EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 25 March 2009 
at the request of the Belgian Ministry of Finance 
on a draft law amending the Law of 2 August 2002 on  the supervision of the financial sector and on 
financial services 
(CON/2009/29) 
 Introduction and legal basis
 
On 18 March 2009 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 Ministry of Finance, for an 
opinion on a draft law amending the Law of 2 August 2002 on the supervision of th e financial sector and 
on financial services (hereinafter the ‘draft law’). Gi ven the current turbulence in the financial markets 
and the need for firm intervention by the authorities involved, the consulting authority has requested the 
ECB to provide its opinion as a matter of extreme urge ncy to allow the swift adoption of 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 on the sixth indent 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 provisions
1, as the draft law relates to rules applicable  to financial institutions insofar as they 
materially influence the stability of financial ins titutions and markets. 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 In the context of the current financial market cr isis, the draft law extends in two respects the scope 
of the measures that, under Article 117 bis of the Law of 2 August 2002 on the supervision of the 
financial sector and on financial services
2, the King is empowered to take, after consulting the 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  Concerning Article 117 bis of the Law of 2 August 2002, see ECB Op inion CON/2008/46 of 8 October 2008 at the 
request of the Belgian Ministry of Finance on a preliminary draft law on measures promoti ng financial stability and in 
particular establishing a State guarantee for the provision of credit in the context of financial stability, in particular 
paragraphs 1.1, 2.1 and 5; and ECB Opinion CON/2008/50 of 17  October 2008 at the request of the Belgian Ministry of 
Finance on a draft royal decree adopted under Article 117 bis of the Law of 2 August 2002 on the supervision of the 
financial sector and on financial services , in particular paragraph 2.1. All ECB opinions are available on the ECB website 
at www.ecb.europa.eu. 
2 Financial Stability Committee, in the event of a su dden crisis on the financial markets or of a 
serious threat of systemic crisis, in order to limit the scale or effects thereof. 
1.2 First , the draft law adds three legislative acts to the list of financial sector legislation which can be 
complemented or derogated from by regulations adopted by the King. These three legislative acts govern in particular the holding of de materialised and immobilised securities
3. The draft law will 
allow the King to amend these legislative acts in or der to enhance the protection of depositors of 
dematerialised or fungible financial instruments held with a financial intermediary that becomes 
insolvent with regard to certain le gal risks revealed in the context of  the current financial crisis and 
in particular by the Lehman bankruptcy4. 
1.3 Second , the draft law provides that, in addition to  guarantees for the liabilities of supervised 
institutions5, the King may also establish a system to gr ant the guarantee of the Belgian State for: 
(i)  certain claims (schuldvorderingen/créances)  held by supervised financial institutions6. 
Reference is made, for example, to the loan s granted by Fortis Bank to a special purpose 
vehicle established to acquire part of its structured products portfolio7; 
(ii)  the repayment to natural persons w ho are partners of a cooperative company ( coöperatieve 
vennootschapp /société cooperative ) of their shares in such a company, provided it is a 
supervised institution or that at least half of its assets are invested in a supervised institution8. 
The aim of this provision is to ensure that the shares issued by such cooperative companies 
enjoy similar protection to that put in place fo r other substitutes for savings (i.e. deposits and 
‘branche 21’ insurance products9) insofar as such shares have the same characteristics as 
savings (i.e. offering a regular return and gua ranteeing the repayment of the invested capital 
on demand, subject to limited constraints)10.  
                                                 
3  New Article 117 bis, first subparagraph 1°, of the Law of 2 August 2002. These legislative acts are: (i) the Law of 
2 January 1991 on the market in public debt securities and on th e monetary policy instruments; (ii) Book VIII, Title III, 
Chapter II, Section III of the Companies Code; and (iii) Royal Decree No 62 on the deposit of fungible financial 
instruments and the settlement of tr ansactions involving such instrument coordinated by the Royal Decree of 
27 January 2004. 
4  Explanatory memorandum, comment on the new Article 117 bis, first subparagraph 1°, of the Law of 2 August 2002. 
5 Current Article 117 bis, first subparagraph, (2°), of the Law of 2 Augus t 2002, which is the legal basis for (i) the Royal 
Decree of 16 October 2008 (see Opinion CON/2008/50), a nd for the Royal Decree of 10 December 2008 (see ECB 
Opinion CON/2008/74 of 21 November 2008 at the request of th e Belgian Ministry of Finance on a draft royal decree on 
the guarantee for certain risks assumed by financial institutions ), which is to be amended shortly (on the draft amending 
royal decree see ECB Opinion CON/2009/25 of 19 March 2008 at  the request of the Belgian Ministry of Finance on a 
draft royal decree amending the Royal Decree of 10 December 2008 on the guarantee for certain risks assumed by 
financial institutions). 
6 New Article 117 bis, first subparagraph 2°, of the Law of 2 August 2002. 
7  Explanatory memorandum, comment on the new Article 117 bis, first subparagraph 2°, of the Law of 2 August 2002. 
8 New Article 117 bis, first subparagraph 3°, of the Law of 2 August 2002. 
9  See ECB Opinion CON/2008/61 of 28 October 2008 at the request  of the Belgian Minister for Finance on a draft royal 
decree implementing the Law of 15 Octobe r 2008 on measures promoting financial st ability and in part icular establishing 
a State guarantee for the provision of credit in the context of financial stability, in relation to the protection of deposits 
and life insurance and amending the Law of 2 August 2002 on the supervision of the financ ial sector and on financial 
services. 
10 Explanatory memorandum, comment on the new Article 117 bis, first subparagraph 3°, of the Law of 2 August 2002. 
3 (iii)  losses incurred by supervised institutions on certain assets (e.g. in the context of an asset 
protection scheme, losses on a portfolio of toxic assets that exceed a certain threshold)11 or 
liabilities taken on by entities whose business is  to acquire and manage assets held by 
supervised institutions (e.g. a guarantee grante d to a ‘bad bank’, a special purpose vehicle 
created to acquire a portfolio of toxi c assets held by supervised institutions)12. These two 
amendments are justified by the fact that si milar measures have been put in place or are 
currently being considered in other countries and by the similarity of market expectations in 
different countries13. 
(iv)  the liabilities taken on by Gemeentelijke Holding NV/Holding Communal SA14. 
 2.  General observations 
2.1 The ECB has already delivered opinions on several el ements of the general rescue package put in 
place by the Belgian authorities in response to th e current turbulence in the financial markets
15. All 
the comments and recommendations made in its pr evious opinions given in this context, and 
especially in Opinion CON/2008/46 and Opinion CON/2008/50, apply equally to the draft law.  
2.2 As a general matter, it is important to ensure th at the draft law and any subsequent implementing 
royal decrees fully comply with the relevant provisions of Community law, including competition 
and State aid rules. In particular, it is important  that national authorities should seek to coordinate 
their responses to the current financial situation with  their European Union partners. This is in line 
with the Declaration of 12 October 2008 on a con certed European action plan of the euro area 
countries made at the summit of the euro area Memb er States in Paris, which stressed the need for 
the Member States to ‘act in a united manner and avoid that national measures adversely affect the 
functioning of the single market and the other Member States’16. Certain instruments have been 
adopted with the aim of guiding Member States when designing support measu res to alleviate the 
tensions on the financial markets that can be  relevant in the context of the draft law17 and the ECB 
                                                 
11  New Article 117 bis, first subparagraph 4°, of the Law of 2 Augus t 2002 and the comment on this provision in the 
Explanatory memorandum. 
12  New Article 117 bis, first subparagraph 5°, of the Law of 2 Augus t 2002 and the comment on this provision in the 
Explanatory memorandum. 
13  Explanatory memorandum, comment on the new Article 117 bis, first subparagraph 4° and 5°, of the Law of 
2 August 2002. 
14  Article 117 bis, first subparagraph 6°, of the Law of 2 August 2002. 
15  The ECB has been consulted by the Belgian authorities on si x other draft legislative provis ions adopted in this context: 
(i)  Opinion CON/2008/46; (ii) Opinion CON/2008/50; (iii ) Opinion CON/2008/61; (iv) Opinion CON/2008/74; (v) ECB 
Opinion CON/2008/91 of 22 December 2008 at the request of the Belgian Ministry of Justice on a draft law aimed at 
enhancing the rules on the functioning of company bodies, in particular by introducing into the Companies Code 
provisions regarding a corporate governance statement and th e establishment of a remuneration committee, by limiting 
severance payments for certain company representatives and by reforming the system of statutory disabilities in the 
banking and financial sector; and (vi) Opinion CON/2009/25. 
16  See the Declaration of 12 Octobe r 2008, available on the website of the French Presidency, www.ue2008.fr. 
17 See (i) the Recommendations of the Governing Council of  the European Central Bank on government guarantees for 
bank debt, 20 October 2008, available on the ECB’s website  at www.ecb.europa.eu; (i i) Communication from the 
Commission – The application of State aid ru les to measures taken in relation to financial institutions in the context of the 
current global financial crisis, (OJ C 270, 25.10.2008, p. 8); (iii) the Eurosystem ’s Guiding principles for bank asset 
4 recommends the consulting authority to take th ese into account when adopting measures pursuant 
to the enabling clauses in the draft law in order to  ensure the existence of a level playing-field 
within the euro area. It is noted, in this respect, that royal decrees adopted pursuant to 
Article 117 bis of the Law of 2 August 2002 are subject to the duty to consult the ECB under 
Article 105(4) of the Treaty when they fall within the ECB’s advi sory competences. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 25 March 2009. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
 
                                                                                                                                                             
support schemes, 25 February 2009; a nd (iv) Commission Communication of 25 February 2009 on the treatment of 
impaired assets in the Community banking sector.