Opinion of the European Central Bank of 18 December 2025 on certain provisions relating to the interaction between national law and the Single Supervisory Mechanism and sector-specific banking rules (CON/2025/43)
Date: 2025-12-18
Institutions: European Central Bank
Subjects: banking supervision

ECB-PUBLIC 

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 18 December 2025  

on certain provisions relating to the interaction between national law and the Single Supervisory 

Mechanism and sector-specific banking rules 

(CON/2025/43) 

Introduction and legal basis 

On  12  November  2025  the  European  Central  Bank  (ECB)  received  a  request  from  the  Italian  Ministry  of 

Economy  and  Finance  for  an  opinion  on  a  draft  legislative  decree  on  the  comprehensive  reform  of  the 

provisions on capital markets, of the Civil Code provisions on companies and on necessary amendments to 

ensure adequate coordination (hereinafter the ‘draft legislative decree’). 

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, as the draft legislative decree concerns the ECB’s tasks 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 legislative decree 

1.1  The provisions of the draft legislative decree with respect to which this opinion is adopted have two main 

purposes.  

1.2  First,  the  draft  legislative  decree  aims  to  implement  an  organic  reform  of  capital  market  rules  in  the 

Consolidated  Law  on  Finance  (TUF)  and  in  the  applicable  corporate  law.  The  key  objectives  of  this 

reform include, inter alia, (a) supporting economic growth and access to capital, facilitating companies’ 

access  to  regulated  markets  and  alternative  financing  and  making  companies  more  attractive  to 

international  investors;  (b) increasing  market  transparency,  ensuring  effective  delivery  of  market 

information;  and  (c) enhancing  competitiveness  and  simplifying  issuer  rules,  including  participation 

thresholds, related-party transactions, and multiple voting rights systems, all of which affect corporate 

governance and systemic risk oversight.  

1.3  Second, the draft legislative decree amends the TUF to clarify the division of competences between the 

ECB  and  the  Banca  d’Italia1.  The  draft  legislative  decree  introduces  amendments  to  the  TUF  to  the 

effect that (a) the ECB is competent for the authorisation, and for the revocation of such authorisation, 

of specific banking activities of supervised entities, such as investment services, portfolio management, 

and depository, safe keeping and custodian services; (b) the Banca d’Italia is competent to authorise 

1  

See Articles 2(t)(2) and (3) and 2(u) and 3(4)(uu) of the draft legislative decree (amending Articles 19(4), 4-bis, 20-bis(4), 
47(3) and (3-bis) of the TUF). 

 
 
 
 
 
 
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and supervise branches of non-Union banks and investment firms; and (c) the Banca d’Italia performs 

preparatory assessments in relation to ECB decisions and remains the national point of contact within 

the Single Supervisory Mechanism (SSM). Furthermore, the draft legislative decree also provides for 

derogations  to  ordinary  Italian  Civil  Code  governance  and  ordinary  TUF  governance  with  respect  to 

sector-specific banking rules. It provides that, apart from credit institutions whose supervision is directly 

regulated by Union legislative provisions, the Banca d’Italia is exclusively competent for assessing (a) 

the  suitability  of  shareholders  and  (b) the  suitability  of  corporate  officers  (administrators,  auditors)  of 

supervised entities 2. Finally, the draft legislative decree provides for the standard of liability applicable 

to non-executive directors 3.  

2. 

General observations 

2.1  By way of background, Article 9(1) of Council Regulation (EU) No 1024/20134 (hereinafter the ‘SSM 

Regulation’) provides that, for the exclusive purpose of carrying out the tasks conferred on it by, inter 

alia,  Article  4(1)  of  that  Regulation,  the  ECB  is  to  be  considered  the  competent  authority  in  the 

participating  Member  States  as  established  by  the  relevant  Union  law.  Under  Article  9(1),  second 

subparagraph, the ECB is also granted all the powers and obligations which competent authorities have 

under the relevant Union law, unless otherwise provided for by the SSM Regulation. In particular, Article 

14 of the SSM Regulation confers on the ECB the power to adopt decisions concerning the authorisation 

to take up the business of a credit institution, which applies to the activities subject to mutual recognition 

within the meaning of Annex I to Directive 2013/36/EU of the European Parliament and of the Council 5 

(e.g.  investment  services),  as  well  as  to  other  regulated  activities  which  require  authorisation  under 

national law. This is confirmed by Article 78(5) of Regulation (EU) No 468/2014 of the European Central 

Bank (ECB/2014/17) 6 (hereinafter the ‘SSM Framework Regulation’), according to which the decision 

granting  authorisation  covers  the  applicant’s  activities  as  a  credit  institution  as  provided  for  in  the 

relevant national law. 

2.2  The ECB considers that certain provisions of the draft legislative decree reiterate or reproduce relevant 

provisions of Union law by referring to responsibilities of the ECB and of the Banca d’Italia under the 

SSM Regulation 7. However, such reproduction may create uncertainty both as to the legal nature and 

origin of the applicable provisions and as to the date of their entry into force. This would not align with 

2  

3  
4  

5  

6  

7  

See Article 149(1) of the TUF and Article 2396-quinquies of the Italian Civil Code as, respectively, amended and proposed 
by the draft legislative decree. 
See Article 2381-ter, fourth paragraph, of the Italian Civil Code. 
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). 

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).  
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,  ELI: 
http://data.europa.eu/eli/reg/2014/468/oj). 
As to the reproduction of national law of relevant provisions of Union law directly applicable in the legal order of the Member 
States,  see  the  ECB’s  Convergence  Report  2025,  Section  2.2.2,  heading  ‘“Compatibility”  versus  “harmonisation”’. 
Available on the ECB’s website at www.ecb.europa.eu. 

 
 
 
 
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the principle of the uniform application and interpretation of Union law throughout the Union 8. Moreover, 

if  a  national  provision  uses  wording  different  from  the  relevant  Union  provision,  it  creates  regulatory 

content of its own, which is not in line with the Union’s exclusive competence in the respective matters.  

2.3  The incorporation of some elements of directly applicable provisions of Union law into national law is 

warranted  only  in  exceptional  circumstances  for  the  sake  of  coherence  and  in  order  to  make  them 

comprehensible to the persons to whom they apply 9. If such exceptional circumstances do exist, the 

reproduction of elements of directly applicable provisions of Union law should be done precisely, without 

modifying their wording 10 and only to the extent warranted by the exceptional circumstances. However, 

such  exceptional  circumstances  do  not  exist  if  the  directly  applicable  provisions  of  Union  law  are 

sufficiently coherent and comprehensive, making it unnecessary to repeat them in national law 11. To the 

extent  that  national  law  necessarily  reproduces  directly  applicable  provisions  of  Union  law  for  the 

abovementioned reasons, it should do so in an explicit manner and clarify that its provisions are either 

‘in accordance with’ or ‘in compliance with’ the relevant provisions of Union law, where the latter are 

merely  reproduced  to  put  the  national  law  in  the  larger  context,  or  ‘without  prejudice  to’  the  relevant 

provisions of Union law.  

3. 

Observations regarding supervisory coordination and sector-specific governance 

3.1  As concerns the proposed amendment to the TUF provisions noted in paragraph 1.3, the ECB reiterates 

that the cooperation between the ECB and the relevant national competent authorities is based on the 

framework provided for in the SSM Regulation, as further detailed by the SSM Framework Regulation. 

In particular, some of the provisions relate to the powers linked to the ECB’s exclusive competence to 

grant  and  withdraw  authorisations  to  credit  institutions  in  accordance  with  Article  4(1),  point  (a),  and 

Article 14 of the SSM Regulation. The ECB invites the Italian authorities to consider deleting directly 

applicable provisions of Union law that may have been reproduced in the draft legislative decree. 

3.2  However, the ECB also acknowledges that the proposed amendment aims at clarifying the cooperation 

between the ECB and the Banca d’Italia and the specific regime applicable to credit institutions within 

the broader scope of application of the SSM Regulation. The ECB understands that these provisions 

aim at making the draft legislative decree comprehensible to the persons to whom they apply and that, 

therefore,  the  reproduction  of  directly  applicable  Union  law  may  exceptionally  be  appropriate  in  this 

specific case. Nevertheless, in the light of the general observations expressed in paragraph 2, the ECB 

8  

9  

10  

11  

Judgment of the Court of Justice of 7 February 1973, Commission v Italy, C-39/72, ECLI:EU:C:1973:13, paragraphs 16 
and 17; Judgment of the Court of Justice of 10 October 1973, Variola, C-34/73, ECLI:EU:C:1973:101, paragraphs 9 to 11; 
Judgment of the Court of Justice of 2 February 1977, Amsterdam Bulb, C-50/76, ECLI:EU:C:1977:13, paragraphs 5 to 8. 
See  also  paragraph 12  of  Opinion  CON/2005/21,  paragraph  2.1  of  Opinion  CON/2006/10,  paragraph  2.4  of  Opinion 
CON/2006/29, paragraph 2.1 of Opinion CON/2007/1, paragraph 2.2 of Opinion CON/2007/43, paragraph 2.3 of Opinion 
CON/2022/15, paragraph 2.3 of Opinion CON/2023/27 and paragraph 2.5 of Opinion CON/2024/12. 

See paragraph 12 of Opinion CON/2005/21 and paragraph 2.4 of Opinion CON/2022/15 with reference to Judgment of 
the Court of Justice of 28 March 1985, Commission v Italian Republic, C-272/83, ECLI:EU:C:1985:147, paragraph 2.6 of 
Opinion CON/2023/27 and paragraph 2.7 of Opinion CON/2024/12. See also paragraph 2.2 of Opinion CON/2006/10. 

See  paragraph  2.2  (footnote  6)  of  Opinion  CON/2007/43,  paragraph  2.4  of  Opinion  CON/2022/15,  paragraph  2.6  of 
Opinion CON/2023/27 and paragraph 2.7 of Opinion CON/2024/12. 

See paragraph 13 of Opinion CON/2005/21, paragraphs 2.2 and 3.2 of Opinion CON/2006/10, paragraph 2.4 of Opinion 
CON/2022/15, paragraph 2.6 of Opinion CON/2023/27 and paragraph 2.7 of Opinion CON/2024/12.  

 
 
 
 
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invites the Italian legislator to amend the relevant provisions by clarifying that those provisions must be 

read ‘in accordance with’, “in compliance with” or ‘without prejudice to’ the framework provided for in the 

SSM Regulation, as further detailed by the SSM Framework Regulation. 

3.3  Finally, the ECB welcomes the amendments to the TUF and the Italian Civil Code with regard to the 

application  of  sector-specific  banking  rules  and  the  standard  of  liability  applicable  to  non-executive 

directors  referred  to  in  paragraph  1.3.  The  ECB  considers  that,  for  the  companies  subject  to  the  

supervision of the ECB or of the Banca d’Italia, the provisions of the TUF and the Italian Civil Code, as 

amended by the draft legislative decree, are aimed at ensuring the sound and prudent management of 

credit  institutions  and  the  stability  of  the  banking  and  financial  system  as  a  whole.  Hence,  the  ECB 

understands that such references to sector-specific banking rules may be appropriate in this specific 

circumstance. The same principle of ensuring the sound and prudent management of credit institutions 

suggests that it would be desirable to extend the derogations for sector-specific banking rules also with 

regard to the liability of non-executive directors. 

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

Done at Frankfurt am Main, 18 December 2025. 

[signed] 

The President of the ECB 

Christine LAGARDE