Opinion of the European Central Bank of 6 October 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 the Banca d’Italia (CON/2005/34)
Date: 2005-10-06
Institutions: European Central Bank
Subjects: Italy, central bank, institutional activity, national law, share, shareholder

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 6 October 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 the Banca d’Italia 

(CON/2005/34) 

1. 

On  13  September  2005  the  European  Central  Bank  (ECB)  received  a  request  from  the  Italian 

Ministry of Economy and Finance for an opinion on a draft article that will be inserted in the draft 

law on the protection of savings (hereinafter the ‘draft article’).  

2. 

The ECB’s competence to deliver an opinion is based on 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 article contains provisions concerning 

a national central bank (NCB). 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. 

3. 

The  ECB  notes  that  in  2004  it  already  provided  an  opinion  on  a  previous  draft  of  this  law  and 

welcomes the Italian Government’s decision to consult the ECB again on this new draft article. It 

stands ready to comment on any further amendment to the draft law, whether concerning the Banca 

d’Italia or any other matter in which the ECB has a specific interest.  

4. 

Paragraph  1  of  the  draft  article  mirrors  Article  14.3  of  the  Statute  of  the  European  System  of 

Central Banks and of the European Central Bank (hereinafter the ‘Statute’), pursuant to which the 

NCBs are an integral part of the ESCB and act in accordance with the guidelines and instructions 

of the ECB. The ECB welcomes this paragraph, which is of declaratory value only.  

5. 

Paragraph 2 of the draft article stipulates that the Banca d’Italia is a body governed by public law 

and  the  State  holds  the  majority  of  the  shares  in  its  subscribed  capital,  while  only  other  public 

bodies may hold the remainder. Currently private commercial banks hold a large part of the shares. 

Therefore, pursuant to the paragraph 9 of the draft article, a Government regulation adopted within 

three  months  from  entry  into  force  of  the  law  will  specify  this  provision’s  method  of 

implementation. The Fund for the amortisation of government bonds (Fondo per l’ammortamento 

dei titoli di Stato) will bear the costs arising from this operation, pursuant to paragraph 10 of the 

draft article.  

1 

OJ L 189, 3.7.1998, p. 42. 

 
 
 
                                                      
6. 

The  ECB  notes  that  the  Treaty  establishing  the  European  Community  is  silent  on  the  ownership 

structure  and  internal  governance  of  NCBs,  which  are  therefore  left  to  each  Member  State’s 

autonomous determination. However, the ECB has the following comments on the compatibility of 

both  the  financing  of  the  planned  transfer  of  the  Banca  d’Italia’s  shares  to  the  State  and  of  the 

Banca d’Italia overall structure with the principles established by the Treaty.  

7. 

First,  the  ECB  notes  that,  pursuant  to  paragraph  9  of  the  draft  article,  a  Government  regulation 

adopted  within  three  months  from  entry  into  force  of  the  law  will  specify  the  procedure  for  the 

Banca  d’Italia’s  shares  to  be  transferred.  The  Fund  for  the  amortisation  of  government  bonds 

(Fondo  per  l’ammortamento  dei  titoli  di Stato)  will  bear  the  costs  arising  from  this  operation, 

pursuant  to  paragraph  10  of  the  draft  article.  The  voting  rights  pertaining  to  the  shares  in  the 

subscribed capital will be automatically suspended and exercised by the State until they have been 

transferred  to  the  State  and  the  other  public  bodies.  In  this  respect,  the  compatibility  with 

international conventions and Community law of such automatic attribution of the voting rights to 

the State pending the transfer of the shares should be carefully assessed. 

8. 

As  there  are  currently  no  indications  of  the  modalities  of  such  transfer,  the  consistency  of  this 

operation with the Treaty provisions on monetary financing (Article 101 of the Treaty) and fiscal 

policies  (Article 104(2)(b)  of  the  Treaty)  cannot  be  ascertained  at  this  stage.  Therefore  the  ECB 

stands ready to provide an assessment in a future opinion on a draft Government regulation on the 

transfer of shares.  

9. 

Second,  the  ECB  notes  that  Article  108  of  the  Treaty  requires  independence  for  NCBs  when 

exercising the powers and carrying out the tasks and duties conferred upon them by the Treaty and 

the  Statute.  This  entails  the  absence  both  of  shareholders’  influence  on  decision-making  in  these 

fields and of a conflict of interests. In this respect, the ECB welcomes the proposed change and the 

confirmation in paragraph 3 of the draft article that primary and secondary Italian legislation will 

ensure the independence of the Banca d’Italia and of the members of its decision-making bodies. 

Additionally,  pursuant  to  paragraph  8  of  the  draft  article,  the  implementation  of  the  draft  article 

will determine whether the Banca d’Italia’s Statutes need to be modified within two months from 

entry into force of the law. The ECB highlights that the amendments to be introduced in the Banca 

d’Italia’s Statutes must respect the Treaty and in particular continue to safeguard central banking 

independence,  with  particular  regard  to  the  aspects  mentioned  below,  and  is  ready  to  provide  its 

opinion on the amendments to the Statutes.  

10.  Once the draft article has been fully implemented, the State will be the majority and perhaps almost 

the  sole  shareholder.  According  to  the  Statutes,  the  shareholders  currently  appoint,  at  separate 

meetings at the Banca d’Italia’s main branches, the 13 members of the Board of Directors, one for 

each main branch. In the light of the changes to the shareholder’s composition introduced by the 

draft  article,  it  would  be  helpful  to  clarify  and  perhaps  simplify  the  election  procedure  for  these 

members. Moreover, the change in the shareholders’ structure has two consequences. First, the role 

of the Board of Directors will need to be reviewed, including in relation to the procedure for the 

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appointment and dismissal of the Governor and the other members of the Directorate, consistently 

with  Article  14.2  of  the  Statute.  Second,  the  Banca  d’Italia’s  financial  independence,  which  is 

currently guaranteed by the provisions of the Statutes on the independence of the members of the 

Board  of  Directors  and  on  the  limits  to  the  distribution  of  profits  to  shareholders,  needs  to  be 

preserved. Therefore, Article 54 of the Statute needs to be modified to ensure that, as in the current 

situation,  a  sufficient  amount  of  ordinary  reserves  and,  if  needed,  extraordinary  reserves,  can  be 

constituted to ensure that the Banca d’Italia has the financial means to perform its statutory tasks. 

11.  The ECB notes that paragraph 7 of the draft article provides that the Governor will have a seven-

year  term  of  office,  without  possibility  of  renewal.  The  draft  article  complies  with  the  Treaty. 

However, the ECB notes that the Treaty provisions protecting the Governor’s security of tenure of 

office  also  apply  to  other  members  of  the  decision-making  bodies  of  NCBs  involved  in  the 

performance of ESCB-related tasks. This applies in particular where such other members may have 

to deputise for the Governor. It is noted that there are currently no limits to the mandate of the other 

members of the Directorate. In light of the powers attributed to the Directorate, the introduction of 

a similarly limited  mandate would be advisable. Any such change will of course need to comply 

with the Treaty.  

12.  Furthermore, the ECB notes that the draft law is silent on the application of the new rules to the 
Banca d’Italia’s current Governor. In this context it would like to reiterate its previous opinion2 that 

any transitional regime would need to be compatible with Article 14.2 of the Statute. 

13.  According  to  paragraph  4  of  the  draft  article,  the  Banca  d’Italia  must  respect  the  principle  of 

transparency in carrying out its functions, in particular that of supervision, and will report every six 

months to the Italian Parliament and the Government on its activities. The ECB understands that 

ESCB activities are excluded from this reporting obligation. However, an express mention of this 

exclusion  would be  welcome,  in  particular  to  ensure  the  respect  of  the obligation of  professional 

secrecy enshrined in Article 38.1 of the Statute. The same principle should apply to the minutes of 

the meetings of the collegial bodies, mentioned in paragraph 5 of the draft article. 

14.  The ECB welcomes the draft article’s intention of increasing the transparency of the exercise of the 

functions  assigned  to  the  Banca  d’Italia.  The  ECB  notes  that  paragraph  6  of  the  draft  article 

requires  the  Governor  to  consult  the  Directorate  on  measures  related  to  non-ESCB  tasks  falling 

within the Governor’s competence. However, in light of the widespread practice in the European 

Union for decision-making in supervisory matters a modification of the current draft to allow for 

collegiality would be desirable.  

2  

ECB Opinion CON/2004/16 of 11 May 2004 at the request of the Italian Ministry of Economy and Finance on a draft law 
on the protection of savings. 

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15.  This opinion will be published on the ECB’s website.  

Done at Athens, 6 October 2005. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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