EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 3 November 2006  
at the request of the Italian Ministry of Economic Affairs and Finance  
on a draft legislative decree exercising powers dele gated under the Law on the protection of savings 
(CON/2006/51) 
 
Introduction and legal basis  
On 25 September 2006 the European Central Bank (ECB) received a request from the Italian Ministry of 
Economic Affairs and Finance for an opinion on a draf t legislative decree (hereinafter the ‘draft 
legislative decree’), which is to be adopted in exercise of powers delegated under Article 43 of Law 
No 262 of 28 December 2005 on the protection of savings (hereinafter ‘Law 262/2005’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the third and sixth indents of Article 2(1) of Council Decision 98/415/EC of 
29 June 1998 on the consultation of the European Ce ntral Bank by national authorities regarding draft 
legislative provisions1, as the draft legislative decree relates to th e Banca d’Italia and rules applicable to 
financial institutions insofar as they materially influe nce 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 legislative decree 
1.1  Article 43 of Law 262/2005 requires that c oordination measures between Law 262/05 and the 
consolidated Law on banking (TUB), the consolid ated Law on finance (TUF) and other relevant 
special legislation be issued within one year  of the entry into force of Law 262/2005.  
1.2  The ECB was consulted on an early draft of  Law 262/2005, which extensively modified the 
institutional framework for the regul ation and supervision of financ ial markets and intermediaries 
in Italy, as well as on later amendments and certain implementation measures2.  
1.3  According to the explanatory memorandum, one of  the main aims of the draft legislative decree is 
to ‘restore coherence to the system’ on the basis of the founding principles of the 2005 reform, in particular the principle of allocating regulat ory and supervisory tasks between the various 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2  See ECB Opinions: CON/2004/16 of 11 May 2004 at the request of  the Italian Ministry of Economic affairs and Finance 
on a draft law on the protection of savings; CON/2005/34 of 6 October 2005 at the request of the Italian Ministry of 
Economy and Finance on an amendment to the draft law on th e protection of savings concerning the Banca d’Italia; 
CON/2005/58 of 23 December 2005 at the request of the Italian Ministry of Economy and Finance on an amendment to 
the draft law on the protection of savings concerning th e Banca d’Italia; and CON/2006/44 of 25 August 2006 at the 
request of the Banca d’Italia on the amended Statute of the Banca d’Italia.  
2 authorities in accordance with tho se authorities’ objectives. The draft legislative decree does in fact 
further clarify and improve the allocation of su pervisory powers between the Banca d’Italia, the 
financial markets regulator ( Commissione nazionale per le Società e la Borsa, CONSOB) and the 
insurance supervisory authority ( Istituto per la Vigilanza sulle A ssicurazioni Private e di Interesse 
Collettivo , ISVAP), in accordance with thei r specific supervisory purposes. 
1.4 The draft legislative decree also amends certain  provisions regarding listed companies to enhance 
corporate governance mechanisms.    
1.5 Finally, in amending Law No 287 of 10 Octobe r 1990 on competition and fair trading (hereinafter 
‘Law 287/1990’) and Article 19 of Law 262/2005, the draft legislative decree also revises the institutional arrangements for coordination between the Banca d’Italia and the Italian Competition 
Authority (Autorità Garante della C oncorrenza e del Mercato , AGCM) .  
 2. Refinement of the supervisory model 
2.1 The ECB welcomes the draft legislative decree as  it further refines the It alian supervisory model. 
By eliminating possible operational problems arising from overlapping competences, the draft legislative decree aims to enhance the efficien cy and effectiveness of the overall supervisory 
activity. 
2.2 The Banca d’Italia will re main responsible for safeguarding financial stability and for the 
prudential regulation and supervision of credit in stitutions and other fina ncial intermediaries. 
CONSOB will be responsible for the overall transpar ency of financial markets, including conduct 
of business regulation of all financial intermediari es and corporate disclosure practices. The draft 
legislative decree rightly clarifies
3 that bank deposits do not constitu te financial products, which are 
subject to CONSOB’s transparency competen ce pursuant to the TUF, and streamlines the 
application of investor protection rules for insura nce products of a financial nature. Furthermore, 
Article 129 of the TUB is amended4 in accordance with the aim of giving CONSOB full powers in 
relation to investor protection and the transpar ency of financial instruments. Under the new 
provision, Banca d’Italia’s current task of authoris ing the issue or offer of financial instruments in 
Italy or abroad by Italian entities will be replaced  by the power to seek information, for the sole 
purpose of monitoring financial markets. 
2.3 In particular, the ECB welcomes Article 1 of th e draft legislative decree, which contains several 
important amendments to the TUB. First, it provid es that the Chairperson of the Interdepartmental 
Committee for Credit and Savings ( Comitato Interministeriale p er il Credito ed il Risparmio , 
CICR) may invite the chairpersons of supervisory authorities to take part in CICR meetings when topics within their competence will be discussed . This amendment is consistent with the 
requirement under Law 262/2005 to coordinate betw een the various supervisory authorities in the 
financial sector. However, the operational indepe ndence of supervisory authorities, which is an 
                                                 
3 See Article 3 of the draft legislative decree. 
4 See Article 1 of the draft legislative decree. 
3 essential and internationally recognised standa rd, should be safeguarded by avoiding any 
interference by political authorities in day-to-day su pervisory activity. In this respect, the role of 
the CICR might need to be further clarified, given th at regulation is to a large extent determined at 
Community level and that coordination with the Government is subject to the requirement of 
professional secrecy of banking supervision author ities. Second, the Banca d’Italia is given 
extensive regulatory powers, in accordance with CI CR resolutions, to lay down the conditions and 
limits for banks’ assumption of risk activities in cases of possible conflicts of interest. Such cases 
are no longer explicitly described in the TUB and th is will enhance the flexib ility of the regulatory 
framework, making it possible to take future developments into account, and ultimately the 
effectiveness of supervisory action.  
 3.  Relationship between the Banca d’Italia and the AGCM 3.1 Articles 2 and 4 of draft legislative decree c ontain amendments to Article 20 of Law 287/1990 and 
Article 19 of Law 262/2005 which affect the power s of the AGCM and its relationship with the 
Banca d’Italia. These provisions are welcome as th ey comply with the general principles of 
Community law in this area and follow the recomme ndations previously made by the ECB on this 
issue
5. The draft legislative decree confirms that, for operations which constitute a bank merger 
requiring prior notification, the AGCM is responsib le for the assessment of market competition, 
while the Banca d’Italia retains the responsibility for assessing the compatibility of the merger with 
sound and prudent management. More specifically, th e draft legislative decr ee clarifies two aspects 
relating to coordination between the two authorities. 
3.2 First, Article 4 of the draft legislative decr ee repeals paragraphs 12 to 14 of Article 19 of 
Law 262/2005, which provided that the authori sations of the AGCM and the Banca d’Italia 
concerning mergers and acquisitions involving ba nks should be adopted as a single measure. This 
clarification is welcome as it follows an ECB recommendation to maintain a clear distinction between the two procedures
6. 
3.3 Second, the new paragraph 5 bis of Article 20 of Law 287/19907 provides that, notwithstanding 
competition concerns, the AGCM may, at the Banca d’ Italia’s request, authorise: (a) an agreement, 
on the basis of the operational requirements of the payments system and provided that the authorisation is for a limited period; and/or (b) a banking merger which creates or reinforces a dominant position, for reasons of the stability of one or more of the parties involved. However, the 
draft legislative decree contains an additional saf eguard as Article 2 requires that such exceptional 
authorisations by the AGCM do not unduly restra in competition. The ECB welcomes the proposed 
arrangements, which balance the potentially c onflicting objectives of market competition and 
                                                 
5   See paragraph 14 of Opinion CON/2004/16 and paragraphs 7 and 8 of Opinion CON/2005/58.   
6 See paragraph 8 of Opinion CON/2005/58. 
7 Introduced by Article 2 of the draft legislative decree. 
4 financial stability by introducing safeguards sim ilar to those which apply under Community law 
and follow previous ECB recommendations on this important subject.  
 4.  Liability regime The ECB takes note of the new liability regime introdu ced by Article 4 of the draft legislative decree. 
This provision states that, in exercising their own c ontrol functions, the releva nt supervision authorities 
and the members of their decision-making bodies and their employees will be liable for losses caused by 
wilful misconduct or gross negligence ( dolo o colpa grave ), but not for losses caused by simple 
negligence ( colpa )
8. The provision is welcome as it is fully in line with the Core Principles for Effective 
Banking Supervision adopted by the Ba sel Committee on Banking Supervision9. 
 This opinion will be published on the ECB’s website.    Done at Frankfurt am Main, 3 November 2006. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
 
                                                 
8  See also paragraph 4 of ECB Opinion CON/2006/38 of 25 July 2006 at the request of the Bank of Greece on a draft 
provision on the Bank of Greece’s powers in the field of consumer protection.   
9 Available on the website of  the Bank for International Settlements at www.bis.org.