EN 
 
 
 OPINION OF THE EUROPEAN CENTRAL BANK 
of 14 February 2008 
at the request of the French Ministry fo r Economic Affairs, Finance and Employment 
on a draft order on the application of the Moneta ry and Financial Code to Saint-Martin and Saint-
Barthélemy 
(CON/2008/8) 
 
Introduction and legal basis  
On 18 December 2007, the European Central Bank (ECB)  received a request from the French Ministry 
for Economic Affairs, Finance and Employment for an opinion on a draft order issued pursuant to 
Article 19 of Law No 2007-224 of 21 February 2007 on statutory and in stitutional measures for overseas 
(hereinafter the ‘draft order’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the first and third indents of Article 2(1) of Council Decision 98/415/EC of 
29 June 1998 on the consultation of the European Ce ntral Bank by national authorities regarding draft 
legislative provisions1, as the draft order relates to currency matters and the Banque de France. 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 order 
A French organic law2 (hereinafter the ‘Organic Law’) has transformed Saint-Barthélemy and Saint-
Martin, previously two municipalities of th e French overseas department of Guadeloupe3, into ‘overseas 
collectivities’4 (hereinafter the ‘two collectivities’). The draft order introduces the legislative measures 
required to adapt the French Monetary and Financial C ode (hereinafter the ‘Code’) following this change 
of status. The draft order inserts a reference to the two collectivities in the provisions of the Code which 
previously only referred to overseas departments. In particular, the provision of the Code concerning the 
territorial scope of issue of euro banknotes5 is amended so as to allow the Banque de France to issue euro 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  Organic Law No 2007-223 of 21 February 2007 (hereinafter the ‘Organic Law’). 
3  The department of Guadeloupe is governed by  Article 73 of the French Constitution. 
4  Governed by Article 74 of the French Constitution. 
5  Article L.141-5 of the Code, as amended. 
 
2 banknotes as legal tender in the two collectivities. In addition, another amendment of the Code6 aims at 
confirming that the monetary regime for the two co llectivities remains unchanged and that the Banque de 
France remains competent in the two collectivities to ca rry out the tasks entrusted to it by virtue of its 
membership of the European System of Centra l Banks. The Institut d’Émission des Départements 
d’Outre-Mer continues to act in the two collectivities in the name, on behalf of and under the authority of 
the Banque de France. 
 2. General observations 2.1 The explanatory memorandum to the draft order
7 states that ‘in the absence of a decision by the 
European authorities to include [the two collec tivities] in the OCTs [i.e. overseas countries and 
territories enjoying a special ‘association’ status8], they continue to be governed by Community 
law.’ The ECB also understands that the two coll ectivities, despite their change of status under 
French law and as long as they do not become OCTs, will continue to be an integral part of the 
Community. Thus, they will continue to be governed by Community law, including directly applicable Community legal acts such as Council Regulation (EC) No 974/98 of 3 May 1998 on the 
introduction of the euro
9. Moreover, the ECB is aware that follo wing the change to the status of the 
two collectivities, French law, and in particular the Code and its provisions transposing Community 
legislation, continues to apply automatically10 in the two collectivities11. The ECB therefore 
understands that the change to the status of th e two collectivities under French law does not affect 
the monetary regime applicable to them. 
2.2 The ECB notes in this context that the Treat y of Lisbon amending the Treaty on European Union 
and the Treaty establishing the European Co mmunity, which was signed on 13 December 2007, 
replaces the words ‘the French overseas departments’  currently used in Article 299(2) of the Treaty 
by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’12. The 
ECB welcomes this clarification, which confirms th at the two collectivities will remain subject to 
Union law13 once the Treaty of Lisbon has entered into force following its ratification. 
2.3 It cannot be excluded that in future either or both of the two collectivities will ask for a change of 
status under French and Union law in order to obt ain OCT status. The ECB understands that, to this 
date, such a change of status is foreseen in the Organic Law only for Saint-Barthélemy and that no 
formal step has been taken in this direction so far. Such change of status under Union law will be 
                                                 
6  Article L.711-1 of the Code, as amended. 
7  Explanatory memorandum to the draft order, p. 1. 
8  Provided for under Part Four of the Treaty. 
9  OJ L 139, 11.5.1998, p. 1. 
10  Pursuant to Articles LO 6213-1 and LO 6313-1 of the Fr ench General Code for Regi onal and Local Authorities, 
respectively. 
11  As was the case when the two collectivities were part of Guadeloupe. 
12  New Article 311a of the Treaty on the Functioning of the European Union. 
13  Under the Treaty of Lisbon, the Community ceases to  exist, hence the use of the expression ‘Union law’. 
 
3 facilitated by the Treaty of Lisbon, once it enters  into force following its ratification, as a new 
provision is added, pursuant to which ‘the Eur opean Council may, on the initiative of the Member 
State concerned, adopt a decision amending the stat us, with regard to the Union, of a Danish, 
French or Netherlands country or territory14.’ The ECB emphasises that, should OCT status be 
considered in future for either or both of the two collectivities, the issue of the applicable monetary 
regime would have to be addressed. In particular , the need for a specific decision regarding the 
monetary regime would have to be considered in view of the fact that the collectivity in question 
would cease to belong to the Union and to be subject to its laws. 
  Done at Frankfurt am Main, 14 February 2008. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
 
                                                 
14  The European Council shall act unanimously after consul ting the Commission; new Article  311a of the Treaty on the 
Functioning of the European Union.