Proposal for a Council Decision on the consultation of the European Central Bank by national authorities on draft legislative provisions
Date: 1998-02-20
Institutions: European Commission
Subjects: EU Member State, Economic and Monetary Union, European Central Bank, drafting of EU law, financial legislation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 20.02.1998 
COM(97) 725  final 

98/0056 (CNS) 
98/0057 (CNS) 
98/0058 (CNS) 
98/0059 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the consultation of the European  Central Bank  by national  authorities 
on draft legislative provisions 

Proposal for a Council Decision 

on the statistical data to be used for the determination  of the key for  subscription 
of the capital of the European Central Bank 

Proposal for a Council Regulation (EC, Euratom, ECSQamending Regulation 
(EEC, Euratom, ECSC) No. 260/68 which lays down the conditions 
and procedure for applying the tax for the benefit of the European  Communities. 

Proposal for a Council Regulation (Euratom, ECSC, EC)amending  Regulation 
(Euratom, ECSC, EEC) No. 549/69 determining the categories of officials  and 
other servants of the European  Communities to whom the provisions of Article 
12, the second paragraph  of Article 13 and Article  14 of the Protocol on the 
Privileges  and Immunities of the Communities  apply 

(presented by the Commission) 

Proposal for a Council  Decision  (  | 
on the consultation of the European Central  Bank by national  authorities 
on draft legislative provisions 

EXPLANATORY  MEMORANDI IM 

Stage  three  of  economic  and  Monetary  Union  will  begin  on  I  January  I1)1)1).  The 
European  Central  Bank  will  be  established  following  the  confirmation  by  Heads  of 
State or Government  according  to Article  109 j(4)  EC as to which  countries  fulfil  the 
necessary  conditions  for  the  adoption  of  a  single  currency.  The  Commission  is 
presenting  draft  secondary  legislation  concerning  the  practical  functioning  of  the 
European System of Central  Banks and the European Central  Bank. 

I. 

General  considerations 

Article  105(4) of the Treaty (and Article 4(a) of the ESCB Statute) states that the ECB 
shall  be consulted  "... by national authorities regarding any draft legislative provision 
in its field of competence, hut within the limits and under the conditions set out hy the 
( 'ouncil in accordance with the procedure laid down in Article  106(6)."" 

The initiative  for  legislation  using  Article  106(6) as the  legal  base can  be taken  either 
by  I he  Commission  or  the  ECB.  following  consultations  between  the  Commission, 
the Member States and the EMI, it has been agreed  that  this  Decision  will  be adopted 
on the basis of a proposal  from  the Commission. 

The purpose of this draft  Council  Decision  is to set out within which  limits and under 
which  conditions  the authorities  of  the  Member  States  shall  consult  the  ECB  on  any 
draft  legislative  provision  within  its  field  of  competence.  The  obligations  will  be 
similar  to  those  currently  applying  to  national  authorities  with  regard  to  draft 
legislative  provisions  that  fall  within  the  field  of  competence  of  the  EMI  (Council 
Decision  93/717/EC of 22 November  1993)1. The draft  Decision  seeks to ensure  that 
the  ECB  is  consulted  at  an  early  stage  in  the  decision-making  process  and  that 
adequate time is provided  to the ECB to formulate  its views. 

Consultation  on  draft  legislation  is  obligatory.  The  rationale  behind  this  rule  is  to 
ensure  that  the  authority  which  has  been  given  tasks  in  the  monetary  and  financial 
Held has an opportunity  to give its assessment of measures envisaged  by other bodies, 
either at the level of the Community  or in Member Stales, which  have a bearing on  its 
Held  of  competence.  National  measures  are  included  because,  in  the  perspective  of 
EMI J, those measures may have an impact on the single monetary  policy. The ECB 

OJ L 332 of 31.12.1993, p.14 

i.  j 

will  assess  the  envisaged  legislative  provisions  against  the  compatibility  with  its 
lasks:  the  ECB  will  also  provide  expertise.  Overall,  the consistency  of  policies  will  be 
improved. 

Legislation  specifying 
Community  legislation  following  from  the  language  of Article  105(4). 

limits  and  conditions 

is  necessary  for  national  but  not 

The principles  governing  the present draft  Council  decision  are the  following: 

• 

• 

it  aims  at  striking  a  balance  between  the  need  for  making  the  opinion  of  the  ECB 
known  to  those  who  take  decisions  and  the  wish  to  avoid  undue  burdens  on  the 
consulting  authority  as well  as on  the  ECB. 

the  Treaty  requires  consultation  on  any  draft  legislative  provision  in  the  ECB's 
field  of  competence.  The  draft  decision  enumerates  a  number  of  fields  of 
consultation  which  relate  to  the  tasks  of  the  ECB  specified  in  I he  Treaty.  This 
approach  does  not  free  national  authorities  from  the obligation  to examine  whether 
drM'i legislation,  while  not  fitting  into  one  of  the  enumerated  fields,  may  still  be 
within  the  EClTs  field  of  competence;  however,  the  enumeration  aims  at  keeping 
the consultations  manageable. 

•  allowance  is made  for  the  particularities  of  the  legal  systems  of  the  Member  States. 
In  particular,  Member  States  are  given  flexibility  in organising  the  consultations  of 
their  various authorities  with  the ECB in light of their  specific  practices. 

• 

2 

the  draft  decision  aims  at  increasing  transparency  and  legal  certainty  as  to  what 
will  be the  right of the  ECB and  the obligations  of national  authorities. 

Comments on  the  Articles 

Article I 

Article  I  specifies  the  definition  of  "draft  legislative  provisions"  and  "participating 
Member  Slates". 

The  narrowest  definition  of  "draft  legislative  provisions"  would  have  restricted  the 
coverage  of  the  article  to  formal  laws  which  are  under  preparation  for  adoption  by 
Parliament.  This  narrow  definition  was,  however,  not  retained  for  three  reasons:  first, 
it  seems  not  to  correspond  to  the  intention  of  the  authors  of  the  Treaty,  who  would 
have chosen  another term  in this case; second,  it would  exclude actions of a  legislative 
nature  which  are  of  relevance  for  the  ECB;  third,  it  would  probably  lead  to  unequal 
treatment  of  Member  States  because  a  measure  taken  in  one  country  in  the  form  of  a 
law  may  be taken elsewhere  in the form  of a different  legal  instrument. 

the  approximation  of  such  provisions 

Article  100  EC  provides  some  indication.  It  obliges  the  Council  to  "issue  directives 
law,  regulation  or 
for 
administrative  action 
the  establishment  or 
functioning  of the common  market". 

in  Member  States  as  directly  affect 

laid  down  by 

"I ,aw and  regulation"  is generally  seen  as including:  formal  laws adopted  according  to 
national  constitutional  rules,  and  provisions  which  are  derived  from  formal  laws. 
Those  provisions  are  characterised  by  their  general  applicability  and  by  the  fact  that 
lhey  set  rules  for  an  indefinite  number  of  cases  and  arc  addressed  to  an  indefinite 
number  of (natural  or  legal)  persons. 

"Administrative  action"  is  usually  understood  as  the  setting  of  rules  by  public  bodies 
for  subordinate  bodies.  Its  inclusion  in  Article  100  is  justified  by  the  purpose  of  this 
article,  which  is  to  implement  the  internal  market.  Consultation  of  the  ECB  on  such 
"administrative  action" seems  not  to be covered  by  Article  105(4). 

The  definition  of  "draft  legislative  provisions"  in  Article  I  thus  makes  use  of  the 
criteria  of  general  applicability,  indefinite  number  of  cases  and  indefinite  number  of 
persons. 

The  second  paragraph  exempts  those  draft  legislative  provisions  from  consultations 
which  aim  at  implementing  EU directives. This  is because  before  the  final  adoption  of 
such  directives,  the  ECB  will  already  have  been  consulted  according  to Article  105(4), 
first  indent,  furthermore.  Member  States  are  obliged  to  notify  the  implementation  of 
directives  to the  Commission. 

Article  2 

Article  2  defines  the  range  of  subjects  for  consultation.  This  list  is  to  be  seen  against 
the  tasks  of  the  ECB  set  out  in  Article  105 of the  Treaty  and  Article  3 of the  Statute  of 
the  ECB.  This list  is, however,  not  exhaustive. 

Several  changes  are  introduced  in  the  draft  Decision  compared  with  Council  Decision 
lasks  of  the  ECB 
W 7 I 7 / EC  applying  to  the  EMI.  These  reflect 
compared  with 
the  different  obligations  of 
the  EMI,  and 
participating  Member  States and  those  with  a derogation.  The  ECU  will  cease  to  exist 
as  of'I  January  1999,  and  hence  consultation  on  its  status  becomes  redundant.  The 
reference  to  cross-border  transactions  in  the  indent  on  clearing  and  payment  systems 
is dropped:  this better  reflects  the wording  of Article  105(2) of the  Treaty. 

the  different 

to  reflect 

the  need 

the  obligation  for  non-participating 
Article  2.2  of  the  draft  Decision  specifies 
countries  to  consult  the  ECB  on  draft  legislative  provisions  concerning  monetary 
policy  instruments.  In  accordance  with  Article  44  of  the  Statute  of  the  ECB, the  ECB 
shall  takeover  those  tasks  of  the  EMI  which,  because  of  the  derogations  of  one  or 
more  Member  States, still  have  to be performed.  Council  Decision  93/717/EC  requires 
Member  States  to consult  the  EMI  on  draft  legislative  provisions  concerning  monetary 
policy  instruments  as  these  fall  within  the  competence  ol  the  tasks  of  the  EMI  which 
are  specified  in  Articles  4.1  and  4.2  of  the  Statute  of  the  EMI.  Inter  alia,  these  tasks 
include  the  preparation  of  instruments  and  procedures  necessary  for  carrying  out  a 
single  monetary  policy. 

The  range  of  subjects  for  consultation  is  not  exhaustive.  National  authorities  shall 
consul!  the  ECB  on  legislative  provisions  which  affect  the  tasks  of  the  ESCB  in 
accordance  with  Article  105(4)  of  the  Treaty.  The  sixth  indent  of  Article  2  of  this 
Decision  requires  national  authorities  to  consult  the  ECB  on  legislative  provisions 
applicable  to  financial  institutions  in so  far as  they  materially  influence  the  stability  of 
financial  institutions  and  markets.  However,  this  requirement  is  without  prejudice  to 
the  present  assignment  of  competences  for  policies  relating 
to  the  prudential 
supervision  of  credit  institutions  and  the  stability  of  the  financial  system.  Such  a 
reference  is desirable: 

•  as  regards  its application  to participating  Member  Stales  so as  to assist  the  ECB  in 
properly  fulfilling  its competence  to conduct  monetary  policy  for  the euro  area.  No 
specific  reference  to  matters  related  to  the  stability  oi'  financial  markets  and 
institutions  was  needed  in  Article  105(2)  as  the  efficient  conduct  of  monetary 
policy  is  closely  related  to  aspects  of  financial  market  organisation/institutions. 
individual 
Monetary  policy 
institutions  and  therefore  indirectly  touch  on  areas  where  supervisory  bodies  are 
competent.  At  the  same  time,  measures  taken by  competent  supervisory  authorities 
institutions  influence  those  institutions'  ability  to  create  "book 
on  individual 
money" and  hence  indirectly  affect  liquidity  supply  to the  economy. 

impact  on  the  liquidity  situation  of 

instruments 

•  as  regards  its  application  to  Member  States  with  a  derogation  on  the  grounds  that 
according  to  Article  44  of  ECB  Statute,  the  ECB  shall  lake  over  those  lasks  of  the 
EMI  which  still  have  to be performed  in stage  3 because  of  derogations. 

Article  3 

The  consultation  of  the  ECB  should  not  unduly  lengthen  the  national 
legislative 
procedure.  In  order  to  facilitate  their  time  schedules,  national  authorities  should  be 
allowed  to  set  a  lime-limit  to  the  ECB  for  the  delivery  of  its  opinion,  if they  consider 
it  necessary.  The  time-limit  of  one  month  strikes  a  balance  between  the  interests  of 
national  authorities  and  those  of the  ECB.  Upon  expiry  of  this  limit,  the absence  of an 
opinion  shall  not  prevent  further  action  in the national  legislative  procedure. 

This  article  provides  that  the  time  limit  may  be  reduced  in  cases  of  extreme  urgency. 
It  also  provides  for  the  ECB  to  be  able  to  request  an  extension  of  the  time  limit  by 
four  weeks. 

Article  4 

(iiven  the  diversity  of  legal  systems,  each  Member  Stale  should  be  given  as  much 
freedom  as  possible  in  devising  the  practical  arrangements  for  the  consultation  of  the 
ECB.  Each  Member  State  shall decide  internally  on the  provisions  necessary  to  ensure 
compliance  with  this draft  decision. 

Article  4 also specifies  which  authority  is obliged  to consult  the  ECB  when  more  than 
one  is  involved  in  legislation.  Legislative  provisions  are  often  prepared  by  authorities 
other  than  the  authority  which  takes  the  final  decision  (for  instance,  the  government 

10 

proposes  and  the  Parliament  adopts  formal  laws;  or  a  subordinate  body  prepares  a 
regulation  which  is  put  into  force  by  the  competent  Ministry),  f Ience,  the  question  is 
raised  at  which  stage  the  ECB  would  have  to be consulted. 

In  thi-se  cases,  the  ECB  shall  be  consulted  by  the  preparing  or  proposing  authority 
because  the  ECB  should  be  given  the  opportunity  to  express  its  views  at  a  relatively 
early  stage  of  the  legislative  process,  so  that  they  can  more  easily  be  taken  into 
account,  furthermore,  in  the  case  of  formal  laws  this  avoids  that  Parliaments  of 
Member  Stales  would  have  to consult  the  ECB  . Article  4  makes  sure  that  the  opinion 
of  the  ECB  is transmitted,  together  with  the  proposal,  to the adopting  authority. 

Article  5 

The  obligation  of  national  authorities  to  consult  the  ECB  applies  from  the  beginning 
of  the  third  stage  (see  Article  109  e(3),  i.e.  from  1 January  1999.  This  Decision  will 
therefore  enter  into  force  on  1  January  1999.  The  EMI,  which  currently  is  to  be 
consulted  according  to Council  Decision  93/717/1 vC, will  go  into  liquidation  upon  the 
establishment  of  the  ECB,  i.e.  several  months  before  the  beginning  of  the  third  stage. 
Therefore  Council  Decision  93/717/1ÎC  has  to  be  applied  beyond  the  date  of  the 
establishment  of  the  ECB  until  the  beginning  of  the  third  stage,  with  the  proviso  that 
the  body  to  be  consulted  is  the  ECB.  To  give  opinions  on  draft  legislation  is  a  task 
which  the  ECB  shall  take  over  from  the  EMI  according  to  Article  109  1(2).  This 
clarification  is  made  in  recital  No  X.  The second  paragraph  of  Article  5  provides  thai 
Council  Decision  93/717/EC  will  only  be repealed  at  the  beginning  of the third  stage. 

11 

Proposal  for a Council  Decision  |  | 
on  the consultation  of the  European  Central  Bank  by  national  authorities 
on draft  legislative  provisions 

5 S j o O £6  ( CA/S 

-\ 

HE COUNCIL  Of  TUT: EUROPEAN  UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community  and  in  particular 
Articles  105(4)  and  106(6)  thereof,  and  Articles  4  and  42  of  the  Statute  of  the  ESCB 
and  of the ECB, 

I laving  regard  to the  proposal  from  the Commission2, 

I laving  regard  to the opinion  of the European  Parliament^, 

Having  regard  to  the  opinion  of  the  [European  Central  Bank]  [European  Monetary 
Institute |4, 

( I  )  Whereas  the  European  Central  Bank,  hereafter  referred  to  as  'the  ECB\  will  be 

established  as soon  as  its Executive  Board  is  appointed; 

(2)  Whereas  the  Treaty  stipulates  that  national  authorities  shall  consult  the  ECB  on 
any  draft  legislative  provision  in  its  field  of  competence;  whereas  it  is  for  the 
Council  to set out the  limits and  the conditions of such  consultation; 

(3)  Whereas  this  obligation  on  the  authorities  of  the  Member  States  to  consult  the 
ECB  shall  not  prejudice  the  responsibility  of  these  authorities  for  the  matters 
which  are  the  subject  of  such  provision;  whereas  Member  States  shall  consult 
the  ECB  on  any  draft  legislation  in  its  field  of  competence  in  accordance  with 
Article  105(4)  of  the  Treaty;  whereas  the  list  of  particular  areas  included  in 
Article 2 of this  Decision  is not exhaustive; whereas the sixth  indent of Article  2 
of  this  Decision  is  without  prejudice  to  the  present  assignment  of  competences 
for  policies  relating  to  the  prudential  supervision  of  credit  institutions  and  the 
stability  of the  financial  system. 

(4)  Whereas  the  monetary  functions  and  operations  of  the  ESCB  are  defined  in  the 
Statute  of  the  ESCB  and  of  the  ECB;  whereas  central  banks  of  participating 
Member  States are an  integral  part oflhe  ESCB  and  shall  act  in accordance  with 

().l  No... 

O.I No ... 

1 

If  the  consultation  takes  place  before  the  creation  of  the  TX'li,  the  TMI  would  be  consulted  in 
accordance with Article  I09f(8) of the EC Treaty. 

12 

Ihe  guidelines  and  instructions  of  the  ECB;  whereas  in  stage  3  of  EMU,  the 
authorities  of  non-participating  Member  States  must  consult  the  ECB  on  draft 
legislative provisions on the instruments of monetary  policy; 

(5)  Whereas as long as Member  States do not  participate  in the  monetary  policy  of 
the ESCB, this Decision does not concern decisions taken by authorities of these 
Member States in the context of the implementation  of their monetary  policy; 

(6)  Whereas  consultation  of  the  ECB  must  not  unduly  lengthen  procedures  for 
adopting  legislative  provisions  in  the  Member  Stales;  whereas  the  lime  limits 
within  which  the  ECB  must  deliver  its opinion  must,  nevertheless,  enable  it  to 
examine the texts referred  to it with the required  care; whereas,  in duly justified 
cases  of  extreme  urgency,  for  example  on  account  o\'  market  sensitivity. 
Member  Slates  may  set  a  time  limit  of  less  than  one  month;  whereas  in  these 
cases particularly, dialogue between  the national authorities and the ECB should 
enable the interests of both to be taken  into account; 

(7)  Whereas in accordance with  paragraphs 5 and  8 oi^ Protocol  No  11 this decision 
shall  not apply  to the  United  Kingdom  of Great  Britain  and  Northern  Ireland  if 
and so long as it does not move to the third stage; 

(8)  Whereas  from  the  date  of  the  establishment  of  the  ECB  until  the  start  of  the 
third  stage,  national  authorities  have  to  consult  the  ECB,  pursuant  to  Council 
Decision 93/717/EC and Article  1091(2) of the  Treaty; 

IAS ADOPTED THIS DECISION 

Article  I 

for  the purpose of this decision: 

participating Member State shall mean a Member  State which has adopted  the 
single currency in accordance with the Treaty; 

draft legislative provisions  shall  mean  any  such  provisions  which  once  they 
become  legally  binding  and  of  general  applicability  in  the  territory  of  a 
Member  State,  lay  down  rules  for  an  indefinite  number  of  cases  and  are 
addressed to an indefinite  number of natural or legal persons. 

2. 

Draft  legislative provisions within the meaning of paragraph  I shall not 
include draft  provisions the exclusive purpose of which  is the transposition or 
continuing implementation  of Community directives into the law of Member 
States. Article 2 

13 

The  authorities  of  the  Member  Slates  shall  consult  the  ECB  on  any  draft 
legislative  provision  within  its field of competence  pursuant to the Treaty  and in 
particular on : 

currency  matters, 

means of payment, 

national central banks, 

the  collection,  compilation  and  dissemination  of  monetary,  financial,  banking, 
payment systems and balance of payments statistics. 

payment and settlement  systems, 

rules applicable to financial institutions in so  far as they  materially  influence  the 
stability of financial institutions and markets 

In addition  to the above  paragraph,  the authorities  of  Member  States  other than 
participating  Member  States  shall  consult  the  ECB  on  any  draft  legislative 
provisions  on the instruments of monetary  policy. 

The ECB  shall,  immediately  on  receipt  of any  draft  legislative  provision,  notify 
the consulting  authority  whether,  in its opinion, such  provision  is within  its  field 
of competence. 

Article  3 

The authorities  of  the  Member  Slates  preparing  a  legislative  provision  may,  if 
they  consider  it  necessary,  set  the  ECB  a  time  limit  for  the  submission  of  its 
opinion  which  may  not  be  less  than  one  month  from  the  date  on  which  the 
President of the ECB receives notification  to this  effect. 

In  case  of  extreme  urgency,  the  time  limit  may  be  reduced.  In  this  case  the 
consulting authority  shall  state the reasons  for the urgency. 

The  ECB  may  request  in  due  time  to  extend  the  lime  limit  for  up  to  an 
additional  four  weeks.  'This  request  shall  not  be  unreasonably  declined  by  the 
consulting authority. 

Upon  expiry  of  the  time  limit,  the  absence  of  an  opinion  shall  not  prevent 
further  action  by  the  consulting  national  authority.  Should  the  opinion  of  the 
ECB  be  received  after  the  time  limit,  the  Member  Slates  shall,  nevertheless, 
ensure that it is brought to the knowledge  of the authorities  referred  to in Article 
4. 

2. 

3. 

1. 

2. 

3. 

4. 

Article  4 

14 

Each  Member  State  shall  lake  the  measures  necessary  to ensure  effective  compliance 
with  this  Decision.  To  that  end,  it  shall  ensure  lhal  the  ECB  is  consulted  at  an 
appropriate  stage  enabling  the  authority  initiating  the  draft  legislative  provision  to 
have  the  ECB's  opinion  before  taking  its  decision  on  the  substance  and  that  the 
opinion  received  from  the  ECB  is  brought  to the  knowledge  of  the adopting  authority 
if  the  latter  is  an  authority  other  than  lhal  which  has  prepared  the  legislative 
provisions concerned. 

1. 

This Decision  shall  apply  as from  I January  1999. 

Article 5 

2. 

Council  Decision  93/717/EC shall  be repealed  with effect  from  1  January  1999. 

This  Decision  is addressed to the Member States. 

Article  6 

15 

Proposal  for  a Council  Decision  |  ] 
on  the statistical  data  to  be used  for the determination  of the key  for  subscription 
of the capital  of the  European  (entrai  Bank 

EXPLANATORY  MEMORANDUM 

Stage  three  of  Economic  and  Monetary  Union  will  begin  on  I  January  1999.  The 
European  Central  Bank  will  be  established  following  the  confirmation  by  Heads  of 
Stale  or  CJovernment  according  to  Article  109  j(4)  EC  as  to  which  countries  fulfil  the 
necessary  conditions  for  the  adoption  of  a  single  currency.  The  Commission  is 
presenting  draft  secondary  legislation  concerning  the  practical  functioning  of  the 
European  System  of Central  Banks and  the  European  Central  Bank. 

I. 

General  considerations 

The  key  for  subscription  of  the  capital  of  the  European  Central  Bank  (ECB)  also 
determines  the  share  of  each  central  bank  in  the  pooling  oi'  external  reserves,  the 
weights  in  voting  in  the  ECB  Council  on  financial  matters  and  in  particular,  the 
tlistribution  of  the  monetary  income  of  the  European  System  of  Central  Banks 
(ESCB)  as a whole among  national  central  banks. 

The  initiative  for  legislation  using  Article  106(6) as  the  legal  base  can  be  taken  either 
by  the  Commission  or  the  ECB.  following  consultations  between  the  Commission, 
the  Member  Slates and  the  EMI,  it  has  been  agreed  thai  this  Decision  will  be  adopted 
on  the  basis of a proposal  from  the  Commission. 

According  to  Article  29.1  of  the  Statute  of  the  ESCB  and  the  ECB,  each  national 
central  bank  shall  be assigned  a weighting  in the  key  equal  to  the  sum  of  50  %  of  the 
share  of  the  respective  Member  State  in  the  population  of  the  Community  in  the 
penultimate  year  preceding  the establishment  of the  ESCB  and  of  50 % of the  share  of 
the  respective  Member  State  in  the  gross  domestic  product  at  market  prices  of  the 
Community  as  recorded  in  the  last  five  years  preceding  the  penultimate  year  before 
the establishment  of the  ESCB. 

The  national  central  banks  have  already  contributed  to  the  financial  resources  of  the 
European  Monetary  Institute  (EMI)  in accordance  with  the  key  for  subscription  of  the 
ECB's  capital  (Article  16.2 of the  EMI  statute).The  rules on  the  statistical  data  for  the 
EMI  resources were adopted  by the Council  in  1993.5 

The subject  of this  Council  Decision  are  the rules  which  the  Commission  shall  follow 
when  it provides the  statistical  data for  the establishment  of the  key.  The rules  include 
the  definition  and  sources  of  the  data  on  GDP  and  population  to  be  used,  and  the 
determination  of  the  method  of  calculation.  The  provisions  of  this  Council  Decision 

Council  Decision No 93/716/EC of 22.11.1993, O.J. No L332/I2  o f . I I. 12.1993. 

16 

are  largely  based  upon  the  provisions  applying  to  the  EMI  as  set  out  in  Council 
Decision 93/716/EC. 

When  the  ECB  is  established,  it  will  have  to  establish  the  key  by  rounding  up  the 
percentages  which  result  from  the  present  Decision  to  the  nearest  multiple  of  0.05 
percentage  points,  as  required  by  the  last  sentence  of  Article  29(1)  of  the  ESCB 
Statute.  The data  should  be provided  to the  EMI  before  the day  the establishment  of 
the ECB becomes effective.  The key will have to be adjusted  every  live years. 

2. 

Comments on the articles 

Article  1 

Article  1  defines  what is covered  by this Decision. In a narrow  interpretation, the rules 
for  the supply  of the statistical  data  would just  specify  the concept  and  the sources of 
population  and  GDP  to  be used.  However,  methodological  questions  inevitably  arise 
between  the  supply  of  the  data  for  the  individual  countries  and  the  calculation  of 
percentages; these methodological  questions are also covered  by this- Decision  for the 
sake of consistency and accuracy. 

Article 2 

The appropriate  definitions  of population  and GDP are those of the European  System 
of Integrated  Economic Accounts (ESA). In order to clarify  which version of the ESA 
-  liSA  79 or  ESA  95  -  is to  be  used,  it  is  specified  that  the  relevant  version  is that 
which  is used for  the application  of  Directive  89/130/EEC (GNP  Directive).  In  1998, 
this will be ESA 79. 

Article 3 

Since  the  data  on  GDP  represent  a  How over  a  period  of  one  year,  the  population 
ligures  to which  they are related  must represent  the mean  olThe total  population  over 
the course of the year. 

Article 4 

This article  defines  the  data  on  GDP. The  last  five  years  preceding  the  penultimate 
year before the establishment of the ECB are  1991, 1992,  1993,  1994 and 1995. 

Article 5 

The  Commission  (Eurostat)  will  collect  the  data  on  population  according  to  the 
established  procedures.  The  Commission  will  draw  on  the  Statistical  Programme 
Committee in order to have the data validated. 

Article 6 

17 

GDP  mp data for the years  1991  to  1995 are the data resulting  from  the application  of 
the Council  Directive on the harmonisation of the compilation  of (JNP  mp. These data 
are validated by the committee  referred  to in Article 6 of lhal  Directive. 

Article 7 

This  article  provides  rules  for  the  calculation  of  the  shares  of  individual  Member 
States in the population and GDP of the Community. 

Article H 

This article provides the rule for the calculation of the weighting of a Member Stale  in 
the key. 

Article  9 

This article provides rules on rounding. 

Article  10 

Tbis article  obliges  the  Commission  to  communicate  the  data  to  the  EMI  before  the 
establishment of the ECB. 

18 

Proposal for a Council Decision  |  | 
on the statistical data to be used for the determination of the key for subscription 
of the capital of the European Central Bank 

3K/°O^(CAJ  S) 

II IE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community  and  in  particular 
Article  100(b) thereof, and  Articles 29.2 and  42 of  the  Protocol  on  the Statute  of  the 
European Central  Bank and the European System of Central  Banks annexed thereto, 

I laving regard to the proposal  from  the Commission, 

I laving regard to the opinion of the European Parliament, 

I laving regard to the opinion of the European Monetary  Institute, 

(I )  Whereas the European  Central  Bank, hereafter  referred  to as  kthe ECB', will  be 

established as soon as its Executive Board is appointed; 

(2)  Whereas the initial capital of the ECB, which  shall  become operational  upon  its 

establishment,  is ECU 5000 million; 

(3)  Whereas Ihe national central  banks will  be the sole subscribers to and  holders of 

the capital of the ECB; 

(4)  Whereas  the  key  for  Ihe subscription  of  the  ECB's  capital  will  be  determined 

when the ECB is established; 

(5)  Whereas the statistical  data  to be used  for  the  establishment  of  the  key  will  be 
provided  by  the  Commission  in  accordance  with  the  rules  adopted  by  the 
Council; 

(6)  Whereas  the  nature  of  and  sources  for  the  data  to  be  used  and  the  method  of 
calculation  of  the  weighting  of  national  central  banks  in  the  key  must  be 
defined; 

(7)  Whereas  Council  Directive  89/130/EEC,  Euratom  of  13 february  1989 on  the 
harmonization  of  the  compilation  of  gross  national  product  at  market  prices 
introduces  a procedure  for  the adoption  by  Member  States of data  on  the  gross 
domestic  product at market prices; whereas the Member States must take all  the 
necessary steps to ensure that these data are transmitted  to the Commission; 

HAS DECIDED AS FOLLOWS: 

19 

Article  J 

The statistical  data  to  be  used  for  the  determination  of  the  key  for  subscription  of  the 
capital  of  the  European  Central  Bank  shall  be  provided  by  the  Commission  in 
accordance  with  the rules  laid  down  in the  following  Articles. 

Article  2 

Population  and  gross  domestic  product  at  market  prices,  hereinafter  referred  to  as 
"GDP  mp",  shall  be  defined  according  to  the  European  System  of  Integrated 
Economic  Accounts  (ESA)  in  the  version  which  is  used  for  the  application  of 
Directive  89/130/EEC,  Euratom.  GDP  mp  shall  mean  GDP  mp as defined  in  Article  2 
of  Directive  89/130/EEC,  Euratom. 

Article  3 

The  data  on  population  shall  be  taken  for  the  year  1996.  The  mean  of  the  total 
population  over  the  course  of  the  year  shall  be  used  in  accordance  with  the  ESA 
recommendation. 

Article  4 

The data  on  GDI* mp  shall  be  taken  for  each  of  the  years  1991  to  1995.  The data  on 
GDP  mp  for  each  Member  State  shall  be expressed  in  the  national  currency  at  current 
prices. 

Article  5 

The data on  population  shall  be collected  by the Commission  (Eurostat)  from  Member 
States. 

Article  6 

The  data  on  GDP  mp  for  the  years  1991  to  1995  shall  result  from  the  application  of 
Directive  89/130/EEC,  Euratom. 

Article  7 

1. 

2. 

The share  of  a  Member  State  in  the  population  of  the  Community  shall'be  its 
share  in  the  sum  of  the  population  of  the  Member  States,  expressed  as  a 
percentage. 

The GDP  mp  data  for  each  year  and  each  Member  State  expressed  in  national 
currencies  shall  be  converted  into  figures  expressed  in  ECUs.  The  exchange 
rate  used  for  this  purpose  shall  be  the  average  of  the  exchange  rates  for  all 
working  days  in a year.  The daily  exchange  rate  shall  be  the  rate calculated  by 

20 

the  Commission  and  published  in  the  "C"  series  of  the  Official  Journal  of  the 
European  C 'ommunities. 

>. 

The share  of  a  Member  Stale  in  GDP  mp  of  the  Community  shall  be  its  share 
in  the  sum  of  GDP  mp  of  the  Member  Stales  over  live  years,  expressed  as  a 
percentage. 

Article  <V 

The weighting  of a national  central  bank  in the  key  shall  be the arithmetic  mean  oflhe 
shares  of  the  Member  Stale  concerned  in  the  population  and  in  the  GDP  mp  of  the 
Community 

Article  9 

The  various  steps  of  calculation  shall  use  sufficient  digits  to  ensure  their  accuracy. 
The  weighting  of  national  central  banks  in  the  key  shall  be  expressed  to  four  decimal 
places. 

Article  10 

The data  referred  to  in this  Decision  shall  be communicated  by  the Commission  to  the 
European  Monetary  Institute  before  the  day  the  establishment  of  the  ECB  becomes 
effective. 

)one at  Brussels, 

21 

Proposal fora  Council  Regulation (FX*, Euratom, E(  S(  )amending Regulation 
(EEC, Euratom, ECSC) No. 260/68 which lays down the conditions 
and procedure for applying the tax for 
the benefit of the European Communities. 

EXPLANATORY  MEMORANDUM 

Stage  three  of  Economic  and  Monetary  Union  will  begin  on  I  January  1999.  The 
European  Central  Bank  will  be  established  following  the  confirmation  by  Meads  of 
Slate or Government  according  to Article  109 j(4)  EC as to which  countries  fulfil  the 
necessary  conditions  for  the  adoption  of  a  single  currency.  The  Commission  is 
presenting  draft  secondary  legislation  concerning  the  practical  functioning  of  the 
European System of Central  Banks and the European Central  Bank. 

General  considerations 

According  to Article 40 of the  Statute of the  European  System  of Central  Banks and 
the  European  Central  Bank  (ESCB  Statute), the  ECB  shall  enjoy  in  the territories  of 
the  Member  States  such  privileges  and  immunities  as  are  necessary  for  the 
performance  of  its  tasks,  under  the  conditions  laid  down  in  the  Protocol  on  the 
privileges and immunities of the European Communities. 

According  to  Article  23  of  the  Protocol  on  the  privileges  and  immunities,6  the 
Protocol on Privileges and Immunities is applicable to : 

- the ECB as a body; 

- the members of the Governing Council of the ECB; 

- the members of the General Council of the ECB; 

- the members of the ECB staff. 

This  means  that  all  Articles  in  the  Protocol  on  the  privileges  and  immunities  are 
directly  applicable  to the  ECB, with the exception  of Article  15 which  stipulates  that 
the Council  (of  Ministers)  determines  the  scheme  of social  security  benefits.  As part 
of  the  employment  conditions,  the  scheme  of  social  security  benefits  is  to  be  laid 
down by the Governing Council of the ECB. 

Some  Articles  of  the  Protocol  on  the  privileges  and  immunities  apply  without  the 
need  for  further  action, e.g. Article  1  (inviolability  of premises). Article 6 (diplomatic 
status  for  official  communications).  Article  7 (laisser-passer).  Several  provisions  of 
the protocol  require secondary  legislation  in order to define  their applicability. 

Article 23 was inserted  by Protocol (No 7) annexed  to the \:,C Treaty amending the Protocol on the 
privileges and immunities of the Huropean Communities. 

22 

One of  these  provisions  is Article  13, according  to which  officials  and  other  servants 
of  the  respective  institutions  and  bodies  are  liable  to  a  lax  for  the  benefit  of  the 
Communities  on  salaries, wages and  emoluments  paid  lo them  by  their  employer,  in 
accordance  with  the conditions and  procedures  laid down  by the Council, acting  on a 
proposal  from  the Commission. 

The purpose of this draft  Proposal  is to include the ECB instead  of the EMI  in the list 
of  institutions and  bodies  whose officials  are  liable  lo a Community  tax according  to 
the conditions  and  procedures  laid  down  by the  Council.  The legislative  action  to be 
undertaken  is to replace Article  12a of Regulation  N° 260/68  by a new provision. The 
amended  Regulation  shall  enter  into  force  on  the day  on  which  the establishment  of 
ihe ECB becomes  effective. 

Comments on Article  1 

This  Article  extends  the  coverage  of  the  Council  Regulation  which  determines  the 
conditions  and  procedures  for  applying  the  Community  tax  (of  the  staff  of  the 
European  Communities,  the  European  Investment  Bank,  the  European  Investment 
fund  and,  until  the  date  when  it  goes  into  liquidation,  the  European  Monetary 
Institute)  so that  the  Regulation  includes  members of the Governing  Council  and  the 
General  Council of the ECB as well as its staff and the recipients of pensions. 

The  situation  of  the  ECB  is  similar  to  that  of  the  EMI.  Neither  are  Community 
institutions  in  the  sense  of  Article  4  of  the  Treaty  establishing  the  European 
Community,  but  both  enjoy 
immunities  of  the  European 
the  privileges  and 
Communities.  Therefore  the  provisions  for  the  EMI  have  served  as  a  model  for  the 
inclusion of the ECB in the Community  lax scheme. 

According  lo  Article  109  1(2)  EC,  the  EMI  will  go  into  liquidation  upon  the 
establishment  of the  ECB. According  to Article  23 of  the  EMI  Statute, all  assets and 
liabilities of the EMI will then pass automatically  to the ECB. Therefore  the provision 
on the EMI  in Council  Regulation  No 260/68 can  be replaced  by the provision  on the 
ECB. 

23 

Proposal for a Council  Regulation (EC, Euratom, ECSQamending Regulation 
(EEC, Euratom, ECSC) No. 260/68 which lays down the conditions 
and procedure for applying the tax for the benefit of the European Communities. 

THE: COUNCIL OF TUT: EUROPEAN  UNION, 

^8 

| o o S&  C  CM  S  ) 

Having  regard  to the 'Treaty  establishing  a Single  Council  and  a  Single  Commission 
of the European Communities, 

Having  regard  to  the  Protocol  on  the  Privileges  and  Immunities  of  the  European 
Communities, and in particular Articles  13 and 23 thereof, 

I laving regard to the proposal  from  the Commission, 

I laving regard to the opinion of the European  Parliament, 

I laving regard to the opinion of the European  Monetary  Institute, 

( I )  Whereas the European Central  Bank, hereafter  referred  lo as 'the  ECB\  will be 

established as soon as its Executive Board  is appointed; 

(2)  Whereas it is appropriate to extend  the application  of the tax  for the benefit  of 
the European Communities, on the terms and in accordance with the procedure 
laid  down  in  Regulation  (EEC,  Euratom,  ECSC1) No. 260/68,7 to the salaries, 
wages  and  emoluments  of  the  members  of  the  Governing  Council  and  the 
General  Council  of  the  European  Central  Bank  and  the  staff  of  that  Bank; 
whereas  the  application  of  this  tax  to  the  European  Monetary  Institute 
becomes irrelevant when the Institute goes into liquidation, 

I IAS ADOPTED IHE  FOLLOWING  REGULATION 

Article  J 

Article  12a  of  Regulation  (EEC,  Euratom,  ECSC)  No. 260/68  is  replaced  by  the 
following  text: 

'Article  12a 

This  Regulation  shall  apply  to  the  members  of  the  Governing  Council  and  of  the 
General  Council  of  the  European  Central  Bank,  to  members  of  its  staff  and  to 
recipients  of  the  pensions  paid  by  the  Bank  who  are  included  in  the  categories 
determined by the Council pursuant to the first paragraph of Article  16 of the Protocol 
on  Privileges and  Immunities,  with  regard to salaries,  wages and  emoluments  and  to 
disability, retirement and survivors' pensions paid by the  Bank/ 

7  O.I L 56 of  4.3.1968,  pp 8-10 

24 

Article  2 

This  Regulation  shall  enter  into  force  on  the  day  on  which  the  establishment  of  the 
European Central  Bank  becomes  effective. 

This  Regulation  shall  be  binding  in  its entirely  and  directly  applicable  in all  Member 
Stales. 

)one at  Brussels, 

Tor the Council 
The  President 

25 

Proposal fora  Council  Regulation (Euratom, ECSC, EC)amcnding  Regulation 
(Euratom, ECSC, EEC) No. 549/69 determining the 
categories of officials  and other servants of the European Communities 
to whom the provisions of Article  12, the second  paragraph 
of Article  13 and Article  14 of the Protocol on the 
Privileges and Immunities of the Communities apply 

EXPLANATORY MEMORANDUM 

Stage  three  of  Economic  and  Monetary  Union  will  begin  on  1 January  1999.  The 
European  Central  Bank  will  be  established  following  the  confirmation  by  Heads  of 
State or Government according to Article  109 j(4)  EC as to which countries  fulfil  the 
necessary  conditions  for  the  adoption  of  a  single  currency.  The  Commission  is 
presenting  draft  secondary  legislation  concerning  the  practical  functioning  of  the 
European System of Central  Banks and the European Central  Bank. 

General  considerations 

According  lo Article 40 of the Statute of the  European  System  of Central  Banks and 
Ihe  European  Central  Bank  (ESCB  Statute), the  ECB shall  enjoy  in  the  territories  of 
the  Member  Stales  such  privileges  and  immunities  as  are  necessary  for  the 
performance  of  its  tasks,  under  the  conditions  laid  down  in  the  Protocol  on  the 
privileges and immunities of the European Communities. 

According  to  Article  23  of  the  Protocol  on  the  privileges  and  immunities,8  the 
Protocol on Privileges and Immunities is applicable to : 

- the ECB as a body; 

- the members of the Governing Council of the ECB; 

- Ihe members of the General Council of the ECB; 

- the members of the ECB staff. 

This  means  that  all  Articles  in  the  Protocol  on  the  privileges  and  immunities  are 
directly  applicable  to the  ECB, with  the exception  of Article  15 which  stipulates  that 
the Council  (of  Ministers) determines  the scheme of  social  security  benefits.  As part 
of  the  employment  conditions,  the  scheme  of  social  security  benefits  is  to  be  laid 
down by the Governing Council of the ECB. 

Some  Articles  of  the  Protocol  on  the  privileges  and  immunities  apply  without  the 
need  for further  action, e.g. Article  1  (inviolability  of premises). Article 6 (diplomatic 

Article 23 was inserted  by Protocol (No 7) annexed to the EC Treaty  amending the Protocol on the 
privileges and  immunities of the European  Communities. 

26 

status  for  official  communications),  Article  7  (laisscr-passer).  Several  provisions  of 
the protocol  require secondary  legislation in order to define  their applicability. 

Among  such  provisions  are  Articles  12,  13 (2)  and  14 which  stipulate  that  officials 
and  other  servants  are  in  certain  respects  immune  from  legal  proceedings,  arc  not 
subject  lo  formalities  for  the  registration  of  aliens,  have  Ihe  right  lo  import  free  of 
duty  certain  personal  equipment,  and  which  specify  rules  for  the  national  tax  regime 
to which they are subject  (for taxes other than those on salaries). According to Article 
16, the Council  shall determine  the categories of officials  and other servants to whom 
these provisions shall apply. 

The purpose of this draft  Proposal  is to include the ECB instead  of the EMI  in the list 
of  institutions  or  bodies  to  whom  Council  Regulation  No  549/69  applies.  The 
amended  Regulation  shall  enter  into  force  on  the  day  on  which  the  establishment  of 
the ECB becomes  effective. 

Comments on Article  1 

This  Article  extends  the  coverage  of  the  Council  Regulation  which  determines 
categories  of  officials  and  other  servants  to  whom  certain  privileges  and  immunities 
apply  (staff  of  the  European  Communities,  the  European  Investment  Bank,  the 
European  Investment  fund  and,  until  the  date  when  it  goes  into  liquidation,  the 
European  Monetary  Institute)  so  that  the  Regulation  includes  the  staff  and  the 
recipients of pensions of the ECB. 

The  situation  of  the  ECB  is  similar  to  that  of  the  EMI.  Neither  are  Community 
institutions  in  the  sense  of  Article  4  of  the  Treaty  establishing  the  European 
Community  but  both  enjoy 
immunities  of  the  European 
the  privileges  and 
Communities.  Therefore  the  provisions  for  the  EMI  have  served  as  a  model  for  the 
inclusion oflhe  ECB in Regulation  No 549/69. 

According  to  Article  109  1(2)  EX1,  the  EMI  will  go  into  liquidation  upon  the 
establishment  oflhe  ECB. According  lo Article  23 of  the  EMI  Statute, all  assets and 
liabilities oflhe  LvMI will then pass automatically  to the ECB.  Therefore  the provision 
on  the  EMI  in Council  Regulation  No 549/69can  be replaced  by the provision  on the 
ECU. 

27 

Proposal for a Council Regulation (Euratom, ECSC, EQamending Regulation 
(Euratom, ECSC, EEC) No. 549/69 determining the categories of officials  and 
other servants of the European Communities to whom the provisions of Article 
12, the second paragraph of Article  13 and Article  14 of the Protocol on the 
Privileges and Immunities of the Communities apply 

NIECOUNCILOETIIEEUROPEAN  UNION, 

3  Ô  |0  O  5  9  C  C_N> ^  1 

I laving regard  to the Treaty establishing a Single Council  and a Single Commission 
of the European Communities, 

I laving regard to the Protocol on the Privileges and  Immunities of the European 
Communities, and in particular Article  16 and Article 23 thereof. 

Having regard to the proposal from the Commission, 

1 laving regard to the opinion of the European  Parliament, 

I laving regard to the opinion of the European Monetary  Institute, 

1 laving regard to the opinion of the Court of Justice, 

I laving regard to the opinion of the Court of Auditors, 

( I )  Whereas the European  Central  Bank, hereafter  referred  to as 'the  ECB\  will  be 

established as soon as its Executive Board  is appointed; 

(2)  Whereas  it  is  appropriate  to  extend  to  the  European  Central  Bank  the 
application  of  Council  Regulation  (Euratom,  ECSC,  EEC)  No. 549/69 
determining  the  categories  of  officials  and  other  servants  of  the  European 
Communities to whom certain provisions of the Protocol  on the Privileges and 
Immunities of the Communities apply, in order to ensure  that the members of 
the  staff  of  the  European  Central  Bank,  in  view  of  their  duties  and 
responsibilities  and  of  their  particular  situation,  benefit  from  the  same 
privileges, immunities and  facilities, 

I IAS ADOPTED THE FOLLOWING  REGULATION 

Article  I 

Article  4a  of  Regulation  (Euratom,  ECSC,  EEC)  No. 549/69  is  replaced  by  the 
following  text: 
'Article 4a 

Without  prejudice  to  Article  23 of the  Protocol  on  Privileges  and  Immunities  of  the 
European Communities with regard to the members of the Governing Council and  of 
the  General  Council  of  the  European  Central  Bank,  the  privileges  and  immunities 
provided  for  in Article  12, in the second  paragraph  of Article  13 and  in Article  14 of 

28 

the  Protocol  shall  apply  under the same conditions  and within  the same  limits as those 
laid down  in Articles  1, 2 and 3 of this  Regulation  to : 

-  staff of the European Central  Bank; 

persons receiving disability,  retirement or survivors'  pensions  paid by the 
European Central  Bank/ 

Article  2 

This  Regulation  shall  enter  into  force  on  the  day  on  which  the  establishment  of  the 
European Central  Bank  becomes  effective. 

This  Regulation  shall  be  binding  in  its entirety  and  directly  applicable  in all  Member 
Slates. 

Done at Brussels, 

Tor the Council 
The President 

29 

ISSN 0254-1475 

COM(97) 725 final 

DOCUMENTS 

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01  06  09  10 

Catalogue number  :  CB-C0-97-742-EN-C 

ISBN 92-78-29800-X 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg 

3o