Opinion of the European Central Bank of 28 June 2016 on extending access to the central register of bank accounts (CON/2016/35)
Date: 2016-06-28
Institutions: European Central Bank
Subjects: Belgium, access to information, account, bank, database, fight against crime, national law, tax offence

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 28 June 2016 

on extending access to the central register of bank accounts  

(CON/2016/35) 

Introduction and legal basis 

On  1  June  2016  the  European  Central  Bank  (ECB)  received  a  request  from  the  Belgian  Ministry  of 

Finance  for  an  opinion  on  a  draft  law  extending  access  to  the  central  register  of  bank  accounts 

(hereinafter  the  ‘draft  law’)  to  certain  tax  authorities,  various  departments  of  the  Ministry  of  Justice  and 

public notaries.  

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  law  relates  to  the  Nationale  Bank  van  Belgiё/Banque  Nationale  de  Belgique  (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 Law  

1.1   The  purpose  of  the  draft  law  is  to  extend  the  list  of  persons  authorised  to  access  the  central 

register of bank accounts, with  a view to  combating not only  tax fraud and money  laundering  but 

also the financing of terrorism and financial crime in general. This central register, which has been 
operated by the NBB since 20112, consolidates data on bank accounts held by clients of financial 

institutions established in Belgium and on other financial operations (such as investment, leasing, 

mortgage and credit agreements). The NBB exercises formal control over the structure of the data 

but it has no control over the correctness and completeness of such data, which are provided by 

the financial institutions directly. 

1.2  Under the current legal framework, only a limited number of specifically nominated high-ranking tax 

authority civil servants appointed by the Ministry of Finance have access to the central register, for 

the purpose of identifying possible cases of tax fraud. Such access is provided by the NBB in the 

form of an extranet portal, which has been specifically designed for use by the Ministry of Finance. 

The information queries posted by the authorised officials of the Ministry of Finance are manually 

processed by NBB staff, who thereafter have  to upload the relevant  data to the portal. The costs 

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). 

In accordance with the Law of 14 April 2011 and the Royal Decree of 17 July 2013. 

 
 
 
 
                                                 
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incurred by the NBB for the set-up, development, operation and maintenance of the central register 

are  invoiced  quarterly,  in  accordance  with  the  agreement  concluded  between  the  NBB  and  the 

Ministry of Finance on the basis of Article 20 of the Royal Decree of 17 July 2013. 

1.3  The draft law extends access to the central register to (a) high-ranking officials in charge of, in the 

event of fraud, value added tax and customs and excise duties; (b) high ranking officials in charge 

of collecting value added tax, customs and excise duties, non-tax debts, registration, mortgage and 

court registry rights, inheritance tax, criminal fines, confiscated sums of money and court costs; (c) 

public  prosecutors  in  charge  of  investigations  relating  to  tax  fraud,  money  laundering  and  the 

financing  of  terrorism;  (d)  examining  magistrates  and  the  criminal  courts;  (e)  the  unit  for  the 

prevention of the use of the financial system for the purpose of money laundering and the financing 

of terrorism; and (f) notaries for the purpose of issuing inheritance declarations.  

1.4  The draft law does not specify in which form access to the central register is to be provided to the 

persons granted access under the draft law.  

1.5  The draft law is expected to enter into force shortly in order to enable immediate availability of the 

data contained in the central register to the persons mentioned in paragraph 1.3. 

2.   General observations 

2.1  The ECB takes note of the fact that the draft law aims to combat tax fraud and prevent the use of 

the financial system for the purpose of money laundering and terrorist financing.  

2.2  The  ECB  understands  that  the  draft  law  amends  the  national  legal  framework  governing  the 

establishment and operation of the central register of bank accounts, which consists of the Law of 

14 April 2011 and the Royal Decree of 17 July 2013. The ECB was consulted on these legal acts 
prior to their adoption  and  issued opinions on them 3. In its opinions, the ECB noted, in particular, 

that  the  new  task  entrusted  to  the  NBB  is  not  a  central  banking  task,  nor  does  it  facilitate  the 

performance of such a task. Rather, the ECB understood that the new task entrusted to the NBB is 

linked  to  a  State  task,  i.e.  the  collection  of  taxes  by  the  State  and  the  reinforcement  of  the  fight 

against tax fraud, and is performed in the interest of the State. The ECB concluded, therefore, that 

if the NBB is to be entrusted with such a task, it needs to be adequately remunerated in advance, to 

ensure  compliance  with  with  the  monetary  financing  prohibition.  In  addition,  the  financing  of  this 

new  task  entrusted  to  the  NBB  must  comply  with  the  principle  of  financial  independence,  under 

which  a  national  central  bank  must  have  sufficient  means  not  only  to  perform  its  ESCB-related 
tasks, but also its national tasks, e.g. financing its administration and own operations4. 

2.3  The  ECB  would  like  to  recall  that  when  new  tasks  are  conferred  on  a  member  of  the  European 

System of Central  Banks (ESCB),  it is  necessary  to  assess these tasks against the prohibition of 

monetary  financing  under  Article  123  of  the  Treaty.  For  this  purpose,  the  ECB  has  developed 

guidance  in  the  form  of  general  and  specific  considerations  on  the  basis  of  which  the  ECB  may 

3  

4  

See  Opinions  CON/2011/98  and  CON/2011/30.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 

See paragraphs 2.1 and 2.2 of Opinion CON/2011/30 and paragraph 2 of Opinion CON/2011/98. 

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decide  whether  the  new  task  conferred  on  an  ESCB  national  central  bank  (NCB)  is  to  be 

considered a central banking task or a government task for the purposes of the monetary financing 
prohibition5.  This  guidance  is  set  out  in  paragraph  2.4.  The  concrete  assessment  of  whether  the 

NBB’s tasks in connection with the central register and the extension of access proposed under the 

draft  law  are  to  be  considered  central  banking  tasks  or  government  tasks  is  then  undertaken  in 

paragraph 3 of this opinion. 

2.4   Guidance on the assessment of the monetary financing prohibition 

2.4.1  First,  the  systemic  categorisation  of  tasks  assigned  to  NCBs  as  central  banking  or  government 

tasks applies to genuinely new tasks that did not exist in the past or did not form an integral part of 

the  central  banking  tasks  already  assigned  to  an  NCB.  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 their substance is amended. Second, 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.  Third,  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. Fourth, the 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 to be government tasks. 

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

task  on  the  institutional,  financial  and  personal  independence  of  the  NCB.  In  particular,  the 

following  issues  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,  without  necessarily  complementing  the  existing  central  bank  tasks.  If  a 

conflict  of  interest  arises  between  existing  and  new  tasks,  there  should  be  sufficient  mitigation 

measures in place to adequately address that conflict. Complementarity between the new task and 

existing central banking tasks should not, however, be interpreted broadly, as this could lead to the 

creation of an indefinite chain of ancillary tasks. The assessment of the complementarity of a new 

task  should  also  take  into  account  the  financing  of  that  task.  Second,  it  should  be  assessed 

whether without new financial resources the performance of the new task places a disproportionate 

burden  on  the  financial  or  organisational  capacity  of  the  NCB  and  may  negatively  impact  on  its 

capacity  to  properly  perform  existing  central  banking  tasks.  Third,  it  should  be  assessed  whether 

the performance of the new task is aligned with the institutional set-up of the NCB, in particular as 

regards  central  bank  independence  and  accountability  considerations.  Fourth,  it  should  be 

assessed whether the performance of the new task entails 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  that  are  disproportionate  and  could  also  impact  on  their 

personal  independence.  Any  final  assessment  on  the  qualification  of  a  task  given  to  an  NCB  as 

either falling within the scope of a central banking ask or a government task will be guided by the 

5  

See Opinion CON/2015/22. 

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objective  of  ensuring  the  consistent  application  of  the  monetary  financing  prohibition  within  the 

Eurosystem and the ESCB.  

ECB-PUBLIC 

3. 

Specific observations 

3.1  Extended access to the central register 

The  ECB  notes  that  the  draft  law  makes  the  NBB  responsible  for  granting  access  to  the  central 

register of bank accounts to the persons mentioned in paragraph 1.3. The ECB understands that by 

extending  access  to  the  central  register  the  users’  group  will  be  considerably  broadened  and  will 

thus become more heterogeneous. The NBB may need to revisit its communication channels with 

the users, since these were only developed to accommodate a small number of requests entered 

by a few high-ranking Ministry of Finance officials. The substance of the task initially conferred on 

the NBB would be significantly expanded by the provisions of the draft law and should therefore be  

reassessed  in  the  light  of  the  proposed  extension  of  access  against  the  prohibition  of  monetary 

financing.  

3.2  Principle of financial independence 

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 not only their ESCB related 

tasks, but also their national tasks, both from an operational and a financial perspective. In the two 

previous ECB opinions submitted to the Belgian authorities on the legal framework governing the 
central register of bank accounts 6, the ECB insisted that the NBB be adequately remunerated for 

all  costs  incurred  when  performing  activities  related  to  its  tasks  in  connection  with  the  central 

register, be it through remuneration provided in advance or through full and prompt reimbursement 

of costs on market terms. The Royal Decree of 17 July 2013 implementing Article 322, section 3 of 

the Revenue Code had met these concerns by requiring that all costs incurred by the NBB for the 

establishment,  development,  operation  and  maintenance  of  the  central  register  be  allocated 

quarterly to the Ministry of Finance, in accordance with the agreement entered into with the NBB. 

Currently  the  costs  incurred  in  connection  with  the  central  register  can  be  easily  tracked  and 

invoiced to the Ministry of Finance. However, full coverage of the costs associated with the task of 

extending access to the central register to the persons mentioned in paragraph 1.3, most of whom 

operate  within  the  remit  of  the  Ministry  of  Justice,  cannot  be  ensured.  The  existing  financial 

arrangements  only  cover  the  costs  of  the  requests  filed  by  persons  falling  within  the  remit  of  the 

Ministry of Finance and thus the reimbursement of all costs incurred by the NBB when performing 

the significantly expanded task cannot be ensured.  

The  draft  law  contains  no  provisions  on  procedures  for  monitoring,  allocating  and  invoicing  the 

supplementary costs incurred by NBB in granting the extended access to the central register. The 

ECB understands that the Belgian legislator intends, at a later stage, to adopt a standalone law that 

would  govern  all  relevant  aspects  of  the  central  register,  including  its  technical  infrastructure  and 

the  financing  mechanisms.  However,  the  ECB  notes  that  the  expected  significant  increase  in  the 

6  

See paragraph 2 of Opinions CON/2011/30 and CON/2011/98. 

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number of requests for access may, if the new access requests are not received in an automated 

manner  or  via  electronic  means,  necessitate  the  mobilisation  of  substantial  NBB  staff  resources 

and  place  a  disproportionate  burden  on  the  NBB’s  organisational  capacity.  This  may  negatively 

impact the NBB’s capacity to properly perform its existing central banking tasks. The ECB therefore 

urges the Belgian legislator to ensure that the entry into force of the draft law be accompanied by 

the  implementation  of  a  corresponding  cost  recovery  mechanism,  in  order  to  safeguard  the 

financial  independence  of  the  NBB  and  dispel  the  monetary  financing  concerns  associated  with 

carrying out a government task. 

3.3  Discharge of tasks on behalf and in exclusive interest of Government  

The  ECB  has  previously  opined  that  tasks  entrusted  to  an  ESCB  member  relating  to  the 

establishment of a central register of bank accounts are not central bank tasks nor do they facilitate 
the enforcement of such tasks7. The ECB considers this task to be clearly a government task since 

its  purpose  is  to  combat  tax  evasion,  money  laundering  and  the  financing  of  terrorism.  It  thus 

cannot be regarded in any respect as a central bank task. 

3.4  Complementarity  of  tasks  with  existing  NBB  tasks  and  extent  to  which  conflicts  of  interest  with 

existing NBB tasks are addressed 

Under  the  Royal  Decree  of  17  July  2013,  the  reasons  for  entrusting  the  NBB  with  the  task  of 

operating the central register are that the NBB is capable of handling sensitive bank account data, 

the NBB is neutral and independent of the other institutions involved in tax collection and the NBB 

has experience in centralising sensitive financial data. Notwithstanding these reasons, the ECB has 

analysed  if  the  operation  of  a  central  register  with  such  broad  access  is  complementary  to  the 

NBB’s  existing  tasks.  The  ECB  notes  that  the  draft  law  is  only  extending  the  scope  of  persons 

having access to the existing register and that the central register has been placed into a separate 

department,  with  access  to  the  database  being  exclusively  granted  by  the  NBB  Board  to  certain 

staff.  This  institutional  set-up  should  help  to  alleviate  concerns  regarding  potential  conflicts  of 

interest. 

3.5  Extent to which the performance of tasks is aligned with institutional set-up of NCB 

In  view  of  the  fact  that  operating  a  central  register  of  bank  accounts  cannot  be  regarded  as  a 

central bank task, this might raise concerns as to how such a task would fit into the institutional set-

up  of  the  NBB.  However,  it  is  acknowledged  that  locating  the  central  register  in  a  separate 

department  adequately  ensures  that  the  data  obtained  in  this  context  are  not  accessible  to  other 

NBB departments carrying out ESCB or other national tasks.  

3.6  Extent to which the performance of tasks entails substantial financial risks 

As  emphasised  in  its  previous  opinion 8,  the  liability  of  the  NBB  in  relation  to  the  operation  of  the 

central  register  is  explicitly  limited  to  cases  of  misconduct  or  wilful  negligence,  on  account  of  the 

extremely  limited  control  that  the  NBB  has  over  the  correctness  and  completeness  of  the  data 

contained  in  the  central  register.  This  limitation  of  the  NBB’s  liability  should  help  to  reduce  the 

financial risks associated with the performance of the extension of access to the exisiting register to 

a broader range of persons. 

7  
8  

See paragraph 3.1.3 of Opinion CON/2015/46. 

Paragraph 1.2 of Opinion CON/2011/98. 

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3.7  Extent  to  which  the  performance  of  tasks  exposes  members  of  NBB’s  Board  to  disproportionate 

political risks or could impact their personal independence 

The  limitation  of  the  NBB’s  liability  in  relation  to  the  operation  of  the  central  register  is  without 

prejudice to the Law of 8 December 1992 on the protection of privacy in relation to the processing 

of  personal  data,  which  applies  to  NBB  as  the  central  register  is  deemed  to  be  a  ‘filing  system’ 

within  the  meaning  of  the  said  law.  This  law  requires,  in  particular,  that  the  NBB  takes  any 

appropriate  technical  and  organisational  measures  necessary  to  protect  personal  data  from 

unauthorised  access  and  processing.  In  view  of  the  increased  number  of  persons  authorised  to 

access the central register, the NBB’s compliance with this obligation will inevitably become more 

complex.  It  cannot  be  excluded  that  the  NBB’s  Board  could  be  exposed  to  reputational  risks, 

should the data be accessed by a non-authorised applicant or otherwise be publicly disclosed. The 

fact that the central register will contain sensitive information could place NBB’s Board members in 

a  difficult  position  should  this  information  enter  into  the  public  domain,  potentially  entailing  a 

negative impact on their personal independence. 

3.8  Conclusion 

The  ECB  is  concerned  by  the  absence  in  the  draft  law  of  clear  financial  arrangements  regarding 

the  full  recovery  of  the  costs  to  be  incurred  by  the  NBB  in  performing  its  tasks  concerning  the 

central  register  of  bank  accounts.  With  a  view  to  safeguarding  the  financial  independence  of  the 

NBB  and  dispelling  the  monetary  financing  concerns  associated  with  carrying  out  a  government 

task,  the  ECB  urges  the  Belgian  legislator  to  ensure  that  the  entry  into  force  of  the  draft  law  be 

accompanied  by  procedures  for  monitoring,  allocating  and  invoicing  all  costs  associated  with 

granting extended access to the central register.  

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

Done at Frankfurt am Main, 28 June 2016. 

[signed] 

The President of the ECB 

Mario DRAGHI  

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