Opinion of the European Central Bank of 26 November 2015 on the deposit guarantee scheme (CON/2015/52)
Date: 2015-11-26
Institutions: European Central Bank
Subjects: Netherlands, bank deposit, central bank, financial stability, financial supervision, guarantee, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 26 November 2015 

on the deposit guarantee scheme 

(CON/2015/52) 

Introduction and legal basis 

On  9  October  2015  the  European  Central  Bank  (ECB)  received  a  request  from  the  Dutch  Minister  of 

Finance for an opinion on a draft legislative decree on the Dutch Deposit Guarantee Scheme (hereinafter 

the ‘draft decree’), which transposes Directive 2014/49/EU of the European Parliament and of the Council 
on deposit guarantee schemes1 into Dutch law. 

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/EC  of  29  June  1998  on  the  consultation  of  the  European  Central  Bank  by  national  authorities 

regarding  draft  legislative  provisions,  as  it  relates  to  De  Nederlandsche  Bank  (DNB)  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 decree 

1.1.  The  draft  decree  implements  Directive  2014/49/EU  and  amends  inter  alia  the  Dutch  Decree  on 

special  prudential  measures,  investor  compensation  and  deposit  guarantee  (hereinafter  the 

‘Decree’), which was adopted pursuant to the Dutch Law on financial supervision. The draft decree 

should  be  read  in  the  light  of  the  Law  on  financial  supervision  as  currently  in  place  and  the 

proposed  amendments  to  it  under  another  draft  law  that  implements  Directive  2014/59/EU  of  the 
European Parliament and of the Council2 (hereinafter the ‘draft law on BRRD Implementation’)3.  

1.2.  The  draft  decree  concerns  the  Dutch  deposit  guarantee  scheme  (DGS),  which  is  presently 

operated by DNB. Based on the legislation currently in place, if a credit institution is no longer able 

to  meet  its  obligations  vis-à-vis  depositors,  the  DGS  is  activated  and  the  costs  are  apportioned 

among  other  participating  credit  institutions.  Hence,  the  DGS  is  funded  on  an  ex  post  basis  by 

1  

2  

3  

Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes 
(OJ L 173, 12.6.2014, p. 149). 
Directive 2014/59/EU of the European Parliament and of 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/EEC, 
and  Directives  2001/24/EC,  2002/47/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  of  the 
Council (OJ L 173, 12.6.2014, p. 190). 
The draft legislation is available on the website of the Dutch government at www.overheid.nl. 

 
 
 
 
                                                 
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contributions from the  participating credit institutions and  DNB advances the  amounts needed for 

its operation.  

1.3.  Under  the  draft  decree  ex  post  funding  arrangements  for  the  DGS  are  replaced  with  ex  ante 

funding  arrangements.  It  establishes  a  deposit  guarantee  fund  (hereinafter  the  ‘Fund’)  which  is  a 

legal entity under public law with its own board, which is the owner of the financial resources in the 

Fund  and  is  responsible  for  the  management  of  the  Fund’s  resources.  The  Fund  is  financed 
through ex ante contributions imposed on participating credit institutions4. Reimbursements that are 
paid under the DGS are charged to the Fund5. The draft decree also provides for the possibility to 

call  upon  the  participating  credit  institutions  for  extraordinary  contributions  if  the  pre-collected 

resources  are  insufficient.  The  Fund  may  enter  into  agreements  with  third  parties  to  obtain 
financing from them if the extraordinary contributions are not available immediately6. 

1.4.  The  Law  of  financial  supervision  as  currently  in  place,  together  with  the  draft  law  on  BRRD 

implementation and the draft decree, assign certain tasks to DNB in the context of the operation of 

the DGS. 

(i) 

The Law on financial supervision as currently in place provides that DNB decides when the 

DGS  is  invoked  and  is  responsible  for  granting  the  reimbursements  within  the  applicable 
payment deadline7. Moreover, insofar as depositors receive a reimbursement, DNB acquires 

the  claims  of  these  depositors  and  seeks  recovery  from  the  assets  of  the  institution  in 
relation to which the DGS has been activated8. 

(ii) 

The  draft  law  on  BRRD  implementation  adds  two  provisions  to  the  Law  on  financial 

supervision  regarding new tasks  of  DNB in the context of the  operation of the Dutch DGS. 

These  provisions  require  that  DNB  (a)  supports  the  Fund  in  the  exercise  of  its  tasks; 

(b) provides  the  Fund  with  the  financial  means  that  are  necessary  for  the  exercise  of  its 
tasks9; and (c) decides on the appointment, suspension and discharge of the Fund’s board 
members10. These provisions form the legal basis for the draft decree. The ECB notes that it 

has not been consulted on the draft law on BRRD implementation. 

(iii)  The draft decree provides for the following new tasks for DNB: (a) DNB determines the level 

of the ex ante contributions and of the extraordinary contributions of each participating credit 
institution  and  the  period  within  which  the  ex  ante  contributions  must  be  paid11;  (b)  DNB 

determines the currency in which the reimbursements are paid and, if reimbursements at the 

DGS’s  expense  cannot  be  granted  and  made  payable  within  seven  days,  it  grants  the 

deposit holder an appropriate amount, at the expense of the Fund, so that they are able to 

4  
5  
6  
7  
8  
9  
10  
11  

See Article 29.12 and Annex B of the draft decree. 

See Article 29.05 of the draft decree. 
See Article 29.14 of the draft decree. 

Article 3:260 and 3:261(3) of the Law on financial supervision. 
See Article 3:261(4) and 3:265(1) of the Law on financial supervision. 
See Article 3:259a(4) of the Law on financial supervision (not yet in force). 

See Article 3:259a(3) of the Law on financial supervision (not yet in force). 
See Article 29.12(2) and 29.14(3) of the draft decree. 

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meet  their  living  expenses12;  and  (c)  any  revenues  obtained  by  DNB  as  a  result  of  the 
exercise of its right of recourse13are paid to the participating credit institutions or credited to 
the Fund14, as applicable.  

(iv)  The draft decree restates the following tasks that DNB already performs on the basis of the 
Decree: (a) DNB grants the reimbursements to deposit holders15; (b) DNB gives notice of its 

decision to apply the DGS in the Dutch Government Gazette and in national newspapers of 

its own choosing and publishes its decision to grant a reimbursement to a deposit holder on 

a  website  which  deposit  holders  can  use  to  make  arrangements  for  the  payment  of  the 
reimbursement16;  and  (c)  DNB  requests  administrators  or  receivers  of  the  institution  in 

relation to which the DGS has been activated to draw the attention of deposit holders to the 
applicability of the DGS17.  

2. 

General observations  

2.1.  The ECB supports the establishment of an ex ante funded DGS in the Netherlands, in line with the 

common  framework  for  DGSs  laid  down  in  Directive  2014/49/EU.  Harmonised  arrangements  and 

conditions for deposit protection are necessary to ensure a level playing field in the context of the 
Union’s single market for financial services18. Ex ante funding of DGSs, supported by ex post funds 

collected  if  necessary,  has  the  advantage  of  greater  reliability  and  availability  and  considerably 

enhances  financial  stability,  in  particular  because  the  reliance  on  ex  ante  contributions  from  the 
participating institutions may have a counter-cyclical nature19. 

2.2.  The  ECB  stresses,  however,  that  it  is  not  addressing  whether  the  draft  decree  effectively 

implements Directive 2014/49/EU in Dutch law. Rather, the ECB focuses on those provisions that 

may impact on the role and tasks of DNB as a central bank and as a member of the Eurosystem 

and  the  European  System  of  Central  Banks  (ESCB).  In  this  respect,  as  far  as  central  bank 

involvement  is  concerned,  funding  arrangements  for  DGSs  must  comply  with  the  monetary 

financing prohibition laid down in the Treaty, and in particular with the prohibition of national central 

banks  (NCBs)  providing  overdraft  facilities  or  any  type  of  credit  facility  within  the  meaning  of 
Article 123 of the Treaty20. 

12  
13  
14  
15  
16  
17  
18  

19  

20  

See Article 29.07(2) and 29.08(1) of the draft decree. 

DNB has this right of recourse based on the current Law on financial supervision, see point (i) above.  
Article 29.15 of the draft decree which refers to Article 3:261(4) and 3:265(1) of the Law on financial supervision. 
See Article 29.05(1) of the draft decree. 

See Articles 27.07(1), 29.04(1), and 29.09 of the draft decree. 
Article 29.04(3) of the draft decree. 
See  paragraph  4  of  Opinion  CON/2011/12.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 
See  paragraph  4.3  of  Opinion  CON/2011/60  and  Commission  staff  working  document,  Impact  Assessment, 
Accompanying document to the Proposal for a Directive …/…/EU of the European Parliament and of the Council on 
Deposit Guarantee Schemes (recast) and to the Report from the Commission to the European Parliament and to the 
Council  Review  of  Directive  94/19/EC  on  Deposit  Guarantee  Schemes,  (COM(2010)  368),  p.  58,  available  on  the 
Commission’s website at www.ec.europa.eu. 
See paragraph 9.3 of Opinion CON/2011/12. 

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2.3.  The  ECB  has  developed  the  guidance  set  out  in  paragraphs  2.3.1  to  2.3.3  of  this  opinion  on  the 

basis of which it may decide whether a new task conferred on an NCB is to be considered a central 

banking  task  or  a  government  task  for  the  purposes  of  assessing  such  conferral  against  the 
prohibition of monetary financing21. This guidance applies to genuinely new tasks that either did not 

exist in the past or did not form an integral part of the central banking tasks assigned to an NCB in 

the past. In recognition of the different Member States’ legal frameworks, central banking traditions 

and  national  set-ups,  the  tasks currently  discharged  by  an  NCB  as  central  banking  tasks  are  not 

reviewed and re-categorised, but may be reassessed if they are subject to legislative amendments 

of substance. In this regard, the ECB notes that the tasks previously conferred on DNB in relation 

to the  operation  of the  Dutch DGS are, in part, different from  the  tasks conferred  on DNB  by  the 

draft  decree,  which  aims  at  changing  essential  elements  of  the  set-up  of  the  Dutch  DGS.  As  a 

consequence, the tasks currently performed by DNB differ substantially from the tasks envisaged 

and should therefore be reviewed. Therefore, it should be assessed whether the new role of DNB 

in  the  operation  of  the  DGS  is  compatible  with  the  prohibition  of  monetary  financing  under 

Article 123  of  the  Treaty.  The  concrete  assessment  of  whether  DNB’s  tasks  in  the  context  of  the 

operation  of  the  Dutch  DGS  are  to  be  considered  central  banking  tasks  or  government  tasks  is 

undertaken in paragraph 3.2 of this opinion. 

2.3.1. General considerations 

First,  the  principle  of  financial  independence  requires  that  the  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, as applicable.  

Second, central banking tasks comprise in particular those tasks that are related to the tasks listed 

in Article 127(2), (5) and (6) of the Treaty. 

Third,  new  tasks  conferred  on  an  NCB  which  are  atypical  of  NCBs’  tasks,  or  which  are  clearly 

discharged on behalf of and in the exclusive interest of the government or of other public entities, 

should be considered as government tasks. In that context, a distinction should be drawn between 

liquidity-  and  solvency-related  tasks  of  NCBs.  While,  for  the  purposes  of  the  monetary  financing 

prohibition, solvency support is a government task, liquidity-related tasks, the ultimate objective of 

which are to finance the economy, are central banking tasks. 

2.3.2. Specific considerations 

In  principle,  tasks  related  to  a  DGS  can  be  assigned  to  central  banks  provided  that  they  do  not 

undermine  an  NCB’s  independence  in  accordance  with  Article  130  of  the  Treaty.  However,  the 

discharge of these tasks by central banks may not extend to the financing of DGSs as these are 

government tasks. This is without prejudice to the possibility for central banks to provide short-term 

financing  to  DGSs  provided  that  such  financing  addresses  urgent  situations,  systemic  stability 
aspects are at stake and decisions are at the discretion of the NCB22.  

21  
22  

See Opinion CON/2015/22. 

See  the  ECB’s  2014  Convergence  Report,  p.  30,  available  on  the  ECB’s  website  at  www.ecb.europa.eu,  and 
paragraph 3.1.3 of Opinion CON/2011/76. 

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An important criterion for qualifying a new task as a government task is the impact of the task on 

the institutional, financial and personal independence of the NCB. In particular, the following should 

be taken into account. 

First,  it  should  be  assessed  whether  the  performance  of  the  new  task  creates  inadequately 

addressed  conflicts  of  interests  with  existing  central  banking  tasks,  and  does  not  necessarily 

complement  those  existing  central  banking  tasks.  If  a  conflict  of  interest  arises  between  existing 

and  new  tasks,  there  should  be  sufficient  mitigation  in  place  to  adequately  address  that  conflict. 

Complementarity between the new task and existing central banking tasks should not, however, be 

interpreted  extensively,  so  as  to  lead  to  the  creation  of  an  indefinite  chain  of  ancillary  tasks. 

Complementarity should also be examined from the point of view of the financing of those tasks. 

Second,  it  should  be  assessed  whether  without  new  financial  resources  the  performance  of  the 

new  task  is  disproportionate  to  the  financial  or  organisational  capacity  of  the  NCB  and  may 

negatively impact its capacity to properly perform existing central banking tasks. 

Third,  it  should  be  assessed  whether  the  performance  of  the  new  task  does  not  fit  into  the 

institutional  set-up  of  the  NCB  in  the  light  of  central  bank  independence  and  accountability 

considerations. 

Fourth,  it  should  be  assessed  whether  the  performance  of  the  new  task  harbours  substantial 

financial risks. 

Fifth, it should be assessed whether the performance of the new task exposes the members of the 

NCB’s decision-making bodies to political risks which are disproportionate and may also impact on 

their  personal  independence  and,  in  particular,  the  guarantee  of  the  term  of  office  under 

Article 14.2 of the Statute of the European System of Central Banks and of the European Central 

Bank. 

2.3.3. Any  final  assessment  on  the  qualification  of  a  task  given  to  an  NCB  as  either  falling  within  the 

scope of a central banking task or a government task will be guided by the objective of ensuring the 

consistent application of the prohibition of monetary financing within the Eurosystem and the ESCB 

to the extent that it applies to its members. 

3. 

Specific observations 

3.1.  The role of DNB in the operation of the DGS 

The ECB welcomes the draft decree, as it establishes an ex ante funded DGS.  

The  ECB  stresses,  that  the  tasks  to  be  discharged  by  DNB  under  the  proposed  reallocation  of 

responsibility  for  the  performance  of  the  functions  related  to  the  DGS  need  to  comply  with  the 
monetary  financing  prohibition  under  Article  123  of  the  Treaty23.  To  this  end,  it  is  of  the  utmost 

importance  that  the  role  of  DNB  is  clearly  defined  in  the  legislative  framework  on  the  DGS  by 

further  aligning  the  Law  on  financial  supervision  with  the  aims  of  the  draft  decree  and  clearly 

23  

See paragraphs 3.1.1-3.1.3 of Opinion CON/2011/76. 

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embedding the distribution of tasks and responsibilities between DNB and the Fund, as is further 

discussed in paragraphs 3.2.5 and 3.2.9. 

3.2.  Conferral on DNB of tasks related to the DGS 

DNB  is  designated  as  the  authority  which,  together  with  the  Fund,  operates  the  DGS.  The  draft 

decree  aims  to  change  DNB’s role  in the context of the  operation  of the  DGS and  assigns some 

additional tasks to DNB. In the light of the guidance set out in paragraphs 2.3.1 to 2.3.3, it must be 

assessed  whether  DNB’s  tasks  and  responsibilities  in  this  field  could  constitute  a  breach  of  the 

monetary financing prohibition. 

3.2.1. New tasks  

It  is  noted  that  DNB  currently  has  tasks  in  the  context  of  the  operation  of  the  DGS  under  the 

Decree and the Law on financial supervision. DNB continues to perform these tasks, although the 

draft decree revises the set-up of the DGS and thereby, on the one hand, aims to change some of 

DNB’s responsibilities relating to the DGS and, on the other, assigns additional tasks to DNB, such 

as  the  determination  of  the  level  of  ex  ante  contributions  and  of  the  extraordinary  contributions 
each participating credit institution must pay24 and the granting to deposit holders of an appropriate 

amount,  at  the  expense  of  the  Fund,  so  that  they  are  able  to  meet  their  living  expenses  if 

reimbursements at the DGS’s expense cannot be granted and made payable within seven days. In 

addition,  the  draft  law  on  BRRD  implementation  requires  that  DNB:  (a)  supports  the  Fund  in  the 

exercise of its tasks; (b) provides the Fund with the financial means necessary for the exercise of 
its  tasks25;  and  (c)  decides  on  the  appointment,  suspension  and  discharge  of  the  Fund’s  board 
members26 

3.2.2. Principle of financial independence 

The  principle  of  financial  independence  requires  an  NCB  to  have  sufficient  means  not  only  to 

perform its ESCB-related tasks but also its own national tasks (e.g. financing its administration and 
own operations)27. When allocating specific non-ESCB related tasks to the NCBs, such as tasks in 

the area of deposit protection, additional human and financial resources must also be allocated for 

these  tasks  to  be  carried  out  in  a  manner  that  will  not  affect  the  NCBs’  operational  capacity  to 
perform their ESCB-related tasks28.  

In  this  regard,  the  ECB  notes  that  the  Law  on  financial  supervision  stipulates  that  the  credit 
institutions bear the costs of the DGS29. The ECB understands that this provision refers to both the 

reimbursements that are paid under the DGS and the costs of DNB’s tasks related to the operation 

of  the  DGS.  The  possibility  for  DNB  to  recover  its  operational  costs  from  the  participating  credit 

institutions has a positive impact on DNB’s financial capacity to assume those tasks. However, the  

24  
25  
26  
27  

28  
29   

See Article 29.12(2) of the draft decree. 
See Article 3:259a(4) of the Law on financial supervision (not yet in force). 

See Article 3:259a(3) of the Law on financial supervision (not yet in force). 
See the ECB’s 2014 Convergence Report, p. 25. See also paragraph 3.1.5 of Opinion CON/2009/93, paragraph 3.1 
of Opinion CON/2011/5, paragraph 4 of Opinion CON/2012/74 and paragraph 4 of Opinion CON/2013/29. 

See, for example, paragraph 4 of Opinion CON/2012/74. 
Article 3:259(2) Law on financial supervision. 

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ECB notes that no reference is made in the draft decree to the costs incurred by DNB in carrying 

out its DGS-related tasks. According to the explanatory memorandum, it will be necessary to levy a 

separate  charge  to  cover  the  costs  incurred  in  relation  to  the  DGS.  Such  a  separate  levy  will  be 

charged based on the Law on financial supervision funding. The ECB understands that it is being 

examined whether the current allocation criteria regarding the charging of the costs associated with 
the execution of the DGS require any amendment30. Taking into account the principle of financial 

independence, which is a key aspect of the principle of central bank independence as laid down in 

Article  130  TFEU,  it  needs  to  be  ensured  that  DNB  has  sufficient  funds  for  fulfilling  its  task  of 

operating the DGS. 

3.2.3. Links to tasks listed in Article 127(2), (5) and (6) of the Treaty 

As the ECB observed in an earlier Opinion31, central banks are in general in a good position to take 

on  responsibility  for  financial  stability,  given  their  insight  into  money  and  financial  market 

developments  and  their  involvement  in  payment  systems  and  monetary  policy  operations.  At  the 

same  time,  DGSs  are  a  key  element  of  the  financial  safety  net.  Therefore,  the  governance 

framework should ensure that the important function of such schemes is carried out professionally 

and  efficiently.  Moreover,  effective  coordination  with  the  overall  role  of  central  banks  in 

safeguarding financial stability should be ensured. This aim may be achieved through, among other 

things,  maintaining  an  adequate  level  of  involvement  of  the  central  bank  in  the  governance  and 

regulation of the national DGS. 

3.2.4. Atypical tasks 

A number of Member States have conferred on their NCBs a role in the operation of their DGSs. 

The tasks of an NCB with regard to the operation of the DGS could therefore be regarded as being 

tasks not atypical of a central bank. As noted in paragraph 3.2.1, DNB currently has tasks related 

to the operation of the Dutch DGS. 

3.2.5. Discharge of tasks on behalf of and in the exclusive interest of the Government or of other public 

entities 

DNB is designated as the authority which, together with the Fund, operates the Dutch DGS. DNB is 
an  independent  public  body  that  is  not  subordinate  to  the  Minister32.  DNB  is  accountable  for  the 

performance of these particular tasks to the Minister and the Minister has, among other things, the 
right of access of information on DNB’s tasks33.  

As  noted  above,  the  tasks  to  be  discharged  by  DNB  under  the  proposed  reallocation  of 

responsibility  for  the  performance  of  the  functions  related  to  the  DGS  still  need  to  be  clarified. 

Unless  the  Law  on  financial  supervision  is  aligned  with  the  aims  of  the  draft  decree,  the 

responsibilities and the functions to be performed by DNB under the Law on financial supervision,  

30  
31  
32  

33  

See the explanatory memorandum to the draft decree, p. 23. 

See paragraph 3.3 of Opinion CON/2007/26. 
Article  1:30  of  the  Law  on  financial  supervision  and  Article  1  of  the  framework  Law  on  non-departmental  public 
bodies. 

Article  1:30,  1:37  and  1:42  of  the  Law  on  financial  supervision  and  Article  18  of  the  framework  law  on  non-
departmental public bodies. 

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i.e. to grant the reimbursements within the applicable payment deadline and, insofar as depositors 

receive a reimbursement, to acquire the claims of these depositors and to seek recovery from the 

assets  of  the  institution  in  relation  to  which  the  DGS  has  been  activated,  appear  to  be  tasks 

discharged by DNB in the exclusive interest of the Government.  

Moreover, the ECB notes that in the explanatory memorandum to the draft decree the functions to 

be performed by DNB are seen in the light of the draft law on BRRD implementation that requires 
DNB  to  provide  the  Fund  with  the  financial  means  necessary  for  the  exercise  of  its  tasks34.  In 

addition,  the  explanatory  memorandum  states  that  it  cannot  be  excluded  that  DNB  may,  if 

necessary  and  in  the  interests  of  efficiency,  be  authorised  to  carry  out  certain  (payment) 
transactions on behalf of the Fund35. Insofar as DNB would be required to provide the necessary 

financial resources to the Fund and to carry out the Fund’s tasks, these would be tasks discharged 

by DNB in the exclusive interest of the Government. 

3.2.6. Extent to which conflicts of interests with existing DNB tasks are addressed and the performance of 

tasks fits into DNB’s institutional set-up in the light of central bank independence and accountability 

considerations 

The conferral of the tasks on DNB does not, prima facie, raise any issues of conflicts of interest. 

The performance of DNB’s new tasks in the context of the Dutch DGS fits into DNB’s institutional 

set-up,  which  was  adapted  to  DNB’s  functions  as  regards  the  operation  of  the  current  DGS.  The 

complementarity between the tasks related to the operation of the DGS and the supervisory tasks 

discharged by DNB, could be regarded as being reflected in the common system for the financing 

of DNB’s tasks via contributions from the supervised entities. The performance of these tasks does 

not  raise  any  issues  arising  out  of  accountability  considerations.  The  draft  decree  requires  close 

cooperation  between  DNB  and  the  Fund.  It  provides  that  the  Fund  is  accountable  to  DNB  in  the 

exercise  of  its  tasks  by,  among  other  things,  providing  DNB  an  annual  financial  report  that 
describes the exercise of the Fund’s tasks and the pursued policy36. DNB is, in its turn, accountable 
for the performance of its tasks to the Minister37. 

3.2.7. Extent  to  which  the  performance  of  tasks  is  proportionate  to  DNB’s  financial  and  operational 

capacity and its ability to perform its ESCB-related tasks 

In order to remain financially independent, DNB must have sufficient means to carry out not only its 

ESCB-related tasks from an operational  and  financial  point  of  view, but also its national tasks. In 

this regard the ECB welcomes the fact that the Law on financial supervision stipulates that credit 

institutions  bear  the  costs  of  the  Dutch  DGS.  However,  further  clarifications  are  needed  so  as  to 

ensure that DNB is adequately remunerated for the costs of operating the DGS.  

34  
35  
36  

37  

See Article 3:259a(4) of the Law on financial supervision (not yet in force). 

See the explanatory memorandum to the draft decree, p. 21. 
Article 29.10(2) and (3) of the draft decree and Articles 18(1), first and second sentence, 20, 26, 34(1) and 35(1) of 
the framework Law on non-departmental public bodies. 

Article 1:30 and 1:42 of the Law on financial supervision and Article 18 of the framework Law on non-departmental 
public bodies. 

8 

                                                 
ECB-PUBLIC 

According  to  the  explanatory  memorandum  to  the  draft  decree,  DNB  will  incur  one-off,  structural 

and  incidental  costs  that  relate  to  the  support  it  provides  to  the  Fund  for  its  payment  and 

management tasks, to the provision of the necessary financial means to the Fund, and to its own 

tasks. These costs will, inter alia, relate to the transition from an ex post to an ex ante funded DGS, 

to the determination of the amount of the contributions payable by the credit institutions and to the 

supervision of the institutions' fulfilment of the payment commitments. Given that it is not clear to 

what extent the charges to be levied would cover the financial resources required with regard to the 

operation  of  the  DGS,  the  ECB  recommends  that  the  draft  decree  should  explicitly  specify  that 

sufficient funds will be made available to DNB for fulfilling its task of operating the DGS. 

3.2.8. Extent to which the performance of tasks involves substantial financial risks 

As  noted  in  paragraph  3.2.5,  the  Law  on  financial  supervision  stipulates  that,  insofar  as  the 

depositors received a reimbursement, DNB acquires the claims of these depositors on, and seeks 

recovery from, the assets of the institution in relation to which the DGS has been activated. It is not 

clear to what extent DNB is affected financially by the task to recover on its own behalf the claims 

on the institution  in relation to  which the  DGS  has been  activated. Hence, the  ECB recommends 

aligning  the  provisions  in  the  Law  on  financial  supervision  with  the  distribution  of  tasks  and 

responsibilities between DNB and the Fund as laid down in the draft decree.  

3.2.9. Conclusion 

The ECB welcomes the shift of responsibilities from DNB to the Fund as well as the Fund’s role in 

the provision of reimbursements under the DGS. However, it is of the utmost importance that the 

role  of  the  DNB  is  clearly  defined.  This  clarification  is  all  the  more  needed  in  relation  to  any 

financing of the Fund’s tasks which the ECB considers to be a discharge of a government task. As 

consistently  emphasised  by  the  ECB,  in  line  with  the  prohibition  on  monetary  financing,  an  NCB 
may not finance DGSs38. In addition, clarification would be recommended with regard to the costs 

of operating the DGS.  

The ECB emphasises the importance of having all the rules according to which the ex ante Fund is 

being established fully compliant with the rationale that it is the Fund itself, rather than DNB, which 

finances the tasks of the DGS, including the pay-outs of the guaranteed deposits. As noted above, 

insofar as DNB would be required to provide the necessary financial resources to the Fund and to 

carry out the Fund’s tasks, these would be tasks discharged by DNB in the exclusive interest of the 

Government. Consequently, the ECB recommends that the Law on financial supervision is further 

aligned with the aims of the draft decree. To that end, it should be made clear that: (i) the Fund is 

responsible for paying out the reimbursements under the DGS; and (ii) the Fund, rather than DNB, 

acquires depositors’ claims and seeks recovery from the assets of the institution in relation to which 

the DGS has been activated. In addition, the draft decree should provide for the Fund’s, rather than 

38  

In line with Opinion CON/2011/76, which relates to another draft law on the Dutch DGS, the ECB would reiterate its 
view  that  the  only  forms  of  central  bank  financing  of  a  national  DGS  for  credit  institutions  compatible  with  the 
monetary financing prohibition are: (i) intraday credit in line with the general rules on provision of such credit by the 
central bank; and (ii) short-term funding addressing urgent situations in cases in which systemic stability aspects are 
at stake and the decisions are at the central bank’s discretion. 

9 

                                                 
DNB’s, right of recourse and disbursement by the Fund of any revenues to the participating credit 

institutions.  

ECB-PUBLIC 

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

Done at Frankfurt am Main, 26 November 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

10