Opinion of the European Central Bank of 28 April 2022 on prohibiting the financing of companies producing anti-personnel mines, cluster munitions and submunitions (CON/2022/17)
Date: 2022-04-28
Institutions: European Central Bank
Subjects: banking supervision, institutional activity, legal basis

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 28 April 2022  

on prohibiting the financing of companies producing anti-personnel mines,  

cluster munitions and submunitions 

(CON/2022/17) 

Introduction and legal basis 

On  9  December  2021  the  Italian  Parliament  adopted  the  Law  on  measures  prohibiting  the  financing  of 

companies  producing  anti-personnel  mines  and  cluster  munitions  and  submunitions  (hereinafter  the 

‘Law’)1.  

The  European  Central  Bank  (ECB)  would  like  to  draw  attention  to  the  national  authorities’  obligation  to 

consult the ECB on draft legislative provisions that fall within its field of competence. The ECB has decided 

to  deliver  an  own  initiative  opinion  on  the  Law,  since  it  has  not  been  formally  consulted2.  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/EC3,  as  the  Law 

relates to the Banca d’Italia. 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 Law 

1.1  The  Law  implements  the  1997  Ottawa  Convention  on  the  Prohibition  of  the  Use,  Stockpiling, 

Production  and  Transfer  of  Anti-Personnel  Mines  and  on  their  Destruction  and  the  2008  Oslo 

Convention  on  Cluster  Munitions  (hereinafter  the  ‘Ottawa  and  Oslo  Conventions’).  It  introduces  a 

total  ban  on  the  financing4  of  any  company  involved  in,  inter  alia,  the  production,  use,  sale, 

distribution, import, export or transfer of anti-personnel mines, cluster munitions and submunitions, 

except as expressly permitted by the Ottawa and Oslo Conventions. This ban applies to all licensed 

intermediaries, which include Italian, Union and non-Union credit institutions, as well as a range of 

other  financial  institutions,  including  banking  foundations,  investment  firms  and  companies,  asset 

management companies, financial intermediaries, stockbrokers and pension funds.  

1  

2  

3  

4  

Legge 9 dicembre 2021, n. 220, Misure per contrastare il finanziamento delle imprese produttrici di mine antipersona, 
di munizioni e submunizioni a grappolo, pubblicata in Gazzetta Ufficiale n. 303 del 22-12-2021. 
The ECB has issued several own-initiative opinions, see e.g. CON/2022/4, CON/2022/9, CON/2019/41, CON/2019/44, 
CON/2011/76, CON/2011/106. All ECB opinions are available on EUR-Lex. 
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). 

Article 2(1), point b), of the Law defines ‘financing’ as ‘any form of financial support provided through subsidiaries with 
their  principal  place  of  business  in  Italy  or  abroad,  or  otherwise,  including  for  example,  and  without  limitation,  the 
granting  of  credit  in  any  form,  provision  of  financial  guarantees,  taking  of  participating  interests,  acquisition  of,  or 
subscription to, financial instruments issued by the companies referred to in this article’. 

 
 
 
 
 
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1.2  The Law confers certain tasks on supervisory bodies 5, including the Banca d’Italia, the Istituto per la 

vigilanza  sulle  assicurazioni  (Institute  for  the  Supervision  of  Insurance)  and  the  Commissione  di 

vigilanza sui fondi pensione (Pension Funds Supervisory Committee). In particular, within six months 

of  the  date  of  entry  into  force  of  the  Law,  the  supervisory  bodies  are  required  to  (1)  issue,  in 

agreement with each other, specific instructions for the exercise of enhanced controls on the work of 

licensed  intermediaries  in  order  to  counter  the  financing  of,  inter  alia,  the  production,  use,  sale, 

distribution, import, export or transfer of anti-personnel mines, cluster munitions and submunitions, 

and (2) draw up and publish a list of companies involved in those activities. In addition, financial flow 

controls performed by the Unità di informazione finanziaria per l’Italia (UIF, Financial Intelligence Unit 

for Italy), which was set up at the Banca d’Italia, are extended to such companies. Furthermore, the 

Law  requires  the  Banca  d’Italia  to  supervise,  in  the  context  of  its  inspections  and  controls  of  the 

supervised entities, compliance with the financing ban. The Law does not contain any provision on 

the remuneration of the Banca d’Italia for the performance of these tasks. 

2. 

Conferral of new tasks on the Banca d’Italia 

2.1 

 Tasks of the Banca d’Italia in relation to the Law 

2.1.1  Besides extending the UIF’s control of financial flows 6 to companies involved in the production, use, 

sale,  distribution,  import,  export  or  transfer  of  anti-personnel  mines,  cluster  munitions  and 

submunitions, the Law tasks the Banca d’Italia with the supervision of the compliance of supervised 

entities with the prohibition on the financing of such companies 7. In addition, the Law requires the 

Banca d’Italia to draw up and publish a list of these companies 8.  

2.1.2  The Law does not extend the current supervisory mandate of the Banca d’Italia. The Banca d’Italia 

is  responsible  for  supervising  credit  institutions.  The  ECB  understands  that  the  Banca  d’Italia  is 

responsible  for  checking  whether  supervised  entities  have  internal  procedures  in  place  to  ensure 

compliance with a broad range of rules on their lending activities 9. It follows that the Law does not 

confer  a  genuinely  new  supervisory  task  on  the  Banca  d’Italia,  but  rather  specifies  certain  new 

powers that the Banca d’Italia must exercise when carrying out the same category of tasks already 

discharged  in  accordance  with  the  Italian  Consolidated  Banking  Law.  Consequently,  it  is  not 

necessary to assess whether the conferral of a new task on a national central bank (NCB) complies 

with  the  prohibition  of  monetary  financing  in  this  case.10  In  contrast,  the  task  of  drawing  up  and 

publishing a list of companies is a new task of the Banca d’Italia. 

2.2  New task of the Banca d’Italia under the Law 

2.2.1  This  section  covers  the  task,  as  conferred  on  the  Banca  d’Italia  by  the  Law,  of  drawing  up  and 

5  
6  

7  
8  
9 

10  

The term ‘supervisory bodies’ is defined in Article 2, point f), of the Law. 

The ECB notes that this does not constitute a substantial amendment of the existing monitoring tasks of the UIF as a 
body set up within the Banca d’Italia. Consequently, it is not necessary to assess compliance with the prohibition on 
monetary financing with regard to the UIF’s task in this case.  
Articles 1(1) and 3(1) and Article 5 of the Law. 

Article 3(1) of the Law. 
Article 5(1) of the Italian Consolidated Banking Law (Decreto Legislativo 1 settembre 1993, n. 385 Testo unico delle 
leggi in materia bancaria e creditizia, pubblicato in Gazzetta Ufficiale n. 230 del 30-09-1993). 
See paragraph 5.2.1 of Opinion CON/2021/9. 

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publishing  a  list  of  companies  involved  in  the  production,  use,  sale,  distribution,  import,  export  or 

transfer of anti-personnel mines, cluster munitions and submunitions. 

2.2.2. The ECB underlines that a conferral of new tasks on an NCB in the European System of Central 

Banks  (ESCB)  must  be  assessed  against  the  prohibition  on  monetary  financing  laid  down  in 

Article 123(1)  of  the  Treaty.  For  the  purposes  of  that  prohibition,  Article 1(1)(b)(ii)  of  Council 

Regulation (EC) No 3603/9311 defines ‘other type of credit facility’, inter alia, as ‘any financing of the 

public sector’s obligations vis-à-vis third parties’. 

2.2.3  Ensuring that Member States implement a sound budgetary policy is one of the key objectives of the 

monetary financing prohibition, which may not be circumvented 12. Therefore, the task of financing 

measures, which are normally the responsibility of the Member States, and which are financed from 

their budgetary sources rather than by the NCBs, must not be entrusted to NCBs. To decide what 

constitutes financing of the public sector’s obligations vis-à-vis third parties, which can be translated 

as the provision of central bank financing outside the scope of central bank tasks, it is necessary to 

carry out, on a case-by-case basis, an assessment of whether the task to be undertaken by an NCB 

is  a  central  bank  task  or  a  government  task,  i.e.  a  task  within  the  responsibilities  of  the  Member 

States.  

2.2.4  As part of its discretion in the exercise of its duty, on the basis of Article 271(d) of the Treaty and 

Article 35.6 of the Statute of the European System of Central Banks and of the European Central 

Bank (hereinafter the ‘Statute of the ESCB’), to ensure that NCBs honour the obligations laid down 

by the Treaty, the Governing Council has endorsed criteria for determining what may be seen as 

falling  within  the  scope  of  a  public  sector  obligation  within  the  meaning  of  Article  1(1)(b)(ii)  of 

Regulation (EC) No 3603/93 or, in other words, what constitutes a government task as follows: 

First, central bank tasks are in particular those tasks that are related to  the tasks that have been 

conferred on the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks are 

mainly defined in Article 127(2), (5) and (6) and Article 128(1) of the Treaty, as well as Article 22 and 

Article 25.1 of the Statute of the ESCB. 

Second, as Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘other functions’, new 

tasks, i.e. tasks that are not related to tasks that have been conferred on the ECB and the NCBs, are 

not precluded per se. However, new tasks that are undertaken by an NCB and which are atypical of 

NCB  tasks  or  which  are  clearly  discharged  on  behalf  of,  and  in  the  exclusive  interest  of  the 

government or of other public sector entities should be considered government tasks. 

Third, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly 

discharged on behalf of and in the exclusive interest of the government or other public sector entities 

is the impact of the task on the institutional, financial and personal independence of that NCB. 

In particular, the following aspects should be taken into account: 

(a)  whether the performance of the new task creates conflicts of interest with existing central bank 

tasks,  which  are  not  adequately  addressed,  and  does  not  necessarily  complement  those 

11  

12  

Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the prohibitions 
referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). 
Article  123  of  the  Treaty  also  serves  the  objective  of  maintaining  price  stability  and  reinforces  central  bank 
independence. 

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existing  central  bank  tasks.  If  a  conflict  of  interest  arises  between  existing  and  new  tasks, 

sufficient safeguards to mitigate that conflict should be in place. The complementarity between 

a new task and existing central bank tasks should not be interpreted broadly, so as to lead to 

the  creation  of  an  indefinite  chain  of  ancillary  tasks.  Such  complementarity  should  be 

examined in relation to the financing of those tasks; 

(b)  whether without new financial resources the performance of the new task is disproportionate 

to  the  NCB’s  financial  or  organisational  capacity,  and  may  have  a  negative  impact  on  the 

capacity to properly perform the existing central bank tasks; 

(c)  whether the performance of the new task fits into the institutional set-up of the NCB in the light 

of central bank independence and accountability considerations; 

(d)  whether the performance of the new task harbours substantial financial risks; 

(e)  whether the performance of the new task exposes the members of the NCB decision-making 

bodies to political risks that are disproportionate and may also have an impact on their personal 

independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the 

Statute. 

2.2.5  Based on the criteria set out in paragraph 2.2.4 above, the following paragraphs assess whether the 

conferral on the Banca d’Italia of the new task of drawing up and publishing a list of companies is in 

line with the prohibition on monetary financing. 

2.3  Tasks related to the tasks conferred on the ECB and the NCBs by the Treaty and the Statute of the 

ESCB 

The new task of drawing up and publishing a list of companies is not related to the tasks conferred 

on the ECB and the NCBs by the Treaty and the Statute of the ESCB. 

2.4  Tasks which are atypical of central bank tasks  

The new task of drawing up and publishing a list of companies is atypical of central bank tasks. The 

ECB notes that the list drawn up by the Banca d’Italia will include companies that are not entities that 

the Banca d’Italia supervises as part of its typical central bank tasks, nor do the listing criteria in the 

Law refer to any financial  attributes of the relevant companies. The drawing up and publishing  of 

such a list requires expertise that does not typically exist in an NCB; it appears to require insights on 

a business sector that is not the banking or financial sector. In addition, the ECB highlights that no 

other NCB in the ESCB has been tasked with similar tasks as result of the implementation of the 

Ottawa and Oslo Conventions in its respective jurisdiction. Against this backdrop, this task appears 

atypical of NCB tasks.  

2.5  Tasks clearly discharged on behalf of and in the exclusive interest of the government 

The new task of drawing up and publishing a list of companies appears to be discharged on behalf 

of and in the interest of the Italian government, as the purpose of the list is strictly related to defence 

and  foreign  policy  reasons.  In  this  regard,  it  is  worth  noting  that  the  Italian  legislator  has  already 

entrusted  the  Ministry  of  Defence,  the  Ministry  of  Foreign  Affairs  and  the  Ministry  of  Economic 

Development with specific tasks in relation to the ratification and implementation of the Ottawa and 

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Oslo Conventions 13.  

2.6  Extent to  which the performance  of the  new task creates conflicts  of  interest with existing central 

bank tasks 

The performance of the task of drawing up and publishing a list of companies is unlikely to give rise 

to any conflicts of interest in connection with the Banca d’Italia’s existing central bank tasks.  

2.7  Extent to which the performance of the new task is disproportionate to the financial or organisational 

capacity of the Banca d’Italia 

The  Banca  d’Italia  should  have  sufficient  financial  and  human  resources  at  its  disposal  for  the 

performance of its new task, so that its capacity to perform its ESCB-related tasks is not affected. 

The  Law  does  not  cover  the  funding  of  the  Banca  d’Italia’s  new  task  of  drawing  up  of  a  list  of 

companies. The ECB notes that the list drawn up by the Banca d’Italia will include companies that 

are not supervised entities and thus appears to necessitate expertise beyond that which is currently 

available at the Banca d’Italia. Against this backdrop, the ECB invites the Italian legislator to consider 

the impact of the Law on the Banca d’Italia’s resources and to consider whether current financing 

arrangements would sufficiently cover the costs associated with the new tasks under the Law. 

2.8  Extent to which the performance of the new task fits into the institutional set-up of the Banca d’Italia, 

in the light of central bank independence and accountability considerations 

The performance of the task of drawing up and publishing a list of companies appears to conflict with 

the Banca d’Italia’s institutional set-up in terms of the scope of its supervisory mandate.  

2.9 

 Extent to which the performance of tasks harbours substantial financial risks 

The Law does not contain any provision on the Banca d’Italia’s liability for damage in the exercise of 

its new task. The Law entrusts the Banca d’Italia with the new task of drawing up a list of companies 

without equipping it with the powers and legal instruments necessary to carry it out. The ECB notes 

that: (1) the performance of the task requires technical knowledge and skills other than those typically 

required for the performance of central banking tasks by the Banca d’Italia; (2) the list will include 

companies  that  are  not  supervised  entities;  (3)  inclusion  in  the  list  of  companies  with  registered 

offices  in  Italy  would  require  ascertaining  that  they  carry  out  activities  forbidden  and  criminally 

sanctioned under Italian law – however, the Law does not specify whether the Banca d’Italia decides 

on  inclusion  in  the  list  of  companies  based  on  a  prior  and  final  judicial  decision,  or  based  on  an 

independent assessment by the Banca d’Italia itself, which might differ from any judicial finding; and 

(4) the inclusion in the list of companies with registered offices abroad poses additional challenges 

related to the identification of the sources of information, facts and circumstances that occur in other 

legal systems. 

Furthermore, the Law  does not address the  Banca d’Italia’s potential  liability in  the  event  of  legal 

13  

Legge  29  ottobre  1997,  n.  374,  Norme  per  la  messa  al  bando  delle  mine  antipersona,  pubblicata  nella Gazzetta 
Ufficiale n. 256 del 3 novembre 1997; Legge 26 marzo 1999, n. 106, Ratifica ed esecuzione della Convenzione sul 
divieto d'impiego, di stoccaggio, di produzione e di trasferimento delle mine antipersona e sulla loro distruzione, firmata 
ad Ottawa il 3 dicembre 1997. Modifiche alla legge 29 ottobre 1997, n. 374, riguardante la disciplina della messa al 
bando delle mine antipersona, pubblicata nella Gazzetta Ufficiale n. 94 del 23 aprile 1999; Legge 14 giugno 2011 n. 
95, Ratifica ed esecuzione della Convenzione di Oslo sulla messa al bando delle munizioni a grappolo, fatta a Dublino 
il 30 maggio 2008, nonche' norme di adeguamento dell'ordinamento interno, pubblicata nella Gazzetta Ufficiale n. 153 
del 4 luglio 2011. 

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action, application or other legal proceeding for damages in relation to the exercise of (or failure to 

exercise) its powers regarding the drawing up of a list of companies under the Law. The risk of legal 

action  could  materialise,  for  instance,  if  a  company  challenges  its  inclusion  in  the  list  or  if  a  non-

governmental organisation brings a claim because of the non-inclusion of one or more companies in 

such a list. In the absence of any provision in the Law excluding the Banca d’Italia’s liability when 

performing  the  tasks  under  the  Law,  the  Banca  d’Italia  would  ultimately  be  liable  for  damages  in 

accordance  with  Italian  state  liability  rules.  Thus,  the  new  task  of  drawing  up  a  list  of  companies 

conferred on the Banca d’Italia would entail substantial financial risks for the Banca d’Italia. 

2.10  Extent to which the performance of the new task exposes members of the decision-making bodies 

of the Banca d’Italia to disproportionate political risks and impacts on their personal independence 

The ECB understands that it is the Banca d’Italia’s decision-making bodies that are tasked by the 

Law with the drawing up and publishing of a list of companies. If this is the case, and if the content 

of the list is perceived to be politically sensitive, it may expose the members of the Banca d’Italia’s 

decision-making bodies to a potential and disproportionate political risk. 

2.11  Conclusions on monetary financing considerations 

The  performance  of  the  task  of  drawing  up  and  publishing  the  list  of  companies  is  essentially  a 

government task. It is discharged on behalf of and in the interest of the Italian government, as its 

purpose, as noted in paragraph 2.5 above, strictly relates to defence and foreign policy reasons. It 

cannot  be  regarded  as  a  typical  central  bank  task.  Consequently,  to  ensure  compliance  with  the 

monetary financing prohibition, the Banca d’Italia should be fully and adequately remunerated when 

carrying out the task of drawing up and publishing the list under the Law14. In addition, in view of the 

political sensitivity associated with the performance of such a task and the Banca d’Italia’s lack of 

expertise in this area, the ECB strongly recommends that further consideration should be given to 

the  conferral  on  the  Banca  d’Italia  of  the  task  of  drawing  up  a  list  of  companies  involved  in  the 

production,  use,  sale,  distribution,  import,  export  or  transfer  of  anti-personnel  mines,  cluster 

munitions and submunitions under the Law.  

This opinion will be published on EUR-Lex. 

Done at Frankfurt am Main, 28 April 2022. 

[signed] 

The President of the ECB 

Christine LAGARDE 

14  

See  paragraph  2  of  Opinion  CON/2011/30;  paragraph  2  of  Opinion  CON/2011/98;  paragraph  3.2  of  Opinion 
CON/2015/36;  paragraphs  2.2,  3.2  and  3.8  of  Opinion  CON/2016/35;  paragraph  4.2  of  Opinion  CON/2017/20; 
paragraph  2.3  of  Opinion  CON/2018/4;  paragraph  2.1  of  Opinion  CON/2018/57;  paragraph  2.10  of  Opinion 
CON/2022/2;  paragraph  2.10  of  Opinion  CON/2022/7;  and  paragraph  2.2.5  of  the  ECB’s  Convergence  Report, 
June 2020.   

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