Opinion of the European Central Bank of 21 February 2008 at the request of the German Ministry of Finance on a draft law amending the Law on the Deutsche Bundesbank (CON/2008/9)
Date: 2008-02-21
Institutions: European Central Bank
Subjects: Germany, central bank, labour law, national law, staff

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 21 February 2008 

at the request of the German Ministry of Finance 

on a draft law amending the Law on the Deutsche Bundesbank 

(CON/2008/9) 

Introduction and legal basis 

On  9 November 2007  the  European  Central  Bank  (ECB)  received  a  request  from  the  German  Federal 

Ministry  of  Finance  (hereinafter  the  ‘Ministry  of  Finance’)  for  an  opinion  on  a  draft  law  on  the 

reorganisation and modernisation of federal civil service law (hereinafter the ‘draft law’). 

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 law relates to the Deutsche Bundesbank. 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 law 

Article 12  of  the  draft  law  amends  § 31  of  the  Law  on  the  Deutsche  Bundesbank,  which  concerns  the 

legal relationships between the Deutsche Bundesbank and its civil servants, employees and workers. The 

current § 31(4) and (6) of the Law on the Deutsche Bundesbank provides, as an exception to provisions 

on Federal civil servants which generally apply to the civil servants of the Bundesbank, that the Executive 

Board  of  the  Deutsche  Bundesbank  (hereinafter  the  ‘Executive  Board’)  may  regulate  autonomously 

certain features of these relationships concerning, inter alia, the careers of Bundesbank staff by adopting 

Staff  Regulations 

(Personalstatut) 

and  other 

regulations 

(Laufbahn-,  Ausbildungs-  und 

Prüfungsordnungen). These regulations require the approval of the Federal Government (hereinafter the 

‘Government’), or, depending on the aspect being regulated, the agreement of the Ministry of the Interior. 

Under  the  amended  § 31(4)  and  (6)  of  the  Law  on  the  Deutsche  Bundesbank,  the  Government  will  be 

authorised to regulate the abovementioned legal relationships either by adopting regulations itself, or by 

delegating  the  power  to  adopt  regulations  to  the  Executive  Board.  In  the  event  that  the  Government 

1  

OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
                                        
delegates  this  power,  the  regulations  adopted  by  the Executive  Board  will  require  the  agreement  of  the 

Ministry of the Interior alone or in agreement with the Ministry of Finance, as the case may be. 

The  difference  between  the  current  legislation  and  the  proposed  amendments  is  that  under  the  current 

§ 31(4)  and  (6)  of  the  Law  on  the  Deutsche  Bundesbank,  upon  the  approval  of  the  Government,  the 

Executive Board can itself regulate certain matters concerning the Deutsche Bundesbank’s staff, and the 

Government is bound by its previous decisions to approve such regulations. The proposed amendments 

will allow the Government to decide whether to delegate its regulatory power to the Executive Board and, 

if  it  does,  it  will  be  possible  for  it  to  withdraw  the  delegation  at  any  moment.  This  implies  that  the 

Government could indirectly revoke an approval it has given in the past. 

Apart  from  the  abovementioned  amendments,  the  draft  law  also  provides  that  the  Bundesbank’s  Staff 

Regulations  currently  in  force  will  cease  to  apply  after  a  transitional  period,  at  the  latest  on 

31 December 2008.  

2.  General observations  

2.1  The ECB welcomes this consultation request by the Ministry of Finance on the amendments to the 

Law  on  the  Deutsche  Bundesbank.  As  a  matter  of  principle,  any  draft  legislative  provisions 

amending  the  statute  of  a  national  central  bank  (NCB)  should  be  the  subject  of  a  formal 

consultation of the ECB under the third indent of Article 2(1) of Council Decision 98/415/EC. This 

consultation obligation also applies to amendments to special public sector employment regulations 

which only apply to NCB staff. 

2.2  Such  regulations  must  not  impair  the  ability  of  an  NCB  to  employ  and  retain  the  qualified  staff 

necessary  for  the  performance  of  the  tasks  conferred  upon  it  by  the  Treaty,  the  Statute  of  the 

European System of Central Banks (hereinafter the ‘ESCB Statute’) and national legislation in an 

independent manner. The ECB has noted that Member States may not put their NCBs in a position 

where  they  have  insufficient  financial  resources  to  carry  out  their  ESCB-  or  Eurosystem-related 
tasks2. Similarly, an NCB may not be put into a position where it has limited or no control over its 

staff,  or  where  a  government  of  a  Member  State  seeks  to  influence  it  in  the  performance  of  its 
tasks, as has been stressed in various opinions of the ECB in recent years3. 

2.3 

In  this  context,  the  ECB  notes  that  the  amendments  to  the  Law  on  the  Deutsche  Bundesbank, 

according  to  the  draft  law’s  explanatory  memorandum,  are  of  a  technical  nature  and  are  not 

intended 

to  change 

the  substance  of 

the  provisions  applicable 

to 

the  staff  of 

the 

Deutsche Bundesbank.  Furthermore,  the  explanatory  memorandum  stresses  that  the  Government 

intends to make full use of the power to delegate to the Executive Board its power to regulate the 

2  
3  

See ECB Convergence Report 2007, p. 19. 
See  ECB  Convergence  Report  2007,  p.  20,  footnote  7,  referring,  inter  alia,  to  ECB  Opinion  CON/2004/1  of 
20 January 2004 at the request of the Economic Committee of the Finnish Parliament on a draft government proposal to 
amend the Suomen Pankki Act and other related acts, which concerned the reduction of primary capital of the Suomen 
Pankki and a limitation on Suomen Pankki’s right to create financial provisions. 

2 

 
 
 
                                        
legal relationships between the Deutsche Bundesbank and its staff. The ECB is also aware that the 

proposed  amendments  may  be  deemed  necessary  to  make  the  legal  situation  compliant  with  the 
case law of the Federal Administrative Court4. 

2.4  The  ECB  considers  that  there  is  no  need  to  amend  §  31(4)  and  (6)  of  the  Law  on  the 

Deutsche Bundesbank.  The  ECB  is  concerned  about  the  Government’s  discretionary  powers  to 

grant  and  withdraw  the  delegation,  and  to  regulate  directly  the  legal  relationships  of  the 

Deutsche Bundesbank with all categories of staff as well as the careers of such staff. Although the 

Government’s  approval  is  currently  required  for  the  adoption  of  regulations  by  the  Executive 

Board,  the  ECB  considers  that  the  proposed  amendments  will  give  the  Government  increased 

discretion  in  this  context,  which  will  reduce  the  Deutsche  Bundesbank’s  autonomy  in  taking 

decisions  concerning  its  staff  regulations.  With  a  view  to  the  principle  of  central  bank 

independence,  the  ECB  would  like  to  point  out  that  the  threat  of  withdrawing  such  delegated 

powers  is  a  potential  tool  to  influence  an  NCB  unduly  in  fulfilling  its  tasks  and  thus  limits  that 

NCB’s  independence.  In  this  regard,  it  is  useful  to  note  that  the  ECB  defines  its  staff  policy 

autonomously  and  that  this  autonomy  forms  part  of  the  ECB’s  independence  as  guaranteed  by 

Article 108 of the Treaty and Article 36 of the ESCB Statute. 

2.5  As  the  proposed  amendments  entail  a  withdrawal  of  the  Deutsche  Bundesbank’s  authority  to 

determine the legal relationships and career polices for all categories of staff and a transfer of this 

authority to the Government, the ECB considers them to be a reduction of the independence of the 

Deutsche Bundesbank. The ECB therefore recommends that the new rules which will apply to the 

Deutsche  Bundesbank 

should 

contain 

sufficient 

safeguards 

to 

ensure 

that 

the 

Deutsche Bundesbank’s ability to carry out all its tasks, particularly ESCB-related tasks, will not be 

affected. The intention of the Government to delegate some of these powers to the Executive Board 

creates insufficient safeguards in terms of independence, as the permanent threat of a withdrawal of 

such  delegated  powers  constitutes  a  potential  and  ongoing  means  of  influencing  the  relevant 

policies in all respects.  

4  

Federal Administrative Court, judgment of 1 June 1995 - 2 C 16/94. 

3 

 
                                        
2.6  Against  that  background,  the  ECB  would  welcome  a  revision  of  the  proposed  amendments, 

extending the powers of the Executive Board to adopt staff regulations. Finally, the ECB underlines 

that  the  Government  should  consult  the  ECB  on  any  future  amendment  to  the  specific  rules 

applicable to the Deutsche Bundesbank’s staff in accordance with Council Decision 98/415/EC. 

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

Done at Frankfurt am Main, 21 February 2008. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

4