text: Law No 5/98 of 31 January 1998.

text: Decree-Law No. 298/92 of 31 December 1992, as amended.

text: OJ C 41, 14.2.2012, p. 1. See also

text: recital 24

text: of

text: Regulation (EU) No 1092/2010

text: of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board (OJ L 331, 15.12.2010, p. 1).

text: See paragraph 5.1 of Opinion

text: , paragraph 3.1 of Opinion

text: , paragraph 2.1 of Opinion

text: and paragraph 2.1 of Opinion

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

text: See paragraph 3.2 of Opinion

text: , paragraph 2.3 of Opinion

text: and paragraph 2.2 of Opinion

text: See paragraph 5.3 of Opinion

text: , paragraph 4.1 of Opinion

text: and paragraph 2.3 of Opinion

text: . Recommendation B4 of Recommendation

text: also proposes mandating the macro-prudential authority for cross-border cooperation and information exchange, in particular by informing the ESRB of the actions taken to address systemic risks at national level.

text: See Article 12(3) of the Legal Framework of Credit Institutions and Financial Companies. The same reservations were raised in paragraph 2.6 of Opinion

text: See

text: Article 16

text: A of draft decree-law on the BdP and Article 27(2) of the Organic Law of the Banco de Portugal. Recommendation B3 of Recommendation

text: suggests that Member States ensure the central bank plays a leading role in the macro-prudential policy and that macro-prudential policy does not undermine its independence in accordance with Article 130 of the Treaty. Recommendation E1 of that same Recommendation advises that the macroprudential authority, in the pursuit of its objective, should be as a minimum operationally independent, in particular from political bodies and from the financial industry, and Recommendation E2 proposes that organisational and financial arrangements do not jeopardise the conduct of macro-prudential policy. 12 According to Recommendation B2 of Recommendation

text: , if a single institution is designated as the macroprudential authority, Member States should establish mechanisms for cooperation among all authorities whose actions have a material impact on financial stability, without prejudice to their respective mandates. 13 See

text: Article 2(1)

text: and (3) of draft decree-law on the NCFS. 14 See Article 17(2) of draft decree-law on the BdP.

text: See

text: Article 17

text: _A of draft decree-law on the BdP. 16. See pp. 29-30.

title: Opinion of the European Central Bank of 27 August 2013 on the macro-prudential mandate of the Banco de Portugal (CON/2013/66)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 27 August 2013 on the macro-prudential mandate of the Banco de Portugal (

text: ) Introduction and legal basis

text: On 17 July 2013, the European Central Bank (ECB) received a request from the Portuguese Minister of State and for Finance for an opinion on two draft decree-laws, one amending the Organic Law of the Banco de Portugal (hereinafter the ‘draft decree-law on the BdP’) and the other amending Decree-Law No 228/2000 of 23 September 2000 that established the National Council of Financial Supervisors (NCFS) (hereinafter the ‘draft decree-law on the NCFS’) (hereinafter collectively the ‘draft decree-laws’). 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 of 29 June 1998

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

text: 1.1 The draft decree-law on the BdP amends the Organic Law of the Banco de Portugal in order to, inter alia: (a) provide for the BdP’s participation in the Single Supervisory Mechanism; (b) expressly state the banking resolution responsibilities that the Legal Framework of Credit Institutions and Financial Companies already conferred on the BdP ; and (c) nominate the BdP as the competent authority to implement macro-prudential policy. In particular, the draft decree-law implements Recommendation

text: of the European Systemic Risk Board of 22 December 2011 on the macro-prudential mandate of national authorities . 1.2 The draft decree-law on the NCFS amends Decree-Law 228/2000 of 23 September 2000 in order to, inter alia, expressly give the NCFS advisory functions to the BdP, and in the exercise of these

text: functions, to: (a) identify, monitor and evaluate risks to the stability of the financial system and (b) assess concrete proposals of macro-prudential policy aimed at mitigating or reducing systemic risks, in order to strengthen the stability of the financial sector. The main purpose of the draft decree-law on the NCFS is to implement Recommendation

text: 2. Macro-prudential mandate of the Banco de Portugal

text: 2.1 The ECB supports the effective design of macro-prudential policy frameworks within the Member States, in line with the guiding principles expressed in Recommendation

text: . Moreover, the ECB considers that the ECB and national central banks should play a leading role in macroprudential oversight, given their expertise and current responsibilities in the area of financial stability . 2.2 In the light of the above, the ECB welcomes the arrangement whereby the BdP is the national authority responsible for the conduct of macro-prudential policies , with the NCFS serving as advisor, thus acting in cooperation with other authorities whose actions have a material impact on financial stability, in particular the Portuguese Securities Market Commission and the Insurance and Pension Funds Supervisory Authority. 3.4 At the same time, the ECB notes that the BdP should perform its macro-prudential tasks in such a way to not affect: (a) the BdP’s institutional, functional and financial independence; or (b) the performance by the European System of Central Banks of its tasks under the Treaty and the Statute of the European System of Central Banks and of the European Central Bank . 2.4 While acknowledging the limited scope of the draft decree-law on the BdP, the ECB recommends that either the draft-decree law on the BdP or other relevant legal acts should expressly mandate the BdP, in its capacity as a macro-prudential authority, to cooperate with the European Systemic Risk Board (ESRB) and, where needed, with the macro-prudential authorities of other Member States, in particular as regards the exchange of information . 2.5 The ECB notes the absence, in the draft decree-law on the BdP, of a specific provision regarding the implementation of Recommendation D4 of Recommendation

text: , which calls for legal protection of the macro-prudential authorities and their staff when acting in good faith in the context of its macro-prudential mandate. This legal protection should either be provided for in the

text: draft decree-law on the BdP or, if it is already contained in other laws , the ECB recommends that clarification be provided on how these laws should apply to macro-prudential supervision. 2.6 The ECB welcomes the specific provisions of the draft decree-law on the BdP which, when read in conjunction with existing provisions , state the BdP´s independence with regard to macroprudential policy decisions. 2.7 This opinion does not prejudice the conclusions of the follow-up assessment of the above mentioned recommendations that the ESRB will issue in accordance with

text: Article 17 of Regulation (EU) No 1092/2010

text: of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board .

text: 3. Extension of NCFS functions

text: 3.1 The ECB welcomes the extension of the NCFS functions which, in line with the implementation of Recommendation B2 of Recommendation

text: , will include coordinating between the financial system supervisory authorities when they regulate and supervise their respective financial entities. 3.2 The ECB also welcomes that the BdP, in its role as the national authority defining and carrying out macro-prudential policy for the national financial system, will benefit from the NCFS’s advice, i.e. in identifying, monitoring and assessing risks to the stability of the financial system, as well as from the NCFS’s macro-prudential policy proposals that are specifically aimed at mitigating or reducing systemic risks, in order to reinforce the stability of the financial system .

text: 4. Other issues

text: 4.1 The ECB welcomes the specific provisions intended to safeguard the BdP´s participation in the Single Supervisory Mechanism and notes the redrafting of the provisions referring to the designation of the BdP as the national resolution authority, which now include specific references

text: to the tasks of drawing up resolution plans, applying resolution measures, and arranging for the removal of potential obstacles to the application of such measures . 4.2 The ECB noted in its Convergence Reports that financing by an NCB granted independently and at its full discretion to credit institutions would be incompatible with the monetary financing prohibition if it would be granted other than in connection with central banking tasks (such as monetary policy, payment systems or temporary liquidity support operations), in particular the support of insolvent credit and/or other financial institutions. To this end, the ECB advised that inserting references to Article 123 of the Treaty should be considered. Acknowledging that

text: Article 12

text: (c) of the Organic Law of the Banco de Portugal currently in force already expressly safeguards «the requirements derived from its participation in the ESCB» when entrusting on BdP the task to «provide for the stability of the national financial system, performing for the purpose, in particular, the function of lender of last resort», the ECB would recommend inserting a reference to Article 123 of the Treaty in order to avoid any possible incompatibility with the monetary financing prohibition.

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

text: Done at Frankfurt am Main, 27 August 2013.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: See Article 14(3) of the Amended Regulation. 16 See Article 15 of the Amended Regulation. 17 See

text: Article 17

text: in connection with Article 23 of the Amended Regulation. 18 See Article 22 of the Amended Regulation. 19 See

text: Article 18

text: to 20 and the Annex to the Amended Regulation. 20 See

text: Articles 10

text: to 12 of the Amended Regulation.

text: See paragraph 4.2 of Opinion

text: and paragraph 4 of Opinion

text: . 22 See also recital 14 of Council Recommendation of 9 July 2013 on the National Reform Programme 2013 for Slovenia and delivering a Council opinion on the Stability Programme of Slovenia, 2012-2016 (OJ C 217, 30.7.2013, p. 75). 23 In this context, however, the ECB notes that it is not for the national legislator to assign tasks to the ECB. The ECB is governed by, and acts in accordance with, the Statute of the European System of Central Banks and of the European Central Bank and other relevant provisions of Union law. 24 Communication from the Commission on the treatment of impaired assets in the Community banking sector (OJ C 72, 26.3.2009, p. 1).

text: See paragraphs 6 and 10 of Opinion

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 13 August 2013 on measures to strengthen bank stability (CON/2013/67)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 13 August 2013 on measures to strengthen bank stability (

text: ) Introduction and legal basis

type: rubrik

text: On 8 July 2013, the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance for an opinion on the amendments to the Regulation on the implementation of measures to strengthen bank stability (hereinafter the ‘Amended Regulation’). 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 of 29 June 1998

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

type: stycke

text: 1. Purpose of the Amended Regulation

text: 1.1 The Regulation on the implementation of measures to strengthen bank stability (hereinafter the ‘Regulation’), which implements the Law on Slovenia’s measures to strengthen bank stability (hereinafter the ‘Law on bank stability’), was amended in order to: (a) clarify the procedure for the implementation of measures to strengthen the stability of banks, i.e. (i) the transfer of banks’ assets to the State-owned Bank Asset Management Company (BAMC), (ii) the issuance of State guarantees for the BAMC’s liabilities, and (iii) the recapitalisation of banks by the State; and (b) clarify the role of Banka Slovenije, the Inter-Ministerial Committee (hereinafter the ‘Committee’) and the BAMC in such a procedure. The ECB was previously consulted on both the Law on bank stability and the Regulation, and issued Opinions

text: and

text: respectively. 1.2 The Amended Regulation now clarifies that the process for the approval of State support to banks requires a two-step procedure. First, the Government will decide, on the basis of the Committee’s 1 OJ L 189, 3.7.1998, p. 42. 2 Uredba o izvajanju ukrepov za krepitev stabilnosti bank (Ur.l. RS, No. 22/2013 and 51/2013). 3 Zakon o ukrepih Republike Slovenije za krepitev stabilnosti bank (ZUKSB) (Ur.l. RS No 105/2012). 4 All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.

text: proposal, whether a bank fulfils the general eligibility criteria for the measures . If a bank is found eligible for the measures, based on the Government’s decision, the second phase of the process can start. In this phase, the Committee would initiate the required activities for determining the final scope and conditions for the implementation of the respective measures, i.e. the preparation of a bank’s business strategy, and at the end of the process, it would present the Government with a proposal for the implementation of the measures . The Government’s decision to approve State support to banks will be made on the basis of a bank’s submitted business strategy, the Committee’s proposal and the European Commission’s opinion on the compliance of the measures with Union State aid rules . 1.3 A bank’s business strategy will have to show that the bank will be able to operate sustainably and successfully in the long term and implement burden-sharing measures and measures to prevent or mitigate any possible distortion of competition . For the purpose of assessing a bank’s business strategy, the Committee will obtain Banka Slovenije’s assessment thereof and, pursuant to the Amended Regulation, will also take into account the results of the asset quality review and stress tests to be performed by an external contractor . The Committee will submit a proposal to the Government for the decision on measures, on the basis of Banka Slovenije’s assessment, and the asset quality review . If the Government approves the proposed measures and the European Commission gives a positive opinion on the compliance of the measures with EU State aid rules, the BAMC and the relevant bank may enter into an agreement for the implementation of measures, in accordance with the bank’s business strategy . 1.4 With regard to a bank’s business strategy, the Amended Regulation clarifies that a bank’s losses must be covered by available components of that bank’s capital and the assets of existing holders of the bank’s capital instruments, where it is permitted to use the instruments for such purpose pursuant to the underlying contract . 1.5 The assets to be transferred to the BAMC will be selected by the bank and the BAMC from the prescribed asset categories. The Amended Regulation requires that such selection is carried out in cooperation with Banka Slovenije . Assets outside the prescribed categories may be transferred to 5 I.e. whether a bank is lacking, or within the following 12 months will not have sufficient capital to meet capital adequacy requirements and, as a result, the stability of the financial system is threatened. See Article 4 of the Amended Regulation. 6 See Article 8 of the Amended Regulation. 7 See Article 8 of the Amended Regulation. 8 See Article 6 of the Regulation. 9 Pursuant to Article 7(1) of the Regulation, Banka Slovenije will assess the business strategy regarding (a) the impact of the anticipated measures on the bank’s capital adequacy and the ability of the bank to ensure capital adequacy in the future without further measures or aid from the BAMC or the State, (b) the use of valuation methods in the assessment of long-term economic value, including the determination of the price of new shares or other capital instruments and the determination of the price for the purpose of transferring the bank’s risk items to the BAMC, and (c) the bank’s ability to ensure long-term profitable operations and stable capital adequacy with the anticipated measures and activities. 10 See

text: Article 7(3)

text: and (4) of the Amended Regulation. 11 See

text: Article 8(1)

text: and (2) of the Amended Regulation. 12 See Article 9 of the Regulation. 13 See Article 6(3) of the Amended Regulation. 14 See Article 15 of the Amended Regulation.

text: the BAMC if the bank or the BAMC shows that the transfer of such assets will improve the BAMC’s management efficiency or confidence in the bank, but only subject to prior consent of the Committee . Pursuant to the Amended Regulation, the Committee may request changes to the proposed business strategy with respect to selected assets to be transferred to the BAMC, taking into account the results of the asset quality review and stress tests, and based on the opinion of Banka Slovenije . 1.6 The assets to be transferred will be evaluated on the basis of their real long-term economic value. The transfer price will equal the real long-term economic value minus the amount of the BAMC’s refinancing and operating costs . The amendments require that the costs to be borne by a bank must be reasonable and justified and shall be determined in the contract between the bank and the BAMC on the basis of the Committee’s prior opinion. The contract between the bank and the BAMC may stipulate that an agreed part of such costs is to be paid by the bank in advance of the transfer to the BAMC. If the payment for the transfer of assets is provided by way of delivering BAMC’s government-guaranteed bonds to the bank, the principal of the bonds must be equal to the transfer price . 1.7 Further amendments have been introduced to the methodology for evaluation of the assets that will 19 20 be transferred to the BAMC and to the provisions on recapitalisation measures .

text: 2. Duty to consult the ECB

text: The ECB received a request for this Opinion after the amendments to the Regulation had been adopted and entered into force. Pursuant to Articles 127(4) and 282(5) of the Treaty, the ECB must be consulted, taking due account of the ECB’s fields of competence, on draft national legislative provisions and at an appropriate stage in the legislative process. This implies that the consultation should take place at a point in the legislative process that affords the ECB sufficient time to examine the draft legislative provisions, adopt its opinion and allow the relevant national authorities to take the ECB’s opinion into consideration, prior to the adoption of the provisions. The ECB requests that, in future, the Ministry honours its obligation to consult the ECB in due time.

text: 3. Role of Banka Slovenije

text: The ECB notes that Banka Slovenije’s role in the process for the implementation of relevant measures has been strengthened by: (a) new Article 8(2) of the Amended Regulation which explicitly states that the Committee’s proposal to the Government on the implementation of measures shall be based on Banka

text: Slovenije’s assessment of a bank’s business strategy, and (b) amended Article 15 of the Regulation which provides that the proposed selection of assets to be transferred shall be prepared by the BAMC and the relevant bank, in cooperation with Banka Slovenije. The ECB welcomes such new provisions regarding Banka Slovenije’s role, as they are also in line with previous Opinions

text: and

text: 4. Asset quality review and stress tests

text: The ECB welcomes that the authorities are committed to mandating external contractors to conduct asset quality reviews and stress tests, and to consulting European institutions in the process, including the ECB . In order to ensure credible results in terms of revealed resilience and capital needs of the banks, such exercises should be performed in accordance with best international practice, avoiding conflicts of interest. The application of measures to banks on this basis should help to restore confidence in the Slovenian banking system. In this context Banka Slovenije, as supervisor and contributor to the stability of the financial system, should be closely involved in the process of asset quality reviews and stress tests. Pursuant to Article 7 of the Amended Regulation, the Committee shall, within the business strategy assessment process, take into account the results of both the asset quality reviews and stress tests, while

text: Article 8

text: states that the Committee’s proposal to the Government will be prepared on the basis of the asset quality review (and on the basis of Banka Slovenije’s assessment of the business strategy) but not the stress test. The ECB notes that the Committee’s proposal should also take into account the results of the stress tests.

text: 5. Valuation of assets to be transferred to the BAMC

text: The assets that will be transferred to the BAMC will be evaluated on the basis of their real long-term economic value. The methodology for the estimation of such value of assets to be transferred to the BAMC has been amended. In this context, the ECB notes that such estimation shall be in line with Union rules and practices on State aid, and in particular those regulating the valuation of assets in asset relief schemes .

text: 6. Subscription of new capital instruments

text: With respect to recapitalisation measures, the ECB notes that any provision of extraordinary public financial support to a bank should not be taken into account when determining the subscription price of new capital instruments that such bank may issue.

text: 7. Other observations

text: The ECB notes that the Amended Regulation follows the ECB’s previous recommendation to remove from the Regulation the requirement that banks should commit to increase lending to small and mediumsized companies, as the extension of credit should always rely on a sound assessment of borrowers’ creditworthiness. The ECB invites the authorities to consider also implementing the other recommendations from Opinion

text: , such as the establishment of a cash protocol to ensure the timely or early repayment of BAMC State-guaranteed bonds. Also, appropriate oversight and transparency of the BAMC’s operations will be crucial for the success of the scheme .

text: Done at Frankfurt am Main, 13 August 2013.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI

type: vagledning

utgivare: ecb


text: Article 2 of the draft law, amending Article 108 of the Law of 21 December 1994 on social and other provisions (hereinafter the ‘Law of 21 December 1994’) with regard to the creation of the National Accounts Institute.

text: By virtue of Article 108 of the Law of 21 December 1994, the National Accounts Institute provides the National Accounts, the Financial Accounts, the annual and quarterly accounts of General Government, the quarterly national accounts and the gross regional products. 6

text: Article 109

text: , third paragraph, of the Law of 21 December 1994. 7 Article 3 of the draft law amending the third paragraph of Article 109 of the Law of 21 December 1994. 8 Article 4 of the draft law amending Article 118 of the Law of 21 December 1994. 9 10 European Commission (Eurostat), Final Findings, EDP dialogue visit to Belgium, 27 June 2012, available at the Eurostat website at http://epp.eurostat.ec.europa.eu.

text: See paragraph 2 of Opinion

text: . 13 See Article 22.1 of the Law of 22 February 1998 establishing the Organic Statute of the NBB.

title: Opinion of the European Central Bank of 29 August 2013 on a new statistical task of the Nationale Bank van België/Banque Nationale de Belgique (CON/2013/68)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 29 August 2013 on a new statistical task of the Nationale Bank van België/Banque Nationale de Belgique (

text: ) Introduction and legal basis

text: On 29 July 2013, the European Central Bank (ECB) received a request from the Vice Prime Minister and Minister for Economy, Consumers and North Sea, for an opinion on a draft law entrusting a new statistical task to the Nationale Bank van België/Banque Nationale de Belgique (NBB) (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the fourth 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 , since the draft law relates to the collection, compilation and distribution of monetary statistics. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The draft law relates to the allocation of statistical tasks between the National Institute of Statistics, the National Accounts Institute and the NBB. In this respect: (a) the National Institute of Statistics is the national statistical authority in Belgium in accordance with

text: Article 5(1) of Council Regulation (EC) No 223/2009

text: of the European Parliament and of the Council of 11 March 2009 on European statistics ; (b) the NBB collects and compiles statistics in its fields of competence in accordance with Article 5 of the Statute of the European System of Central Banks and of the European Central Bank and

text: Council Regulation (EC) No 2533/98 of 23 November 1998

text: concerning the collection of statistical information by the European Central Bank ; and (c) the National Accounts Institute is an independent body endowed with legal personality and subject to oversight by the Ministry of Economic Affairs which is responsible for providing government

text: finance statistics with the support of the NBB and the Federal Office for Planning. Since 1994, the NBB has compiled the national, regional and public sector accounts, which serve as a basis for the production of excessive deficit procedure (EDP) statistics by the National Accounts Institute . The NBB has therefore developed specific expertise in EDP statistics, which is complementary to financial banking statistics and the compilation of annual accounts of Belgian undertakings by the NBB central balance sheet office. 1.2 The draft law formally recognises these existing arrangements by: (a) entrusting the National Accounts Institute with responsibility for providing EDP statistics; and (b) providing that the National Accounts Institute will be assisted in the compilation of these EDP statistics by the NBB, which will, for this purpose, rely on data collected by the National Institute of Statistics and compiled by the National Accounts Institute as well as on data transmitted by entities subject to reporting obligations to the National Accounts Institute or via the general database established on 1 October 1991 . It is proposed that the Belgian State will compensate the NBB in advance and on an annual basis in respect of additional costs directly related to the compilation of the abovementioned statistics in accordance with an agreement to be entered into between the Belgian State and the NBB . 1.3 The explanatory memorandum states that the abovementioned amendments are designed to reflect the fact that the provision of EDP statistics is now a stand-alone task under

text: Council Regulation (EC) No 479/2009 of 25 May 2009

text: on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community . Carrying out this new task requires additional financial and human resources, as the European Commission (Eurostat) has recommended improving the coverage, timing and accuracy of EDP statistics.

text: 2. General observations

text: 2.1 The ECB notes that, in compliance with Regulation No 479/2009, the draft law vests statutory responsibility for EDP statistics with the National Accounts Institute, which will be assisted in the task of compiling such statistics by the NBB. The ECB considers that entrusting the NBB with this new statistical task is compatible with its European System of Central Banks (ESCB) tasks. The ECB welcomes the fact that the draft law formalises a pre-existing practical arrangement, thus improving the transparency of institutional arrangements and the division of responsibilities with respect to the compilation and provision of EDP statistics.

text: 2.2 The ECB notes that the assumption of new tasks by a national central bank (NCB) in the ESCB should generally not infringe upon the NCB’s independent execution of tasks within the ESCB framework and the NCB’s existing tasks . The ECB considers that the draft law raises no concerns regarding the financing of the performance of this task by the NBB, since it provides for the compensation of the NBB in advance, on an annual basis, in respect of additional costs directly related to the compilation of EDP statistics. 2.3 The ECB notes that, as the statistical authority bearing the ultimate responsibility for the provision of EDP statistics, the National Accounts Institute shall be responsible for the permanent dialogue with the Commission in accordance with

text: Articles 11

text: to 13 of Regulation No 479/2009. In accordance with Article 12.2 of Regulation 479/2009, the NBB shall, in respect of services directly or indirectly involved in the production of government accounts, provide Commission officials with the assistance necessary to carry out their duties, including making documents available to justify the reported actual deficit and debt data and the underlying government accounts . As the Commission (Eurostat) has the right to access the accounts of all government entities in the context of its methodological visits, this may require the assistance of other national authorities who have a functional responsibility for the control of public accounts. As EDP statistics do not fall within the ambit of ESCB tasks, the ECB considers that the NBB’s assumption of this new statistical task, along with the conduct of dialogue and methodological visits by the Commission, in conjunction with the National Accounts Institute, raises no concerns as regards the functional independence of the NBB, which is safeguarded under the Treaty and the Organic Statute of the NBB in respect of the ESCB tasks performed by the NBB .

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

text: Done at Frankfurt am Main, 29 August 2013.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: Cap 204 of the Laws of Malta. 2 OJ L 189, 3.7.1998, p. 42.

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

text: OJ C 41, 14.2.2012, p. 1.

text: See, for example, paragraph 5.1 of Opinion

text: , paragraph 3.1 of Opinion

text: and paragraph 2.1 of Opinion

text: See recommendation E of Recommendation ESRB 2011/3.

text: See paragraph 4 of Opinion

text: , paragraph 3.2 of Opinion

text: and paragraph 2.3 of Opinion

text: See recommendation C of ESRB Recommendation 2011/3.

text: Regulation (EU) No 1092/2010

text: ; OJ L 331, 15.12.2010, p. 1.

text: See

text: Article 17

text: A of the draft law.

title: Opinion of the European Central Bank of 13 September 2013 on amendments to the Central Bank of Malta Act (CON/2013/69)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 13 September 2013 on amendments to the Central Bank of Malta Act (

text: ) Introduction and legal basis

text: On 14 August 2013, the European Central Bank (ECB) received a request from the Central Bank of Malta (hereinafter ‘CBM’) for an opinion on draft amendments to the Central Bank of Malta Act (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 indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law concerns the CBM. 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 introduces additional amendments to the Central Bank of Malta Act in order to cater for further legal developments with regard to the previous version of the draft legislation, on which the ECB commented in Opinion

text: . The draft law proposes adding a new paragraph (d) in

text: Article 5(1)

text: in order to clarify that the CBM has been given the macro-prudential policy mandate, as well as a new

text: Article 17

text: B to establish a Joint Financial Stability Board (JFSB) to ensure effective cooperation between the CBM and the Malta Financial Services Authority (MFSA), which is the competent authority as regards banking supervision. A new

text: Article 8(3)

text: also provides for the appointment of a second Deputy Governor.

text: 2. Clarification of the macro-prudential policy mandate

text: Article 5(1)

text: (d) of the draft law provides the CBM, as the sole macro-prudential authority, with the macro-prudential policy powers set out in the new

text: Article 17

text: A of the draft law, notwithstanding the fact that this task is currently assumed under

text: Article 5(1)

text: (c) of the Central Bank of Malta Act,

text: which provides that the Bank is entrusted with the function of ensuring the stability of the financial system. 2.2 The ECB supports the design of effective macro-prudential policy frameworks within Member States, in line with the guiding principles set out in Recommendation

text: of the European Systemic Risk Board of 22 December 2011 on the macro-prudential mandate of national authorities . Moreover, the ECB considers that the ECB and national central banks (NCBs) should play a leading role in macro-prudential oversight, given their expertise and existing responsibilities in the area of financial stability . 2.3 At the same time, while the CBM’s performance of macro-prudential tasks should be operational and financially independent , it should not affect: (a) the CBM’s functional and financial independence; or (b) the European System of Central Banks’ performance of its 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’) . The ECB also understands that current provisions of the Central Bank of Malta Act, which ensure the CBM’s independence in implementing its objectives and performing all its tasks and activities, will also cover the formulation and implementation of macro-prudential policy. 2.4 For the benefit of its macro-prudential oversight tasks, the CBM should be authorised to require and obtain in a timely fashion all data and information collected from reporting entities, such as all financial corporations and other entities which have the information at their disposal, including information other than that currently collected for other purposes, such as statistical purposes . In this regard, the ECB welcomes the amendment to Article 23 of the Central Bank of Malta Act, which gives the CBM the general power to collect information related to statistics in respect of the CBM’s macro-prudential mandate. The new

text: Article 17

text: A(2) provides the CBM, in its capacity as the single macro-prudential authority, with a mandate to cooperate with the ESRB and, where necessary, with other Member States’ macro-prudential authorities, in particular with regard to the exchange of information required to ensure effective macro-prudential oversight. 2.5 This opinion does not prejudice the conclusions of the ESRB’s follow-up assessment of the abovementioned recommendations, which will be issued pursuant to

text: Article 17 of Regulation (EU) No 1092/2010

text: of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board .

text: 3. Joint Financial Stability Board

text: 3.1 The ECB welcomes the CBM’s decision to establish the JFSB in the Central Bank of Malta Act by virtue of

text: Article 17

text: B of the draft law and considers that this will enhance the CBM’s role as a national macro-prudential authority. The ECB understands that the JFSB mainly serves as a forum for cooperation between the CBM and the MFSA on issues which, though falling within the separate competences of the CBM and MFSA, may ultimately affect financial stability generally. The ECB also understands that the new

text: Article 17

text: B will not shift any executive powers relating to macro-prudential policy to the JFSB, and that the insertion of

text: Article 17

text: B(1) will further clarify the JFSB’s status as a body intended to assist the two institutions in the performance of their regulatory tasks by facilitating cooperation between them. 3.2 On a related note, the amendments provide for two types of macro-prudential instrument. The new

text: Article 17

text: A covers the first type addressing macro-prudential issues, referring to directives issued by the CBM and addressed to commercial banks, in order to implement macro-prudential policy and instruments. The second refers to instruments addressing financial stability matters generally and macro-prudential issues specifically, and comprises the JFSB’s recommendations, advice or assessments addressed to public authorities or public institutions. The ECB understands that the CBM is the sole competent authority to issue macro-prudential instruments, primarily concerning the banking sector , while the JFSB, as a forum for cooperation, may make recommendations to the CBM Governor on macro-prudential instruments and may further advise other public authorities or institutions on financial stability issues. 3.3 The ECB also welcomes

text: Article 17

text: B(4), which provides that the JFSB’s functions should be performed without prejudice to the Treaty and the Statute of the ESCB and any legal acts issued thereunder, ensuring that the JFSB’s activities must also take account of the ECB’s macroprudential supervisory powers in the context of the single supervisory mechanism.

text: 4. Appointment of a second Deputy Governor

text: 4.1 The ECB welcomes

text: Article 8(3)

text: , which provides for the appointment of a second Deputy Governor, who will be responsible for the financial stability mandate. A number of NCBs already employ this arrangement, based on an allocation of tasks. The ECB agrees that having two Deputy Governors, one responsible for the monetary policy mandate and the other for the financial stability mandate, will improve the streamlining and effective division of responsibilities at senior management level within the CBM. 4.2 A Member State’s relevant authorities have the duty to take necessary measures to ensure the timely appointment of a successor if a member’s position on one of its NCB’s decision-making bodies becomes vacant. In this regard, the ECB welcomes the amendment to

text: Article 8(3)

text: (b), which

text: reflects the need for the smooth and continuous functioning of the CBM’s decision-making bodies. By virtue of this provision, a Deputy Governor may be temporarily appointed by the Board to carry out the duties of a Governor in case of a vacancy. However, the appointment of a new Governor under the provisions of

text: Article 8

text: should take place as soon as possible. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 13 September 2013. [signed]

text: The President of the ECB

text: Mario DRAGHI


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

text: OJ C 41, 14.2.2012, p.1.

text: See

text: Articles 17

text: to 19 of the draft law. 8 See Articles

text: to 16 and 21 of the draft law. 9 See

text: Article 4

text: Article 13(3)

text: and Article 15 of the draft law. 10 See, for example, paragraph 2.1 of Opinion

text: , paragraph 2.1 of Opinion

text: , paragraph 2.1 of Opinion

text: and paragraph 2.1 of Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 11 See Article 17(1) of the draft law. 12 See, for example, paragraph 2.2 of Opinion

text: and paragraph 2.3 of Opinion

text: . 13

text: Regulation (EU) No 1092/2010

text: of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European System Risk Board, OJ L 331, 15.12.2010, p. 1.

text: See paragraph 2.4 of Opinion

title: Opinion of the European Central Bank of 18 September 2013 on the establishment of a Financial Stability Board and the macro-prudential mandate of national authorities (CON/2013/70)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 18 September 2013 on the establishment of a Financial Stability Board and the macro-prudential mandate of national authorities (

text: ) Introduction and legal basis

text: On 27 August 2013, the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance for an opinion on a draft law on the macro-prudential supervision of the financial system (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 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 Banka Slovenije 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 draft law implements Recommendation

text: of the European Systemic Risk Board of 22 December 2011 on the macro-prudential mandate of national authorities (hereinafter the ‘ESRB Recommendation’). To this end, it provides for the establishment of a Financial Stability Board (FSB), which will be responsible for macro-prudential policy aimed at preventing and mitigating systemic risks to financial stability. Macro-prudential policy will be implemented by the FSB together with the three independent national authorities responsible for supervising relevant institutions in their respective segments of the financial system: Banka Slovenije, the Securities Market Agency and the Insurance Supervision Agency (hereinafter the ‘supervisory authorities’) . 1.2 The FSB will be composed of eight members: two representatives of each of the three supervisory authorities, and two representatives of the Ministry of Finance. The supervisory authorities’ representatives will have one vote each, but the Ministry of Finance’s representatives will not have voting rights. The Governor of Banka Slovenije will be the FSB’s President and will chair the FSB

text: meetings. The FSB will take decisions at its meetings, which will be normally convened by the FSB’s President four times a year, but may also be convened on the initiative of any other FSB member. The quorum for decision-making will be met if five members with voting rights are present at the meeting. The FSB’s secretariat will be provided by Banka Slovenije and will ensure analytical, administrative and logistical support to the FSB. The supervisory authorities will cooperate with the secretariat in preparing and providing the material to be discussed at FSB meetings and in performing its other tasks . 1.3 The FSB will be empowered to issue guidance to the supervisory authorities in the form of nonbinding recommendations, warnings and instructions, in the following situations: (a) if it sees a need to prevent or mitigate systemic risk to financial stability; or (b) in order to implement the European Systemic Risk Board’s (ESRB) warnings and recommendations. More specifically, the FSB will issue: (a) recommendations, where a disruption could occur in the financial system which may potentially lead to serious negative consequences for the functioning of the financial system and the real economy, if voted for by a majority of FSB members present at the meeting; (b) warnings, where such a disruption in the financial system has already occurred and could have such consequences, if voted for by at least four FSB members; and (c) instructions, where a disruption has already occurred and has such consequences, if voted for by at least five FSB members. The FSB’s guidance will, in particular, define the systemic risk identified and the competent supervisory authority to which implementation of the guidance will be proposed. If appropriate, the FSB will also propose a particular macro-prudential supervisory measure. The FSB will decide on a case-by-case basis whether the guidance is to be published. The supervisory authority to which the guidance will be addressed shall, within seven working days of receipt of the guidance, either implement it or provide an explanation to the FSB of its reasons for non-implementation . 1.4 When implementing macro-prudential policy, the supervisory authorities will be responsible for the macro-prudential supervision of institutions which they supervise pursuant to the Law on Banka Slovenije, the Law on banking, the Law on the financial instruments market, the Law on insurance, the Law on investment funds and management companies, and other laws pursuant to which the supervisory authorities carry out their tasks (hereinafter the ‘sectoral laws’ ). They will implement FSB guidance issued to them in accordance with their competences by applying the available supervisory measures. The supervisory authorities will conduct macro-prudential supervision of relevant institutions by monitoring, collecting and verifying their reports and notifications; by inspecting their operations; and by taking supervisory measures pursuant to the sectoral laws and the draft law. The supervisory authorities will also, inter alia, assess systemic risks in their field of competence, and propose to the FSB a means of identifying systemically important institutions and the appropriate action to be taken. Together with the FSB the supervisory authorities will

text: participate in ESRB activities and follow its recommendations, in default of which they shall provide an explanation to the FSB of their reasons for any non-compliance with such acts . 1.5 The draft law lays down the rules for the collection and exchange of information and the protection of confidentiality in order to achieve the effective application of macro-prudential policy . It also lays down rules for cross-border cooperation between relevant authorities .

text: 2. General observations

text: 2.1 The ECB supports the effective design of macro-prudential policy frameworks within the Member States, in line with the guiding principles expressed in the ESRB Recommendation. Moreover, the ECB and national central banks should play a leading role in macro-prudential oversight, given their expertise and existing responsibilities in the area of financial stability . 2.2 The draft law suggests that it is the intention of the consulting authority to confer such a leading role to Banka Slovenije by (a) designating the Governor of Banka Slovenije as President of the FSB, entrusted with convening and chairing its regular meetings, and (b) assigning to Banka Slovenije a competence to provide the FSB Secretariat. In addition, Banka Slovenije will be responsible for the macro-prudential supervision of financial institutions pursuant to sectoral laws, as well as leasing firms . 2.3 In line with observations made in previous ECB opinions , Banka Slovenije’s mandate to perform macro-prudential tasks should not affect: (a) its institutional, functional and financial independence; or (b) the performance by the European System of Central Banks of its tasks under the Treaty and the Statute of the European System of Central Banks and of the European Central Bank. The ECB welcomes Article 12(2) of the draft law, which explicitly states that neither the performance of the tasks under the draft law nor the content of FSB guidance shall interfere with the supervisory authorities’ fundamental objectives and independence. 2.4 The ECB understands that the FSB guidance provided to supervisory authorities under

text: Article 9(1)

text: will be limited to ensuring correct and timely implementation of the ESRB recommendations, where the ESRB has adopted recommendations on the same matter, and will be without prejudice to obligations on the addressees of ESRB recommendations, pursuant to

text: Regulation (EU) No 1092/2010

text: 2.5 In order to facilitate the FSB’s ability to efficiently coordinate cooperation between supervisory authorities and to harmonise the use of macro-prudential supervisory measures applied without formal guidance from the FSB, the draft law may provide that supervisory authorities should, in a timely and appropriate manner, inform the FSB and other supervisory authorities of the measures taken. 2.6 In line with observations made in previous ECB opinions , the consulting authority is invited to revise

text: Article 4(5)

text: and Article 15(5) of the draft law to ensure that the FSB shall also cooperate and exchange data and information with the ECB and the ESRB, in accordance with the ESRB Recommendation. 2.7 This opinion is without prejudice to the conclusions of the follow-up assessment of the above mentioned ESRB Recommendation, which the ESRB will prepare in accordance with

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

text: Done at Frankfurt am Main, 18 September 2013.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: The newly adopted Law CXXXIX of 2013 on the MNB has been published in Magyar Közlöny No. 158/2013, (26.9.2013). 2 Law CCVIII of 2011. 3 OJ L 189, 3.7.1998, p. 42.

text: For the ECB’s opinion on this proposal, see Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 5 Submitted to the ECB under the title ‘Proposal on the amendments of acts concerning the proposal on the Act of Central Bank of Hungary’. 6 Draft law T/12018. egyes törvényeknek a Magyar Nemzeti Bankról szóló törvénnyel összefüggő, valamint egyéb célú módosításáról, available at the Hungarian Parliament’s website. 7 Published in Magyar Közlöny No. 159/2013 (27.9.2013). 8 Published in Magyar Közlöny No. 160/2013 (30.9.2013.)

text: See Articles 11, 39, 75, 104, 107, 113, 126, 133, 138, 145, 164 and 180 of the draft law.

text: See Article 172 of the draft law. 11 See paragraph 3.1.11 of

text: . 12 See Article 181 of the draft law. 13 See point 23 of

text: Article 187

text: See the website of the Bank for International Settlements (BIS) at http://www.bis.org/publ/bcbs230.pdf. 15 See Principle 2 of the Core Principles for Effective Banking Supervision. 16 See also Principle 2.1 of the Core Principles for Effective Banking Supervision.

text: See the amendments to Article 235 of Law CXII of 1996. 18 Law XLVII of 2008. 19 Law CLV of 1997. 20 OJ C 41, 14.2.2013, p.1. 21 OJ L 331, 15.12.2010, p. 1.

text: Point 8 of amending proposal T/12018/3.

title: Opinion of the European Central Bank of 7 October 2013 on the integrated Hungarian supervisory framework (CON/2013/71)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 7 October 2013 on the integrated Hungarian supervisory framework (

text: ) Introduction and legal basis

text: On 24 August 2013, the European Central Bank (ECB) received a request from the Hungarian Ministry of National Economy (hereinafter the ‘consulting authority’) for an opinion on a new draft law amending several legal acts in the area of financial regulation (hereinafter the ‘draft law’) in connection with a Law CXXXIX of 2013 on the Magyar Nemzeti Bank (hereinafter referred to as the ‘new Law on MNB’) facilitating the integration of the Hungarian Financial Supervisory Authority (HFSA) into the Magyar Nemzeti Bank (MNB). This consultation request is a follow-up to Opinion

text: on the draft law replacing the Law on the Magyar Nemzeti Bank . On 16 September 2013, the ECB received amendments to the draft law from the consulting authority. This correspondence also contained a further request for an ECB opinion on a new draft government decree (hereinafter the ‘draft decree’) amending several government decrees in connection with the integration of the HFSA into the MNB. Given that this request is also directly connected to the new integrated supervisory structure in Hungary, the ECB has decided to issue a joint opinion on both consultation requests. 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: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law concerns the MNB and contains 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 and the draft decree

text: The Hungarian Parliament has adopted new legislation changing the MNB’s competence and institutional framework by establishing a new legal framework for integrated supervision of the

text: Hungarian financial market as of 1 October 2013 . The purpose of the draft law and the draft decree is to implement this change in other related legal acts. The HFSA is supervising credit institutions, capital markets, insurance markets and financial funds until 30 September 2013. The operational conduct of these functions is further defined in several Hungarian legal acts. To this effect, the draft law amends 57 Hungarian legal acts and the draft decree amends 50 government decrees in the area of financial regulation. Most of the amendments contained in the draft law and in the draft decree are of a technical nature, as the aim of these legislative changes is to reflect the establishment of a new integrated supervisory structure in Hungary by replacing the references to the HFSA and its competences with a reference to the MNB and its new tasks and competences in various legal acts. Moreover, the draft law repeals certain secondary legal acts.

text: 2. The appropriate time to consult the ECB

text: On 24 August 2013, the ECB received the request from the consulting authority for an opinion on the draft law. This request was made on an urgent basis with reference to the Hungarian Parliament’s schedule for discussing the draft law on 9 September 2013. On 30 August 2013, the Government submitted a different version of the draft law to the Parliament , but this version was not sent to the ECB. Furthermore, on 16 September 2013, the consulting authority requested the ECB’s opinion on amendments made to the draft law. The additional request for an opinion on the draft decree similarly stressed the urgency of a quick response from the ECB due to the advanced stage of legislation. In view of the above, this opinion has been adopted in response to the consultation requests, and is based on the texts submitted to the ECB on 24 August and 16 September 2013. The draft law subject to this consultation was adopted on 23 September 2013 shortly after the ECB had been consulted on its amendments, but before it could adopt this opinion. The draft law was published shortly after its adoption as Law CXLIII of 2013 . Similarly, the draft decree was also adopted, and published as Government Decree 345/2013 (IX. 30.) . As a consequence, there was no possibility for the Hungarian legislator to take the ECB’s views into account before adopting the draft law. This circumstance rendered the request for the ECB adopting its opinion in an urgent procedure obsolete.

text: With respect to the consultation on the draft law and the draft decree, the Hungarian authorities have not complied with their duty to consult the ECB. The adoption of this opinion in no way divests the Hungarian authorities of their duty to consult in compliance with this obligation, since this duty is important for the application and interpretation of the enacted laws and any future amendments. The ECB reiterates that, in accordance with

text: Article 4 of Decision 98/415/EC

text: , the ECB must be consulted ‘at an appropriate stage’ in the legislative process, which implies that such consultation should take place at a point in the legislative process that affords the ECB sufficient time to examine the draft legislative provisions and adopt its opinion. Following from the wording of

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

text: , Member States are obliged to suspend the process of adoption of draft legislative provisions pending submission of the ECB’s opinion to allow the relevant national authorities to meaningfully consider the ECB’s opinion prior to adoption of the provisions. In this respect, the ECB stresses that even in cases of particular urgency or where the legislation has reached an advanced stage, the national authorities are not relieved of their duty to consult the ECB at an appropriate stage in the legislative process that allows sufficient time for: (a) the ECB to examine the draft legislative provisions and adopt its opinion in all required language versions; and (b) the national authorities to take into account the ECB’s views in accordance with Decision

text: . The ECB would appreciate the Ministry honouring its obligation to consult the ECB line with the provisions of Decision

text: in the future.

text: 3. Coherence and legal certainty

text: The draft law and the draft decree replace the references to the HFSA and its competences by a reference to the MNB and its new tasks and competences in various legal acts. In doing so, they fail to provide an adequate level of legal certainty, since they refer to the new integrated supervisory institutional regime using both ‘MNB’ and ‘Supervisory Authority’ and provides clarification only in certain cases . In the interest of legal certainty, the ECB suggests using the single term ‘Supervisory Authority’ in all amended legal acts in which a reference to the new integrated supervisory institutional regime is intended. Furthermore, Article 165 of the draft law still contains a reference to the HFSA, which is inconsistent with the future integrated framework of financial supervision under the sole competence of the MNB.

text: 4. The proposed timeline for the effective restructuring of financial supervision in Hungary

text: The new Law on the MNB provides that the MNB is to be fully functional as regards its new 10 11 supervisory tasks on 1 October 2013 . In this regard, the ECB noted in Opinion

text: that the new Law on the MNB does not provide for a sufficient period of time between its adoption and the dissolution of the HFSA, which is also the date on which the MNB shall commence performing its new tasks. Most of the provisions of the draft law and the draft decree are also due to enter into force on 1 October 2013 . The ECB wishes to reiterate that legal certainty would require a longer period of time between the adoption and application of the provisions of the draft law and the draft decree in order to enable the entities operating in the financial markets to bring their internal procedures into line with the new structure of financial supervision in Hungary, thus providing for greater stability within the financial system.

text: 5. Central bank independence and supervisory independence

text: 5.1 During the current consultation procedure, the new Law on the MNB was adopted without taking into account all the ECB’s observations as regards the MNB’s independence; therefore concerns remain regarding compliance with the principle of central bank independence enshrined in Article 130 of the Treaty. 5.2 As regards the draft law, the Law on the HFSA currently empowers the HFSA President to adopt secondary legislation on regulatory matters within his competence. Following the transfer of supervisory tasks from the HFSA to the MNB, the MNB, as general successor, will inherit these legislative powers. On this basis, Article 183 of the draft law repeals 47 decrees adopted by the HFSA President, including, inter alia, the decree on the payment, calculation and conditions for the supervisory fee . In Opinion

text: , the ECB assumed that the HFSA President’s decree providing financing for the supervisory tasks will continue to apply after the transfer of supervisory tasks. In the absence of such continued effect, and also considering the above observations concerning the timeline, the MNB will be unable to raise funds from the supervised entities to cover the costs of its supervisory activities, at least temporarily until the adoption of relevant new financing rules. In the meantime, the MNB will therefore be obliged to finance its supervisory activities from existing resources. This raises serious concerns as regards the MNB’s financial independence. In Opinion

text: , the ECB highlighted that in order to guarantee the MNB’s financial independence, the MNB should be involved in determining the amount of financial contribution payable by supervised entities, and should also independently define the methods to be used to calculate such contributions, taking into account its actual costs. On the other hand, and in

text: line with the principle of central bank independence, the MNB should be able to do this at its own pace and discretion, without ending up in a situation where it has insufficient financial resources to carry out its ESCB-related tasks. The principle of financial independence requires an NCB to have sufficient means to perform its ESCB-related tasks as well as its national tasks, including the tasks newly entrusted to the MNB. Therefore, the HFSA President’s decrees providing financing for the supervisory tasks should continue to apply after the transfer of supervisory tasks to the MNB. 5.3 The Core Principles for Effective Banking Supervision developed by the Basel Committee on Banking Supervision provide that ‘[t]he supervisor possesses operational independence, transparent processes, sound governance, budgetary processes that do not undermine autonomy and adequate resources, and is accountable for the discharge of its duties and use of its resources’ . The lacuna resulting from the general repeal of all legislation as of the effective date of the transfer of supervisory tasks from the HFSA to the MNB, would – in addition to causing legal uncertainty for supervised entities – affect the MNB’s ability to take independent supervisory decisions. The ECB considers that for reasons of legal certainty, unless these decrees become obsolete from an operational rather than an institutional point of view, the legislation adopted by the HFSA President should continue to apply after the transfer of supervisory tasks from the HFSA to the MNB until the MNB is ready to adopt new decrees regulating the subject matter at hand. Introducing a general clause into the draft law to this effect could eliminate the concerns outlined above. 5.4 Moreover, pursuant to Article 20 of the draft law, the MNB will only be able to withdraw the operating licence of a credit institution after obtaining the approval of the Minister of National Economy. This is not in line with the principle of supervisory independence . This should be given due consideration when formulating the amendments to the specific legal acts reflecting the conduct of tasks and competences of the HFSA to be transferred to the MNB by the draft law.

text: 6. Division of macro-prudential competences between the Government and the MNB

text: The ECB notes that the new law on the MNB assigns the fundamental tasks related to the exploration and management of systemic risks to the MNB, thus entrusting it with the conduct of macro-prudential policy and macro-prudential oversight. However, the definition of certain issues

text: related to macro-prudential policy remains in the competence of the Government. As regards the 17 18 Law on credit institutions and financial enterprises , the Law on capital markets , and the Law on the protection of consumers , the draft law does not adequately reflect the division of tasks between the MNB and the Government to be introduced as of 1 October 2013 by the new Law on the MNB. Each of these legal acts would benefit from the introduction of additional provisions providing for a further transfer of Government competences to the MNB. These could include, for example, provisions relating to defining liquidity requirements for credit institutions and mismatches in the structures of maturity of foreign exchange exposures; the personal, organisational and technical requirements applicable to clearing houses; and the definition of consumer creditworthiness. At the same time, the ECB expects to be consulted on any draft national legislation prepared by the MNB Governor that falls within the ECB’s competence, in accordance with the provisions of

text: Council Decision 98/415/EC

text: . Finally, and also in connection with the provisions of the draft law providing for the operational conduct of the new supervisory and macro-prudential functions of the MNB, the ECB would appreciate receiving feedback from the consulting authority as regards steps taken in order to address the outstanding issues concerning central bank independence as noted in this opinion and in Opinion

text: . This opinion is without prejudice to the conclusions of the European Systemic Risk Board’s follow-up assessment of Recommendation

text: of the European Systemic Risk Board of 22nd December 2011 on the macro-prudential mandate of national authorities , which will be prepared pursuant to

text: Article 17 of Regulation (EU) No 1092/2010

text: of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board .

text: 7. The MNB’s cooperation with other bodies

text: One of the amendments to the draft law repeals the provision that allows the MNB to forward individual statistical data pertaining to the activities of investment firms and commodity dealers to the ECB and the ESCB without it being considered an infringement. All observations made in paragraph 3.1.9 of Opinion

text: are also valid in this case and the draft law should therefore reflect the legal obligation to cooperate with the ESCB and the ECB in the field of statistics.

text: Done at Frankfurt am Main, 7 October 2013.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: COM(2013) 342 final.

text: EUT L 306, 23.11.2011, s. 25.

text: ECB:s yttrande av 16 februari 2011 om en reform av Europeiska unionens ekonomiska styrning (EUT C 150, 20.5.2011, s. 1). Alla ECB:s yttranden finns på ECB:s webbplats http://www.ecb.europa.eu

text: Se

text: Europaparlamentets och rådets förordning (EG) nr 223/2009 av den 11 mars 2009

text: om europeisk statistik (EUT L 87, 31.3.2009, s. 164) och

text: rådets förordning (EG) nr 2533/98 av den 23 november 1998

text: om Europeiska centralbankens insamling av statistiska uppgifter (EGT L 318, 27.11.1998, s. 8).

text: Rådets slutsatser om EU-statistik, möte 3129, Ekonomiska och finansiella frågor, Bryssel, 30 november 2011 och rådets slutsatser om EU-statistik, möte 3198 Ekonomiska och finansiella frågor, Bryssel, 13 november 2012, finns på rådets webbplats http://www.consilium.europa.eu

sprak: sv

title: Europeiska centralbankens yttrande av den 10 oktober 2013 om ett förslag till Europaparlamentets och rådets förordning om tillhandahållandet av och kvaliteten på statistik för förfarandet vid makroekonomiska obalanser (CON/2013/72)

text: Inledning och rättslig grund

text: Den 2 juli 2013 respektive den 12 juli 2013 mottog Europeiska centralbanken (ECB) en begäran från Europaparlamentet och Europeiska unionens råd om ett yttrande över ett förslag till Europaparlamentets och rådets förordning om tillhandahållandet av och kvaliteten på statistik för förfarandet vid makroekonomiska obalanser (nedan kallat förslaget till förordning).

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

text: och

text: i fördraget om Europeiska unionens funktionssätt samt artiklarna

text: och

text: i stadgan för Europeiska centralbankssystemet och Europeiska centralbanken (nedan kallad ECBS-stadgan) eftersom förslaget till förordning innehåller bestämmelser som har betydelse för vissa av ECBS uppgifter. Enligt artikel 5.1 i ECBS-stadgan får ECB samla in de statistiska uppgifter som behövs för att utföra ECBS uppgifter. Av artikel 5.3 i ECBS-stadgan framgår att ECB vid behov ska bidra till harmoniseringen av de regler och den praxis som gäller för insamling, sammanställning och distribution av statistik inom dess behörighetsområde. Statistik för förfarandet vid makroekonomiska obalanser krävs för att utforma unionens monetära politik, som är en uppgift för ECBS enligt artikel 127.2 i fördraget och artikel 3.1 i ECBS-stadgan, samt för att för att upprätthålla prisstabilitet som är huvudmålet för ECBS i enlighet med artikel 127.1 i fördraget samt artikel 2 i ECBS-stadgan.

text: I enlighet med artikel 17.5 första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: 1. Allmänna kommentarer

text: 1.1 ECB understryker vikten av att ha tillgång till tillförlitliga statistiska uppgifter för förfarandet vid makroekonomiska obalanser som inrättas genom

text: Europaparlamentets och rådets förordning (EU) nr 1176/2011 av den 16 november 2011

text: om förebyggande och korrigering av makroekonomiska obalanser. I ett av sina tidigare yttranden uttryckte ECB sitt stöd för att införa förordning

text: (EU) nr 1176/2011

text: 1.2 Enligt

text: artikel 4.2 i förordning (EU) nr 1176/2011

text: , ska resultattavlan omfatta ett mindre antal relevanta, praktiska, enkla, mätbara och tillgängliga makroekonomiska och makrofinansiella indikatorer för medlemsstaterna. Därutöver ska kommissionen, i enlighet med

text: artikel 4.7

text: , regelbundet utvärdera indikatorernas lämplighet, inkl. deras sammansättning, de fastställda tröskelvärdena och den metod som används, samt justera dem eller ändra dem om så är nödvändigt.

text: 1.3 Inom ramen för detta har kommissionen inlett ett lagstiftningsinitiativ för att säkerställa kvaliteten på de statistiska uppgifterna för förfarandet vid makroekonomiska obalanser. Kommissionen vill säkra att sammanställningen, övervakningen och publiceringen av den finansiella och makroekonomiska statistiken som behövs för att ta fram resultattavlan med indikatorer som uppställts av kommission utifrån

text: artikel 4 i förordning (EU) nr 1176/2011

text: (nedan kallade uppgifter som har betydelse för förfarandet vid makroekonomiska obalanser) genomförs på ett sätt som garanterar fullgod och oberoende statistik. Enligt förslaget till förordning får kommissionen undersöka eventuella problem samt föreslå rådet att ålägga en medlemsstat böter om den uppsåtligen eller av grov oaktsamhet lämnar felaktiga uppgifter som har betydelse för förfarandet vid makroekonomiska obalanser.

text: 2. Sammanställning av makroekonomisk och finansiell statistik som bidrar till den ekonomiska och monetära unionen samt andra delar av unionens politik

text: 2.1 Indikatorerna för förfarandet vid makroekonomiska obalanser härleds normalt från befintlig makroekonomisk och finansiell statistik, t.ex. betalningsbalansen, finans- och nationalräkenskaper. Europeiska statistiksystemet (ESS) och Europeiska centralbankssystemet (ECBS) har under många år tagit fram makroekonomisk och finansiell statistik inom sina respektive kompetensområden och bedriver en kontinuerlig kvalitetskontroll av statistiken för att säkerställa att statistiken överensstämmer med internationella standarder och är tillförlitlig och jämförbar mellan olika medlemsstater.

text: 2.2 Genom att hitta den rätta balansen mellan snabbhet, tillförlitlighet och tillräcklig detaljnivå tar ESS och ECBS fram bra makroekonomisk och finansiell statistik på ett kostnadseffektivt sätt. Statistik som tas fram ofta tas fram med lägre detaljnivå medan produktionen av statistik med högre detaljnivå tar längre tid. Statistiken bygger på undersökningar, administrativa uppgifter och nödvändiga estimat som kompletterar statistiska metoder och experters bedömningar. Hela processen beaktar även behovet av att minska rapporteringsbördan för uppgiftslämnarna, t.ex. små och medelstora företag. Den makroekonomiska och finansiella statistiken har under många år varit grunden för ekonomiska och penningspolitiska beslut på både nationell och EU-nivå. Samma statistik används även av internationella organisationer som IMF och OECD i deras granskningsrapporter.

text: 3. Hur ESS och ECBS kvalitetssäkrar statistiken för förfarandet vid makroekonomiska obalanser

text: 3.1 Kvalitetssäkringen av den makroekonomiska och finansiella statistiken garanteras av ESS och ECBS i egenskap av europeiska statistikproducenter. ECB anser att kvalitetssäkringsåtgärderna totalt sett har bidragit till att ta fram högkvalitativ statistik till stöd för ekonomiska och penningspolitiska beslut inom den ekonomiska och monetära unionen samt unionen som helhet.

text: 3.2 Vad gäller statistik över betalningsbalansen, national- och finansräkenskaper, den offentliga sektorns räkenskaper samt prisstatistik innehåller unionens lagstiftning redan bestämmelser om regelbundna kvalitetsbedömningar av de statistiska uppgifterna som beskriver av de metoder och källor som används för att samla in statistiken.

text: 3.3 Kvalitetsbedömningarna som tas fram av ESS och ECBS bedömer bl.a. om statistiken motsvarar kraven enligt unionslagstiftningen, huruvida de är tillförlitliga och jämförbara mellan olika medlemsstater samt om de är tillräckligt bra för sitt avsedda syfte.

text: 3.4 Kvalitetsramen enligt förslaget till förordning omfattar statistiska uppgifter för förfarandet vid makroekonomiska obalanser, men bortser från andra ekonomiska och penningspolitiska användningsområden. Det tycks som om det genom förordningen inrättas parallella kvalitetsbedömningar istället för att man integrerar < i den existerande kvalitetsramen.

text: 3.5 Mot bakgrund av detta rekommenderar ECB att man, istället för att införa en helt ny kvalitetssäkringsram genom förslaget till förordning, tillämpar ESS och ECBS kvalitetssäkringsåtgärder som redan existerar även på de statistiska uppgifterna avseende förfarandet vid makroekonomiska obalanser. Ett sådant tillvägagångssätt skulle bygga på principerna om uppgifternas relevans, kostnadseffektivitet och minimering av rapporteringsbördan i enlighet med förordningarna

text: (EG) nr 223/2009

text: och

text: (EG) nr 2533/98

text: 4. Förbättrad kvalitetssäkring av statistik genom närmare samarbete mellan ESS och ECBS

text: 4.1 Eftersom ansvaret för att ta fram den makroekonomiska och finansiella statistiken som ligger till grund för indikatorerna för förfarandet vid makroekonomiska obalanser delas mellan ESS och ECBS, krävs det ett nära samarbete mellan dessa två system för att säkerställa kvaliteten, i enlighet med

text: artikel 9 i förordning (EG) nr 223/2009

text: och

text: artikel 2 a i rådets förordning (EG) nr 2533/98

text: , vilket även understryks av rådet i dess slutsatser om EU-statistik av den 30 november 2011 och den 13 november 2012.

text: 4.2 Mot bakgrund av detta vill ECB nämna det arbete som initierats av kommittén för valuta-, finans- och betalningsbalansstatistik (CMFB) med målet att bedöma kvaliteten och jämförbarheten av uppgifter som har betydelse för förfarandet vid makroekonomiska obalanser enligt den aktuella lagstiftningen om statistik. CMFB kan också informera om olika sätt för att öka den allmänna medvetenheten kring dessa frågeställningar. När CMFB:s arbete vidareutvecklas kan praktiska arrangemang för samarbetet mellan ESS och ECBS om kvalitetssäkringen av de statistiska uppgifterna avseende förfarandet vid makroekonomiska obalanser vid behov sammanfattas i ett samförståndsavtal.


text: Zakon o bančništvu (ZBan-1) (Ur. l. RS No 99/2010 – official consolidated text, as amended). 3 See conditions for the application of extraordinary measures in the amended

text: Article 253

text: a of the Law on banking. 4 See the proposed new

text: Article 253

text: b of the Law on banking.

text: See the amended Section 7.7.2. of the Law on banking. 6 See amendments to

text: Articles 255

text: a to 260b of the Law on banking. 7 See amendments to

text: Articles 262

text: a and 262b of the Law on banking. 8 See amendments to Article 263 of the Law on banking. 9 See amendments to Article 266 of the Law on banking. 10 See the amended Section 10.2.2. of the Law on banking. 11 See the proposed new

text: Article 253

text: b, point 1 of the Law on banking. 12 See the proposed new

text: Article 253

text: b, point 2 of the Law on banking.

text: See paragraph 3.1 of Opinion

text: and paragraph 3.2 of Opinion

text: . 14 Proposal for a Directive of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directives

text: and

text: , Directives

text: and

text: and

text: Regulation (EU) No 1093/2010

text: (COM (2012) 280 final). 15 Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘Banking Communication’) (OJ C 216, 30.7.2013, p. 1).

text: See paragraph 1 of Opinion

title: Opinion of the European Central Bank of 15 October 2013 on measures for bank reorganisation (CON/2013/73)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 15 October 2013 on measures for bank reorganisation (

text: ) Introduction and legal basis

text: On 19 September 2013, 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 banking (hereinafter the ‘draft law’). On 4 October 2013, the ECB received a revised version of 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 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 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 draft law mainly relates to ‘extraordinary measures’ that Banka Slovenije may impose on banks that fail or are likely to fail to meet minimum requirements for capital and liquidity in a way that would justify the withdrawal of the authorisation . The extraordinary measures may be imposed on a bank with a view to either (i) restoring the bank to long-term viability pursuant to the Law on banking and other applicable laws or (ii) enabling an orderly wind-down of the bank . 1.2 There are four types of extraordinary measures already available to Banka Slovenije: (a) putting the bank into special administration, and appointing administrators; (b) selling all of the bank’s shares; (c) increasing the share capital of the bank; and (d) transferring the bank’s assets. The draft law broadens this framework of extraordinary measures to empower Banka Slovenije to reduce share capital, to write down hybrid capital instruments and subordinated liabilities of a bank, or to convert hybrid capital instruments and subordinated liabilities into common shares of a bank, to the

text: extent necessary to cover losses and ensure the capital adequacy of a bank. Any exercise of this power shall adhere to the principle that no creditor shall be worse off than under normal insolvency proceedings . 1.3 Furthermore, the draft law revises the rules on other extraordinary measures. As regards special administration, it specifies in more detail, inter alia, the tasks of the administrators, which include assessing the viability of, and preparing a reorganisation plan for, the relevant bank . The draft law also modifies provisions on other existing extraordinary measures, i.e. bank’s share capital increase and transfer of assets . 1.4 Banka Slovenije will regularly assess the effectiveness of extraordinary measures in terms of their objectives. Should the bank’s situation during the implementation of the extraordinary measures not improve to the extent of ensuring its long-term viability, Banka Slovenije will initiate winding up proceedings against the bank, i.e. compulsory liquidation or bankruptcy proceedings . The rules on compulsory liquidation are amended to take account of the revision of the rules governing the extraordinary measures . 1.5 The draft law also amends the provisions on legal recourse against Banka Slovenije’s decision on extraordinary measures. It further specifies limitations to Banka Slovenije’s liability for damages with respect to such measures. Those affected by extraordinary measures may seek compensation if the damage suffered is greater than if no extraordinary measures had been implemented . 1.6 Certain amendments are also introduced in relation to the liability of members of banks’ governing bodies.

text: 2. General observations

text: 2.1 The ECB broadly welcomes the draft law as it strengthens the tools and procedures available to Banka Slovenije for the effective reorganisation of distressed banks. The ECB understands that Banka Slovenije’s extraordinary measures serve both as tools for the 11 12 restructuring , as well as the resolution of banks . The tasks allocated to Banka Slovenije as a supervisory and resolution authority, should not affect its ability to carry out its tasks related to the European System of Central Banks as provided for by the Treaty and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) from an operational and financial perspective. Furthermore, Banka Slovenije, in exercising its powers, should take all measures necessary to ensure appropriate functional separation between its

text: supervisory and resolution tasks, on the one hand, and its monetary policy tasks, on the other hand, in line with the Treaty and the Statute of the ESCB . 2.2 The ECB notes that Banka Slovenije’s new tools and powers in relation to bank reorganisation, in particular the power to reduce share capital and to write down or convert into common shares hybrid capital instruments and subordinated liabilities, draw from the resolution tools and powers provided for in the European Commission’s proposal for a directive establishing a framework for the recovery and resolution of credit institutions and investment firms , which is currently going through the adoption process in the European Parliament and the Council. In this context, the ECB understands that the legislator will review the Law on banking once the above-mentioned draft directive is adopted, in order to ensure full consistency with developments at Union level. The same applies with respect to the development and implementation of the Single Supervisory Mechanism, which will confer specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions. 2.3 Union State aid rules must be complied with whenever Banka Slovenije imposes reorganisation measures in the form of extraordinary measures as provided for under the Law on banking in respect of any bank and, in addition to extraordinary measures, such banks need public support to ensure their viability or orderly resolution in the event that they are not viable.

text: 3. Specific observations

text: 3.1 The proposed new

text: Article 260

text: a of the Law on banking prohibits the administrators from paying out holders of capital instruments and subordinated liabilities, where the bank’s operations are to be gradually wound down, without the prior consent of Banka Slovenije. The draft law further states that Banka Slovenije will give its consent to the repayment of such instruments and liabilities where their non-payment could endanger the stability of the financial system. In line with State aid rules, such consent may be given at Banka Slovenije’s discretion, but only in exceptional circumstances when Banka Slovenije considers that the stability of the financial system would be endangered. In this context, the ECB notes an inconsistency in the regime of exceptions to burdensharing measures under the proposed new

text: Article 260

text: a of the Law on banking as described above and the regime under the proposed new Section 7.7.2 of the Law on banking, where no exceptions to burden-sharing are provided for. 3.2 As highlighted in previous ECB opinions on bank resolution, institutions that are failing or likely to fail should in principle, subject to a decision by the resolution authorities, be resolved using resolution tools when this is deemed necessary and in the public interest, including the prevention

text: of systemic risk. If the resolution authority concludes that there is no public interest concern, the institution should be liquidated under the insolvency proceedings normally applicable to such institutions under national law . 3.3 The draft law seeks to ensure that Banka Slovenije’s decisions on extraordinary measures are recognised, and therefore enforced, in other Member States. In this respect, the ECB welcomes that the revised version of the draft law explicitly defines Banka Slovenije’s extraordinary measures as reorganisation measures under Directive

text: of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions , where those measures are ‘intended to preserve or restore the financial situation of a credit institution and which could affect third parties' pre-existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims’. 3.4 Finally, the valuation of a bank’s assets pursuant to the proposed new

text: Article 261

text: b should not be made on the assumption that the bank is a going concern, except for the purpose of determining the value of new shares in the case of an increase in share capital by means of the conversion of qualified liabilities into equity on the basis of the relevant extraordinary measure.

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

text: Done at Frankfurt am Main, 15 October 2013.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: OJ L 189, 3.7.1998, p. 42. 2 RA-APPS is established pursuant to Government Decision No 60 of January 21 2005 to manage, preserve the integrity of, and protect State property. 3 Article 7 of the draft law. 4 Article 6 of the draft law.

text: Law 422/2001 on the preservation of historical monuments, published in Monitorul Oficial al României, Part I, No 407 of 24 July 2001. 6

text: Article 36(1)

text: (b) of Law 422/2001. 7

text: Article 24(1)

text: and (2) of Law 422/2001. 8 See the ECB’s Convergence Report, 2013, p. 20. 9 Article 55 of the BNR Statute provides that: ‘BNR may only invest in real estate for its own operating needs and the collective needs of its employees, as established by its Board’. 10 Further clarified by

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

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

text: and

text: b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). Articles

text: and

text: b(1) of the Treaty establishing the European Community are now Articles 123 and 125(1) of the Treaty. 11 For details see the ECB’s Convergence Report, 2013, p. 27.

title: Opinion of the European Central Bank of 29 October 2013 on the transfer of the management of State properties to Banca Naţională a României (CON/2013/74)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 29 October 2013 on the transfer of the management of State properties to Banca Naţională a României (

text: ) Introduction and legal basis

text: On 5 August 2013, the European Central Bank (ECB) received a request from Banca Naţională a României (BNR) for an opinion on a draft law on the transfer of certain State properties from the management of Regia Autonomă ‘Administraţia Patrimoniului Protocolului de Stat’ to the management of BNR (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to BNR. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The draft law provides for the transfer of the management of two State-owned properties from the Regia Autonomă ‘Administraţia Patrimoniului Protocolului de Stat’(RA-APPS, a financially autonomous body with legal personality responsible for management of the State heritage and protocol) to BNR (hereinafter the ‘transfer’) to serve as its premises. According to the explanatory memorandum to the consultation request, the transfer is meant to cater for BNR space requirements following changes to its organisational structure, and it includes the fixed assets, inventory goods and on-going investments related to the properties concerned. As manager of these properties, BNR will be obliged to ensure, inter alia, that they are guarded, maintained, preserved and restored . If used for purposes other than those provided for in the draft law, the properties are to be transferred back to RA-APPS .

text: One of the properties concerned is a historical monument and the other one is located within the protection zone of a historical monument. Therefore, Romanian legislation on the preservation of historical monuments is applicable, and BNR will be obliged to ensure that the properties are guarded and protected, to take all necessary measures to prevent or extinguish fires and to carry out works of preservation, consolidation, restoration, repair and maintenance . Any works carried out on the properties must be authorised by the Ministry of Culture .

text: 2. Central bank independence

text: The wording of the draft law gives rise to concerns as regards central bank independence under Article 130 of the Treaty and Article 7 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter ‘the Statute of the ESCB’) as it does not mention whether BNR has given its prior agreement to this transfer. Overall, the ECB notes that the draft law is silent on the reasons for the transfer. In addition, the scope of the envisaged transfer needs to be clarified as it is not clear whether this transfer concerns property rights, management or both with regard to the two buildings. Moreover, the draft law only indicates that, if used for purposes other than those provided for in the draft law, management of the properties is to be transferred back to RA-APPS. There is no other provision relating to the duration of the transfer or a situation where BNR would no longer need the use of the buildings.

text: 3. Monetary financing prohibition

text: The wording of the draft law also raises concerns regarding compliance with the monetary financing 10, 11 prohibition under Article 123(1) of the Treaty and Article 21.1 of the Statute of the ESCB , as the draft law contains no reference to the financial aspects of the transfer, except to state the inventory value of the two buildings. There is no indication of whether BNR must make any payment for this transfer and it is not clear whether an assessment has been carried out with regard to the costs for renovating the buildings and their amortisation or the costs to be incurred by BNR for management of these buildings and how these costs will be financed. These financial aspects of the envisaged transfer need to be addressed in compliance with the monetary financing prohibition before adoption of the draft law.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 29 October 2013. [signed]

text: The Vice President of the ECB

text: Vítor CONSTÂNCIO