Opinion of the European Central Bank of 8 June 2017 on a new category of debt instruments, new macroprudential tool, the creation of a new category of settlement institution and the exclusion of set-off rights (CON/2017/23)
Date: 2017-06-08
Institutions: European Central Bank
Subjects: Belgium, banking supervision, claim, credit institution, debt, financial stability, monetary policy, national law, payment system, statistics

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 8 June 2017 

on a new category of debt instruments, new macroprudential tool, the creation of a new category 

of settlement institution and the exclusion of set-off rights   

(CON/2017/23) 

Introduction and legal basis 

On 3 April 2017, the European Central Bank (ECB) received a request from the Governor of the Nationale 

Bank  van  België/Banque  Nationale  de  Belgique  (NBB),  on  behalf  of  the  Minister  of  Finance,  for  an 

opinion on a draft law on various financial and tax provisions (hereinafter the ‘draft 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 (TFEU) and the third, fourth, fifth and sixth indents of Article 2(1) of 
Council  Decision 98/415/EC1,  since  the  draft  law  concerns  the  NBB,  the  collection  of  balance  of 

payments statistics, payment and settlement  systems as well  as 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 amends various provisions contained in (a) the Law of 22 February 1998 establishing 

the  Organic  Statute  of  the  Nationale  Bank  van  België/Banque  Nationale  de  Belgique  (hereinafter 

the  ‘NBB  Organic  Law’);  (b)  the  Royal  Decrees  of  14  November  2008  and  22  April  2012 

implementing  the  NBB  Organic  Law  as  regards  the  establishment  of  the  guarantee  fund  for 

financial services; (c) the Law of 28 February 2002 organising the establishment of the balance of 

payments  (hereinafter  the  ‘Law  of  28  February  2002’);  and  (d)  the  Law  of  25  April  2014  on  the 

status and supervision of credit institutions and brokerage firms (hereinafter the ‘Banking Law’). 

1.2  The draft law amends the NBB Organic Law in order to specify that the set-off that might result in 

the extinguishment of all or part of the claims pledged to the NBB or enforced by the NBB may not 

be asserted against the NBB  or any  other third-party purchasers of the said claims. According to 
the  explanatory  memorandum  accompanying  the  draft  law2,  under  the  current  text  of  Article  7  of 

the  NBB  Organic  Law  a  third  party  purchasing  such  a  credit  claim  does  not  benefit  from  the 

exclusion of set-off rights. This implies that the debtor of pledged claims is able to assert a right of 

1  

2  

Council Decision 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). 

See section entitled ‘Comments on the articles’ in the explanatory memorandum, pp. 10-12.  

 
 
 
 
                                                 
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set-off against a third-party purchaser of the claims in the same way that it can assert a right of set-

off against its creditor. This situation lowers the sale value of the credit claims involved and could 

expose the NBB to potential  losses, as  it may  incur liability  towards the third-party purchaser. To 

neutralise  this  risk,  the  draft  law  proposes  to  expand  the  scope  of  the  exclusion  of  set-off  rights, 

which  would  therefore  also  benefit  a  third-party  purchaser  of  the  credit  claim,  in  line  with  recent 

legislative  amendments  passed  in  France  and  Italy.  However,  the  draft  law  does  not  extend  the 

protection provided by this provision to the ECB and to other national central banks (NCBs) of the 
European System of Central Banks (ESCB) 3.  

1.3  The draft law also amends the NBB Organic Law to clarify that the NBB’s decisions relating to its 

task of contributing to the stability of the financial system may not be suspended or opposed by the 

Minister of Finance. 

1.4  The draft law establishes a new category of institutions which may, in addition to the provision of 

custody,  account  maintenance  and  financial  instrument  settlement  services,  also  carry  out 

settlement-related  non-banking  services  as  well  as  certain  specified  activities.  According  to  the 
explanatory memorandum 4, the low risk profile of these credit institutions,  whose business model 

consists  mainly  of  holding  financial  instruments  on  their  customers’  behalf,  calls  for  a  prudential 

supervisory  approach  specific  to  their  risk  profile.  These  credit  institutions  will  accordingly  be 

treated  similarly  to  settlement  institutions  as  far  as  prudential  supervisory  rules  are  concerned, 

without becoming fully fledged settlement institutions governed by Regulation (EU) No 909/2014 of 
the European Parliament and of the Council 5.  

1.5  The draft law also empowers the NBB, when acting in its capacity as macroprudential supervisor, to 

impose  on  credit  institutions  and  brokerage  firms minimum funding  requirements  consisting  of  (a) 

Common  Equity  Tier  1  or  additional  Tier  1  or  Tier  2  capital;  (b)  subordinated  debt;  (c)  the  debt 

instruments belonging to the new category of senior non-preferred debt (see paragraph 1.8 below); 
and  (d)  any  liabilities  that  may  be  subject  to  bail-in.  According  to  the  explanatory  memorandum6, 

this  provision  aims  at  strengthening  the  arsenal  of  macroprudential  tools  available  to  the  NBB, 

which  will  be  empowered  to  impose  additional  requirements,  either  on  a  single  institution  (at 

individual  or  consolidated  level)  or  a  category  of  institutions,  to  hold  additional  amounts  of  own 

funds and debt eligible for bail-in. According to the explanatory memorandum, this will, in particular, 

empower the NBB to take appropriate action with respect to small credit institutions, in accordance 

with the principle of proportionality.  

1.6  The draft law also amends the Royal Decrees of 14 November 2008 and 22 April 2012 relating to 

the  guarantee  fund  for  financial  services.  In  line  with  Directive  2014/49/EU  of  the  European 
Parliament and of the Council7, the draft law introduces the concept of covered deposits, instead of 

3  

4  
5  

6  
7  

See Opinion CON/2016/37 and paragraph 5.1 of Opinion CON/2017/1. All ECB opinions are published on the ECB’s 
website at www.ecb.europa.eu. 
Explanatory memorandum, pp. 9 and 10.  
Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities 
settlement  in  the  European  Union  and  on  central  securities  depositories  and  amending  Directives  98/26/EC  and 
2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1). 
Explanatory memorandum, pp. 38-44.  
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). 

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eligible deposits, and adapts the ratio of individual contributions payable by credit institutions and 

brokerage firms upwards, so as to maintain the same level of overall contribution to the fund.   

1.7  The  draft  law  also  amends  the  Law  of  28  February  2002  to  empower  the  NBB  to  impose  new 

penalty  payments  on  reporting  institutions  that  fail  to  provide  the  information  necessary  for  the 

establishment of balance of payments statistics. Currently, if reporting institutions fail to meet their 

obligations under the Law of 28 February 2002, the NBB may take a series of measures in order to 

obtain  the  information  necessary  for  the  establishment  of  balance  of  payments  statistics  that 

reporting  institutions  fail  to  share  voluntarily.  These  include,  inter  alia,  consulting  the  relevant 

documents onsite, interviewing members of the reporting institution and drawing up a report on the 

failure  to  comply.  In  respect  of  the  consultation  of  documents  onsite,  the  NBB  may,  following 

authorisation  by  a  judge,  without  the  permission  of  the  reporting  agent,  have  access  to  the 

buildings where such documents are kept. According to the explanatory memorandum, the existing 

mechanisms  have  proved  cumbersome  and  inadequate.  This  explains  why  the  Belgian  legislator 

seeks to impose penalty payments, which are administrative measures expected to be efficient and 

straightforward as they will accumulate as long as the reporting institution has not complied with its 

obligations.  A  Royal  Decree will  determine  the  procedural  safeguards  to  be  complied  with  by  the 

NBB when imposing such penalty payments. 

1.8  Finally, the draft law amends the Banking Law to introduce a new category of unsecured creditors 

which,  in  the  order  of  priority  of  creditors  with  competing  claims  over  the  assets  of  a  credit 

institution or investment firm that is the subject of liquidation proceedings, will rank below ordinary 

unsecured creditors but above creditors holding subordinated debt. In order to belong to this new 

category,  the  debt  instruments  held  must  (a)  incorporate  a  monetary  claim  against  the  credit 

institution  or  investment  firm,  the  principal  and  interest  of  which  are  not  contingent  on  the 

occurrence  of  an  event  that  is  uncertain  at  the  time  of  issue  (while  floating-rate  debt  instruments 

are not affected by this restriction); (b) have a maturity of not less than one year; (c) be subscribed 

and/or  held  by  professional  investors;  and  (d)  be  subject  to  rules  governing  their  issuance  to  the 

effect  that  the  claim  will  rank  below  other  unsecured  creditors  in  accordance  with  the  above-
described  new  provision.  According  to  the  explanatory  memorandum 8,  the  purpose  of  this 

amendment,  which  is  inspired  by  recent  similar  amendments  in  France  on  which  the  ECB  was 
consulted9, is to facilitate the implementation of bail-in measures with respect to credit institutions, 

as  the  debt  instruments  falling  within  the  ambit  of  this  new  category  will  be  easily  identifiable. 

Furthermore,  loss-absorption  by  such  debt  instruments  will  mitigate  possible  contagion  risks  and 

adhere to the principle that no creditor should be worse off in resolution than in insolvency, as this 

particular ranking will also apply in the context of liquidation proceedings.   

2. 

Preliminary comment  

This opinion does not address the  issue of  whether the draft law  effectively  implements Directive 

2014/49/EU  in  Belgian law. The focus of this opinion  is on the  various provisions of the draft law 

8  
9 

Explanatory memorandum, pp. 29-38.  

See Opinion CON/2016/7. 

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relating  to  (a)  the  creation  of  a  new  category  of  senior  non-preferred  debt  instruments  in  the 

insolvency hierarchy of credit institutions; (b) the introduction of new macroprudential tools; (c) the 

creation of a new category of settlement institution; (d) the exclusion of set-off rights with respect to 

credit  claims  pledged  to  the  NBB;  (e)  the  introduction  of  new  penalty  payments  in  the  context  of 

balance of payments statistics; and (f) the independence of the NBB’s decision-making bodies with 

regard to financial stability matters.   

3. 

A new category of senior debt instruments in the insolvency hierarchy of credit institutions   

3.1  A new category of senior debt instruments 

3.1.1  The  ECB  welcomes  the  provisions  in  the  draft  law  for  the  creation  of  a  new  asset  class  of  ‘non-

preferred’  senior  debt  instruments,  which  are  senior  debt  instruments  with  a  lower  rank  than 
ordinary  senior  unsecured  claims  in  liquidation  proceedings 10.  This  lower  rank  is  proposed  to  be 

achieved  by  establishing  a  statutory  framework  that  recognises  the  contractual  subordination 

arrangements  contained  in  the  rules  governing  the  issue  of  such  ‘non-preferred’  senior  debt 

instruments  by  credit  institutions  and  investment  firms,  where  such  debt  instruments  will  rank 

before  subordinated  debt  instruments  but  after  other  senior  liabilities,  including  senior  debt 

instruments and deposits, in liquidation proceedings. 

3.1.2  Where  the  draft  law  requires  that  the  principal  and  interest  of  such  ‘non-preferred’  senior  debt 

instruments are not contingent on the occurrence of an event that is uncertain at the time of issue, 

except as it relates to interest and can be calculated at any time according to a formula set out in 

the  rules  governing  the  issue  of  the  debt  instrument,  some  additional  guidance  to  market 

participants in the form of an NBB regulation or a Royal Decree may be useful in order to enhance 

legal certainty. 

3.2  Effect on the loss-absorbing capacity of an institution in resolution 

3.2.1  Changing the statutory creditor hierarchy in bank insolvency proceedings is expected to enhance 

the  loss-absorbing  capacity  of  credit  institutions  in  resolution,  to  the  extent  that  they  issue  debt 

instruments  belonging  to  this  new  category  of  ‘non-preferred’  senior  debt  instruments.  The 

resolution  authority  may  allocate  losses  in  resolution  to  ‘non-preferred’  senior  debt  instruments 

prior  to  other  senior  liabilities,  which  will  include  operational  liabilities  such  as  corporate  deposits 

and  certain  claims  under  derivative  transactions.  Imposing  losses  on  ‘non-preferred’  senior  debt 

instruments is regarded as carrying a lower contagion risk than that posed by operational liabilities, 

and  will  likely  be  more  effective  and  appear  more  credible  to  market  participants.  The  clear 

distinction in the insolvency ranking on a statutory basis created by the category of ‘non-preferred’ 

senior debt instruments will increase legal certainty regarding the ability of such debt instruments to 

absorb losses and, hence, help to minimise the risk of compensation claims under the principle that  

no  creditor  should  be  worse  off  in  resolution  than  in  insolvency.  The  presence  of  a  layer  of  new 

‘non-preferred’ senior debt instruments has the potential, depending on how substantial this layer is 

in  a given institution, to foster effective resolution action and reduce the need  for recourse to the 

10  

See paragraph 2.1 of Opinion CON/2017/6, paragraph 3.1 of Opinion CON/2016/28 and paragraphs 3.1 and 3.2 of 
Opinion CON/2016/7. 

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resolution  fund.  This  is  in  turn  expected  to  promote  adequate  pricing  of  risk  for  investors.  The 

statutory recognition of contractual subordination is therefore expected to improve the resolvability 
of credit institutions under the Union resolution regime and enhance market discipline 11. 

3.2.2  In  addition,  the  establishment  of  a  statutory  basis  for  the  issuance  of  ‘non-preferred’  senior  debt 

instruments, which include contractual subordination arrangements, may facilitate the application of 

MREL  and  TLAC  requirements  concerning  the  loss-absorption  and  recapitalisation  capacity  of 
credit  institutions and  investment firms12. As such, the draft law provides an additional means for 

credit  institutions  to  comply  with  these  requirements  and  improve  their  resolvability,  without 

constraining their respective funding strategies. However, the draft law will not change the ranking 

of  senior  debt  instruments  that  have  already  been  issued,  and  requires  newly  issued  debt 

instruments to contain an explicit contractual clause in order to be subordinated.  

3.3  Reform initiatives currently underway at Union level 

The  ECB  notes  that  a  proposal  for  a  directive  of  the  European  Parliament  and  of  the  Council  on 

amending  Directive  2014/59/EC  as  regards  the  ranking  of  unsecured  debt  instruments  in 
insolvency  hierarchy  is  currently  under  discussion13,  and  reiterates  its  position  that  a  common 

framework  at  Union  level  on  the  hierarchy  of  creditors,  including  as  regards  the  subordination  of 

debt  instruments  and  other  similar  financial  instruments  in  bank  resolution  and/or  insolvency 

proceedings, may help to advance the integration of the financial services markets within the Union 

and facilitate the tasks of the ECB with regard both to monetary policy and supervision within the 

Single Supervisory Mechanism. 

3.4  General depositor preference 

3.4.1  The  ECB  considers  that  additional  reforms  would  be  useful  to  enhance  the  resolvability  of  credit 

institutions  and  to  promote  further  harmonisation  in  the  hierarchy  of  creditor  claims  in  bank 

insolvency.  In  particular,  a  general  depositor  preference  rule,  based  on  a  tiered  approach,  would 

enhance resolvability by clarifying the hierarchy of creditor claims and facilitating the allocation of 

losses to unsecured bank debt instruments ahead of certain operational liabilities, while alleviating 

concerns  regarding  the  principle  that  no  creditor  should  be  worse  off  in  resolution  than  in 
insolvency14.  This  would  be  complementary  to  the  proposals  set  out  in  the  draft  law.  It  is  worth 
noting  that  Member  States  are  not  precluded  under  Directive  2014/59/EU  of  the  European 
Parliament  and  of  the  Council15  from  establishing  general  depositor  preference  rules  in  national 
law16, and recently a number of Member States have done so 17.  

11  
12  

13  
14  

15  

16  

See paragraph 3.1 of Opinion CON/2016/7. 

See the Financial Stability Board’s (FSB’s) ‘Principles on Loss-absorbing and Recapitalisation Capacity of G-SIBs in 
Resolution: Total Loss-absorbing Capacity (TLAC) Term Sheet’, 9 November 2015, available on the FSB’s website 
at www.fsb.org. 
See Opinion CON/2017/6. 

See  paragraphs  1.4  and  2.3.1  of  Opinion  CON/2017/6,  paragraph  3.1.2  of  Opinion  CON/2016/28,  and  paragraph 
3.7.1 of Opinion CON/2015/35. 

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). 

See paragraph 2.3.1 of Opinion CON/2017/6 and paragraph 3.1.3 of Opinion CON/2016/28. 

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3.4.2  A general  depositor preference, based on  a tiered approach, could  be achieved by  introducing in 

national law another priority ranking for other deposits, such as large corporate deposits, deposits 

by  credit  institutions,  collective  investment  undertakings,  pension  funds  etc.  Such  deposits  would 

rank below the higher priority ranking for deposits up to the EUR 100,000 coverage level, which are 

guaranteed by the deposit guarantee scheme, and the preference for certain eligible deposits held 

by  natural  persons  or  micro,  small  or  medium-sized  enterprises,  but  ahead  of  other  senior 
liabilities 18.  

3.5  Restriction to professional investors and resolvability  

The  draft  law  stipulates  that  the  new  ‘non-preferred’  senior  debt  instruments  may  only  be 
subscribed  and/or  held  by  professional  investors,  in  accordance  with  the  documentation  rules 

governing  the  issuance  of  debt  instruments.  Given  that  the  rationale  for  such  a  requirement  is 

based on investor protection considerations and the desire to enhance resolvability, consideration 

should be  given to  addressing the issue in  the context of the  prospectus regime. The ECB notes 

that  clear  and  easily  understandable  disclosure  requirements  and  other  safeguards  that  raise 

investors’  awareness  as  to  the  risks  associated  with  such  instruments  would  be  an  alternative  to 

restricting  the  investor  base  to  professional  investors.  In  the  same  vein,  consideration  could  be 

given  to  requiring  a  minimum  denomination  per  unit  of  each  instrument  of  at  least  EUR  100,000, 

which  would  increase  the  investment  hurdle  and  thus  also  the  awareness  of  investors,  thereby 

limiting direct retail investment. An impact study could be useful in this context to inform the policy 

decision taken. A common framework at Union level and a coordinated approach among Union and 

Member  State  authorities  should  be  pursued  on  these  issues.  This  would  avoid  different 

approaches being taken across Member States, and thus fragmentation within the Union market for 

these  instruments.  Finally,  the  ECB  notes  that  the  abovementioned  rationale  also  applies  with 

respect to retail investment in subordinated debt instruments, which will normally be subject to bail-

in before the new ‘non-preferred’ senior class.  

3.6   Effect on the eligibility of debt instruments as collateral for Eurosystem credit operations 

The  ECB  notes  the  potential  implications  of  subordinating  senior  debt  instruments  to  other  debt 

instruments  of  the  same  issuer  with  respect  to  the  eligibility  of  the  former  as  collateral  for 

the  European  Central  Bank 
Eurosystem  credit  operations.  Guideline  (EU)  2015/510  of 
(ECB/2014/60) 19 sets out a single framework that applies in the Eurosystem to assets that may be 

submitted as eligible collateral for such operations. In order to be eligible as collateral, marketable 

assets  must  be  debt  instruments  that  fulfil  the  eligibility  criteria  laid  down  in  Guideline  (EU) 

2015/510  (ECB/2014/60).  Pursuant  to  Article  64  of  the  Guideline,  ‘eligible  debt  instruments  shall 

not  give  rise  to  rights  to  the  principal  and/or  the  interest  that  are  subordinated  to  the  rights  of 
holders of other debt instruments of the same issuer’20.  

17  

18  
19  

20  

See  Article  91  of  the  Italian  Banking  Law  (Legislative  Decree  no.  385  of  1  September  1993);  Article  207  of  the 
Slovenian Law on the resolution and winding-up of banks (OJ No. 44/2016); and Article 145A of the Greek Banking 
Law (Law 4261/2014). 

See Opinion CON/2017/6. 
Guideline  (EU)  2015/510  of  the  ECB  of  19  December  2014  on  the  implementation  of  the  Eurosystem  monetary 
policy framework  (ECB/2014/60) (OJ L 91, 2.4.2015, p. 3). 

See paragraph 2.5 of Opinion CON/2017/6 and, in particular, paragraph 3.3 of Opinion CON/2016/7. 

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4. 

New macroprudential tool  

When  applied  to  significant  institutions,  the  proposed  macroprudential  tool  to  impose  minimum 

funding  requirements,  including  capital  requirements,  may  interact  with  the  ECB’s  supervisory 

powers.  In  this  context,  due  care  should  be  given  to  avoid  doublecounting  of  risks.  Furthermore, 

this new tool risks increasing the complexity of the institutional framework, blurring the division of 

responsibilities  for  setting  adequate  levels  of  capital  requirements  and  loss  absorption  and 

recapitalisation  capacity  for  individual  credit  institutions.  It  also  risks  further  complicating  the 

interplay of different prudential requirements. 

5. 

A new category of credit institutions equivalent to settlement institutions  

The  ECB  understands  that  the  establishment  of  a  new  category  of  institutions,  whose  business 

activity  consists  chiefly  in  the  holding  of  financial  instruments  on  their  customers’  behalf,  is 

necessary  as  the  current  prudential  framework  applicable  to  institutions  with  such  a  business 

model  does  not  address  the  specific  risks  stemming  from  such  activity.  The  ECB  therefore 

welcomes  the  extension  of  measures  to  mitigate  such  risks  through  the  introduction  of  this  new 

category  of  institutions,  to  which  the  NBB  may  apply  supervisory  tools  akin  to  those  applied  to 

international and domestic central securities depositories.  

6. 

Exclusion of set-off rights with regard to credit claims pledged to the NBB 

6.1 

In  line  with  its  previous  opinions  regarding  similar  legal  changes  introduced  under  French 21  and 
Italian 22 law, the ECB welcomes the extension of the prohibition of set-off to the debtor of a credit 

claim  pledged  to  the  NBB  in  relation  to  the  third  party  acquirer  of  such  credit  claim.  With  this 

change,  the  Belgian  legislator  protects  the  NBB  against  any  potential  loss  arising  from  the 

acceptance of credit claims, thereby strengthening the requirement laid down in the second indent 

of Article 18.1 of the Statute of the European System of Central Banks and of the European Central 

Bank, pursuant to which lending by ESCB central banks must be based on adequate collateral. In 

addition, adequately addressing set-off risks also facilitates the continued eligibility of credit claims 

as eligible collateral in Eurosystem credit operations, and thereby contributes to the efficiency of the 

transmission of monetary policy to the real economy.  

6.2  The  ECB  notes,  however,  that  the  prohibition  of  set-off  by  the  debtor  will  only  apply  in  its 

relationship towards a third party acquirer and the NBB, but not in respect of any other central bank 

of  the  ESCB.  As  a  consequence  thereof,  another  central  bank  of  the  ESCB,  when  acting  as 

Correspondent  Central  Bank  (“CCB”)  in  the  context  of  Correspondent  Central  Banking  Model 

(“CCBM”) under the laws of the Member State of that CCB on behalf of the home NCB (here NBB), 

as well as any other third party purchaser – would not be protected against set-off that may hence 

be applied by the debtor of such claim. The ECB understands that this approach currently does not 

give rise to legal risks in view of three elements. First, credit claims in Belgium are currently  only 

21  
22  

See Opinion CON/2016/37. 

See Opinion CON/2017/1, especially paragraph 5.1. 

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mobilised  as  collateral  in  Eurosystem  operations  with  the  NBB.  Second,  Article  6  of  the  Law  of  3 

August  2012  on  various  measures  intended  to  facilitate  the  mobilisation  of  credit  claims  in  the 

financial sector (hereinafter the  ‘Law of 3 August  2012’) ensures that set-off may  not be opposed 

after  notification  of  recognition  of  the  transfer  of  the  credit  claim.  Third,  Article  6  of  the  Law  of  3 

August  2012  ensures  that  set-off  may  not  be  opposed  after  the  insolvency  of  the  creditor  of  the 

transferred  claims.  Nevertheless,  the  Belgian  legislator  is  encouraged  to  consider  expanding  the 

additional  protection  afforded  to  the  NBB  under  the  draft  law  to  all  other  ESCB  central  banks,  in 

order  to  support  the  growing  use  of  credit  claims  at  cross-border  level  in  the  future.  In  some 

Member  States  the  relevant  statutory  provisions,  similarly  to  the  draft  law,  only  exclude  set-off 

rights for credit claims mobilised as collateral for operations with the NCB of that particular Member 

State.  However,  other  Member  States  also  have  statutory  provisions  that  provide  protection  not 
only  for  their  own  NCBs  but  also  for  the  ECB  and  other  ESCB  NCBs 23.  The  latter  solution  is 

preferable, as it offers a higher degree of financial protection to ESCB NCBs and promotes financial 

integration by facilitating cross-border mobilisation of credit claims. 

7. 

Penalties imposed by the NBB in the context of the balance of payments 

The ECB welcomes the draft law, insofar as it endows the NBB with the power to impose penalty 

payments  on  institutions  that  fail  to  comply  with  reporting  requirements  necessary  in  order  to 

ensure the accuracy of balance of payments statistics. 

8. 

Decisions made by the NBB with regards to financial stability  

The ECB welcomes the change introduced by the draft to Article 22 of the NBB Organic Law to the 

effect that the Minister of Finance may not suspend or oppose any decision made by the NBB with 
regard to financial stability, which the ECB had previously recommended24. 

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

Done at Frankfurt am Main, 8 June 2017. 

[signed] 

The President of the ECB 

Mario DRAGHI  

23  
24  

See paragraphs 1.1, 1.3, 2.3 and 2.4 of Opinion CON/2016/37. 

See paragraph 2.4 of Opinion CON/2016/55. 

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