OPINION OF THE EUROPEAN MONETARY INSTITUTE
on a consultation from the Belgian Ministry of Finance under Article 109f (6) of the Treaty
establishing the European Community (the “Treaty”) and Article 5.3 of the Statute of the
EMI as elaborated in the Council Decision of 22 November 1993 (93/717/EC) on a proposed
derogation from the law of 24 August 1939 on the National Bank of Belgium and a
modification of the law of 22 February 1998 on the Organic Status of the National Bank of
Belgium
CON/98/22
1. On 6 A pril 1998, the EMI received a request for an opinion concerning the Belgian Ministry of
Finance under Article 109f(6) of the Treaty establishing the European Community (the “Treaty”)
and Article 5.3 of the Statute of the EMI as elaborated in the Council Decision of
22 November  1993 (93/717/EC) on a proposed derogation from the law of 24 August 1939 on
the National Bank of Belgium (the “24 August 1939 Law”) and a modification of the law of
22 February 1998 on the Organic Status of the National Bank of Belgiu m (the
“22 February  1998 Law”).
2. The EMI’s competence to deal with the request for consultation is based on Article 1, second
indent, of the Council Decision of 22 November 1993 (93/717/EC), as the draft legislation
concerns the statute of the National Bank of Belgium (the “Bank”). This consultation is based on
an unofficial English translation made by the EMI.
3. The EMI takes note of Article 2 of the draft law authorising the National Bank of Belgium to
transfer to the State the amount existing on 1 April 1998 of the capital gain resulting from the
conduct of sales of gold and recorded in a special unavailable reserve account on the balance
sheet of the Bank, without prejudice to the recognised rights of Luxembourg, on condition that
these funds are used to repurchase part of the government debt denominated in foreign
currency. According to the Explanatory Memorandum, this transfer will occur in 1998.
Therefore, this measure is taken as a derogation from Article 20 bis of the 24 August 1939 Law,
as Article 30 of the 22 February 1998 Law, containing corresponding provisions to Article  20 bis,
will enter into force only as from the introduction of the single currency in Belgium. The EMI
notes, however, that Article 2 of the draft law does not state in itself that the transfer of the
capital gain above will occur in 1998. From this stand point, the EMI would like to remind that
following the transfer of the foreign reserve assets to the ECB on 4 January 1999 pursuant to
Article 30 of the ESCB/ECB Statute, Article 31.2 makes NCB’s operations with their remaining
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K:\SL-JUL  division\01_ecb legal acts\04_opinions\archives 1994-1998 (emi)\1998\con_98_22\en_con_98_22.docforeign reserve assets, inclusive of gold, above a certain threshold subject to the prior approval of
the ECB.
4. Given the provisions of Article 2 of the draft law explained above, Article 3 of the d raft law
deletes Article 15 of the 22 February 1998 Law which allows, within certain limits, the issue of
gold coins for collection or commemorative purposes with legal tender status by the Bank and
organise the transfer of the net revenue resulting from the issue of such coins to the State in
order to decrease the State debt in foreign currencies.
5. In line with Article 3 of the draft law, Article 37 of the 22 February 1998 Law, as modified by
Article 4 of the draft law, refers now to the issuance of coins for numismatic or commemorative
purposes by the State and not by the Bank any more. Assuming that these coins will have legal
tender status, the EMI reminds that the volume of such issuance of coins by the State will be
subject to the ECB’s approval pursuant to Article 105a (2) of the Treaty. The EMI also takes
note of the provisions of Article 37 stipulating an obligation to transfer to the State the capital
gain on the disposal of gold assets in relation to the issuance of such coins, up to the amount of
the unused balance of 2.75% of the weight of the gold held as part of the Bank’s assets on
1 January 1987.
6. Finally, the arrangements envisaged in the draft law are, in the EMI’s opinion, not inconsistent
with the prohibition of monetary financing as laid down in Article 104 of the Treaty.
7. The EMI agrees that this opinion may be made public by the consulting authority.
15 May 1998