EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 4 November 2009 
on the ranking of the lien of the Nationale Bank van België/Banque Nationale de Belgique  
(CON/2009/90) 
 Introduction and legal basis
 
On 21 September 2009 the European Central Bank (ECB) received a request from the Belgian Ministry of 
Finance for an opinion on a draft law amending, inter alia , the Law of 22 February 1998 establishing the 
Organic Statute of the Nationale Bank van België/Ba nque Nationale de Belgique  (NBB) (hereinafter the 
‘draft law’). By letter dated 30 October 2009, the Belg ian Deputy Prime Minister and Minister of Finance 
informed the ECB that the Belgian Government had decided to introduce before the Belgian Parliament 
an amendment  withdrawing Article 89 of the dr aft law concerning the retirement age of the NBB’s 
Governor. In the light of this withdrawal, this  opinion does not comment on the related issue.  
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and on the third, fifth a nd sixth indents of Article 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consul tation of the European Central Bank by national 
authorities regarding draft legislative provisions1, as the draft law relates to (a) national central banks; 
(b) payment and securities settlement systems; and (c) ru les applicable to financial institutions insofar as 
they materially influence the stability of financial institutions and markets. In  accordance with the first 
sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council 
has adopted this opinion. 
 1.  Purpose of the draft law 
The draft law relates to the lien granted to the NBB over all securities held by the debtor in an account 
with the NBB or in its securities clearing system as the debtor’s own assets in order to secure claims 
arising from the NBB’s credit transactions
2. The Law of 22 February 1998 currently provides that this 
lien ranks equally with the rights of the pledgee. A ccording to the draft law, it would prevail over the 
rights granted to individual account holders by virt ue of the Belgian laws governing the immobilisation 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  See Article 7 of the Law of 22 February 1998, which provide s that the NBB is granted a lie n covering claims arising from 
credit transactions over all securities which the debtor holds in an account with the NBB or in its securities clearing 
system as the debtor’s own assets. See ECB Opinion CON/2006/40; all ECB opi nions are published on the ECB website 
at www.ecb.europa.eu.  
2 and dematerialisation of securities in order to prot ect them against the insolvency of the financial 
intermediaries through which they hold the accounts3 4. According to the explanatory memorandum, this 
amendment would not introduce a new substantive rule : the NBB’s lien, similar to other cases of liens, 
relies on the possession by the NBB of the assets subject to the lien, which would derive from the crediting of the securities to an account held with th e NBB. On the ground of such possession, the NBB’s 
lien would hence prevail over the concurrent right s of the abovementioned account holders which are 
specifically enumerated in the draft law. In this vein, the priority of the NBB’s lien over the other 
creditors’ rights would be a mere confirmation in th e draft law, for reasons of legal certainty, of the 
application of general principles of security law
5.   
 2.  Ranking of the NBB’s lien  
2.1. Under Article 18 of the Statute of the Europ ean System of Central Banks and of the European 
Central Bank (hereinafter the ‘Statute of the ESCB’), credit operations conducted by the national 
central banks (NCBs) must be based on adequate collateral. Moreover, pursu ant to Standard 1 of 
the ‘Standards for the Use of EU Securities Settlement Systems in ESCB Credit Operations’ 
(hereinafter the ‘User Standards’) the NCBs’ rights in  respect of securities he ld in their accounts in 
securities settlement systems must be adequately protected
6. This principle has been further 
elaborated in the Recommendations for Securities Settlement Systems issued in November 2001 by 
the Committee on Payment and Settlement Systems (CPSS) and the International Organization of 
Securities Commissions (IOSCO). Section 3.5 of the CPSS-IOSCO Recommendations states that ‘the claim of the SSS ... against collateral posted by  a participant with the SSS should in all events 
have priority over the claims of such participan t’s non-system creditors’. Otherwise, as the ESCB-
Committee of European Securities Regulator s Recommendation 1 on the legal framework 
provides
7: ‘If the framework is inadequate or its appli cation uncertain, it can give rise to credit or 
liquidity risks for system participants and their cu stomers or to systemic risks for financial markets 
as a whole.’  
2.2. In view of the above, the ECB welcomes the dr aft law, insofar as Article 7(2) of the Law of 
22 February 1998 would provide that the preferential claim secured by the NBB’s lien has priority over the counterparty’s creditors’ claims based on Arti cle 8(3) of the Law of 2 January 1991 on the 
market in public debt securities and monetary polic y instruments, Articles 12(4) and 13(4) of Royal 
Decree No 62 on the deposit of fungible financial instruments and the settlement of operations 
concerning those instruments, coordinated by  the Royal Decree of 27 January 2004, and 
                                                 
3  See Article 8(3) of the Law of 2 January 1991 on the market  in public debt securities and monetary policy instruments, 
Articles 12(4) and 13(4) of Royal Decree No 62 on the deposit of fungible financial instrume nts and the settlement of 
operations concerning those inst ruments, coordinated by the Royal Decree of 27 January 2004, and Article 471(4) of the 
Companies Code. 
4  See Article 88 of the draft law. 
5  See the explanatory memora ndum, commentary on Article 88. 
6  See in this sense paragraph 8 of ECB Opinion CON/2005/12 and section 1 of ECB Opinion CON/2006/40.  
7  See especially the comments made in  section C.1 of this Recommendation. 
3 Article 471(4) of the Companies Code. This  amendment would, moreover, improve the 
transparency of risks and the risk manageme nt procedures of the securities clearing system 
operated by the NBB (see Standards 5 and 6 of the U ser Standards). Finally, at a time of financial 
turmoil, it is of the utmost importance that the NCBs of the Eurosystem can discharge their duties 
in an environment which strives for legal s oundness and certainty in line with international 
standards.  
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 4 November 2009. 
  
[signed] 
The President of the ECB 
Jean-Claude TRICHET