Opinion of the European Central Bank of 24 August 2017 on a draft law amending the NBB Organic Statute with regard to the number of directors on the NBB’s Board (CON/2017/34)
Date: 2017-08-24
Institutions: European Central Bank
Subjects: Belgium, board of directors, central bank, institutional activity, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 24 August 2017 

on a draft law amending the NBB Organic Statute with regard to the number of directors on the 

NBB’s Board  

(CON/2017/34) 

Introduction and legal basis 

On  27  July  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 for Finance, for 

an opinion on a draft law on various financial provisions (hereinafter the ‘draft law’) which amends, inter 

alia,  the  Law  of  22  February  1998  etablishing  the  Organic  Statute  of  the  Nationale  Bank  van 

België/Banque Nationalie de Belgique (hereinafter the ‘NBB Organic Law’) in order to reduce the number 

of directors on the NBB’s Board of Directors.  

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/EC 1, as 

the  draft  law  concerns  the  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. 

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Purpose of the draft law  

The purpose of the draft law is to reduce the number of directors on the  NBB’s Board. Currently, under 

the NBB Organic Law, in addition to the Governor, who acts as chair, the Board is composed of at least 

five but not more than seven directors, one of whom is the Vice Governor. Under the draft law, in addition 

to the Governor, the  Board  is composed of a maximum of five members (including the  Vice Governor). 

The draft law provides that the King determines the entry into force of this new provision.  

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General observation  

In principle, the ECB welcomes any legislative amendment which seeks to establish more efficient 
decision-making structures within a national central bank (NCB)2, provided that these amendments 

do not interfere with the NCB’s independence.    

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 Opinions CON/2001/17 and CON/2007/6. 

 
 
 
 
 
 
 
 
                                                 
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Specific observations 

3.1  Transitional provisions and security of tenure of existing members of the Board  

3.1.1  Article  130  of  the  Treaty  prohibits  national  governments  and  any  bodies  from  influencing  the 

members  of  NCBs’  decision-making  bodies  in  the  performance  of  their  tasks.  The  concept  of 

central  bank 

independence 

includes  various 

types  of 

independence, 

including  personal 

independence. Personal independence would be jeopardised if the rules on security of tenure and 

grounds  for  dismissal  of  Governors  under  the  Treaty  and  the  Statute  of  the  European  System  of 

Central  Banks  and  of  the  European  Central  Bank  (hereinafter  the  ‘Statute  of  the  ESCB’)  did  not 

apply  to  other  members  of  the  decision-making  bodies  of  NCBs  involved  in  the  performance  of 

ESCB-related  tasks.  Various  Treaty  and  Statute  of  the  ESCB  provisions  require  comparable 

security of tenure. Article 14.2 of the Statute of the ESCB does not restrict the security of tenure of 

office to Governors, while Article 130 of the Treaty and Article 7 of the Statute of the ESCB refer to 

‘members  of  the  decision-making  bodies’  of  NCBs,  rather  than  to  Governors  specifically.  This 

applies in particular where a Governor is ‘first among equals’ with other members with equivalent 
voting rights or where other members are involved in the performance of ESCB-related tasks3. As a 

consequence,  any  reorganisation  measure  affecting  the  tenure  of  office  of  the  members  of  an 

NCB’s  decision-making  bodies  involved  in  the  performance  of  ESCB-related  tasks  should 

expressly ensure that they continue to perform their duties until the end of their appointed term, in 
accordance with Article 14.2 of the Statute of the ESCB4. 

3.1.2  Against  this  backdrop,  the  ECB  understands  that  the  date  on  which  the  draft  law  will  enter  into 

force will be determined by means of a Royal Decree. The ECB understands that this mechanism 

is designed to align the entry into force with the outflow of directors in the course of time in order to 

safeguard the personal independence of existing directors. The ECB assumes that the intention is 

for the Royal Decree to be issued following the expiry of a director’s term of office which brings the 

composition  of  the  Board  to  five  directors  not  including  the  Governor.  However,  given  the 

importance  of  protecting  the  personal  independence  of  existing  directors,  and  to  avoid  any 

ambiguity and satisfy the principle of legal certainty, the ECB suggests that the draft law contains 

transitional provisions which set out in clear terms when the amendments will come into force. This 

could  be  done,  for  example,  by  stating  that  the  Royal  Decree  may  be  issued,  at  the  earliest, 

following  the  expiry  or  termination  of  a  director’s  term  of  office  which  results  in  the  Board  being 

composed of five directors or fewer not including the Governor.     

3.2  Number of directors on the Board 

3.2.1  While the draft law provides that Article 19 of the NBB Organic Law is to be amended to provide 

that  the  Board  will  have,  in  addition  to  the  Governor,  a  maximum  of  five  directors,  instead  of  a 

maximum of seven as is currently the case, it does not provide for a minimum number of directors, 

unlike the minimum of five directors as is currently the case.  

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4  

See Opinions CON/2003/3 and CON/2005/25; ECB Convergence Report 2016, pp. 23 to 25.  

See Opinions CON/2007/6, paragraph 2.3 and CON/2007/14, paragraph 3.3.  

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3.2.2  Under the NBB Organic Law, the King is vested with the power to appoint the Governor 5 and the 
other  members  of  the  Board6.  As  the  amendments  foreseen  by  the  draft  law  do  not  include  a 

minimum  number  of  other  members  for  the  Board,  the  size  of  the  Board  will,  in  effect  be 

determined in a Royal Decree, with the involvement of the Government and the King. Based on a 

literal construction of this provision, the Board could theoretically be reduced to one director (who 

would,  incidentally,  hold  the  title  of  Vice-Governor)  and  the  Governor,  on  the  basis  of  the 

requirement  in  the  draft  law  of  parity  between  Dutch  and  French  speakers. While  the  statutes  of 

ESCB NCBs set out different compositions for their decision-making bodies, depending on national 

preferences and legal traditions, an institutional framework which provides a stable and long-term 

basis  for  a  central  bank’s  functioning  is  important  from  the  perspective  of  central  bank 
independence7. A legal framework which permits frequent changes to the institutional set-up of an 

NCB,  thus  affecting  its  organisational  or  governance  stability,  could  adversely  affect  the  NCB’s 

institutional independence. 

3.2.3  The  draft  law  should  seek  to  avoid  a  situation  in  which  the  government  may,  on  a  discretionary 

basis, decide on the size of the Board, with potentially wide and frequent variations. Because the 

size  of  the  Board  directly  impacts  the  institutional  set-up  of  the  NBB  and  the  functioning  of  the 

Board  as  a  decision-making  body  whose  mandate  includes  involvement  in  the  performance  of 

ESCB-related  tasks,  the  draft  law  should  contain  provisions  which  facilitate  consistency  in,  and 

predictability  of,  the  size  of  the  Board.  This  will  contribute  to  the  NBB’s  institutional  stability  and 

could be achieved, as it is for decision-making bodies of other ESCB NCBs, through, for example, 

the inclusion in the draft law of a fixed number of directors or a reasonably narrow range setting out 

a minimum and maximum number of directors.  

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

Done at Frankfurt am Main, 24 August 2017. 

[signed] 

The President of the ECB 

Mario DRAGHI  

5  
6  

7  

Article 23(1) of the NBB Organic Law.  
Article  23(2)  of  the  NBB  Organic  Law.  The  appointment  by  the  King  of  the  other  members  of  the  Board  follows  a 
proposal of the Council of Regency.  

See CON/2011/104, especially paragraph 5.1, and CON/2013/41, paragraph 2.5.  

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