Opinion of the European Central Bank of 24 June 2019 on the ownership structure of Banca d’Italia and the ownership of gold reserves (CON/2019/23)
Date: 2019-06-24
Institutions: European Central Bank
Subjects: Italy, central bank, foreign-exchange reserves, gold, national law, share capital

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 24 June 2019 

on the ownership structure of Banca d’Italia and the ownership of gold reserves 

(CON/2019/23) 

Introduction and legal basis 

On  2  May  2019  the  European  Central  Bank  (ECB)    received  a  request  from  the  President  of  the  lower 

chamber of the Italian Parliament (Camera dei Deputati) for an opinion on a draft law on the transfer of 

the ownership of the Banca d’Italia to the Ministry for Economy and Finance (hereinafter the ‘draft law on 

Banca d’Italia’s ownership structure’). By the same letter the President of the lower chamber transmitted 

another  draft  law  concerning  an  authentic  interpretation  of  Article  4  of  the  Italian  Consolidated  law  on 

foreign exchange on the management of official reserves (hereinafter the ‘draft law on the ownership of 

gold reserves’, together with the ‘draft law on Banca d’Italia’s ownership structure’, the ‘draft laws’). 

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  indent  of  Article 2(1)  of  Council  Decision 
98/415/EC1, as the draft laws relate to  Banca  d’Italia’s governance and the  basic task to be carried out 

through the European System of Central Banks (ESCB) to hold and manage the official foreign reserves 

of the Member States pursuant to the third indent of Article 127(2) of the Treaty. 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 laws 

1.1  The  draft  law  on  Banca  d’Italia’s  ownership  structure  provides  that  the  capital  shares  of  Banca 

d’Italia currently held by private sector entities shall be purchased by the Ministry of Economy and 

Finance at a nominal value of 1000 lire as set by specified provisions of Italian law dating from the 
1930s 2.  The  draft  law  further  provides  that,  after  such  transfer,  the  Ministry  of  Economy  and 

Finance  may  transfer  its  shareholding,  or  part  of  it,  only  to  public  sector  entities.  A  governmental 

delegated regulation to be enacted within three months from the entry into force of the draft law will 

regulate the procedures for transferring the shares. 

1.2  The  draft  law  on  Banca  d’Italia’s  ownership  structure  repeals  certain  existing  provisions  of  Italian 

1 

2 

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). 

This nominal price is set by Article 20 of the Royal Decree 375/1936 as converted into law by Law 141/1938. 

 
 
 
 
                                                 
ECB-PUBLIC 

legislation concerning the ownership and governance of Banca d’Italia3. In particular, the draft law 

repeals, inter alia, articles providing that: (1) the Banca d’Italia, a public-law institution, is the central 

bank of the Italian Republic, is an integral part of the ESCB and is the competent national authority 

in the single supervisory mechanism (SSM) referred to in Article 6 of Council Regulation (EU) No 

1024/2013;  (2)  the  Banca  d’Italia  is  independent  in  the  exercise  of  its  powers  and  in  the 

management of its finances; (3) the Banca d’Italia is authorised to increase its capital through the 

use  of  statutory  reserves  to  the  sum  of  €7.500.000.000;  (4)  Banca  d’Italia  shareholders  may 

receive annual dividends up to an amount not exceeding 6% of the capital; (5) shares in the capital 

of Banca d’Italia may only be held by banks, insurance and reinsurance companies with registered 
and head offices in Italy, foundations 4, social security and insurance bodies with registered offices 
in  Italy,  and  pension  funds5;  (6)  each  shareholder  in  Banca  d’Italia  may  not  own,  directly  or 

indirectly, a share of the capital exceeding 3%, and voting rights may not be exercised with respect 

to excess shares, and the relevant dividends are allocated to reserves of the Banca d’Italia; (7) the 

Banca  d’Italia  may  temporarily  acquire  its  own  shares  under  certain  conditions;  (8)  the  Banca 

d’Italia may dematerialise the shareholdings in its own capital; (9) the Banca d’Italia shareholders’ 

meeting and board of directors shall not interfere in matters pertaining to the exercise of the public 

functions entrusted by the Treaty, the Statute of the ESCB and of the ECB, by European law and 

by  law  to  the  Banca  d’Italia  or  to  the  Governor  for  the  pursuit  of  the  Banca  d’Italia’s  institutional 

purposes; (10) the Banca d’Italia board of directors is composed of the Governor and 13 directors 

appointed  by  local  shareholders’  general  meetings  in  the  manner  prescribed  by  the  Statute  of 

Banca  d’Italia  among  candidates  designated  by  a  specific  internal  committee  within  the  board  of 

directors;  and  (11)  the  Minister  of  Economy  and  Finance  does  not  have  the  power  (formerly 

provided  for  under  a  law  dating  from  1910)  to  suspend  and  annul  the  resolutions  of  the  Banca 

d’Italia  board  of  directors  when  the  Minister  deems  such  resolutions  to  be  contrary  to  laws, 
regulations  and  statutes.6  The  draft  law  also  repeals  a  number  of  technical  legal  provisions 

ensuring  the  consistency  of  the  legal  framework  governing  the  Banca  d’Italia  and  establishing  a 

specific  timeframe  for  the  adaptation  of  the  Statute  of  the  Banca  d’Italia  to  relevant  provisions  of 
Italian law.7 

1.3  The  explanatory  note  prepared  by  the  proponents  of  the  draft  law  on  Banca  d’Italia’s  ownership 

structure  states  that  the  draft  law  is  designed  to  transfer  the  capital  of  the  Banca  d’Italia  to 
exclusive  public  ownership,  also  by  restoring  previous  provisions  of  Italian  law8  that  were  never 
implemented and were subsequently repealed9. The explanatory note states that the Banca d’Italia 

should  be  a  publicly  owned  company  par  excellence,  given  that  the  activities  of  regulation, 

3 

4 
5 
6 
7 
8 
9 

Article  2  of  the  draft  law  repeals  Articles  4,  5  and  6  of  the  Law  Decree  133/2013  as  converted  into  law  with 
modifications by Law 5/2014 (hereinafter the “Law Decree 133/2013”). 

As referred to in Article 27 of Legislative Decree 153/1999. 
As established in accordance with the provisions of Article 4.1 of Legislative Decree 252/2005. 

See Article 114 of Royal Decree 204/1910. 
Adapting the Statute of the Banca d’Italia to Law Decree 133/2013. 
See Article 19.10 of Law 262/2005. 

See Law Decree 133/2013. 

2 

                                                 
ECB-PUBLIC 

supervision  and  monetary  policy  require  the  central  bank  to  have  maximum  independence  in 

relation to regulated entities. 

1.4  The draft law on the ownership of gold reserves provides an authentic interpretation of Article 4.2 of 

the  Italian  Presidential  Decree  31  March  1988  no.148  concerning  the  management  of  reserves, 

which provides that Banca d’Italia manages the official reserves within the framework established 
by Article 31 of the Statute of the ESCB10. In particular, the draft law provides that this article shall 

be construed as meaning that the Banca d’Italia manages the official gold reserves exclusively as a 

depositary,  without  prejudice  to  the  property  of  such  gold  reserves  of  the  Italian  State,  including 

reserves held abroad. 

1.5  The  explanatory  note  prepared  by  the  proponents  of  the  draft  law  on  the  ownership  of  gold 

reserves notes that Article 127(2) of the Treaty establishes that the tasks to be carried out through 

the  ESCB  include  holding  and  managing  the  official  foreign  reserves  of  the  Member  States,  and 

that  Article  31 of the Statute of the  ESCB refers to the foreign reserve  assets remaining  with the 

national  central  banks  (NCBs)  after  the  transfers  to  the  ECB.  The  explanatory  note  states  that, 

without  prejudice  to  compliance  with  international  obligations  deriving  from  the  Treaties,  spelling 

out  explicitly  that  the  ownership  of  the  gold  reserves  remains  with  the  Italian  State  seems 

necessary  in  light  of  the  hybrid  nature  acquired  by  Banca  d’Italia  over  time  due  to  several 

legislative interventions. The reference to the hybrid nature of Banca d’Italia seems to refer to the 

Banca d’Italia’s nature as a public law institution predominantly owned by private sector entities. 

2. 

Observations regarding the draft law on Banca d’Italia’s ownership structure 

2.1  The ECB recalls that it has issued two opinions on a similar Italian draft legislative proposal 11 which 
was  subsequently  enacted  into  law  in  2005 12,  but  which  never  entered  into  operation 13  and  was 
subsequently repealed14. 

Central bank independence 

2.2  The Treaty is silent on the ownership structure of NCBs in the ESCB, which is therefore left to each 

Member  State’s  autonomous  determination,  insofar  as  this  structure  fully  respects,  and  poses  no 

risks to, the principle of central bank independence established in Article 130 of the Treaty and the 
other Treaty provisions governing the ESCB or Eurosystem-related tasks15. 

2.3  The principle of institutional independence referred to in Article 130 of the Treaty  and Article 7 of 

the  Statute  of  the  ESCB  and  of  the  ECB  (the  ‘Statute  of  the  ESCB’)  prohibits  the  NCBs  and 

members of their decision-making bodies, when exercising their ESCB-related tasks, from seeking 

or  taking  instructions  from  EU  institutions  or  bodies,  from  any  government  of  a  Member  State  or 

10 

11 

12 
13 
14 
15 

See  Article  4.2  of  the  Italian  Presidential  Decree  31  March  1988  no.148  concerning  the  management  of  reserves, 
introduced by article 7 of Legislative Decree 43/1998. 

See  Opinions  CON/2005/34  and  CON/2005/58.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 

See Law 262/2005. 
See Article 19.10 of Law 262/2005, mentioned in paragraph 1.3 above. 
See Law Decree 133/2013. 

See paragraph 6 of Opinion CON/2005/34. 

3 

 
                                                 
ECB-PUBLIC 

from any other body. In addition, EU institutions, bodies, offices or agencies, and the governments 

of  the  Member  States  are  prohibited  from  seeking  to  influence  those  members  of  the  NCBs’ 

decision-making  bodies  whose  decisions  may  affect  the  fulfilment  of  the  NCBs’  ESCB-related 

tasks. Whether an NCB is organised as a state-owned body, a special public law body or simply a 

public limited company, there is a risk that influence may be exerted by the owner on its decision-

making  in  relation  to  ESCB-related  tasks  by  virtue  of  such  ownership.  Such  influence,  whether 

exercised  through  shareholders’  rights  or  otherwise,  may  affect  an  NCB’s  independence  and 
should  therefore  be  limited  by  law16.  This  entails  the  absence  both  of  shareholders’  influence  on 
decision-making in these fields and of a conflict of interest17. 

2.4  The  draft  law  on  Banca  d’Italia’s  ownership  structure18  would  repeal  Article  5.1  of  Law  Decree 

133/2013,  which  prevents  the  Banca  d’Italia  shareholders’  meeting  and  board  of  directors  from 

interfering  in  the  exercise  of  the  ESCB-related  functions  of  the  Banca  d’Italia  or  its  Governor. 

Moreover the draft law would also repeal Article 5.2 of Law Decree 133/2013, according to which 

the Banca d’Italia board of directors is composed of the Governor and 13 directors appointed in the 

manner prescribed by the Statute of Banca d’Italia, among candidates who meet the requirements 

of independence, integrity and professional experience laid down therein and are designated by a 

specific internal committee within the board of directors. These provisions being repealed are also 
mirrored in the Statute of the Banca d’Italia19. The ECB notes that it is legally unclear whether, as a 
result  of  the  draft  law,  a  previously  repealed  provision  of  Italian  law 20  would  be  reinstated. 

According to such provision the Banca d’Italia board of directors is prevented from interfering with 

the  institutional  tasks,  which  the  ECB  understands  include  the  ESCB-related  tasks,  of  the  Banca 

d’Italia. In this respect, the ECB notes that even if the first provision is deemed to be reinstated it 

would, however, not apply to prevent such interference by the shareholders’ meeting.  

2.5  The  principle  of  institutional  independence  refers  to  the  decision-making  bodies  exercising  the 

ESCB-related tasks. In the case of Banca d’Italia, it is the governing board which is responsible for 
the performance of the Banca d’Italia’s ESCB-related tasks21 and therefore qualifies as a decision-

making  body  within  the  meaning  of  Article  130  of  the  Treaty.  In  contrast,  the  Banca  d’Italia’s 

shareholders’ meeting and board of directors do not intervene in the performance of ESCB-related 

tasks  nor  in  the  decisions  concerning  those  tasks,  and  they  therefore  cannot  be  considered  as 

decision-making  bodies  within  the  meaning  of  Article  130  of  the  Treaty.  Based  on  this  internal 

structure of Banca d’Italia, the shareholders’ meeting and the board of directors are prohibited from 

seeking to influence the governing board as the Banca d’Italia’s decision-making body responsible 
for the performance of the Banca d’Italia’s ESCB tasks22. Therefore, the ECB considers it important 

that Articles 5.1 and 5.2 of Law Decree 133/2013 are not repealed. 

16 
17 
18 
19 
20 

21 
22 

See ECB Convergence Report (May 2018), p. 21. 
See paragraph 9 of Opinion CON/2005/34. 

Article 2 of the draft law on Banca d’Italia’s ownership structure. 
See Articles 6.2 and 19.2 of the Statute of the Banca d’Italia. 

See Article 5.1 of Legislative Decree of the Temporary Head of Italian State 691/1947, which was repealed by Law 
Decree 133/2013. 
See Article 22 of the Statute of the Banca d’Italia. 

See paragraph 2.3 of Opinion CON/2019/12. 

4 

                                                 
ECB-PUBLIC 

2.6  The draft law on Banca d’Italia’s ownership structure would also repeal a provision that the Minister 

of Economy and Finance does not have the power (formerly provided for under a law dating from 

1910)  to  suspend  and  annul  the  resolutions  of  the  Banca  d’Italia  board  of  directors  when  the 
Minister  deems  such  resolutions  to  be  contrary  to  laws,  regulations  and  statutes 23.  The  ECB 

requests that the repeal of this provision  be clarified.  As a general observation, the ECB calls on 

the Italian authorities to carefully consider the possible unintended direct or indirect effects of the 

draft  law  on  Banca  d’Italia’s  ownership  structure  on  the  independence  of  the  Banca  d’Italia,  as 

established in Article 130 of the Treaty. 

2.7  The draft law would also repeal Article 4.1 of Law Decree 133/2013, according to which the Banca 

d’Italia is independent in the management of its finances. The ECB understands that the repeal of 

this provision was unintended, having regard to the relevance of financial independence as part of 

the  principle  of  central  bank  independence  under  Article  130  of  the  Treaty.  It  is  therefore 

recommended that Article 4.1 be reinstated. 

Legal uncertainties 

2.8  The ECB highlights a number of legal uncertainties which stem from the draft law as a result of the 

repeal  of  existing  provisions  of  Italian  law  affecting  the  Banca  d’Italia  and  the  unclear  interaction 

between  the  draft  law  and  the  Statute  of  the  Banca  d’Italia,  as  further  elaborated  in  paragraphs 

2.10-2.13 below. 

2.9  The ECB understands that a number of the existing  provisions of Italian law that are repealed by 

the  draft  law  on  Banca  d’Italia’s  ownership  structure  are  mirrored  in  other  provisions  of  Italian 

legislation,  and  that  these  corresponding  provisions  in  other  provisions  of  Italian  law  continue  to 

apply  and  are  not  affected  by  the  draft  law.  This  is  the  case,  for  example,  with  respect  to  the 

repealed articles providing that (1) the Banca d’Italia, a public-law institution, is the central bank of 

the Italian Republic and is an integral part of the ESCB; and (2) the Banca d’Italia is independent in 
the exercise of its powers 24.  

2.10  As  noted  in  paragraph  2.7  above,  the  draft  law  would  also  repeal  Article  4.1  of  Law  Decree 

133/2013, according to which the Banca d’Italia is the national competent authority in the SSM. The 

ECB understands that the repeal of this provision was unintended, in the absence of any proposal 
of  reform  of  the  national  supervisory  authorities 25.  For  the  sake  of  legal  certainty,  it  is  suggested 

that Article 4.1 be reinstated. 

2.11  A number of existing provisions of Italian law that are repealed by the draft law on Banca d’Italia’s 

ownership  structure  are  mirrored  in  the  Statute  of  the  Banca  d’Italia.  Some  of  the  corresponding 

provisions  in  the  Statute  of  the  Banca  d’Italia  are  directly  and  potentially  conflicting  with  the 

provisions of the draft law. In particular, the Statute of the Banca d’Italia provides, inter alia, that (1) 

shares may only be held by banks, insurance and reinsurance companies with registered and head 

23 
24 
25  

See Article 114 of Royal Decree 204/1910. 

See Article 19 of Law 262/2005 and Article 2 of Legislative Decree 43/1998. 
The  role  of  the  Banca  d’Italia  as  national  supervisory  authority  in  the  SSM  is  also  presupposed  by  the  relevant 
provisions of the Italian Banking Law, the Legislative Decree 1 September 1993, n. 385 (see Articles 6, paragraph 3, 
and 6-bis). 

5 

                                                 
ECB-PUBLIC 

offices in Italy, foundations social security and insurance bodies with registered offices in Italy, and 
pension funds 26; (2) no shareholder may hold, directly or indirectly, a share of the capital exceeding 
3%,  and  voting  rights  may  not  be  exercised  with  respect  to  excess  shares 27;  and  (3)  the  Banca 
d’Italia may temporarily acquire its own shares under certain conditions 28. However, it would seem 

that the provisions of the draft law relating to the purchase by the Ministry of Economy and Finance 

of  the  capital  shares  of  Banca  d’Italia  currently  held  by  private  sector  entities  and  providing  that, 

after  such  transfer,  the  Ministry  may  transfer  its  shareholding,  or  part  of  it,  only  to  public  sector 

entities, would directly conflict with the provision of the Statute of the Banca d’Italia under point (1) 

above, and would potentially also contradict the provisions of the Statute of the Banca d’Italia under 

points (2) and (3) above. The draft law is silent on the possible criteria to solve this conflict, which 

should be contemplated in the draft law. The Italian authorities are invited to address these direct 

and  potential  conflicts  for  the  sake  of  legal  certainty,  in  order  to  prevent  negative  impacts  on  the 

smooth functioning of the Banca d’Italia. 

2.12  Since certain existing provisions of Italian law that are repealed by the draft law on Banca d’Italia’s 

ownership  structure  set  out  general  criteria  to  be  mirrored  in  a  more  extensive  manner  in  the 

Statute of the Banca d’Italia, it would seem that the relevant provisions of the Statute of the Banca 

d’Italia would continue to apply. For example, the Statute of the Banca d’Italia provides, inter alia, 

that the net profit of Banca d’Italia shall be distributed to the ordinary reserves, up to a maximum of 

20% of net profit, and after that to shareholders up to a maximum of 6% of the capital, and that the 

ordinary  reserve,  if  reduced  to  offset  losses,  must  be  reconstituted  entirely  before  proceeding  to 

any  profit  distributions.  The  ECB  understands  that  this  particular  provision  of  the  Statute  of  the 

Banca d’Italia is not affected by the draft law. On a general note, the Statute of the Banca d’Italia 

needs  to  contain  provisions  to  ensure  that  irrespective  of  discretionary  decisions  of  the  board  of 

directors and of the shareholders’ meeting, a sufficient amount of ordinary reserves and, if needed, 

extraordinary reserves, can be constituted to ensure that the Banca d’Italia has the financial means 
to perform its statutory tasks29. In the same vein, it is understood that Article 39 paragraph 2 of the 

Statute  on  provisions  for  general  risks  would  continue  to  apply  notwithstanding  the  draft  law 

repeals  Article  6.5  lett.  a)  of  Law  Decree  133/2013  which  requires  the  Statute  to  adopt  financial 

buffers adequate to the riskiness consistent with the ESCB guidelines. 

2.13 

It would need to be clarified whether certain existing provisions of Italian law that are repealed by 

the  draft  law  on  Banca  d’Italia’s  ownership  structure,  but  which  are  mirrored  in  the  Statute  of  the 

Banca d’Italia, would continue to apply. In particular, the Statute of the Banca d’Italia provides, inter 

alia, that the capital of the Banca d’Italia shall be €7.500.000.000 and shall be divided into 300,000 
registered  shares  the  nominal  value  of  which  shall  be  €25.000  each30,  and  that  the  shares  of 

Banca d’Italia shall be dematerialised and entered into the central depository system provided for 

by  Legislative  Decree  58/1998.  In  this  respect,  the  ECB  understands  that  the  Banca  d’Italia’s 

26 
27 
28 
29 
30 

Article 3(3) of the Statute of the Banca d’Italia, reflecting Article 4.4 of Law Decree 133/2013. 

Article 3(4) of the Statute of the Banca d’Italia, reflecting Article 4.5 of Law Decree 133/2013. 
Article 3(6) of the Statute of the Banca d’Italia, reflecting Article 4.6 of Law Decree 133/2013. 
See paragraph 10 of Opinion CON/2005/34. 

Article 3(1) of the Statute of the Banca d’Italia. 

6 

                                                 
ECB-PUBLIC 

capital  has  already  been  called  up.  The  draft  law  would  also  repeal  Article  6  of  Law  Decree 

133/2013  that  reordered  and  repealed,  for  the  sake  of  clarity,  a  number  of  provisions  of  Italian 

legislation  dealing  with  the  ownership  structure  and  governance  of  the  Banca  d’Italia.  It  is  legally 

unclear whether the repeal of Article 6 would reinstate all the formerly repealed provisions, to the 

extent  not  expressly  incompatible  with  the  draft  law.  The  Italian  authorities  are  invited  to  address 

these uncertainties. 

2.14  At  present  the  governmental  delegated  regulation  mentioned  in  the  draft  law  on  Banca  d’Italia’s 

ownership structure would only deal with the modalities for the transfer of the shareholdings in the 

capital of the Banca d’Italia. No provision is envisaged to be enacted in relation to the compatibility 

between the current governance of the Banca d’Italia and the proposed  changes in its ownership 

structure. Finally, by way of general observation, former Italian laws dealing with the ownership and 

the  governance  of the Banca d’Italia contained provisions  to  ensure, for legal certainty  purposes, 

that  the  Statute  of  the  Banca  d’Italia  was  adapted  to  the  new  provisions  in  accordance  with  a 

defined  timeline.  The  draft  law  contains  no  rule  in  this  respect,  which  constitutes  an  element  of 

legal uncertainty that could be usefully addressed in the draft law. 

Further consultation of the ECB 

2.15  The  ECB  expects  to  be  consulted  pursuant  to  Articles  127(4)  and  282(5)  of  the  Treaty  on  any 

further draft legislative, regulatory  or statutory amendments to the Banca  d’Italia’s ownership and 

governance structure, including, but not limited to, the governmental delegated regulation provided 

for  in  the  draft  law  on  Banca  d’Italia’s  ownership  structure  as  well  as  any  amendment  of  the 

governance  structure  and  the  Statute  of  Banca  d’Italia  that  might  result  from  the  change  in  the 

ownership structure. 

Impact on ECB supervised credit institutions; right to property 

2.16  From  a  financial  perspective,  the  ECB  understands  that,  under  the  draft  law  on  Banca  d’Italia’s 

ownership structure, each share of Banca d’Italia currently held by private sector entities would be 

purchased by the Ministry of Economy and Finance at a nominal value of 1000 lire, equal to 51.64 
euro  cents 31,  in  lieu  of  the  nominal  value  of  €25.000  specified  under  the  Statute  of  the  Banca 

d’Italia.  As a result, credit  institutions may  be  affected to  different degrees to the extent that they 

own shares of Banca d’Italia for a nominal amount equal to the nominal value currently indicated in 

the Statute of the Banca d’Italia. Therefore, the implementation of the draft law is expected to have 

a  negative  impact  on  the  capitalisation  of  the  Italian  banking  sector,  which,  in  principle,  may 

deserve some attention. 

2.17 

It  is  for  the  Italian  authorities  to  assess  whether  the  draft  law  complies  with  Italian  legal  and 
constitutional principles 32. However, the ECB notes that the abovementioned purchase price of the 

shares of Banca d’Italia may deserve attention by the Italian authorities from the point of view of the 

right to property. 

31   

32 

See Council Regulation (EC) No 2866/98 of 31 December 1998 on the conversion rates between the euro and the 
currencies of the Member States adopting the euro (OJ L 359, 31.12.1998, p.1). 

See, e.g., paragraph 3.2.2 of Opinion CON/2015/32. 

7 

                                                 
ECB-PUBLIC 

3. 

Observations regarding draft law on the ownership of gold reserves 

3.1  The  question  of  the  legal  ownership  and  the  competences  of  the  ESCB  with  regard  to  the  gold 

reserves  of  Member  States  ultimately  relate  to  the  competences  of  the  ESCB  under  the  Treaty. 

The basic points of reference are Articles 127(2) and 130 of the Treaty. Article 127(2) of the Treaty, 

which is contained in Chapter 2 (Monetary Policy) of Title VIII of the Treaty, sets out the basic tasks 

to  be  carried  out  through  the  ESCB.  In  this  respect,  it  is  noted  that  under  Article  3(1)(c)  of  the 

Treaty, the Union has exclusive competence in the area of monetary policy for the Member States 

whose  currency  is  the  euro.  Article  127(2),  third  indent,  of  the  Treaty  provides,  in  particular,  that 

one of the basic tasks to be carried out through the ESCB is to hold and manage the official foreign 

reserves  of  the  Member  States.  Article  130  of  the  Treaty  guarantees  the  independence  of  the 

NCBs, including the Banca d’Italia, and the ECB in performing their ESCB tasks. 

3.2  The Treaty  does  not  determine  ESCB  and  ECB  competences  with  respect  to  official  reserves  by 

using  the  concept  of  ownership.  Rather,  the  Treaty  only  deals  with  the  dimension  of  exclusive 

holding and management of the reserves. 

3.3  On  the  basis  of  Article  31  of  the  Statute  of  the  ESCB,  operations  in  foreign  reserve  assets 

remaining with the NCBs, including the Banca d’Italia, after the transfers to the ECB referred to in 
Article  30 33,  and  Member  States’  transactions  with  their  foreign  exchange  working  balances,  are, 

above a certain limit established within the framework of guidelines issued by the ECB with a view 

to facilitating such operations, subject to approval by the ECB in order to ensure consistency with 

the exchange rate and monetary policies of the Union. 

3.4 

In accordance with Article 130 of the Treaty, when carrying out the task of holding and managing 

gold reserves, neither the ECB, nor an NCB, including the Banca d’Italia, nor any member of their 

decision-making  bodies,  shall  seek  or  take  instructions  from,  inter  alia,  any  government  of  a 

Member State. The governments of the Member States undertake to respect this principle and not 

to seek to influence the members of the decision-making bodies of the ECB or the NCBs, including 

the Banca d’Italia, in the performance of their tasks. 

3.5 

In view of these provisions, the ESCB task of holding and managing foreign reserves includes all 

actions  necessary  for  its  effective  performance  of  the  Eurosystem’s  mandate.  For  instance,  for 

reserve assets to accomplish their function in foreign reserve management operations, the aspect 

of  full  effective  control  by  the  central  bank  is  essential.  This  implies  the  ability  of  NCBs  to  take 

33     Article 30 requires all NCBs, including the Banca d’Italia, to transfer a defined amount of foreign reserves, including 
gold, to the ECB, in proportion to their share in the capital of the ECB. For the purpose of regulating the transfer of 
foreign  reserve  assets  by  NCBs  to  the  ECB  pursuant  to  Article  30  of  the  Statute  of  the  ESCB,  the  ECB  adopted 
Guideline ECB/2000/15, which included gold among the foreign reserves which had to be transferred by the NCBs, 
including  the  Banca  d’Italia,  to  the  ECB  upon  the  start  of  Stage  3  of  the  European  Monetary  Union  (EMU)  and 
subsequently upon joining the euro. The ECB may effect further calls of foreign reserve assets, including gold, from 
the  NCBs,  including  the  Banca  d’Italia,  in  case  of  need  for  such  foreign  reserve  assets.  See  Guideline  of  the 
European  Central  Bank  of  3  November  1998  as  amended  by  the  Guideline  of  16  November  2000  on  the 
composition,  valuation  and  modalities  for  the  initial  transfer  of  foreign-reserve  assets,  and  the  denomination  and 
remuneration of equivalent claims (ECB/2000/15) (OJ L 336, 30.12.2000, p. 114); Article 30.4 of the Statute of the 
ESCB; and Articles 1 and 2(1) of Council Regulation (EC) No 1010/2000 of 8 May 2000 concerning further calls of 
foreign reserve assets by the European Central Bank (OJ L 283, 31.10.2003, p. 81). 

8 

 
                                                 
 
ECB-PUBLIC 

decisions, in complete autonomy, relating to the holding, retention, disposal, negotiation and daily, 

as well as long-term, management of the foreign reserves. 

3.6 

In  this  regard,  it  must  be  noted  that  the  reference  in  the  draft  law  to  the  Banca  d’Italia  acting 

“exclusively” as a depositary could be read as limiting (or even excluding) Banca d’Italia’s power to 

independently  take  decisions  related  to  holding  and  managing  the  official  reserves  that  are 

necessary to accomplish its tasks under the Treaties. Such restriction would be incompatible with 

Articles  127(2)  and  130  of  the  Treaty,  as  explained  above.  The  ECB  would,  therefore,  suggest 

deleting the reference in the draft law to the Banca d’Italia holding and managing the gold reserves 

in  terms  of  an  ‘exclusive  title  of  deposit’.  In  addition,  consistent  with  the  explanatory  note 

accompanying the draft law, an explicit reference in the draft law to the provisions of Articles 127(2) 

and 130 of the Treaty and, additionally, to Article 31 of the Statute of the ESCB may be useful: it 

will  clarify  further  the  scope  of  the  law,  even  if  these  Treaty  provisions  apply  in  any  case.  The 

independent holding and management of the official foreign reserves (including gold reserves) also 
specifically means that the official foreign reserves (including the gold reserves) must be recorded 

on the balance sheets of the NCBs or of the ECB. A transfer of the foreign reserves (including gold 

reserves)  off  the  balance  sheet  of  Banca  d’Italia  to  the  State  would  circumvent  the  prohibition  of 

monetary  financing  under  Article  123  of  the  Treaty,  which  prohibits  central  bank  financing  of  the 

public sector and would be also against the principle of financial independence under Article 130 of 

the Treaty.  

3.7  Consistently  with  the  principle  of  financial  independence  under  Article  130  of  the  Treaty,  any 

income  accruing  to  the  Banca  d’Italia  as  a  result  of  the  management  of  such  official  foreign 

reserves can only be distributed to shareholders through the normal process for the distribution of 

profits as set out in the relevant legislative and statutory provisions, and after a sufficient amount of 

reserves  has  been  constituted  to  ensure  that  Banca  d’Italia  has  the  financial  means  to 

independently perform its tasks. 

3.8  The ECB notes that if the Italian authorities consider it necessary to clarify the interpretation of the 

existing legislation as to the legal ownership of gold reserves, then Banca d’Italia shall be consulted 

in order to ensure that the Treaty requirements and in particular the independence of Banca d’Italia 

established in Article 130 of the Treaty will continue to be fully respected. 

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

Done at Frankfurt am Main, 24 June 2019. 

[signed] 

The President of the ECB 

Mario DRAGHI 

9