Opinion of the European Central Bank of 1 July 2010 on the remuneration of the staff of Banca Naţională a României (CON/2010/51)
Date: 2010-07-01
Institutions: European Central Bank
Subjects: Romania, central bank, national law, pay cut, public expenditure

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 1 July 2010  

on the remuneration of the staff of Banca Naţională a României  

(CON/2010/51) 

Introduction and legal basis 

On  18  June  2010  the  ECB  received  a  request  from  the  Romanian  Ministry  of  Public  Finances  for  an 

opinion on a law on certain measures necessary for the restoration of budgetary balance (hereinafter the 

‘law’).  This  law  was  adopted  on  30  May  2010  by  the  Romanian  Government.  The  ECB  had  not  been 

consulted and, on 9 June 2010, the ECB sent a letter to the Romanian Government, drawing attention to 

the obligation to consult it.  

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning of the European Union 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 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 law 

The law, among various decreases of the salaries of different categories of public employees, provides for 

a  decrease  of  25%  of  the  salaries  of  the  staff  of  BNR,  and  for  the  transfer  to  the  State  budget  of  the 

amounts  representing  this  decrease.  The  law  indicates  that  the  salary  decreases  set  out  in  the  law  will 

apply until 31 December 2010. Starting on 1 January 2011, social and personnel policies will be applied 

which should ensure the observance of both the public expenditure level set through the measures adopted 

in  2010  for  the  decrease  of  public  expenditure  and  the  provisions  of  the  2011  State  budget  and  State 

social insurance budget. 

2. 

General observations  

The  ECB  received  the  consultation  request  after  the  adoption  of  the  law  and  before  the  delivery  of  a 

decision of the Romanian Constitutional Court regarding its constitutionality. In view of the late stage in 

1  

OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
 
                                                 
the  legislative  process  at  which  the  ECB  was  consulted,  it  would  like  to  point  out  that,  in  cases  of 

particular  urgency  which  do  not  allow  for  a  normal  consultation  period,  the  consulting  authority  may 

indicate such urgency in the consultation request and ask for a shorter deadline for adoption of the ECB’s 

opinion.  This  does  not  prejudice  the  national  authorities’  duty  under  Article  127(4)  of  the  Treaty  to 

appropriately  consult  the  ECB  on  national  draft  legislative  provisions  falling  within  its  fields  of 

competence.  It  follows  from  Article  3(4)  of  Decision  98/415/EC  that  Member  States  are  obliged  to 

suspend the process of adoption of the draft legislative provision pending receipt of the ECB’s opinion. It 

is necessary that the adopting national authority should have the opportunity meaningfully to deliberate 

the ECB’s opinion prior to taking its decision on the substance. If a time limit has been set for submission 

of  the  ECB  opinion  and  this  time  limit  has  expired,  the  national  authority  concerned  may  restart  the 
adoption process2. As regards future amendments or implementing measures to the law, it is expected that 

the  obligation  to  consult  the  ECB  is  respected.  This  is  particularly  important  considering  that 

Article 17(2) of the law seems to indicate the possibility of further legislative measures affecting the staff 

of BNR. In this regard, it is recommended that internal administrative procedures should be in place to 

ensure that timely consultation of the ECB is foreseen whenever such consultation is mandatory. 

3. 

Specific observations  

As  is  the  case  for  certain  other  categories  of  public  employees,  the  law  provides  for  a  decrease  of  the 

salaries of the staff of BNR, although the Romanian state is not the formal employer of the BNR staff. 

According  to  the  Statute  of  BNR,  the  salaries  of  BNR  staff  are  paid  from  the  central  bank’s  own 

resources. In addition, Article 3(2) of the law provides for the direct transfer to the State budget of the 

amounts  representing  the  decrease.  In  this  context  and  independently  of  the  need  for  emergency 

measures, the ECB would like to recall that any operation between a national central bank (NCB) and the 

national authorities of an EU Member State has to comply with the limitations imposed in this respect by 

the  Treaty,  and  in  particular  with  the  principle  of  central  bank  independence  in  Article  130  and  the 
prohibition on monetary financing in Article 1233. Previous ECB opinions have clarified the implications 
of these Treaty-based requirements4, which can be summarised as follows. 

3.1  Compliance with the central bank independence principle 

3.1.1  The principle of central bank independence requires that no third party should be able to exercise 

direct  or  indirect  influence  over  the  NCB.  This  includes,  as  recalled  in  the  ECB  convergence 

reports  and  stressed  in  various  ECB  opinions,  the  point  that  Member  States  may  not  impair  an 

2 

3  

4  

See  Guide  to  consultation  of  the  European  Central  Bank  by  national  authorities  regarding  draft  legislative  provisions, 
Title IV, Section 1. 
As also reflected respectively in Article 7 and Article 21.1 of the Statute of the European System of Central Banks and of 
the European Central Bank (hereinafter the ‘Statute of the ESCB’). 
See,  concerning  independence,  for  example  paragraph  6  of  ECB  Opinion  CON/99/16,  paragraphs  3.2  and  3.3  of  ECB 
Opinion  CON/2008/82,  paragraphs  2.2  and  2.4  of  ECB  Opinion  CON/2009/53  and  further  opinions  quoted  in  the 
footnotes below. See also the ECB’s Convergence Report of December 2006, pp. 27-30; of May 2007, pp. 19-23; and of 
May 2010, p. 23. As concerns the prohibition on monetary financing, see paragraph 3 of ECB Opinion CON/2009/47 and 
paragraph  2.2(b)  of  ECB  Opinion  CON/2009/59.  All  ECB  opinions  are  available  on  the  ECB’s  website  at 
www.ecb.europa.eu.  

2 

 
                                                 
 
NCB’s  ability  to  employ  and  retain  the  qualified  staff  necessary  for  the  NCB  to  perform 

independently  the  tasks  conferred  on  it  by  the  Treaty,  the  Statute  of  the  ESCB  and  national 
legislation5. Also, 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 State can influence its policy on staff matters.  

3.1.2  The  Law  on  the  Statute  of  Banca  Naţională  a  României  (hereinafter  the  ‘Law  on  the  Statute  of 

BNR’) clearly provides for the Management Board of BNR to decide on the internal organisation 

and the salaries of the members of BNR staff. In order to protect BNR’s autonomy in staff matters, 

which  is  a  particular  aspect  of  central  bank  independence  under  Article  130  of  the  Treaty,  the 

Romanian  authorities  are  under  an  obligation  to  ensure  that  any  amendment  to  the  legislative 

provisions relating to the determination of the remuneration of the employees of BNR is decided in 
cooperation with BNR, taking due account of the views of BNR6. 

3.2  Compliance with the monetary financing prohibition 

3.2.1  The  provisions  on  central  bank  salary  decreases  must  also  comply  with  the  monetary  financing 

prohibition laid down in Article 123 of the Treaty, as further clarified in Council Regulation (EC) 

No 3603/93 of 13 December 1993 specifying the definitions for the application of the prohibitions 
referred  to  in  Articles  104  [now  123]  and  104b(1)  [now  125(1)]  of  the  Treaty7.  The  provision 

prohibits overdraft facilities or any other type of credit facility with the ECB or NCBs in favour of 

Union institutions, bodies, offices or agencies, central governments, regional, local or other public 

authorities, other bodies governed by public law, or public undertakings of Member States, and the 

purchase directly from these public sector entities by the ECB or NCBs of debt instruments. With a 

view  to  preserving  the  integrity  of  the  central  bank’s  balance  sheet,  the  monetary  financing 

prohibition  is  of  key  importance  in  ensuring  the  primary  monetary  policy  objective  of  price 

stability, which must not be impeded. Therefore, the prohibition must be interpreted extensively to 

ensure its strict application. Even if Article 123(1) of the Treaty refers literally to ‘credit facilities’, 

i.e. with the obligation to repay such credit, this prohibition also applies a fortiori to other forms of 

funding, i.e. without the obligation to repay, since it has the overall aim of public finance discipline 

and  of  prohibiting  NCBs  from  financing  the  public  sector.  This  implies  that  both  the  ultimate 
objective and the spirit of this provision must be taken into account in its interpretation8.  

3.2.2  From an accounting perspective, a decrease of staff salaries will de facto decrease the operational 

costs  of  the  BNR,  hence  increasing  potentially  its  financial  resources.  However,  if  the  related 

increase  of  BNR’s  financial  resources  is  directly  transferred  to  the  State,  such  a  situation  would 

effectively mean increasing the funding of the Romanian State at the expense of the BNR. In this 

respect,  any  direct  financial  transfer  of  this  nature  from  the  BNR  to  the  State  budget  can  be 

assimilated  to  monetary  financing  which  is  clearly  prohibited  under  Article  123  of  the  Treaty. 

5  
6  
7  
8 

See paragraph 2.2 of ECB Opinion CON/2008/9. 
See paragraph 4.3 of ECB Opinion CON/2010/42.  
OJ L 332, 31.12.1993, p. 1. 
See paragraph 9 of ECB Opinion CON/2003/27. 

3 

                                                 
Therefore,  in  order  to  avoid  a  breach  of  the  monetary  financing  prohibition  the  law  should  be 
amended to ensure full compliance with the Treaty provisions9. 

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

Done at Frankfurt am Main, 1 July 2010. 

[signed] 

The Vice-President of the ECB 

Vítor CONSTÂNCIO 

9  

In this respect, the situation is different from that addressed in ECB Opinion CON/2009/15. 

4