Opinion of the European Central Bank of 4 November 2009 on the ranking of the lien of the Nationale Bank van België/Banque Nationale de Belgique (CON/2009/90)
Date: 2009-11-04
Institutions: European Central Bank
Subjects: Belgium, central bank, claim, guarantee, national law, securities

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 4 November 2009 

on the ranking of the lien of the Nationale Bank van België/Banque Nationale de Belgique 

(CON/2009/90) 

Introduction and legal basis 

On 21 September 2009 the European Central Bank (ECB) received a request from the Belgian Ministry of 

Finance for an opinion on a draft law amending, inter alia, the Law of 22 February 1998 establishing the 

Organic Statute of the Nationale Bank van België/Banque Nationale de Belgique (NBB) (hereinafter the 

‘draft law’). By letter dated 30 October 2009, the Belgian Deputy Prime Minister and Minister of Finance 

informed the ECB that the Belgian Government had decided to introduce before the Belgian Parliament 

an  amendment    withdrawing  Article  89  of  the  draft  law  concerning  the  retirement  age  of  the  NBB’s 

Governor. In the light of this withdrawal, this opinion does not comment on the related issue.  

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

European  Community  and  on 

the 

third,  fifth  and  sixth 

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  law  relates  to  (a)  national  central  banks; 

(b) payment and securities settlement systems; and (c) rules applicable to financial institutions insofar as 

they  materially  influence  the  stability  of  financial  institutions  and  markets.  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 relates to the lien granted to the NBB over all securities held by the debtor in an account 

with  the  NBB  or  in  its  securities  clearing  system  as  the  debtor’s  own  assets  in  order  to  secure  claims 
arising  from  the  NBB’s  credit  transactions2.  The  Law  of  22  February  1998  currently  provides  that  this 

lien  ranks  equally  with  the  rights  of  the  pledgee.  According  to  the  draft  law,  it  would  prevail  over  the 

rights granted to individual account holders by virtue of the Belgian laws governing the immobilisation 

1  
2  

OJ L 189, 3.7.1998, p. 42.  
See Article 7 of the Law of 22 February 1998, which provides that the NBB is granted a lien covering claims arising from 
credit  transactions  over  all  securities  which  the  debtor  holds  in  an  account  with  the  NBB  or  in  its  securities  clearing 
system as the debtor’s own assets. See ECB Opinion CON/2006/40; all ECB opinions are published on the ECB website 
at www.ecb.europa.eu.  

 
 
 
 
                                                 
and  dematerialisation  of  securities  in  order  to  protect  them  against  the  insolvency  of  the  financial 
intermediaries through which they hold the accounts3  4. According to the explanatory memorandum, this 

amendment would not introduce a new substantive rule: the NBB’s lien, similar to other cases of liens, 

relies  on  the  possession  by  the  NBB  of  the  assets  subject  to  the  lien,  which  would  derive  from  the 

crediting of the securities to an account held with the NBB. On the ground of such possession, the NBB’s 

lien  would  hence  prevail  over  the  concurrent  rights  of  the  abovementioned  account  holders  which  are 

specifically  enumerated  in  the  draft  law.  In  this  vein,  the  priority  of  the  NBB’s  lien  over  the  other 

creditors’  rights  would  be  a  mere  confirmation  in  the  draft  law,  for  reasons  of  legal  certainty,  of  the 
application of general principles of security law5.   

2.   Ranking of the NBB’s lien  

2.1.  Under  Article  18  of  the  Statute  of  the  European  System  of  Central  Banks  and  of  the  European 

Central Bank (hereinafter the ‘Statute of the ESCB’), credit operations conducted by the national 

central banks (NCBs) must be based on adequate collateral. Moreover, pursuant to Standard 1 of 

the  ‘Standards  for  the  Use  of  EU  Securities  Settlement  Systems  in  ESCB  Credit  Operations’ 

(hereinafter the ‘User Standards’) the NCBs’ rights in respect of securities held in their accounts in 
securities  settlement  systems  must  be  adequately  protected6.  This  principle  has  been  further 

elaborated in the Recommendations for Securities Settlement Systems issued in November 2001 by 

the Committee on Payment and Settlement Systems (CPSS) and the International Organization of 

Securities Commissions (IOSCO). Section 3.5 of the CPSS-IOSCO Recommendations states that 

‘the claim of the SSS ... against collateral posted by a participant with the SSS should in all events 

have priority over the claims of such participant’s non-system creditors’. Otherwise, as the ESCB-

Committee  of  European  Securities  Regulators  Recommendation  1  on  the  legal  framework 
provides7: ‘If the framework is inadequate or its application uncertain, it can give rise to credit or 

liquidity risks for system participants and their customers or to systemic risks for financial markets 

as a whole.’ 

2.2. 

In  view  of  the  above,  the  ECB  welcomes  the  draft  law,  insofar  as  Article  7(2)  of  the  Law  of 

22 February 1998 would provide that the preferential claim secured by the NBB’s lien has priority 

over the counterparty’s creditors’ claims based on Article 8(3) of the Law of 2 January 1991 on the 

market in public debt securities and monetary policy instruments, Articles 12(4) and 13(4) of Royal 

Decree  No  62  on  the  deposit  of  fungible  financial  instruments  and  the  settlement  of  operations 

concerning  those  instruments,  coordinated  by  the  Royal  Decree  of  27  January  2004,  and 

3  

4  
5  
6  
7  

See Article 8(3) of the Law of 2 January 1991 on the market in public debt securities and monetary policy instruments, 
Articles  12(4)  and  13(4)  of  Royal  Decree  No  62  on  the  deposit  of  fungible financial  instruments  and  the  settlement  of 
operations concerning those instruments, coordinated by the Royal Decree of 27 January 2004, and Article 471(4) of the 
Companies Code. 
See Article 88 of the draft law. 
See the explanatory memorandum, commentary on Article 88. 
See in this sense paragraph 8 of ECB Opinion CON/2005/12 and section 1 of ECB Opinion CON/2006/40.  
See especially the comments made in section C.1 of this Recommendation. 

2 

 
                                                 
Article 471(4)  of  the  Companies  Code.  This  amendment  would,  moreover,  improve  the 

transparency  of  risks  and  the  risk  management  procedures  of  the  securities  clearing  system 

operated by the NBB (see Standards 5 and 6 of the User Standards). Finally, at a time of financial 

turmoil, it is of the utmost importance that the NCBs of the Eurosystem can discharge their duties 

in  an  environment  which  strives  for  legal  soundness  and  certainty  in  line  with  international 

standards. 

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

Done at Frankfurt am Main, 4 November 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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