EN   
ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 21 May 2019  
on the revision of the legal framework of the Portuguese financial supervisory system  
(CON/201 9/19) 
 
Introduction and legal basis  
On 11 January 2019 , the European Central Bank (ECB) received a request from the Portuguese Minister 
for Finance  for an opinion on a draft law  reforming the institutional governance of the Banco de Portugal 
(BdP) and the institutional framework for the Portugu ese financial supervisory system  (the ‘draft law’) . 
The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the European Union (TFEU) and the third and sixth  indent s of Article  2(1) of Council 
Decision  98/415/EC1, as the draft law relate s to a national central bank , rules applicable to financial 
institutions insofar as they materially influence the stability of financial institutions and markets , and  the 
specific tasks conferred upon the ECB concerning the prudential supervision of credit institutions under 
Article 127(6) TFEU . In accordance with the first sentence of Article  17.5 of the Rules of Procedure of the 
ECB, the Governing Council has adopted  this opinion.   
 
1. Purpose of the draft law  
1.1. The two main purposes of the draft law are to reform the institutional governance of the BdP and 
the institutional framework for the Portuguese financial supervisory system .  
Reform of the Banco de Portugal ’s institutional governance  
1.2. Under the draft law, the BdP’s Management Board is slightly reduced in size, comprising the BdP 
Governor, one or two Vice -Governors and three or four, instead of the current three to five, other 
board members. Currently the Governor is appointed by the Ministerial Council on  a proposal 
from the Minister f or Finance , after consulting the competent commission of the Parliament, while 
the other member s of the BdP’s  Management Board are appointed by the Ministerial C ouncil on a 
proposal from the Governor, after consulting the competent commission of the Parliament. Under 
the draft law, the Governor is no longer  to have a role in the appointment procedure for the other 
members of the BdP’s Management Board, who, along with the Governor, are henceforth to be 
appointed by the Ministerial Council on a proposal from the Minister  for Finance , after consulting 
the competent commission of the Parliament . The draft law also precludes the appointment or 
proposed appointment of members of the Management Board during the six months prior to the 
                                                 
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).  
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2 end of the current legislature, or between the call for elections for the Assembl y of the Republic or 
the dissolu tion of the Government and the parliam entary investiture of the new ly appointed 
Government, except if the positions in question are vacant and there is urgency in proceeding 
with the appointment, in which case the appointm ent or proposed appointment still dep ends on 
confirmation from the newly appointed Government.  In addition, according to  the draft law , the 
members  of the Management Board of the BdP must  be appointed from among persons of 
recognised  good moral standing , aptitude, sense of public interest,  professional experience, 
management ability, knowledge and relevant and appropriate technical competence for the 
exercise of their respective functions . 
1.3. Currently the mandate of the members of the Management Board is five years, which may be 
renewed once,  by the Ministerial Council, for a further  five-year period. Under the draft law, the 
duration of the mandate is increased from five to seven  years , but without being renewable . 
1.4. Currently the members  of the Management Board  may only be re lieved  of their office by the 
Ministerial Council if any of the circumstances set out in Article 14 .2 of the Statute of the 
European System of Central Banks and of the European Central Bank ( hereinafter the ‘Statute  of 
the ESCB ’) apply. Under the draft law, a member of the Management Board may only be relieved 
of their office by a resolution of th e Ministerial Council, on  a proposal by the Minister f or Finance 
or a recommendation by the Parliament, in exceptional circumstances, duly justified, if he no 
longer fulfils the conditions required for the performance of his duties or if he has been guilty of 
serious misconduct. For this purpose, the draft law provides  that the following constitute grounds 
for removal: (i) permanent incapacity; (ii) interdiction or inability h as been judicially determined; 
(iii) incompatibility for the exercise of the mandate; (iv) final judicial conviction for a crime if it 
affects the fitness and propriety for the exercise of functions; or (v) the person in question  has 
been imprison ed. The draft law also provides that the Assembly of the Republic may recommend 
that the Government reliev e members of the BdP’s Management Board  from their office . The 
draft law also provides that the term of office of the members of the Management Board and of 
the Governor may cease due to the BdP’s restructuring by merger or demerger.  
1.5. Currently, the remuneration of the members of the Management Board is determined annually by 
a committee composed of  the Minister f or Finance (or a  representative thereof), the President of 
the Board of Auditors and a previous Governor appointed by the Advisory Board, and it cannot 
include any variable component. Under the draft law, the remuneration is determined by a 
committee belonging t o the Mini stry of Finance, and  cannot be determin ed retroactively or 
amended during the duration of the mandate.   
1.6. The draft law requires the BdP to comply with the following  principles when exercising its 
competenc es, in addition to  the general pr inciples of adminis trative law: quality and efficiency in 
its activity and in its financial and economic management; manag ement by objectives; regular 
evaluation; transparency in its activity by disclosing information regarding its activity, organisation 
and functioning, including regarding the costs of its activity for the addressees of the BdP’s 
powers; and transparency in the functioning of it s bodies and in the management of its staff.  
1.7. The draft law introduces a  new duty to report information to the Minister f or Finance regarding the 
BdP’s budget implementation , accounts and annual and multi -annual plans and activity reports . 
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3 The draft law req uires the BdP to send its annual report to the Assembly of the Republic, w hich 
would  issue an opinion on such report , and makes provision for the disclosure of information to 
parliamentary committees by the members of the BdP’s i nternal bodies , and for the  disclosure of 
information on the internet . 
1.8. The draft law maintains the current provision in the BdP’s Organic Law according to which the 
BdP is not subject to controls by the Court of Auditors in relation to the BdP’s participation in and 
performance  of the tasks assigned to the European System of Central Banks (ESCB) . At the 
same time, t he draft law introduces a new provision establishing that the BdP is not subject to the 
regime of audits and inspections by the services of the  State in relation to  the BdP’s participation 
in and performance of the tasks assigned to the ESCB .  
1.9. The draft law amends the provisions governing the liability of the members of the BdP’s internal 
bodies and staff, and provid es that they may be held directly and personally lia ble for acts and 
omissions in the performance of their duties.  In this re spect, the draft law stipulates that  the 
State’s general civil liability legal framework  applies  to the BdP . 
1.10.  The draft law prohibits : (a) the delegation of the BdP’s competences to other entities ; (b) the BdP 
from exercising other activitie s outside its competences ; (c) the BdP from using its resources for 
other obj ectives than those legally authorised ; (d) the BdP from guaranteeing the compl iance  of 
obligations attributed to othe r entities ; and (e) the BdP from participating  in the creation of profit -
making entities or acquiring  shares in such ent ities, except when legally authoris ed. The draft law 
also imposes additional requirements for hiring external services , which is only allowed if the  
impossibility , inefficiency or the lack of a timely response of the BdP’s  own resources for the 
fulfilment of its tasks  is duly demonstrated . 
1.11.  The draft law requires  the mem bers of the BdP’s  Management Board  to avoid any situation that 
can influence, limit or impede their ability to act with full independence, probity and impartiality in 
the performance of their functions. The draft law establishes ethics rules on incompatibilities, 
private financial transactions , post -employment restrictions , including compensation, and gifts 
and benefits.  The draft law establishes  an Ethics Committee  to analyse and issue declarations on 
matters regarding conflicts of interest and discharge certain specific responsibilities. The Ethics 
Committee is to be composed of a member appointed by the Management Board , a member 
appointed by the Board of Auditors and a third member, appointed by those other two members, 
as president of the Ethics Committee. The members of the Ethics Committe e are to be chosen 
from among people of recognised fitness , propriety  and independence not having any link or 
contractual relation ship with the BdP. The draft law also makes provision for incompatibilities and 
conflicts of interest of the BdP’s  staff members and t he recruitment of staff members.  
1.12.  In order  to achieve efficiency, effectiveness  and quality in the BdP’s activities, the draft law 
introduces performance indicators for the BdP which aim to reflect the totality of the BdP’s 
activities an d results . The system of performance indicators , which is to be implemented  by the 
BdP, must specifically relate to the BdP’s activity  plan and the management of human resources, 
including the evaluation of employees’ performance.  
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4 1.13.  The draft law reform s the BdP’s Board of Auditors, amending its designation and compos ition, the 
duration of its members ’ mandate and their remuneration . The draft law also reform s the BdP’s 
Advisory Board, amending its composition, the frequency of its meeting s and its manner of 
functioning.   
1.14.  The draft law confers powers for the ‘resolution of conflicts’ on the BdP, alongside other 
regulatory, supervisory and sanctioning powers.  
1.15.  The draft law authorises the BdP to charge fees for its services and acts.  The draft law also 
authorises the BdP to settle or charge fees in the name or on behalf of other national or European 
entities.  
Reform of the Portuguese financial supervisory system  
1.16.  Apart from the changes introduced to the institutional governance of the BdP, the draft law 
establishes a National System of Financial Su pervision (NSFS) composed of five authorities: the 
BdP, the Portuguese Securities Market Commission ( hereinafter  the ‘ Market Authority ’), the 
Insurance and Pension Funds Supervisory Authority ( hereinafter the ‘Insurance Authority ’), the 
Resolution and Administration of Guarantee Schemes Authority ( hereinafter the ‘Resolution 
Authority’), which is created by the draft law, and would be the n ew resolution authority, and the 
National Council of Financial Supervisors (NCFS), which would be responsible for coordination 
between supervisory authorities and would also be the new macro -prudential authority . As a 
consequence, the BdP would no longer b e the Portuguese macro -prudential authority or the 
Portuguese resolution authority.  The draft law introduces new statutes for the Market, Insurance 
and Resolution Authorities and the NCFS. The draft law also introduces provisions for 
collaboration and exch ange of information between the different authorities.  
1.17.  The draft law establishes a  Financial Stability National Committee (FSNC ), an advisory body of 
the Minister f or Finance in financial stability matters which  is responsible for coordination between 
the NSFS and the economic, financial and budgetary policies of the State.  The President of th e 
FSNC would be the Minister f or Finance and the other members comprise the BdP  Governor and  
the Presidents (or heads) of the other entities compri sing the NSFS.  
1.18.  The draft law  introduce s the possibility  that supervisory tasks may be entrusted to the BdP but 
exercised by a different public legal en tity under the BdP’s dependency . 
1.19.  Several amendments to the Regime Geral das Instituições de Crédito e das Sociedades 
Finance iras (hereinafter the ‘RGICSF’ )2 and other legislation are introduced by the draft law to 
reflect the fact that the BdP would no longer be the macro -prudential authority or the resolution 
authority. Within the professional secrecy framework applicable to credit institutions, two 
additional possibilities of disclosure by the BdP to the NCFS and to the Resolution Authority have 
been added . 
1.20.  The draft law provides that the tasks of the NCFS in its capacity as the nationa l macro -prudential 
authority are to be: (i) the definition of the national macro -prudential policy, in line with the macro -
                                                 
2   Approved by Decree -Law No 298/92 on the legal framework of credit institutions a nd financial companies 
(Decreto -Lei n.º 298/92, de 31 de Dezembro).  
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5 prudential policy defined by the European Sy stemic Risk Board (ESRB); (ii) the identification, 
monitoring and assessment of systemic risks, taking the specific features of the national financial 
sector into account; and (iii) the adoption of measures for the prevention, mitigation or reduction 
of sy stemic risks and the monitoring of their implementation.   
1.21.  The draft law provides that the tasks of the NCFS in areas of a horizontal nature or impact on the 
financial sector are intended to safeguard the stability of the Portuguese financial sector. The 
draft law also provides that the supervisory authorities are to propose to the NCFS the adoption 
of macro -prudential measures  with a horizontal  impact on the financial sector  designed to prevent 
or mitigate systemic risks.  The draft law empowers the NCFS to adopt Union  harmonised 
macro -prudential measures envisaged by Regulation (EU) No 575/2013  of the European 
Parliament and of the Council3 and Directive 2013/36 /EU of the European Parliament and of the 
Council4, which conce rn credit institutions, in certain cases after a proposal by the BdP. The draft 
law also provides that the NCFS may delegate to the supervisory authorities the implementation 
of the adopted measures. The draft law further provides that t he supervisory auth orities are to 
inform the NCFS of their intention to adopt macro -prudential measures that will not have a 
horizontal impact on the financial sector .  
1.22.  Regarding the role of the BdP in the NCFS, the draft law provides that the NCFS Management 
Board is to be composed of seven members, including two BdP representatives. The BdP 
Governor would lead the meetings of the NCFS Management Board intended for the discussion 
of macro -prudential matters and represent the NCFS with a voting right at the ESRB’s General 
Board.  
1.23.  The draft law provides that the NCFS must cooperate with the ESRB, the macro -prudential 
authorities of other States, the ECB, the European supervisory authorities and any relevant 
entities or organisations governing financial stability.  
1.24.  The draft l aw establishes a  Remuneration and Evaluation Committee with the task of issuing 
technical opinions regarding the appointment of the members of the managem ent body of all 
NSFS  entities , including the BdP. These opinions are limited to an evaluation of legal 
requirements, in addition to a compliance check with reference to the rules on incompatibilities 
and impediments. The  Committee is to be responsible also for setting the remuneration statutes 
of such members , taking accou nt of criteria common to all entities comprising the NSFS, 
including the activity of each entity with reference to the results of a system of performance 
indicators . The Committee is to be composed of one member appointed by each supervisory 
author ity that  comprises the NSFS with a president appoi nted by the Minister f or Finance. The 
Committee is to operate as part of the Ministry of Finance, with its operating  costs being paid 
from the Ministry of Finance’s general expenses.  
                                                 
3   Regulation (EU) No 5 75/2013 of the European Parliament and of the Council of 26 June 2013 on prudential 
requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 
27.6.2013, p. 1).  
4   Directive 2013/36/EU of the European Par liament and of the Council of 26 June 2013 on access to the activity of 
credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 1 76, 27.6.2013, p. 338).  
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6 The Banco de Portugal’s partial financing of Portuguese Competition Authority  
1.25.  The draft law provides that the financing of the Portuguese Competition Authority is to be ensured 
by periodic payments by the BdP, in addition to payments by other sectoral authorities , as well as 
by the fees charged within the scope of the specific activity of the Competition Authority . 
 
2. Observations  
2.1 Minimum term of office of the Banco de Portugal  Governor  and grounds for relieving  him or her 
from office  
2.1.1.  To gua rantee the independence of the G overnors of the national central banks ( NCBs ) and 
members  of the Governing Council of the ECB, each Member State must ensure that the statute s 
of its NCB  are compatible with the Treaties and the Statute  of the ESCB with regard to the 
Governor’s term of office and the grounds for relieving him or her from office5.  
Minimum term of office  
2.1.2.  While the draft law  generally provides for a  term of office of seven years6, which is longer than the 
minimum period of five years required by Article 14.2 of the Statute  of the ESCB , the provision 
regarding the  appointment of the Governor from one of the member s of the BdP’s Management 
Board , during their term of office7, is not c ompatible with the Statute of the ESCB insofar as it 
stipulates that  the former me mber of the BdP’s Management Board would serve as Governo r only 
for the remainder of his  initial term of office. As the remainder of the initial term of office of the 
former member of the BdP’s Management Board (appointed as Governor ) may be  less than five 
years, the  minimum term of office prescribed by the Statute of the ESCB would not be observed . 
Consequently , to bring it in line with th e Statute of the ESCB, the draft law needs  to be amended 
to ensure that also when  the Governor is appoi nted from amongst the members of the BdP’s 
Management Board , the Governor’s term of office  must be no less than five years.  
Grounds for relieving the Governor from office  
2.1.3.  A Governor may be relieved from office only if he ‘no longer fulfils the conditions required for the 
performance of his  duties or if he has been guilty of serious misconduct ’8. The ECB is of the view 
that the concepts underpinning the conditions under which a Governor may be relieved from 
office are autonomous concepts of Union  law9, the application and interpretation of which do  not 
depend on a national context, irrespective of whether  such co ncepts a re embedded also in the 
BdP’s Organic Law.   
                                                 
5   Article 131 TFEU and Articles 14.1 and 14.2 of the Statute of the ESCB. See, in this regard, also ECB Convergence 
Report 2018, part 2.2.3, p. 23 and 24. Available on the ECB’s website at www.ecb.europa.eu . 
6   Article 33(2) of the BdP’s Organic Law, as amended by the draft law.  
7   Article 33(4) of the BdP’s Organic Law, as amended by the draft law.  
8   Article 14.2 of the Statute of the ESCB.  
9   See, in a similar vein, the opinion delive red by Advocate General Kokott on 19 December 2018, Rimšēvičs  v Latvia , 
Joined Cases C -202/18 and C -238/18, ECLI:EU:C:2018:1030, paragraph 77.  
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7 2.1.4.  Seen i n this light, the BdP’s Organic Law is compatible with the Statute of the ESCB insofar as it 
replicates the wording of Article 14.2 of the Statute of the ESCB10. However,  the BdP’s Organic 
Law11 would need to be clarified so  that it does not  aim at further defin ing the scope of application 
of Article 14.2 of the Statute of the ESCB12, in particular as far as the conditions under which a 
Governor may be relieved from office are concerned .  
2.1.5.  Given that, once appointed, a Governor may not be relieved from office on grounds other than 
those mentioned in Article 14.2 of Statute of the ESCB , the BdP’s Organic Law is in compatible 
with the Statute  of the ESCB insofar as it provides for a case in which the appointment of the 
Governor will depend on a confirmation from a newly appointed government13. This is because 
the absence of such confirmation would  have effects equivalent to relieving the Governor  from 
office  on grounds other than those mentioned in Article 14.2 of Statute of the ESCB , in particular 
since  in such  case s the objective of safeguarding  the Governor’s freedom from political influence  
could no longer be attained .  
2.1.6.  For the same reasons , the  BdP’s Organic Law  is incompatible with the Statute of the ESCB 
insofar as it provides that the Governor’s term  of office may cease due to the BdP’s restructuring 
by merger or demerger14. Irrespective of whether the BdP is subject to a r eorganisation process, 
the Governor  may be relieved from office only if he or she no longer fulfil s the conditions required 
for the performance of his or her  duties or if he or she  is guilty of seri ous misconduct .  
2.1.7.  With regard to the procedure for relieving the Governor from office, the ECB notes that , following 
the amendments introduced by the draft law , not only the Government but also the Portuguese 
Assembly of the Republic  may propose  to the Ministerial Council that the Governor’s term of 
office be terminated . While compatible with the St atute of the ESCB , this may introduce  an 
additional  level of political pressure  in the exercise of the Governor’s responsibilities .  
2.2 Safeguards for the independence of the other members of the Banco de Portugal’s Management 
Board  
All members of the NCBs’ decision -making bodies must exercise the powers and carry out the 
tasks and duties conferred upon them by the Treaties  and the Statute  of the ESCB 
independently15. Given that not only the Governor but also the other members of the BdP’s 
Management Board  are involved in the performance of ESCB -related tasks16, the ECB welcomes 
the fact that, to safeguard their independence, the provisions of the BdP’s  Organic Law regarding 
security of tenure apply not only to the Governor but also to the other members of the BdP’s 
Management Board . Accordingly, the consulting authority should consider the observations made 
in paragraph 2. 1 also in respect of the other members of the BdP’s Management Board.  
                                                 
10   Article 33(8) of the BdP’s Organic Law.  
11   In particular, Article 33(9) of the BdP’s  Organic Law, as amended by the draft law.  
12  Replicated in Article 33(8) of the BdP’s Organic Law.  
13   Article 27(5) of the BdP’s Organic Law, as amended by the draft law.  
14   Article 33(12)(d) of the BdP’s Organic Law, as amended by the draft law.  
15   Article 130 TFEU and Article 7 of the Statute of the ESCB.  
16   See paragraph 2.2 of Opinion CON/2014/51 and paragraph 3.1.3 of CON/2018/23. All ECB opinions are published 
on the ECB’s website at www.ecb.europa.eu . 
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8 2.3 Appointment criteria for the Banco de Portugal ’s Governor and the members of the Banco de 
Portugal’s Management Board  
The ECB notes that  the criteria of a ‘sense of public interest’ and ‘ aptitude’,  introduced by the 
draft law amongst the criteria to be taken into account for the appointment of the BdP’s 
Management Board , are somewhat vague and therefore  might be difficult to  interpret  and use  in 
practice . Consequently, the ECB suggests reducing the  criteria to the other proposed terms  which 
were either established  a long time ago , such as ‘standing’ and ‘professional experience’17, or are 
more common in the monetary and banking field.   
2.4 Ethics rules and establishment of the Banco de Portugal ’s Ethics Committee  
2.4.1.  The ECB notes  that NCBs and national competent authorities ( NCAs ) should comply with 
Guideline (EU) 2015/855 of the European Central Bank ( ECB/2015/11 )18 laying down the 
principles of a Eurosystem Ethics Framework  and with Guideline (EU) 2015/856  of the European 
Central Bank ( ECB/2015/12 )19 laying down the principles of an Ethics Framework for the Single 
Supervisory Mechanism ( SSM ). In this regard, the ECB notes that the BdP  has already 
implemented these  Guidelines . The draft law may thus be seen  as complement ing the three 
existing internal  acts by which the BdP has implemented the Guidelines20. The ECB Guidelines  
set the minimum standard s for ethics rules and do not prevent  the application by a n NCB  or the 
NCAs of more stringent ethics rules to the members of the bodies of Eurosystem central banks 
and national authorities responsible  for the prudential supervision of credit institutions.   
2.4.2.  The ECB welcomes the fact that the ethics rules are accompanied by the  legal establishment of 
an Ethics Committee . As regards the composition of the Ethics Comm ittee, the independence of 
its members should be beyond doubt. Although they may not have any link or contractual relation 
with the BdP, they should nevertheless avail the mselves o f a sound understanding of the BdP’s  
objectives,  tasks and governance . Furt hermore, requiring unanimity for the Ethics Committee’s 
deliberations21 safeguards  the probity and impartiality of its decisions, entailing  that decisions 
cannot be taken against the vote of either the member appointed by BdP’s Management Board or 
the member appointed by the BdP’s Board of Auditors.  However, the ECB notes that  any 
interven tion by the Ethics Committee in outsourcing procedures , as envisaged by the draft law22, 
must not impair either the BdP’s ability to efficiently perform its tasks  or its organisational 
autonomy.  
                                                 
17  See, for example, Article 283(2) TFEU and Article 11.2 of the Statute of the ESCB.  
18   Guideline (EU) 2015/855 of the European Central Bank of 12 March 2015 laying down the principles of a 
Eurosystem Ethics Framework and repealing Guideline ECB/2002/6 on m inimum standards for the European 
Central Bank and national central banks when conducting monetary policy operations, foreign exchange operations 
with the ECB's foreign reserves and managing the ECB's foreign reserve assets (ECB/2015/11) (OJ L 135, 2.6.201 5, 
p.23).  
19   Guideline (EU) 2015/856 of the European Central Bank of 12 March 2015 laying down the principles of an Ethics 
Framework for the Single Supervisory Mechanism (ECB/2015/12) (OJ L 135, 2.6.2015, p.29).  
20   ‘Regulamento da Comissão de Ética e dos  Deveres Gerais de Conduta dos Trabalhadores do Banco de Portugal’, 
an internal regulation of the BdP establishing rules for the functioning of the Ethics Committee and the ethical 
behaviour of the BdP’s staff; ‘Código de Conduta dos Membros do Conselho de  Administração do Banco de 
Portugal’, an internal code of conduct for the members of the BdP’s Management Board; and ‘Código de Conduta 
dos Membros do Conselho de Auditoria do Banco de Portugal’, the code of conduct of the BdP’s Board of Auditors.  
21   Article 49 -C(4) of the BdP’s Organic Law, as amended by the draft law.  
22   Article 49 -B(1)(f) of the BdP’s Organic Law, as amended by the draft law.  
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9 2.4.3.  Furthermore, t he ECB clarifies  that any ethics rules are subject to compliance with the principle of 
proportionality  as a general principle of law . This means that also the application of the 
incompatibility  rules to middle management positions , as established under the BdP’s Organic 
Law, and the cooling -off periods applicable to the BdP’s Board members and staff , as envisaged  
by the draft law23, should  not be disproportionate or unduly  hamper the  ability to recruit qualified  
staff. In this regard, the ECB refers to the relating rules under the ECB’s Code of Conduct for 
High Level ECB -Officials  as endorsed by the Governing Council .  
2.5 Provisions concerning the Banco de Portugal ’s recruitment and procurement  procedures  
2.5.1.  The draft law subjects the BdP to specific rules concerning : (a) the external recruitment of 
intermediate management positions ; and (b) public procurement.  The ECB considers competitive 
recruitment procedures , including external procedures,  to be an important management tool for 
an NCB . At the same time, the BdP’s  ability to retain highly -qualified staff by designing internal 
career paths should be considered . To safeguard the BdP’s ability to retain qualified staff24, the 
ECB also suggests that the draft law should be clarified in order not to requir e such procedur es to 
be conducted  at fixed intervals such as every three years , given that the draft law  establishes a 
three year term for management positions . 
2.5.2.  In the same vein , the additional conditions  to be satisfied  by the BdP when hiring  external 
services25 should not hinder  its ability to effectively discharge its tasks. This operational  principle  
is also reflected in  Principle 2 (6) of the Basel Core Principles for Effective Banking Supervision 
(the ‘Basel Core Principles’)26 according to which supervisors should have adequate resources to 
conduct effective supervision and oversight . 
2.6 Auditing regime for  the Banco de Portugal ’s activities  
2.6.1.  The accounts of the ECB and the NCB s must be audited by independent external auditors 
recommended by the ECB Governing Council and approved by the EU Council . The auditors 
must have full power to examine all books and accounts of t he ECB and the NCB s and obtain full 
information about their transac tions27. Any national auditing fr amework of the activities of a n NCB 
is expected to take these requirements  into account.  
2.6.2.  The ECB notes that, u nder the draft law , the BdP remains  subject to audits by the Court of 
Auditors, with the exception of the BdP’s  participation in and performance of the tasks assigned 
to the ESCB28.  
2.6.3.  Following  the amendments  introduced by the draft law – according to which the BdP is not 
subject to the regime of audits and inspections by the State ’s services in relation to the BdP’s  
                                                 
23   Article 6(b) of the draft law and Articles 40 -B(7), (8), (9) and (10) and Article 57 -A(2) of the BdP’s Organic Law, as 
amended by the draft law.  
24   As consistently noted by the ECB in its Convergence Reports, Member States may not impair an NCB’s ability to  
employ and retain the qualified staff necessary for the NCB to perform the tasks conferred on it by  the Treaties and 
the Statute of the ESCB.  
25   See Article 52 -B of the BdP’s Organic Law, as amended by the draft law.  
26   Basel Committee on Banking Supervision, ‘Core Principles for Effective Banking Supervision’, available on the Bank 
for International Settlements’ website at www.bis.org . 
27   Article 27 of the Statute of the ESCB.  
28  Articles 54(7) and 64(2)(d) of the BdP’s Organic Law, as amended by the draft law.  
ECB -PUBLIC  
10 participation in and performance of the tasks assigned to the ESCB29 – the ECB understands that 
the BdP would, in addition to the abovementioned audits  by the Court of Auditors, also  be subject 
to other types of audits and inspections by the State ’s services30 in all areas that do not relate to 
the BdP’s participation in and performance of the tasks assigned to the ESCB.  Such additional 
audits and inspections by the State ’s services would be carried out by administrative services of 
the State  such as the Inspe cção-Geral de Finanç as (IGF, General Inspectorate of Finance )31. The 
IGF is an administrative body set up within the Ministry of Finance  acting under the direct 
hierarchical control of the Minister f or Finance , or the competent  Secretary of State32, which  
enjoys  technical autonomy when  exercising its tasks33. The IGF is responsible for exercising 
control over the financial management of the State, which includ es legal compliance  
assessments, management and financial audits compris ing inspections34. Among other tasks, the 
IGF is responsible for budgetary, economical, financial and asset -related audits and controls, as 
well as audits of systems and performances, inspections, financial -economic analysis and other 
types of examinations and  control ling tasks related  to the entities it inspects. The IGF is also 
responsible for carrying out inspections, inquiries, investigations and verifications of any public 
services or legal persons governed by public law, in order to assess the quality of services, 
through their effectiveness and efficiency, as well as for carrying out discip linary proceedings, 
where applicable, for the entities it inspects.  
2.6.4.  The ECB also understands that , under the BdP’s Organic Law,  as amended by the draft law, the 
explicit exclusion  concerning the BdP’s participation in and performance of the tasks  assigned to 
the ESCB from the inspections and audits that the State ’s services  and the Court of Auditors may 
undertake35 implies that a ll other activities  of the BdP may be  included within the scope of such 
inspections and audits.  
2.6.5.  In this respect, the ECB has repe atedly stated36 that any S tate audit office or similar body 
entrusted with such tasks , such as the IGF or the Court of Auditors , must observe a number of 
safeguards that aim to preserve the NCB ’s independence: (a) the scope of the control should be 
clearly defined by the legal framework; (b) such control should be without prejudice to the 
activities of the NCB’s independent external auditors to examine all books and accounts of the 
NCB ; (c) the audit should  comply with the prohibition on seeking to influence the members  of the  
                                                 
29  Article 54(6) of the BdP’s Organic Law, as amended b y the draft law.  
30  See Decree -Law No 276/2007 on the legal framework on inspections from the State services (Decreto -Lei n.º 
276/2007, de 31 de Julho).  
31  See Article 3(1) of Decree -Law No 276/2007 on the legal framework on inspections from the State ser vices, as well 
as Decree -Law No 96/2012, of 23 April, on the General Inspectorate of Finance.  
32 See Article 15 of Decree -Law No 276/2007. Also, pursuant to the Organic Law of the Ministry of Finance, as 
approved by Decree -Law No 117/2011, of 15 December, t he IGF is established as a ‘central service’ integrating, 
within that Ministry, the State direct administration [Article 4(c) of Decree -Law No 117/2011]. ‘Central services’ are 
organisational structures within the State’s direct administration subject to t he hierarchical power of the 
corresponding member of Government [see Articles 2(1) and 3(2) of Law No 4/2004 which lays down the principles 
and rules governing the State direct administration].  
33  See Article 10 of Decree -Law No 276/2007.  
34  See Article 2 of Decree -Law No 96/2012.  
35   Articles 54(6),(7) and 64(2)(d) of the BdP’s Organic Law, as amended by the draft law.  
36   See, for example, paragraph 3.1.1 of Opinion CON/2018/45, paragraph 2.2 of Opinion CON/2017/24 and paragraph 
2.2 of Opin ion CON/2016/59, as well as the ECB Convergence Report 2018,  part 2.2.3,  p.27.  
ECB -PUBLIC  
11 NCB s’ decision -making bodies  in the performance of their ESCB -related tasks and be carried out 
on a non -political, independent and purely professional basis. In addition, audits concerning the 
BdP’s supervisory activities shoul d: (i) not extend to the application and interpretation of 
supervisory law and practices in the context of the SSM ; and ( ii) not interfere with or include th e 
tasks conferred on the ECB by  Council Regulation (EU) No 1024/201337. Given the broad  scope 
of the IGF’s  powers  and the fact that the IGF is an administrative body set up within the Ministry 
of Finance  under the direct hierarchical control of the Minister for Finance , the inspections and 
audits performed by such a body would not be compatible with the abovementioned  safeguards  
aimed at  preserv ing the BdP’s independence .  
2.7 The Banco de Portugal’s transparency obligations  and reporting to Parliament   
2.7.1.  As with any transparency duties , the rules on the information to be published on the BdP’s 
website38 must  be compatible with professional secrecy  obligations  laid down in the Statute  of the 
ESCB39 and secondary Union law40, in particular, having regard to the importance of 
confidentiality in the banking supervisory and crisis management contexts . Accordingly, t he ECB 
understands  that the considerations underlying the exceptions from publication of certain 
information provided for by the BdP’s Organic Law  would apply not only to the summaries of the 
meetings of the BdP’s bodies  but also  to the opinions and reports of the Advisory Board and the 
Board of Auditors.  
2.7.2.  In addition, with regard to the opinions and reports of the Advisory Board and the Board of 
Auditors , the ECB suggests that careful  consider ation be given to  the impact of the p ublication of 
the opinions and reports of these internal bodies of the BdP on the  BdP’s  functioning  and its 
decision -making process , also taking into account financial stability concerns resulting from such 
publication’s  impact on the market,  in particular where  they relate to internal matters of the BdP 
and are meant exclusively for the internal use of the BdP . 
2.7.3.  Finally, regarding the disclos ure of information to parliamentary committees by the members of 
the BdP’s internal bodies41, the ECB notes that appropriate safeguards must be in place to 
ensure that  professional secrecy  obligations  under Union law are observed , including  the 
conditions for the disclosure of confidential supervisory  information42.  
2.8 Liability  of the Banco de Portugal  and its staff  
2.8.1  The draft law amends the liability framework applicable to the BdP’s Management Board 
members and staff , inter alia,  by eliminat ing the current provisions according to which liability 
claims re lated to the performance of the BdP’s  tasks by such persons may only be d irected 
against the BdP itself, which may later have recourse to its staff with respect to any damages 
                                                 
37   Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions ( OJ L 287, 29.10.2013, p.63 ). 
38   Articles 66(1) and 67 of the BdP’s Organic Law, as amended by the draft law.  
39   Article 37 of the Statute of the ESCB.  
40   See, for example, Article 27 of Regulation (EU) No 1024/2013.  
41   Article 66(3 ) of the BdP’s Organic Law, as amended by the draft law.  
42  See, for example, Article 59 of Directive 2013/36/EU.  
ECB -PUBLIC  
12 incurred . According to the draft law43, the members of the BdP’s internal bodies (Governor, 
Management Board, Board of  Auditors, Advisory Board and Ethics Committee), as well as 
members of staff, may be held personally liable for the performance of their tasks, with the 
possibility of legal proceedings  being brought directly against them  by third parties . In such a 
case, the legal support of the members of the BdP’s internal bodies and staff would nonetheless 
be guaranteed by the BdP itself, without prejudice to the BdP’s right of redress against them, if 
such is the case . In addition, under the draft law, the State’s general civil liability legal 
framework44 applies  to the BdP , which  confers on the BdP’s Management Board members and 
staff a level of protection according to which they could be held liable for acts or omissions  
committed with minor negligence  (‘culpa leve ’), which is a low degree of negligence,  when 
performing  their functions . This mean s that there is no requirement for such persons to have 
acted either with intention or with gross negligence45. 
2.8.2  The ECB notes that the new liability regime may have a particular impact on the BdP staff 
performing  supervisory tasks, given that the adoption of individual supervisory decisions when 
pursuing  such tasks is connected to the risk of litigation against the supervisor by the supervised 
credit institution or by o ther affected stakeholders . Such actions may  relate, for example, to an 
alleged reduction of profit, the loss of business opportunity, injury to commercial reputation, etc. 
Litigation of  this kind may be brought quite irrespectively of the correctness of any prudential 
measures  adopted , especially where several categories of stakeholders with competing interests , 
e.g. the creditors of a failing bank , are involved. In order to address this litigation risk present in 
the operation of prudential supervisors, Principle 2 of the Basel Core Principles states  that: (a) 
laws should protect  the supervisor and its staff against lawsuits for actions taken and/or  
omissions made while discharging their duties in good faith ; and (b) the supervisor and its staff 
should be adequately protected against the costs of defending any actions and/or omissions they 
make while discharging their duties in good faith46. The ECB n otes that, while in principle it is a 
matter for national law to determine the scope of liability connected with the performance of the 
tasks of NCAs, it is also important for the functioning of the SSM that the national liability regimes 
offer standards o f legal protection commensurate with the Basel Core Principles. If the  legal 
protection offered to the staff of the BdP is inadequate , the position of any of the BdP staff 
members involved in joint supervisory teams (JSTs) within the SSM may be compromised , given 
that instructions given to such staff by the JST coordinator in line with Article 6(1) of Regulation 
(EU) No 468/2014 of the European Central Bank47 may lead to personal liability claims against 
such staff. Therefore, the ECB suggests maintaining th e present liability regime, which is aligned 
with the Base l Core Principle s, where by liability claims may be brought against the BdP only, thus 
                                                 
43  Article 62 of the BdP’s Organic Law, as amended by the draft law.  
44  Article 64(2)(c) of the BdP’s  Organic Law, as amended by the draft law.  
45  See Article 7 of Law No 67/2007, of 31 December.  
46   Principle 2, essential criterion 9.  
47   Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for 
cooperation  within the Single Supervisory Mechanism between the European Central Bank and national competent 
authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ L 141, 
14.5.2014, p. 1).  
ECB -PUBLIC  
13 excluding  the direct individual liability of members of the BdP ’s governing bodies and the BdP’s 
staff.  
2.8.3  In this  context, the ECB recalls that Basel Core Principle 2 requires that banking supervisors 
possess operational independence which implies, in particular, that: (i) there is no government or 
industry interference that compromises the operational independence of the supervisor and (ii) 
the supervisor has full discretion to take any supervisory actions or decisions regarding the banks 
and banking groups under its supervision.  
2.8.4  The ECB notes that the new liability regime may have a particular impact on the BdP’s 
Management Board members and staff also in the context of crisis management, when the BdP 
may need to act effectively and swiftly in order to protect the stability of the Portuguese financial 
system.  
2.9 Remuneration and Evaluation Committee   
As the ECB has re peatedly stated , Member States may not impair an NCB’s ability to recruit and 
retain the qualified staff necessary for the NCB to perform independently the tasks conferred on it 
by the Treat ies and the Statute  of the ESCB48. Accordingly , the amendment s to the rules  on the 
exercise of the Remuneration and Evaluation Committee’s powers for setting the remuneration of 
all members of the management body of all entities comprising the NSFS, including the BdP49, 
concerning  the remuneration of members of the BdP’s decision -making bodies and its 
employees , would need to be decided in close and effective cooperation with the  decision -making 
bodies of the BdP to ensure the ongoing ability of the NCB to independently carry out its tasks50. 
2.10 Monetary financing prohibition  
2.10.1  The limits deriving from the prohibition of monetary financing under Article 123(1) TFEU  should 
be taken into account  when designing the new institutional framework for the financial 
supervisory system  in Portugal, where the BdP is concerned.  The ECB has repeatedly stated that 
national legislation may not require an NCB to finance the performance of functions by the public 
sector51, as this would have effects equivalent to that of a credit facility. Hence, although a credit 
facility implies an ob ligation to repay the funds, Article 123(1) TFEU also applies to forms of 
financing that do not entail an obligation to repay the funds.  
2.10.2  In particular, the ECB notes that the draft law makes provision for the financing of the Competition 
Authority by, inte r alia, the BdP52. However, t here are no indications that the authorisation given 
by the draft law to the BdP to settle or charge fees in the name or on behalf of other national or 
                                                 
48   See, for example,  paragraph 2. 2 of Opinion CON/2008/9; paragraph 3.2.2 of Opinion CON/2008/10; paragraphs 2.2 
and 2.3 of Opinion CON/2009/45; paragraph 2.2 of Opinion CON/2009/47; paragraph 4.1 of Opinion CON/2010/42; 
paragraph 3.1.1 of Opinion CON/2010/51; paragraph 2.1 of Opinion CON /2013/92; paragraph 3.1.1 of Opinion 
CON/2014/12; and paragraph 4.1.1 of Opinion CON/2014/38.  
49   Article 32 of the draft law.  
50   See paragraph 2.1 of Opinion CON/2013/92 and paragraph 4.1.1 of Opinion CON/2014/38.  
51   See ECB Convergence Report 2018, par t 2.2.5.1, p. 30.  
52   See Article 5(3) of the Competition Legal Framework and Article 35(1) of the Statutes of the Competition Authority, 
as amended by the draft law.  
ECB -PUBLIC  
14 European entities53 entrusts the BdP with the task of charg ing fees within the scope of the 
specific activity of the Competition Authority.  
2.10.3  The proposed financing of the Competition Authority by the BdP would be incompatible with the 
prohibition of monetary financing under Article 123(1) TFEU , which , inter alia,  prohibits overdraft 
facilities or any other type of credit facility with an NCB in favour of the public sector. To the 
extent that the performance of the Competition Authority is not only financed by funds provided 
by the sectorial regulatory authorities and by the fees charged within the scope of its specific 
activity, but also by funds pro vided by the BdP, the objective of Article 123(1) TFEU, i.e. the 
maintenance of a sound budgetary policy of Member States, is circumvented54.  
2.10.4  For the same reasons , the exe rcise by a different public legal entity of tasks entrusted to the BdP 
may not be established in a way such that the BdP would simply finance a public entity without 
having control over it, e.g. a set up similar to the proposed financing of the Competition  Authority.  
In this respect, it would need to be assessed whether the BdP’s financial contribution is 
proportionate to the BdP’s overall participation  and role in the performance of tasks by the public 
entity concerned.  
2.11 Possibility of supervisory tasks entrusted to the Banco de Portugal being exercised by a different 
public legal entity  
2.11.1   The ECB understands that, at this stage, the draft law only establishes the possibility that, in the 
future, a different public legal entity under the dependency or authority of the BdP may be 
entrusted with supervisory tasks55. The ECB would have to be con sulted under Articles 127(4) 
and 282(5) TFEU  on any further legislation creating or developing the framework under which 
supervisory tasks currently entrusted to the BdP are to be exercised by a different public legal 
entity. Moreover, the ECB recommends that any such potential activation of the enabling clause 
is preceded by close and effective cooperation with the BdP, taking due account of the BdP’s 
views, to ensure th e operational independence of the banking supervisor.  
2.11.2  Basel Core Principle 2 requires that banking supervisors possess operational independence (with 
the implications referred above in paragraph 2.8.3) . This principle is reflected  in relation to the 
SSM in Article 19 of the SSM Regulation, which requir es that the NCAs participating in the SSM 
must act independently and that the governments of the Member States and any other bodies 
must respect that independence. Therefore, the ECB recommends that the provi sions regarding 
the establishment and operation of a separate public legal entity responsible for performing  
supervisory tasks under the authority of the BdP, should expressly include independence 
safeguards for such a legal entity analogous to those speci fied in the BdP’s Organic Law.  
2.11.3   The ECB recommends that the provisions regarding the establishment and operation of a 
separate public legal entity, together  with the BdP’s Organic Law, ensure the clear assignment of 
the NCA status in Portugal and specify the BdP’s competence to steer the performance of the 
NCA functions within the SSM, in particular those connected to participation in the Supervisory 
                                                 
53   Article 52 -A(3) of the BdP’s Organic Law, as amended by the draft law.  
54   See paragraph 2.3 and 2.4 of Opinion CON/2017/43.  
55        Article 17(6) of the BdP’s Organic Law, as amended by the draft law.  
ECB -PUBLIC  
15 Board, the JSTs and other SSM structures. In addition, the creation of a separate public legal 
entity respo nsible for prudential supervision tasks under the authority of the BdP should not 
interfere with the effective performance of the BdP’s other tasks related to the functioning of the 
European System of Financial Supervisors, such as the BdP’s contributions to the work of the 
ESRB, as well as the BdP’s ancillary tasks related to the operation of the Single Resolution 
Mechanism , such as tasks related to resolution planning.    
2.12 The Banco de Portugal’s  powers regarding  the resolution of conflicts  
Regarding the  powers for  the ‘resolution of conflicts ’ to be conferred on the BdP under the draft 
law56, alongside other regulatory, sup ervisory and sanctioning powers,  the ECB considers that 
the term ‘resolution of conflicts ’ is not clear in this context. S uch powers a re not currently 
conferred on the BdP, as they are not included within the current set of powers confe rred on the 
BdP for supervising relations be tween banks and their customers . The ECB suggests that the 
draft law be further clarified in this respect . 
2.13 National Council of Financial Supervisors  
The draft law is not clear regarding the NCFS’s task of coordinating the answers to requests from 
national and foreign entities as well as international organisations57. The impact of this power 
should be carefully assessed , because if all queries need to be addressed to the NCFS and 
coordinated by this entity, this may substantially delay  the BdP’s ability to respond  as an NCA 
within  the SSM framework.  
2.14 The Banco de Portugal ’s role in macro -prudential policy  
2.14.1  The ECB  support s the effective design of macro -prudential policy frameworks within the Member 
States, in line with the guiding principles expressed in Recommendation ESRB/2011/3  of the 
European Systemic Risk Board58. The attribution to the NCFS of coordination between 
supervisory authorities and the powers of acting as a new macro -prudential authority is noted . 
However, in Member States with a relatively small financial market, such as Portugal, there are 
arguments , from the perspective of efficiency and synergies,  for concentrating supervisory and 
macro -prudential responsibilities within a single authority59. 
2.14.2  According to Recital 24 of Regulation (EU) No 1092/2010  of the European Parliament and of the 
Council60 and Recom mendation ESRB/2011/3 , the ECB and the NCBs should play a leading role 
                                                 
56   Article 12 -B of the BdP’s Organic Law, as amended by the draft law.  
57  Article 10(1)(a) of the draft NCFS’s Statutes, attached a s Annex III to the draft law.  
58   Recommendation of the European Systemic Risk Board of 22 December 2011 on the macro -prudential mandate of 
national authorities (ESRB/2011/3) ( OJ C 41, 14.2.2012, p.1 ). 
59   See paragraph 4 of Opinion CON/2005/39 and paragraph 2 of Opinion CON/2013/56.  
60  Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November on European Union 
macro -prudential oversight of the financial system and establishing a European Systemic Risk Board (OJ L 331,  
15.12.2010, p. 1). Recital 24 of the Regulation states: ‘The ECB and the national central banks should have a 
leading role in macro -prudential oversight because of their expertise and their existing responsibilities in the area of 
financial stability. Nat ional supervisors should be involved in providing their specific expertise. The participation of 
micro -prudential supervisors in the work of the ESRB is essential to ensure that the assessment of macro -prudential 
risk is based on complete and accurate info rmation about developments in the financial system. Accordingly, the 
chairpersons of the ESAs should be members with voting rights. One representative of the competent national 
supervisory authorities of each Member State should attend meetings of the Gene ral Board, without voting rights. In 
a spirit of openness, 15 independent persons should provide the ESRB with external expertise through the Advisory 
Scientific Committee’ . 
ECB -PUBLIC  
16 in macro -prudential oversight, given their expertise and existing responsibilities in the area of 
financial stability61. However, it is doubtful, or at least not clear, whether the draft  law complies 
with this principle62. Notwithstanding the fact that the draft law envisages that the BdP Governor 
will lead discussions o n macro -prudential matters during the meetings of the NCFS Management 
Board63, given that the BdP would only have two representatives on the NCFS Management 
Board64, it seems doubtful whether  the BdP would maintain a leading role in macro -prudential 
policy. Furthermore, the fact that the BdP ’s Governor would represent the NCFS with a voting 
right at th e ESRB General Board does not , of itself,  seem to envisage a leading role f or the BdP.  
2.14.3  The interaction between the BdP and the NCFS regarding systemic risk assessment and the 
implementation of macro -prudential measures also seems unclear . Under the draft law, it seems 
that the NCFS and the BdP will assess systemic risk in parallel. However, the interaction between 
the BdP and the new macro -prudential or designated authority65 is not clearly defined in the draft 
law, which raises concerns r egarding the implementation of the new macro -prudential regime and 
in particular the activation of macro -prudential instruments. The BdP’s participation in the NCFS 
should allow for effective follow -up of systemic risks identified in the course of the BdP’ s 
analytical activity. Consideration should be given to the assignment of a more prominent role  to 
BdP, not only in the provision of analytical support to the NCFS, but also in steering the way in 
which the NCFS works. Also, the draft law could be clearer as regards the allocation of tasks 
concerning the activation of such instruments (see paragraph 2.1 5). 
2.14.4  Finally, the ECB welcomes the provisions of the draft law requiring the NCFS to cooperate with, 
inter alia, the ECB, the ESRB and other national macro -prudential authorities66. As previously 
noted by the ECB67, it should be ensured that the new macro -prudential authority also cooperates 
and exchanges data and information with the ECB and the ESRB, in accordance with the ESRB 
Recommendations.  
2.15 Scope and allocation of powers between the macro -prudential authority and the BdP in its role as 
sector ial authority  
2.15.1  Clear and expeditious procedures should be established for assigning instruments to the 
macro -prudential authority , which must have  control  over appropriate instruments for achieving its 
                                                 
61   See also paragraph 4 of Opinion CON/2005/39; paragraph 2 of Opinion CON/2013/5 6; paragraph 2.1 of Opinion 
CON/2013/66; paragraph 2.1 of  Opinion CON/2013/54; paragraph 2.1 of Opinion CON/2013/45; paragraph 2.1 of 
Opinion CON/2013/30; paragraph 5.2 of Opinion CON/2014/46; paragraph 2.3 of Opinion CON/2014/21; and 
paragraph 3.1 of Opi nion 2019/10. 
62  As noted by the ESRB, a central bank’s leading role is ensured by the fact that: (i) the central bank is the macro -
prudential authority; (ii) the central bank accounts for the majority of representatives with voting power on the board 
when  decisions are taken on a majority basis; or no veto power is conferred on other board members, as is the case 
when decisions are taken by consensus; (iii) the central bank conducts macro -prudential analysis; (iv) the central 
bank prepares the main documen ts to be discussed by the board; (v) and/or the central bank is responsible for 
providing the board’s secretariat; (vi) and/or the central bank governor chairs the board and has a casting vote.  
63   Articles 30(1) and 36(5) of the Statutes of the NCFS, atta ched as Annex III to the draft law.  
64   Article 36 of the Statutes of the NCFS, attached as Annex III to the draft law.  
65  It is assumed from the text of the draft law, although this is not entirely clear, that the NCFS becomes the designated 
authority as well as the macro -prudential authority, instead of the BdP.  
66   Articles 19(2) and 22 of the Statutes of the NCFS, attached  as Annex III to the draft law.  
67   See paragraph 2.4 of Opinion CON/2013/54 and paragraph 2.6 of Opinion CON/2013/70.  
ECB -PUBLIC  
17 objectives68. It is not clear in the draft law if the NCFS has decision -making power, or a power to 
make public recommendations on existing macro -prudential instruments, as well as  the power to 
decide on new macro -prudential instruments or to make related recommendations to the 
legislature.  Also, it could be clarif ied who will be responsible (NCFS or BdP) for enforcing 
macro -prudential decisions, including the exercise of powers to apply sanctions  as well as which 
instruments are under the direct control o f the NCFS  and which fall under the control of the BdP.  
Furthermore, it is not clear what precisely is meant by measures of a horizontal nature, as there is 
no explicit criterion  establish ed by the draft law69.  
2.15.2  The draft law provides  that the NCFS is responsible for the adoption of measures and the 
monitoring of their implementation70. However,  it is not clear whether this adoption of measures 
concerns only measures with horizontal impact or also any of the othe r macro -prudential 
measures , since the NCFS is given powers to adopt the Union harmonised macro -prudential 
measures envisaged by Regulation (EU) No 575/2013 and Directive 2013/36/EU, which apply 
only to credit institutions, while under other provisions of the draft law the NCFS should only be 
informed by the supervisory authorities of their intention to adopt macro -prudential measures that 
do not have a  horizontal impact on the financial sector . Furthermore, i t is also unclear how the 
competent supervisory authority will interact with the macro -prudential /designated  authority 
regarding the activa tion of Articles 124 and 164 of Regulation (EU) No 575/2013 , which apply to 
the residential and commercial real estate exposures of banks on the basis of financial s tability 
concerns.   
2.15.3  A clear identification of macro -prudential instruments available to the NCFS  and, where 
applicable, to sectoral supervisory authorities such as the BdP would thus be welcome d 
(including Union harmonised and non -harmonised measures ), allowing for more clarity  when 
exercising macro -prudential powers.  
2.16 The Banco de Portugal ’s role relating  to resolution planning  
2.16.1  Although the draft law provides for the establishment of the Resolution Authority, which would 
take over the BdP’s  responsibilities as the designated national resolution authority (NRA), the 
BdP wou ld retain specific competences related to resolution planning  under the draft law71, while 
the Resolution Authority would be responsible for exercising resolution powers and  tools . It is 
worth  noting that, u nder Directive 2014/59/EU  of the European Parliament and of the Council72, 
NRAs are responsible for drawing up resolution plans, while NCAs , within the meaning of 
Regulation (EU) No 575/2013 , have a purely  consultative  role, unless such NCAs are also 
                                                 
68   Recommendation C(4) of Recommendation ESRB/2011/3.  
69  See, in particular, Article 6 and Article 26(1) of the Statutes of the NCFS, at tached as Annex III to the draft law.  
70   Article 19 of the Statutes of the NCFS, attached as Annex III to the draft law.  
71   Article 17 -A of the BdP’s Organic Law, as amended by the draft law; Article 2(1) and Article 8 of the Statutes of the 
Resolution A uthority, attached as Annex IV to the draft law.  
72   Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014, establishing a framework for 
the recovery and resolution of credit institutions and investment firms and amending Counci l Directive 82/891/EEC, 
and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 
2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the 
Council (OJ L 173, 12.6. 2014, p. 190 ). 
ECB -PUBLIC  
18 designated as NRAs73. It seems that the BdP’s role  as an NCA74 would , of itself,  not provide a 
sufficient legal basis for the BdP to retain resolution planning competences , in the absence of its 
designation as an NRA .  
2.16.2  In this context, i t is also noted that the corresponding  articles of the RGICSF regarding resolution 
plans75 are amended by the draft law to replace the references to the BdP with general 
references to  the ‘resolution authority ’. It could therefore be useful  to clarify the legal basis  on 
which the BdP w ould assume  ancillary  resolution -related  tasks , given that it apparently would  no 
longer be the NRA76. Identification of the resolution authority or authorities designated by Portugal 
in accordance with Article 3 of Directive 2014/59/EU  in relation to all or part of the competences 
set out therein, as the case may be , can  also be important for the NCA within the meaning of 
Regulation (EU) No 575/2013, as regards i nformation exchange and cooperation activities vis-á-
vis the relevant resolution authority or authorities,  under the applicable legal framework . 
2.16.3  Moreover, a segregati on of resolution -related tasks, in particular, segregation of resolution 
planning and th e exercise of resolution  powers and  tools , is permitted under Directive 
2014/59/EU on an exceptional basis, to the extent that it is ensured that such separation does not 
hamper the effectiveness of resolution action. Separation creates a need for close coop eration 
and adequate information sharing between the Resolution Authority  and the BdP, notably to 
ensure that timely resolution action can be taken. To this end, it would be advisable to review and 
reinforce the adequacy of the relevant cooperation provisi ons of the draft law , including the 
sharing of information between authorities . However , regardless of the adequacy of cooperation 
and information sharing mechanisms, consolidation of resolution functions can serve to enhance 
the effectiveness of the resolution process , which is already complex in its own right77. In the face 
of such a complex process, operational and practical difficulties due to eventual grey areas within 
the distribution of competences between authorities  should be avoided . Given tha t the BdP would  
be in the lead for resolution planning and the Resolution Authority would  be responsible for the 
execution of resolution tools, it would be important that there is a common understanding on the 
resolution plan78, also considering that there is a reputational risk for the BdP in the event of the 
non-successful execution  of resolution plans by the Resolution Authority . 
2.16.4  Concerning the creation of a new authority responsible for the exercise of resolution powers and 
tools , Member States should ensure that, where the central bank is not itself the resolution 
authority, the competent authority and the resolution authority engage in an adequate exchange 
of information with the central bank79. 
                                                 
73  See Article 10 of Directive 2014/59/EU.  
74   See Article 17 of the BdP’s Organic Law, as amended by the draft law.  
75   In particular, Article 116 -J of the  RGICSF , as amended by the draft law.  
76  In particular, t he relationship between t he references in the RGICSF  to ‘resolution authority’ outside Title VIII, 
Chapter III of the RGICSF and Article 2(1) of the Resolution Authority’s draft Statutes, which qualifies the latter as 
the NRA, should therefore be clarified.  
77   See International Monetary Fund (IMF), Spain: Financial Sector Assessment Program -Technical Note -Bank 
Resolution and Crisis Management Frameworks, 13 November 2017. Available on the IMF’s website at www.imf.org .  
78   See paragraph 3.2 of Opinion CON/2015/19.  
79  See paragraph 3.1 of Opinion CON/2012/99.  
ECB -PUBLIC  
19  
 
This opinion will be published on the ECB’s website.  
 
Done at Frankfurt am Main,  21 May 2019 . 
 
[signed]  
 
The President of the ECB  
Mario DRAGHI