Opinion of the European Central Bank of 14 February 2008 at the request of the French Ministry for Economic Affairs, Finance and Employment on a draft order on the application of the Monetary and Financial Code to Saint-Martin and Saint-Barthélemy (CON/2008/8)
Date: 2008-02-14
Institutions: European Central Bank
Subjects: France, Saint Barthélemy, Saint Martin, euro, issuing of currency, money, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 14 February 2008 

at the request of the French Ministry for Economic Affairs, Finance and Employment 

on a draft order on the application of the Monetary and Financial Code to Saint-Martin and Saint-

Barthélemy 

(CON/2008/8) 

Introduction and legal basis 

On 18 December 2007, the European Central Bank (ECB) received a request from the French Ministry 

for  Economic  Affairs,  Finance  and  Employment  for  an  opinion  on  a  draft  order  issued  pursuant  to 

Article 19 of Law No 2007-224 of 21 February 2007 on statutory and institutional measures for overseas 

(hereinafter the ‘draft order’). 

The  ECB’s  competence  to  deliver  an  opinion  is  based  on  Article  105(4)  of  the  Treaty  establishing  the 

European  Community  and  the  first  and  third  indents  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  order  relates  to  currency  matters  and  the  Banque  de  France.  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 draft order 

A  French  organic  law2  (hereinafter  the  ‘Organic  Law’)  has  transformed  Saint-Barthélemy  and  Saint-
Martin, previously two municipalities of the French overseas department of Guadeloupe3, into ‘overseas 
collectivities’4  (hereinafter  the  ‘two  collectivities’).  The  draft  order  introduces  the  legislative  measures 

required to adapt the French Monetary and Financial Code (hereinafter the ‘Code’) following this change 

of status. The draft order inserts a reference to the two collectivities in the provisions of the Code which 

previously only referred to overseas departments. In particular, the provision of the Code concerning the 
territorial scope of issue of euro banknotes5 is amended so as to allow the Banque de France to issue euro 

1  
2  
3  
4  
5  

OJ L 189, 3.7.1998, p. 42.  
Organic Law No 2007-223 of 21 February 2007 (hereinafter the ‘Organic Law’). 
The department of Guadeloupe is governed by Article 73 of the French Constitution. 
Governed by Article 74 of the French Constitution. 
Article L.141-5 of the Code, as amended. 

 
 
 
 
 
                                                 
banknotes as legal tender in the two collectivities. In addition, another amendment of the Code6 aims at 

confirming that the monetary regime for the two collectivities remains unchanged and that the Banque de 

France  remains  competent  in  the  two  collectivities  to  carry  out  the  tasks  entrusted  to  it  by  virtue  of  its 

membership  of  the  European  System  of  Central  Banks.  The  Institut  d’Émission  des  Départements 

d’Outre-Mer continues to act in the two collectivities in the name, on behalf of and under the authority of 

the Banque de France. 

2. 

General observations 

2.1  The  explanatory  memorandum  to  the  draft  order7  states  that  ‘in  the  absence  of  a  decision  by  the 

European  authorities  to  include  [the  two  collectivities]  in  the  OCTs  [i.e.  overseas  countries  and 
territories  enjoying  a  special  ‘association’  status8],  they  continue  to  be  governed  by  Community 

law.’  The  ECB  also  understands  that  the  two  collectivities,  despite  their  change  of  status  under 

French  law  and  as  long  as  they  do  not become  OCTs,  will  continue  to  be  an  integral  part  of  the 

Community.  Thus,  they  will  continue  to  be  governed  by  Community  law,  including  directly 

applicable Community legal acts such as Council Regulation (EC) No 974/98 of 3 May 1998 on the 
introduction of the euro9. Moreover, the ECB is aware that following the change to the status of the 

two collectivities, French law, and in particular the Code and its provisions transposing Community 
legislation,  continues  to  apply  automatically10  in  the  two  collectivities11.  The  ECB  therefore 

understands that the change to the status of the two collectivities under French law does not affect 

the monetary regime applicable to them. 

2.2  The ECB notes in this context that the Treaty of Lisbon amending the Treaty on European Union 

and  the  Treaty  establishing  the  European  Community,  which  was  signed  on  13  December  2007, 

replaces the words ‘the French overseas departments’ currently used in Article 299(2) of the Treaty 
by  ‘Guadeloupe,  French  Guiana,  Martinique,  Réunion,  Saint-Barthélemy,  Saint-Martin’12.  The 

ECB welcomes this clarification, which confirms that the two collectivities will remain subject to 
Union law13 once the Treaty of Lisbon has entered into force following its ratification. 

2.3 

It cannot be excluded that in future either or both of the two collectivities will ask for a change of 

status under French and Union law in order to obtain OCT status. The ECB understands that, to this 

date, such a change of status is foreseen in the Organic Law only for Saint-Barthélemy and that no 

formal step has been taken in this direction so far. Such change of status under Union law will be 

6  
7  
8  
9  
10  

11  
12  
13  

Article L.711-1 of the Code, as amended. 
Explanatory memorandum to the draft order, p. 1. 
Provided for under Part Four of the Treaty. 
OJ L 139, 11.5.1998, p. 1. 
Pursuant  to  Articles  LO  6213-1  and  LO  6313-1  of  the  French  General  Code  for  Regional  and  Local  Authorities, 
respectively. 
As was the case when the two collectivities were part of Guadeloupe. 
New Article 311a of the Treaty on the Functioning of the European Union. 
Under the Treaty of Lisbon, the Community ceases to exist, hence the use of the expression ‘Union law’. 

2 

 
 
                                                 
facilitated  by  the  Treaty  of  Lisbon,  once  it  enters  into  force  following  its  ratification,  as  a  new 

provision is added, pursuant to which ‘the European Council may, on the initiative of the Member 

State  concerned,  adopt  a  decision  amending  the  status,  with  regard  to  the  Union,  of  a  Danish, 
French  or  Netherlands  country  or  territory14.’  The  ECB  emphasises  that,  should  OCT  status  be 

considered in future for either or both of the two collectivities, the issue of the applicable monetary 

regime  would  have  to  be  addressed.  In  particular,  the  need  for  a  specific  decision  regarding  the 

monetary regime would have to be considered in view of the fact that the collectivity in question 

would cease to belong to the Union and to be subject to its laws. 

Done at Frankfurt am Main, 14 February 2008. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

14  

The  European  Council  shall  act  unanimously  after  consulting  the  Commission;  new  Article  311a  of  the  Treaty  on  the 
Functioning of the European Union. 

3