EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 11 January 2010 
on recovery measures that apply to undertak ings in the banking and financial sector,  
on the supervision of the financia l sector and financial services and  
on the statutes of the Nationale Bank van België/Banque Nationale de Belgique  
(CON/2010/7) 
 Introduction and legal basis
 
On 23 November 2009 the European Central Bank (ECB) received a request from the Belgian Ministry of 
Finance for an opinion on three draft laws: (a) a draf t law supplementing the recovery measures that apply 
to undertakings in the banking and financial sector (h ereinafter the ‘first draf t law’), (b) a draft law 
providing remedies supplementing the first draft law (her einafter the ‘second draft law’), and (c) a draft 
law amending the law of 2 August 2002 on the superv ision of the financial sector and financial services, 
as well as the Law of 22 February 1998 establishing the Organic Statute of the Nationale Bank van 
België/Banque Nationale de Belgique (hereinafter the ‘third draft law’). Given the current turmoil in the 
financial markets and the need for firm intervention by the authorities involved, the consulting authority 
has requested the ECB to provide its opinion as a matter of urgency to allow for the swift adoption of the draft 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, fifth and sixth indents of Article 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consulta tion of the European Central Bank by national 
authorities regarding draft legislative provisions
1, as the draft laws relate to the Nationale Bank van 
België/Banque Nationale de Belgi que (NBB), payment and settlement systems and rules applicable to 
financial institutions insofar as they materially influe nce the stability of financial institutions and markets. 
In addition, the Eurosystem shall contribute to th e smooth conduct of policies relating to the prudential 
supervision of credit institutions and the stability of  the financial system under Article 127(5) of the 
Treaty. 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. 
 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2 1.  Purpose of the draft laws 
1.1 The first draft law extends the scope of the measures that the Banking, Finance and Insurance 
Commission (BFIC) and the King may take as part of the general rescue package put in place by the Belgian authorities in response to the current tu rmoil in the financial markets. Under the first 
draft law, the BFIC may suspend the execution of contracts of insurance undertakings and credit institutions that are subject to its supervision
2. In addition, if an insurance undertaking, credit 
institution, securities settlement institution3 or assimilated institution is not operated in compliance 
with applicable laws and if such non-compliance is  likely to affect the stability of the Belgian or 
international financial system, the King may adopt any measure in favour of the State or any other 
person or entity, whether Belgian or foreign, and whether subject to public or private law. Such 
measure may provide for the transfer, sale or cont ributions relating to: (a) assets, liabilities or one 
or more fields of activity or all or part of the rights and obligations of an insurance undertaking or 
credit institution, as well as (b)  securities or shares issued by all su ch institutions and undertakings, 
whether capital or not, and whether or not they entail voting rights4.  
1.2  The ECB understands from the explanatory memorandum that the purpose of such transfer, sale or 
contribution is to enable the underlying assets of  the non-compliant undertakings and institutions  to 
be transferred to ‘bad banks’, ‘good banks’ or ‘bridge banks’.  This legal framework is significantly 
inspired by the Law of 26 July 1962 on emerge ncy proceedings for expropriations for public 
purposes, the constitutionality of which has been  confirmed several times by the Belgian 
Constitutional Court5. If the Belgian State decides to carry out  a transfer, sale or contribution, it 
must file a request with the Court of First Instan ce of Brussels. The Court will verify the legality of 
the transfer, sale or contribution and the fairn ess of the compensation. The transfer, sale or 
contribution will only take effect once the Court confirms that these two conditions are met. The 
owners of the assets subject to transfer, sale or  contribution are only entitled to request that the 
Court review the issue of compensation, without prejudice to the transfer, sale or contribution being executed. When assessing the fairness of the compen sation, the Court takes particular account of 
the credit institution’s actual situati on prior to the transfer, including its financial situation, or the 
financial situation it would have been in if the p ublic aid, from which it has benefited directly or 
indirectly, had not been granted. For the purpo ses of this provision, advances of emergency 
liquidity and guarantees given by legal entities govern ed by public law are treated as public aid. 
1.3 In addition, the first draft law amends the loss- sharing arrangements applicable to the owners of 
securities whose financial instruments are held by financial intermediaries involved in the issuance 
                                                 
2  Articles 2(1) and 4(1) of the first draft law. 
3  The ‘securities settlement institution’ is generally defi ned under Article 2(17) of the Law of 2 August 2002 on the 
supervision of the financial sector and fi nancial services as ‘an institution performi ng the settlement of transfer orders of 
financial instruments, of the entitlements relating to such fi nancial instruments or forward exchange transactions, with or 
without cash settlement’. The securities settlement institution that may be subject to the new measure should also be 
licensed as central depository under Royal Decree No 62 on the deposit of fungible financial instruments and the 
settlement of operations concerning those instruments, c oordinated by the Royal Decree of 27 January 2004.    
4  Articles 2(2), 4(2) and 6(2) of the first draft law.   
5  Second draft law, explanatory memorandum, p. 2.  
3 or holding of book-entry securities6. Under the current provisions7, in the event of the insolvency or 
administration of a financial intermediary that issues or holds book-entry securities, if the remaining value of securities of a given category is insufficient to discharge the obligation of that 
financial intermediary towards all owners of these se curities, the loss is borne by all owners of the 
same category of instrument in proportion to thei r holdings. If the financial intermediary holds 
securities of the same category in its own name  and for its own account, these securities will be 
shared between all other owners of the same ca tegory of security, thereby mitigating the loss 
incurred by the owners of those securities. Under th e first draft law, if the owners of securities 
authorise a financial intermediary to dispose of th eir securities, and if the securities are disposed of 
as authorised, in the event of th e insolvency or administration of  the financial intermediary, the 
owners of the securities may not recover all the securities of the same category. The owners of 
these securities continue to have a claim against th e financial intermediary, which will be satisfied 
after the claims of those owners of securities who ha ve not authorised the re-use of their securities.  
1.4 The third draft law sets up the ‘Committee fo r systemic risks and system-relevant financial 
institutions’ (CSRSFI)
8 as an autonomous institution with legal personality, with the task of 
contributing to maintaining the stability of the financial system and, in particular: 
(a) monitoring the financial system in order to inte rvene if it identifies any threats to the stability 
of the system; 
(b) advising the Federal Government and the Federal Parliament on measures that are necessary 
to contribute towards stability, and the proper functioning and efficiency of the country’s 
financial system; 
(c) coordinating crisis management; 
(d) supervising financial institutions that are important to the financial system and in particular  
monitoring and evaluating the strategic devel opments and risk profiles of these institutions9;  
                                                 
6  Articles 32, 33 and 34 of the first draft law.  These financial intermediaries include: 
- all possible participants of securitie s settlement institutions (namely those authorised under Directive 98/26/EC of 
the European Parliament and of the Council of 19 Ma y 1998 on settlement finality in payment and securities 
settlement systems (OJ L 166, 11.6.1998, p. 45), to become participants of a ‘system’, including the  credit 
institutions, investment undertakings, public authorities , central counterparties, settlement agents, clearing 
houses, securities settl ement systems and sy stem operators),  
- all licensed account holders ( teneurs de compte agréés ) under the Law on Companies and the Royal Decree of 
12 January 2006, namely all credit institutions incorporated under Belgian law, stock exchange brokers 
incorporated under Belgian law, all branches of the af orementioned institutions when authorised in their home 
state to carry out similar activities, the NBB, as well as all securities settlement in stitutions incorporated under 
Belgian law, and 
- the entities authorised to hold government bonds under the Law of 2 January 1991, namely credit institutions 
incorporated under Belgian law, i nvestment undertakings incorporated under Belgian law, branches of the 
aforementioned institutions incorporated under the laws of an EU Member State, as well as securities settlement 
institutions. 
7  Law of 2 January 1991 on the market in public debt securiti es and monetary policy instrume nts, and Royal Decree No 62 
on the deposit of fungible financial in struments and the settlement of operat ions concerning such instruments, 
coordinated by the Royal Decree of 27 Janua ry 2004 as well as the Law on Companies. 
8  Article 22 of the third draft law, inserting Chapter IV in  the Law of 2 August 2002 on the supervision of the financial 
sector and financial services. 
4 (e) ensuring the exchange of information and the coordination of policies between the NBB and 
the BFIC; 
(f) contributing to the performance of these tasks on an  international and European level, in so 
far as this concerns cooperation with the European Systemic Risk Board (ESRB). 
1.4.1 The CSRSFI is exclusively authorised to take administrative decisions pertaining to the prudential 
supervision of financial institutions that are im portant to the financial system, including taking 
extraordinary recovery measures and imposing pe nalty payments. In exercising these powers, the 
CSRSFI will support the BFIC and the NBB, in a ccordance with their respective powers. The BFIC 
and the NBB are responsible for implementing the de cisions within the areas of their responsibility. 
The CSRSFI may oppose the strategic decisions of a financial institution that is important to the 
financial system, if its decisions would be contra ry to the prudent management of the financial 
institution or if this would have a significant adve rse effect on the stability of the financial system. 
1.4.2 In the performance of its task s, the CSRSFI is supported by the BFIC and the NBB, which provide 
information for the proper discharge of its tasks. The operating costs of the CSRSFI are to be borne 
by the budgets of the BFIC and the NBB, in  accordance with the decision of the King on the 
recommendation of the CSRSFI. 
1.4.3 The CSRSFI is composed of the members of  the BFIC’s Executive Committee and of the NBB’s 
Board of Directors with an observer from the Fe deral Public Service Finance appointed by the 
Minister for Finance. The CSRSFI is chaired by the NBB’s Governor. Decisions are taken on the basis of a majority of the votes cast. The Chair has a casting vote. 
1.4.4 The CSRSFI staff members and governing body  members, as well as the persons previously 
fulfilling the functions referred to above, are bound by obligations of confidentiality and may not 
disclose confidential information concerning the CSRSFI’s activities or policies to any 
unauthorised person or authority.  
1.4.5 By 30 September 2010, the King will adopt royal d ecrees that will allow for the structures related 
to supervision of the financ ial sector to be developed
10. Under the royal decrees, NBB will be 
entrusted with (a) the powers and tasks of the CSRSFI, insofar as they concern the prudential 
supervision of financial institutions that are impor tant to the financial system, and (b) with the 
powers and tasks of the BFIC, insofar as they  concern the prudential supervision of credit 
institutions, insurance companies,  investment firms, management companies of undertakings for 
collective investment, reinsuran ce companies and institutions for corporate pension schemes, with 
the exception of the supervision of codes of c onduct that apply to the savings, investments, 
                                                                                                                                                             
9  Financial institution that are important to the financial system  are defined by reference to a combination of institutional 
criteria (it may be a credit institution or an insurance undert aking) and economic criteria (the  amount of the balance sheet 
of the consolidated annua l accounts, market share of the savings market or  the supply of credit in Belgium, or its deciding 
role with regard to custodian or payment activities, or transa ctions relating to Belgian securities on Belgian territory). See 
Article 2 of the third draft law.  
10  Article 26 of the third draft law.  
5 pensions and insurance markets. Under the royal decrees NBB will have the power to establish one 
or more legal entities (hereinafter the ‘entities’) to  exercise all or some of the powers referred to 
above and some of the tasks assigned to the N BB by the Law of 22 February 1998 establishing the 
Organic Statute of the NBB. The NBB, on behalf of those entities, will be responsible for establishing their tasks, bodies and methods of f unding, providing personnel, and using any other 
means necessary to ensure  their effectiveness. Furthermore,  the royal decrees will regulate the 
transfer of NBB staff members to the entities and th e transfer of BFIC staff members to the NBB or 
to the entities; the legal entity to which the sta ff members are transferred will assume all existing 
rights and obligations as regards such staff members.  
 2.  General observations 
2.1 Reorganisation of the supervisory structure of the Belgian authorities  
2.1.1 The ECB supports the Belgian supervisory reform , which is aimed at enha ncing the Government’s 
ability to identify and monitor systemic risks. The establishment of the CSRSFI, which will be 
followed next year with NBB being assigned res ponsibility for the prudential supervision of all 
financial institutions (thereby adopting a ‘twin-peak s’ supervisory model) is  welcome and is in line 
with the ECB’s consistent position regarding the need  for the close involvement of central banks in 
prudential supervision
11. The ECB understands that the supervisor y reform that is the subject of the 
third draft law will be accomplished by way of separ ate legislation, yet to be adopted by the King. 
This separate legislation should be the subject of  a separate consultation based on Articles 127(4) 
and 282(5) of the Treaty; the general comments that  follow are without prejudice to a more detailed 
analysis of the supervisory reform, based on th e royal decrees to be adopted by the King.  
2.1.2 In order to avoid any legal risks associated w ith the independent discharge of the NBB’s European 
System of Central Banks (ESCB)-related tasks, any new legal entity established by the NBB to 
carry out existing or new tasks of the NBB under th e supervisory reform could be placed under the 
control of the NBB’s decision-making body responsible  for the discharge of its ESCB-related tasks. 
However, as specified by the ECB in its Convergence Reports12, ‘if the law provides for separate 
decision-making by such supervisory authorities, it is  important to ensure that decisions adopted by 
them do not endanger the finances of the NCB [national central bank] as a whole. In those cases, the national legislation should enable the NCBs to  have ultimate control over any decision by the 
supervisory authorities that could affect an NC B’s independence, in particular its financial 
independence.’ The exposure of the NBB to liabilities resulting from the funding and budgetary decisions of such entities that are outside th e control of the NBB’s decision-making body 
responsible for the discharge of its ESCB-related ta sks, but that are at th e same time a constituent 
part of the NBB, could be seen as a threat to the NBB’s financial independence
13. The new entities 
                                                 
11  Opinion CON/2007/33, paragraph 2.1. All ECB opinions  are available on the ECB’s website www.ecb.europa.eu. 
12  ECB’s Convergence Report 2008, p. 21 and 22. 
13  ECB’s Convergence Report 2008, p. 21 to 23. See also footnote 15. 
6 should not seek to influence the NBB’s decisi on-making body in the performance of its ESCB-
related tasks, and the NBB should in partic ular preserve its institutional independence14.  
2.2 Establishment of the CSRSFI 
2.2.1 The ECB understands that the CSRSFI, an autonomous institution with a legal personality, 
decision-making competences, and regulatory as well as sanctioning powers, will have the task of contributing to maintaining the stability of the financial system. As the ESRB has similar responsibilities, and as the task of contributing, at national level, to the stability of the financial 
system is shared with the NBB
15, the ECB makes the following observations regarding the 
establishment of this committee. 
2.2.2 First, the establishment of national financial stability committees can enhance the ability of national 
central banks and supervisory authorities to contribute analytical support to the ESRB. The tasks performed by these committees should complement th e activities performed by the ESRB, therefore 
it is particularly important to de velop appropriate synergies. Howeve r, it is necessary to avoid such 
national committees being entrusted with tasks a nd powers that potentially conflict with those of 
the ESRB, and which may undermine the effectiven ess of the newly-established European macro-
prudential supervisory body. Moreover, the legal frameworks of these committees should 
appropriately reflect the roles of central banks, should not constrain the independence of the governors of the central banks or unduly affect the quality and impartiality of their contributions as 
members of the ESRB. Lastly, in view of the importance of ensuring the effectiveness of macro-
prudential supervisory arrangements at the EU leve l, it is essential to safeguard the ability of the 
ESRB to perform its tasks independently and to gua rantee an authoritative and effective channel for 
transmitting the warnings and recommendations issued by the ESRB. 
2.2.3 Second, the Memorandum of Understanding on cooperation between Fi nancial Supervisory 
Authorities, Central banks and Finance Ministries of the European Union on cross-border financial 
stability (MoU) that entered into force on 1 J une 2008, provides for the establishment in each 
Member State of a domestic standing group, i.e. a national level group cons isting of the financial 
supervisory authorities, central banks and finan ce ministries, with the objective of enhancing 
preparedness under normal market conditions and facilitating the management and resolution of 
financial crises. Following the conclusion of th e MoU, the Belgian authorities designated the 
Belgian Financial Stability Committee as the nati onal domestic standing group. For the purposes of 
legal certainty, the related tasks, i.e. enhanc ing preparedness under normal market conditions and 
facilitating the management and resolution of a financ ial crisis, could be listed in the third draft law 
among the tasks entrusted to the CSRSFI. 
2.2.4 Third , it is necessary to ensure that the tasks assigned to the CSRSFI, i.e. to supervise the financial 
institutions that are important to the financial syst em and in particular to guarantee the monitoring 
                                                 
14  Opinion CON/2002/16, paragraph 6.  
15  Article 12 of the Law of 22 February 1998 es tablishing the Organic Statute of the NBB.  
7 and evaluation of the strategic developments and risk profiles of these institutions, do not prejudice 
nor overlap with the exclusive responsibility of th e NBB to ensure the proper, efficient and sound 
operation of clearing systems16, as such securities settlement systems qualify as financial 
institutions that are important to the fi nancial system under the third draft law17, as well as the 
responsibilities of NBB as an integral part of th e Eurosystem based on Article 127(2) of the Treaty 
and Article 22 of the Statute of the European Syst em of Central Banks and of the European Central 
Bank (hereinafter the ‘Statute of the ESCB’).  
2.2.5 Fourth, as regards the financing of the CSRSFI by the NBB18, the ECB refers to the principle of 
financial independence according to which an NCB must have sufficient means not only to perform 
its ESCB-related tasks, but also its own national tasks19. Also, the supervisory tasks should be 
carried out while complying with the prohibition of  monetary financing laid  down in Article 123(1) 
of the Treaty, read in conjunction with Counc il Regulation (EC) No 3603/93 of 13 December 1993 
specifying definitions for the application of the prohibitions referred to in Articles 104 and 104b(1) [now Articles 123 and 125(1)] of the Treaty
20. Thus, the assignment to the NBB of the tasks and 
powers of the BFIC must be accompanied by measures that insulate the NBB from financial obligations resulting from the prior activities of the BFIC
21. 
2.2.6 Fifth, one of the CSRSFI’s tasks will be to ensure the exchange of information between the NBB 
and the BFIC. Such information is protected by  the rules on confidentiality applicable to the 
members of the CSRSFI’s governing body and its staff members. The ECB recommends that these 
rules on confidentiality should be complemented w ith appropriate information disclosure standards 
that are consistent with Union law provisions that regulate the exchange of supervisory and 
statistical information between supervisory authorities22. 
 
                                                 
16  Opinion CON/2002/13, paragraph 11.  
17 See the definition of ‘system-relevant financial institution’ in Article 2 of the third draft law; see also the explanatory 
memorandum to the third law, p. 4 and 5.  
18  In accordance with a Royal De cree to be adopted by the King. 
19  Opinion CON/2009/93, paragraph 3.1.5. 
20  OJ L 332, 31.12.1993, p. 1. 
21  ECB’s Convergence Report May 2008, p. 23 and 24; see Opinion CON/2005/24, paragraph 12, and Opinion 
CON/2005/39, paragraph 9. 
22  See, e.g., Article 12 of Directive 2002/87/EC of the Eur opean Parliament and of the Council of 16 December 2002 on the 
supplementary supervision of credit institu tions, insurance undertakings and investme nt firms in a financial conglomerate 
and amending Council Directives 73/239/EEC, 79/267/EEC,  92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and 
Directives 98/78/EC and 2000/12/EC of the European Parl iament and of the Council (OJ L 35, 11.2.2003, p. 1), 
Article 58(5) of Directive 2004/39/EC of the European Pa rliament and of the Council of 21 April 2004 on markets in 
financial instruments amending Counc il Directives 85/611/EEC and 93/6/EE C and Directive 2000/12/EC of the 
European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2004, p. 1), 
Article 49 of Directive 2006/48/EC relating to the taking up and pursuit of the business of credit institutions (recast) 
(OJ L 177, 30.6.2006 p. 1), and Article 70 of the Directive of  the European Parliament and of the Council on the taking-
up and pursuit of the business of insurance and reinsurance (Solvency II) (recast), 19 Oct ober 2009 (not yet published in 
the Official Journal of the European Union ). 
8 3.  Specific remarks  
3.1 Transfer, sale or contribution of assets, liab ility, branches of activities, securities or shares  
3.1.1 The draft laws provide a new legal framework for the transfer, sale or contribution of assets, 
liabilities or shares of credit institutions, insuran ce undertakings, securities settlement institutions 
and assimilated institutions, to enhance the tools fo r managing crises of financial institutions and in 
particular to enable the transfer of underlyi ng assets to ‘bridge banks’. Such a development is 
welcome and is in line with current policies bot h at European and international levels for 
establishing a sound crisis resolution framework to intervene when financial institutions have a 
systemic impact on the financial system. 
3.1.2 The ECB notes that the first draft law provides that  the King, either at the BFIC’s request or on his 
own initiative, after receiving an opinion from the BFIC and the CSRSFI, has the power to initiate 
the sale, transfer or contribution by an insu rance undertaking, a credit institution, a securities 
settlement institution or assimilated institution, of assets in favour of the State or any other person 
or entity (whether Belgian or foreign, and whether subject to public or private law). This procedure 
does not sufficiently recognise the important role of the NBB when evaluating the consequences of 
such measures on overall financial stability, as th e first draft law envisages a role for the NBB 
limited to providing opinions at the request of the BFIC. 
3.1.3 The ECB understands that the Belgian legisl ator has framed the proceedings leading to such 
measures in the light of the decisions of the European Court for Human Rights23 as well as of the 
Belgian Constitutional Court, and so to comply with  the principle that no one may be deprived of 
their possessions except in the public interest and in  accordance with the law. The second draft law 
establishes a detailed legal framework , with the involvement of a court to verify that the conditions 
of the law are complied with, and that the compensation paid to the owners of the underlying assets is fair
24. The ECB assumes that such measures will be taken in exceptional circumstances where, in 
compliance with the principle of proportionality, the seriousness of the measure is commensurate to 
the threat to the financial stability that the meas ure seeks to remedy. As already mentioned in its 
opinion on rescue measures adopted by the Belgian legislator25, it is important that national 
authorities seek to coordinate their responses to the current financial situation with their Union 
partners, in line with appli cable Union law and the arrangements in place, such as the MoU26.   
3.1.4 As for paragraph 6 of the second draf t law, in line with its previous opinions27, the ECB emphasises 
that emergency liquidity assistance should consis t of temporary liquidity provision to illiquid but 
solvent institutions. In this respect, the provisi on of emergency liquidity assistance is a normal 
central bank task and cannot be considered as St ate aid. Therefore, the sentence referring to 
                                                 
23  7 November 2002, Olczak  v Poland , No 30417/96 and 1 April 2004, Camberrow MMS AD  v Bulgaria,  No 50357/99. 
24  Articles 2, 4 and 6 of the second draft law.  
25  Opinion CON/2008/46, in particular paragraph 2.2. 
26  Available on the ECB’s webs ite at www.ecb.europa.eu. 
27  In particular, see Opinion CON/2008/46, paragraph 3.1. 
9 emergency liquidity assistance as a form of State aid28 could be misleading. For the sake of clarity, 
it is suggested that the word ‘ publiques ’ should be deleted from this sentence of the draft law and 
the explanatory memorandum. 
3.1.5 The above measures are without prejudice to the NBB’s oversight function on the basis of 
Article 127(2) of the Treaty and Article 22 of the Statute of the ESCB. Securities settlement 
institutions and assimilated institutions, to the exte nt that they are subject to the abovementioned 
exceptional measures upon the occurrence of exceptiona l circumstances, should continue to employ 
all necessary accounting practices and safekeeping pr ocedures, as well as internal and external 
controls to comply with ESCB/Committee of Eu ropean Securities Regulators’ ‘Recommendations 
for Central Counterparties’ (CESR), in par ticular Recommendations 7 and 14, and provide 
participants with sufficient information for them  to identify and evaluate accurately the risks 
associated with using these services.  Custodians entrusted with financial instruments by a Central 
Counterparty should continue to comply with ESCB/CESR Recommendations for Security Settlement Systems, including Recommendations 12 and 18. 
3.2 Amendment of the loss-sharing arrangements upon insolvency of a financial intermediary 
Notwithstanding the loss-sharing arrangement pr oposed under the first draft law and without 
prejudice to the NBB’s oversight functions in accordance with Articles 127(2) of the Treaty and Article 22 of the Statute of the ESCB, there must always be a number of procedures, controls and 
remedies in place to reflect ESCB/CESR Recomme ndations for securities settlement systems, in 
particular Recommendations 6 and 12, making the materialisation of such a loss actually highly 
unlikely. Moreover, the records maintained by fina ncial intermediaries must include details of the 
clients and financial instruments that may be u sed to enable the correct  calculation in any loss 
allocation mechanism that might be applicable. Finally, financial intermediaries should provide 
securities owners with sufficient information for th em to accurately evaluate the risks and costs 
associated with any applicable loss sharing arrangements. 
 
                                                 
28  See Article 2 of the second draft law, inserting an Article 26ter in the Law of 9 July 1975 concerning the regulation of 
insurance undertakings, §6 in fine, which reads as follows: ‘T he Court shall in particular take into the insurance 
undertaking’s practical situation before the transfer, especially the financial situat ion it was in, or the financial situation  it 
would have been in if public aid, from which the insurance un dertaking directly or indirect ly benefited, had not been 
granted. For the purposes of the current provision, the followi ng shall be treated as public aid: advances of emergency 
liquidity and guarantees given by  a legal entites governed by public law’. See th e similar provisions in Article 3, inserting 
an Article 57ter §6 in the Law of 22 March 1993 concerning the status and supervision of credit institutions and Article 4 
inserting an Article 23/2 in the Law of 2 August 2002 on prud ential supervision of the fi nancial sector and financial 
services.  
10 This opinion will be published on the ECB’s website. 
  Done at Frankfurt am Main, 11 January 2010. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET