The Treaty Of The European Union, Maastricht Treaty, 7th February, 1992 Part 11

ARTICLE 21 Operations with public ent.i.ties.

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 inst.i.tutions 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 ent.i.ties referred to in 21.1.

21.3. The provisions of this Article shall not apply to publicly-owned credit inst.i.tutions 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 inst.i.tutions.

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 inst.i.tutions in other countries and, where appropriate, with international organizations; - acquire and sell spot and forward all types of foreign exchange a.s.sets and precious metals; the term "foreign exchange a.s.set" shall include securities and all other a.s.sets in the currency of any country or units of account in whatever form held; - hold and manage the a.s.sets 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 inst.i.tutions 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 inst.i.tutions and other financial inst.i.tutions 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 a.n.a.lytical and operational purposes, the Executive Board shall draw up a consolidated balance sheet of the ESCB, comprising those a.s.sets 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 a.s.signed 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 a.s.signed to the national central banks shall be adjusted every five years after the establishment of the ESCB by a.n.a.logy 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 a.s.sets to the ECB 30.1. Without prejudice to Article 28, the ECB shall be provided by the national central banks with foreign reserve a.s.sets, 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 a.s.sets 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 a.s.sets.

30.6. The Governing Council shall take all other measures necessary for the application of this Article.

ARTICLE 31 Foreign reserve a.s.sets 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 a.s.sets 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 a.s.sets held against notes in circulation and deposit liabilities to credit inst.i.tutions. These a.s.sets 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 inst.i.tutions 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 circ.u.mstances 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 ent.i.tled 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 inst.i.tute 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 establis.h.i.+ng 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 a.s.sent 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 const.i.tuted as a third decision-making body of the ECB.

45.2. The General Council shall compromise the President and Vice- President of the ECB and the Governors of the national central banks.

The others members of the Executive Board may partic.i.p.ate, 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 partic.i.p.ate, 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 a.s.signed 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 a.s.sets 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 a.s.sets 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.