Declaration’) . The principles contained in the Declaration and the Conclusions of the Ecofin Council were endorsed by the European Council of 15 to 16 October 2008 . In particular, the ECB stresses that any initiative put in place by the competent national authorities to restore confidence in the national segments of the euro area financial markets should be coordinated and should aim to implement the common principles in question, in a spirit of close cooperation with other Member States and the Community institutions since, as acknowledged in the Declaration, significant differences in national implementation could have a counter-productive effect, creating distortions in global banking markets.

text: 3. Specific observations

text: 3.1 Interaction of the draft royal decree with the monetary policy of the euro area Since the draft royal decree aims at extending the scope of the State guarantee scheme laid down in the Royal Decree of 16 October 2008, on which the ECB has already been consulted, the ECB would like to recall some elements previously mentioned in its Opinion

text: which are important from the perspective of monetary policy. In particular, in the context of the adoption of the Royal Decree of 16 October 2008, the Belgian authorities publicly announced that the concept of ‘liabilities’ (verbintenissen/engagements) eligible to be covered by the State guarantee scheme provided for in that Royal Decree was to be

text: understood broadly and would encompass all of the financing raised by a beneficiary institution in order to obtain refinancing from credit institutions and institutional counterparties, including notably interbank deposits . The ECB understands that although the draft royal decree amends the Royal Decree of 16 October 2008, it does not further specify what is encompassed by ‘liabilities’ (verbintenissen/engagements) within the meaning of that Royal Decree and, hence, it does not exclude interbank deposits. In this respect, the ECB wishes to make the following observations. First, it would like to remind the consulting authority that the arrangements for the granting of government guarantees on bank debt should, when practically implemented, aim at: (i) addressing the funding problems of liquidity-constrained solvent banks by improving the functioning of the market for bank debt of longer-term maturity; (ii) preserving the level playing field among financial institutions and avoiding market distortions; and (iii) ensuring consistency with the management of Eurosystem liquidity. In line with the Declaration and as stated in its recommendations , the ECB restates its view that euro area governments should make available a government guarantee of new mediumterm (up to five years) bank senior debt issuance which must be limited in time. In the same vein, government guarantees on short-term bank debt with maturity of three to 12 months may be provided in order to revitalise the short-term bank debt market . Second, as stated in the Declaration, it is also stressed that it is of the utmost importance that support operations conducted by national authorities do not in any way affect the conduct and the implementation of monetary policy in the euro area . In this context, the ECB reiterates its view that the extension of the State guarantee to cover interbank deposits should be avoided , as this 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 and therefore impairing the implementation of the single monetary policy, which is an exclusive competence of the Eurosystem under 19 20 Article 105(2) of the Treaty . It could also affect the transmission of monetary policy decisions and make it difficult to maintain the necessary level playing field between the financial institutions benefiting from the State guarantee and those not benefiting from it within the euro area.

text: 3.2 Temporary nature of the scheme In line with the Conclusions of the Ecofin Council and the Declaration, it is recalled that harmonisation of the measures implemented at the national level is essential to ensure the integration of the financial markets within the EU, and within the euro area in particular. In this regard, the ECB emphasises that coordination regarding the duration of national financial support schemes across the EU is of crucial importance in order to ensure a level playing field . In addition, the ECB recalls the need for national support measures to be temporary in nature . While the current elements of fragility in the national financial sector lie at the basis of the proposed extension of the ultimate maturity date of the new liabilities that can be covered by the State guarantee under the Royal Decree of 16 October 2008 and of the period during which such liabilities must have been entered into or renewed to be covered by such a State guarantee, it is also understood that the temporary nature of this State guarantee scheme is maintained in essence, hence ensuring that the involvement of the Belgian State will be limited in time.

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

text: Done at Frankfurt am Main, 23 September 2009.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: Constitutional Law No 2008-724 of 23 July 2008 on modernising the institutions of the Vth Republic, Journal Officiel de la République Française, No 0171 of 24 July 2008, p. 11890.

text: Article L.142-8, seventh paragraph, first sentence, of the French Monetary and Financial Code provides that the Governor and the two Deputy Governors of Banque de France are nominated by a decree in the Council of Ministers for a six-year term of office, which may be renewed once.

text: See impact assessment of the draft organic law and draft law on the application of Article 13 of the French Constitution, p. 4, point 3.2.

text: ECB Convergence Report, May 2008, p. 14.

title: Opinion of the European Central Bank of 24 September 2009 on the nomination procedure for the Governor of the Banque de France (CON/2009/74)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 24 September 2009 on the nomination procedure for the Governor of the Banque de France (

text: ) Introduction and legal basis

text: On 18 September 2009 the European Central Bank (ECB) received a request from the French Ministry for Economic Affairs, Industry and Employment for an opinion on a draft organic law and a draft law on the application of Article 13, fifth paragraph, of the French Constitution (hereinafter, respectively, the ‘draft organic law’ and 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 organic law and the draft law relate to the Banque de France. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft organic law and of the draft law

text: 1.1 The draft organic law and the draft law aim at implementing

text: Article 13

text: , fifth paragraph, of the French Constitution as amended by the Constitutional Law of 23 July 2008 .

text: Article 13

text: , fifth paragraph, of the French Constitution provides that, for positions or functions of particular importance in guaranteeing rights and freedoms or the Nation’s economic and social life, the nomination power of the President of the French Republic is carried out after a public opinion from the relevant permanent committee of each House of the French Parliament. It further provides that the President of the French Republic may not carry out a nomination if the sum of each committee’s negative votes represents at least three fifths of the valid votes within both committees. 1.2 Given that the positions or functions concerned by this Parliamentary control procedure are to be determined in an organic law by virtue of Article 13 of the French Constitution, the draft organic law precisely aims at setting the list of positions or functions which are to be subject to the new procedure in view of their importance in guaranteeing rights and freedoms or the Nation’s

text: economic and social life. The function of Governor of the Banque de France is among the positions and functions listed. The draft organic law therefore aims at making the specific procedure provided for in

text: Article 13

text: , fifth paragraph, of the French Constitution applicable to the Governor of the Banque de France, thereby giving the French Parliament the right to scrutinise the nomination of the Governor of the Banque de France by the President of the French Republic , including the right to veto, under certain conditions, a proposal for a nomination. 1.3 In accordance with Article 13 of the French Constitution, the draft law complements the draft organic law and determines for each of the concerned positions or functions the relevant permanent committees within the French National Assembly and Senate. For the function of Governor of the Banque de France, the committee competent in monetary matters would be the relevant permanent committee within each House of the French Parliament.

text: 2. General observations

text: 2.1 The provisions of the draft organic law and the draft law that concern the nomination procedure of the Governor of the Banque de France are compatible with the Treaty and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) and do not interfere with the personal independence requirements under Article 14.2 of the Statute of the ESCB. 2.2 The inclusion of the Governor of the Banque de France in the list of holders of positions and functions concerned may result in an extension of the length of the nomination procedure . In this regard, the ECB notes the need for the smooth and continuous functioning of the decision-making bodies of the Banque de France under the new nomination procedure.

text: Done at Frankfurt am Main, 24 September 2009.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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. Directive

text: has already been transposed into Slovak law by Law No 510/2002 Coll. on payment systems (zákon o platobnom styku), which the draft law will repeal.

text: OJ L 275, 27.10.2000, p. 39. Directive

text: has already been transposed by the abovementioned Law on payment systems.

text: See paragraph 3.1 of ECB Opinion

text: and paragraph 3 of ECB Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 6 See Annex II to Guideline ECB/2007/2 of 26 April 2007 on a Trans-European Automated Real-time Gross settlement Express Transfer system (TARGET2) (OJ L 237, 8.9.2007, p. 1).

title: Opinion of the European Central Bank of 29 September 2009 on payment services (CON/2009/75)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 29 September 2009 on payment services (

text: ) Introduction and legal basis

text: On 5 August 2009 the European Central Bank (ECB) received a request from the Slovak Ministry of Finance for an opinion on a draft law on payment services and on amendments to certain laws (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 second to 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 means of payment, the national central bank, statistics, and payment and settlement systems. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The main purpose of the draft law is to transpose into Slovak law 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’) . The draft law also implements 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 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 ‘Electronic Money Institutions Directive’) . As stated in its explanatory memorandum, the draft law goes beyond the implementation of the abovementioned Community directives and focuses in particular on consumer protection in the field of payment systems.

text: 1.2 The focus of this opinion is on the provisions of the draft law that relate to means of payment, Národná banka Slovenska, statistics and payment and settlement systems that go beyond the strict implementation of the abovementioned Community directives. In this opinion the ECB provides no assessment of the overall implementation in Slovakia of those directives.

text: 2. General observations

text: The aim of the draft law is to comprehensively govern payment services, electronic money, and payment and settlement systems in Slovakia and, by implementing the Payment Services Directive, to fulfil the regulatory pre-conditions for the introduction of the Single European Payment Area. Despite the wording of

text: Article 1(3)

text: (h) of the draft law and the differences in the scopes of the Payment Services Directive, on the one hand, and the Settlement Finality Directive, on the other hand, the ECB understands that it should be interpreted in the light of

text: Article 1(1)

text: (b) of the draft law. However, for reasons of legal certainty, it would be welcomed if

text: Article 1(3)

text: (h) could be explicitly clarified on this point to avoid any doubt as to whether the comprehensive approach of the draft law could lead to the exclusion of the application of the implementing provisions for the Settlement Finality Directive.

text: 3. Specific observations

text: 3.1 New tasks and sufficient human and other resources The draft law acknowledges Národná banka Slovenska’s oversight and supervision tasks in respect of payment systems and payment institutions. However, in order for Národná banka Slovenska to perform these tasks in parallel with its existing Eurosystem-related tasks and other tasks assigned to it by national law, it is essential that it has sufficient human and other resources . 3.2 Operation and oversight of payment systems

text: Article 45(3)

text: (a) of the draft law defines ‘payment systems’ as such systems as are operated by Národná banka Slovenska.

text: Article 47(1)

text: lists possible participants in payment systems. The ECB points out that, in respect of Národná banka Slovenska’s component in TARGET2, the list of participants is more narrowly defined in Národná banka Slovenska’s Decision 9/2008 of 25 November 2008 on conditions for participation in TARGET2-SK, in accordance with Article 4 of the Harmonised Conditions for participation in TARGET2 . Therefore, the ECB recommends amending

text: Article 47(1)

text: to clarify that the list of participants in payment systems may be defined in more detail in payment system rules. Article 45(8) of the draft law lays down the oversight requirements for payment system operators, central securities depositories and payment service providers in accordance with international oversight standards and evaluation criteria and oversight standards and procedures established by

text: the ECB, the European System of Central Banks (ESCB) and/or other European Economic Area (EEA) Member State authorities designated under the laws of the relevant EEA Member State. The references to the applicable oversight standards are too broad, so the ECB suggests that the current wording of the first sentence of

text: Article 45(8)

text: should be restricted to the applicable Eurosystem oversight standards and any supplementary standards adopted by Národná banka Slovenska. Under Article 61(3) of the current Law on payment systems, an entity applying for a licence to operate a payment system governed by Slovak law must fulfil certain criteria, including a requirement to be a joint-stock company with a registered office in Slovakia .

text: Article 57(2)

text: (a) of the draft law amends the criteria by requiring the entity to be a joint-stock company with a registered office in an EEA Member State. Concerning EEA operators of payment systems governed by the law of Slovakia and supervised by Národná banka Slovenska under Article 60 of the draft law, the ECB understands that Article 45(8) of the draft law takes into account the application by Národná banka Slovenska of the Eurosystem’s location policy so that the Eurosystem has sufficient means to ensure the safety of non-Eurosystem operators and to avoid the risk of undermining the Eurosystem’s control over the euro, and for the proper performance of its core tasks. For greater clarity, in its

text: Article 45(8)

text: , the draft law should explicitly state the Eurosystem principles on the location and operation of systems that settle in euro. 3.3 Liability issues In implementing the Payment Services Directive, the term ‘gross negligence’ and the distinction between ordinary negligence and gross negligence are introduced in the draft law . The ECB points out that the liability regime which applies to cases of “gross negligence” is also applicable to cases of “fraud and wilful misconduct” pursuant to Article 31(2) of the Harmonised Conditions for participation in TARGET2. Therefore the ECB recommends amending

text: Article 45(9)

text: (a) of the draft law accordingly. Moreover, the ECB suggests that, in order to fully transpose the liability regime, amendments reflecting the distinction between ordinary negligence and gross negligence should be made to the measures which have been adopted by Národná banka Slovenska to implement Article 31 of the Harmonised Conditions for participation in TARGET2. 3.4 Statistics The draft law also amends Law No 566/1992 Coll. on Národná banka Slovenska, and explicitly empowers Národná banka Slovenska to collect statistics and other data under Law No 566/1992 Coll. and under special legislation. The ECB suggests that the duties in the field of statistics should be clarified and should encompass the collection of statistical information in order to assist the ECB in the performance of the ESCB’s tasks. In this respect, Articles 5.1 and 5.2 of the Statute of the European System of Central Banks and of the European Central Bank state that, for the performance of the tasks of the ESCB, the ECB, assisted by the national central banks shall collect

text: the necessary statistical information, and the national central banks shall carry out these tasks, to the extent possible. 3.5 Date of entry into force Although Article 94(1) of the Payment Services Directive provides that the Member States have to bring into force the laws, regulations and administrative provisions necessary to comply with it before 1 November 2009, Section XVIII of the draft law lays down the date 1 December 2009. While the ECB understands that the date of entry into force of the draft law has been determined to guarantee an adequate period for its addressees to become acquainted with the new regime it introduces, the transposition obligations flowing from the Payment Services Directive should be observed.

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

text: Done at Frankfurt am Main, 29 September 2009.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: COM(2009) 323 slutlig.

text: Text markerad med fet stil anger ECB:s förslag till ny text.

text: Genomstruken text anger de strykningar som ECB föreslår.

sprak: sv

title: Europeiska centralbankens yttrande av den 29 september 2009 över ett förslag till rådets förordning om införande av euron (CON/2009/76)

text: Inledning och rättslig grund

text: Den 15 juli 2009 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande över ett förslag till rådets förordning om införande av euron (Kodifierad version) (nedan kallat förslaget till förordning).

text: ECB:s behörighet att avge ett yttrande grundar sig på artikel 123.4 tredje meningen i fördraget om upprättandet av Europeiska gemenskapen. I enlighet med artikel 17.5 första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: ECB stöder en kodifiering av gemenskapens regelverk som bidrar till ett klart, effektivt och tydligt regelverk, särskilt inom de områden som berör den ekonomiska och monetära unionen.

text: ECB:s ändringsförslag framgår av bilagan och åtföljs av en förklaring.

text: BILAGA

text: Kommissionens förslag | ECB:s ändringsförslag,

text: Denna förordning är till alla delar bindande och direkt tillämplig i alla medlemsstater, i enlighet med artikel 249 i fördraget, med förbehåll för protokollet om vissa bestämmelser angående Förenade konungariket Storbritannien och Nordirland och protokollet om vissa bestämmelser angående Danmark och artikel 122.1 i fördraget. | Denna förordning är till alla delar bindande och direkt tillämplig i alla medlemsstater, i enlighet med artikel 249 i fördraget, med förbehåll för protokollet om vissa bestämmelser angående Förenade konungariket Storbritannien och Nordirland och protokollet om vissa bestämmelser angående Danmark och artikel 122.1 i fördraget om upprättandet av Europeiska gemenskapen.

text: Förklaring Den föreslagna ändringen bygger på de anvisningar som framgår av handboken för utformning av rättsakter i Europeiska unionens råd (dok. SN 1315/1/08 rev 1, s. 3), finns på engelska på www.ec.europa.eu enligt vilken Denna formulering ska användas istället för den vanliga formuleringen när en förordning inte är tillämplig på eller i samtliga medlemsstater (t.ex. medlemsstater som inte deltar i eurosamarbetet […]).


text: Valstybės žinios, 1995, No 51-1243.

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

text: Report on the public audit: the assessment of the activities of Lietuvos bankas, 30 December 2004. Available on the State Audit Office’s website at http://www.vkontrole.lt/auditas_ataskaita.php?730. 5 Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 6 Opinions

text: and

text: Explanatory memorandum on the draft law, paragraphs 2 and 4.

title: Opinion of the European Central Bank of 29 September 2009 on the public audit of Lietuvos bankas (CON/2009/77)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 29 September 2009 on the public audit of Lietuvos bankas (

text: ) Introduction and legal basis

text: On 25 August 2009 the European Central Bank (ECB) received a request from the Audit Committee of the Seimas (Parliament) of Lithuania for an opinion on a draft law amending Article 14 of the Law on the State Audit Office (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 Lietuvos bankas. 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 amend the Law on the State Audit Office in order to make the legal provisions more detailed and certain and to explicitly enable the State Audit Office to conduct the public audit of Lietuvos bankas, i.e. to audit the performance of the activities provided for in the Law on Lietuvos bankas, as far as this does not conflict with the legal acts of the European Union and the objectives and tasks of the European System of Central Banks (ESCB) established therein. 1.2 In the Law on the State Audit Office as it currently stands, Lietuvos bankas is not specifically mentioned as an institution that is subject to public audit. According to the consulting authority, the legal basis for carrying out a public audit of Lietuvos bankas is currently derived only from a systemic analysis of the legal norms governing the authority of the State Audit Office, the institutions subject to public audit and the scope of public audits. In this regard, the proposed amendments to the Law on the State Audit Office will provide an explicit legal basis for the State Audit Office to perform such public audits of Lietuvos bankas.

text: 2. General observations

text: 2.1 The last time the State Audit Office audited Lietuvos bankas was in 2004 . This audit mostly covered the period from 2002 to 2003, prior to Lithuania’s entry into the EU. Since 1994 the financial accounts of Lietuvos bankas have been audited by an independent external auditor. Currently, the independent external auditor of Lietuvos bankas is UAB Ernst & Young Baltic. 2.2 With regard to the authority to carry out state audits, while the ECB and several national central banks (NCBs) are subject to other statutory audits and controls, in addition to audits by independent external auditors (such as those appointed for Eurosystem NCBs under Article 27.1 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’)), the scope of such audits is subject to certain limits. In the Convergence Report of May 2008 the ECB noted that, where NCB operations are made subject to the control of a state audit office or similar body charged with controlling the use of public finances, the scope of the control should be clearly defined by the legal framework and should be without prejudice to the activities of the NCB’s independent external auditors, as laid down in Article 27.1 of the Statute of the ESCB. The state audit should be done on a non-political, independent and purely professional basis. The activities of the state auditors should in any event not jeopardise the NCBs’ independence. 2.3 Moreover, the ECB has stressed on several occasions that, in compliance with the principle of financial independence of NCBs , such statutory audits and controls may in any event not imply ex ante third party intervention in an NCB’s expenditure needed for its statutory tasks, including both ESCB and non-ESCB related tasks, and that national law should provide specific safeguards to guarantee that state auditors do not interfere with the activities of the independent external auditors in respect of the review of ESCB-related accounts and ESCB-related tasks conferred by the Treaty and the Statute of the ESCB. In addition, the ECB reminds the consulting authority that the ‘primacy of Community law and rules adopted thereunder also implies that national laws on access of third parties to documents [of an NCB] may not lead to infringements of the ESCB’s confidentiality regime’ . 2.4 More specifically as regards Lithuania, the ECB noted in the Convergence Report of May 2006 that, under the Law on the State Audit Office, this Office is empowered to check whether the State’s property is being effectively managed. The ECB also stated that it ‘understands that: (i) the State Audit Office is also bound by Article 3(2) of the Law [on Lietuvos bankas], which concerns

text: the general prohibition on giving instructions to the NCB; (ii) the audit of the State Audit Office is limited to the management, usage and disposal of real estate, equipment and capital of Lietuvos bankas; and (iii) the State Audit Office has no power to interfere with either the opinion of the external auditors or with Lietuvos bankas’s ESCB-related tasks’ . The ECB concluded that, in view of these safeguards, the powers of the State Audit Office are not incompatible with central bank independence. The ECB notes that these remarks remain valid.

text: 3. Specific comments

text: 3.1 In view of the safeguards required to ensure central bank independence and outlined in the Convergence Report of May 2006 (see paragraph 2.4 of this opinion), the current wording of the draft law should be clarified in order to ensure that such safeguards are in place. 3.2 In the same vein, the ECB understands the intention of the consulting authority to make the appropriate legal provisions more detailed and certain . However, the ECB notes that the wording of the draft law itself does not entirely fulfil its purposes. For reasons of legal certainty, the wording of the draft law should therefore be adjusted in order to guarantee the safeguards mentioned above, following, for example, the concept of the ‘operational efficiency of the management’ in describing the mandate of the State Audit Office, as expressed in Article 27.2 of the Statute of the ESCB.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET