Opinion of the European Central Bank of 21 July 2008 at the request of the Romanian Parliament on a legislative proposal amending Law No 312/2004 on the Statute of Banca Naţională a României (CON/2008/31)
Date: 2008-07-21
Institutions: European Central Bank
Subjects: Romania, activity report, appointment of staff, central bank, conduct of meetings, institutional activity, national law, remuneration of work

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 21 July 2008 

at the request of the Romanian Parliament 

on a legislative proposal amending Law No 312/2004 on the Statute of Banca Naţională a României 

(CON/2008/31) 

Introduction and legal basis 

On 12 June 2008 the European Central Bank (ECB) received a request from the Romanian Parliament, 

Senate  Commission  for  Budget,  Finance,  Banking  and  Capital  Market,  for  an  opinion  on  a  legislative 

proposal  amending  Law  No  312/2004  on  the  Statute  of  Banca  Naţională  a  României  (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 Banca Naţională a României (BNR). 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 

The  draft  law  amends  several  provisions  of  Law  No  312/2004  on  the  Statute  of  BNR  (hereinafter  the 

‘BNR Statute’) regarding indemnities, salaries and other pecuniary rights granted to staff, recruitment and 
BNR’s organisation2. Second, it excludes the possibility of renewal of the five-year term of office of the 
members of BNR’s Board3. Third, it provides for the obligation for the Prime-Minister to participate in 

the  meetings  of  the  BNR’s  Board,  together  with  the  Minister  for  Public  Finance  and  one  of  the  State 
Secretaries of the Ministry of Public Finance4. Fourth, it provides that Parliament votes and decides on 

BNR’s annual report on its activities, annual financial statements and auditor’s report, which are currently 
only  debated  by  Parliament5.  Fifth,  it  introduces  a  new  paragraph  in  Article  35  of  the  BNR  Statute 

1  
2  

3  
4  
5  

OJ L 189, 3.7.1998, p. 42.  
Amendment to Article 33(1)(d) of the BNR Statute, which adds the requirement that the internal organisational structure, 
indemnities, salaries and other pecuniary rights granted to the staff should be decided by BNR’s Board ‘according to the 
law’;  amendment  to  Article  35(2)  of  the  BNR  Statute,  which  provides  that  the  appointment  of  BNR’s  staff  in  BNR’s 
headquarters and managers of the branches and agencies by the Governor should be done ‘based on a competition’ and 
‘under the conditions set out in the law’ and amendment to Article 53 of the BNR Statute, which limits the maximum 
level of net remunerations for the members of the BNR’s Board to the annual remuneration of the President of Romania. 
Amendment to Article 33(4) of the BNR Statute. 
Amendment to Article 33(10) of the BNR Statute. 
Amendment to Article 35(4) of the BNR Statute. 

 
 
 
 
                                                 
entrusting the Government with the task of proposing to the Parliament ‘constructive solutions aimed at 

achieving the objectives of economic and social development in Romania, according to the Governance 

Programme’.  Finally,  it  introduces  the  concepts  of  ‘objective’  and  ‘subjective’  reasons  with  respect  to 
losses incurred by BNR during a financial year and the liability for such losses6. 

2. 

General observations  

2.1  The compatibility of the national legislation of a Member State, including the statute of its national 

central bank (NCB), with the requirements of the Treaty and the Statute of the European System of 

Central  Banks  and  of  the  European  Central  Bank  (hereinafter  the  ‘ESCB  Statute’)  concerning 

central  bank  independence  (Article  108  of  the  Treaty)  must  be  ensured  upon  accession  to  the 

European Union. In the case of Romania, the compatibility requirement (Article 109 of the Treaty) 

should have been satisfied by 1 January 2007. 

2.2 

Instead  of  addressing  the  existing  incompatibilities  of  the  BNR  Statute  with  the  Treaty  and  the 
ESCB Statute, also highlighted in the ECB’s 2008 Convergence Report7, the draft law introduces 

new incompatibilities with the Treaty and the ESCB Statute by limiting BNR’s independence. The 

draft law is, therefore, fundamentally incompatible with the Economic and Monetary Union related 

Treaty  provisions  and  its  enactment  could  trigger  infringement  proceedings  before  the  Court  of 

Justice of the European Communities.  

2.3  The  Treaty’s  requirement  of  central  bank  independence  reflects  the  generally  held  view  that  the 

primary objective of price stability is best served by a fully independent institution with a precisely 
defined mandate8. The convergence reports of the European Monetary Institute and of the ECB, as 

well  as  the  ECB  opinions,  have  consistently  confirmed  the  importance  of  central  bank 

independence. It is of the utmost importance to design an institutional structure that guarantees the 

functional, institutional, personal and financial independence of BNR.  

2.4  Contrary  to  the  requirement  of  central  bank  independence,  the  proposed  amendments  to  BNR’s 

Statute  considerably  limit  BNR’s  independence  and  clearly  put  pressure  on  BNR,  its  decision-

making bodies, its members and BNR staff. Therefore, the draft law raises serious concerns to the 

ECB. 

3. 

Specific comments 

Staff matters  

3.1  With respect to the amendments on staff matters, the ECB notes that an NCB may not be put into a 

position  where  it  has  limited  or  no  control  over  its  staff,  or  where  the  government  of  a  Member 

6  
7 
8  

Amendment to Article 44 of the BNR Statute. 
See ECB Convergence Report, May 2008, p. 246 to 249, available on the ECB’s website at http://www.ecb.europa.eu. 
See  ECB  Opinion  CON/2007/14  of  24  May  2007  at  the  request  of  the  Hungarian  Ministry  of  Finance  on  a  draft  law 
amending the Law on the Magyar Nemzeti Bank. 

2 

 
 
                                                 
State  is  in  a  position  to  influence  its  policy  on  staff  matters9.  According  to  the  explanatory 

memorandum  to  the  draft  law,  amendments  to  Articles  33(1)(d)  and  53  of  the  BNR  Statute 

regarding indemnities, salaries, and other pecuniary rights are necessary to provide for a legal basis 

for  BNR’s  decisions  on  these  matters.  However,  it  should  be  noted  that  the  current  version  of 

Article 33(1)(d) of the BNR Statute already provides such legal basis, since it stipulates that BNR’s 

Board decides ‘under the conditions set out in the  law ... on the internal organisational structure, 

indemnities, salaries and other pecuniary rights granted to the staff’. The purpose of the additional 

wording ‘according to the law’ is therefore unclear. It creates uncertainty concerning the applicable 

legislation to BNR’s staff-related matters and the relationship with the BNR Statute. 

3.2 

In  addition,  in  order  to  ensure  that  the  amended  Article  53  on  the  maximum  level  of  net 

remunerations  for  BNR’s  Board  members  is  consistent  with  the  Community  requirements  for 

personal  independence  of  the  members  of  NCBs’  decision-making  bodies,  the  new  legislation 

should  be  implemented  so  as  to  ensure  that  it  does  not  affect  the  terms  under  which  the  current 

members of BNR’s Board have been appointed. Therefore, this aspect of the new legislation should 
only apply to future appointments10. 

Participants in the meetings of BNR’s Board 

3.3  The draft law adds the Prime-Minister to the list of third parties that participate in BNR’s Board 

meetings,  together  with  the  Minister  for  Public  Finance  and  one  of  the  State  Secretaries  in  the 

Ministry  of  Public  Finance;  it  also  introduces  an  obligation  for  them  to  participate  in  such 
meetings11. These amendments raise serious concerns with respect to the institutional independence 

of BNR in two respects: (i) the obligation of third parties to participate in BNR’s Board meetings 

must not impede the functioning of the meetings and, in particular, the absence of such third parties 

must not prevent the meetings from being held; and (ii) the participation of such third parties must 

not result in these third parties actually giving direct or indirect instructions to BNR, its decision-

making bodies or its members.  

3.4 

In the context of the close cooperation between the European Union institutions, it may be noted 

that the President of the Council of the European Union and a member of the Commission of the 

European Communities have the possibility to participate, without voting rights, in the meetings of 
the  ECB’s  Governing  Council12.  Nevertheless,  such  third  parties  are  not  obliged  to  participate  in 

the meetings. This mirrors other forms of interaction, notably the fact that the ECB’s President is 

invited  to  participate  in  Council  meetings  when  the  Council  is  discussing  matters  relating  to  the 

ESCB’s objectives and tasks. Thus, the ECB would strongly recommend clarifying the scope of the 

9  

10  

11  
12 

See in particular ECB Opinion CON/2008/9 of 21 February 2008 at the request of the German Ministry of Finance on a 
draft law amending the Law on the Deutsche Bundesbank and ECB Opinion CON/2008/10 of 21 February 2008 at the 
request of the Italian Ministry of Economic Affairs and Finance on some provisions of the Law on the State annual and 
pluriannual budget (2008 Budget law). 
See  ECB  Opinion  CON/2008/10  of  21  February  2008  at  the  request  of  the  Italian  Ministry  of  Economic  Affairs  and 
Finance on some provisions of the Law on the State annual and pluriannual budget (2008 Budget Law), paragraph 3.2.2. 
Amendment to Article 33(10) of the BNR Statute. 
See Article 113(1) of the Treaty. 

3 

                                                 
obligation of the Prime Minister and the Ministry of Public Finance representatives to participate in 

BNR’s Board meetings. 

Parliamentary vote and decision on the annual and audit reports and on the annual financial statements  

3.5  The  Parliament’s  competence  to  vote  on  and  adopt  a  decision  on  BNR’s  annual  report  on  its 

activities,  annual  financial  statements  and  auditor’s  report,  could  affect  the  institutional 

independence  of  BNR,  as  it  goes  beyond  the  transparency  and  accountability  of  a  central  bank 

towards the Parliament. 

3.6  The  ECB  recalls  that,  in  general,  dialogue  between  NCBs  and  third  parties  is  welcome  and 

compatible with central bank independence, provided that: 

- 

- 

- 

this  does  not  result  in  interference  with  the  independence  of  the  members  of  the  NCB’s 

decision-making bodies; 

the special status of Governors in their capacity as members of the ECB’s General Council is 

fully respected; 

confidentiality requirements resulting from the ESCB Statute are observed. 

3.7  A decision of the Parliament as regards these documents must not result in actually giving direct or 

indirect  instructions,  e.g.  to  amend  the  annual  report,  to  BNR,  its  decision-making  bodies  or  its 
members13.  Moreover,  any  rights  of  the  Parliament  to  approve,  suspend,  annul  or  defer  BNR’s 

decisions would be contrary to BNR’s institutional independence. 

BNR’s statutory objectives 

3.8  The draft law introduces a new paragraph in Article 35 of the BNR Statute on the prerogatives of 

BNR’s  Governor.  It  provides  that  the  Government  suggests  to  the  Parliament  ‘constructive 

solutions  aimed  at  achieving  the  objectives  of  economic  and  social  development  in  Romania, 

according to the Governance Programme’. This provision could be understood as establishing new 

objectives for BNR, as well as allowing the Government to give indirect instructions to or influence 

BNR, its decision-making bodies or its members. As such, it would be contrary to the principle of 

institutional  independence  of  BNR.  Moreover,  it  would  also  compromise  the  functional 

independence  of  BNR  as  it  would  contravene  Article  105(1)  of  the  Treaty  and  Article  2  of  the 

ESCB  Statute  concerning  the  primary  objective  of  price  stability  and  the  secondary  objective  of 

supporting the general economic policies in the Community.  

Loss coverage  

3.9   Under  the  draft  law,  the  loss  incurred  by  BNR  ‘based  on  objective  reasons’  will  be  covered,  as 

currently all of BNR’s losses (with no distinction)  are covered, from the available sources  in the 

following  order:  (a)  special  revaluation  account;  (b)  statutory  reserves.  When  BNR  incurs  a  loss 

13  

See in particular ECB Opinion CON/2001/17 of 2 August 2001 at the request of the German Ministry of Finance on a 
draft Seventh Law amending the Deutsche Bundesbank Act, paragraph 11. 

4 

                                                 
‘based on subjective reasons established by the Court of Auditors’, the loss will be covered by the 
persons found liable for the loss14.  

3.10  The ECB notes that such personal liability for losses resulting from ‘subjective reasons established 

by  the  Court  of  Auditors’  jeopardises  the  independence  of  BNR’s  decision-making  bodies  and 

staff. If they were to incur financial liability linked to their performance of central banking tasks, 

which  are  complex,  subject  to  a  considerable  degree  of  discretion  and  dependent  on  the  national 

and  international  economic  and  financial  environment,  their  capacity  to  function  fully  and 

independently would be seriously compromised as a result of the inhibiting effect that the risk of 

having  to  bear  the  damages  would  trigger.  Indeed,  NCBs  cannot  be  hindered  in  making  their 

decisions by the prospect of personal liability of their staff acting in good faith.  

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

Done at Frankfurt am Main, 21 July 2008. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

14  

Amendment to Article 44 of the BNR Statute. 

5