EN
OPINION OF THE EUROPEAN CENTRAL BANK
of 9 July 2002
at the request of the Belgian Ministry of Finance
on a draft for a new Article 879 of the Companies Code, introduced by the Programme Law,
as well as several articles interpreting and amending the Organic Law of the Nationale Bank van
België/Banque Nationale de Belgique, introduced by paragraphs 6 to 10 of Article 141 of the
draft law on the prudential supervision of the financial sector and financial services
(CON/2002/18)
1. On 19 June 2002 the European Central Bank (ECB) received a request from the Belgian
Ministry of Finance for an opinion concerning a draft for a new Article 879 of the CompaniesCode, introduced by the programme law, as well as paragraphs 6 to 10 of Article 141 of thedraft law on prudential supervision of the financial sector and financial services (the draftlaw). The draft provisions clarify the relations hip between the specific institutional framework
of the Nationale Bank van België/Banque Nationale de Belgique and the general rules on publiclimited liability companies, which apply supplementarily to the Nationale Bank vanBelgië/Banque Nationale de Belgique.
2. 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 Decision98/415/EC of 29 June 1998 on the consultation of the European Central Bank by nationalauthorities regarding draft legislative provisions
1, as the draft proposal contains provisions
concerning the Nationale Bank van België/Banque Nationale de Belgique. In accordance withthe first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, thisopinion has been adopted by the Governing Council of the ECB. 
3. The ECB welcomes the fact that Article 141(6) of the draft law enhances legal certainty by
explicitly stating how the supplementary nature of the provisions concerning public limitedliability companies should be understood. It should be noted that this interpretation ofArticle 2(2) of the Organic Law on the Nationale Bank van België/Banque Nationale deBelgique (the Organic Law) coincides with the assumptions used by the European MonetaryInstitute (EMI)when assessing the compatibility of Belgian legislation, including the statutes of
                                                     
1 OJ L 189, 3.7.1990, p. 42.
2the Nationale Bank van België/Banque Nationale de Belgique, with Community law2. The ECB
recalls that although  Member States are free to subject their national central banks (NCBs) toeither public or private law, the provisions governing the legal status of an NCB  in the presentcase company law  may not infringe the requirements of the Treaty or the Statute of theEuropean System of Central Banks and of the European Central Bank. In the opinion of the
ECB, any other interpretation of Article 2(2) would not be compatible with the requirements ofthe Treaty and the Statute, in particular those concerning independence contained in Article 108of the Treaty and Article 7 of the Statute. In this context, the ECB also takes note of the newarticle introduced into the Companies Code which deals with the entering of the Nationale Bankvan België/Banque Nationale de Belgique on the list of companies the shares of which may beoffered to the public. In the ECBs opinion, the provision concerning the inclusion of an explicitcomment in this list drawing the publics attention to the fact that the provisions concerninglimited liability companies apply to the Bank only supplementarily rightly underlines thespecific institutional framework of the Nationale Bank van België/Banque Nationale deBelgique.
4. Article 141(7) of the draft law introduces an Article 9a into the Organic Law which confirms the
legal status of the official foreign reserves held by the Nationale Bank van België/BanqueNationale de Belgique. Article 105(2) of the Treaty states that one of the fundamental tasks ofthe European System of Central Banks (ESCB) is to hold and manage the official foreignreserves of the Member States. The ECB welcomes the fact that this fundamental task iscorrectly reflected in Belgian legislation by the draft Article 9a of the Organic Law. 
The new article should however be more explicit as to the fact that the Belgian governmentcannot influence the management of the official foreign reserves held by the Nationale Bankvan België/Banque Nationale de Belgique, which is carried out independently by the NationaleBank van België/Banque Nationale de Belgique as an integral part of the Eurosystem.
5. Article 141(8) of the draft law makes more specific an article which deals with the auditing of
legal entities entrusted with the performance of tasks which do not fall within the domain of theESCB. In principle this provision does not call for any specific comments of the ECB as itconcerns a matter which does not fall within the field of competence of the ECB. However, theECB would like to underline that the auditing of such entities must not affect the independenceof the Nationale Bank van België/Banque Nationale de Belgique. Therefore the Nationale Bankvan België/Banque Nationale de Belgique should ma intain some form of control over such legal
entities, which should be of a sufficient degree in order for it to safeguard its independence.
                                                     
2A copy of the 1998 Convergence Report can be found on http://www.ecb.int/emi/pub/pdf/converg/english.pdf . In the
1997 Convergence Report the EMI noted that General comp any law is explicitly recognised as a supplementary
statutory source.
36. Article 141(9) of the draft law concerns interpretation of a provision on the right of the
Nationale Bank van België/Banque Nationale de Belgique to issue banknotes. The ECB recallsthat, under Article 106(1) of the Treaty as well as Article 16 of the Statute, the ECB and theNCBs may issue euro banknotes. Primary Community law has therefore foreseen a system of aplurality of issuers of euro banknotes, which has been confirmed by Article 2 of Decision
ECB/2001/15 of 6 December 2001 on the issue of euro banknotes. This provides that The ECBand the NCBs shall issue euro banknotes. This interpretation of Article 31(2) of the OrganicLaw, which is an explicit confirmation of the right to issue of the Nationale Bank vanBelgië/Banque Nationale de Belgique, is fully in line with these provisions of Community law.This explicit confirmation is welcomed by the ECB as it enhances legal certainty.
7. In the tenth and last paragraph of Article 141 of the draft law, the Belgian legislator further
clarifies the accounting rules applicable to the Nationale Bank van België/Banque Nationale deBelgique by reinstating Article 33 of the Organic Law, which consists of two separateparagraphs. The first paragraph provides that the accounts of the Nationale Bank vanBelgië/Banque Nationale de Belgique and, where appropriate, consolidated accounts, shall bedrawn up (1) in accordance with this Law and the binding rules laid down in implementation ofArticle 26.4 of the Protocol on the Statute of the European System of Central Banks and of the
European Central Bank; (2) for the remainder, in accordance with the rules laid down by the
Council of Regency. Articles 2 to 4, 6 to 9 and 16 of the Law of 17 July 1975 concerning
company accounts and the decrees implementing them shall be applicable to the Bank with the
exception of the decrees implementing Articles 4, sixth subparagraph, and 9(2). The ECBwelcomes this provision, which follows the recommendation of Article 2(2) of GuidelineECB/2000/18 of 1 December 1998 on the legal framework for accounting and reporting in theEuropean System of Central Banks which states: In order to achieve consistency andcomparability between ESCB and national regimes,  it is recommended that NCBs should, to the
extent possible, follow the rules set out in this Guideline for their national reports and accounts. 
8. The second paragraph of Article 33 of the Organic Law further introduces the control of the
accounts of the Nationale Bank van België/Banque Nationale de Belgique by one or moreauditors whose appointment, resignation or dism issal is governed by the Companies Code. The
ECB underlines the importance of respecting the specific institutional framework of theNationale Bank van België/Banque Nationale de Belgique. Any implementation of controlmechanisms must take into account that within this framework it is the Council of Regency and
not the General Meeting that approves the annual accounts in accordance with Article 20(4) ofthe Organic Law. Such implementation should not negatively affect the good functioning of theNationale Bank van België/Banque Nationale de Belgique as an integral part of the ESCB.
49. The ECB confirms that it has no objection to the competent national authorities making this
opinion publicly available at their discretion.
Done at Frankfurt am Main on 9 July 2002.
The President of the ECB
[signed]
Willem F. DUISENBERG