CONTENTS
HEADS Introduction of signatories
TITLE1 Common Provisions
TITLE2 Provisions Amending the Treaty Establishing the European
Ecomonic Community with a View to Establishing the European
Community
TITLE3 Provisions Amending the Treaty Establishing the European
Coal and Steel Community
TITLE4 Provisions Amending the Treaty Establishing the European
Atomic Energy Community
TITLE5 Provisions on a Common Foreign & Security Policy
TITLE6 Provisions on Cooperation in the Fields of Justice & Home
Affairs
TITLE7 Final Provisions
PROTOCOLS Protocols (broken up into Protocols 1-5 and Protocols 6-17)
Final Act
May of 1992 Declaration on Protocol No. 17, made on the 1st May 1992
PROTOCOL
ON THE ACQUISITION OF PROPERTY IN DENMARK
THE HIGH CONTRACTING PARTIES,
DESIRING to settle certain particular problems relating to Denmark,
HAVING AGREED UPON the following provision, which shall be
annexed to the Treaty establishing the European Community:
Notwithstanding the provisions of this Treaty, Denmark may maintain
the existing legislation on the acquisition of second homes.
PROTOCOL
CONCERNING ARTICLE 119 OF THE TREATY ESTABLISHING THE
EUROPEAN COMMUNITY
THE HIGH CONTRACTING PARTIES,
HAVE AGREED UPON the following provision, which shall be annexed
to the treaty establishing the European Community:
For the purposes of Article 119 of this Treaty, benefits under
occupational social security schemes shall not be considered as
remuneration if an in so far as they are attributable to periods of
employment prior to 17 May 1990, except in the case of workers or
those claiming under them who have before that date initiated legal
proceedings or introduced an equivalent claim under the applicable
national law.
PROTOCOL
ON THE STATUTE OF THE EUROPEAN SYSTEM OF CENTRAL BANKS
AND OF THE EUROPEAN CENTRAL BANK
THE HIGH CONTRACTING PARTIES,
DESIRING to lay down the Statute of the European System of Central
Banks and of the European Central Bank provided for in Article 4a of
the Treaty establishing the European Community.
HAVE AGREED upon the following provisions, which shall be annexed
to the treaty establishing the European Community:
CHAPTER 1
CONSTITUTION OF THE ESCB
ARTICLE 1
The European System of Central Banks.
1.1. The European System of Central Banks (ESCB) and the European
Central Bank (ECB) shall be established in accordance with Article 4a
of this Treaty; they shall perform their tasks and carry on their
activities in accordance with the provisions of this Treaty of this
Statute.
1.2. In accordance with Article 106(1) on this Treaty, the ESCB shall be
composed of the ECB and of the central banks of the Member States
("national central banks"). The Insitut monetaire luxembourgeois will
be the central bank of Luxembourg.
CHAPTER II
OBJECTIVES AND TASKS OF ESCB
ARTICLE 2
Objectives
In accordance with Article 105(1) of this Treaty, the primary objective of
the ESCB shall be to maintain price stability. Without prejudice to the
objective of price stability, it shall support the general economic
policies in the Community with a view to contributing to the
achievement of the objectives of the Community as laid down in Article
2 of this Treaty. The ESCB shall act in accordance with the principle of
an open market economy with free competition, favouring an efficient
allocation of resources, and in compliance with the principles set out
in Article 3a of this Treaty.
ARTICLE 3
Tasks
3.1. In accordance with Article 105(2) of this Treaty, the basic tasks to
be carried out through the ESCB shall be:
- to define and implement the monetary policy of the Community;
- to conduct foreign exchange operations consistent with the
provisions of Article 109 of this Treaty;
- to hold and manage the official foreign reserves of the Member
States;
- to promote the smooth operation on payment systems.
3.2. In accordance with Article 105(3) of this Treaty, the third indent of
Article 3.1 shall be without prejudice to the holding and management
by the governments of Member States of foreign exchange working
balances.
3.3. In accordance with Article 105(5) of this Treaty, the ESCB shall
contribute to the smooth conduct of policies pursued by the competent
authorities relating to the prudential supervision of credit institutions
and the stability of the financial system.
ARTICLE 4
Advisory functions
In accordance with Article 105(4) of this Treaty:
(a) the ECB shall be consulted:
- on any proposed Community act in its fields of competence;
- by national authorities regarding any draft legislative provision in its
fields of competence, but within the limits and under the conditions set
out by the Council in accordance with the procedure laid down in
Article 42;
(b) the ECB may submit opinions to the appropriate Community
institutions or bodies or to national authorities on matters in its fields
of competence.
ARTICLE 5
Collection of statistical information
5.1. In order to undertake the tasks of the ESCB, the ECB, assisted by
the national central banks, shall collect the necessary statistical
information either from the competent national authorities or directly
from economic agents. For these purposes it shall co-operate with the
Community institutions or bodies and with the competent authorities of
the Member States or third countries and with international
organizations.
5.2. The national central banks shall carry out, to the extent possible,
the tasks described in Article 5.1.
5.3. The ECB shall contribute to the harmonization, where necessary,
of the rules and practices governing the collection, compilation and
distribution of statistics in the areas within its fields of competence.
5.4. The Council, in accordance with the procedure laid down in Article
42, shall define the natural and legal persons subject to reporting
requirements, the confidentiality regime and the appropriate
provisions for enforcement.
ARTICLE 6
International co-operation
6.1. In the field of international co-operation involving the tasks
entrusted to the ESCB, the ECB shall decide how the ESCB shall be
represented.
6.2. The ECB and, subject to its approval, the national central banks
may participate in international monetary institutions.
6.3. Articles 6.1 and 6.2 shall be without prejudice to Article 109(4) of
this Treaty.
CHAPTER III
ORGANIZATION OF THE ESCB
ARTICLE 7
Independence
In accordance with Article 107 of this Treaty, when exercising the
powers and carrying out the tasks and duties conferred upon them by
this Treaty and this Statute, neither the ECB, nor a national central
bank, nor any member of their decision-making bodies shall seek or
take instructions from Community institutions or bodies, from any
government of a Member State or from any other body. The
Community institutions and bodies and 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 of
the national central banks in the performance of their tasks.
ARTICLE 8
General principle
The ESCB shall be governed by the decision-making bodies of the
ECB.
ARTICLE 9
The European Central Bank
9.1. The ECB which, in accordance with Article 106(2) of this Treaty,
shall have legal personality, shall enjoy in each of the Member States
the most extensive legal capacity accorded to legal persons under its
law; it may, in particular, acquire or dispose of movable and
immovable property and may be a party to legal proceedings.
9.2. The ECB shall ensure that the tasks conferred upon the ESCB
under Article 105(2), (3) and (5) of this Treaty are implemented either
by its own activities pursuant to this Statute or through the national
central bank pursuant to Articles 12.1 and 14.
9.3 In accordance with Article 106(3) of this Treaty, the decisionmaking
bodies of the ECB shall be the Governing Council and the
Executive Board.
ARTICLE 10
The Governing Council
10.1. In accordance with Article 109a(1) of this Treaty, the Governing
Council shall comprise the members of the Executive Board of the
ECB and the Governors of the national central banks.
10.2. Subject to Article 10.3, only members of the Governing Council
present in person shall have the right to vote. By way of derogation
from this rule, the Rules of Procedure referred to in Article 12.3 may
lay down that members of the Governing Council may cast their vote
by means of teleconferencing. These rules shall also provide that a
member of the Governing Council who is prevented from voting for a
prolonged period may appoint an alternate as a member of the
Governing Council.
Subject to Articles 10.3 and 11.3, each member of the Governing
Council shall have one vote. Save as otherwise provided for in this
Statue, the Governing Council shall act by a simple majority. In the
event of a tie the President shall have the casting vote.
In order for the Governing Council to vote, there shall be quorum of
two-thirds of the members. If the quorum is not met, the President may
convene and extraordinary meeting at which decisions may be taken
without regard to the quorum.
10.3. For any decisions to be taken under Articles 28, 29, 30, 32, 33
and 51, the votes in the Governing Council shall be weighted
according to the national central banks' shares in the subscribed
capital of the ECB. The weight of the votes of the members of the
Executive Board shall be zero. A decision requiring a qualified
majority shall be adopted if the votes cast in favour represent at least
two thirds of the subscribed capital of the ECB and represent at least
half of the shareholders. If a Governor in unable to be present, he may
nominate an alternate to cast his weighted vote.
10.4. The proceedings of the meetings shall be confidential. The
Governing Council may decide to make the outcome of its
deliberations public.
10.5. The Governing Council shall meet at least ten times a year.
ARTICLE 11
The Executive Board
11.1. In accordance with Article 109a(2)(a) of this Treaty, the Executive
Board shall comprise the President, the Vice-President and four other
members.
The members shall perform their duties on a full-time basis. No
member shall engage in any occupation, whether gainful or not,
unless exemption is exceptionally granted by the Governing Council.
11.2. In accordance with Article 109a(2)(b) of this Treaty, the President,
the Vice-President and the other Members of the Executive Board shall
be appointed from among persons of recognized standing and
professional experience in monetary or banking matters by common
accord of the governments of the Member States at the level of the
Heads of State or of government, on a recommendation from the
Council after it has consulted the European Parliament and the
Governing Council.
Their term of office shall be 8 years and shall not be renewable.
Only nationals of Member States may be members of the Executive
Board.
11.3. The terms and conditions of employment of the members of the
Executive Board, in particular their salaries, pensions and other social
security benefits shall be the subject of contracts with the ECB and
shall be fixed by the Governing Council on a proposal from a
Committee comprising three members appointed by the Governing
Council and three members appointed by the Council. The members of
the Executive Board shall not have the right to vote on matters
referred to in this paragraph.
11.4. If a member of the Executive Board no longer fulfils the
conditions required for the performance of his duties or if he has been
guilty of serious misconduct, the Court of Justice may, on application
by the Governing Council or the Executive Board, compulsorily retire
him.
11.5. Each member of the Executive Board present in person shall
have the right to vote and shall have, for that purpose, one vote. Save
as otherwise provided, the Executive Board shall act by a simple
majority of the votes cast. In the event of a tie, the President shall
have the casting vote. The voting arrangements shall be specified in
the Rules of Procedure referred to in Article 12.3.
11.6. The Executive Board shall be responsible for the current
business of the ECB.
11.7. Any vacancy on the Executive Board shall be filled by the
appointment of a new member in accordance with Article 11.2.
ARTICLE 12
Responsibilities of the decision-making bodies
12.1. The Governing Council shall adopt the guidelines and take the
decisions necessary to ensure the performance of the tasks entrusted
to the ESCB under this Treaty and this Statute. The Governing Council
shall formulate the monetary policy of the Community including, as
appropriate, decisions relating to intermediate monetary objectives,
key interest rates and the supply of reserves in the ESCB and shall
establish the necessary guidelines for their implementation.
The Executive Board shall implement monetary policy in accordance
with the guidelines and decisions laid down by the Governing Council.
In doing so the Executive Board shall give the necessary instructions
to national central banks. In addition the Executive Board may have
certain powers delegated to it where the Governing Council so
decides.
To the extent deemed possible and appropriate and without prejudice
to the provisions of this Article, the ECB shall have recourse to the
national central banks to carry out operations which form part of the
tasks of the ESCB.
12.2. The Executive Board shall have the responsibility for the
preparation of meetings of the Governing Council.
12.3. The Governing Council shall adopt Rules of Procedure which
determine the internal organization of the ECB and its decision-making
bodies.
12.4. The Governing Council shall exercise the advisory functions
referred to Article 4.
12.5. The Governing Council shall take the decisions referred to Article
6.
ARTICLE 13
The President
13.1. The President or, in his absence, the Vice-President shall chair
the governing Council and the Executive Board of the ECB.
13.2. Without prejudice to Article 39, the President or his nominee
shall represent the ECB externally.
ARTICLE 14
National Central Banks
14.1. In accordance with Article 108 of this Treaty, each Member State
shall ensure, at the latest at the date of the establishment of the ESCB,
that its national legislation, including the statues of its national central
bank, is compatible with this Treaty and this Statute.
14.2. The statutes of the national central banks shall, in particular,
provide that the term of office of a Governor of a national central bank
shall be no less than 5 years.
A Governor may be relieved from office only if he no longer fulfils the
conditions required for the performance of his duties or if he has been
guilty of serious misconduct. A decision to this effect may be referred
to the Court of Justice by the Governor concerned or the Governing
Council on grounds of infringement of this Treaty or of any rule of law
relating to its application. Such proceedings shall be instituted within
two months of the publication of the decision or of its notification to the
plaintiff or, in the absence thereof, of the day on which it came to
knowledge of the latter, as the case may be.
14.3. The national central banks are an integral part of the ESCB and
shall act in accordance with the guidelines and instructions of ECB.
The Governing Council shall take the necessary steps to ensure
compliance with the guidelines and instructions of the ECB, and shall
require that any necessary information be given to it.
14.4 National central banks may perform functions other than those
specified in this Statute unless the Governing Council finds, by a
majority of two thirds of the votes cast, that these interfere with the
objectives and tasks of the ESCB. Such functions shall be performed
on the responsibility and liability of national central banks and shall
not be regarded as being part of the functions of the ESCB.
ARTICLE 15
Reporting commitments.
15.1. The ECB shall draw up and publish reports on the activities of
the ESCB at least quarterly.
15.2. A consolidated financial statement of the ESCB shall be
published each week.
15.3. In accordance with Article 109b(3) of this Treaty, the ECB shall
address an annual report on the activities of the ESCB and on the
monetary policy of both the previous and the current year to the
European Parliament, the Council and the Commission, and also the
European Council.
15.4. The reports and statements referred to in this Article shall be
made available to interested parties free of charge.
ARTICLE 16
Bank notes.
In accordance with Article 105a(1) of this Treaty, the Governing Council
shall have the exclusive right to authorize the issue of bank notes
within the Community. The ECB and the national central banks may
issue such notes. The bank notes issued by the ECB and the national
central banks shall be the only such notes to have the status of legal
tender within the Community.
The ECB shall respect as far as possible existing practices regarding
the issue and design of bank notes.
CHAPTER IV
MONETARY FUNCTIONS AND OPERATIONS OF THE ESCB
ARTICLE 17
Accounts with the ECB and the national central banks.
In order to conduct their operations, the ECB and the national central
banks may open accounts for credit institutions, public entities and
other market participants and accept assets, including book-entry
securities, as collateral.
ARTICLE 18
Open market and credit operations.
18.1. In order to achieve the objectives of the ESCB and to carry out its
tasks, the ECB and the national central banks may:
- operate in the financial markets by buying and selling outright (spot
or forward) or under repurchase agreement and by lending or
borrowing claims and marketable instruments, whether in Community
or in non-Community currencies, as well as precious metals;
- conduct credit operations with credit institutions and other market
participants, with lending being based on adequate collateral.
18.2. The ECB shall establish general principles for open market and
credit operations carried out by itself or the national central banks,
including for the announcement of conditions under which they stand
ready to enter into such transactions.
ARTICLE 19
Minimum reserves
19.1. Subject to Article 2, the ECB may require credit institutions
established in Member States to hold minimum reserves on accounts
with the ECB and national central banks in pursuance of monetary
policy objectives. Regulations concerning the calculation and
determination of the required minimum reserves may be established
by the Governing Council. In cases of non-compliance the ECB shall
be entitled to levy penalty interest and to impose other sanctions with
comparable effect.
19.2. For the application of this Article, the Council shall, in accordance
with the procedure laid down in Article 42, define the basis for
minimum reserves and the maximum reserves and the maximum
permissible ratios between those reserves and their basis, as well as
the appropriate sanctions in cases of non-compliance.
ARTICLE 20
Other instruments of monetary control
The Governing Council may, by a majority of two thirds of the votes
cast, decide upon the use of such other operational methods of
monetary control as it sees fit, respecting Article 2.
The Council shall, in accordance with the procedure laid down in
Article 42, define the scope of such methods if they impose obligations
on third parties.
ARTICLE 21
Operations with public entities.
21.1. In accordance with Article 104 of the Treaty, overdrafts or any
other type of credit facility with the ECB or with the national central
banks in favour of Community institutions or bodies, central
governments, regional, local or other public authorities, other bodies
governed by public law, or public undertakings of Member States shall
be prohibited, as shall the purchase directly from them by the ECB or
national central banks of debt instruments.
21.2. The ECB and national central banks may act as fiscal agents for
the entities referred to in 21.1.
21.3. The provisions of this Article shall not apply to publicly-owned
credit institutions which, in the context of the supply of reserves by
central banks, shall be given the same treatment by national central
banks and the ECB as private credit institutions.
ARTICLE 22
Clearing and payment systems
The ECB and national central banks may provide facilities, and the
ECB may make regulations, to ensure efficient and sound clearing and
payment systems within the Community and with other countries.
ARTICLE 23
External operations
The ECB and national central banks may:
- establish relations with central banks and financial institutions in
other countries and, where appropriate, with international
organizations;
- acquire and sell spot and forward all types of foreign exchange
assets and precious metals; the term "foreign exchange asset" shall
include securities and all other assets in the currency of any country
or units of account in whatever form held;
- hold and manage the assets referred to in this Article;
- conduct all types of banking transactions in relations with third
countries and international organizations, including borrowing and
lending operations.
ARTICLE 24
Other operations
In addition to operations arising from their tasks, the ECB and national
central banks may enter into operations for their administrative
purposes or for their staff.
CHAPTER V
PRUDENTIAL SUPERVISION
ARTICLE 25
Prudential supervision
25.1. The ECB may offer advice to and be consulted by the Council,
the Commission and the competent authorities of the Member States
on the scope and implementation of Community legislation relating to
the prudential supervision of credit institutions and to the stability of
the financial system.
25.2. In accordance with any decision of the Council under Article
105(6) of this Treaty, the ECB may perform specific tasks concerning
policies relating to the prudential supervision of credit institutions and
other financial institutions with the exception of insurance
undertakings.
CHAPTER VI
FINANCIAL PROVISIONS OF THE ESCB
ARTICLE 26
Financial accounts
26.1. The financial year of the ECB and national central banks shall
begin on the first day of January and end on the last day of December.
26.2. The annual accounts of the ECB shall be drawn up by the
Executive Board, in accordance with the principles established by the
Governing Council. The accounts shall be approved by the Governing
Council and shall thereafter be published.
26.3. For analytical and operational purposes, the Executive Board
shall draw up a consolidated balance sheet of the ESCB, comprising
those assets and liabilities of the national central banks that fall within
the ESCB.
26.4. For the application of this Article, the Governing Council shall
establish the necessary rules for standardizing the accounting and
reporting of operations undertaken by the national central banks.
ARTICLE 27
Auditing
27.1. The account of the ECB and national central banks shall be
audited by independent external auditors recommended by the
Governing Council and approved by the Council. The auditors shall
have full power to examine all books and accounts of the ECB and
national central banks and obtain full information about their
transactions.
27.2. The provisions of Article 188c of this Treaty shall only apply to
an examination of the operational efficiency of the management of the
ECB.
ARTICLE 28
Capital of the ECB
28.1. The capital of the ECB, which shall become operational upon its
establishment, shall be ECU 5 000 million. The capital may be
increased by such amounts as may be decided by the Governing
Council acting by the qualified majority provided for in Article 10.3,
within the limits and under the conditions set by the Council under the
procedure laid down in Article 42.
28.2. The national central banks shall be the sole subscribers to and
holders of the capital of the ECB. The subscription of capital shall be
according to the key established in accordance with Article 29.
28.3. The Governing Council, acting by the qualified majority provided
for in Article 10.3, shall determine the extent to which and the form in
which the capital shall be paid up.
28.4. Subject to Article 28.5, the shares of the national central banks in
the subscribed capital of the ECB may not be transferred, pledged or
attached.
28.5. If the key referred to in Article 29 is adjusted, the national central
banks shall transfer among themselves capital shares to the extent
necessary to ensure that the distribution of capital shares
corresponds to the adjusted key. The Governing Council shall
determine the terms and conditions of such transfers.
ARTICLE 29
Key for capital subscription
29.1. When in accordance with the procedure referred to in Article
109l(1) of this Treaty the ESCB and the ECB have been established,
the key for subscription of the ECB's capital shall be established.
Each national central bank shall be assigned a weighting in this key
which shall be equal to the sum of:
- 50% of the share of its respective Member State in the population of
the Community in the penultimate year preceding the establishment of
the ESCB;
- 50% of the share of its respective Member State in the gross
domestic product at market prices of the Community as recorded in the
last five years preceding the penultimate year before the
establishment of the ESCB;
The percentages shall be rounded up to the nearest multiple 0.05
percentage points.
29.2 The statistical data to be used for the application of this Article
shall be provided by the Commission in accordance with the rules
adopted by the Council under the procedure provided for in Article 42.
29.3. The weighting assigned to the national central banks shall be
adjusted every five years after the establishment of the ESCB by
analogy with the provisions laid down in Article 29.1. The adjusted key
shall apply with effect from the first day of the following year.
29.4. The Governing Council shall take all other measures necessary
for the application of this Article.
ARTICLE 30
Transfer of foreign reserve assets to the ECB
30.1. Without prejudice to Article 28, the ECB shall be provided by the
national central banks with foreign reserve assets, other than Member
States' currencies, ECUs, IMF reserve positions and SDRs, up to an
amount equivalent to ECU 50 000 million. The Governing Council shall
decide upon the proportion to be called up by the ECB following its
establishment and the amounts called up at later dates. The ECB shall
have the full right to hold and manage the foreign reserves that are
transferred to it and to use them for the purposes set out in this
Statute.
30.2. The contributions of each national central bank shall be fixed in
proportion to its share in the subscribed capital of the ECB.
30.3. Each national central bank shall be credited by the ECB with a
claim equivalent to its contribution. The Governing Council shall
determine the denomination and remuneration of such claims.
30.4. Further calls of foreign reserve assets beyond the limit set in
Article 30.1. may be effected by the ECB, in accordance with Article
30.2, within the limits and under the conditions set by the Council in
accordance with the procedure laid down in Article 42.
30.5. The ECB may hold and manage IMF reserve positions and SDRs
and provide for the pooling of such assets.
30.6. The Governing Council shall take all other measures necessary
for the application of this Article.
ARTICLE 31
Foreign reserve assets held by national central banks
31.1. The national central banks shall be allowed to perform
transactions in fulfilment of their obligations towards international
organizations in accordance with Article 23.
31.2. All other operations in foreign reserve assets remaining with the
national central banks after the transfers referred to in Article 30, and
Member States' transactions with their foreign exchange working
balances shall, above a certain limit to be established within the
framework of Article 31.3, be subject to approval by the ECB in order to
ensure consistency with the exchange rate and monetary policies of
the Community.
31.3. The Governing Council shall issue guidelines with a view to
facilitating such operations.
ARTICLE 32
Allocation of monetary income of national central banks.
32.1. The income accruing to the national central banks in the
performance of the ESCB's monetary policy function (hereinafter
referred to as "monetary income") shall be allocated at the end of each
financial year in accordance with the provisions of this Article.
32.2. Subject to Article 32.3, the amount of each national central bank's
monetary income shall be equal to its annual income derived from its
assets held against notes in circulation and deposit liabilities to credit
institutions. These assets shall be earmarked by national central
banks in accordance with guidelines to be established by the
Governing Council.
32.3. If, after the start of the third stage, the balance sheet structures
of the national central banks do not, in the judgment of the Governing
Council, permit the application of Article 32.2, the Governing Council,
acting by a qualified majority, may decide that, by way of derogation
form Article 32.2, monetary income shall be measured according to an
alternative method for a period of not more than five years.
32.4. The amount of each national central bank's monetary income
shall be reduced by an amount equivalent to any interest paid by that
central bank on its deposit liabilities to credit institutions in
accordance with Article 19.
The Governing Council may decide that national central banks shall be
indemnified against costs incurred in connection with the issue of
bank notes or in exceptional circumstances for specific losses arising
from monetary policy operations undertaken for the ESCB.
Indemnification shall be in a form deemed appropriate in the judgment
of the Governing Council; these amounts may be offset against the
national central banks' monetary income.
32.5. The sum of the national central banks' monetary income shall be
allocated to the national central banks in proportion to their paid-up
shares in the capital of the ECB, subject to any decision taken by the
Governing Council pursuant to Article 33.2.
32.6. The clearing and settlement of the balances arising from the
allocation of monetary income shall be carried out by the ECB in
accordance with guidelines established by the Governing Council.
32.7. The Governing Council shall take all other measures necessary
for the application of this Article.
ARTICLE 33
Allocation of net profits and losses of the ECB
33.1. The net profit of the ECB shall be transferred in the following
order:
(a) an amount to be determined by the Governing Council, which may
not exceed 20% of the net profit, shall be transferred to the general
reserve fund subject to a limit equal to a 100% of the capital;
(b) the remaining net profit shall be distributed to the shareholders of
the ECB in proportion to their paid-up shares.
33.2. In the event of a loss incurred by the ECB, the shortfall may be
offset against the general reserve fund of the ECB and, if necessary,
following a decision by the Governing Council, against the monetary
income of the relevant financial year in proportion and up to the
amounts allocated to the national central banks in accordance with
Article 32.5.
CHAPTER VII
GENERAL PROVISIONS
ARTICLE 34
Legal acts
34.1. In accordance with Article 108a of this Treaty, the ECB shall:
- make regulations to the extent necessary to implement the tasks
defined in Article 3.1., first indent, Articles 19.1, 22 or 25.2 and in
cases which shall be laid down in the acts of the Council referred to in
Article 42;
- take decisions necessary for carrying out the tasks entrusted to the
ESCB under this Treaty and this Statute;
- make recommendations and deliver opinions.
34.2. A regulation shall have general application. It shall be binding in
its entirety and directly applicable in all Member States.
Recommendations and opinions shall have no binding force.
A decision shall be binding in its entirety upon those to whom it is
addressed.
Articles 190 to 192 of this Treaty shall apply to regulations and
decisions adopted by the ECB.
The ECB may decide to publish its decisions, recommendations and
opinions.
34.3. Within the limits and under the conditions adopted by the Council
under the procedure laid down in Article 42, the ECB shall be entitled
to impose fines or periodic penalty payments on undertakings for
failure to comply with obligations under its regulations and decisions.
ARTICLE 35
Judicial control and related matters
35.1. The acts or omissions of the ECB shall be open to review or
interpretation by the Court of Justice in the cases and under the
conditions laid down in this Treaty. The ECB may institute proceedings
in the cases and under the conditions laid down in this Treaty.
35.2. Disputes between the ECB, on the one hand, and its creditors,
debtors or any other person, on the other, shall be decided by the
competent national courts, save where jurisdiction has been conferred
upon the Court of Justice.
35.3. The ECB shall be subject to the liability regime provided for in
Article 215 of this Treaty. The national central banks shall be liable
according to their respective national laws.
35.4. The Court of Justice shall have jurisdiction to give judgment
pursuant to any arbitration clause contained in a contract concluded by
or on behalf of the ECB, whether that contract be governed by public or
private law.
35.5. A decision of the ECB to bring an action before the Court of
Justice shall be taken by the Governing Council.
35.6. The Court of Justice shall have jurisdiction in disputes
concerning the fulfillment by a national central bank of obligations
under this Statute. If the ECB considers that a national central bank
has failed to fulfill an obligation under this Statute, it shall deliver a
reasoned opinion on the matter after giving the national central bank
concerned the opportunity to submit its observations. If the national
central bank concerned does not comply with the opinion within the
period laid down by the ECB, the latter may bring the matter before the
Court of Justice.
ARTICLE 36
Staff
36.1. The Governing Council, on a proposal from the Executive Board,
shall lay down the conditions of employment of the staff of the ECB.
36.2. The Court of Justice shall have jurisdiction in any dispute
between the ECB and its servants within the limits and under the
conditions laid down in the conditions of employment.
ARTICLE 37
Seat
Before the end of 1992, the decision as to where the seat of the ECB
will be established shall be taken by common accord of the
governments of the Member States at the level of Heads of State or of
Government.
ARTICLE 38
Professional secrecy
38.1. Members of the governing bodies and the staff of the ECB and
the national central banks shall be required, even after their duties
have ceased, not to disclose information of the kind covered by the
obligation of professional secrecy.
38.2. Persons having access to data covered by Community
legislation imposing an obligation of secrecy shall be subject to such
legislation.
ARTICLE 39
Signatories
The ECB shall be legally committed to third parties by the President or
by two members of the Executive Board or by the signatures of two
members of the staff of the ECB who have been duly authorized by the
President to sign on behalf of the ECB.
ARTICLE 40
Privileges and immunities.
The ECB shall enjoy in the territories of the Member States such
privileges and immunities as are necessary for the performance of its
tasks, under the conditions laid down in the Protocol on the Privileges
and Immunities of the European Communities annexed to the Treaty
establishing a Single Council and a Single Commission of the
European Communities.
CHAPTER VIII
AMENDMENT OF THE STATUTE AND COMPLEMENTARY LEGISLATION
ARTICLE 41
Simplified amendment procedure
41.1. In accordance with Article 106(5) of this Treaty, Articles 5.1, 5.2,
5.3, 17, 18, 19.1, 22, 23, 24, 26, 32.2, 32.3, 32.4, 32.6, 33.1(a) and 36
of this Statute may be amended by the Council, acting either by a
qualified majority on a recommendation from the ECB and after
consulting the Commission, or unanimously on a proposal from the
Commission and after consulting the ECB. In either case the assent of
the European Parliament shall be required.
41.2. A recommendation made by the ECB under this Article shall
require a unanimous decision by the Governing Council.
ARTICLE 42
Complementary legislation
In accordance with Article 106(6) of this Treaty, immediately after the
decision on the date for the beginning of the third stage, the Council,
acting by a qualified majority either on a proposal from the
Commission and after consulting the European Parliament and the
ECB or on a recommendation from the ECB and after consulting the
European Parliament and the Commission, shall adopt the provisions
referred to in Articles 4, 5.4, 19.2, 20, 28.1, 29.2, 30.4, and 34.3. of this
Statute.
CHAPTER IX
TRANSITIONAL AND OTHER PROVISIONS
FOR THE ESCB
ARTICLE 43
General Provisions
43.1. A derogation as referred to in Article 109k(1) of this Treaty shall
entail that the following Articles of this Statue shall not confer any
rights or impose any obligations on the Member State concerned: 3, 6,
9.2, 12.1, 14.3, 16, 18, 19, 20, 22, 23, 26.2, 27, 30, 31, 32, 33, 34, 50
and 52.
43.2. The central banks of Member States with derogation as specified
in Article 109k(1) of this Treaty shall retain their powers in the field of
monetary policy according to national law.
43.3. In accordance with Article 109k(4) of this Treaty, "Member States"
shall be read as "Member States without derogation" in the following
Articles of this Statute: 3, 11.2, 19, 34.2 and 50.
43.4 "National central banks" shall be read as central banks of
Member States without a derogation" in the following Articles of this
Statute: 9.2, 10.1, 10.3, 12.1, 16, 17, 18, 22, 23, 27, 30, 31, 32, 33.2
and 52.
43.5. "Shareholders" shall be read as "central banks of Member
States without a derogation" in Articles 10.3 and 33.1.
43.6. "Subscribed capital of the ECB" shall be read as "capital of the
ECB subscribed by the central banks of Member States without a
derogation" in Articles 10.3 and 30.2.
ARTICLE 44
Transitional tasks of the ECB
The ECB shall take over those tasks of the EMI which, because of the
derogations of one or more Member States, still have to be performed
in the third stage.
The ECB shall give advice in the preparations for the abrogation of the
derogations specified in Article 109k of this Treaty.
ARTICLE 45
The General Council of the ECB
45.1. Without prejudice to Article 106(3) of this Treaty, the General
Council shall be constituted as a third decision-making body of the
ECB.
45.2. The General Council shall compromise the President and VicePresident
of the ECB and the Governors of the national central banks.
The others members of the Executive Board may participate, without
having the right to vote, in meetings of the General Council.
45.3. The responsibilities of the General Council are listed in full in
Article 47 of this Statute.
ARTICLE 46
Rules of procedure of the General Council
46.1. The President or, in his absence, the Vice-President of the ECB
shall chair the General Council of the ECB.
46.2. The President of the Council and a member of the Commission
may participate, without having to right to vote, meetings of the
General Council.
46.3. The President shall prepare the meetings of the General Council.
46.4. By way of derogation from Article 12.3, the General Council shall
adopt its Rules of Procedure.
46.5. The Secretariat of the General Council shall be provided by the
ECB.
ARTICLE 47
Responsibilities of the General Council
47.1. The General Council shall:
- perform the tasks referred to in Article 44;
- contribute to the advisory functions referred to in Articles 4 and 25.1.
47.2. The General Council shall contribute to:
- the collection of statistical information as referred to in Article 5;
- the reporting activities of the ECB as referred to in Article 15;
- the establishment of the necessary rules for the application of Article
26 as referred to in Article 26.4;
- the taking of all other measures necessary for the application of
Article 29 as referred to Article 29.4;
- the laying down of the conditions of employment of the staff of the
ECB as referred to in Article 36.
47.3. The General Council shall contribute to the necessary
preparations for irrevocably fixing the exchange rates of the
currencies of Member States with a derogations against the
currencies, or the single currency, of the Member States without a
derogation, as referred to in Article 109(5) of this Treaty.
47.4. The General Council shall be informed by the President of the
ECB of decisions of the Governing Council.
ARTICLE 48
Transitional provisions for the capital of the ECB
In accordance with Article 29.1 each national central bank shall be
assigned a weighting in the key for subscription of the ECB's capital.
By way of derogation from Article 28.3, central banks of Member
States with a derogation shall not pay up their subscribed capital
unless the General Council, acting by as majority representing at least
two thirds of the subscribed capital of the ECB and at least half of the
shareholders, decides that a minimal percentage has to be paid up as
a contribution to the operational costs of the ECB.
ARTICLE 49
Deferred payment of capital,
reserves and provisions of the ECB
49.1. The central bank of a Member State whose derogation has been
abrogated shall pay up its subscribed share of the capital of the ECB
to the same extent as the central banks of other Member States
without a derogation, and shall transfer to the ECB foreign reserve
assets in accordance with Article 30.1. The sum to be transferred shall
be determined by multiplying the ECU value at current exchange rates
of the foreign reserve assets which have already been transferred to
the ECB in accordance with Article 30.1, by the ratio between the
number of shares subscribed by the national central bank concerned
and the number of shares already paid up by the other national central
banks.
49.2. In addition to the payment to be made in accordance with Article
49.1, the central bank concerned shall contribute to the reserves of the
ECB, to those provisions equivalent to reserves, and to the amount
still to be appropriated to the reserves and provisions corresponding
to the balance of the profit and loss account as at 31 December of the
year prior to the abrogation of the derogation. The sum to be
contributed shall be determined by multiplying the amount of the
reserves, as defined above and as stated in the approved balance
sheet of the ECB, by the ratio between the number of shares
subscribed by the central bank concerned and the number of shares
already paid up the other central banks.
ARTICLE 50
Initial appointment of the members of the Executive Board.
When the Executive Board of the ECB is being established, the
President, the Vice-President and the other members of the Executive
Board shall be appointed by common accord of the governments of the
Member States at the level of Heads of State or of Government, on a
recommendation from the Council and after consulting the European
Parliament and the Council of the EMI. The President of the Executive
Board shall be appointed for 8 years. By way of derogation from
Article 11.2, the Vice-President shall be appointed for 4 years and the
other members of the Executive Board for terms of office of between 5
and 8 years. No term of office shall be renewable. The number of
members of the Executive Board may be smaller than provided for in
Article 11.1, but in no circumstance shall it be less than four.
ARTICLE 51
Derogation from Article 32
51.1. If, after the start of the third stage, the Governing Council decides
that the application of Article 32 results in significant changes in
national central banks' relative income positions, the amount of
income to allocated pursuant to Article 32 shall be reduced by a
uniform percentage which shall not exceed 60% in the first financial
year after the start of the third stage and which shall decrease by at
least 12 percentage points in each subsequent financial year.
51.2. Article 51.1. shall be applicable for not more than five financial
years after the start of the third stage.
ARTICLE 52
Exchange of bank notes in Community currencies.
Following the irrevocable fixing of exchange rates, the Governing
Council shall take the necessary measures to ensure that bank notes
denominated in currencies with irrevocably fixed exchange rates are
exchanged by the national central banks at their respective par
values.
ARTICLE 53
Applicability of the transitional provisions
If and as long as there are Member States with a derogation Articles
43 to 48 shall be applicable.
PROTOCOL
ON THE STATUTE OF THE EUROPEAN MONETARY INSTITUTE
THE HIGH CONTRACTING PARTIES,
DESIRING to lay down the Statute of the European Monetary Institute,
HAVE AGREED upon the following provisions, which shall be annexed
to the Treaty establishing the European Community:
ARTICLE 1
Constitution and name
1.1. The European Monetary Institute (EMI) shall be established in
accordance with Article 109f of this Treaty; it shall perform its functions
and carry out its activities in accordance with the provisions of this
Treaty and of this Statute.
1.2. The members of the EMI shall be the central banks of the Member
States ("national central banks"). For the purposes of the Statute, the
Institut monetaire luxembourgeois shall be regarded as the central
bank of Luxembourg.
1.3. Pursuant to Article 109f of this Treaty, both the Committee of
Governors and the European Monetary Co-operation Fund (EMCF)
shall be dissolved. All assets and liabilities of the EMCF shall pass
automatically to the EMI.
ARTICLE 2
Objectives
The EMI shall contribute to the realization of the conditions necessary
for the transition to the third stage of Economic and Monetary Union, in
particular by:
- strengthening the co-ordination of monetary policies with a view to
ensuring price stability;
- making the preparations required for the establishment of the
European System of Central Banks (ESCB), and for the conduct of a
single monetary policy and the creation of a single currency in the
third stage;
- overseeing the development of the ECU.
ARTICLE 3
General principles
3.1. The EMI shall carry out the tasks and functions conferred upon it
by this Treaty and this Statute without prejudice to the responsibility of
the competent authorities for the conduct of the monetary policy within
the respective Member States.
3.2. The EMI shall act in accordance with the objectives and principles
stated in Article 2 of the Statute of the ESCB.
ARTICLE 4
Primary tasks
4.1. In accordance with Article 109f(2) of this Treaty, the EMI shall:
- strengthen co-operation between the national central banks;
- strengthen the co-ordination of the monetary policies of the Member
States with the aim of ensuring price stability;
- monitor the functioning of the European Monetary System (EMS);
- hold consultations concerning issues falling within the competence of
the national central banks and affecting the stability of financial
institutions and markets;
- take over the tasks of the EMCF; in particular it shall perform the
functions referred to in Articles 6.1, 6.2 and 6.3;
- facilitate the use of the ECU and oversee its development, including
the smooth functioning of the ECU clearing system.
The EMI shall also:
- hold regular consultations concerning the course of monetary
policies and the use of monetary policy instruments;
- normally be consulted by the national monetary authorities before
they take decisions on the course of monetary policy in the context of
the common framework for ex ante co-ordination.
4.2. At the latest by 31 December 1996, the EMI shall specify the
regulatory, organizational and logistical framework necessary for the
ESCB to perform its tasks in the third stage, in accordance with the
principle of an open market economy with free competition. This
framework shall be submitted by the Council of the EMI for decision to
the ECB at the date of its establishment.
In accordance with Article 109f(3) of this Treaty, the EMI shall in
particular:
- prepare the instruments and the procedures necessary for carrying
out a single monetary policy in the third stage;
- promote the harmonization, where necessary, of the rules and
practices governing the collection, compilation and distribution of
statistics in the areas within its field of competence;
- prepare the rules for operations to be undertaken by the national
central banks in the framework of the ESCB;
- promote the efficiency of cross-border payments;
- supervise the technical preparation of ECU bank notes.
ARTICLE 5
Advisory functions.
5.1. In accordance with Article 109f(4) of this Treaty, the Council of the
EMI may formulate opinions or recommendations on the overall
orientation of monetary policy and exchange rate policy as well as on
related measures introduced in each Member State. The EMI may
submit opinions or recommendations to governments and to the
Council on policies which might affect the internal or external
monetary situation in the Community and, in particular, the functioning
of the EMS.
5.2. The Council of the EMI may also make recommendations to the
monetary authorities of the Member States concerning the conduct of
their monetary policy.
5.3. In accordance with Article 109f(6) of this Treaty, the EMI shall be
consulted by the Council regarding any proposed Community act
within its field of competence.
Within the limits and under the conditions set out by the Council acting
by a qualified majority on a proposal from the Commission and after
consulting the European Parliament and the EMI shall be consulted by
the authorities of the Member States on any draft legislative provision
within its field of competence, in particular with regard to Article 4.2.
5.4. In accordance with Article 109f(5) of this Treaty, the EMI may
decide to publish its opinions and its recommendations.
ARTICLE 6
Operational and technical functions
6.1. The EMI shall;
- provide for the multilateralization of positions resulting from
interventions by the national central banks in Community currencies
and the multilateralization of intra-Community settlements;
- administer the very short-term financing mechanism provided for by
the Agreement of 13 March 1979 between the central banks of the
Member States of the European Economic Community laying down the
operating procedures for the European Monetary System (hereinafter
referred to as "EMS Agreement") and the short-term monetary support
mechanism provided for in the Agreement between the central banks
of the Member States of the European Economic Community of 9
February 1970, as amended;
- perform the functions referred to in Article 11 of Council Regulation
(EEC) No 1969/88 of 24 June 1988 establishing a single facility
providing medium-term financial assistance for Member States'
balances of payments.
6.2. The EMI may receive monetary reserves from the national central
banks and issue ECUs against such assets for the purpose of
implementing the EMS Agreement. These ECUs may be used by the
EMI and the national central banks as a means of settlement and for
transactions between them and the EMI. The EMI shall take the
necessary administrative measures for the implementation of this
paragraph.
6.3. The EMI may grant to the monetary authorities of third countries
and to international monetary institutions the status of "Other Holders"
of ECUs and fix the terms and conditions under which such ECUs may
be acquired, held or used by Other Holders.
6.4. The EMI shall be entitled to hold and manage foreign exchange
reserves as an agent for and at the request of national central banks.
Profits and losses regarding these reserves shall be for the account of
the national central bank depositing the reserves. The EMI shall
perform this function on the basis of bilateral contracts in accordance
with rules laid down in a decision of the EMI. These rules shall ensure
that transactions with these reserves shall not interfere with the
monetary policy and exchange rate policy of the competent monetary
authority of any Member State and shall be consistent with the
objectives of the EMI and the proper functioning of the Exchange Rate
Mechanism of the EMS.
ARTICLE 7
Other tasks
7.1. Once a year the EMI shall address a report to the Council on the
state of the preparations for the third stage. These reports shall
include an assessment of the progress towards convergence in the
Community, and cover in particular the adaptation of monetary policy
instruments and the preparation of the procedures necessary for
carrying out a single monetary policy in the third stage, as well as the
statutory requirements to be fulfilled for national central banks to
become an integral part of the ESCB.
7.2. In accordance with the Council decisions referred to in Article
109f(7) of this Treaty, the EMI may perform other tasks for the
preparation of the third stage.
ARTICLE 8
Independence
The members of the Council of the EMI who are the representatives of
their institutions shall, with respect to their activities, act according to
their own responsibilities. In exercising the powers and performing the
tasks and duties conferred upon them by this Treaty and this Statute,
the Council of the EMI may not seek or take any instructions from
Community institutions or bodies or governments of Member
States.The Community institutions and bodies as well as the
governments of the Member States undertake to respect this principle
and not seek to influence the Council of the EMI in the performance of
its tasks.
ARTICLE 9
Administration
9.1. In accordance with Article 109f(1) of this Treaty, the EMI shall be
directed and managed by the Council of the EMI.
9.2. The Council of the EMI shall consist of a President and the
Governors of the national central banks, on of whom shall be VicePresident.
If a Governor is prevented from attending a meeting, he
may nominate another representative of his institution.
9.3. The President shall be appointed by common accord of the
governments of the Member States at the level of Heads of State or of
Government, on a recommendation from, as the case may be, the
Committee of Governors or the Council of the EMI, and after consulting
the European Parliament and the Council. The President shall be
selected from among persons of recognized standing and professional
experience in monetary or banking matters. Only
nationals of Member States may be President of the EMI. The Council
of the EMI shall appoint the Vice-President. The President and VicePresident
shall be appointed for a period of three years.
9.4. The President shall perform his duties on a full-time basis. He
shall not engage in any occupation, whether gainful or not, unless
exemption is exceptionally granted by the Council of the EMI.
9.5. The President shall
- prepare and chair meetings of the Council of the EMI;
- without prejudice to Article 22, present the views of the EMI
externally;
- be responsible for the day-to-day management of the EMI.
In the absence of the President, his duties shall be performed by the
Vice-President.
9.6. The terms and conditions of employment of the President, in
particular his salary, pension and other social security benefits, shall
be the subject of a contract with the EMI and shall be fixed by the
Council of the EMI on a proposal from a Committee comprising three
members appointed by the Committee of Governors or the Council of
the EMI, as the case may be, and three members appointed by the
Council. The President shall not have the right to vote on matters
referred to in this paragraph.
9.7. If the President no longer fulfils the conditions required for the
performance of his duties or if he has been guilty of serious
misconduct, the Court of Justice may, on application by the Council of
the EMI, compulsorily retire him.
9.8. The Rules of Procedure of the EMI shall be adopted by the Council
of the EMI.
ARTICLE 10
Meetings of the Council of the EMI and voting procedures
10.1 The Council of the EMI shall meet at least ten times a year. The
proceedings of Council meetings shall be confidential. The Council of
the EMI may, acting unanimously, decide to make the outcome of its
deliberations public.
10.2. Each member of the Council of the EMI or his nominee shall
have one vote.
10.3. Save as otherwise provided for in this Statute, the Council of the
EMI shall act by a simple majority of its members.
10.4. Decisions to be taken in the context of Articles 4.2, 5.4, 6.2, and
6.3 shall require unanimity of the members of the Council of the EMI.
The adoption of opinions and recommendations under Articles 5.1 and
5.2, the adoption of decisions under Articles 6.4, 16 and 23.6 and the
adoption of guidelines under Article 15.3 shall require a qualified
majority of two thirds of the members of the Council of the EMI.
ARTICLE 11
Interinstitutional co-operation and reporting requirements
11.1 The President of the Council and a member of the Commission
may participate, without having the right to vote, in meetings of the
Council of the EMI.
11.2. The President of the EMI shall be invited to participate in Council
meetings when the Council is discussing matters relating to the
objectives and tasks of the EMI.
11.3. At a date to be established in the Rules of Procedure, the EMI
shall prepare an annual report on its activities and on monetary and
financial conditions in the Community. The annual report, together with
the annual accounts of the EMI, shall be addressed to the European
Parliament, the Council and the Commission and also to the European
Council.
The President of the EMI may, at the request of the European
Parliament or on his own initiative, be heard by the competent
Committees of the European Parliament.
11.4. Reports published by the EMI shall be made available to
interested parties free of charge.
ARTICLE 12
Currency denomination
The operations of the EMI shall be expressed in ECUs.
ARTICLE 13
Seat
Before the end of 1992, the decision as to where the seat of the EMI
will be established shall be taken by common accord of the
governments of the Member States at the level of Heads of State or of
Government.
ARTICLE 14
Legal capacity
The EMI, which in accordance with Article 109f(1) of this Treaty shall
have legal personality, shall enjoy in each of the Member States the
most extensive legal capacity accorded to legal persons under their
law; it may, in particular, acquire or dispose of movable or immovable
property and may be a party to legal proceedings.
ARTICLE 15
Legal acts.
15.1. In the performance of its tasks, and under the conditions laid
down in this Statute, the EMI shall:
- deliver opinions
- make recommendations;
- adopt guidelines, and take decisions, which shall be addressed to
the national central banks.
15.2. Opinions and recommendations of the EMI shall have no binding
force
15.3. The Council of the EMI may adopt guidelines laying down the
methods for the implementation of the conditions necessary for the
ESCB to perform its functions in the third stage. EMI guidelines shall
have no binding force; they shall be submitted for decision to the ECB.
15.4. Without prejudice to Article 3.1, a decision of the EMI shall be
binding in its entirety upon those to whom it is addressed. Articles 190
and 191 of this Treaty shall apply to these decisions.
ARTICLE 16
Financial resources.
16.1. The EMI shall be endowed with its own resources. The size of
the resources of the EMI shall be determined by the Council of the EMI
with a view to ensuring the income deemed necessary to cover the
administrative expenditure incurred in the performance of the tasks
and functions of the EMI.
16.2. The resources of the EMI determined in accordance with Article
16.1 shall be provided out of contributions by the national central
banks in accordance with the key referred to in Article 29.1 of the
Statute of the ESCB and be paid up at the establishment of the EMI.
For this purpose, the statistical data to be used for the determination
of the key shall be provided by the Commission, in accordance with
the rules adopted by the Council, acting by a qualified majority on a
proposal from the Commission and after consulting the European
Parliament, the Committee of Governo