EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 6 October 2005 
at the request of the Italian Ministry of Economy and Finance  
on an amendment to the draft law on the prot ection of savings concerning the Banca d’Italia 
(CON/2005/34)  
 
1. On 13 September 2005 the European Central Bank (ECB) received a request from the Italian 
Ministry of Economy and Finance for an opinion on a draft article that will be inserted in the draft 
law on the protection of savings (hereinafter the ‘draft article’).  
2. The ECB’s competence to deliver an opinion is based on the third indent of Article 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consul tation of the European Central Bank by national 
authorities regarding draft legislative provisions1, as the draft article contains provisions concerning 
a national central bank (NCB). In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, th e Governing Council has adopted this opinion. 
3. The ECB notes that in 2004 it already provided an opinion on a previous draft of this law and 
welcomes the Italian Government’s decision to cons ult the ECB again on this new draft article. It 
stands ready to comment on any further amendmen t to the draft law, whether concerning the Banca 
d’Italia or any other matter in whic h the ECB has a specific interest.  
4. Paragraph 1 of the draft article mirrors Article 14.3 of the Statute of the European System of 
Central Banks and of the European Central Bank (her einafter the ‘Statute’), pursuant to which the 
NCBs are an integral part of the ESCB and act in  accordance with the guidelines and instructions 
of the ECB. The ECB welcomes this paragraph, which is of declaratory value only.  
5. Paragraph 2 of the draft article stipulates that th e Banca d’Italia is a body governed by public law 
and the State holds the majority of the shares in  its subscribed capital, while only other public 
bodies may hold the remainder. Currently private co mmercial banks hold a large part of the shares. 
Therefore, pursuant to the paragraph 9 of the draf t article, a Government regulation adopted within 
three months from entry into force of the law will specify this provision’s method of 
implementation. The Fund for the amortisation of government bonds ( Fondo per l’ammortamento 
dei titoli di Stato ) will bear the costs arising from this operation, pursuant to paragraph 10 of the 
draft article.  
                                                     
 
1 OJ L 189, 3.7.1998, p. 42. 
 
2 6. The ECB notes that the Treaty establishing the Eur opean Community is silent on the ownership 
structure and internal governance of NCBs, whic h are therefore left to each Member State’s 
autonomous determination. However, the ECB h as the following comments on the compatibility of 
both the financing of the planned transfer of the Banca d’Italia’s shares to the State and of the 
Banca d’Italia overall structure with th e principles established by the Treaty.  
7. First, the ECB notes that, pursuant to paragraph 9 of the draft article, a Government regulation 
adopted within three months from entry into for ce of the law will specify the procedure for the 
Banca d’Italia’s shares to be transferred. The Fund for the amortisation of government bonds 
(Fondo per l’ammortamento dei titoli di Stato ) will bear the costs arising from this operation, 
pursuant to paragraph 10 of the draft article. Th e voting rights pertaining to the shares in the 
subscribed capital will be automatically suspended and exercised by the State until they have been 
transferred to the State and the other public bod ies. In this respect, the compatibility with 
international conventions and Community law of su ch automatic attribution of the voting rights to 
the State pending the transfer of the shares should be carefully assessed. 
8. As there are currently no indications of the moda lities of such transfer, the consistency of this 
operation with the Treaty provisions on monetary fi nancing (Article 101 of the Treaty) and fiscal 
policies (Article 104(2)(b) of the Treaty) cannot be  ascertained at this stage. Therefore the ECB 
stands ready to provide an assessment in a futu re opinion on a draft Government regulation on the 
transfer of shares.  
9. Second, the ECB notes that Article 108 of the Treaty requires independence for NCBs when 
exercising the powers and carrying out the tasks a nd duties conferred upon them by the Treaty and 
the Statute. This entails the absence both of shareholders’ influence on decision-making in these 
fields and of a conflict of interests. In this respect, the ECB welcomes the proposed change and the 
confirmation in paragraph 3 of the draft article th at primary and secondary Italian legislation will 
ensure the independence of the Banca d’Italia and of the members of its decision-making bodies. 
Additionally, pursuant to paragraph 8 of the draf t article, the implementation of the draft article 
will determine whether the Banca d’Italia’s Statut es need to be modified within two months from 
entry into force of the law. The ECB highlights th at the amendments to be introduced in the Banca 
d’Italia’s Statutes must respect the Treaty and in particular continue to safeguard central banking 
independence, with particular regard to the aspect s mentioned below, and is ready to provide its 
opinion on the amendments to the Statutes.  
10. Once the draft article has been fully implemented, the State will be the majority and perhaps almost 
the sole shareholder. According to the Statutes,  the shareholders currently appoint, at separate 
meetings at the Banca d’Italia’s main branches, the 13 members of the Board of Directors, one for 
each main branch. In the light of  the changes to the shareholder’s  composition introduced by the 
draft article, it would be helpful to clarify and perhaps simplify the election procedure for these 
members. Moreover, the change in the shareholders ’ structure has two consequences. First, the role 
of the Board of Directors will need to be review ed, including in relation to the procedure for the 
 
3 appointment and dismissal of the Governor and the other members of  the Directorate, consistently 
with Article 14.2 of the Statute. Second, the Ba nca d’Italia’s financial independence, which is 
currently guaranteed by the provisions of the St atutes on the independence of the members of the 
Board of Directors and on the limits to the distribution of profits to shareholders, needs to be preserved. Therefore, Article 54 of the Statute needs to be modified to ensure that, as in the current 
situation, a sufficient amount of ordinary reserv es and, if needed, extraordinary reserves, can be 
constituted to ensure that the Ban ca d’Italia has the financial means to perform its statutory tasks. 
11. The ECB notes that paragraph 7 of the draft article  provides that the Governor will have a seven-
year term of office, without possibility of rene wal. The draft article complies with the Treaty. 
However, the ECB notes that the Treaty provisions protecting the Governor’s security of tenure of 
office also apply to other members of the decision-making bodies of NCBs involved in the performance of ESCB-related tasks. This applies in  particular where such other members may have 
to deputise for the Governor. It is noted that there are currently no limits to the mandate of the other 
members of the Directorate. In light of the powers attributed to the Directorate, the introduction of 
a similarly limited mandate would be advisable. An y such change will of course need to comply 
with the Treaty.  
12. Furthermore, the ECB notes that the draft law is si lent on the application of the new rules to the 
Banca d’Italia’s current Governor . In this context it would like to  reiterate its previous opinion
2 that 
any transitional regime would need to be co mpatible with Article 14.2 of the Statute. 
13. According to paragraph 4 of the draft article, th e Banca d’Italia must respect the principle of 
transparency in carrying out its functions, in partic ular that of supervision, and will report every six 
months to the Italian Parliament and the Govern ment on its activities. The ECB understands that 
ESCB activities are excluded from this reporting oblig ation. However, an express mention of this 
exclusion would be welcome, in particular to en sure the respect of the obligation of professional 
secrecy enshrined in Article 38.1 of the Statute. The same principle should apply to the minutes of the meetings of the collegial bodies, menti oned in paragraph 5 of the draft article. 
14. The ECB welcomes the draft article’s intention of increasing the transparency of the exercise of the 
functions assigned to the Banca d’Italia. The E CB notes that paragraph 6 of the draft article 
requires the Governor to consult the Director ate on measures related to non-ESCB tasks falling 
within the Governor’s competence. However, in li ght of the widespread pr actice in the European 
Union for decision-making in supervisory matters a modification of the current draft to allow for collegiality would be desirable.  
                                                     
 
2  ECB Opinion CON/2004/16 of 11 May 2004 at the request of th e Italian Ministry of Economy and Finance on a draft law 
on the protection of savings. 
 
4 15. This opinion will be published on the ECB’s website.  
  Done at Athens, 6 October 2005. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET