EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 22 December 2008 
at the request of the Belgian Ministry of Justice 
on a draft law aimed at enhancing the rules on the functioning of company bodies, in particular by 
introducing into the Companies Code provision s regarding a corporate governance statement and 
the establishment of a remuneration committee,  by limiting severance payments for certain 
company representatives and by refor ming the system of statutory disabilities in the banking and 
financial sector 
(CON/2008/91) 
 
Introduction and legal basis  
On 5 December 2008 the European Central Bank (ECB)  received a request from the Nationale Bank van 
België/Banque Nationale de Belgique (NBB), acting on behalf of the Belgian Ministry of Justice, for an 
opinion on a draft law aimed at enhancing the rules on the functioning of company bodies, in particular 
by introducing into the Companies Code provisions regarding a corporate governance statement and the 
establishment of a remuneration committee, by lim iting severance payments for certain company 
representatives and by reforming the system of statut ory disabilities in the banki ng and financial sector 
(hereinafter the ‘draft law’).  
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the third indent of Article 2(1) of Council Decision 98/415/EC of 29 June 1998 
on the consultation of the European Central Bank by  national authorities regarding draft legislative 
provisions1, as the draft law relates to the NBB. In acco rdance with the consultation request, this opinion 
focuses on the application to the members of the NBB’s Board of Directors, including the Governor, of the provision of the draft law establishing a limit on  severance payments. 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 
On a general note, the draft law is motivated by the Belgian authorities’ wish to  increase confidence in the 
financial sector2. The draft law has a triple purpose. First, it transposes into Belgian law certain provisions 
of Directive 2006/46/EC3 which require listed companies to incl ude a corporate governance statement in 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  Explanatory memorandum to  the draft law, p. 13. 
3  Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 
78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on 
their annual report4; beyond this transposition, the draft law also requires such  companies t o include a 
remuneration report in t heir corporate governance statement5 and to establish within their board of  
directors a remuneration committee co mposed of non- executive directors an d entrusted with advisory 
tasks6. Second, it introduces a lim it on se verance payments that may be awarded to executive directors of 
listed co mpanies and to persons entrus ted with their day -to-day management7. This lim it would appl y to 
the total co mpensation aw arded to an e xecutive director  of a list ed company (or of a subsi diary thereof) 
when the y cease to carry  out8 their m andate in the listed com pany9. Third, it aims  at refor ming the sy stem  
of statutory  disabilities in the banking and financial sector10.  
 
2. Gene ral observations 
The lim it pla ced on severance pay ments by  Article 14 of the dr aft law applies to all listed com panies 
including the NBB a s a consequence of its having the  legal status of a listed com pany11 12. The draft law, 
the objective of which is t o “dispel, in the interest of investors’  confidence in the financial markets, the  
concerns raised with regard to the exorbitant severance pay ments which may be awarded to certain 
company representatives when they  cease to ca rry out their ma ndate in listed com panies”13, does not  
target specifically  the deci sion-making bodies of the national central bank and d oes not raise any  issues as 
concerns com pliance with the pri nciple of personal i ndependenc e. In this con text it shoul d be noted t hat 
the me mbers of the NBB’ s Board of Directors, includ ing the Go vernor, conti nue to fall withi n the scope 
of Article 14.2 of the Statute of the European Sy stem  of Central Banks and of th e European Central Ban k 
which provides that they  may  only be relieved fro m office if they no longer fulfil the conditions required 
for the perfor mance of their duties or ha ve been guilt y of serious misconduct. 
                                                                                                                                                             
the annu al acco unts and consoli dated accoun ts of banks and ot her finan cial ins titutions and 91/ 674/EEC on th e annual  
accoun ts and  consolidated  accou nts of insuran ce undertak ings, OJ  L 224 , 16.8.200 6, p. 1. 
4  Articl e 3 of th e draft law, introducing a new Arti cle 96(2) in the Com panies Cod e.  
5  Article 3 of  the draf t law, introducing a new Artic le 96(3 ) in th e Companies Cod e, drawing on Commission 
Recom mendatio n 2004/913/EC of 14 Decem ber 2004 fostering an appr opriate regime for the  remunerat ion of dir ectors of  
listed  companies , OJ L 385, 29.1 2.2004, p. 55.  
6  Article 6  and 7  of th e draft law, respectiv ely introducing  a new Section III ter and a new  Article 526 quarter in the  
Companies Cod e.  
7  Article 14  of th e draft la w, introd ucing a new Article 520 bis in the Com panies Cod e. 
8  According to th e exp lanator y memorandum, the normal exp iry of the directors’  term of off ice is covered  and the limit  
applies regardles s of the party  (i.e. di rector or co mpan y) who takes the initia tive regarding th e termination (explanator y 
memorandum to the draf t law, pp . 16 and 17) . 
9  Under the draft law, such compensation must not exceed the lo west of the two following amounts: (i) the remuneration 
that would b e due for th e rem aining dura tion o f the l egal relationship which i s term inated ; or (ii) th e rem uneration  
corresponding to one- year’s salar y, or when this amount is higher, a compensation equal to one fourth of the annual  
remuneration  per period  of five years of  serv ice w ith a maximum of 18 months’ remuneration. 
10  Articl es 23 to 3 2 of the  draft  law. This s ystem is com posed  of the various laws whose appl ication is supervised  by the 
Commissie voor het Bank-, Fin ancie - en Assurantiewez en/Commission Banc aire, Finan cière et des Assurances , which 
establish a prohibition on carr ying out the functio n of, in particul ar, director of a supervised institu tion which applies to  
persons who hav e been convict ed of certain  offen ces.  
11  Explan atory memorandum to  the draf t law, p. 16 . 
12  See ECB Opin ion CON/2002/18 of 9 July  2002 at the r equest of the B elgian Ministr y of Finance on a draft for a n ew 
Article 879 of  the Companies Code, introduced b y the Progra mme Law, as well as sev eral articles interpr eting and  
amending the Organic Law of th e Nationale  Bank van Belg ië/Banque Nation ale de Belgique, in troduced b y paragraphs 6  
to 10 of  Article 141 of th e draft law on th e prud ential supe rvision  of th e financial sector and f inancial services. 
13  Explan atory memorandum to  the draf t law, p. 13 . 
2 
 
3. Specific co mments  
The ECB understands that the draft law is without prej udice to Article 2 of the Law of 22 Feb ruary 1998 
establishing the Organic Statute of the Nationale Ba nk van België/Banque Nationa le de Belgique which 
establishes the supplem entary  nature of the provisi ons concerning public lim ited liabilit y com panies and 
that, hence, t he com petence to approve the annual report on operations and the accounts presented to the 
general meeting which lies with  the NBB’s Council of Regency14 would not b e affected by the draft  
law15. 
 
This opini on will be publis hed on t he ECB’s website.  
 
 
Done at Frankfurt am  Main, 22  Decem ber 2008. 
 
[signed ] 
 
The President of the ECB 
Jean-Claude TRICHET 
 
                                                 
14  Article 28(3)  and Article 30(5) o f the NBB’s Statute. 
15  See in  particular Article 10  of th e draft law,  introd ucing an Article 554 in the Companies Code. 
3