Opinion of the European Central Bank of 26 March 2019 on changes to the governance structure of the Nationale Bank van België/Banque Nationale de Belgique (CON/2019/12)
Date: 2019-03-26
Institutions: European Central Bank
Subjects: Belgium, appointment of staff, central bank, gender equality, institutional activity, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 26 March 2019 

on changes to the governance structure of the Nationale Bank van 

België/Banque Nationale de  Belgique 

(CON/2019/12) 

Introduction and legal basis 

On 26 February 2019 the European Central Bank (ECB) received a request from the Belgian Minister for 

Finance  for  an  opinion  on  a  draft  law  amending  the  Law  of  22  February  1998  establishing  the  Organic 

Statue of the Nationale Bank van België/Banque Nationale de Belgique

(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 indent of Article 2(1) of Council Decision 98/415/EC 1, as 

the  draft  law  relates  to  the  Nationale  Bank  van  België/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  draft  law  introduces  amendments  to  the  Law  of  22  February  1998  establishing  the  Organic 

Statue of the Nationale Bank van België/Banque Nationale de Belgique (hereinafter the ‘Law of 22 
February  1988)’ 2  with  a  view  to  improving  the  governance  structure  of  the  NBB  and  creating  a 

more balanced representation of both genders in the NBB’s Council of Regency. 

Current composition of the NBB’s Council of Regency and Board of Censors 

1.2  The NBB currently consists of a Governor, the Board of Directors, the Council of Regency and the 

Board of Censors. The General Meeting of Shareholders is not addressed in this Opinion. 

1.3  The NBB Council of Regency is composed of a Governor, who presides over the Council, the other 
(maximum five3) Directors from the NBB’s Board of Directors and ten Regents 4. The King appoints 
the  members  of  the  Board  of  Directors,  which  is  the  NBB’s  main  decision-making  body5,  on  a 
proposal of the Council of Regency6.  

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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). 

“Loi 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”,  as  published  in  the  annexes  to  the  Belgian  Official  Gazette 
(“Moniteur Belge”/” Belgisch Staatsblad”) on 28 March 1998 , and as amended from time to time.   
Article 19.1° of the Law of 22 February 1998. 

Article 20.1° of the Law of 22 February 1998. 
Article 19 of the Law of 22 February 1998. 
Article  23.2°  of  the  Law  of  22  February  1998.  They  are  appointed  for  a  renewable  term  of  six  years,  and  may  be 
relieved from office by the King only if they no longer fulfil the conditions required for the performance of their duties 

 
 
 
 
 
                                                 
 
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1.4  The Council of Regency is responsible for:  

(i)  

exchanging views on general issues relating to the NBB, monetary policy and the economic 

situation  of  the  country  and  the  EU;  supervisory  policy  with  regard  to  each  of  the  sectors 

subject  to  the  NBB's  supervision;  Belgian,  European  and  international  developments  in  the 

field of supervision; as well as, in general, any developments concerning the financial system 

subject to the NBB's supervision, without however having any competence to intervene at an 
operational level or take note of individual dossiers 7;  

(ii)  

laying down the Rules of Procedure, containing the basic rules for the operation of the NBB's 

bodies and the organisation of its departments, services and outside offices on the proposal 
of the Board of Directors 8;  

(iii)   setting the individual salaries and pensions of the members of the Board of Directors9;  

(iv)   approving  the  expenditure  budget  and  the  annual  accounts  submitted  by  the  Board  of 

Directors 10; and  

(v)  

determining the distribution of profits as proposed by the Board 11.  

1.5  The  Regents  are  elected  for  a  renewable  three-year  term  by  the  General  Meeting  of  the  NBB12. 

Two Regents are chosen upon the proposal of the most representative labour organisations; three 

Regents upon the proposal of the most representative organisations from industry and commerce, 

agriculture  and  small  firms  and  traders;  and  five  Regents  upon  the  proposal  of  the  Minister  of 
Finance 13.  The  Regents  are  subject  to  various  incompatible  activities  rules  which  are  aimed  at, 
inter alia, guaranteeing their independence towards the Belgian State and the public authorities 14. 

They  are  also  subject  to  rules  relating  to  the  prevention  and  handling  of  conflict  of  interest 

situations.  

1.6  The NBB Board of Censors is currently composed of ten members15. The Board of Censors acts as 

the  NBB’s  audit  committee  and  supervises  the  preparation  and  implementation  of  the  NBB’s 
budget16. The Board of Censors is entrusted with the following advisory tasks, as a minimum: (i) to 

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or if they have been guilty of serious misconduct. 

Article 20.2° of the Law of 22 February 1998. 
Article 20.2° of the Law of 22 February 1998. 

Article 20.3° of the Law of 22 February 1998. 
Article 20.4° of the Law of 22 February 1998. 

Article 20.4° of the Law of 22 February 1998. 
Article 23.3° of the Law of 22 February 1998. 

Article 23.3° of the Law of 22 February 1998. The methods of proposing candidates for these appointments are laid 
down in the Regent Decree of 5 October 1948 (“Arrêté du Régent du 5 octobre 1948 déterminant les modalités de 
présentation  des  candidats  aux  fonctions  de  régent  de  la  Banque  Nationale  de  Belgique”/ “Besluit  van  de  Regent 
van 5 oktober 1948 houdende vaststelling van de voordrachtsmodaliteiten der kandidaten tot de functies van regent 
in  de  Nationale  Bank  van  België”),  as  published  in  the  annexes  to  the  Belgian  Official  Gazette  (“Moniteur  Belge”/” 
Belgisch Staatsblad”) on 8 October 1948, and as amended from time to time. 
Members of the Legislative Chambers, the European Parliament, the Councils of the Communities and the Regions, 
persons who hold the position of Minister or Secretary of State or of member of the Government of a Community or 
Region and members of the staff of a member of the Federal Government or of the Government of a Community or 
Region may not hold the office of Regent. The Regents may not be a member of the administrative, management or 
supervisory  bodies  of  an  institution  subject  to  the  supervision  of  the  NBB  or  in  an  institution  incorporated  under 
Belgian  law  or  foreign  law  established  in  Belgium  or  in  a  subsidiary  of  these  institutions  and  subject  to  the 
supervision of the ECB, nor may they perform management duties in such an institution. 
Article 21.1° the Law of 22 February 1998. 

Article 21.2° of the Law of 22 February 1998. 

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monitor the financial reporting process; (ii) to monitor the effectiveness of the internal control and 

risk management systems, and of the NBB's internal audit; (iii) to monitor the statutory audit of the 

annual accounts, including compliance with the questions and recommendations formulated by the 

statutory  auditor;  and  (iv)  to  review  and  monitor  the  independence  of  the  statutory  auditor,  in 
particular  the  provision  of  additional  services  by  the  statutory  auditor  to  the  NBB17.  In  this  latter 

respect,  the  Board  of  Censors  proposes  the  appointment  of  the  statutory  auditor  to  the  Board  of 
Directors 18.  All  audit  functions  of  the  Board  of  Censors  are  exercised  without  prejudice  to  the 

responsibilities  of  the  bodies  of  the  NBB  and  without  prejudice  to  the  execution  tasks  and 

transactions within the domain of the European System of Central Banks (ESCB) and their review 
by the statutory auditor 19.  

Amendments to the role and composition of the NBB Council of Regency under the draft law 

1.7  Under the draft law, the Board of Censors is abolished and its  advisory  tasks in the field  of audit 

and budget is exercised by the Audit Committee of the Council of Regency. The Audit Committee, 

in  a  restricted  composition,  advises  the  Council  of  Regency  in  the  execution  of  its  powers  with 

regard  to  the  budget  and  the  preparation  of  financial  information.  A  Remuneration  and 

Appointments  Committee  is  established  to  provide  its  opinions  to  the  Council  of  Regency.  As  a 

result  of  the  integration  of  the  Board  of  Censors’  advisory  functions  into  the  Council  of  Regency, 

the  number  of  Regents  is  increased  from  10  to  14.  Hence,  under  the  draft  law,  the  Council  of 

Regency is composed of the Governor, the Directors and 14 Regents. 

1.8  Subject  to  certain  exceptions  set  out  below,  the  Council  of  Regency  is  no  longer  chaired  by  the 
Governor, but by an independent20 Regent appointed by Royal Decree as President of the Council 

of  Regency.  When  appointing  a  new  Governor,  the  King  confirms  the  designation  of  the  current 

President  of  the  Council  of  Regency  or  designates  a  new  president.  The  Governor  continues  to 

chair the meetings of the Council of Regency when the Council considers general issues relating to 

the  NBB;  monetary  policy  and  the  economic  situation  of  the  country  and  the  European  Union; 

supervisory  policy  with  regard  to  each  of  the  sectors  subject  to  the  NBB's  supervision;  Belgian, 

European  and  international  developments  in  the  field  of  supervision;  as  well  as,  in  general,  any 

development concerning the financial system subject to the NBB's supervision.  

1.9  Under  the  draft  law,  at  least  one-third  of  the  members  of  the  Council  of  Regency  must  be  of  a 

different  gender  than  the  other  members.  This  requirement  has  been  carried  over  from  a  similar 

provision for listed companies under Article 518bis of the Law on companies. This provision does 

not apply to the NBB given its specific governance structure, which differs from that of an ordinary 

public limited company. However, it is considered that the arguments underlying the introduction of 

Article  518bis  also  apply  to  the  NBB.  Consequently,  a  gender  quota  is  introduced  and  applied  to 

the  Council  of  Regency.  For  the  same  reasons,  the  draft  law  provides  that  the  President  of  the 

Council of Regency must be of the opposite sex and linguistic background from the Governor. 

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Article 21bis.1° of the Law of 22 February 1998. 
Article 21bis.2° of the Law of 22 February 1998. 

Article 21bis.1° of the Law of 22 February 1998. 
In the sense of Article 526ter of the Law on companies (“Code des sociétés”/ “Wetboek van vennootschappen” - as 
published in the annexes to the Belgian Official Gazette (“Moniteur Belge”/” Belgisch Staatsblad”) on 6 August 1999, 
and as amended from time to time). 

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2. 

Observations 

2.1 

In November 1995, the former European Monetary Institute (EMI) established a  list of features of 

central bank independence (later described in detail in its 1998 Convergence Report) which were 

the basis for establishing the national legislation of the Member States at that time and in particular 

the  national  central  banks’  statutes.  The  concept  of  central  bank  independence  includes  various 

types of independence that must be assessed separately, namely functional, institutional, personal 

and  financial  independence.  Over  the  past  few  years  there  have  been  further  refinements  of  the 

analysis of these aspects of central bank independence in the opinions adopted by the ECB.   

2.2  On  the  independence  of  the  NBB,  the  EMI  noted  with  satisfaction  that  features  of  central  bank 

independence  of  an  institutional,  personal,  functional  and  financial  nature  were  accomplished 

through various provisions, including the provision on the role of the Council of Regency, which is 

partly composed of representatives of different sectors of society and is restricted to advisory tasks 
without an ex ante right of consultation on ESCB-related tasks21. The EMI also noted that whereas 

under  the  Law  on  the  Nationale  Bank  van  België/Banque  Nationale  de  Belgique  the  Council  of 

Regency  was  competent  to  take  certain  monetary  policy  decisions,  the  draft  law  restricts  the 

Council of Regency’s involvement to an advisory role without an ex ante right of consultation. 

2.3  The  ECB  understands  that  the  NBB  Board  of  Directors  is  responsible  for  the  performance  of  its 
ESCB-related  tasks22,  and  therefore  qualifies  as  a  decision-making  body  within  the  meaning  of 
Article  130  of  the  Treaty23.  The  ECB  further  understands  that  the  Council  of  Regency  does  not 

intervene in the performance of ESCB-related tasks, nor in the decisions concerning those tasks, 

and that it therefore cannot be considered as a decision-making body within the meaning of Article 
130 of the Treaty24. Under Article 130 of the Treaty, when exercising the powers and carrying out 

the  tasks  and  duties  conferred  upon  it  by  the  Treaty  and  the  ESCB  Statute,  neither  a  national 

central bank (NCB), nor any member of its decision-making bodies shall seek or take instructions 

from,  inter  alia,  any  government  of  a  Member  State  ‘or  from  any  other  body’,  which  includes  a 

statutory  body  such  as  the  Council  of  Regency.  Having  regard  to  the  structure  of  the  Council  of 

Regency as  a constituent  part of the NBB, the  Council should not seek to influence the  Board of 

Directors, in its capacity as the NBB’s decision-making body responsible for the performance of the 
NBB’s ESCB tasks25.  

2.4  As  noted  by  the  ECB,  even  if  an  NCB  is  fully  independent  from  a  functional,  institutional  and 

personal point of view, which is guaranteed by the NCB’s statutes, its overall independence would 

be  jeopardized  if  it  could  not  autonomously  avail  itself  of  sufficient  financial  resources  to  fulfil  its 

mandate  and  perform  the  ESCB-related  tasks  required  of  it  under  the  Treaty  and  the  ESCB 

21  

22  
23  

24  

25  

See  paragraph  5  of  EMI  Opinion  CON/96/10.  All  opinions  of  the  EMI  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu.  

Article 19 of the Law of 22 February 1998. 
See  the  NBB’s  FAQ’s  on  ‘Independence  and  prohibition  on  monetary  financing’  available  on  the  NBB’s  website  at 
www.nbb.be. 
See  the  NBB’s  FAQ’s  on  ‘Independence  and  prohibition  on  monetary  financing’  available  on  the  NBB’s  website  at 
www.nbb.be. 

See paragraph 6 of Opinion CON/2002/16. 

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Statute26.  

2.5  Regarding  the  Council  of  Regency’s  competence  to  approve  the  expenditure  budget  and  to 

determine the final distribution of profits, the ECB has noted that a third party having the power to 

determine or influence an NCB’s budget is incompatible with financial independence unless the law 

provides  a  safeguard  clause  so  that  such  a  power  is  without  prejudice  to  the  financial  means 
necessary for carrying out the NCB’s ESCB-related tasks27.  

2.6  With regard to profit allocation, an NCB’s statutes may prescribe how its profits are to be allocated. 

In  the  absence  of  such  provisions,  decisions  on  the  allocation  of  profits  should  be  taken  by  the 

NCB’s decision-making bodies on professional grounds, and should not be subject to the discretion 

of third parties unless there is an express safeguard clause stating that this is without prejudice to 

the financial means necessary for carrying out the NCB’s  ESCB-related  tasks as well  as national 
tasks28. In this respect, there are a number of important statutory safeguards protecting the role of 

the  Board  of  Directors  in  its  capacity  as  the  NBB’s  decision-making  body  responsible  for  the 

performance  of  the  NBB’s  ESCB  tasks.  Firstly,  it  is  the  Board  which  submits  the  expenditure 
budget and proposes the distribution of profits to the Council of Regency29. Secondly, the members 

of the Board are also members of the Council of Regency. Thirdly, the ECB understands that under 

the draft law, the Governor continues to preside over the Council of Regency for all exchanges of 

views relating to ESCB-related matters, including general issues relating to the  NBB such as any 

matter  impacting  the  financial  independence  of  the  NBB  within  the  meaning  of  Article  130  of  the 

Treaty.  

2.7  Regarding  the  Council  of  Regency’s  competence  to  approve  the  annual  accounts,  the  ECB  has 

noted that the annual accounts should be adopted by the NCB’s decision-making bodies, assisted 

by  independent  accountants,  and  may  be  subject  to  ex  post  approval  by  third  parties  (e.g.,  the 
government  or  the  parliament)30.  This  requirement  is  materially  satisfied  by  an  arrangement 

whereby the annual accounts are submitted by the Board of Directors to the Council of Regency, 

with  the  Council,  as  a  constituent  body  of  the  NBB  in  which  the  Governor  and  the  other  Board 
members are represented, approving the accounts 31.  

2.8  As noted above, the ECB understands that under the draft law, the Governor continues to preside 

over  all  exchanges  of  views  by  the  Council  of  Regency  relating  to  ESCB-related  matters.  In  this 

respect, the ECB welcomes the provision which states that the Governor continues to preside over 

the Council of Regency whenever the Council holds exchanges of views on general issues relating 

to the NBB; monetary policy and the economic situation of Belgium and the EU; supervisory policy 

with  regard  to  each  of  the  sectors  subject  to  the  NBB's  supervision;  Belgian,  European  and 

international  developments  in  the  field  of  supervision;  as  well  as,  in  general,  any  development 

26  
27  
28  

29  
30  
31  

See the ECB Convergence Report (May 2018), p. 25. 
See the ECB Convergence Report (May 2018), p. 26. 

See the ECB Convergence Report (May 2018), p. 27; paragraphs 6 and 8 of ECB Opinion CON/2002/16; paragraph 
3.1.13 of ECB Opinion CON/2010/30; paragraphs 3.1.12 and 3.1.14 of ECB Opinion CON/2010/48; and paragraph 
3.2.2 of ECB Opinion CON/2017/17. 
See paragraph 1 of ECB Opinion CON/2009/4; paragraph 1 of ECB Opinion CON/2012/81. 
See the ECB Convergence Report (May 2018), p. 27. 

See also paragraphs 7-8 of ECB Opinion CON/2002/18; paragraph 3 of ECB Opinion CON/2008/91. 

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concerning the financial system subject to NBB's supervision.  

2.9  The ECB also welcomes the addition of four Regents to the Council of Regency under the draft law 

to  allow  the  Council  to  perform  the  newly  appointed  tasks  previously  executed  by  the  Board  of 

Censors. This increase in the number of Regents should optimize and enhance the quality of the 

Council  of  Regents’  advisory  role  and  its  new  Audit  and  Remuneration  and  Appointments 

Committees. 

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

Done at Frankfurt am Main, 26  March 2019. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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