Opinion of the European Central Bank of 8 June 2018 on various financial law provisions CON/2018/29)
Date: 2018-06-08
Institutions: European Central Bank
Subjects: Belgium, data protection, financial control, financial legislation, financial stability, national implementing measure, payment system, personal data, protection of privacy, securities

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 8 June 2018  

on various financial law provisions  

(CON/2018/29) 

Introduction and legal basis 

On  11  May  2018  the  European  Central  Bank  (ECB)  received  a  request  from  the  Belgian  Minister  for 

Finance for an opinion on a draft law on various financial law 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 and the third, fifth and sixth indents of Article 2(1) of Council Decision 
98/415/EC1,  as  the  draft  law  relates  to  the  Nationale  Bank  van  België/Banque  Nationale  de  Belgique 

(NBB),  payment  and  settlement  systems,  rules  applicable  to  financial  institutions  insofar  as  they 

materially  influence  the  stability  of  financial  institutions  and  markets  and  the  ECB’s  tasks  concerning 

policies relating to the prudential supervision of credit institutions. 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. 

Purposes of the draft law 

The draft law has a number of purposes. 

1.1  First,  the  draft  law  adapts  the  Belgian  legal  framework  to  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 (hereinafter the ‘CSDR’)2. To this end, it aligns the 
concepts  used  in  various  Belgian  laws3  with  the  CSDR.  It  also  redrafts  the  provisions  relating  to 

CSDs contained in 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’)4 to designate 

the  NBB  as  the  competent  authority  under  the  CSDR  for  authorising  and  supervising  CSDs 

established  in  Belgian  territory.  In  carrying  out  these  tasks,  the  NBB  shall  continue  using  the 

various regulatory, investigatory and sanctioning powers over CSDs that are already set out in the 

NBB  Organic  Law,  including  the  power  to  impose  penalty  payments.  The  draft  law  furthermore 

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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). 
OJ L 257, 28.8.2014, p. 1. 
These  include Royal Decree No 62 of 10  November 1967 on  the deposit of  fungible  financial instruments and the 
settlement of transactions in such instruments; the Law of 2 January 1991 on the public debt market and instruments 
for  monetary  policy;  the  Law  of  22  February  1998  establishing  the  Organic  Statute  of  the  Nationale  Bank  van 
België/Banque Nationale de Belgique; and the Law of 2 August 2002 on the supervision of the financial sector and 
on financial services. 

Loi du 22  février 1998 fixant  le  statut organique de la Banque  Nationale de  Belgique/wet  van  22  februari 1998  tot 
vaststelling van het organiek statuut van de Nationale Bank van België. 

 
 
                                                 
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delineates  the  competences  to  be  exercised  by  the  Financial  Services  and  Markets  Authority  in 

respect  of  the  authorisation  and  supervision  of  CSDs,  which  may  be  further  specified  in  a 

memorandum of understanding concluded with the NBB.  

1.2  Second,  the  draft  law  designates  the  NBB  as  the  competent  authority  under  Regulation  (EU) 

2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency 

of  securities  financing  transactions  and  of  reuse  and  amending  Regulation  (EU)  No  648/2012 
(hereinafter, ‘Regulation (EU) 2015/2365’)5. The NBB is to ensure due compliance by financial and 

non-financial  counterparties  subject  to  its  supervision  with  the  requirement  to  report  to  a  trade 

repository  the  details  of  any  securities  financing  transaction  they  have  concluded  and  any 

modification  or  termination  thereof,  as  well  as  the  reuse  of  financial  instruments  received  as 
collateral6. To this end, the NBB is enabled to use the various existing regulatory, investigatory and 

sanctioning  powers  set  down  in  the  NBB  Organic  Law  also  over  supervised  financial  institutions, 

including the power to impose penalty payments. 

1.3  Third,  the  draft  law  adapts  the  NBB  Organic  Law  to  Regulation  (EU)  2016/679  of  the  European 

Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to 

the  processing  of personal  data and  on the  free movement of such  data, and  repealing  Directive 
95/46/EC (General Data Protection Regulation)7. In particular, the draft law specifies that the NBB, 

when acting in its capacity as administrative authority under Article 22 quinquies of the Law of 11 

December  1998  on  security  classification,  security  clearance,  security  certificates  and  security 
advisory  notices8,  is  empowered  to  process  personal  data  relating  to  criminal  convictions  and 

offences  in  departure  from  the  General  Data  Protection  Regulation  where  this  is  justified  and 

necessary for the NBB to exercise its tasks. The NBB may transfer to the Belgian Data Protection 

Authority  information  that  is  necessary  for  the  exercise  of  the  latter’s  tasks  in  accordance  with  a 

memorandum of understanding to be entered into between the two authorities.  

1.4  Fourth, the draft law partially implements Directive (EU) 2017/2399 of the European Parliament and 

of  the  Council  of  12  December  2017  amending  Directive  2014/59/EU  as  regards  the  ranking  of 
unsecured  debt  instruments  in  insolvency  hierarchy9.  For  this  purpose,  the  draft  law  amends 
specific  provisions  of  the  Banking  Law10  in  order  to  reflect  certain  provisions  of  Directive  (EU) 

2017/2399.  

2. 

General observations  

This opinion only assesses those provisions of the draft law that may have an impact on the role 

and  tasks  of  the  NBB  as  a  central  bank,  national  supervisory  authority,  resolution  authority  and 

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OJ L 337, 23.12.2015, p. 1. 
See Articles 4 and 15 of Regulation (EU) 2015/2365. 
OJ L 119, 4.5.2016, p. 1. 

Loi du 11 décembre 1998 relative à la classification et aux habilitations, attestations et avis de sécurité/Wet van 11 
december  1998  betreffende  de  classificatie  en  de  veiligheidsmachtigingen,  veiligheidsattesten  en 
veiligheidsadviezen.  
OJ L 345, 27.12.2017, p. 96. 

Law of 25 April 2014 on the status and supervision of credit institutions and brokerage firms (Loi du 25 avril 2014 
relative au statut et au contrôle des établissements de crédit et des sociétés de bourse/Wet van 25 april 2014 op het 
statuut van en het toezicht op kredietinstellingen en beursvennootschappen). 

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member  of  the  Eurosystem  and  the  European  System  of  Central  Banks.  It  does  not  consider 

whether the draft law, if adopted as proposed, would represent an effective means of implementing 

Union law requirements in Belgium. 

3. 

Tasks of the NBB 

The draft law does not confer any genuinely new tasks on the NBB. While the draft law designates 

the NBB as the competent authority under the CSDR to authorise and supervise CSDs, the NBB 

Organic  Law  already  empowers  the  NBB  to  supervise  the  legal  entities  operating  securities 

settlement  systems  and  confers  various  regulatory,  investigatory  and  sanctioning  powers  on  the 
NBB  in  this  respect11.  Furthermore,  in  carrying  out  its  tasks  as  competent  authority  under 

Regulation  (EU)  2015/2365,  the  draft  law  enables  the  NBB  to  use  its  existing  powers  under  the 
NBB  Organic  Law  in  order  to  ensure  due  compliance  with  that  Regulation12.  Consequently,  the 

issue of assessing the conferral of new tasks on a national central bank from the perspective of the 
prohibition of monetary financing does not arise13. 

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

Done at Frankfurt am Main, 8 June 2018. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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See Chapter IV/2, as currently drafted, which already relates to the authorisation, supervision and control of the legal 
entities operating the settlement systems and the assimilated settlement systems. Articles 36/29 and 36/30 of that 
Chapter empower the NBB to request information, conduct (on-site) inspections and impose sanctions, if necessary. 

See  Article  36/25  ter  inserted  by  the  draft  law,  which  empowers  the  NBB  to  use  the  powers  in  Chapter  IV/1 
(provisions on the control of financial institutions) and Chapter IV/2 (provisions on the authorisation, supervision and 
control  of  CSDs  and  financial  and  non-financial  counterparties),  including  those  in  Articles  36/29  and  36/30 
empowering the NBB to request information, conduct (on-site) inspections and impose sanctions, if necessary. 
See paragraph 2.3 of Opinion CON/2018/15. 

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