Opinion of the European Central Bank of 30 March 2012 on implementing measures relating to recapitalisation (CON/2012/23)
Date: 2012-03-30
Institutions: European Central Bank
Subjects: Portugal, credit institution, financial solvency, financial stability, market capitalisation, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 30 March 2012  

on implementing measures relating to recapitalisation  

(CON/2012/23) 

Introduction and legal basis 

On 26 March 2012, the European Central Bank (ECB) received a request from the Portuguese Minister of 

State  and  for  Finance  for  an  opinion  on  a  draft  ministerial  order  implementing  Law  63-A/2008  of 

24 November on the recapitalisation of credit institutions (hereinafter the ‘draft ministerial order’). 

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  on  the  third  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  ministerial  order  relates  to  the  Banco  de 

Portugal and to 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 ministerial order 

1.1  The  draft  ministerial  order  establishes  the  implementation  procedures  for  Law  63-A/2008  of 

24 November, as amended and republished by Law No 4/2012 of 11 January (hereinafter the ‘Law 
on  recapitalisation’),  on  which  the  ECB  adopted  Opinion  CON/2011/952.  The  Law  on 

recapitalisation  aims  at  reinforcing  the  resilience  of  the  banking  sector  by  establishing  the 

conditions  and  procedures  for  providing  temporary  public  support  to  viable  credit  institutions 

having  their  head  office  in  Portugal,  but  delegated  to  the  Government  essential  implementation 

details. 

1.2  The  draft  ministerial  order  defines  (i)  the  terms  and  conditions  for  public  investment  and 

disinvestment,  including  the  criteria  for  the  remuneration  of  the  investment  and  the  corporate 

bodies of the credit institution, (ii) the additional terms and elements of the recapitalisation plan, 

and  (iii)  the  threshold  from  which  the  State  may  exercise  the  voting  rights  attached  to  its 

shareholding in the credit institution.   

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2  

OJ L 189, 3.7.1998, p. 42.  
Available on the ECB’s website at www.ecb.europa.eu. 

 
 
 
 
 
                                                 
ECB-PUBLIC 

2. 

General observations  

2.1  The ECB generally welcomes the draft ministerial order, which is overall appropriate for restoring 

the solvency of viable banks in the current economic and financial crisis context3.  

2.2  As stated in Opinion CON/2011/95, the ECB notes that recapitalisation through the purchase by the 

State of capital instruments eligible for Core Tier 1 should be made exclusively in cash, and not by 

means of bonds or other debt instruments issued by the State.   

2.3  To enable banks to meet additional capital requirements by the end of June 2012, as recommended 
by the European Banking Authority on 8 December 20114, it should be ensured that the national 

legal framework governing the recapitalisation of credit institutions, including the ministerial order, 

is finalised without delay.  

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

Done at Frankfurt am Main, 30 March 2012. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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4  

See notably ECB opinion CON/2011/95. 
See  EBA  Recommendation  on  the  creation  and  supervision  oversight  of  temporary  capital  buffers  to  restore  market 
confidence (EBA/REC/2011/1) on the EBA’s website at www.eba.europa.eu. 

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