EN  ECB -PUBLIC  
 
 OPINION OF THE EUROPEAN CENTRAL BANK  
of 21 July 2020  
on the amendment of the appointment criteria of Banco de Portugal's Governor  and other 
members of the Management Board  
(CON/20 20/19) 
 
Introduction and legal basis  
On 18 June 2020 , the European Central Bank (ECB) received a request from the Portuguese Assembly 
of the Republic  for an opinion on a draft law  amending the criteria for the appointment of the Governor 
and other members of the Management Board of Banco de Portugal (‘ BdP’ ) (hereinafter 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 and the third indent of Arti cle 2(1) of Council Decision 98/415/EC1, as 
the draft law relates  to the BdP . 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 According to the explanatory memorandum accompanying the draft law, t he two main objectives of 
the draft law are to reinforce the powers of the Assembly of the Republic and prevent conflict s of 
interest by amending the criteria for appoint ing the Governor and other members of the BdP’s 
Management Board. This will guarantee an adequate level of independence of the BdP, which in 
turn will  enable it to resist pressures both from supervised entities and from the Government , 
according to the explanatory memorandum . In particular, the draft law seeks to amend Article 27 of 
the BdP’s Organic Law on the appointment criteria of the Governor and other members of the 
BdP’s Management Board.  
1.2 Currently , the Governor is appointed by the Ministerial Council o n a proposal from the Minister for 
Finance, after consulting the competent commission of the Parliament  (hereinafter the 
‘Parliamentary Commission’) . The other members of the BdP’s Management Board are appointed 
by the Ministerial Council on a proposal from the Governor, after consulting the Parliamentary 
Commission . In making its decision on an appointment, the Government is not bound by the report 
produced by the P arliamentary Commission2.  
1.3 The draft law introduces  new incompatibility rules for the appointment of the BdP’s Governor and 
the other members of the BdP’s Management Board3. According to the draft law, the following 
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
2  Article 27(1) of the BdP’s Organic Law . 
3  Article 27(3) of the BdP’s Organic Law, as amended by the draft law . 
ECB -PUBLIC  
2 persons may not be appointed as Governor or  as members  of the BdP’s Management Board: 
(a) office -holders in Órgãos de Soberania  (sovereign bodies )4, as well as in autonomous regional  
governments and local governments ; (b) persons who, in the five  years preceding appointment, 
have held the position of Prime Minister  or have held a position as a member of the Government  
that is  responsible for the area of finance or  have held the position of  Secretary of State in areas 
related to finance; ( c) persons who, in the five years preceding appointment, have been members 
of corporate bodies, or who have p erformed any activities or provided services, remunerated or 
not, in entities subject to the supervision of the BdP or in whose supervision the BdP participates 
within the SSM, as well as in groups of companies controlled by such entities; ( d) persons who,  in 
the five years preceding appointment, have been members of the corporate bodies, or who have 
performed any activities or provided services, whether paid or not, in audit or consultancy 
companies that provide or have provided support to the BdP in the r elevant period of five years or 
at the time of appointment; and (e) persons who, at the time of appointment, occupy or exercise 
other positions or functions that may affect their independence or conflict with the interests of the 
BdP.  
1.4 Under the draft law, the Governor and the other  members  of the BdP’s Management Board must 
be appointed from among persons of recognised standing , aptitude, professional experience, 
management capability, knowledge and relevant and appropriate technical competence for the 
exercise of their respective functions5. The criterion ‘aptitude ’ is introduced by the draft law.  
1.5 The intervention of  the Parliament ary Commission is given a binding nature. Under  the draft law , 
prior to an appointment of an individual to the position of G overnor or to the  BdP’s Management 
Board, the Parliamentary Commission must provide a positive opinion as to t he suitability of the 
person in question for that position6. In addition , with the aim of enhancing transparency, the 
conclusions of that opinion  will be published in the Official Journal along with the resolution of the 
Ministerial Council designating the members of the BdP’s Management Board to be appointed7. 
The Assembly of the Republic can request  the Portuguese Minister of Finance to attend a hearing  
concerning the suitability of the persons intended for  appoint ment  to the BdP’s Management Board,  
before the finalisation of the Parliamentary Commission opinion8. Under the draft law, the 
Parliamentary Commission opinion has to be approved by a majority of two thirds  of the members 
of Parliament9, in order to reach a broad political consensus concerning the appointment of the 
BdP’s Governor and of the other members of the BdP’s Management Board.  
1.6 Finally, the draft law changes the minimum threshold for the representation of each gender in the 
BdP’s Management Board from 33% to 40%10, in line with the Recommendation Rec  (2003) 3 of 
the Committee of Ministers of the Council of Europe and the explanatory memorandum  thereto11. 
                                                 
4  Sovereign bodies ( Órgãos de Soberania) comprise the President of the Republic, the Assembly of the Republic, the 
Central Government and the Courts, according to Article 110(1) of the Constitution of the Portuguese Republic.  
5  Article 27(1) of the BdP’s Organic Law, as amended by the draft law . 
6  Article 27(2) of the BdP’s Organic Law, as amended by the draft law . 
7  Article 27(6) of the BdP’s  Organic Law, as amended by the draft law.  
8  Article 27(5) of the BdP’s Organic Law, as amended by the draft law.  
9  Article 27(4) of the BdP’s Organic Law, as amended by the draft law .  
10  Article 27(7) of the BdP’s Organic Law, as amended by the draft l aw. 
ECB -PUBLIC  
3  
2. Observations  
2.1 The ECB notes that the draft law would not only strengthen the involvement of the Portuguese 
Parliament in the new appointment procedure for the Governor and other members of the BdP’s 
Management Board , but would also introduce a new set of incompatibility rules designed to prevent 
conflicts of interests in the exercise of the functions of the Governor and the other members of the 
BdP’s Management Board. In this regard, the ECB recalls that Member States  are free to set the 
conditions required for the appointment of the members of the decision- making bodies of their 
NCBs12, provided that they do not conflict with the features of central bank independence flowing 
from the Treaties .  
2.2 The ECB considers that  the new appointment procedure for the Governor and other members of 
the BdP’s Management Board does not conflict with  the requirement of central bank independence  
as laid down in Article 130 of the Treaty  and Article 7 of the Statut e of the European System  of 
Central Banks and of the European Central Bank . In this context , the ECB considers  that the fifth 
criterion , as set out in point  (e) of paragraph 1.3 above, preventing the appointment as Governor or 
members of the BdP’s Management Board of  persons who, at the time of appointment, occupy or 
exercise other positions or functions that may affect their independence or conflict with the interests 
of the BdP, is rather vague and would benefit from further clarification .  
2.3 Similarly , the ECB notes t hat the criterion of ‘aptitude’, introduced by the draft law amongst the 
criteria to be taken into account for the appointment of the the BdP’s Governor and of the other 
members of the BdP’s  Management Board, is also rather vague and therefore might be difficult to 
interpret and use in practice13. 
2.4 The ECB notes that, should the provisions of the draft law become subject to further amendments 
in the course of the parliamentary process , and should these amendments substantially alter the 
draft law compared to the version on which the ECB was consulted, then the ECB would need to 
be re- consulted on these amendments14.  
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main,  21 July 2020.  
 
[signed]  
 
The President of the ECB  
Christine  LAGARDE  
                                                                                                                                                             
11  Available on the Council of Europe’s website at www.coe.int . 
12  See Opinion CON/2009/13, paragraph 3.4; Opinion CON/2015/28, paragraph 2. All ECB opinions are published on 
the EUR -Lex website at https://eur -lex.europa.eu/browse/institutions/bank.html . 
13  See Opinion CON/2019/19, paragraph 2.3.  
14  See, for example,  Opinion CON2006/32, paragraph 4.1; Opinion CON/2015/28, paragraph 3.4.