EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 21 July 2008 
at the request of the Romanian Parliament 
on a legislative proposal amending Law No 312/2004 on the Statute of Banca Na ţională a României 
(CON/2008/31) 
 
Introduction and legal basis  
On 12 June 2008 the European Central Bank (ECB) r eceived a request from the Romanian Parliament, 
Senate Commission for Budget, Finance, Banking and Capital Market, for an opinion on a legislative 
proposal amending Law No 312/2004 on the Statute of Banca Na ţională a României (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 Banca Na ţională a României (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. 
 1.
  Purpose of the draft law 
The draft law amends several provisions of Law No  312/2004 on the Statute of BNR (hereinafter the 
‘BNR Statute’) regarding indemnities, salaries and othe r pecuniary rights granted to staff, recruitment and 
BNR’s organisation2. Second, it excludes the possibility of renewal of the five-year term of office of the 
members of BNR’s Board3. Third, it provides for the obligation for the Prime-Minister to participate in 
the meetings of the BNR’s Board, together with the Minister for Public Finance and one of the State 
Secretaries of the Ministry of Public Finance4. Fourth, it provides that Parliament votes and decides on 
BNR’s annual report on its activities, annual financial st atements and auditor’s report, which are currently 
only debated by Parliament5. Fifth, it introduces a new paragraph in Article 35 of the BNR Statute 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  Amendment to Article 33(1)(d) of the BNR Statute, which adds  the requirement that the inte rnal organisati onal structure, 
indemnities, salaries and other pecuniary rights granted to the staff should be decided by BNR’s Board ‘according to the 
law’; amendment to Article 35(2) of th e BNR Statute, which provides that th e appointment of BNR’s staff in BNR’s 
headquarters and managers of the branches and agencies by  the Governor should be done ‘based on a competition’ and 
‘under the conditions set out in the law’  and amendment to Article 53 of the BNR Statute, which limits the maximum 
level of net remunerations for the member s of the BNR’s Board to the annual remu neration of the President of Romania. 
3  Amendment to Article 33(4) of the BNR Statute. 
4  Amendment to Article 33(10) of the BNR Statute. 
5  Amendment to Article 35(4) of the BNR Statute. 
2 entrusting the Government with the task of proposing to the Parliament ‘constr uctive solutions aimed at 
achieving the objectives of economic and social devel opment in Romania, according to the Governance 
Programme’. Finally, it introduces the concepts of ‘ objective’ and ‘subjective’ reasons with respect to 
losses incurred by BNR during a financial year and the liability for such losses6. 
 
2. General observations  2.1 The compatibility of the national legislation of a Member State, including the statute of its national 
central bank (NCB), with the requirements of the Treaty and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘ESCB Statute’) concerning 
central bank independence (Article 108 of the Treaty) must be ensured upon accession to the 
European Union. In the case of Romania, the comp atibility requirement (Article 109 of the Treaty) 
should have been satisfied by 1 January 2007. 
2.2 Instead of addressing the existing incompatibiliti es of the BNR Statute with the Treaty and the 
ESCB Statute, also highlighted in the ECB’s 2008 Convergence Report
7, the draft law introduces 
new incompatibilities with the Treaty and the ESCB Statute by limiting BNR’s independence. The 
draft law is, therefore, fundamentally incompatib le with the Economic and Monetary Union related 
Treaty provisions and its enactment could trigge r infringement proceedings before the Court of 
Justice of the European Communities.  
2.3 The Treaty’s requirement of central bank indepe ndence reflects the generally held view that the 
primary objective of price stability is best served by a fully independent institution with a precisely 
defined mandate8. The convergence reports of the European Monetary Institute and of the ECB, as 
well as the ECB opinions, have  consistently confirmed th e importance of central bank 
independence. It is of the utmost importance to design an institutional structure that guarantees the 
functional, institutional, personal a nd financial independence of BNR.  
2.4 Contrary to the requirement of central bank independence, the proposed amendments to BNR’s 
Statute considerably limit BNR’s independence and clearly put pressure on BNR, its decision-making bodies, its members and BNR st aff. Therefore, the draft law ra ises serious concerns to the 
ECB. 
 3. Specific comments Staff matters  
3.1 With respect to the amendments on staff matters, the ECB notes that an NCB may not be put into a 
position where it has limited or no control over its  staff, or where the government of a Member 
                                                 
6  Amendment to Article 44 of the BNR Statute. 
7 See ECB Convergence Report, Ma y 2008, p. 246 to 249, availabl e on the ECB’s website at http://www.ecb.europa.eu . 
8  See ECB Opinion CON/2007/14 of 24 May 2007 at the request of the Hungarian Ministry of Finance on a draft law 
amending the Law on the Magyar Nemzeti Bank. 
3 State is in a position to influence its policy on staff matters9. According to the explanatory 
memorandum to the draft law, amendments to Articles 33(1)(d) and 53 of the BNR Statute 
regarding indemnities, salaries, and other pecuniar y rights are necessary to provide for a legal basis 
for BNR’s decisions on these matters. However, it should be noted that the current version of 
Article 33(1)(d) of the BNR Statute already provides such legal basis, since it stipulates that BNR’s 
Board decides ‘under the conditions set out in the law ... on the internal organisational structure, 
indemnities, salaries and other pecuniary rights granted to the staff’. The purpose of the additional wording ‘according to the law’ is therefore unclear. It creates uncer tainty concerning the applicable 
legislation to BNR’s staff-related matters and the relationship with the BNR Statute. 
3.2 In addition, in order to ensure that the amended Article 53 on the maximum level of net 
remunerations for BNR’s Board members is cons istent with the Community requirements for 
personal independence of the members of NCBs ’ decision-making bodies, the new legislation 
should be implemented so as to ensure that it does not affect the terms under which the current 
members of BNR’s Board have been  appointed. Therefore, this aspect of the new legislation should 
only apply to future appointments
10. 
Participants in the meetings of BNR’s Board 3.3 The draft law adds the Prime-Minister to the lis t of third parties that participate in BNR’s Board 
meetings, together with the Minister for Public Finance and one of the State Secretaries in the 
Ministry of Public Finance; it also introduces an  obligation for them to participate in such 
meetings
11. These amendments raise serious concerns w ith respect to the institutional independence 
of BNR in two respects: (i) the obligation of thir d parties to participate in BNR’s Board meetings 
must not impede the functioning of the meetings and, in particular, the absence of such third parties 
must not prevent the meetings from being held; and ( ii) the participation of such third parties must 
not result in these third parties actually giving direct  or indirect instructions to BNR, its decision-
making bodies or its members.  
3.4 In the context of the close cooperation between the European Union institutions, it may be noted 
that the President of the Council of the European  Union and a member of the Commission of the 
European Communities have the possibility to particip ate, without voting rights, in the meetings of 
the ECB’s Governing Council12. Nevertheless, such third parties are not obliged to participate in 
the meetings. This mirrors other forms of interactio n, notably the fact that the ECB’s President is 
invited to participate in Council meetings when  the Council is discussing matters relating to the 
ESCB’s objectives and tasks. Thus, the ECB would strongly recommend clarifying the scope of the 
                                                 
9  See in particular ECB Opinion CON/2008/9 of 21 February 2008 at the request of the German Ministry of Finance on a 
draft law amending the Law on the Deutsche Bundesbank and ECB Opinion CON/2008/10 of 21 February 2008 at the 
request of the Italian Ministry of Ec onomic Affairs and Finance on some provisions of the Law on the State annual and 
pluriannual budget (2008 Budget law). 
10  See ECB Opinion CON/2008/10 of 21 February 2008 at the re quest of the Italian Minist ry of Economic Affairs and 
Finance on some provisions of the Law on the State annual and pluriannual budget  (2008 Budget Law), paragraph 3.2.2. 
11  Amendment to Article 33(10) of the BNR Statute. 
12 See Article 113(1) of the Treaty. 
4 obligation of the Prime Minister and the Ministry of  Public Finance representatives to participate in 
BNR’s Board meetings. 
Parliamentary vote and decision on the annual and aud it reports and on the annual financial statements  
3.5 The Parliament’s competence to vote on and adopt a decision on BNR’s annual report on its 
activities, annual financial statements and audi tor’s report, could affect the institutional 
independence of BNR, as it goes beyond the tran sparency and accountability of a central bank 
towards the Parliament. 
3.6 The ECB recalls that, in general, dialogue between NCBs and third parties is welcome and 
compatible with central bank independence, provided that: 
- this does not result in interference with th e independence of the members of the NCB’s 
decision-making bodies; 
- the special status of Governors in their cap acity as members of the ECB’s General Council is 
fully respected; 
- confidentiality requirements resulting from the ESCB Statute are observed. 
3.7 A decision of the Parliament as regards these documen ts must not result in actually giving direct or 
indirect instructions, e.g. to amend the annual report, to BNR, its decision-making bodies or its 
members13. Moreover, any rights of the Parliament to  approve, suspend, annul or defer BNR’s 
decisions would be contrary to BNR’s institutional independence. 
BNR’s statutory objectives 3.8 The draft law introduces a new paragraph in Artic le 35 of the BNR Statute on the prerogatives of 
BNR’s Governor. It provides that the Governme nt suggests to the Parliament ‘constructive 
solutions aimed at achieving the objectives of economic and social development in Romania, 
according to the Governance Programme’. This pr ovision could be understood as establishing new 
objectives for BNR, as well as allowing the Government to give indirect instructions to or influence 
BNR, its decision-making bodies or its members. As such, it would be contrary to the principle of 
institutional independence of BNR. Moreover,  it would also compromise the functional 
independence of BNR as it would contravene Article 105(1) of the Treaty and Article 2 of the 
ESCB Statute concerning the primary objective of price stability and the secondary objective of 
supporting the general economic policies in the Community.  
Loss coverage  
3.9  Under the draft law, the loss incurred by BN R ‘based on objective reasons’ will be covered, as 
currently all of BNR’s losses (with no distinction) are covered, from the available sources in the 
following order: (a) special revaluation account; (b ) statutory reserves. When BNR incurs a loss 
                                                 
13  See in particular ECB Opinion CON/2001/17 of 2 August 2001 at  the request of the German Ministry of Finance on a 
draft Seventh Law amending the Deutsc he Bundesbank Act, paragraph 11. 
5 ‘based on subjective reasons established by the Court of Auditors’, the loss will be covered by the 
persons found liable for the loss14.  
3.10 The ECB notes that such personal liability fo r losses resulting from ‘subjective reasons established 
by the Court of Auditors’ jeopardises the i ndependence of BNR’s decision-making bodies and 
staff. If they were to incur financial liability li nked to their performance of central banking tasks, 
which are complex, subject to a considerable de gree of discretion and dependent on the national 
and international economic and financial environment, their capacity to function fully and 
independently would be seriously compromised as a result of the inhibiting effect that the risk of having to bear the damages would trigger. In deed, NCBs cannot be hindered in making their 
decisions by the prospect of personal liab ility of their staff acting in good faith.  
 This opinion will be published on the ECB’s website.    Done at Frankfurt am Main, 21 July 2008. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
 
                                                 
14  Amendment to Article 44 of the BNR Statute.