Opinion of the European Monetary Institute at the request of the Banca d’Italia under Article 109f (6) of the Treaty establishing the European Community (the “Treaty”), Article 5.3 of the Statute of the EMI and Council Decision 93/717/EC of 22 November 1993, concerning draft amendments to some provisions of the Statute of Banca d’Italia (the “Draft Statute Amendments”) (CON/98/07)
Date: 1998-02-19
Institutions: European Monetary Institute
Subjects: European System of Central Banks, Italy, banking secrecy, board of directors, central bank, conflict of interest, decision-making

OPINION OF THE EUROPEAN MONETARY INSTITUTE

at the request of the Banca d’Italia under Article 109f (6) of the Treaty establishing the

European Community (the “Treaty”), Article 5.3 of the Statute of the EMI and Council

Decision 93/717/EC of 22 November 1993, concerning draft amendments to some provisions

of the Statute of Banca d’Italia (the “Draft Statute Amendments”)

(CON/98/07)

1.

On  29  January  1998,  the  EMI  received  a  request  for  an  opinion  on  the  Draft  Statute

Amendments  from  the  Governor  of  Banca  d’Italia.  An  Explanatory  Memorandum  was  also

submitted to the EMI. This opinion is based on the English translation of the draft submitted to

the EMI by the consulting authority.

2.

The  EMI’s  competence  to  deliver  an  opinion  is  based  on  Article  1.1,  second  indent,  of  the

Council  Decision  (93/717/EC)  of  22  November  1993  on  the  consultation  of  the  EMI  by  the

authorities  of  the  Member  States  on  draft  legislative  provisions,  as  the  Draft  Statute

Amendments contain provisions concerning the status and powers of the national central bank.

3.

The  EMI  has  analysed  the  proposed  amendments  to  the  Statute  of  Banca  d’Italia  (the

“Statute”).  Such  amendments  are  required  by  Article  10  of  the  draft  legislative  decree

implementing  Article  108  of  the  Treaty,  on  which  the  EMI  has  already  given  its  opinion

(CON/97/32), and by Article 108 of the Treaty itself. In conformity with the analysis contained

in its Legal Convergence Report, the EMI welcomes the changes introduced into the Statute to

bring it into line with those introduced by the Legislative Decree and with the requirements of the

Statute of the ESCB. In particular, the EMI considers it appropriate to clarify at the beginning of

its Statute both the new status of Banca d’Italia as integral part of the ESCB and the new limits

of its competences in Stage Three. Also, the EMI welcomes the substitution for the exhaustive

list of operations which can be undertaken by the Bank of a much more flexible and appropriate

general  clause  allowing  Banca  d’Italia  to  undertake  all  acts  and  operations  allowed  by  the

Statute of the ESCB and by its implementing measures.

4.

However, some further amendments are necessary in order to meet fully the requirements of the

Treaty.  In  the  first  place,  the  EMI  considers  that  the  independence  of  the  members  of  the

decision-making  bodies,  in  particular  of  the  members  of  the  Board  of  Directors,  has  been

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improved by the change of Article 17 of the Statute proposed in the Draft Statute Amendments.

However,  the  Statute  should  also  ensure  that  no  conflict  of  interest  can  arise  between  the

ESCB-related  tasks  of  the  members  of  the  Board  of  Directors  and  their  other  functions.  Even

though  important  cases  of  incompatibilities  are  already  covered  by  Article  60  of  the  Statute,  a

clause in this sense should be added, either in Article 17 or in Article 60.

5

Moreover, on the question of the competences of the Board of Directors, the EMI understands

that paragraph 19 of Article 20 has to be read in the light of the first paragraph of Article 20: this

means that only tasks related to the general administration of the Bank can be submitted to the

Board of Directors by the Governor. However, to enhance legal certainty, this limitation should

be clarified in the text of Paragraph 19.

6

Also, concerning Article 42,  similarly to what already observed in the EMI opinion on the Draft

Legislative  Decree,  a  reference  should  be  added  to  the  relevant  ECB  provisions  contained  in

Chapter IV of the Statute of the ESCB.

7

Finally, the EMI understands that the obligation of secrecy  imposed  on  officials  and  employees

of  Banca  d’Italia  by  Article  62  of  the  Statute  continues  to  apply,  for  the  matters  which  have

come to their knowledge in the exercise of their duties, after they leave the service of the Bank.

The  EMI  confirms  that  it  has  no  objection  to  this  opinion  being  made  public  by  the  competent  Italian

authorities at their discretion.

19 February 1998