Opinion of the European Central Bank of 13 October 2014 on conflict of interest rules for members of the governing bodies and executives of the Banca d’Italia (CON/2014/73)
Date: 2014-10-13
Institutions: European Central Bank
Subjects: Italy, board of directors, central bank, conflict of interest, managing director, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 13 October 2014 

on conflict of interest rules for members of the governing bodies and executives of the Banca 

d’Italia 

(CON/2014/73) 

Introduction and legal basis 

On 5 September 2014 the European Central Bank (ECB) received a request from the Minister responsible 

for Simplification and Public Administration for an opinion on a draft decree implementing Article 22(2) 
of  Law  No  114  of  7  August  20141  (hereinafter  the  ‘draft  decree’).  Article  22(2)  concerns  conflict  of 

interest rules for members of the governing bodies and executives of the Banca d’Italia. 

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/EC2, 

as the draft decree relates to the Banca d’Italia. 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 

1.1   Article 22(2) of Decree-Law No 90 of 24 June 20143 (hereinafter the ‘Decree-Law’) amended Law 
No 262 of 28 December 20054 by the addition of Article 29 bis, which provides that members of 

the  governing  bodies  and  executives  of the  Commissione  Nazionale  per  le  Società  e  la  Borsa 

(Consob,  Italian  Companies  and  Stock  Exchange  Commission)  may  not  engage,  directly  or 

indirectly,  in  any  business,  consultancy  or  employment  relationship  with  entities  regulated  by 

Consob, or the subsidiaries of such entities, for a period of two years after cessation of employment 

or ceasing to hold office. Any contracts entered into in breach of this provision will be void. Article 

29 bis does not apply to executives who were, in their last two years of employment, in charge of 

offices providing support services.  

1.2  The  Decree-Law  was  subsequently  submitted  to  the  Parliament  for  conversion  into  law.  Law 

No 114  of  7  August  2014  (hereinafter  ‘the  Law’),  as  adopted,  extended  the  abovementioned 

restrictions to members of the governing bodies and executives of the Banca d’Italia and provided 

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2 

3 
4  

Gazzetta Ufficiale della Repubblica Italiana No 190, 18.8.2014. 
Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
Gazzetta Ufficiale della Repubblica Italiana No 95, 24.4.2014.  
Gazzetta Ufficiale della Repubblica Italiana No 301, 28.12.2005. 

 
 
 
 
                                                 
 
 
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that a decree of the President of the Council of Ministers could set a period of restriction of up to 

two years. 

1.3   The  draft  decree  of  the  President  of  the  Council  of  Ministers,  on  which  the  ECB  has  now  been 

consulted, sets the period of restriction at the maximum limit of two years.  

2.  

The appropriate time to consult the ECB 

2.1  The ECB was consulted on the draft decree before its enactment, but no request was made for an 

opinion  on  the  Law,  which  extended  the  scope  of  the  relevant  conflict  of  interest  rules  to  the 

members of governing bodies and executives of the Banca d’Italia. It is well-established doctrine 

that the ECB must be consulted at an appropriate stage in the legislative process, that this should 

take place at a time that enables the ECB to adopt its opinion in all required language versions and 

that this should enable the authority initiating the legislative provisions to take the ECB’s opinion 
into account before it decides on the substance5. 

2.2 

In  the  Italian  legal  system,  a  decree-law  adopted  by  the  Government  enters  into  force  on 

publication in the Official Journal and must be submitted to the Parliament for conversion into law 

on  the  date  of  its  adoption.  Amendments  may  be  made  by  the  Parliament  in  the  process  of 

conversion into law, which was the case in the present matter. 

2.3 

In this situation, as the restrictions imposed by the Decree-Law were extended to members of the 

governing  bodies  and  executives  of  the  Banca  d’Italia  by  the  Parliament  in  the  process  of 

conversion  into  law,  a  consultation  request  should  have  been  sent  to  the  ECB  by  the  Parliament 

before the Decree-Law was converted into the Law. The ECB would like to draw the Parliament’s 

attention to this aspect of the procedure for consultations of the ECB.  

3.   General observations 

3.1  Article  7  of  the  Banca  d’Italia’s  Code  of  Conduct  for  Staff  Members  and  Article  8  of  the  Banca 
d’Italia’s Code of Conduct for Members of the Governing Board6 currently provide for restrictions 

on engaging in private business activities after cessation of employment or ceasing to hold office. 

In  particular,  during  the  first  year  after  the  end  of  their  employment  relationship  with  the  Banca 

d’Italia  or  after  ceasing  to  hold  office,  former  employees  and  members  of  the  Governing  Board 

must avoid any conflict of interest, arising from their former duties with the Banca d’Italia, when 

undertaking new private or professional activities. Article 22(2) of the Law tightens this restriction 

by  extending  the  period  of  restriction  to  two  years  for  members  of  all  governing  bodies  and 

executives, under the terms and conditions referred to in paragraph 1.1 of this Opinion. The ECB 

understands  that  the  codes  of  conduct  will  remain  in  force  and  that  the  further  restrictions 

introduced  by  Article  22(2)  will  only  apply  to  the  categories  of  persons  and  to  the  situations 

5 

6  

See Title IV, Section I of the Guide to consultation of the European Central Bank by national authorities regarding draft 
legislative provisions. 

  Available at http://www.bancaditalia.it/. 

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referred  to  therein.  However,  the  application  of  the  legal  restrictions  may  vary  depending  on  the 

meaning of the terms ‘governing bodies’, ‘executives’ and ‘offices providing support services’. It is 

therefore  advisable  to  provide  clear  definitions  of  such  terms  in  order  to  clarify  the  precise 

application of the restrictions to the various categories of persons and situations.  

3.2  Without  prejudice  to  the  need  for  clarification  of  the  application  of  the  restrictions,  the  ECB 

welcomes the aim of the Law to contribute to  ensuring  the  effectiveness  and independence of the 

supervisory tasks  carried  out by  the  Banca  d’Italia.  In  accordance  with  Article  31(3)  of  Council 
Regulation  (EU)  No  1024/20137,  the  ECB  is  in  the  process  of  establishing  comprehensive  and 

formal  procedures,  including  ethics  procedures  and  proportionate  periods,  to  assess  in  advance 

and  prevent  possible  conflicts  of  interest  where members  of  the  Supervisory  Board of the ECB 

and  ECB  staff  members  who  are  engaged  in  supervisory activities  are  employed  elsewhere, 

within  a  period  of  two  years  after  cessation of employment or ceasing to hold office. Pursuant to 

subparagraph  2  of  Article  31(3),  such  procedures  will  be  without  prejudice  to  the  application  of 

stricter  national  rules.  Significant  differences  between  the  post-employment  conflict  of  interest 

rules and  restrictions  applicable  to  the  members  of  the  joint  supervisory  teams  appointed  by  the 

ECB  and those  appointed  by  the  Banca  d’Italia  for  the  performance  of  the  ECB’s  supervisory 

tasks should be avoided. It would therefore be advisable to provide for the possibility to review the 

Italian rules, as appropriate, to take into account ethical rules at the European level, including rules 

on  post-employment  business  activities,  which  may  be  adopted  in  the  context  of  the  Single 
Supervisory Mechanism8. 

3.3 

In line with the principle of financial independence, which is an element of the principle of central 

bank independence referred to in Article 130 of the Treaty, Member States may not interfere with 

the ability of a national central bank (NCB) to employ and retain the qualified staff necessary for 

the  NCB  to  perform  independently  the  tasks  conferred  on  it  by  the  Treaty  and  the  Statute  of  the 

European System of Central Banks and of the European Central Bank. Accordingly, the proposal in 

the  draft  decree  to  fix  the  period  of  restriction  on  former  members  of  the  governing  bodies  and 

executives  of  the  Banca  d’Italia  at  two  years  should  be  decided  after  close  and  effective 

cooperation with the Banca d’Italia, to ensure that any concerns as regards its ability to employ and  

7  

8  

  Council  Regulation  (EU)  No  1024/2013  of  15  October  2013  conferring  specific  tasks  on  the  European  Central  Bank 

concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). 
See Opinion CON/2014/22. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 

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retain qualified staff are sufficiently and appropriately addressed9. 

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

Done at Frankfurt am Main, 13 October 2014. 

[signed] 

The President of the ECB 

Mario DRAGHI 

9  

See, by analogy, the ECB’s Convergence Report 2014, p. 35, and Opinions CON/2013/92 and CON/2014/12. 

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