Opinion of the European Central Bank of 11 August 2015 on amendments to constitutional law and the Law on Česká národní banka (CON/2015/28)
Date: 2015-08-11
Institutions: European Central Bank
Subjects: Czechia, appointment of staff, central bank, constitution, institutional activity, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 11 August 2015 

on amendments to constitutional law and the Law on Česká národní banka 

(CON/2015/28) 

Introduction and legal basis 

On 6 July 2015 the European Central Bank (ECB) received a request from the Czech Minister for Human 

Rights,  Equal  Opportunities  and  Legislation  (hereinafter  the  ‘Minister’)  for  an  opinion  on  a  draft 

constitutional law amending Law No. 1/1993 Coll. on the Constitution (hereinafter the ‘draft constitutional 

law’)  and  on  a  draft  law  amending  the  Law  on  Česká  národní  banka  No.  6/1993  Coll.  (hereinafter  the 

‘draft law on ČNB’; together with the draft law, the ‘draft laws’). The consulting authority did not specify a 

time limit for the submission of  the ECB’s opinion. The ECB understands that the  draft laws have  been 

adopted  by  the  Czech  Government  and  submitted  to  Parliament,  but  that  they  are  not  expected  to  be 

debated by the Lower House of Parliament (in committee) until after the summer recess. 

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 (hereinafter the ‘Treaty’) and the third indent of Article 2(1) of Council 
Decision  98/415/EC  of  29  June  1998 1,  as  the  draft  laws  relate  to  Česká  národní  banka  (ČNB).  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 laws 

The  purpose  of  the  draft  laws  is  to  amend  a  number  of  provisions  of  the  Constitution  of  the  Czech 

Republic (hereinafter the ‘Constitution’) relating to the powers of the legislative and executive branches of 

the State, and which consequently affect certain provisions of the Law on ČNB.  

In particular, the draft laws contain provisions which would change the procedure for the appointment of 

ČNB’s Governor, its two Vice-Governors and the other four members of ČNB’s Board (hereinafter ‘Board 

members’).  Whereas  the  Constitution  currently  stipulates  that  the  President  of  the  Czech  Republic 

(hereinafter  the  ‘President’)  appoints  and  dismisses  the  Governor,  the  Vice-Governors  and  the  Board 

members  without  any  further  requirement  to  obtain  the  consent  of,  or  consult  with,  any  third  party,  the 

draft  constitutional  law  stipulates  that  the  President  shall  appoint  the  Governor,  Vice-Governors  and 

Board members following the consent of the Senate. If the Senate should fail to reach a decision on the 

President's proposal within 60 days of being presented with the proposal, it will be deemed to have given 

its consent. The draft  law  on ČNB reflects this modification to the appointment  procedure  by stipulating 

1  

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). 

 
 
 
 
                                                 
ECB-PUBLIC 

that  the  President  shall  request  the  consent  of  the  Senate  for  the  appointment  of  the  Governor,  Vice-

Governors and Board members. The Ministry’s request for an  ECB opinion notes that this  procedure  is 

similar  to  the  appointment  procedure  for  the  Justices  of  the  Czech  Constitutional  Court  and  should 

strengthen  cooperation  between  the  executive  and  the  legislature.  The  Ministry  also  notes  that  the 

independent status of ČNB will be maintained. 

Second, the draft law on ČNB would require ČNB’s Board to appoint another Board member to perform in 

full  the  duties  of  Vice-Governor  (hereinafter  a  ‘substitute  Vice-Governor’)  until  a  new  Vice-Governor  or 

Governor  is  appointed,  in  the  event  that  one  of  the  two  offices  of  Vice-Governor  is  unoccupied  or  if  a 

Vice-Governor has been appointed to perform the duties of Governor. Likewise, if the office of Governor 

is  unoccupied,  ČNB’s  Board  will  be  required  to  appoint  one  of  the  Vice-Governors  (or,  if  applicable, 

substitute Vice-Governors) to perform the duties of Governor until a new Governor is appointed.  

The draft laws do not  affect the criteria for appointment or grounds for dismissal  of the Governor, Vice- 

Governors  or  other  Board  members,  nor  the  provisions  guaranteeing  their  personal  independence  as 

regards security of tenure.  

Furthermore,  pursuant  to  the  transitional  provisions  of  the  draft  constitutional  law,  appointments  to  the 

ČNB’s Board by the President in office at the date of entry into force of the draft constitutional law will be 

governed  by  the  Constitution  in  force  prior  to  that  date.  Therefore,  the  proposed  changes  to  the 

appointment of Board members would only apply to appointments made by any President elected in the 

future and they do not affect the term of office of Board members that are currently in office. 

2. 

General observations 

As  regards  the  proposed  change  to  the  appointment  procedure  for  the  Governor,  Vice-Governors  and 

other Board members, the ECB notes that the draft laws would strengthen the involvement of the Senate 

(Upper House of Parliament) in this procedure. In this regard the ECB recalls that Member States are free 

to set the conditions required for the appointment of the members of the decision-making bodies of their 
national central banks (NCBs)2.  

3.  

Specific observations regarding the draft laws  

3.1  The ECB  welcomes the  proposed amendment to the draft constitutional law stipulating that  if the 

Senate  fails  to  reach  a  decision  on  the  President's  proposal  for  a  new  Board  member  within 

60 days  of  being  presented  with  the  proposal,  it  will  be  deemed  to  have  given  its  consent.  This 
should facilitate the timely appointment of new Board members3, 

3.2  The  ECB  welcomes  also  the  provisions  of  the  draft  laws  on  substitute  Board  members  as  these 

provisions  should  ensure  the  continuity  of  performance  of  the  functions  of  Governor  and  Vice-

2  

3  

See  Opinion  CON/2009/13,  paragraph  3.4.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 

Member  States  have  a  general  duty  to  take  the  necessary  measures  to  ensure  the  timely  appointment  of  a 
successor  if  a  position  on  one  of  the  NCB’s  decision-making  bodies  becomes  vacant.  See  Opinion  CON/2013/69, 
paragraph 4.2, Opinion CON/2012/89, paragraph 7 and Opinion CON /2009/74, paragraph 2.2. See also the ECB’s 
2014 Convergence Report, p. 18. 

2 

 
 
                                                 
ECB-PUBLIC 

Governor. The ECB notes that one consideration in the context of central bank independence is the 

need  for  a  central  bank  legal  framework  that  provides  a  stable  basis  for  the  central  bank’s 
functioning4.  In  this  regard  the  ECB  considers  that  the  draft  law  on  ČNB  should  safeguard  the 
smooth and continuous functioning of ČNB’s Board5. 

3.3  The  ECB  notes  that  clear  rules  on  the  procedure  for  appointment  and  dismissal  are  not  only 

necessary for the Governor of an  NCB, but  also for any  person  who takes over  the  duties  of the 

Governor (or a Vice-Governor). Thus, it must be ensured that  any  Vice-Governor, or other  Board 

member who takes over the duties of the Governor or Vice-Governor on an interim basis, benefits 

from the same rules that apply to the Governor (and Vice-Governors) as regards security of tenure 
of  office,  grounds  for  dismissal  and  conflicts  of  interest6.  This  is  ensured  under  the  draft  law  on 

ČNB,  which  confines  the  pool  of  eligible  candidates  to  the  Vice-Governors  and  other  Board 

members,  all  of  whom  are  subject  to  the  same  rules  on  security  of  tenure  of  office,  grounds  for 

dismissal and conflicts of interest.  

3.4  The ECB notes that, should the provisions of the draft laws become subject to further amendments 

in  the  course  of  the  parliamentary  process  and  should  these  amendments  substantially  alter  the 

draft laws compared to the versions on which the ECB was consulted, then the ECB would need to 
be reconsulted on these amendments7. 

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

Done at Frankfurt am Main, 11 August 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

4  
5  

6  
7  

See Opinion CON/2010/91, paragraph 2.2. 

For  instance,  it  should  prove  useful  if  the  office  of  Governor  or  Vice-Governor  were  to  become  vacant  but  the 
constitutional procedure for appointing a successor had not yet been completed. This could arise, for example, if the 
Senate were to withhold its consent before the  expiration of the 60-day period mentioned in paragraph 3.1 above, 
which would trigger the need to start a fresh appointment procedure. 
See Opinion CON/2010/37 paragraph 2.1 and Opinion CON/2010/91 paragraph 3.2.  

See for example Opinion CON2006/32, paragraph 4.1. 

3