EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL  BANK  
of 26 March  2019  
on changes to the governance structure of the National e Bank van 
België/Banque Nationale de   Belgi que 
(CON/2019/ 12) 
 
Introduction and legal  basis  
On 26 February 2019 the European Central Bank (ECB) received a request from the Belgian Mi nister for 
Finance for an opinion on a draft law amending the Law of 22 February 1998 establishing the Organic 
Statue of the Nationale  Bank van Belg ië/Banque Nationale de Belgi que (hereinafter the ‘draft  law’).  
The ECB’s c ompetence 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 indent of Article 2(1) of Council Decision 98/415/EC1, as 
the draft law relates to the National e Bank van Belgi ë/Banque Nationale de Belgi que (NBB ). 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 
1.1 The draft law introduces amendments to the Law of 22 February 1998 establishing the Organic 
Statue of the Nationale Bank van België/Banque Nationale de Belgique (hereinafter the ‘Law of 22 
February 1988)’2 with a view to improving the governance structure of the NBB and creating a 
more balanced representation of both genders in the NBB’s Council of Regency.  
Current composition of the NBB ’s Council of Regency and Board of Censors  
1.2 The NBB currently consists of a Governor, the Board of Directors, the Council of Regency and the 
Board of Censors.  The General Meeting of Shareholders  is not addressed in this Opinion.  
1.3 The NBB Council of Regency is composed of a  Governor, who presides over the Council, the other 
(maximum five3) Directors from the NBB ’s Board of Directors and ten Regents4. The King appoint s 
the members of the Board of Directors, which is the NBB’s main decision- making body5, on a  
proposal of the Council of Regency6.  
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
2  “Loi fixant le statut organique de la Banque Nationale de Belgique”/“Wet van 22 februari 1998 tot vaststelling van het 
organiek statuut van de Nationale Bank van België”, as published in the annexes to the Belgian Official Gazette 
(“Moniteur Belge”/” Bel gisch Staatsblad”) on 28 March 1998 , and as amended from time to time.    
3  Article 19.1° of the Law of 22 February 1998.   
4  Article 20.1° of the Law of 22 February 1998.  
5  Article 19 of the Law of 22 February 1998.  
6  Article 23.2° of the Law of 22 February 1998. They are appointed for a renewable term of six years, and may be 
relieved from office by the King only if they no longer fulfil the conditions required for the performance of their duties 
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2 1.4 The Council of Regency  is responsible for:   
(i)  exchang ing views on  general issues relating to the NBB, monetary policy and the economic 
situation of the country and the E U; supervisory policy with regard to each of the sectors 
subject to the NBB's supervision; Belgian, European and international developments in the 
field of supervision;  as well as, in general, any development s concerning the financial system 
subject to the NBB's supervision, without however having any competence to intervene at an 
operational level or take note of individual dossiers7;  
(ii)  laying down the Rules of Procedure, containing the basic rules for the operation of the NBB's 
bodies and the organisation of its departments, services and outside offices on the proposal 
of the Board of Directors8;  
(iii)  setting  the individual salaries and pensions of the members of the Board of Directors9;  
(iv)  approv ing the expenditure budget and the annual accounts submitted by the Board of 
Directors10; and  
(v)  determining  the distribution of profits as proposed by the Board11.  
1.5 The Regents are elected for a renewable three- year term by the General Meeting of the NBB12. 
Two Regents are chosen upon the proposal of the most representative labour organisations; three 
Regents upon the proposal of the most representative organisations from industry and commerce, 
agriculture and small firms and traders; and five Regents upon the proposal of the Minister of 
Finance13. The Regents are subject to various incompatible activities  rules which are aimed at, 
inter alia, guaranteeing their independence towards the Belgian State and the public authorities14. 
They are also subject to rules  relating to the prevention and handling of conflict of interest 
situations.  
1.6 The NBB Board of Censors is currently composed of ten members15. The Board of Censors acts as 
the NBB’s audit committee and supervises  the preparation and implementation of the NB B’s 
budget16. The Board of Censors is entrusted with the following advisory tasks , as a minimum: ( i) to 
                                                                                                                                                             
or if they have been guilty of serious misconduct.  
7   Article 20.2° of the Law of 22 February 1998.  
8   Article 20.2° of the Law of 22 February 1998.  
9   Article 20.3° of the Law of 22 February 1998.  
10  Article 20.4° of the Law of 22 February 1998.  
11  Article 20.4° of the Law of 22 February 1998.  
12   Article 23.3° of the Law of 22 February 1998.  
13  Article 23.3° of the Law of 22 February 1998. The methods of proposing candidates for these appointments are laid 
down in the Regent Decree of 5 October 1948 (“ Arrêté du Régent du 5 octobre 1948 déterminant les modal ités de 
présentation des candidats aux fonctions de régent de la Banque Nationale de Belgique”/  “Besluit van de Regent 
van 5 oktober 1948 houdende vaststelling van de voordrachtsmodaliteiten der kandidaten tot de functies van regent 
in de Nationale Bank van België” ), as published in the annexes to the Belgian Official Gazette (“ Moniteur Belge”/” 
Belgisch Staatsblad” ) on 8 October 1948, and as amended from time to time.  
14  Members of the Legislative Chambers, the European Parliament, the Councils of the Comm unities and the Regions, 
persons who hold the position of Minister or Secretary of State or of member of the Government of a Community or 
Region and members of the staff of a member of the Federal Government or of the Government of a Community or 
Region ma y not hold the office of Regent. The Regents may not be a member of the administrative, management or 
supervisory bodies of an institution subject to the supervision of the NBB or in an institution incorporated under 
Belgian law or foreign law established in Belgium or in a subsidiary of these institutions and subject to the 
supervision of the ECB, nor may they perform management duties in such an institution.  
15  Article 21.1° the Law of 22 February 1998.  
16  Article 21.2° of the Law of 22 February 1998.  
ECB -PUBLIC  
3 monitor the financial reporting process; ( ii) to monitor the effectiveness of the internal control and 
risk management systems, and of the NBB's internal  audit; ( iii) to monitor the statutory audit of the 
annual accounts, including compliance with the questions and recommendations formulated by the 
statutory auditor; and ( iv) to review and monitor the independence of the statutory auditor, in 
particular the provision of additional services by the statutory auditor to the NBB17. In this latter 
respect, the Board of Censors proposes the appointment of the statutory auditor to the Board of 
Directors18. All audit functions of the Board of Censors are exercised wi thout prejudice to the 
responsibilities of the bodies of the NBB and without prejudice to the execution tasks and 
transactions within the domain of the European System of Central Banks (ESCB) and their review 
by the statutory auditor19.  
Amendments to the r ole and composition of the NBB Council of Regency under the draft law  
1.7 Under the draft law , the Board of Censors is abolished and its advisory tasks in the field of audit 
and budget is exercised by the Audit Committee of the Council of Regency. The Audit Co mmittee, 
in a restricted composition, advises  the Council of Regency in the execution of its powers with 
regard to the budget and the preparation of financial information. A Remuneration and 
Appointments Committee is established to provide its opinions to the Council of Regency. As a 
result of the integration of the Board of Censors’ advisory functions into the Council of Regency, 
the number of Regents is  increased  from 10 to 14. Hence, under the draft law, the Council of 
Regency is composed of the Governor , the Directors and 14 Regents.  
1.8 Subject to certain exceptions set out below, the Council of Regency is  no longer chaired by the 
Governor, but by an independent20 Regent appointed by Royal Decree as President of the Council 
of Regency. When appointing a new Governor, the King confirm s the designation of the current 
President of the Council of Regency or designates  a new president.  The Governor continues  to 
chair the meetings of the Council of Regency when the Council considers  general issues relating to 
the N BB; monetary policy and the economic situation of the country and the European Union;  
supervisory policy with regard to each of the sectors subject to the NBB's supervision;  Belgian, 
European and international developments in the field of supervision;  as w ell as, in general, any 
development concerning the financial system subject to the NBB's supervision.  
1.9 Under the draft law , at least one- third of the members of the Council of Regency must  be of a 
different gender than the other members. This requirement has been carried over from  a similar 
provision for listed companies under Article 518 bis of the Law on companies . This provision does  
not appl y to the NBB given its specific governance structure, which differs from that of an ordinary 
public limited company . However, it is considered that the arguments underlying the introduction of 
Article 518bis  also apply to the NBB. Consequently, a gender quota is introduced and applied to 
the Council of Regency.  For the same reasons, the draft law provides that the Pres ident of the 
Council of Regency must  be of the opposite sex and linguistic background from the Governor.  
                                                 
17  Article 21bis.1° of the Law of 22 February 1998.  
18  Article 21bis.2° of the Law of 22 February 1998.  
19  Article 21bis.1° of the Law of 22 February 1998.  
20  In the sense of Article 526ter of the Law on companies (“ Code des sociétés”/ “Wetboek van vennootschappen” - as 
published in the annexes to the Belgian Official Gazette (“ Moniteur Belge”/” Belgisch Staatsblad” ) on 6 August 1999, 
and as amended from time to time).  
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4  
2. Observations  
2.1 In November 1995,  the former European Monetary Institute (EMI) established a list of features of 
central bank independence (later described in detail in its 1998 Convergence Report) which were 
the basis for establishing the national legislation of the Member States at that time and in particular 
the national central bank s’ statutes. The concept of central bank independence includes various 
types of independence that must be assessed separately, namely functional, institutional, personal 
and financial independence. Over the past few years there have been further refinements of the 
analysis of these aspects of central bank independence in the opinions adopted by the ECB.   
2.2 On the independence of the NBB, the EMI noted with satisfaction that features of central bank 
independence of an institutional, personal, functional and financial nature were accomplished 
through various provisions, including the provision on the role of the Council of Regency, which is 
partly composed of representatives of different sectors of society  and is restricted to advisory tasks 
without an ex ante right of consultation on ESCB -related tasks21. The EMI also noted that w hereas 
under the L aw on the Nationale Bank van België/Banque Nationale de Belgique the Council of 
Regency was competent to take certain monetary policy decisions, the draft  law restricts the 
Council of Regency’s involvement to an advisory role without an ex ante right of consultation.  
2.3 The ECB understands that the NBB Board of Directors is responsible for the performance of its 
ESCB- related tasks22, and therefore qualifies as a decision- making body within the meaning of 
Article 130 of the Treaty23. The ECB fur ther understands that the Council of Regency does not 
intervene in the performance of ESCB -related tasks, nor in the decisions concerning those tasks, 
and that it therefore cannot be considered as a decision- making body within the meaning of Article 
130 of  the Treaty24. Under Article 130 of the Treaty, when exercising the powers and carrying out 
the tasks and duties conferred upon it by the Treaty and the ESCB Statute, neither a national 
central bank (NCB) , nor any member of its decision- making bodies shall seek or take instructions 
from, inter alia, any government of a Member State ‘or from any other body’, which includes  a 
statutory body such as the Council of Regency. Having regard to the structure of the Council of 
Regency as a constituent part of the NBB , the Council should not seek to influence the Board of 
Directors, in its capacity as the NBB’s decision- making body responsible for the performance of the 
NBB’s ESCB tasks25.  
2.4 As noted by the ECB, even if an NCB is fully independent from a functional, inst itutional and 
personal point of view, which is guaranteed by the NCB’s statutes, its overall independence would 
be jeopardized if it could not autonomously avail itself of sufficient financial resources to fulfil its 
mandate and perform the ESCB -related tasks required of it under the Treaty and the ESCB 
                                                 
21  See paragraph 5 of EMI Opinion CON/96/10. All opinions of the EMI are published on the EC B’s website at 
www.ecb.europa.eu.  
22  Article 19 of the Law of 22 February 1998.  
23  See the NBB’s FAQ’s on ‘Independence and prohibition on monetary financing’ available on the NBB’s website at 
www.nbb.be.  
24  See the NBB’s FAQ’s on ‘Independence and prohibition on monetary financing’ available on the NBB’s website at 
www.nbb.be.  
25  See paragraph 6 of Opinion CON/2002/16.  
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5 Statute26.  
2.5 Regarding the Council of Regency’s competence to approve the expenditure budget and to 
determine the final distribution of profits, the ECB has noted that a third party ha ving the power to 
determi ne or influence an NCB’s budget is incompatible with financial independence unless the law 
provides a safeguard clause so that such a power is without prejudice to the financial means 
necessary for carrying out the NCB’s ESCB -related tasks27.  
2.6 With regard t o profit allocation, an NCB’s statutes may prescribe how its profits are to be allocated. 
In the absence of such provisions, decisions on the allocation 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 ESCB -related tasks as well as national 
tasks28. In this respect, the re are a number of important statutory safeguards protecting the role of 
the Board of Directors in its capacity as the NBB’s decision- making body responsible for the 
performance of the NBB’s ESCB tasks. First ly, it is the Board which submits the expenditur e 
budget and proposes the distribution of profits to the Council of Regency29. Second ly, the members 
of the Board are also members of the Council of Regency. Thirdly , the ECB understands that under 
the draft law , the Governor continues  to preside over the C ouncil of Regency for all exchanges of 
views relating to ESCB -related matters, including general issues relating to the NBB such as any 
matter impacting the financial independence of the NBB within the meaning of Article 130 of the 
Treaty.  
2.7 Regarding the C ouncil of Regency’s competence to approve the annual accounts, the ECB has 
noted that the annual accounts should be adopted by the NCB’s decision- making bodies, assisted 
by independent accountants, and may be subject to ex post approval by third parties (e.g., the 
government or the parliament)30. This requirement is materially satisfied by an arrangement 
whereby the annual accounts are submitted by the Board of Directors to the Council of Regency, 
with the Council , as a constituent body of the NBB in which t he Governor and the other Board 
members are represented,  approving the accounts31.  
2.8 As noted above, the ECB understands that  under the draft law,  the Governor continues  to preside 
over all exchanges of views by the Council of Regency relating to ESCB -relate d matters. In this 
respect, the ECB welcomes the provision which states that the Governor continues  to preside over 
the Council of Regency whenever the Council holds exchanges of views on general issues relating 
to the NBB ; monetary policy and the economic  situation of Belgium and the EU ; supervisory policy 
with regard to each of the sectors subject to the NBB's supervision;  Belgian, European and 
international developments in the field of supervision;  as well as, in general, any development 
                                                 
26  See the ECB Convergence Report (May 2018), p. 25.  
27  See the ECB Convergence Report (May 2018), p. 26.  
28  See the ECB Convergence Report (May 2018), p. 27; paragraphs 6 and 8 of ECB Opinion CON/2002/16; paragraph 
3.1.13 of ECB Opinion CON/2010/30; paragraphs 3.1.12 and 3.1.14 of ECB Opinion CON/2010/48; and paragraph 
3.2.2 of ECB Opinion CON/2017/17.  
29  See paragraph 1 of ECB Opinion CON/2009/4; paragraph 1 of ECB Opinion CON/2012/81.  
30  See the ECB Convergence Report (May 2018), p. 27.  
31  See also paragraphs 7- 8 of ECB Opinion CON/2002/18; paragraph 3 of ECB Opinion CON/2008/91.  
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6 concerning the f inancial system subject to NBB's supervision.  
2.9 The ECB also welcomes the addition of four Regents to the Council of Regency under the draft law 
to allow the Council to perform the new ly appointed  tasks previously executed by the Board of 
Censors. This incr ease in the number of Regents should optimize and enhance the quality of the 
Council of Regents’ advisory role and its new Audit and Remuneration and Appointments 
Committees.  
 
This opinion will be published on the ECB’s  website.  
 
 
Done at Frankfurt am Main, 26  March 2019.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI