Opinion of the European Central Bank of 25 August 2006 at the request of the Banca d’Italia on the amended Statute of the Banca d’Italia (CON/2006/44)
Date: 2006-08-25
Institutions: European Central Bank
Subjects: Italy, appointment of staff, audit, central bank, foreign-exchange reserves, national law, share

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 25 August 2006 

at the request of the Banca d’Italia 

on the amended Statute of the Banca d’Italia  

(CON/2006/44) 

Introduction and legal basis 

On 7 August 2006 the European Central Bank (ECB) received a request from the Banca d’Italia for an 

opinion on its amended Statute (hereinafter the ‘amended Statute’). 

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 amended Statute relates to 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. 

1.  

Purpose of the amended Statute 

The revision of the Banca d’Italia’s Statute is required by the first sentence of Article 19(9) of Law 

N. 262 of 28 December 2005 on the protection of savings (hereinafter ‘Law 262/05’), according to 

which the Statute must be adjusted to take account of paragraphs 1 to 7 of the same article, within 

two months of entry into force of the law. The Italian Government consulted the ECB in 2004 on 

draft  law  262/05,  which  broadly  modified  the  institutional  framework  for  the  regulation  and 

supervision  of  financial  markets  and  intermediaries  in  Italy.  Following  the  first  opinion  on  this 
matter2,  the  ECB  was  consulted  twice  in  2005  on  certain  amendments  to  Law  262/05  regarding 
specifically Article 19 thereof, dedicated to the Banca d’Italia3.  

1  
2  

3 

OJ L 189, 3.7.1998, p. 42.  
See ECB Opinion CON/2004/16 of 11 May 2004 at the request of the Italian Ministry of Economic Affairs and Finance 
on a draft law on the protection of savings. 
See ECB Opinions CON/2005/34 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  and  CON/2005/58  of 
23 December 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. 

 
 
 
 
 
                                                 
2. 

General comments  

2.1  The ECB notes with satisfaction that most of the comments made in previous consultations have 

been endorsed.  

2.2 

In particular, the ECB welcomes:  

- 

Article 17 of the amended Statute, expressly providing that the Banca d’Italia’s Governor is 

appointed,  reappointed  and  removed  in  accordance  with  Article  14.2  of  the  Statute  of 

European  System  of  Central  Banks  and  of  the  European  Central  Bank  (hereinafter  the 
‘ESCB Statute’)4, and 

- 

Article 21 of the amended Statute, expressly excluding decisions falling under the ESCB’s 

authority  from  the  measures  of  external  significance  that  the  Directorate  may  adopt  in 

exercising the public functions entrusted by law to the Banca d’Italia or to its Governor, to 
fulfil the former’s institutional purposes5, and  

- 

Article  22  of  the  amended  Statute  introducing  the  principle  of  collegiality  for  the 

Directorate’s meetings, according to which its decisions are to be adopted by a majority of 
the votes of those present6. 

2.3 

It is nevertheless considered that some of the provisions of the amended Statute, in connection with 
which  previous  ECB  opinions  had  already  stressed  the  need  for  more  clarity  and  transparency7, 

might benefit from further simplification in view of the changes in the shareholders’ composition 

and the Banca d’Italia’s new structure. These provisions, in particular, relate to the way in which 

shareholders’ meetings are organised vis-à-vis the subdivisions in the Banca d’Italia’s branches and 

the related procedure for the appointment of the Board of Directors’ members. 

3. 

Specific comments 

Transfer of the Banca d’Italia’s shares  

3.1  According to Article 3 of the amended Statute, the Banca d’Italia’s shares will be transferred only 

with  the  Board  of  Directors’  prior  consent,  preserving  at  all  times  the  Banca  d’Italia’s 

independence  and  ensuring  a  balanced  distribution  of  the  shares.  In  order  to  increase  this 

provision’s  effectiveness  as  regards  the  safeguard  of  the  Banca  d’Italia’s  independence,  the  ECB 

would  recommend  introducing  additional  safeguards,  including  the  Directorate’s  involvement,  at 

least  in  a  consultative  capacity.  Moreover,  regarding  the  Banca  d’Italia’s  ownership  structure, 

which is governed by law, in its previous opinions on this matter the ECB has already expressed its 

concern  that  transfers  must  comply  with  the  principles  established  by  the  Treaty  as  regards 

4  
5  
6  
7  

See paragraph 10 of ECB Opinion CON/2005/34 and paragraph 4 of ECB Opinion CON/2005/58. 
See paragraph 13 of ECB Opinion CON/2005/34. 
See paragraph 14 of ECB Opinion CON/2005/34 and paragraph 3 of ECB Opinion CON/2005/58. 
See paragraph 10 of ECB Opinion CON/2005/34. 

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monetary  financing  and  fiscal  policies8.  The  ECB  is  aware  that  this  provision  is  transitional  and 

stands ready to provide a further assessment of its compliance with these principles in the future. 

Board of Auditors 

3.2  Once  the  amended  Statute  enters  into  force,  a  new  auditing  and  controlling  structure  will  be  in 

place to strengthen the Banca d’Italia’s corporate governance. This will be shared by three entities 

as  follows.  The  first  is  the  Board  of  Directors  which  will  henceforth  be  in  charge  of  the  Banca 

d’Italia’s management supervision and internal control, in compliance with the ESCB Statute and 

the provisions adopted by the ECB (Article 18 of the amended Statute). The second is the Board of 

Auditors, which will not only exercise control on the legality of the Banca d’Italia’s acts, but will 

also conduct accounting checks, examine accounts and express its opinion on the annual dividend 

(Article  19  of  the  amended  Statute).  While  the  attribution  of  these  new  tasks  to  the  Board  of 

Auditors is, in principle, compatible with central bank independence, it should be noted that such 

controlling activities should be subject to safeguards. Such safeguards should, in particular, include 

guarantees  that  the  Board  of  Auditors’  activities  will  not  interfere  with  the  review  of  the  ESCB-

related  tasks  of  the  Banca  d’Italia  to  be  undertaken  by  the  Banca  d’Italia’s  independent  external 
auditor and that these activities may not jeopardise its independence9. The third is the independent 

external auditor who will audit the accounts of the Banca d’Italia, in accordance with Article 27 of 

the Statute (Article 38 of the amended Statute). 

Directorate 

3.3  The ECB takes note that Articles 25 and 26 of the amended Statute provide that members of the 

Directorate may have to deputise for the Governor in case both the Governor (Article 25) and the 

Director General (Article 26) are absent or unable to act. Therefore, the ECB would suggest that 

Article  17  of  the  amended  Statute  also  contains  an  explicit  provision  concerning  the  grounds  for 

dismissal of members of the Directorate other than the Governor, comparable to those applicable to 

the Governor, under Article 14.2 of the ESCB Statute. 

Allocation of profits and reserve  

3.4  Article 39 of the amended Statute provides that the Board of Directors determines the allocation to 

be  made  in  the  ordinary  reserve  for  an  amount  of  up  to  20%  of  the  net  profit  for  the  year.  The 

remaining sum will be transferred to the State. 

3.5  The ECB refers to its previous opinion concerning the importance of the Banca d’Italia’s financial 

independence and, in particular, the need to maintain a sufficient amount of ordinary reserves, and, 

8  
9 

See paragraph 5 of ECB Opinion CON/2005/58. 
See  paragraphs  5  to  7  of  ECB  Opinion  CON/2002/22  of  2  September  2002  at  the  request  of  the  Swedish  Ministry  of 
Finance on a draft legislative proposal establishing the National Audit, including proposed amendments to the Sveriges 
Riksbank Act (1988:1385), paragraph 2.3 of ECB Opinion CON/2006/4 of 27 January 2006 at the request of the Central 
Bank of Cyprus on a draft law amending the Central Bank of Cyprus Laws of 2002 and 2003, and paragraph 2.3 of ECB 
Opinion CON/2006/33 of 28 June 2006 at the request of the Cypriot Ministry of Finance on a draft provision amending 
the draft law amending the Central Bank of Cyprus Laws of 2002 and 2003 and ECB Convergence Report, May 2006, 
p. 66, available at http://www.ecb.int. 

3 

                                                 
if  needed,  also  extraordinary  reserves  to  ensure  that  it  has  the  financial  means  necessary  for  the 
performance of its statutory tasks10.  

Transitional provisions 

3.6  As  the  ECB  noted  in  an  earlier  opinion11,  a  transitional  regime  should  be  compatible  with 

Article 14.2 of the ESCB Statute.  

3.7 

In  general,  the  principle  of  personal  independence,  as  laid  down  in  Article  14.2  of  the  ESCB 
Statute12, also requires that the same rules for the security of tenure of the office of governor apply 

to  other  members  of  NCB  decision-making  bodies  involved  in  the  performance  of  ESCB-related 

tasks.  This  applies  in  particular  where  a  governor  is  first  among  equals  between  colleagues  with 

equivalent  voting  rights  or  where  such  other  members  may  have  to  deputise  for  the  Governor. 

Thus, any NCB reorganisation affecting the tenure of office of the members of its decision-making 

bodies  involved  in  the  performance  of  ESCB-related  tasks  should  foresee  that  they  continue  to 

perform their duties until the end of their term for which they have been appointed, in accordance 
with Article 14.2 of the Statute13.  

3.8  The  transitional  provisions  of  the  amended  Statute  provide  that  the  members  of  the  Board  of 
Directors  and  the  Board  of  Auditors14,  as  well  as  the  councillors  of  local  branches  of  the  Banca 
d’Italia15, remain in office until the completion of their current term of office and raise no issue of 

personal independence. 

3.9  Concerning the transitional regime for all the Directorate members in office on 12 January 2006, 

other than the Governor, the amended Statute provides for expiry of their appointment precisely on 

the  completion  of  12  years  as  members  of  the  Directorate,  thereby  also  coinciding  with  the 

maximum mandate length in Article 26 of the amended Statute. The ECB takes note in particular of 

the following aspects: (i) the members of the Directorate specifically affected by Article 48 of the 

amended  Statute  have  been  appointed  for  an  indefinite  term  of  office  and  are  subject  to  no 

retirement age requirement; and (ii) Article 48 of the amended Statute aims to ensure a transition to 

an entirely new institutional and organisational set up for the Banca d’Italia, and is only a one-off 

arrangement. In the light of these considerations, the ECB has no comments on Article 48 of the 

amended Statute. 

10  

11 
12  

13  

14  
15  

ECB Convergence Report, May 2006, 3.1.4, ‘Distribution of profits, NCBs’ capital and financial provisions’, p. 66. See 
also paragraph 10 of ECB Opinion CON/2005/34.  
Paragraph 8 of ECB Opinion CON/2004/16. 
As  further  explained  in  the  ECB  Convergence  Reports  of  2004  and  2006  (October  2004,  2.3.1,  ‘Central  bank 
independence’, p. 27 and May 2006, 3.1.3, ‘Personal independence’, p. 64). 
ECB Opinion CON/2004/16, ECB Opinion CON/2004/35 of 4 November 2004 at the request of the Hungarian Ministry 
of Finance on a draft law amending the Law on Magyar Nemzeti Bank and ECB Opinion CON/2006/32 of 22 June 2006 
at the request of the French Senate on a draft law on the Banque de France. 
Article 46 of the amended Statute. 
Article 47 of the amended Statute. 

4 

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

Done at Frankfurt am Main, 25 August 2006. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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