EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 28 April  2022  
on prohibiting the financing of companies producing  anti-personnel mines,  
cluster munitions and submunitions  
(CON/2022/ 17) 
 
Introduction and legal basis  
On 9 December 2021 the Italian Parliament adopted the Law on measures prohibiting  the financing of 
companies producing anti-personnel mines and cluster munitions and submunitions (hereinafter the 
‘Law’)1.  
The European Central Bank ( ECB)  would like to draw attention to the national authorities’ obligation to 
consult the ECB on draft legislative provisions  that fall with in its field of competence. The ECB has decided 
to deliver an own initiative opinion on the Law , since it has not been formally consulted2. 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 Article 2(1) of Council Decision 98/415/EC3, as the Law 
relates to the Banca d’Italia. 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 L aw 
1.1 The Law implements the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, 
Production and Transfer of Anti -Personnel Mines and on their D estruction and the 2008 Oslo 
Convention on Cluster Munitions  (hereinafter the ‘Ottawa and Oslo Conventions’) . It introduces a 
total ban on the financing4 of any company  involved  in, inter alia, the production, use, sale, 
distribution, import, export or transfer of anti -personnel mines, cluster munitions and submunitions, 
except as expressly permitted by the Ottawa and Oslo Conventions . This ban applies to all licensed  
intermediaries, which  include Italian, Union  and non- Union  credit institutions, as well as a range of 
other financial institutions, including banking foundations, investment firms  and companies, asset 
management companies, financial intermediaries, stockbrokers and pension funds.  
 
1  Legge  9 dicembre 2021, n. 220 , Misure per contrastare il finanziamento delle imprese produttrici di mine antipersona, 
di munizioni e submunizioni a grappolo,  pubblicata in Gazzetta Ufficiale n. 303 del 22- 12-2021.  
2  The ECB has issued several  own-initiative opinions, see e.g. CON/2022/4, CON/2022/9, CON/2019/41, CON/2019/44, 
CON/2011/76, CON/2011/106.  All ECB opinions are available on EUR -Lex. 
3  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by nat ional authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
4  Article 2(1),  point  b), of the Law define s ‘financing’  as ‘any form of financial support provided through subsidiaries with 
their principal place of business in Italy or abroad, or otherwise, including for example, and without limitation, the 
granting of credit in any form, provision of financial guarantees, taking of participating interests, acquisition of, or 
subscription to, financial instruments issued by the compan ies referred to in this article ’. 
ECB -PUBLIC  
2 1.2 The Law confers certain tasks on supervisory bodies5, including the Banca d’Italia, the Istituto per la 
vigilanza sulle assicurazioni  (Institute for the Supervision of Insurance)  and the Commissione di 
vigilanza sui fondi pensione  (Pension Funds Supervisory Commi ttee). In particular, wi thin six months 
of the date of entry into force of the Law, the supervisory bodies are required to (1) issue, in 
agreement with each other, specific instructions for the exercise of enhanced controls on the work of 
licensed  intermediaries in order to counter the financing of, inter alia, the production, use, sale, 
distribution, import, export or transfer of anti -personnel mines, cluster munitions and submunitions , 
and (2) draw up and publish a list of companies involved in those activities . In addition, financial flow 
controls performed by  the Unità di informazione finanziaria per l’Italia (UIF,  Financial Intelligence Unit  
for Italy ), which was  set up  at the Banca d’Italia, are extended to such companies. Furthermore, the 
Law requires the Banca d’Italia to supervise , in the context of its inspections and controls of the 
supervised entities,  compliance with the financing ban. The Law does not contain any provision on  
the remuneration of the Banca d’Italia for  the performance of these tasks.  
 
2. Conferral  of new task s on the Banca d’Italia  
2.1  Tasks of the Banca d’Italia  in relation to the Law  
2.1.1  Besides extending the UIF ’s control of financial flows6 to companies involved in the production, use, 
sale, distribution, import, export or transfer of anti -personnel mines, cluster munitions and 
submunitions , the Law tasks the Banca d’Italia  with the supervision of the compliance of supervised 
entities with the prohibition on the financing of such companies7. In addition, the Law requires the 
Banca d’Italia to draw up and publish a  list of th ese companies8.  
2.1.2  The Law does  not extend the curr ent supervisory mandate of the Banca d’Italia. The Banca d’Italia 
is responsible for supervising credit institutions. The ECB understands that the  Banca d’Italia is 
responsible for checking whether supervised entities have internal procedures in place to ensure 
compliance with a broad range of  rules on their lending activities9. It follows that the Law does not 
confer a genuinely new supervisory task on the Banca d’Italia, but rather specif ies certain new 
powers that the Banca d’Italia must  exercise when carrying out the same category of tasks already 
discharged in accordance with the Italian Consolidated Banking Law. Consequently, it is not 
necessary to assess whether the conferral of a new task on a national central bank (NCB) complies 
with the prohibition of monetary financing in this case.10 In contrast, the task of drawing up and 
publishing a list of companies is a new task of the Banca d’Italia.  
2.2 New task of the Banca d’Italia under the Law  
2.2.1  This section covers the task, as conferred on the Banca d’Italia by the Law,  of draw ing up and 
 
5  The term ‘supervisory bodies’ is defined in Article 2, point f), of the Law.  
6  The ECB notes that this does not constitute a substantial amendment of the existing monitoring tasks  of the UIF  as a 
body set up within the Banca d’Italia . Consequently, it is not necessary to assess compliance with the prohibition on 
monetary financing with regard to the UI F’s task in this case.  
7  Articles 1(1)  and 3(1) and Article 5 of the Law.  
8  Article 3(1) of the Law.  
9 Article 5(1) of the Italian Consolidated Banking Law  (Decreto Legislativo 1 settembre 1993, n. 385 Testo unico delle 
leggi in materia bancaria e creditizia, pubblicato in Gazzetta Ufficiale n. 230 del 30- 09-1993 ). 
10  See paragraph 5.2.1 of Opinion CON/2021/9.  
ECB -PUBLIC  
3 publish ing a list of companies involved in the production, use, sale, distribution, import, export or 
transfer of anti -personnel mines, cluster munitions and submunitions . 
2.2.2.  The ECB underlines that a conferral of new tasks on an NCB in the European System of Central 
Banks (ESCB) must be assessed against the prohibition on monetary financing laid down in 
Article  123(1)  of the Treaty. For the purposes of that prohibition, Article 1(1)(b)(ii) of Council 
Regulation (EC) No 3603/9311 defines ‘other type of credit facility’, inter alia, as ‘ any financing of the 
public sector’s obligations vis -à-vis third par ties’. 
2.2.3  Ensuring that Member States implement a sound budgetary policy is one of the key objectives of the 
monetary financing prohibition, which may not be circumvented12. Therefore, the task of financing 
measures, which are normally the responsibility of the Member States, and which are financed from 
their budgetary sources rather than by the NCBs, must not be entrusted to NCBs. To decide what 
constitutes financing of the  public sector’s obligations vis -à-vis third parties, which can be translated 
as the provision of central bank financing outside the scope of central bank tasks, it is necessary to 
carry out, on a case- by-case basis, an assessment of whether the task to be undertaken by an NCB 
is a central bank task or a government task, i.e. a task within the responsibilities of the Member States.  
2.2.4  As part of its discretion in the exercise of its duty, on the basis of Article 271(d) of the Treaty and 
Article  35.6 of the Statute of the European System of Central Banks and of the European Central 
Bank (hereinafter the ‘Statute of the ESCB’), to ensure that NCBs honour the obligations laid down 
by the Treaty, the Governing Council has endorsed criteria for determining what may be seen as 
falling within the scope of a public sector obligation within the meaning of Article 1(1)(b)(ii) of 
Regulation (EC) No 3603/93 or, in other words, what constitutes a government task as follows:  
First, central bank tasks are in particular those tasks that are related to the tasks that have been 
conferred on the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks are 
mainly defined in Article 127(2), (5) and (6) and Article 128(1) of the Treaty, as well as Article 22 and 
Article 25.1 of the Statute of the ESCB.  
Second, as Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘other functions’, new 
tasks, i.e. tasks that are not related to tasks that have been conferred on the ECB and the NCBs, are 
not precluded pe r se. However, new tasks that are undertaken by an NCB and which are atypical of 
NCB tasks or which are clearly discharged on behalf of, and in the exclusive interest of the 
government or of other public sector entities should be considered government task s. 
Third, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly discharged on behalf of and in the exclusive interest of the government or other public sector entities 
is the impact of the task on the institutional, financial and personal independence of that NCB.  
In particular, the following aspects should be taken into account:  
(a) whether the performance of the new task creates conflicts of interest with existing central bank 
tasks, which are not adequat ely addressed, and does not necessarily complement those 
 
11  Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the prohibitions 
referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1).  
12  Article 123 of the Treaty also serves the objective of maintaining price stability and reinforces central bank 
independence.  
ECB -PUBLIC  
4 existing central bank tasks. If a conflict of interest arises between existing and new tasks, 
sufficient safeguards to mitigate that conflict should be in place. The complementarity between 
a new tas k and existing central bank tasks should not be interpreted broadly, so as to lead to 
the creation of an indefinite chain of ancillary tasks. Such complementarity should be examined in relation to the financing of those tasks;  
(b) whether without new financial  resources the performance of the new task is disproportionate 
to the NCB’s financial or organisational capacity, and may have a negative impact on the capacity to properly perform the existing central bank tasks;  
(c) whether the performance of the new task fi ts into the institutional set -up of the NCB in the light 
of central bank independence and accountability considerations;  
(d) whether the performance of the new task harbours substantial financial risks;  
(e) whether the performance of the new task exposes the members of the NCB decision- making 
bodies to political risks that are disproportionate and may also have an impact on their personal independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the 
Statute.  
2.2.5  Based on the c riteria set out in para graph 2.2.4  above, the following paragraphs assess whether the 
conferral on the Banca d’Italia  of the new task  of draw ing up and publish ing a list of companies is in 
line with the prohibition on  monetary financing.  
2.3 Tasks related to the tasks conferred on the ECB and the NCBs by the Treaty and the Statute of the ESCB  
The new task of draw ing up and publishing a list of companies is not related to the tasks conferred 
on the ECB and the NCBs by the Treaty and the Statute of the ESCB.  
2.4 Tasks which are atypical of central bank tasks   
The new task of drawing up and publishing a list of companies is atypical of central bank tasks. T he 
ECB notes that the list drawn up by the Banca d’Italia will include companies that are not entities  that 
the Banca d’Italia supervises  as part of its typical central bank tasks, nor do the listing criteria in the 
Law refer to any financial attributes of  the relevant companies. The drawing up and publishing of 
such a list requires expertise that does not typically exist in an NCB ; it appears to require insights on 
a business sector  that is not the banking or financial sector . In addition, the ECB highlights that no 
other NCB in the ESCB has been tasked with similar tasks as result of the implementation of the 
Ottawa  and Oslo Conventions in its  respective jurisdiction. Against this backdrop, this task appears 
atypical of NCB tasks.   
2.5 Tasks clearly di scharged on behalf of and in the exclusive interest of the government  
The new task of draw ing up and publish ing a list of companies appears to be discharged on behalf 
of and in the interest of the Italian government, as the  purpose of the list  is strictly related to  defence 
and foreign policy reasons. In this regard, it is worth noting that the Italian legislator has already 
entrusted the Ministry of Defence, the Ministry of Foreign Affairs and the Ministry of Economic 
Development with specific tasks in relation to the ratification and implementation of the Ottawa and 
ECB -PUBLIC  
5 Oslo Conventions13.  
2.6 Extent to which the performance of the new task creates conflicts of interest with existing centra l 
bank tasks  
The performance of the task of draw ing up and publish ing a list of companies is unlikely to give rise 
to any conflicts of interest in connection with the Banca d’Italia’s existing central bank tasks.  
2.7 Extent to which the performance of the new  task is disproportionate to the financial or organisational 
capacity of the Banca d’Italia 
The Banca d’Italia should  have sufficient financial and human resources at its disposal for the 
performance of its new task, so that its capacity to perform its ESCB -related tasks  is not affected . 
The Law does not cover the funding of the Banca d’Italia’s new task of draw ing up of a list of 
companies . The ECB notes that the list drawn up by the Banca d’Italia will include companies that 
are not supervised entities  and thus appears to necessitate expertise beyond that which is currently 
available at the Banca d’Italia . Against this backdrop, t he ECB invites the Italian leg islator to consider 
the impact of the Law on the Banca d’Italia ’s resources and to consider whether current financing 
arrangements would sufficiently cover the costs associated with the  new task s under the Law . 
2.8 Extent to which the performance of the new task fits into the institutional set -up of the Banca d’Italia, 
in the light of central bank independence and accountability considerations  
The performance of the task of draw ing up and publish ing a list of companies appear s to conflict with 
the Banca d’Italia ’s institutional set -up in terms of the scope of its supervisory mandate.   
2.9  Extent to which the performance of tasks harbours substantial financial risks  
The Law does not contain any provision on the Banca d’Italia’s liability for damage in the exercise of 
its new task. The Law entrusts the Banca d’Italia with the new task  of draw ing up a list of companies 
without equipping it with the powers and legal instruments  necessary to carry it  out. The ECB notes 
that: (1) the performance of the task requires  technical knowledge and skills other than those typically 
required for the performance of central banking tasks by the Banca d’Italia ; (2) the list will include 
companies that are not supervised entities ; (3) inclusion in the list of companies with registered 
offices in Italy would require ascertaining that they carry out activities forbidden and criminally 
sanctioned under Italian law  – however, the L aw does not specify whether  the Ban ca d’Italia decides 
on inclusion in the list of companies based on a prior and final judicial decision , or based on an 
independent  assessment  by the Banca d’Italia  itself, which might  differ from  any judicial finding; and 
(4) the inclusion in the list of companies with registered offices abroad poses additional challenges 
related to the identification of the sources  of information,  facts and circumstances that occur in other 
legal systems.  
Furthermore, t he Law does not address the Banca d’It alia’s potential liability in the event of legal 
 
13  Legge 29 ottobre 1997, n. 374, Norme per la messa al bando delle mine antipersona, pubblicata nella Gazzetta 
Ufficiale  n. 256 del 3 novem bre 1997; Legge 26 marzo 1999, n. 106, Ratifica ed esecuzione della Convenzione sul 
divieto d'impiego, di stoccaggio, di produzione e di trasferimento delle mine antipersona e sulla loro distruzione, firmata 
ad Ottawa il 3 dicembre 1997. Modifiche alla leg ge 29 ottobre 1997, n. 374, riguardante la disciplina della messa al 
bando delle mine antipersona, pubblicata nella Gazzetta Ufficiale n. 94 del 23 aprile 1999; Legge 14 giugno  2011 n. 
95, Ratifica ed esecuzione della Convenzione di Oslo sulla messa al bando delle munizioni a grappolo, fatta a Dublino 
il 30 maggio 2008, nonche' norme di adeguamento dell'ordinamento interno, pubblicata nella Gazzetta Ufficiale n. 153 
del 4 luglio 2011.  
ECB -PUBLIC  
6 action, application or other legal proceeding for damages in relation to the exercise of (or failure to 
exercise) its powers regarding the drawing up of a  list of companies  under the Law. The risk of legal 
action could materiali se, for instance,  if a company challenges its inclusion in the list or  if a non-
governmental organi sation brings  a claim because of the non- inclusion of one or more companies in 
such a list. In the absence of any provision in the Law excluding the Banca d’Italia’s liability when 
performing the tasks under the L aw, the Banca d’Italia would ultimately be liable for damages in 
accordance with Italian  state liability rules. Thus, the new task  of drawing up a  list of companies 
conferred on the Banca d’Italia would entail substantial financial risks for the Banca d’Italia.  
2.10 Extent to which the performance of the new task exposes members of the decision- making bodies 
of the Banca d’Italia to disproportionate political risks and impacts on their personal independence  
The ECB understands that it is the Banca d’Italia’s decision- making bodies that are tasked by the 
Law with the  draw ing up and publish ing of a list of companies . If this is the case, and if the content 
of the list is perceived to be  politically sensitive, it may  expose the members of the Banca d’Italia ’s 
decision -making bodies to a potential  and disproportionate political risk. 
2.11 Conclusions  on monetary financing considerations  
The performance of the task of  draw ing up and publishing  the list of companies is essentially a 
government task. It is discharged on behalf of and in the interest of the Italian  government, as its 
purpose, as noted in paragraph 2.5 above,  strictly relate s to defence and foreign policy reasons. It 
cannot be regarded as a typical central bank task. Consequently, to ensure compliance with the 
monetary financing prohibition, the Banca d’Italia should be fully and adequately  remunerated when 
carrying out the  task of drawing up and publishing the list under the L aw14. In addition, in view of the 
political sensitivity associated with the performance of such a task and the Banca d’Italia’s lack of 
expertise in this area, the ECB strongly recommends that further consideration should be given to 
the conferral on the Banca d’Italia of the task of draw ing up a list of companies involved in the 
production, use, sale, distribution, import, export or transfer of anti -personnel mines, cluster 
munitions and submunitions under the Law.  
 
This opinion will be published on EUR -Lex. 
 
 
Done at Frankfurt am Main, 28 April 2022.  
 
[signed]  
 
The President of the ECB  
Christine  LAGARDE  
 
14  See paragraph 2 of Opinion CON/2011/30;  paragraph 2 of Opinion CON/2011/98; paragraph 3.2 of Opinion 
CON/2015/36 ; paragraphs 2.2, 3.2 and 3.8 of Opinion CON/2016/35 ; paragraph 4. 2 of Opinion CON/2017/20;  
paragraph 2.3 of Opinion CON/2018/4 ; paragr aph 2.1 of Opinion CON/2018/57;  paragraph 2.10 of Opinion 
CON/2022/2; paragraph 2.10 of Opinion CON/2022/7; and paragraph 2.2.5 of the ECB’s Convergence Report, 
June 2020 .