Opinion of the European Monetary Institute on a consultation under Article 109f(6) of the Treaty establishing the European Community (the “Treaty”) and Article 5.3 of the Statute of the EMI as elaborated in Council Decision 93/717/EC of 22nd November 1993 (the “Council Decision”) from the National Bank of Belgium on behalf of the Belgian Government concerning a draft amendment to its Organic Law (CON/95/12)
Date: 1995-08-30
Institutions: European Monetary Institute
Subjects: Belgium, central bank, national law, payment system, securities

OPINION OF THE EUROPEAN MONETARY INSTITUTE 

on  a  consultation  under  Article  109f(6)  of  the  Treaty  establishing  the  European  Community  (the 

“Treaty”) and Article 5.3 of the Statute of the EMI as elaborated in Council Decision 93/717/EC of 

22nd November 1993 (the “Council Decision”) from the National Bank of Belgium on behalf of the 

Belgian Government concerning a draft amendment to its Organic Law. 

CON/95/12 

1. 

The present consultation was initiated by letter of 10th July 1995 by the National Bank of Belgium  

on  behalf  of  the  Belgian  Government.  The  consultation  concerns  a  draft  amendment  to  the 

Organic  Law  of  the  National  Bank  of  Belgium,  providing  the  Bank  with  a  legal  lien  on  all 

securities booked in its accounts in the name of the participants. The purpose of the amendment 

is  to  ensure  the  repayment  of  intra-day  or  overnight  credits  granted  by  the  National  Bank  of 

Belgium  to  participating  institutions,  thus  fostering  the  efficient  management  and  smooth 

functioning of the real-time gross-settlement system calles ELLIPS, which is in the process of 

being  established.  During  the  present  consultation  process,  the  National  Bank  of  Belgium 

informed the EMI that the draft legislation on which the EMI was originally consulted had been 

changed,  as  a  result  of  discussions  between  the  responsible  Belgian  ministries.  The  change 

concerned the nature of the lien on securities provided by participants to the National Bank of 

Belgium. In the new text of the law, the lien provided will have the same ranking or priority as 

that of any other pledge which participants in the ELLIPS system may provide to third parties.  

2. 

As the draft bill provides for amendments to the statute of a national central bank of a member 

State  of  the  European  Union  and  relates  to  clearing  and  settlement  systems,  the  EMI  is 

competent  to  issue  an  opinion  on  the  draft  legislation  under  Article  1.1,  second  and  fourth 

indent, of the Council Decision. 

3. 

The EMI welcomes the measures as contained in the draft since they provide for an adaptation 

of the current Organic Law of the National Bank of Belgium to various Articles of the Treaty 

and of the Statute of the European System of Central Banks and of the European Central Bank 

(the “Statute”) and in particular of Article 18.1 of the Statute which states that the ECB and the 

national central banks may conduct credit operations with credit institutions and other market 

participants, with lending being based on adequate collateral. The practical implications of this 

Article for payment systems are such that national central banks and their counterparts should 

be  able  to  establish  collateral  in  a  timely  and  efficient  manner.  The  draft  legislation 

 
 
 
 
 
 
contemplates this as it gives a generic lien on all securities which the National Bank of Belgium 

at any time may keep in deposit for a participant of the ELLIPS system to ensure re-payment of 

credits and also  provides for a simplified  procedure for the realisation  of  collateral and, thus, 

supports the smooth operation of the payment system itself. The amendment is also consistent 

with Article 105.2, fourth indent, of the Treaty, as reproduced in Article 3.1, fourth indent, of 

the Statute, which lists as one of the tasks of the ECSB and its components the promotion of the 

smooth operation of payment systems.  

It  is  noted  that  the  legal  construction  chosen  for  the  collateralisation  of  credit  facilities  for 

participants  in  the  ELLIPS  system  and  its  practical  elaboration  should,  on  the  one  hand,  not 

form an obstacle for selling or pledging securities deposited with the National bank of Belgium 

to third parties in the normal course of trading activities, whilst on the other hand a monitoring 

mechanism should ensure that outstanding debts are, at any point in time, sufficiently covered 

by collateral.  

Finally,  the  proposed  adaptation  of  the  Statute  of  the  National  Bank  of  Belgium  is  in 

accordance with Article 108 of the Treaty which requires that statutes of national central banks 

shall be made compatible with the Treaty and the Statute.  

The draft amendment does not give rise to any further remarks  which should be addressed in 

this opinion from the EMI’s point of view. 

4. 

The EMI agrees that this opinion may be made public by the competent Belgian authorities at their  

discretion. 

30th August 1995