Opinion of the European Central Bank of 21 January 2015 on the Resolution College (CON/2015/2)
Date: 2015-01-21
Institutions: European Central Bank
Subjects: Belgium, Eurosystem, aid for restructuring, central bank, conflict of interest, economic stabilisation, financial intervention, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 21 January 2015  

on the Resolution College  

(CON/2015/2) 

Introduction and legal basis 

On 3 December 2014, the European Central Bank (ECB) received a request from the Nationale Bank van 

België/Banque Nationale de Belgique (NBB), acting on behalf of the Belgian Ministry of Finance, for an 

opinion  on  a  draft  Royal  decree  establishing  the  modalities  of  the  organisation  and  functioning  of  the 

Resolution College of the NBB, on the exchange of information between the Resolution College and third 

parties and measures to prevent conflicts of interests (hereinafter the ‘draft royal decree’). 

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/EC1, as 

the draft royal decree relates to the NBB. 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 royal decree 

The  draft  royal  decree  partly  complements  the  transposition  of  Directive  2014/59/EU  of  the  European 
Parliament and the Council2 (hereinafter the ‘BRRD’). The BRRD was largely transposed into Belgian law 
by the Law of 25 April 20143 which anticipated the BRRD.4 

Article 12ter (1) of the Organic Law of the NBB5, as amended by the Law of 25 April 2014, establishes the 

NBB  as  the  resolution  authority  empowered  to  apply  resolution  tools  and  exercise  resolution  powers  in 

accordance with the BRRD. Article 21ter (1) of the  Organic  Law  of the  NBB established the  Resolution 

College as a new body of the NBB in charge of all relevant tasks related to the resolution function. The 

draft royal decree is proposed in application of Article 21ter (4) of the Organic Law which mandates the 

King to adopt the rules governing the organisation and functioning of the Resolution College, as well as 

the  conditions  of  exchange  of  information  with  third  parties  and  the  measures  to  prevent  conflicts  of 

interests.  

1  

2  

3  

4  
5    

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). 

Directive 2014/59/EU of the European Parliament and the Council of 15 May 2014 establishing a framework for the 
recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EC, and 
Directives  2001/24/EC,  2004/25/EC,  2005/56/EC,  2007/36/EC,  2011/35/EU,  2012/30/EU  and  2013/36/EU,  and 
Regulations  (EU)  No  1093/2010  and  (EU)  No  648/2012,  of  the  European  Parliament  and  the  Council  (OJ  L  173, 
12.6.2014, p. 190). 
Law of 25 April 2014 regarding the statute and the control of credit institutions; Law of 25 April 2014 amending the 
Organic Law of the NBB. 
The ECB commented on the draft of the Law of 25 April 2014 in Opinion CON/2014/17. 

Law of 21 February 1998 establishing the Organic Law of the NBB. 

 
 
 
 
                                                 
 
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2. 

General lines of policy and annual action plan 

The  ECB  welcomes  the  draft  royal  decree  as  it  strengthens  and  clarifies  the  organisation  and  the 

functioning  of  the NBB’s Resolution  College, in  line  with the common framework of intervention powers 

and rules laid down in the BRRD. The ECB also welcomes the fact that, in determining general lines of 

policy  and  priorities  that  apply  in  regard  to  resolution,  and  in  drawing  up  an  annual  action  plan  on  the 

subject  of  resolution,  the  NBB’s  Resolution  College  will  take  account  of  international  developments, 

specifically  of  the  implementation  of  the  single  resolution  mechanism,  as  stated  in  the  explanatory 

memorandum to the draft royal decree.  

3. 

Consequences  for  the  NBB  -  independence  and  compliance  with  the  prohibition  on 

monetary financing 

3.1  The  ECB  acknowledges  that  the  NBB  has  been  empowered  to  carry  out  resolution  tasks.  In  this 

respect,  any  performance  by  the  NBB  of  tasks  as  resolution  authority  should  not  affect: 

(a) the NBB’s  functional,  institutional  and  financial  independence;  and  (b)  the  NBB’s  performance 
of  its  Eurosystem-related  tasks6.  In  particular  as  regards  financial  independence,  previous  ECB 
opinions7  have  pointed  out  that  the  allocation  to  the  NCBs  of  specific  non-ESCB  related  tasks 

needs  to  be  accompanied  by  the  allocation  of  adequate  human  and  financial  resources  allowing 

such  tasks  to  be  carried  out  in  a  manner  which  will  not  affect  the  NCBs’  ability  to  carry  out  their 

ESCB-related or Eurosystem-related tasks from an operational and financial point of view. Against 

this background, the ECB would like to make the observations set out in the following.  

3.2  The  ECB  notes  that  the  draft  royal  decree  stipulates  that  the  NBB  has  to  provide  the  Resolution 
College with the material and human resources it requires in order to carry out its tasks8. The ECB 

understands  that,  according  to  Article  12ter  (2)  of  the  Organic  Law  of  the  NBB,  the  costs  of  the 

Resolution  College’s  functioning  will  be  ultimately  covered  by  credit  institutions.  From  this 

perspective, the ECB welcomes the introduction of Article 12ter (2) in the Organic Law of the NBB, 
which was recommended in its Opinion of 14 February 20149.  

However,  the  draft  royal  decree  does  not  contain  any  provisions  detailing  the  expense  recovery 

mechanism that is required by Article 12ter (2) of the Organic Law which the King is mandated to 

adopt.  As  it  is  expected  that  the  NBB’s  Resolution  College  will  be  carrying  on  its  tasks  from  the 

date on which the draft royal decree enters into force, and in the absence of an expense recovery 

mechanism,  the  NBB  will  thus  be  required  to  commit  additional  resources,  both  human  and 

financial,  to  these  tasks.  All  actual  costs  involved  in  fulfilling  the  NBB’s  resolution-related  tasks 

should be covered. For this reason, the NBB should be involved in setting up the expense recovery 

mechanism.  

6  
7  

8  
9    

See for example paragraph 3.2.2 of Opinion CON/2013/56. 
See  for  instance  paragraph  3  of  Opinion  CON/2007/8,  paragraph  3.3  of  Opinion  CON/2011/7,  paragraph  9  of 
Opinion CON/2011/84 and paragraph 3.1.2 of CON/2013/56. 
See Article 7(1) of the draft royal decree. 

See Opinion CON/2014/14, paragraph 3.4.  

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3.3 

In  addition,  given  that  the  NBB’s  Resolution  College  is  placed  within  the  NBB,  it  is  important  to 

ensure that decisions adopted by the Resolution College do not endanger the NBB’s finances as a 

whole. Therefore, the NBB decision-making body that is responsible for Eurosystem-related tasks 

should be given ultimate control over any decision of the Resolution College that could affect the 
NBB’s  independence  and  in  particular  its  financial  independence10.  Furthermore,  the  ECB 

underlines  the  importance  of  safeguarding  compliance  with  the  prohibition  on  monetary  financing 

laid  down  in  Article  123(1)  of  the  Treaty.  Irrespective  of  the  fact  that  an  NCB  may  act  as  a 

resolution  authority  under  the  BRRD,  resolution  in  the  financial  market  is  neither  a  Eurosystem-

related task, nor a traditional central banking task. Rather, it is a Government task and, as such, it 

is performed in the interest of the Belgian State. Therefore, if the NBB is to be entrusted with such 

a task, it needs to be adequately remunerated in advance, to ensure compliance with the monetary 
financing prohibition11.   

3.4  The  ECB  recommends  that  the  Belgian  authorities  adopt  as  soon  as  possible  the  details  of  the 
expense recovery mechanism12 in application of Article 21ter (2) of the Organic Law, and that the 

expenses  incurred  by  the  NBB  during  the  period  between  the  establishment  of  the  Resolution 

College and the adoption of the expense recovery mechanism should be covered retroactively by 

the same mechanism.  

4. 

Exchange  of  information  and  the  separation  between  the  supervision  and  resolution 

functions 

4.1 

In view of the NBB carrying out both resolution and supervisory functions, the ECB welcomes the 

mechanisms  provided  for  in  the  draft  royal  decree  to  exchange  information  between  the  NBB’s 

Resolution College and the NBB’s supervisory services. The ECB understands that the Resolution 
College  may  request13  a  credit  institution  to  provide  it  with  information  by  virtue  of  Articles  226, 

section  2,  or  Article  276,  section  1  of  the  Law  on  banking.  For  the  sake  of  legal  certainty  and 

alignment  with  the  BRRD,  this  provision  should  be  refined  to  specify  that  the  Resolution  College 

has to first request such information from the competent authority supervising the credit institution. 

4.2   The  ECB  understands  that  the  Resolution  College  will  receive  and  use,  inter  alia,  confidential 
statistical information collected under Council Regulation (EC) No 2533/9814. Such exchange and 

use would be covered by Article 8(1)(d) of Regulation (EC) No 2533/98, according to which NCBs 

may use statistical information for the exercise of functions other than those specified in the Statute 

of  the  European  System  of  Central  Banks  and  of  the  European  Central  Bank  (hereinafter  the 

“Statute of the ESCB”), in accordance with Article 14.4 of the Statute of the ESCB. The ECB notes 

that Article 8(3) of Regulation (EC) No 2533/98 provides that the NCB, i.e. in the present situation 

See the ECB’s June 2014 Convergence Report, p. 27. 

10   
11 

See  the  ECB’s  June  2014  Convergence  Report,  p.  29,  as  well  as  paragraph  2.1  of  Opinion  CON/2011/30  and 
paragraph 3 of Opinion CON/2013/29. 
See for instance Opinion CON/2012/35. 

12   
13   
14    Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the 

See Article 10 of the draft royal decree. 

European Central Bank (OJ L 318, 27.11.1998, p. 8). 

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the  Resolution  College,  has  to  take  all  necessary  measures  to  ensure  the  physical  and  logical 

protection of the confidential statistical information. 

4.3  The  BRRD  ‘exceptionally’  allows  one  authority  to  carry  out  both  resolution  and  supervisory 

functions on condition that adequate structural arrangements are put in place to ensure operational 

independence and to avoid conflicts of interest between that authority’s resolution function and its 

other  functions.  In  this  respect,  the  BRRD  stipulates  that  staff  carrying  out  the  functions  of  the 

resolution  authority  must  be  structurally  separated  and  that  their  reporting  lines  must  also  be 

separated from staff carrying out tasks pursuant to the CRR and CRD IV or the other functions of 
the  relevant  authority15.  Since  it  is  important  to  ensure  the  operational  independence  of  the 

resolution  function  and  to  avoid  conflicts  of  interests  between  the  resolution  function  and  other 
functions16,  the  ECB  would  appreciate  it  if  future  regulations  of  the  NBB’s  Resolution  College, 
which  should  provide  for  the  tasks  and  operations  of  the  Resolution  College’s  services17,  clearly 

reflect  the  requirements  for  adequate  structural  separation  as  laid  down  in  the  BRRD.  That 

separation  should  not,  however,  prevent  the  resolution  function  from  having  access  to  any 

necessary information which is available to the supervisory function.  

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

Done at Frankfurt am Main, 21 January 2015. 

The President of the ECB 

Mario DRAGHI 

15    
16   
17   

See Article 3(3) of the BRRD. 
See Opinion CON/2014/62 and Opinion CON/2014/60. 
See Article 7 of the draft royal decree. 

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