EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 5 October 2007 
at the request of the Portuguese Ministry of Fi nance and Public Administration on a draft decree-
law amending the legal framework of credit  institutions and financial companies 
(CON/2007/29) 
 Introduction and legal basis
 
On 6 August 2007 the European Central Bank (ECB) received a request from the Portuguese Ministry of 
Finance and Public Administration for an opinion on a draft decree-law amending the legal framework of 
credit institutions and financial compan ies (hereinafter the ‘draft law’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the third indent of Article 2(1) of Council Decision 98/415/EC of 29 June 1998 
on the consultation of the European Central Bank by  national authorities regarding draft legislative 
provisions1, as the draft law relates to the Banco de Port ugal. In accordance with the first sentence of 
Article 17.5 of the Rules of Procedure of the Europ ean Central Bank, the Governing Council has adopted 
this opinion. 
 1.  Purpose of the draft law 
1.1 The draft law is intended to enhance the consumer  protection regime for transactions in financial 
products and services offered by entities supervised by the Banco de Portugal. More specifically, it 
will empower the Banco de Portugal to lay down ru les on: (i) the conduct of credit institutions in 
their dealings with customers, namely by issui ng instructions concerning codes of conduct to be 
adopted by the credit institutions and/or industry associations and by establishing guidelines for this purpose; and (ii) the transparency of transac tions in financial products and services. The draft 
law will also give the Banco de Portugal power s to impose sanctions in case of breach of such 
rules.  
1.2  Furthermore, the draft law will empower the Banco de Portugal to lay down minimum information 
requirements which credit institutions will have to  comply with when advertising their products 
and services to the public. The Banco de Portugal will be empowered to lay down mandatory rules 
                                                     
 
1  OJ L 189, 3.7.1998, p. 42.  
2 on the content of contracts between credit institu tions and their customers and to impose penalties 
for breach, by credit institutions, with th e rules on advertising issued by it. 
1.3  Finally, the draft law will provide for an add itional derogation from the current regime for data 
protection and professional secrecy which applies to  supervisory authorities, in order to allow 
judges in criminal or insolvency proceedings to have access to confidential information held by the 
Banco de Portugal about credit liab ilities and cheque users (payers).  
 2. General observations 2.1 As regards the granting of new consumer prot ection powers to the Banco de Portugal, the ECB 
notes that the new tasks described in paragr aph 1.1 and 1.2 above are not listed among the 
functions of national central banks (NCBs) as specifi ed in the Statute of th e European System of 
Central Banks and of the European Central Bank (the ESCB Statute). However, as pointed out on 
previous occasions
2, and without prejudice to the Governing Council’s powers under Article 14.4 
of the ESCB Statute, the ECB does not consider that the abovementioned tasks would interfere 
with the objectives and tasks of the European System of Central Banks. 
2.2 Nonetheless, pursuant to the last sentence of Article 14.4 of the ESCB Statute, these new tasks 
would have to be performed on the responsibility an d liability of the Banco de Portugal, and would 
not be regarded as being part of the ESCB’s functions. 
2.3  The ECB understands that the underlying reas on for allocating the above tasks to the Banco de 
Portugal is linked to its overall responsibility for supervision of the financial market. In this 
context, the ECB considers that the new tasks may complement the Banco de Portugal’s existing 
supervisory powers and thus contribute to th e soundness of the financial market and the 
preservation of confidence in the marketplace.  
2.4 The ECB welcomes the allocation of new power s to the Banco de Portugal with the aim of 
ensuring the transparency of transactions for financial services and products offered by entities 
subject to its supervision, as this could improve th e clarity and efficiency of the national regulatory 
framework while ensuring adequate consumer prot ection and a level playing field. The imposition 
of specific transparency requirements for fi nancial transactions, accompanied by effective 
monitoring of compliance with those requirement s, should allow consumers to compare more 
easily the different products and services on offer and could therefore enhance competition. 
                                                      
2  See ECB Opinion CON/2006/47 of 13 September 2006 at the reque st of the Czech Ministry of Industry and Trade on an 
amendment to the Law on Česká národní banka, ECB Opinion CON/2006/38 of  25 July 2006 at the request of the Bank 
of Greece on a draft provision on the Bank of Greece’s powers in the field of consumer protection, and ECB Opinion 
CON/2007/8 of 21 March 2007 at the request of the Czech Ministry of Industry and Trade on certain provisions of a draft 
law amending the Law on consumer protection relating to Česká národní banka. 
3 2.5 As previously stated by the ECB with re gard to granting similar powers to other NCBs3, it is 
important to ensure that both prudential supe rvision and investor/consumer protection have 
adequate and equal emphasis and th at appropriate resources are available to ensure the performance 
of such functions. 
 3. Specific observations 3.1 It is noted that, without prejudice to the rules a pplicable to complaints made to credit institutions, 
the customers of these institutions may submit compla ints directly to the Banco de Portugal if there 
is breach of legislative or regulatory provisions governing their activities, as long as the complaint is not related to a dispute of a purely contract ual nature between the customer and the credit 
institution. Disputes between credit institutions and their customers stemming from unregulated 
commercial practices, and complaints on any matter  which has already been brought before a court 
of law or an arbitration tribunal will fall outside the scope of the Banco de Portugal’s intervention. 
3.2 However, the ECB suggests that the negative competence clause in Article 77-A(4) may not be 
sufficient to avoid a potentially large volume of complaints, even though it specifically aims to tackle this risk. These new tasks and procedures br oadly described under Article 77-A of the draft 
law are likely to require the Banco de Portugal to  commit considerable resources, both human and 
financial. The ECB has consistently held the view  that ‘Member States may not put their NCBs in 
the position of not having suffici ent financial resources to carry out their ESCB or Eurosystem 
related tasks, as applicable’
4.  
3.3 The ECB therefore expects that, when granting these additional powers to the Banco de Portugal, 
care will be taken to ensure that the Banco de  Portugal’s operational capacity to carry out 
Eurosystem-related tasks will not be affected. 
 This opinion will be published on the ECB’s website.  Done at Frankfurt am Main, 5 October 2007. 
[signed] 
 
The President of the ECB  
Jean-Claude TRICHET 
                                                     
 
3  See ECB Opinion CON/2006/38, ECB Opini on CON/2006/47 and ECB Opinion CON/2007/8.  
4 See e.g. the ECB’s Convergence Report 2004, p. 28, and similarly in the ECB’s Convergence Report December 2006, 
p. 27.