EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 16 January 2009 
at the request of the Belgian Minister for Finance 
on a draft law amending the financial provisions of the Law of 22 February 1998 establishing the 
Organic Statute of the Nationale Bank van België/Banque Nationale de Belgique 
(CON/2009/4) 
 
Introduction and legal basis  
On 9 December 2008 the European Central Bank (ECB)  received a request from the Nationale Bank van 
België/Banque Nationale de Belgique (NBB), acting on behalf of the Belgian Minister for Finance, for an 
opinion on a draft law amending the financial provisi ons of the Law of 22 February 1998 establishing the 
Organic Statute of the Nationale Ba nk van België/Banque Nationale de Be lgique (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 NBB. In accorda nce with the first sentence of Article 17.5 of 
the Rules of Procedure of the European Central Ba nk, the Governing Council has adopted this opinion.  
 1.  Purpose of the draft law 
The purpose of the draft law is to adapt the current rules governing the distribution of the NBB’s income 
to ensure that after payments of the NBB’s costs, maintenance of its reserves  and remuneration of its 
capital, the balance of the NBB’s inco me is allocated to the Belgian State, without prejudice to the rights 
of the NBB’s shareholders including rights to dividends
2. To this end, the draft law introduces two 
changes. First, it repeals the current so called ‘3 % rule’ which determines how  much of its financial 
proceeds the NBB may retain to cover its costs, maintain its reserves and remunerate its capital3. Second, 
it amends the current rule governing the distribution of the NBB’s annual profits4 by providing that5: 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  See the Explanatory memorandum to th e draft law, in particular p. 4. 
3  Pursuant to the ‘3 % rule’, the net financial proceeds in excess of 3 % of the difference between the average amount, 
calculated on an annual basis, of the NBB’s profit-earning a ssets and remunerated liabilitie s is assigned to the Belgian 
State (current Article 29 of the Law of 22 February 1998 es tablishing the Organic Statute of the Nationale Bank van 
België/Banque Nationale de Belgique, hereinafter the ‘NBB Law ’). This provision is repealed by Article 2 of the draft 
law. 
4  Under the current Article 32 of the NBB Law, one fifth of th e NBB’s annual profit is allocated  to the Belgian State, after 
payment of a first dividend of 6 % of th e NBB’s capital to shareholders and allo cation of 10 % of the remainder of the 
annual profits to the reserve fund, and 8 % of the same rema inder to the NBB’s staff or to institutions in its favour.  
2 (i) from the excess of these profits after allocation to sh areholders of a first dividend of 6 % of the NBB’s 
capital, an amount proposed by the NBB’s Board of Directors and established by its Council of Regency 
is independently allocated to the reser ve fund or to the available reserves6; (ii) then, from the second 
excess, a second dividend established by the Counc il of Regency of a minimum of 50 % of the net 
proceeds from assets forming the counterpart to the re serve fund and available reserves is allocated to 
shareholders; and (iii) finally, the balance is allocat ed to the State. The ECB understands that as these 
provisions enter into force on 1 January 2009, they do  not modify the rules governing the distribution of 
the NBB’s income for the financial year 2008.  
 2. General observations 
2.1 The draft law should be analysed from the angle of the requirements of central bank independence, 
namely financial independence
7. The concept of financial i ndependence should be assessed from 
the perspective of whether any third party is able to  exercise either direct or indirect influence not 
only over the tasks of a national central bank (NCB), but also over its ability - understood both operationally in terms of manpower
8, and financially in terms of appropriate financial resources - to 
fulfil its mandate. The NCBs must also, at all tim es, have sufficient financial means to carry out 
their other functions, i.e. to perform their national tasks, to meet their international obligations and 
properly cover their administrative and operational expenses. It should be noted that Articles 28.1 
and 30.4 of the Statute of the European System of  Central Banks and of the European Central Bank 
provide for further calls on the NCBs to make furt her contributions to the capital of the ECB and to 
make further transfers of foreign reserves. The principle of financial independence requires that 
compliance with these provisions leaves an NCB’s ability to perform its functions unimpaired. 
With regard to profit allocation, an NCB’s statut es may prescribe how profits are to be allocated. In 
the absence of such provisions, the decision on allo cation of profits should be taken by the NCB’s 
decision-making bodies on professional grounds, and should not be subject to the discretion of 
third parties unless there is an express safeguard clause stating that this is without prejudice to the financial means necessary for carrying out the NCB’ s tasks related to the European System of 
Central Banks.  
2.2 The ECB generally welcomes the draft law as it makes the rules governing distribution of the 
NBB’s income clearer and allows the NBB’s bodies the necessary discretion to decide on the 
allocation of profits. In this respect, the draft la w expressly refers to the independence of the NBB’s 
                                                                                                                                                             
5  Article 3 of the draft law, amending Article 32 of the NBB Law. 
6  The draft law introduces provisions enabling the maintenance of  an available reserve. The available reserve can be used 
to offset losses or for the distribution of profits (see  the Explanatory memorandum to the draft law, p. 5). 
7  On the concept of central bank independence and in par ticular financial independence, see the ECB’s Convergence 
Report May 2008, p. 17 and in particular p. 20 et se q.; see also ECB Opinion CON/2008/82 of 2 December 2008 at the 
request of the Spanish State Secretary for Economic Affair s on a draft royal decree on the arrangements for paying the 
Banco de España’s profits to the Treas ury. All ECB opinions are av ailable on the ECB’s webs ite at www.ecb.europa.eu.  
8  See ECB Opinion CON/2008/9 of 21 February 2008 at the requ est of the German Ministry of Finance on a draft law 
amending the Law on the Deutsche Bundesbank; also ECB Opinion CON/2008/10 of 21 February 2008 at the request of 
the Italian Ministry of Economic Affairs and Finance on some  provisions of the Law on the State annual and pluriannual 
budget (2008 Budget law).  
3 bodies in deciding on the NBB’s reserves policy9. The ECB also understands that, as is already the 
case under the current rules, if the NBB’s annual pr ofits are lower than 6 % of its capital, the 
amount of this first dividend10 is drawn on the NBB’s reserve fund11. If the reserve fund is 
insufficient to cover this amount, distributed profits would be adjusted accordingly.  
 3. Specific comments  Besides amending the financial provisions of the N BB Law, the draft law allows the NBB’s ordinary 
general meeting of shareholders to  be postponed to the last Monday of May (instead of March, as is 
currently the case)
12. The ECB understands that this postponement  takes account of the extension of the 
legal deadlines for making the necessary documents availabl e to shareholders prior to the general meeting 
and, in this context, aims to avoid a situation wh ere the ECB’s results might be deducible from the NBB’s 
annual accounts before the ECB publishes its own a nnual accounts. In this respect, the Explanatory 
memorandum to the draft law13 would benefit from a clarification that the ECB’s annual accounts are 
published on the ECB’s website before the publication of the ECB’s annual report, which takes place in 
April. 
 This opinion will be published on the ECB’s website.    Done at Frankfurt am Main, 16 January 2009. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
 
 
                                                 
9  Article 3 of the draft law, introducing a new Article 32, 2° in the NBB law. See also the clarification in the Explanatory 
memorandum to the draft law that such decisions are not subj ect to the monitoring and suspension powers of the Minister 
of Finance’s representative (p. 7). 
10  See paragraph 1 and footnote 4 above. 
11  Article 50 of the NBB’s statutes in conjunction with Artic le 31 of the NBB Law. The ECB understands that the NBB’s 
reserve fund comprises retained earnings and is notably intend ed to  supplement any shortfal l in the annual profit up to a 
dividend of 6 % of the NBB’s capital (Article 31 of the N BB Law). In such case, any amount drawn on the reserve fund 
must be refunded to the reserve if, in the following year , such refund can be made without reducing the profit for 
distribution to below 6 % of the NBB’s capital. 
12  Article 4 of the draft law. 
13  See the Explanatory memorandum to the draft law, comments concerning Article 4, p. 8.