Opinion of the European Central Bank of 18 September 2025 on the independence of the Federal Financial Supervisory Authority (CON/2025/29)
Date: 2025-09-18
Institutions: European Central Bank
Subjects: legal basis

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of  18 September 2025  

on the independence of the Federal Financial Supervisory Authority 

(CON/2025/29) 

Introduction and legal basis 

On  20  August  2025,  the  European  Central  Bank  (ECB)  received  a  request  from  the  German  Federal 

Ministry of Finance for an opinion on draft legislative proposals concerning the transposition of amendments 

to  Directive  2013/36/EU  of  the  European  Parliament  and  of  the  Council1  introduced  by  Directive  (EU) 

2024/1619 of the European Parliament and of the Council2 (hereinafter the ‘CRD6’), including in particular 

a draft law amending the Law on the Federal Financial Supervisory Authority 3 (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 Article 2(1) of Council Decision 98/415/EC4 as the draft law relates 

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

pursuant  to  Article  127(6)  of  the  Treaty.  In  accordance  with  Article 17.5,  first  sentence,  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  main  purpose  of  the  draft  law  is  to  transpose  into  German  law  the  amendments  to  Directive 

2013/36/EU introduced by the CRD6. In particular, the provisions of the draft law seek to transpose 

Article  4a  of  Directive  2013/36/EU,  which  relates  to  the  supervisory  independence  of  competent 

authorities and the prevention of conflicts of interest of the officials and employees of such authorities. 

1.2  The  draft  law  provides  that  the  Executive  Board  members  of  the  Federal  Financial  Supervisory 

Authority  (hereinafter  ‘BaFin’,  Bundesanstalt  für  Finanzdienstleistungsaufsicht)  have  a  renewable 

term of office of five years and cannot be longer in office than 14 years. In case of dismissal, the 

grounds for dismissal must be published, unless the Executive Board member concerned objects.  

1.3  The draft law empowers the Federal Ministry of Finance to determine by means of an ordinance, to 

the extent that is appropriate, complementary ethics rules applicable to Executive Board members 

of BaFin relating, first, to private transactions regarding financial instrument and crypto-assets, and, 

1  

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit 
institutions  and  the  prudential  supervision  of  credit  institutions,  amending  Directive  2002/87/EC  and  repealing 
Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338, ELI: http://data.europa.eu/eli/dir/2013/36/oj). 

2     Directive  (EU)  2024/1619  of  the  European  Parliament  and  of  the  Council  of  31  May  2024  amending  Directive 
2013/36/EU  as  regards  supervisory  powers,  sanctions,  third-country  branches,  and  environmental,  social  and 
governance risks (OJ L, 2024/1619, 19.6.2024, http://data.europa.eu/eli/dir/2024/1619/oj). 
Bankenrichtlinienumsetzungs- und Bürokratieentlastungsgesetz (BRUBEG). 

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4     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, ELI: http://data.europa.eu/eli/dec/1998/415/oj). 

 
 
 
 
 
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second,  to  cooling-off  periods,  including  rules  related  to  the  prohibition  of  and  compensation  for 

activities within 24 months after their term of office as Executive Board members. 

1.4  The draft law provides that, as far as civil servants, employees, workers, and trainees of BaFin are 

concerned, the Federal Ministry of Finance is empowered to determine, by means of an ordinance, 

the cooling-off period, with the possibility for  a distinction to be made on the basis of the type of 

employing entity involved. Furthermore, as far as all kinds of staff are concerned the Federal Ministry 

of Finance is empowered to oblige them to provide, when taking up the employment and annually, a 

declaration of interest on specific financial assets which could give rise to concerns of conflicts of 

interest. 

2. 

General observations  

2.1  Article 19 of Council Regulation (EU) No 1024/2013 5 (hereinafter the ‘SSM Regulation’) stipulates 

that when carrying out the tasks conferred on it by the SSM Regulation, the ECB and the national 

competent  authorities  acting  within 

the  Single  Supervisory  Mechanism  (SSM)  must  act 

independently.  Article  31(3)  of  the  SSM  Regulation  furthermore  requires  the  ECB,  in  cooperation 

with  the  national  competent  authorities,  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. Those procedures are without 

prejudice to the application of stricter national rules. The legal basis for these provisions is Article 

127(6) of the Treaty. 

2.2 

In  view  of  this  independence  and  these  requirements  of  the  SSM  Regulation,  the  ECB  has 

established an ethics framework to ensure the independence of national competent authorities, such 

as the BaFin, when assisting the ECB in carrying out the tasks conferred on it by the SSM Regulation. 

This  ethics  framework  includes  the  ECB’s  Code  of  Conduct  for  high-level  ECB  officials 6,  which 

applies, among others, to the members of the Supervisory Board of the ECB when exercising their 

functions  as  members  of  a  high-level  ECB  body,  and  Guideline  (EU)  2021/2256 of  the  European 

Central Bank 7, which is addressed to the national competent authorities of the SSM and establishes 

ethics  requirements  applicable  to  the  members  of  their  bodies  and  the  members  of  staff  of  the 

national competent authorities. In view of the responsibility of the ECB for the effective and consistent 

functioning  of  the  SSM 8,  the  national  competent  authorities  must  comply  with  Guideline  (EU) 

2021/2256.  

2.3 

In  contrast  to  the  ethics  framework  ultimately  based  on  Article  127(6)  of  the  Treaty,  the  CRD6, 

including its provision on the supervisory independence of competent authorities 9, is based on Article 

5     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, 
ELI: http://data.europa.eu/eli/reg/2013/1024/oj). 

6     Code of Conduct for high-level ECB officials (OJ C 478, 16.12.2022, p. 3). 
7     Guideline (EU) 2021/2256 of the European Central Bank of 2 November 2021 laying down the principles of the Ethics 
(OJ  L  454,  17.12.2021,  p.  21, 

the  Single  Supervisory  Mechanism 

(ECB/2021/50) 

for 

Framework 
ELI: http://data.europa.eu/eli/guideline/2021/2256/oj). 
See Article 6(1) of the SSM Regulation. 

8    
9    

See Article 1, point (4), of the CRD6, which inserts Article 4a in Directive 2013/36/EU. 

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53(1) of the Treaty. A legal act based on this provision cannot alter the rights and obligations of the 

ECB and the national competent authorities when carrying out the tasks conferred on them by the 

SSM Regulation based on Article 127(6) of the Treaty. It follows from settled case-law of the Court 

of Justice of the European Union10 that the different legal bases, namely Articles 53(1) and 127(6) of 

the Treaty, cannot be combined as the legal basis for a legal act, in view of the different procedures 

involved. In particular, the measures adopted under Article 53(1) of the Treaty are adopted by the 

European Parliament and the Council, acting in accordance with the ordinary legislative procedure, 

and after consulting the Economic and Social Committee (and, if relevant, the ECB in accordance 

with  Articles  127(4)  and  282(5)  of  the  Treaty).  By  contrast,  the  regulations  adopted  under  Article 

127(6) of the Treaty are adopted by the Council alone, in a special legislative procedure in which the 

Council acts unanimously, after consulting the European Parliament and the ECB 11. 

2.4  Hence, the amendments made by the CRD6 are without prejudice to the ethics framework which the 

ECB has established to ensure the independence of the national competent authorities in the context 

of  the  SSM,  as  both  frameworks  have  their  own  scope  and  legal  basis.  The  Union  legislator 

acknowledged  this  through  the  CRD6’s  amendments  to  Directive  2013/36/EU,  which  provide  that 

Article 4a(2) of Directive 2013/36/EU is without prejudice to the rights and obligations of the national 

competent  authorities  pursuant  to  the  SSM  established  by  the  SSM  Regulation12.  To  avoid  any 

doubt, the national legislator may wish to clarify this within the text of the draft law. From an ECB 

perspective,  the  provisions  from  the  CRD6  may  nevertheless  serve  as  guidance  for  establishing 

safeguards for the independence of the ECB and the national competent authorities when carrying 

out the tasks conferred on them by the SSM Regulation. 

3. 

Specific observations  

3.1  The  CRD6  provides  that  Member  States  must  ensure  that  members  of  a competent  authority’s 

governance body can be dismissed if they no longer meet the criteria of appointment or have been 

convicted  of  a serious  criminal  offence13.  Under  the  Law  on  the  Federal  Financial  Supervisory 

Authority, the member of the Executive Board of BaFin can be dismissed – upon resolution of the 

Federal Government – for good cause 14. The ECB understands that this provision – which is to be 

interpreted in conformity with the requirements of Article 4a(2), second subparagraph, of the  CRD6 

– enables , in consistency with CRD6, the dismissal of members of the Executive Board of BaFin if 

they no longer meet the criteria of appointment or have been convicted of a serious criminal offence.  

10   

11   

12   

13  
14   

investment 

See judgment of 29 April 2004, Commission v Council, C-338/01, ECLI:EU:C:2004:253, paragraphs 57 and 58; and 
judgment of 10 January 2006, Commission v Parliament and Council, C-178/03, ECLI:EU:C:2006:4, paragraphs 43 to 
60. 
See also paragraph 2.6.2 of Opinion of the European Central Bank of 21 June 2024 on a proposal for a regulation of 
the European Parliament and of the Council as regards certain reporting requirements in the fields of financial services 
and 
ELI: 
http://data.europa.eu/eli/C/2024/5048/oj). 
See  Article 4a(2),  fourth subparagraph, of  Directive 2013/36/EU,  as  inserted by  the  CRD6.  This acknowledgement 
refers directly to the dismissal requirements included in Article 4(2), second subparagraph, of the CRD6. 
See Article 4a(2), second subparagraph, of Directive 2013/36/EU, as inserted by the CRD6. 
See Section 9(2) of the Law on the Federal Financial Supervisory Authority, Finanzdienstleistungsaufsichtsgesetz as 
published in the announcement of 22 April 2002, Bundesgesetzblatt I, p. 1782, as amended. 

(CON/2024/21) 

C/2024/5048, 

16.8.2024, 

support 

(OJ 

C, 

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3.2  Furthermore,  the  ECB  understands  that  the  draft  law  only  supplements  the  Law  on  the  Federal 
Financial  Supervisory  Authority  by  adding  new  provisions  concerning  the  term  of  office  of  the 

Executive Board members (being no longer than 14 years) and concerning the public disclosure of 

grounds for dismissal that transpose the amendments to that effect made by Article 4a(2), second 

subparagraph, of the CRD6.  

3.3  The ECB expects to be consulted on the draft national legislation on the empowerment of the Federal 

Ministry of Finance to determine, as outlined in paragraph 1.3, rules applicable to Executive Board 

members and all kinds of staff of BaFin relating to cooling-off periods and private transactions once 

this is available. 

This opinion will be published on EUR-Lex. 

Done at Frankfurt am Main, 18 September 2025. 

[signed] 

The President of the ECB 

Christine LAGARDE 

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