EN ECB-PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 24 March 2015  
on the credit mediator legal framework  
(CON/2015/12) 
 
Introduction and legal basis 
On 14 January 2015 the European Central Bank (ECB) received a request from the Portuguese Ministry 
of Finance for an opinion on a draft decree-law (hereinafter the ‘draft law’) amending Decree-Law 
No 144/2009 of 17 June 2009 establishing the Portuguese credit mediator legal framework. 
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 and sixth indents of Article 2(1) of Council Decision 
98/415/EC1, as the draft law relates to the Banco de Portugal (BdP) and to rules 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 1.1. The draft law introduces changes to the credit mediator legal framework, which was approved by 
Decree-Law No 144/2009 of 17 June 2009
2. The main purpose of the credit mediator is to defend 
and promote the rights and interests of any natural or legal persons that: (a) have applied for a loan 
(including renewals of credit) and the credit institution refused to grant it; or (b) have received one or more loans from a credit institution and wish to restructure or consolidate, after the credit 
institution has denied such restructuring or consolidation. To that end, the mediation between 
customers and credit institutions, whenever the credit  mediator is requested, aims at facilitating the 
debtor's relationship with the credit institution. 
1.2. According to the draft law, despite the success of the introduction of the credit mediator, its 
services have been used almost exclusively by individuals and only by a very limited number of 
companies. The draft law intends, in view of the current focus of the credit mediator on facilitating 
the relationship of the debtor with the financial institutions, to raise awareness of the role the credit 
mediator could also play in streamlining the processes of restructuring corporate financial debt, 
both in terms of response times and, where app licable, of the level of coordination between the 
entities involved.   
                                                 
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  Diário da República No 115 series 1 of 17 June 2009.  
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2 1.3. Therefore, the purpose of the draft law is to adopt measures that promote the use of the credit 
mediator’s services by commercial companies, in particular in connection with financial debt restructuring. For this purpose, the draft law amends the credit mediator regime by expressly 
conferring on it the following functions: (a) to provide overall assistance with credit and financial 
restructuring activity, and (b) to coordinate mediation activity between bank customers and credit 
institutions for the purpose of helping to streamline fi nancial debt restructuring. In addition, the draft 
law introduces procedural rules for when the mediation relates to debt restructuring. 
1.4. Another purpose of the draft law is to promote better coordination between the credit mediator and 
the Portuguese Ministry of Economy. In addition, th e annual report from the credit mediator will be 
not only sent for approval to the member of Government responsible for finance but also to the 
member of Government responsible for the econom y. There are also specific content requirements 
for this annual report regarding corporate debt restructuring. 
1.5. Under the current legal framework the credit me diator coordinates a council that assists in the 
performance of the mediator’s duties. Under the draft law the credit mediator and the council will receive additional support from three consultative members with unpaid consultative functions who 
will be appointed by the member of Government responsible for the economy. They will assume particular responsibility for the overall assessmen t of cases relating to access to credit and 
corporate debt restructuring, where mediation has been requested.  
1.6. As per the legal framework of the credit mediator, BdP will remain responsible for the technical, 
administrative and financial support of the credit mediator’s duties.  
 2. General observations  
2.1. The ECB welcomes the draft law as it establishes an additional mechanism to help relations 
between bank customers and credit institutions by means of fostering the use of the services of the 
credit mediator. Generally, the ECB recognises t he purpose of supporting the rights of any natural 
or legal person in a credit relationship (or that wishes to enter into such relationship) with a credit institution, improving access to credit by individuals and companies and improving communication 
between these parties. Mediation provides an alternative form of solving or avoiding disputes and litigation if both parties can reach an understanding. 
2.2. Specifically, the ECB acknowledges the purpose of developing policies that better support and 
strengthen the economy by helping to restructure debt in the financial sector, in particular for bank 
customers that are commercial companies and that can benefit from the intervention of a credit 
mediator. This assists companies in dealing with financial difficulties and possibly avoiding bankruptcy by restructuring financial debt. 
 
3. Specific observations  
3.1. Scope of the intervention by the credit mediator  
3.1.1. While reiterating its support for the draft law,  the ECB notes that the scope of the intervention by 
the credit mediator is already very wide. It encompasses all types of banking customers, without 
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3 any limitation related to the amount of credit invo lved or, specifically, to the nature of the banking 
customer, be they natural or legal persons, small or medium-sized enterprises or large companies. 
3.1.2. Since the purpose of the draft law is to explicitly list commercial companies as key users of credit 
mediator services, in particular in connection with financial debt restructuring, it is possible that a positive reaction from the market could result in significant additional and unexpected demand for 
such services. In this case, it is possible that the quality and promptness of the service might suffer. 
Moreover, the credit mediator will potentially be requested to assess debt restructuring operations, 
including complex cases in a multi-creditor contex t, which may affect the financial position as well 
as, potentially, the reputation of the banks concerned.  
3.1.3. Therefore the ECB encourages the Portuguese authorities to be aware of such potential impacts 
and to adopt measures to ensure the quality of the service is maintained, while at the same time trying to avoid inappropriate recourse to the credit mediator. 
3.2. Resources and funding of the credit mediator  
3.2.1. While the credit mediator will receive additional consultative resources under the draft law, in a 
potential scenario of intense use of the mediation mechanism by commercial companies, the credit 
mediator may be required to commit considerable own resources, including technical, financial and human, to the task of mediation in the restructuring of corporate financial debt in the private sector. 
As already indicated, this task will be in addition to all other tasks already referred to in the credit 
mediator legal framework. Moreover, the draft law increases the depth of reporting by the credit 
mediator to the government member responsible for finance, and extends the scope of the 
reporting to include the member responsible for the economy. This increase will also require the credit mediator to commit additional resources. Therefore the ECB encourages the Portuguese 
authorities to be aware of the resources implications of the draft law.  
3.2.2. Under the current legal framework,which is not modified in this respect by the draft law, these 
resources will come from BdP. Although the cred it mediator is independent from BdP, the bank 
pays for the services and provides the technical, administrative and financial support necessary for the credit mediator and the council to carry out their duties
3.  
3.2.3. BdP’s financing and support of the credit mediator, which is neither based on the Treaty or the 
Statute of the European System of Central Ba nks and of the European Central Bank, nor of a 
supervisory nature, gives rise to the following issues.  
(a) BdP’s resources would be used simultaneously  for the mediation of credit relations between 
customers and credit institutions as well as for the supervision of those institutions, a task 
which falls upon BdP as the national supervisory authority. This contradiction will be amplified under the draft law as the credit mediator encompasses in its scope of intervention 
the coordination of the financial debt restructuring affecting credit institutions under the supervision of BdP. Subsequently, a solution that would ensure that the performance of the 
credit mediator’s tasks was not dependent on BdP’s resources would not only be beneficial 
                                                 
3  See Article 13 of Decree-Law No 144/2009 of 17 June 20 09. This Article is not modified by the draft law.  
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4 from the point of view of BdP’s independence but also from the point of view of the credit 
mediator’s independence. 
(b) The ECB underlines the importance of safeguarding compliance with the prohibition on 
monetary financing laid down in Article 123(1) of the Treaty. As already indicated, the tasks 
entrusted to the credit mediator under the original and the draft law are governmental and 
independent from BdP, yet BdP must assume their financing and provide all necessary 
support in order for these tasks to be carried out. Therefore, in this specific context, full 
compliance with the monetary financing prohibition would only be achieved if the credit 
mediator, its tasks and those of the council are fully financed in advance and not dependant on BdP’s resources
4. 
(c) In particular, in respect of the facilitating of debt restructuring which is pursued by the draft 
law, the ECB would like to reiterate that ‘Member States may not put their NCBs in a position 
where they have insufficient financial resources to carry out their ESCB or Eurosystem-
related tasks’5. Therefore, the Portuguese authorities will need to ensure that the 
performance of these additional tasks will not affect BdP’s operational capacity to carry out 
tasks as part of the ESCB. Previous ECB opinions6 have pointed out that the allocation to 
the NCBs of specific non-ESCB related tasks need to be accompanied by the allocation of 
adequate human and financial resources allowing such tasks to be carried out in a manner 
which will not affect the NCBs’ ability to carry out their ESCB or Eurosystem-related tasks 
from an operational and financial point of view. 
(d) In view of the abovementioned obstacles, the credit mediator should, ideally, be hosted or 
established outside BdP. If, in the end, this is not the case, the agreement of BdP will be 
necessary as regards the conditions under which BdP would be able to host the credit mediator without BdP’s ability to carry out it s ESCB/Eurosystem and supervisory tasks being 
affected from an operational and financial point of view, or the monetary financing prohibition being infringed.    
 
This opinion will be published on the ECB’s website.  
 
Done at Frankfurt am Main, 24 March 2015.  
[signed] 
The President of the ECB 
Mario DRAGHI 
                                                 
4  See the ECB’s June 2014 Convergence Report, p. 29, as well as paragraph 2.1 of Opinion CON/2011/30 and 
paragraph 3 of Opinion CON/2013/29. 
5  See the ECB’s Convergence Report of June 2014, p. 25. 
6 
 See for instance paragraph 3 of Opinion CON/2007/8, paragraph 3.3 of Opinion CON/2011/7, paragraph 9 of 
Opinion CON/2011/84, paragraph 3.1.2 of CON/2013/56 and paragraph 3.1 of CON/2015/2.