Opinion of the European Central Bank of 26 February 2008 at the request of the Portuguese Ministry of Finance and Public Administration on two draft decree-laws transposing Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual and consolidated accounts, concerning the supervision of auditors (CON/2008/11)
Date: 2008-02-26
Institutions: European Central Bank
Subjects: Portugal, audit, auditing, financial supervision, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 26 February 2008 

at the request of the Portuguese Ministry of Finance and Public Administration 

on two draft decree-laws transposing Directive 2006/43/EC of the European Parliament and of the 

Council of 17 May 2006 on statutory audits of annual and consolidated accounts, concerning the 

supervision of auditors 

(CON/2008/11) 

Introduction and legal basis 

On  16  November  2007  the  European  Central  Bank  (ECB)  received  a  request  from  the  Portuguese 

Ministry  of  Finance  and  Public  Administration  for  an  opinion  on  two  draft  decree-laws  transposing 

Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audit 

of annual and consolidated accounts (hereinafter the ‘draft decree-laws’). 

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 one of the draft decree-laws relates to the Banco de Portugal. 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 decree-laws 

The draft legislation is intended to transpose into Portuguese law Directive 2006/43/EC of the European 

Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated 

accounts,  amending  Council  Directives  78/660/EEC  and  83/349/EEC  and  repealing  Council 
Directive 84/253/EEC (hereinafter the ‘Directive’)2. The Directive imposes harmonised rules on statutory 

auditors and audit firms and requires Member States to organise an effective system of public oversight of 

such entities based on the principles of adequacy, effectiveness and independence. It further recommends 

that the competent authorities of the Member States cooperate with each other for the purpose of carrying 

out said duties. 

With  this  aim,  the  first  draft  decree-law  establishes  the  National  Audit  Supervisory  Council  (Conselho 

Nacional de Supervisão de Auditoria, hereinafter the ‘CNSA’), charged with organising a system for the 

1  
2  

OJ L 189, 3.7.1998, p. 42.  
OJ L 157, 9.6.2006, p. 87. 

 
 
 
 
                                                 
public oversight of statutory auditors and audit firms in accordance with the Directive. The Statute of the 

CNSA (hereinafter the ‘CNSA Statute’) is published as an annex to the first draft decree-law and is an 

integral part of it.  

The  second  draft  decree-law  amends  the  Statute  of  the  Association  of  Statutory  Auditors  (Ordem  dos 

Revisores Oficiais de Contas) and has no connection with the Banco de Portugal. In view of the above, 

the present opinion deals only with the first draft decree-law. 

2. 

General observations  

2.1  Article 1 of the draft decree-law establishes the CNSA. According to its Statute, the CNSA is an 

independent  body  with  no  legal  personality  and  subject  to  oversight  by  the  Minister  for  Finance 

(Article  2).  The  tasks  entrusted  to  the  new  body  by  the  draft  decree-law  include,  inter  alia, 

supervising the approval and registration of statutory auditors and audit firms and of the adoption 

of  standards  of  professional  ethics,  internal  quality  assurance  rules  for  audit  firms  and  audit 

procedures  (Article  3(1)(a)).  The  CNSA  will  also  issue  regulations  on  matters  falling  within  the 

scope  of  its  responsibilities,  coordinate  the  different  national  entities  with  powers  in  the  field  of 

auditing and assist and cooperate with other international bodies with powers to approve, register, 

assure  the  quality  of,  inspect  and  discipline  statutory  auditors  and  audit  firms  (Article  3(1)(b),(c) 

and  (d)).  The  powers  conferred  on  the  CNSA  include  issuing  binding  prior  opinions  on  quality 

assurance system rules, ethical standards and auditing standards foreseen in Article 11(1)(c). 

2.2 

In accordance with the draft decree-law, (Article 5), participation in the CNSA will become part of 

the  Banco  de  Portugal’s  statutory  tasks.  Such  participation  consists  of  one  of  the  members  of  its 

Board of Directors being a permanent member of the CNSA (Article 9(1)(a) of the CNSA Statute). 

This new function is not related to the European System of Central Banks (ESCB) and, therefore, 

pursuant to the last sentence of Article 14.4 of the ESCB Statute, such new function would have to 

be  performed  on  the  Banco  de  Portugal’s  responsibility  and  liability.  However,  as  previously 
pointed  out3,  and  without prejudice  to  the  Governing  Council’s  powers  under  Article  14.4  of  the 

ESCB Statute, the ECB does not consider that the abovementioned tasks would interfere with the 

objectives  and  tasks  of  the  ESCB  or  with  the  responsibilities  of  the  Banco  de  Portugal  as  an 

integral  part  of  the  ESCB.  In  this  context,  the  ECB  notes  that  the  CNSA  will  be  an  independent 

body (Article 2(1) of the CNSA Statute) and that the tasks of the CNSA will be without prejudice 

to  the  tasks  and  powers  conferred  by  law  to  the  Banco  de  Portugal  (Article  3(2)  of  the  CNSA 

Statute). 

3  

See  ECB  Opinions  CON/2007/29  of  5  October  2007  at  the  request  of  the  Portuguese  Ministry  of  Finance  and  Public 
Administration  on  a  draft  decree-law  amending  the  legal  framework  of  credit  institutions  and  financial  companies, 
CON/2007/8 of 21 March 2007 at the request of the Czech Ministry of Industry and Trade on certain provisions of a draft 
law amending the Law on consumer protection relating to Česká národní banka, CON/2006/47 of 13 September 2006 at 
the  request  of  the  Czech  Ministry  of  Industry  and  Trade  on  an  amendment  to  the  Law  on  Česká  národní  banka,  and 
CON/2006/38 of 25 July 2006 at the request of the Bank of Greece on a draft provision on the Bank of Greece’s powers 
in the field of consumer protection. 

2 

 
                                                 
3. 

Specific observations  

3.1  As  regards  responsibility,  the  ECB  notes  that  the  CNSA  has  no  legal  personality  but  enjoys  the 

capacity  to  be  party  to  judicial  proceedings  (Article  2(1)(3)  of  the  CNSA  Statute).  The  ECB 

considers  that  the  implications  of  the  lack  of  legal  personality  for  the  regime  of  non-contractual 

liability, which could rest on the CNSA’s members, may require adequate consideration.   

3.2  On  the  other  hand,  the  lack  of  legal  personality  requires  proper  consideration  of  the  CNSA’s 

financing regime, as this would imply the allocation of human, technical and material resources by 

the entities comprising the CNSA (Articles 14(1) and 27(1) of the CNSA Statute). This allocation 

has to be subject to previous annual budgeting, so that those entities could mobilise the necessary 

resources. The ECB has consistently held the view that ‘Member States may not put their NCBs in 

the  position  of  not  having  sufficient  financial  resources  to  carry  out  their  ESCB  or  Eurosystem-

related  tasks,  as  applicable’4.  The  ECB  therefore  expects  that,  when  granting  these  additional 

functions  to  the  Banco  de  Portugal,  care  will  be  taken  to  ensure  that  the  Banco  de  Portugal’s 

operational capacity to carry out ESCB-related tasks will not be affected. 

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

Done at Frankfurt am Main, 26 February 2008. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

4 

See e.g. the ECB’s Convergence Report 2004, p. 28, and similarly in the ECB’s Convergence Report December 2006, 
p. 27. 

3