COMMISSION OPINION on the request for amendments to Protocol No 5 on the Statute of the European Investment Bank, presented by the European Investment Bank on 11 October 2018
Date: 2019-01-31
Institutions: Directorate-General for Economic and Financial Affairs, European Commission
Subjects: European Investment Bank, United Kingdom, appointment of members, board of directors, majority voting, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 31.1.2019 COM(2019) 36 final  COMMISSION OPINION on the request for amendments to Protocol No 5 on the Statute of the European Investment Bank, presented by the European Investment Bank on 11 October 2018  
 
 
COMMISSION OPINION 

on the request for amendments to Protocol No 5 on the Statute of the European 
Investment Bank, presented by the European Investment Bank on 11 October 2018 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 308 thereof, 

1. 

2. 

I.  

3. 

4. 

On  11  October  2018,  the  European  Investment  Bank  submitted  a  request  to  the 
Council under Article 308 of the Treaty on the Functioning of the European Union 
(‘TFEU’)  to  amend  its  Statute.  First,  the  European  Investment  Bank  proposes  to 
amend its Statute to reflect the withdrawal of the United Kingdom from the European 
Union which will bring an end to its membership in the European Investment Bank. 
Second, the European Investment Bank proposes to strengthen the functioning of its 
Board  of  Directors  by  allowing  the  appointment  of  a  larger  number  of    alternate 
directors.  Third,  the  European  Investment  Bank  proposes  to  extend  the  use  of 
qualified  majority  voting  to  the  decision  on  the  Corporate  Operational  Plan,  the 
appointment  of  members  of  the  Management  Committee  and  the  approval  of  the 
Rules of Procedure.  

All  amendments  proposed  by  the  European  Investment  Bank  to  its  Statute  are 
envisaged to take effect immediately on the withdrawal of the United Kingdom from 
the European Union. The request also refers in a recital to an envisaged increase of 
the capital  subscribed by the remaining Member  States which should go in parallel 
with a further strengthening of the governance of the European Investment Bank.  

On the relation between the request and the withdrawal of the United Kingdom 
from the European Union  

The Commission  raises the question whether it is appropriate to link the  entry  into 
force of the whole decision to the withdrawal of the United Kingdom from the EU. 
There is in any event no legal necessity that the envisaged amendments to Protocol 
No 5 enter into force on the date on which the United Kingdom would not anymore 
be a Member State.   

Indeed,  the  request  by  the  European  Investment  Bank  contains  two  different 
categories  of  amendments.  The  first  category  simply  draws  the  consequence  of  the 
withdrawal of the United Kingdom from the Union by deleting the reference to the 
shareholding  of  the  United  Kingdom  in  Article  4(1),  by  decreasing  the  number  of 
members of the Board of Directors in Article 9(2), first sentence, and by deleting the 
reference to the nomination of alternate directors by the United Kingdom in Article 
9(2), third subparagraph. The Commission can support these changes but wishes to 
stress that their effect will simply be of a declarative nature. Indeed, the withdrawal 
of  the  United  Kingdom  from  the  EU  does  not  require  a  prior  amendment  of  the 
Treaties  and  Protocols  to  remove  all  references  to  the  United  Kindgom.  These 
references  will  become  automatically  obsolete  on  the  date  of  withdrawal.  By 
contrast, the other amendments requested by the European Investment  Bank, which 
contain governance changes, are of a constitutive nature. The Council might consider 
that these changes are appropriate independently of the withdrawal. 

5. 

Therefore,  the  Commission  raises  the  question  whether  the  decision  of  the  Council 
should  not  enter  into  force  at  a  specified  date  not  linked  to  the  withdrawal  of  the 

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United Kingdom, for instance on the publication in the Official Journal of the EU. In 
such a case, it is only the entry into effect of the declaratory amendments of the first 
category  that  would  be  linked  to  the  withdrawal  of  the  United  Kingdom.  This 
alternative approach would require some technical redrafting of the decision. 

II.   On the request to delete references to capital held by the United Kingdom  

6. 

7. 

8. 

9. 

The European  Investment  Bank proposes to  delete the mention  of the  shareholding 
by the United Kingdom of EUR 39 195 022 000 in Article 4(1) of the Statute. 

As  indicated  above,  in  legal  terms,  on  the  withdrawal  date  all  references  to  the 
United Kingdom in the Treaties and Protocols would become automatically obsolete 
and thus an explicit amendment of the Statute is not necessary in this sense. In any 
event,  the  text  of  the  Treaties  and  Protocols  will  be  brought  in  line  with  the  new 
situation,  by  a  formal  amendment  in  accordance  with  Article  48  TEU,  in  order  to 
delete obsolete provisions and proceed to consequential adaptations. Nevertheless, it 
seems  acceptable  to  proceed  to  the  proposed  amendments  at  the  occasion  of  the 
amendments to the governance of the European Investment Bank (hereafter Sections 
III and IV). This amendment can, therefore, be supported for the sake of clarity. 

The  European  Investment  Bank  also  proposes  that  the  amount  of  total  subscribed 
capital  mentioned  in  the  same  Article  should  be  decreased  accordingly  unless  an 
increase  of  the  subscribed  capital  “by  the  remaining  Member  States”  is  decided 
before  the  withdrawal  date.  The  Commission  understands  that  this  latter  decision 
would be adopted by the Board of Governors of the European  Investment Bank on 
the basis of Article 4(3) of its Statute.  

The Commission can support the objective behind this proposal but wishes to draw 
attention to the following legal aspects. The capital of the European Investment Bank 
mentioned  in  Article  4(1)  of  Protocol  No  5  is  the  total  amount  of  Member  States' 
shares  listed  in  that  provision.  If  the  Council  only  removes  the  reference  to  the 
United  Kingdom,  it  must  diminish  the  total  capital  in  accordance.  The  Council 
cannot  take  into  account  in  its  decision  a  possible  decision  by  the  European 
Investment  Bank  to  increase  the  capital,  and  the  ensuing  new  repartition  among 
Member  States.  Therefore,  the  Council  Decision  should  mention  the  (diminished) 
total capital as a consequence of the withdrawal of the United Kingdom. A parallel 
decision of the Board of Governors of the European Investment Bank may increase 
the capital (and define its repartition between the Member States pro rata) but it is a 
separate decision. 

III.   On the appoinment of additional alternates to the Board of Directors  

10. 

11. 

The European Investment Bank proposes to increase the number of alternates to the 
Board of Directors from 18 to 31. Germany, France and Italy, which already had two 
alternates each, will maintain that number. The constituencies of Member States that 
previously had fewer alternates than shareholders in that constituency will after the 
amendment  have  as  many  alternates  as  shareholders  in  that  constituency.  The 
Commission maintains the one alternate.  

As a larger number of alternate directors will allow the European  Investment Bank 
from benefiting from a broader experience at the level of the Board of Directors, in 
particular in view of the intention to make better use of the alternates in the decision-
making  process  of  the  Board  of  Directors,  in  particular  regarding  the  analysis  of 
financing proposals, the Commission can support this proposal. 

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IV.  On the extensions of qualified majority voting instead of simple majority voting 

12. 

The  European  Investment  Bank  further  proposes  to  enlarge  the  scope  of  qualified 
majority voting in three important areas where simple majority is currently required. 
These are:  

i) 
ii) 

iii) 

Decisions on the corporate operational plan (Article 9(1) of the Statute) 
Decisions on the nominations of the Management Committee members by the 
Board of Governors and corresponding proposals by the Board of Directors 
(Article 11(1), first subparagraph, of the Statute) 
Decisions on the Rules of Procedure of the European Investment Bank 
(Article 7(3)(h) of the Statute). 

The  Commission  endorses  the  objectives  which  this  proposal  to  amend  the  Statute 
seeks to achieve.  

On the recitals 

The  eight,  ninth  and  tenth  recitals,  in  so  far  they  are  intended  to  be  inserted  in  the 
Decision of the Council, do not explain or justify the enacting terms of the Decision 
but  relate  to  issues  that  do  not  require  changes  to  the  Statute  of  the  European 
Investment  Bank.  The  Commission  considers  that  these  recitals  should  be  slightly 
reworded to make clear that they do not relate to any particular enacting terms.  

13. 

V.  

14. 

VI.  

Conclusion 

In the light of the above, the Commission hereby issues a favourable opinion on the proposed 
amendments  to  the  Statute  of  the  European  Investment  Bank,  subject  to  the  considerations 
expressed in this opinion. 

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