Opinion of the European Central Bank of 24 March 2015 on the credit mediator legal framework (CON/2015/12)
Date: 2015-03-24
Institutions: European Central Bank
Subjects: Portugal, credit, credit institution, debt, financial stability, mediator, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 24 March 2015  

on the credit mediator legal framework  

(CON/2015/12) 

Introduction and legal basis 

On 14 January 2015 the European Central Bank (ECB) received a request from the Portuguese Ministry 

of  Finance  for  an  opinion  on  a  draft  decree-law  (hereinafter  the  ‘draft  law’)  amending  Decree-Law 

No 144/2009 of 17 June 2009 establishing the Portuguese credit mediator legal framework. 

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  and  sixth  indents  of  Article 2(1)  of  Council  Decision 
98/415/EC1, as the draft law relates to the Banco de Portugal (BdP) 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 law 

1.1.  The draft law introduces changes to the credit mediator legal framework, which was approved by 
Decree-Law No 144/2009 of 17 June 20092. The main purpose of the credit mediator is to defend 

and promote the rights and interests of any natural or legal persons that: (a) have applied for a loan 

(including renewals of credit) and the credit institution refused to grant it; or (b) have received one 

or  more  loans  from  a  credit  institution  and  wish  to  restructure  or  consolidate,  after  the  credit 

institution  has  denied  such  restructuring  or  consolidation.  To  that  end,  the  mediation  between 

customers and credit institutions, whenever the credit mediator is requested, aims at facilitating the 

debtor's relationship with the credit institution. 

1.2.  According  to  the  draft  law,  despite  the  success  of  the  introduction  of  the  credit  mediator,  its 

services  have  been  used  almost  exclusively  by  individuals  and  only  by  a  very  limited  number  of 

companies. The draft law intends, in view of the current focus of the credit mediator on facilitating 

the relationship of the debtor with the financial institutions, to raise awareness of the role the credit 

mediator  could  also  play  in  streamlining  the  processes  of  restructuring  corporate  financial  debt, 

both  in  terms  of  response  times  and,  where  applicable,  of  the  level  of  coordination  between  the 

entities involved.   

1  

2  

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). 
Diário da República No 115 series 1 of 17 June 2009.  

 
 
 
 
                                                 
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1.3.  Therefore,  the  purpose  of  the  draft  law  is  to  adopt  measures  that  promote  the  use  of  the  credit 

mediator’s  services  by  commercial  companies,  in  particular  in  connection  with  financial  debt 

restructuring.  For  this  purpose,  the  draft  law  amends  the  credit  mediator  regime  by  expressly 

conferring  on  it  the  following  functions:  (a)  to  provide  overall  assistance  with  credit  and  financial 

restructuring  activity,  and  (b)  to  coordinate  mediation  activity  between  bank  customers  and  credit 

institutions for the purpose of helping to streamline financial debt restructuring. In addition, the draft 

law introduces procedural rules for when the mediation relates to debt restructuring. 

1.4.  Another purpose of the draft law is to promote better coordination between the credit mediator and 

the Portuguese Ministry of Economy. In addition, the annual report from the credit mediator will be 

not  only  sent  for  approval  to  the  member  of  Government  responsible  for  finance  but  also  to  the 

member of Government responsible for the economy. There are also specific content requirements 

for this annual report regarding corporate debt restructuring. 

1.5.  Under  the  current  legal  framework  the  credit  mediator  coordinates  a  council  that  assists  in  the 

performance of the mediator’s  duties. Under the  draft law the  credit  mediator  and the council  will 

receive additional support from three consultative members with unpaid consultative functions who 

will  be  appointed  by  the  member  of  Government  responsible  for  the  economy.  They  will  assume 

particular  responsibility  for  the  overall  assessment  of  cases  relating  to  access  to  credit  and 

corporate debt restructuring, where mediation has been requested.  

1.6.  As  per  the  legal  framework  of  the  credit  mediator,  BdP  will  remain  responsible  for  the  technical, 

administrative and financial support of the credit mediator’s duties.  

2. 

General observations  

2.1.  The  ECB  welcomes  the  draft  law  as  it  establishes  an  additional  mechanism  to  help  relations 

between bank customers and credit institutions by means of fostering the use of the services of the 

credit mediator. Generally, the ECB recognises the purpose of supporting the rights of any natural 

or legal person in a credit relationship (or that wishes to enter into such relationship) with a credit 

institution, improving access to credit by individuals and companies and improving communication 

between these parties. Mediation provides an alternative form of solving or avoiding disputes and 

litigation if both parties can reach an understanding. 

2.2.  Specifically,  the  ECB  acknowledges  the  purpose  of  developing  policies  that  better  support  and 

strengthen the economy by helping to restructure debt in the financial sector, in particular for bank 

customers  that  are  commercial  companies  and  that  can  benefit  from  the  intervention  of  a  credit 

mediator.  This  assists  companies  in  dealing  with  financial  difficulties  and  possibly  avoiding 

bankruptcy by restructuring financial debt. 

3. 

Specific observations  

3.1.  Scope of the intervention by the credit mediator 

3.1.1. While reiterating its support for the draft law, the ECB notes that the scope of the intervention by 

the  credit  mediator  is  already  very  wide.  It  encompasses  all  types  of  banking  customers,  without 

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any limitation related to the amount of credit involved or, specifically, to the nature of the banking 

customer, be they natural or legal persons, small or medium-sized enterprises or large companies. 

3.1.2. Since the purpose of the draft law is to explicitly list commercial companies as key users of credit 

mediator services, in particular in connection  with financial debt restructuring, it is possible that a 

positive reaction from the market could result in significant additional and unexpected demand for 

such services. In this case, it is possible that the quality and promptness of the service might suffer. 

Moreover, the credit mediator will potentially be requested to assess debt restructuring operations, 

including complex cases in a multi-creditor context, which may affect the financial position as well 

as, potentially, the reputation of the banks concerned.  

3.1.3. Therefore  the  ECB  encourages  the  Portuguese  authorities  to  be  aware  of  such  potential  impacts 

and to adopt measures to ensure the quality of the service is maintained, while at the same time 

trying to avoid inappropriate recourse to the credit mediator. 

3.2.  Resources and funding of the credit mediator 

3.2.1. While  the  credit  mediator  will  receive  additional  consultative  resources  under  the  draft  law,  in  a 

potential scenario of intense use of the mediation mechanism by commercial companies, the credit 

mediator may be required to commit considerable own resources, including technical, financial and 

human, to the task of mediation in the restructuring of corporate financial debt in the private sector. 

As already indicated, this task will be in addition to all other tasks already referred to in the credit 

mediator  legal  framework.  Moreover,  the  draft  law  increases  the  depth  of  reporting  by  the  credit 

mediator  to  the  government  member  responsible  for  finance,  and  extends  the  scope  of  the 

reporting  to  include  the  member  responsible  for  the  economy.  This  increase  will  also  require  the 

credit  mediator  to  commit  additional  resources.  Therefore  the  ECB  encourages  the  Portuguese 

authorities to be aware of the resources implications of the draft law.  

3.2.2. Under  the  current  legal  framework,which  is  not  modified  in  this  respect  by  the  draft  law,  these 

resources  will  come  from  BdP.  Although  the  credit  mediator  is  independent  from  BdP,  the  bank 

pays for the services and provides the technical, administrative and financial support necessary for 
the credit mediator and the council to carry out their duties3.  

3.2.3. BdP’s  financing  and  support  of  the  credit  mediator,  which  is  neither  based  on  the  Treaty  or  the 

Statute  of  the  European  System  of  Central  Banks  and  of  the  European  Central  Bank,  nor  of  a 

supervisory nature, gives rise to the following issues.  

(a)  BdP’s resources would be used simultaneously for the mediation of credit relations between 

customers  and  credit  institutions  as  well  as  for  the  supervision  of  those  institutions,  a  task 

which  falls  upon  BdP  as  the  national  supervisory  authority.  This  contradiction  will  be 

amplified under the draft law as the credit mediator encompasses in its scope of intervention 

the  coordination  of  the  financial  debt  restructuring  affecting  credit  institutions  under  the 

supervision of BdP. Subsequently, a solution that would ensure that the performance of the 

credit mediator’s tasks was not dependent on BdP’s resources would not only be beneficial 

3  

See Article 13 of Decree-Law No 144/2009 of 17 June 2009. This Article is not modified by the draft law.  

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from  the  point  of  view  of  BdP’s  independence  but  also  from  the  point  of  view  of  the  credit 

mediator’s independence. 

(b) 

The  ECB  underlines  the  importance  of  safeguarding  compliance  with  the  prohibition  on 

monetary financing laid down in Article 123(1) of the Treaty. As already indicated, the tasks 

entrusted  to  the  credit  mediator  under  the  original  and  the  draft  law  are  governmental  and 

independent  from  BdP,  yet  BdP  must  assume  their  financing  and  provide  all  necessary 

support  in  order  for  these  tasks  to  be  carried  out.  Therefore,  in  this  specific  context,  full 

compliance  with  the  monetary  financing  prohibition  would  only  be  achieved  if  the  credit 

mediator, its tasks and those of the council are fully financed in advance and not dependant 
on BdP’s resources4. 

(c) 

In particular, in respect of the facilitating of debt restructuring  which is pursued by the draft 

law, the ECB would like to reiterate that ‘Member States may not put their NCBs in a position 

where  they  have  insufficient  financial  resources  to  carry  out  their  ESCB  or  Eurosystem-
related  tasks’5.  Therefore,  the  Portuguese  authorities  will  need  to  ensure  that  the 

performance of these additional tasks will not affect BdP’s operational capacity to carry out 
tasks  as  part  of  the  ESCB.  Previous  ECB  opinions6  have  pointed  out  that  the  allocation  to 

the NCBs of specific non-ESCB related tasks need 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  or  Eurosystem-related  tasks 

from an operational and financial point of view. 

(d) 

In  view  of  the  abovementioned  obstacles,  the  credit  mediator  should,  ideally,  be  hosted  or 

established  outside  BdP.  If,  in  the  end,  this  is  not  the  case,  the  agreement  of  BdP  will  be 

necessary  as  regards  the  conditions  under  which  BdP  would  be  able  to  host  the  credit 

mediator without BdP’s ability to carry out its ESCB/Eurosystem and supervisory tasks being 

affected from an operational and financial point of view, or the monetary financing prohibition 

being infringed.    

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

Done at Frankfurt am Main, 24 March 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

4  

5  
6 

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 the ECB’s Convergence Report of June 2014, p. 25. 

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, paragraph 3.1.2 of CON/2013/56 and paragraph 3.1 of CON/2015/2. 

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