Opinion of the European Central Bank of 9 July 2002 at the request of the Belgian Ministry of Finance on a draft for a new Article 879 of the Companies Code, introduced by the Programme Law, as well as several articles interpreting and amending the Organic Law of the Nationale Bank van België/Banque Nationale de Belgique, introduced by paragraphs 6 to 10 of Article 141 of the draft law on the prudential supervision of the financial sector and financial services (CON/2002/18)
Date: 2002-07-09
Institutions: European Central Bank
Subjects: Belgium, accounting, central bank, foreign-exchange reserves, issuing of currency, national law, private limited company

EN

OPINION OF THE EUROPEAN CENTRAL BANK

of 9 July 2002

at the request of the Belgian Ministry of Finance

on a draft for a new Article 879 of the Companies Code, introduced by the Programme Law,

as well as several articles interpreting and amending the Organic Law of the Nationale Bank van

België/Banque Nationale de Belgique, introduced by paragraphs 6 to 10 of Article 141 of the

draft law on the prudential supervision of the financial sector and financial services

(CON/2002/18)

1. 

On  19  June  2002  the  European  Central  Bank  (ECB)  received  a  request  from  the  Belgian

Ministry of Finance for an opinion concerning a draft for a new Article 879 of the Companies

Code,  introduced  by  the  programme  law,  as  well  as  paragraphs  6  to  10  of  Article  141  of  the

draft  law  on  prudential  supervision  of  the  financial  sector  and  financial  services  (the  ‘draft

law’). The draft provisions clarify the relationship between the specific institutional framework

of the Nationale Bank van België/Banque Nationale de Belgique and the general rules on public

limited  liability  companies,  which  apply  supplementarily  to  the  Nationale  Bank  van

België/Banque Nationale de Belgique.

2. 

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  proposal  contains  provisions

concerning the Nationale Bank van België/Banque Nationale de Belgique. In accordance with

the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, this

opinion has been adopted by the Governing Council of the ECB. 

3. 

The  ECB  welcomes  the  fact  that  Article  141(6)  of  the  draft  law  enhances  legal  certainty  by

explicitly  stating  how  the  supplementary  nature  of  the  provisions  concerning  public  limited

liability  companies  should  be  understood.  It  should  be  noted  that  this  interpretation  of

Article 2(2)  of  the  Organic  Law  on  the  Nationale  Bank  van  België/Banque  Nationale  de

Belgique (the ‘Organic Law’) coincides with the assumptions used by the European Monetary

Institute (EMI)when assessing the compatibility of Belgian legislation, including the statutes of

1 

OJ L 189, 3.7.1990, p. 42.

                                                     
the Nationale Bank van België/Banque Nationale de Belgique, with Community law2. The ECB

recalls that although  Member States are free to subject their national central banks (NCBs) to

either public or private law, the provisions governing the legal status of an NCB – in the present

case  company  law  –  may  not  infringe  the  requirements  of  the  Treaty  or  the  Statute  of  the

European  System  of  Central  Banks  and  of  the  European  Central  Bank.  In  the  opinion  of  the

ECB, any other interpretation of Article 2(2) would not be compatible with the requirements of

the Treaty and the Statute, in particular those concerning independence contained in Article 108

of the Treaty and Article 7 of the Statute. In this context, the ECB also takes note of the new

article introduced into the Companies Code which deals with the entering of the Nationale Bank

van België/Banque Nationale de Belgique on the list of companies the shares of which may be

offered to the public. In the ECB’s opinion, the provision concerning the inclusion of an explicit

comment  in  this  list  drawing  the  public’s  attention  to  the  fact  that  the  provisions  concerning

limited  liability  companies  apply  to  the  Bank  only  supplementarily  rightly  underlines  the

specific  institutional  framework  of  the  Nationale  Bank  van  België/Banque  Nationale  de

Belgique.

4. 

Article 141(7) of the draft law introduces an Article 9a into the Organic Law which confirms the

legal  status  of  the  official  foreign  reserves  held  by  the  Nationale  Bank  van  België/Banque

Nationale de Belgique. Article 105(2) of the Treaty states that one of the fundamental tasks of

the  European  System  of  Central  Banks  (ESCB)  is  ‘to  hold  and  manage  the  official  foreign

reserves  of  the  Member  States’.  The  ECB  welcomes  the  fact  that  this  fundamental  task  is

correctly reflected in Belgian legislation by the draft Article 9a of the Organic Law. 

The  new  article  should  however  be  more  explicit  as  to  the  fact  that  the  Belgian  government

cannot  influence  the  management  of  the  official  foreign  reserves  held  by  the  Nationale  Bank

van België/Banque Nationale de Belgique, which is carried out independently by the Nationale

Bank van België/Banque Nationale de Belgique as an integral part of the Eurosystem.

5. 

Article 141(8) of the draft law makes more specific an article which deals with the auditing of

legal entities entrusted with the performance of tasks which do not fall within the domain of the

ESCB.  In  principle  this  provision  does  not  call  for  any  specific  comments  of  the  ECB  as  it

concerns a matter which does not fall within the field of competence of the ECB. However, the

ECB would like to underline that the auditing of such entities must not affect the independence

of the Nationale Bank van België/Banque Nationale de Belgique. Therefore the Nationale Bank

van België/Banque Nationale de Belgique should maintain some form of control over such legal

entities, which should be of a sufficient degree in order for it to safeguard its independence.

2

A copy of the 1998 Convergence Report can be found on http://www.ecb.int/emi/pub/pdf/converg/english.pdf. In the
1997  Convergence  Report  the  EMI  noted  that  ‘General  company  law  is  explicitly  recognised  as  a  supplementary
statutory source’.

2

                                                     
6. 

Article  141(9)  of  the  draft  law  concerns  interpretation  of  a  provision  on  the  right  of  the

Nationale Bank van België/Banque Nationale de Belgique to issue banknotes. The ECB recalls

that, under Article  106(1)  of the Treaty  as  well  as  Article  16  of the  Statute,  the  ECB  and  the

NCBs may issue euro banknotes. Primary Community law has therefore foreseen a system of a

plurality  of  issuers  of  euro  banknotes,  which  has  been  confirmed  by  Article  2  of  Decision

ECB/2001/15 of 6 December 2001 on the issue of euro banknotes. This provides that ‘The ECB

and the  NCBs  shall  issue euro  banknotes’. This  interpretation  of  Article  31(2)  of the  Organic

Law,  which  is  an  explicit  confirmation  of  the  right  to  issue  of  the  Nationale  Bank  van

België/Banque Nationale de Belgique, is fully in line with these provisions of Community law.

This explicit confirmation is welcomed by the ECB as it enhances legal certainty.

7. 

In  the  tenth  and  last  paragraph  of  Article  141  of  the  draft  law,  the  Belgian  legislator  further

clarifies the accounting rules applicable to the Nationale Bank van België/Banque Nationale de

Belgique  by  reinstating  Article  33  of  the  Organic  Law,  which  consists  of  two  separate

paragraphs.  The  first  paragraph  provides  that  the  accounts  of  the  Nationale  Bank  van

België/Banque Nationale de Belgique and, where appropriate, consolidated accounts, ‘shall be

drawn up (1) in accordance with this Law and the binding rules laid down in implementation of

Article 26.4 of the Protocol on the Statute of the European System of Central Banks and of the

European  Central  Bank; (2) for  the  remainder, in  accordance  with  the  rules  laid  down  by  the

Council  of  Regency.  Articles  2  to  4,  6  to  9  and  16  of  the  Law  of  17  July  1975  concerning

company accounts and the decrees implementing them shall be applicable to the Bank with the

exception  of  the  decrees  implementing  Articles  4,  sixth  subparagraph,  and  9(2)’.  The  ECB

welcomes  this  provision,  which  follows  the  recommendation  of  Article  2(2)  of  Guideline

ECB/2000/18 of 1 December 1998 on the legal framework for accounting and reporting in the

European  System  of  Central  Banks  which  states:  ‘In  order  to  achieve  consistency  and

comparability between ESCB and national regimes, it is recommended that NCBs should, to the

extent possible, follow the rules set out in this Guideline for their national reports and accounts.’ 

8. 

The  second  paragraph  of  Article  33  of  the  Organic  Law  further  introduces  the  control  of  the

accounts  of  the  Nationale  Bank  van  België/Banque  Nationale  de  Belgique  by  one  or  more

auditors whose appointment, resignation or dismissal is governed by the Companies Code. The

ECB  underlines  the  importance  of  respecting  the  specific  institutional  framework  of  the

Nationale  Bank  van  België/Banque  Nationale  de  Belgique.  Any  implementation  of  control

mechanisms must take into account that within this framework it is the Council of Regency and

not the General Meeting that approves the annual accounts in accordance with Article 20(4) of

the Organic Law. Such implementation should not negatively affect the good functioning of the

Nationale Bank van België/Banque Nationale de Belgique as an integral part of the ESCB.

3

9. 

The  ECB  confirms  that  it  has  no  objection  to  the  competent  national  authorities  making  this

opinion publicly available at their discretion.

Done at Frankfurt am Main on 9 July 2002.

The President of the ECB

[signed]

Willem F. DUISENBERG

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