Opinion of the European Central Bank of 8 December 2023 on the liability of Banca d’Italia and the members of its decision-making bodies and staff, and the cooling-off/in rules applicable to the members of its management bodies and top managers (CON/2023/41)
Date: 2023-12-08
Institutions: European Central Bank
Subjects: legal basis

EN  

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 8 December 2023 

on the liability of Banca d’Italia and the members of its decision-making bodies and staff, and the 

cooling-off/in rules applicable to the members of its management bodies and top managers 

(CON/2023/41) 

Introduction and legal basis 

On 23 November 2023, the European Central Bank (ECB) received a request from the Italian Ministry of 

Economy and Finance for an opinion on a draft law on measures to support the competitiveness of capital 

markets (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  and  sixth  indents  of  Article 2(1)  of  Council 

Decision 98/415/EC1,  as  the  draft  law  relates  to  a  national  central  bank,  rules  applicable  to  financial 

institutions  insofar as they materially influence  the stability  of  financial institutions  and markets,  and  the 

specific tasks  conferred upon  the ECB concerning the prudential supervision of credit institutions under 

Article 127(6) of the Treaty. In accordance with the first sentence of Article 17.5 of the Rules of Procedure 

of the ECB, the Governing Council has adopted this opinion.  

1. 

Purpose of the draft law 

1.1  The  draft  law  reforms,  inter  alia,  the  liability  regime  applicable  to  the  Banca  d’Italia  (BdI),  the 

Commissione Nazionale per le Società e la Borsa (CONSOB, National Commission on Companies 

and Stock Exchange), the Istituto per la Vigilanza sulle Assicurazioni (IVASS, Institute for Insurance 

Supervision) and the Commissione di vigilanza sui Fondi Pensione (COVIP, Supervision of Pension 

Funds) (hereinafter together referred to as the ‘supervisory authorities’). The draft law also amends 

the cooling-off/in rules applicable to the members of the management bodies and managers of the 

supervisory authorities.  

Reform of the liability regime applicable to the Banca d’Italia, the members of the Banca d’Italia’s 

governing bodies and the Banca d’Italia’s staff in the supervisory context 

1.2  The current liability regime applicable to the supervisory authorities, the members of their governing 

bodies and their staff provides that they are liable for damages caused by acts or conduct carried out 

in the performance of their supervisory duties in case of wilful misconduct or gross negligence2. 

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). 

See  Article  24(6-bis)  of  the  Law  on  public  savings  and  financial  intermediation  (Legge  28  dicembre  2005,  n.  262, 
Disposizioni per la tutela del risparmio e la disciplina dei mercati finanziari, pubblicata nella Gazzetta Ufficiale n. 301 
del 28 dicembre 2005). 

 
 
 
 
 
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1.3  The draft law introduces an amendment to the liability regime, in line with the recommendations of 

the  Organisation  for  Economic  Co-operation  and  Development  (OECD)3,  in  order  to  make 

investigation processes more efficient and to improve enforcement activities. In particular, the draft 

law  introduces  a  provision  according  to  which  third parties  may bring  civil  liability  actions  against 

supervisory authorities only where damages are directly attributable to (i.e. a direct and immediate 

consequence  of)  infringements  of  laws  or  regulations,  compliance  with  which  is  part  of  the 

supervisory authorities’ respective mandates. Under this provision, evidence of wilful misconduct or 

gross negligence on the part of the supervisory authority is required.  

Reform of the cooling-off/in rules 

1.4  The  draft  law  also  introduces  legislative  amendments  to  the  cooling-off/in  rules  applicable  to 

members of the management bodies and managers of the supervisory authorities. According to the 

OECD,  cooling-off  periods  can  create  distorted  incentives  to  limit  the  attractiveness  of  expert 

positions in public institutions. With specific reference to Italy, the OECD suggests reassessing the 

current cooling-off period4, which it considers to be penalising5.  

1.5 

In this respect, the draft law shortens the cooling-off period to which members of the governing bodies 

and managers who have ceased to hold office are subject from two years to a maximum of one year. 

A decree of the President of the Council of Ministers, which is to be adopted within one hundred and 

eighty days from the date of entry into force of the draft law, will contain the implementing rules.  

1.6  Furthermore, the draft law amends the cooling-in rules by reducing the period of incompatibility from 

two  years  to  one  year.  According  to  the  current  cooling-in  rules6,  those  who,  in  the  previous  two 

years,  have  (i)  held  positions  in  private  law  entities,  (ii)  held  positions  in  entities  financed  by  the 

government or a public body which is offering the position, or (iii) performed professional activities 

that are regulated, financed or otherwise remunerated by the authority or entity offering the position, 

cannot  be  appointed  to:  (a)  carry  out  top-level  administrative  tasks  in  the  State,  regional  or  local 

governments;  (b)  directorships  of  public  sector  bodies  at  a  national,  regional  or  local  level;  or  (c) 

external  management  positions  in  government  and  public  bodies  that  are  related  to  the  specific 

sectors financed and regulated by the abovementioned public entities.  

1.7 

In addition to reducing the cooling-off period of two years to one year, the new rules under the draft 

law  would  limit  the  cooling-off  obligations  to  cases  of  collaboration,  consulting  and  employment 

relationships  entered  into  directly  with  ‘regulated  entities’  or  their  subsidiaries.  Under  the  current 

Italian legal framework an indirect relationship is sufficient for cooling-off obligations to apply.  

3  

4  

5  
6  

See paragraph 2 of the OECD Capital Market Review of Italy 2020:  Creating  Growth  Opportunities 
Italian 
Companies and Savers, OECD Capital Market Series, available on the OECD’s website at www.oecd.org (hereinafter 
the ‘OECD Capital Market Review of Italy 2020’). 
See  Article  29-bis  of  the  Law  on  public  savings  and  financial  intermediation  (Legge  28  dicembre  2005,  n.  262, 
Disposizioni per la tutela del risparmio e la disciplina dei mercati finanziari, pubblicata nella Gazzetta Ufficiale n. 301 
del 28 dicembre 2005). 

for 

See paragraph 3 of the OECD Capital Market Review of Italy 2020. 
Legislative  Decree  on the  unappointability  and  incompatibility  of  positions  within  public  administrations  and  private 
bodies  under  public  control  (Decreto  Legislativo 8  aprile  2013,  n.  39,  Disposizioni  in  materia  di  inconferibilita'  e 
incompatibilita' di incarichi presso le pubbliche amministrazioni e presso gli enti privati in controllo pubblico, a norma 
dell'articolo 1, commi 49 e 50, della legge 6 novembre 2012, n. 190, pubblicato nella Gazzetta Ufficiale n. 92 del 19 
Aprile 2013).  

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1.8 

In  addition,  the  draft  law  amends  the  rules  on  appointment.  Under  the  draft  law,  the  type  of 

assignment  carried  out  previously  must  be  considered.  Where  the  previous  assignment  is  of  low 

relevance  (e.g.  as  a  result  of  the  fact  that  no  executive  or  organisational  powers  were  held)  it  is 

sufficient  to  provide  for  organisational  and  transparency  measures  to  be  implemented  after  the 

appointment. The draft law further specifies that these organisational safeguards will also apply to 
the members of the governing bodies of the supervisory authorities.  

2. 

Liability of the Banca d’Italia and the members of its decision-making bodies and staff 

2.1 

The  ECB  understands  that  the  current  liability  regime7  applicable  to  the  members  of  the  BdI’s 

governing bodies and the BdI’s staff, as amended by the draft law, is relevant in the context of the 

BdI’s supervisory mandates under Italian law, and does not set out the liability regime for the activities 

carried out by the BdI in its capacity as a Eurosystem and European System of Central Banks (ESCB) 

national central bank (NCB).    

2.2 

Liability of the Banca d’Italia 

The ECB welcomes the fact that, under the draft law, the BdI’s liability remains limited to cases of 

wilful misconduct and gross negligence and, in addition, is now explicitly restricted to damages that 

are directly attributable to infringements by supervised entities of laws or regulations that fall within 

the BdI’s supervisory mandates under Italian law.  Therefore, the ECB understands that the mere 

infringement  by  a  supervised  entity  of  laws  or  regulations,  compliance  with  which  is  part  of  the 

supervisory authorities’ respective mandates, is not sufficient to trigger the abovementioned liability 

provision. Under Italian law, for liability to be triggered, specific evidence of wilful misconduct or gross 

negligence on the part of the supervisory authority is required. Gross negligence has been interpreted 

by the jurisprudence as the situation where the supervisory authority, while being aware, omits to act 

in  the  face  of  serious,  specific  and  repeated  infringements8.  The  limitation  of  the  civil  liability  of 

supervisors – and specifically the authority entrusted with the functions of banking supervision and 

bank resolution – is consistent with the development of international standards in these fields. This 

highlights the need to protect the exercise of discretion in these fields, especially (a) in view of the 

complexity  of  the  decisions  that  the  authority  takes9  and  (b)  having  regard  to  the  planning  of  the 

supervisory activities, which is an exclusive prerogative of the relevant authority.  

7  

8  
9  

See Article 24 of the Law on public savings and financial intermediation (Legge 28 dicembre 2005, n. 262, Disposizioni 
per  la  tutela  del  risparmio  e  la  disciplina  dei  mercati  finanziari,  pubblicata  nella  Gazzetta  Ufficiale  n.  301  del  28 
dicembre 2005). 

See Cass. civ., sez. III, 5.9.2019, n. 22164 and Cass. civ., 12.4.2018, n. 9067. 
See Basel Committee on Banking Supervision, Core Principles for Effective Banking Supervision (September 2012), 
Principle 2, Essential Criterion 9, available on the website of the Bank for International Settlements at www.bis.org 
(hereinafter  the  ‘Basel  Core  Principles’).  On  resolution  and  crisis  management  of  credit  institutions,  see  Financial 
Stability Board, Key Attributes of Effective Resolution Regimes for Financial Institutions (October 2014), Key Attribute 
2.6, available on the website of the Financial Stability Board at www.financialstabilityboard.org. 

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Liability of the members of the BdI’s governing bodies and staff 

2.3  As concerns the liability of the members of the BdI’s governing bodies and staff, the ECB notes that 

from the perspective of the independence of an NCB, an NCB may not be put into a position where 

it has limited control or no control over its staff, or where the government of a Member State can 

influence its policy on staff matters. In this regard, any legislative provisions affecting the members 

of  an  NCB’s  decision-making  bodies  and  its  employees  should  be  decided  in  close  and  effective 

cooperation  with  the  NCB10,  taking  due  account  of  its  views,  to  ensure  the  ability  of  the  NCB  to 

independently carry out its tasks11.  

2.4  The ECB takes note of the BdI’s memorandum to the Italian Senate, in which the BdI states that the 

introduction of a provision in the draft law whereby actions for civil liability may be brought by third 

parties against supervisory authorities, but not against the members of their governing bodies or their 

employees, seems important in order to prevent judicial actions aimed at influencing assessments 

and decisions and, therefore, ultimately, to protect the independence of the government bodies and 

employees of supervisory authorities in the exercise of the discretion assigned to them, especially in 

view of the complex nature and the multiple interests to be balanced in these areas12. In this regard, 

the BdI points out that significant limitations on the possibility of bringing actions for damages by third 

parties directly against natural persons acting on behalf of the supervisory authorities are applied in 

most  Member  States,  which  is  also  relevant  in  the  context  of  the  ECB’s  Single  Supervisory 

Mechanism (SSM).    

2.5  The  ECB  highlights  that  the  current  liability  regime,  as  amended  by  the  draft  law,  may  have  a 

particular impact on the  members of the BdI’s governing  bodies and  staff performing supervisory 

tasks given that the adoption of individual supervisory decisions is connected to the risk of litigation 

actions against the supervisor by the supervised credit institution or by other affected stakeholders. 

Such  actions  may  relate,  for  example,  to  an  alleged  reduction  of  profit,  the  loss  of  a  business 

opportunity, injury to commercial reputation, etc. Litigation of this kind may be initiated irrespective 

of  the  correctness  of  any  prudential  measures  adopted,  especially  where  several  categories  of 

stakeholders with competing interests, e.g. the creditors of a failing bank, are involved.  

2.6 

In order to address this litigation risk, which is inherent to the prudential supervision, Principle 2 of 

the  Basel  Core  Principles  states  that:  (a)  laws  should  protect  the  supervisor  and  its  staff  against 

lawsuits for actions taken and/or omissions made while discharging their duties in good faith; and (b) 

the supervisor and its staff should be adequately protected against the costs of defending any actions 

and/or  omissions  they  make  while  discharging  their  duties  in  good  faith13.  Therefore,  the  ECB 

10  
11  

12  

13  

See Opinion CON/2019/19. All ECB opinions are published on EUR-Lex. 
See  Opinions  CON/2010/42,  CON/2010/51,  CON/2010/56,  CON/2010/69,  CON/2010/80,  CON/2011/104, 
CON/2011/106, CON/2012/6, CON/2012/86 and CON/2014/7. 

See the Memorandum of the Banca d’Italia, Draft law: Measures to support the competitiveness of capital (Disegno di 
legge “Interventi a sostegno della competitività dei capitali” AS 674 Memoria della Banca d’Italia, 27 Giugno 2023). 
Principle 2, essential criterion 9, of the Basel Core Principles.  

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suggests that the draft law should be amended in order to introduce a liability regime that is also 

aligned with the Basel Core Principles in this respect 14. 

2.7  While, in principle, it is a matter for national law to determine the scope of liability connected with the 

performance of the tasks of national competent authorities (NCAs) in the SSM, including the BdI, it 

is also important for the functioning of the SSM that national liability regimes offer standards of legal 

protection commensurate with the Basel Core Principles. If the legal protection offered to the staff of 

the BdI is inadequate, the position of any of the BdI’s staff members involved in joint supervisory 

teams (JSTs) within the SSM may be compromised given that instructions given to such staff by the 

JST coordinator in line with Article 6(1) of Regulation (EU) No 468/2014 of the European Central 

Bank15 may lead to personal liability claims against such staff.  

2.8 

In this context, the ECB notes that Basel Core Principle 2 requires that banking supervisors possess 

operational independence which implies,  in particular, that: (i)  there is  no government or industry 

interference that compromises the operational independence of the supervisor and (ii) the supervisor 

has  full  discretion  to  take  any  supervisory  actions  or  decisions  regarding  the  banks  and  banking 

groups under its supervision16.  

2.9  The  current  liability  regime,  as  amended  by  the  draft  law,  may  have  a  particular  impact  on  the 

members  of BdI’s  governing  bodies  and  the  BdI’s  staff  also  in  the  context of  crisis  management, 

when  the  BdI  may  need  to  act  effectively  and  swiftly in  order  to  protect  the stability  of  the  Italian 

financial system17. 

2.10  Finally, the ECB also takes note of the possibility to ensure that the abovementioned principles are 

duly  considered  in  the  context  of  the  preparation  of  the  legislative  decree  to  be  adopted  by  the 

Government,  which  could  address  the  question  of  the  civil  liability  of  the  members  of  the  BdI’s 

governing  bodies  and  the  BdI’s  staff18,  which  obviously  does  not  affect  the  BdI’s  right  of  redress 

against them, if such is the case. In this respect, the ECB would appreciate being consulted on the 

legislative decree.  

3. 

Reform of the cooling-off/in rules 

3.1  As far as cooling-off/in rules are concerned, the draft law does not make an explicit distinction when 

it comes to its application to the different mandates or capacities of the BdI. However, in light of the 

title of Title II of the draft law19, the ECB understands that this approach has been chosen in order to 

adopt rules applicable to the members of the governing bodies and the relevant staff of all of the 

supervisory authorities.  

14  
15  

16  
17   
18  
19  

See paragraph 2.8.2 of Opinion CON/2019/19. 

Regulation  (EU)  No  468/2014  of  the  European  Central  Bank  of  16  April  2014  establishing  the  framework  for 
cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent 
authorities  and  with  national  designated  authorities  (SSM  Framework  Regulation)  (ECB/2014/17)  (OJ  L  141, 
14.5.2014, p. 1).  
See paragraph 2.8.3 of Opinion CON/2019/19. 

See paragraph 2.8.4 of Opinion CON/2019/19. 
See Article 19(2), letter i) of the draft law. 
Title II of the draft law, which includes Articles 20 and 21, is entitled ‘Regulation of national supervisory authorities’. 

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3.2  The ECB’s Code of Conduct for high-level ECB officials (hereinafter the ‘Single Code’) applies to the 

members of the Governing Council and the Supervisory Board of the ECB20 when exercising their 

functions as members of a high-level ECB body. It also applies to persons replacing the members in 

meetings  of  the  Governing  Council  or  the  Supervisory  Board  (hereinafter  the  ‘alternates’)  in  the 

performance of their duties and responsibilities relating to these high-level bodies where explicitly 

provided for in the Single Code. The reduction of the cooling-off period from two years to one year is 

less restrictive compared to the requirements of the Single Code. In addition, the Single Code sets 

limits on the establishment of post-employment relationships not only directly with significant or less 

significant  credit  institutions  or  other  financial  institutions,  but  also  with  ‘any  entity  engaged  in 

lobbying in relation to the ECB, or consultancy and/or advocacy for the ECB or for any [supervised] 

institution’21. It should also be considered that the Single Code, insofar as it refers to the members 

of the Supervisory Board, is to be seen as implementing Council Regulation (EU) No 1024/201322 

(hereinafter the ‘SSM Regulation’), which requires the ECB, in cooperation with the NCAs, to: (a) 

establish  and  maintain  comprehensive  and  formal  procedures  including  ethics  procedures  and 

proportionate periods to assess in advance and prevent possible conflicts of interest resulting from 

subsequent employment within two years of members of the Supervisory Board; and (b) provide for 

appropriate disclosures. The procedures are without prejudice to the application of stricter national 

rules. Against this background, the ECB highlights that the draft law should be interpreted without 

prejudice to the Single Code and must ensure, for the members of the BdI’s governing bodies who 

fall within the scope of application of Article 31(3) of the SSM Regulation, the possibility of imposing 

and extending a cooling-off period of a maximum of two years in line with the Single Code23. The 

cooling-in regime under the draft law appears to introduce more restrictive rules than those contained 

in  the  Single  Code.  In  this  respect,  the  Single  Code  is  without  prejudice  to  stricter  ethical  rules 

applicable to members and alternates by virtue of national law24. 

3.3 

NCBs and NCAs, including the BdI, are also required to take the necessary measures to implement 

and  comply  with  Guideline  (EU)  2021/2253  of  the  European  Central  Bank  (ECB/2021/49)25  and 

Guideline  (EU)  2021/2256  of  the  European  Central  Bank  (ECB/2021/50)26  (hereinafter  the 

‘Guidelines’),  informing  the  ECB  of  any  obstacles  for  their  implementation.  As  for  the  cooling-off 

period, the Guidelines require NCBs and NCAs to have mechanisms in place to assess and avoid 

possible conflicts of interest arising from post-employment occupational activities undertaken by their 

members of staff and the members of their bodies, including appropriate cooling-off periods27. The 

ECB highlights that the draft law should be interpreted without prejudice to the Guidelines and should 

20  
21  
22  

23  
24  
25  

26  

27  

See the Code of Conduct for high-level ECB officials (OJ C 478, 16.12.2022, p. 3).  

See Article 17.3, point (b), of the Single Code. 
See  Article  31(3)  of  Council  Regulation  (EU)  No  1024/2013  of  15  October  2013  conferring  specific  tasks  on  the 
European  Central  Bank  concerning  policies  relating  to  the  prudential  supervision  of  credit  institutions  (OJ  L  287, 
29.10.2013, p. 63). 
See Article 17.3, point (b), of the Single Code. 

See Article 2.2 of the Single Code. See also Opinions CON/2010/54, CON/2015/42 and CON/2019/19. 
Guideline  (EU)  [2021/2253]  of  the  European  Central  Bank  of  2  November  2021  laying  down  the  principles  of  the 
Eurosystem Ethics Framework (ECB/2021/49) (OJ L 454, 17.12.2021, p. 7). 

Guideline (EU) 2021/2256 of the European Central Bank of 2 November 2021 laying down the principles of an Ethics 
Framework for the Single Supervisory Mechanism (ECB/2021/50) (OJ L 454, 17.12.2021, p. 21). 
See Article 6(3) of the Guidelines. 

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not interfere with the implementation of the Guidelines. In this respect, the scope of application of 

the draft law seems narrower than that of the Guidelines, as the draft law seems to refer only to the 

BdI's upper management (dirigenti), resulting in a partial implementation of the Guidelines. While this 

is  not  expressly  stated  in  the  draft  law,  the  ECB  understands  that  the  Guidelines  may  be  fully 

implemented by BdI through its own regulations. 

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

Done at Frankfurt am Main, 8 December 2023. 

[signed] 

The President of the ECB 

Christine LAGARDE 

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