Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 26 March 2026 (1)
Case C‑611/24
MA
v
Upravitelen savet na Balgarska narodna banka
(Request for a preliminary ruling from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria))
( Reference for a preliminary ruling – Statute of the European System of Central Banks and of the European Central Bank – Dismissal of the deputy governor of a national central bank – Article 14(2) of the Statute of the European System of Central Banks and of the European Central Bank – Applicability – Article 130 TFEU – Principle of the independence of the national central banks )
I. Introduction
1. ‘In countries where there is no central Bank of Issue, one should be established … Banks, and especially Banks of Issue, should be free from political pressure and should be conducted solely on the lines of prudent finance.’ (2)
2. The above statement, made at the 1920 International Financial Conference, (3) has retained its relevance inasmuch as it highlights two key aspects of central banking.
3. First, it bears witness to the firm entrenchment, in contemporary constitutional orders, of central banks within the architecture of the highest public authorities. While distinct from the classical ‘trinity’ that characterises the organisation of public power within modern democracies (legislative, executive and judiciary), central banks occupy an important position within that structure as evidenced in particular by the attention devoted to their status in various constitutional documents, sometimes explicitly referred to as independent. (4)
4. The importance of that position, compared to the other branches of the State, and the scope or legitimacy of powers conferred upon the central banks certainly continue to fuel discussion. (5) That said, the foregoing considerations also point, secondly, to the significance attached to the need for central banks to remain insulated from external influence in the exercise of their functions. Although the precise limits of their autonomy may likewise be open to discussion, it is generally accepted that central banks must be in a position to discharge their tasks, as pivotal actors within the ‘monetary constitutions’, (6) in a manner that is not conditioned by short-term political cycles or contingencies, as the European Central Bank (ECB) has, moreover, observed in the present proceedings. (7)
5. Under EU law, the requirement that central banks be free from external influences is enshrined in Article 130 TFEU and in the quasi identically worded Article 7 of the Statute of the European System of Central Banks and of the European Central Bank (‘the Statute of the ESCB and of the ECB’). (8) Those provisions require, in essence, that neither the ECB, nor a national central bank of a Member State, nor any member of their decision-making bodies, seek or take instructions from any external body. Conversely, Union institutions, bodies, offices or agencies, as well as the Member States’ governments, must undertake to respect that 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.
6. That general expression of the central banks’ independence is complemented by Article 14.2 of the Statute of the ESCB and of the ECB, which, in particular, circumscribes the possibility of relieving a governor of a national central bank from office before the expiry of his or her term to two situations: first, when ‘he [or she] no longer fulfils the conditions required for the performance of his [or her] duties’; and, secondly, when ‘he [or she] has been guilty of serious misconduct’.
7. The Court has already had an opportunity to address the second limb of that ‘removability test’ (serious misconduct) in its judgment in Rimšēvičs. (9) In that case, however, no evidence of misconduct was put forward, with the result that the Court was able to confine its examination to a relatively abstract level, namely that of the applicable standard of proof, and to conclude that, for a temporary prohibition on the governor concerned to exercise his duties to be justified, sufficient indications that he has engaged in serious misconduct must exist. (10)
8. The present case affords the Court a further – and admittedly more ample – opportunity to revisit that removability test and examine the limits which that guarantee of the independence of the national central banks, together with its more general expression in Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB, impose upon the Member States when defining the conditions under which a member of a governing body of a national central bank may be dismissed.
9. The need to address that question arises from the decision of the Governing Council of the Bulgarian National Bank (‘the BNB’), by which it found that there were grounds for MA to be relieved of his duties as its Deputy Governor and Director of the Issue Department (‘the BNB decision’).
10. That decision followed findings made by another body, the Komisia za protivodeystvie na koruptsiata (Commission for the Prevention of Corruption, Bulgaria; ‘the KPK’), which identified a number of incompatibilities between MA’s position as the BNB’s Deputy Governor and several of his other activities (‘the KPK decision’). Those concerns related, first, to MA’s membership, at the time of his election as Deputy Governor, of a limited liability company and, secondly, to his position as a member of the board of directors of two non-profit entities, namely a golf club and a research institute. It also appears that MA failed to terminate those engagements within the required time limits.
11. In adopting its decision, the BNB’s Governing Council took account of the KPK decision and concluded that MA could not be regarded as fulfilling the conditions required for the performance of his duties as Deputy Governor and that he had, moreover, been found guilty of serious misconduct. In other words, the Governing Council considered that MA’s dismissal was justified on the basis of both grounds set out in Article 14.2 of the Statute of the ESCB and of the ECB. Although, as already noted, that provision concerns the situation of governors of national central banks, the Bulgarian legislature chose to extend the application of the removability test laid down therein to other members of the BNB’s Governing Council.
12. MA contests the legality of the BNB decision before the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), the referring court in the present proceedings. He maintains, in particular, that neither of the two grounds for dismissal was established in the present case. In that context, the referring court has seised the Court of Justice with a number of questions which, in essence, raise the following issues.
13. First, the referring court enquires whether the principle of the independence of the national central banks allows for an obligation – imposed by national law on the members of their decision-making bodies, such as the deputy governor – to declare their shareholdings in companies and participations in non-profit legal entities (Question 5). Secondly, given that the case concerns a national central bank’s Deputy Governor and not its Governor, the referring court enquires as to the applicability of the removability test laid down in Article 14.2 of the Statute of the ESCB and of the ECB (Questions 1 and 2). Thirdly, it seeks clarification about the compatibility with EU law of several elements of national law capable of leading to the conclusion that the person concerned does not fulfil the conditions required for the performance of his duties, that being one of the two grounds for dismissal set out in that test (Questions 3 to 7). Fourthly, it enquires as to the compatibility with EU law of the BNB’s competence to assess the existence of serious misconduct as the other limb of that test (Question 8).
14. It follows that the present reference for a preliminary ruling brings to the fore the issue of the Member States’ power to determine the conditions under which a member of a national central bank’s decision-making body may be relieved of office. The questions which the Court is called upon to answer thus concern the limits that EU law may impose upon that power and which are intended, as I will explain, to ensure the stability of the mandate of governors of national central banks and, thereby, to safeguard the capacity of those institutions to perform their tasks and to shield them from arbitrary intervention.
II. Legal framework
A. European Union law
15. According to Article 130 TFEU, ‘when exercising the powers and carrying out the tasks and duties conferred upon them by the Treaties and the Statute of the ESCB and of the ECB, neither the [ECB], nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions from Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The Union institutions, bodies, offices or agencies 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.’
16. Article 131 TFEU provides that ‘each Member State shall ensure that its national legislation including the statutes of its national central bank is compatible with the Treaties and the Statute of the ESCB and of the ECB.’
17. Article 7 of the Statute of the ESCB and of the ECB is entitled ‘Independence’ and states that ‘in accordance with Article 130 [TFEU], when exercising the powers and carrying out the tasks and duties conferred upon them by the Treaties 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 Union institutions, bodies, offices or agencies, from any government of a Member State or from any other body. The Union institutions, bodies, offices or agencies 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.’
18. Article 14 of the Statute of the ESCB and of the ECB, entitled ‘National central banks’, provides:
‘…
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 five 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 these Treaties or of any rule of law relating to their 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 the knowledge of the latter, as the case may be.
…’
B. National law
1. Law on the Bulgarian National Bank
19. According to Article 11 of the Zakon za Balgarskata narodna banka (Law on the Bulgarian National Bank; ‘the Law on the BNB’):
‘(1) The Governing Council shall consist of seven members: the Governor of the bank, the three Deputy Governors and three other members.
(2) The members of the Governing Council shall be Bulgarian citizens.
(3) … Persons of high moral character with prominent qualifications in economics, finance or banking shall be elected and appointed as members of the Governing Council.
(4) … No member of the Governing Council shall be a person:
1. who was sentenced to imprisonment for an intentional criminal offense;
2. who has been declared bankrupt as a sole proprietor or general partner in a partnership;
3. who, during the two years preceding the date of the judgment declaring a company or cooperative to be bankrupt, was a member of its management or supervisory body;
4. … [who] is a sole proprietor [of a business], a general partner in a partnership, director, commercial representative, commercial agent, authorised representative, commercial broker, liquidator or insolvency administrator, member of a management or supervisory body of a company or cooperative, with the exception of companies in which [the BNB] has holdings;
5. who is the spouse, or cohabitee, or direct relative, or collateral relative up to the fourth degree, or relative by marriage up to the second degree of another member of the Governing Council [of the BNB].’
20. Article 12 of the Law on the BNB reads as follows:
‘…
(5) … The Governor and the Deputy Governors shall not engage in any activity other than teaching or activities as members of the bodies of companies in which the [BNB] has holdings or in international organisations related to the [BNB], unless if appointed by the acting Prime Minister in accordance with Article 99(5) of the Constitution of the Republic of Bulgaria. They may perform a non-remunerated activity following a unanimous decision of the Governing Council provided there is no conflict of interest.
…
(10) The Governor, Deputy Governors and other members of the Governing Council shall submit to the authority that elected or appointed them the declarations referred to in Article 49(1), point 3 of the Zakon za protivodeystvie na koruptsiata [(Law on Combating Corruption; “the ZPK”)]. …’
21. According to Article 14 of the Law on the BNB:
‘(1) The competent authority under Article 12 may dismiss a member of the Governing Council before the end of his or her term of office only if that member does not fulfil the conditions required for the performance of his or her duties or if he or she has been found guilty of serious misconduct for the purposes of Article 14.2 of the Statute of [the ESCB and of the ECB].
(2) … The grounds for early dismissal of a Deputy Governor or other member of the Governing Council, with the exception of the Governor, shall be established by decision of the Governing Council in accordance with a procedure determined by the Governing Council. The member of the Governing Council whose dismissal is proposed shall cease exercising his or her powers from the date of the decision of the Governing Council. The decision of the Governing Council may be appealed before the Varhoven administrativen sad [(Supreme Administrative Court)] within seven days. The Varhoven administrativen sad [(Supreme Administrative Court)] shall issue a final decision within 14 days of receipt of the appeal. The final decision shall be communicated to the authority competent under Article 12 for the early dismissal.’
2. Legislation in the area of the fight against corruption
22. It follows from the order for reference that two instruments of national legislation were, at different points in time, relevant to the facts in the main proceedings in the field of the fight against corruption: the Zakon za protivodeystvie na koruptsiata i za otnemane na nezakonno pridobitoto imushtestvo (Law on combating corruption and on the confiscation of illegally obtained assets; ‘the ZPKONPI’) and the ZPK.
23. First, according to Article 6(1), point 12 of the ZPKONPI (repealed as of 6 October 2023) and the similarly worded Article 6(1), point 12 of the ZPK, ‘persons holding [high-level(11)] public office for the purposes of this Law shall be’ ‘the Governor, the Deputy Governors, the members of the Governing Council and the Secretary-General of the [BNB]’.
24. Secondly, pursuant to Article 35(1) of the ZPKONPI and the similarly worded Article 49(1) of the ZPK:
‘(1) Persons holding [high-level (12)] public office … must make the following declarations:
1. declaration of incompatibility;
2. declaration of assets and interests;
3. declaration of any change in the circumstances set out in the declaration referred to in point 1;
4. declaration of any change in the circumstances set out in the declaration referred to in point 2 in the part relating to interests and the origin of funds in the event of early repayment of debts and loans.
(2) … The declarations referred to in points 1 and 3 of paragraph 1 must be submitted to the electing or appointing authority … and the declarations referred to in points 2 and 4 of paragraph 1 must be submitted to the Commission [for Anti-Corruption and Illegal Assets Forfeiture]’ [the latter reference having been replaced in Article 49(4) of the ZPK by the reference to the KPK].
25. Pursuant to Article 37 of the ZPKONPI and the similarly worded Article 51 of the ZPK:
‘(1) Persons holding [high-level (13)] public office … must submit to the Commission a declaration of assets and interests in Bulgaria and abroad, in which they declare:
…
12. [(14)] any participation in companies, [in partnerships], (15) in the management or supervisory bodies of companies, in non-profit legal entities or cooperatives, or the performance of an activity as a sole proprietor [of a business] at the time of their election or appointment and in the 12 months preceding the date of their election or appointment;
…’
26. Under Article 38(1), point 1 of the ZPKONPI, a declaration of assets and interests had to be submitted within one month of starting in the post of high-level public office. Article 38(2) provided that ‘within one month of the submission of the declaration of assets and interests, the person concerned may amend his or her declaration if that is necessary to eliminate any deficiencies or errors in the circumstances declared.’
27. That provision seems to have been replaced by Article 53 of the ZPK under which ‘persons holding public office shall make declarations in accordance with Article 49(1), points 3 and 4 within one month of the change occurring.’
28. Finally, Article 7 of the ZPK provides that ‘the authority responsible for preventing and combating corruption and for establishing conflicts of interests for the purposes of this Law shall be the [KPK].’
29. Under Article 13(1), point 8 of the ZPK, the KPK ‘shall check alerts made in connection with declarations of incompatibility from persons holding public office and, if incompatibility is established, refer the matter to the electing or appointing authority for the appropriate measures to be taken …’.
III. Facts, national proceedings and the questions referred for a preliminary ruling
30. MA was elected Deputy Governor of the BNB and Director of the Issue Department (one of the three main departments of the BNB) on 26 July 2023 by the Narodno sabranie na Republika Bulgaria (National Assembly of the Republic of Bulgaria).
31. On 27 July 2023, he submitted to the National Assembly a declaration of incompatibilities, in accordance with Article 35(1), point 1 of the ZPKONPI, read in conjunction with Article 11(4), point 4 and Article 12(5) of the Law on the BNB (‘the declaration of incompatibilities’).
32. On 11 August 2023, MA lodged an initial declaration of assets and interests with the KPK pursuant to Article 35(1), point 2 of the ZPKONPI. In that declaration, MA stated that he held 2% of the shares in a limited liability company (Iontech Engineering OOD) and valued that holding at 117 000 leva (BGN) (approximately EUR 58 500) (‘the first declaration of assets and interests’).
33. On 8 November 2023, MA sold his shares in Iontech Engineering for BGN 100 (approximately EUR 50).
34. On 13 November 2023, pursuant to Article 49(1), point 4 of the ZPK, MA notified the KPK of a change in the first declaration of assets and interests, estimating the value of his holding in Iontech Engineering at BGN 100 (approximately EUR 50). (16) He further indicated that, at the time of his appointment, he had been a member of the board of directors of two non-profit legal entities, namely the Balkanski-Panitsa institut za nauchni izdirvania (Balkanski-Panitza Institute for Advanced Study; ‘the Institute for Advanced Study’) and the Golf Klub Blagoevgrad (‘the Golf Klub’) (‘the second declaration of assets and interests’).
35. On 23 November 2023, the change of ownership referred to in point 33 above was entered in the commercial register. MA was removed as a member of the board of directors of the two non-profit legal entities from the register of non-profit legal entities on 15 December 2023 and 17 January 2024, respectively.
36. On 7 February 2024, MA submitted a further declaration of assets and interests to the KPK, pursuant to Article 49(1), point 4 of the ZPK (‘the third declaration of assets and interests’). In that declaration, he stated, in particular, that, on the date of his election or appointment, he did not hold any shares in a company and that he was not a member of a management or supervisory body of any non-profit legal entity or cooperative. He further declared that, during the 12 months preceding the date of his election or appointment, he had not held any interest in a company.
37. By decision of 24 June 2024, the KPK found, based on Article 13(1), point 8 of the ZPK, that there was an incompatibility in respect of MA in his capacity as Deputy Governor of the BNB as well as Director of the Issue Department of the BNB in relation, first, to his participation in Iontech Engineering and, secondly, to his activities, in the absence of authorisation from the BNB’s Governing Council, as a member of the board of directors of the two non-profit legal entities.
38. On 27 June 2024, the KPK notified the BNB and the National Assembly of that decision. At MA’s request, he was granted unpaid leave.
39. On 1 July 2024, MA brought an action against the KPK decision before the Administrativen sad Sofia-grad (Administrative Court, Sofia City, Bulgaria). (17)
40. On 16 July 2024, MA submitted written observations to the BNB’s Governing Council in which he disputed, inter alia, the existence of the grounds for his dismissal, requested evidence to be taken and asked to be heard in the presence of his lawyer.
41. On the same day, the BNB’s Governing Council adopted its decision finding that there were grounds for MA to be relieved of his duties as Deputy Governor and Director of the Issue Department.
42. More specifically, and taking account of the KPK decision, the BNB’s Governing Council concluded that MA did not satisfy the conditions required for the performance of duties. While it considered that that finding, in itself, constituted a sufficient ground for dismissal, it also took the view that the same conduct amounted to serious misconduct.(18)
43. MA ceased to perform his duties as Deputy Governor and member of the BNB’s Governing Council with effect from the date of the BNB decision. He challenged that decision before the referring court, which rejected his application for a stay of execution of the BNB decision and decided to stay the proceedings in order to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Are the criteria for dismissal of the Governor and the procedure for challenging the dismissal decision laid down in Article 14.2 of the [Statute of the ESCB and of the ECB] to be interpreted as applying to all members of the decision-making bodies of a national central bank?
(2) If Question 1 is answered in the negative: Does Article 14.2 of the [Statute of the ESCB and of the ECB] permit national legislation which introduces the same criteria for the dismissal of members of the decision-making bodies of a national central bank as those laid down for the Governor by that legislative provision?
(3) Does Article 14.2 of the [Statute of the ESCB and of the ECB] permit the holding of the office of Governor of a national central bank to be compatible with being a shareholder in a capital company who is entitled to a share of the profits of the company in relation to his shareholding?
(4) Does Article 14.2 of the [Statute of the ESCB and of the ECB] permit the holding of the office of Governor of a national central bank to be compatible with being a member of the management body of a non-profit legal entity which, according to its statutes, may engage in an economic activity, without a unanimous decision by the board of directors of a national central bank being adopted, as required by national law for performing a non-remunerated activity?
(5) Do Article 131 [TFEU] and Article 7 of the [Statute of the ESCB and of the ECB] permit national legislation which requires the members of the decision-making bodies of a national central bank, in their capacity as persons holding public office as defined by national law, to declare to the competent public authority, within a specified period of time from taking office, their participation as shareholders in capital companies and their participation in the management bodies of non-profit legal entities?
(6) Do Article 131 [TFEU] and Article 14.2 of the [Statute of the ESCB and of the ECB] permit national legislation which requires a Governor of a national central bank, in his [or her] capacity as a person holding public office as defined by national law, to take, within a specified period of time from taking office, measures to put an end to his [or her] participation as a shareholder in a capital company and his [or her] participation as a member of the management bodies of non-profit legal entities?
(7) Does Article 14.2 of the [Statute of the ESCB and of the ECB] permit an interpretation to the effect that a Governor of a national central bank, who has eliminated an incompatibility with his [or her] holding of office outside the statutory period of time, is to be treated as not fulfilling the conditions required for the performance of his [or her] duties?
(8) Do Article 131 [TFEU] and Articles 7 and 14.2 of the [Statute of the [ESCB and of the ECB] permit national legislation which allows the authority responsible for establishing the grounds for dismissal to assess, for the purposes of and in the context of that particular procedure, whether the person concerned has been guilty of serious misconduct within the meaning of Article 14.2 of the [Statute of the ESCB and of the ECB]?’
44. Written observations have been submitted by MA, the BNB, the Spanish Government, the ECB and the European Commission. Those interested persons presented oral argument at the hearing, which took place on 18 November 2025.
IV. Assessment
45. I recall that the case in the main proceedings originates from the information provided by MA, in the form of a number of declarations submitted in accordance with the applicable legislation, following his appointment as Deputy Governor of the BNB and concerning his shareholding in a company and his positions in non-profit legal entities. Against that background, I will begin my analysis with Question 5, by which the Court is asked to examine, in the light of the principle of the independence of the national central banks, the compatibility of the obligation imposed on a member of the decision-making body of such a bank, such as the deputy governor, to declare situations such as those described above (A). I note, next, that the decision finding it necessary to relieve MA of his duties was based on the view that those situations fell within the grounds for dismissal laid down in Article 14.2 of the Statute of the ESCB and of the ECB. I will therefore turn to Questions 1 and 2, by which the Court is invited to determine whether that provision is applicable to the circumstances of the present case (B). I will proceed by addressing the doubts expressed by the referring court as to whether the applicable provisions of EU law permit the conclusion that interests such as those disclosed in the main proceedings may justify the dismissal of a (deputy) governor of a national central bank, and whether such a conclusion may be reached where the necessary remedies have not been pursued within the applicable time limits (Questions 3, 4, 6 and 7) (C). Finally, I will address Question 8, by which the Court is asked to determine whether Article 14.2 of the Statute of the ESCB and of the ECB allows the national body competent for establishing the grounds for dismissal to assess whether ‘serious misconduct’, as one of two grounds for dismissal provided for in that provision, has been established (D).
A. The declaration of shareholdings in companies and of participation in the management bodies of non-profit legal entities (Question 5)
46. By its fifth question, the referring court asks, in essence, whether the provisions of EU law enshrining the principle of the independence of the central banks (Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB) permit national legislation which requires the members of a decision-making body of a national central bank to declare to the competent public authority, within a specified period from taking office, their participation as shareholders in companies and in the management bodies of non-profit legal entities. I recall, in that regard, that those provisions of EU law express the principle of the independence of the national central banks, which applies to all members of the decision-making bodies of all such banks, irrespective of whether or not they are part of the euro area. (19)
47. At the outset, I should clarify that I understand the reference, in the wording of the question, to ‘the competent public authority’ to mean the KPK. That point is not without importance, since the applicable national legislation provides for two types of declarations: a ‘declaration of incompatibilities’, to be submitted to the appointing body, the National Assembly; and a ‘declaration of assets and interests’, to be submitted to the KPK. It is, in my view, only the latter category that appears relevant for the purposes of the present assessment.
48. In that respect it follows from Article 37(1), point 12 of the ZPKONPI and from the similarly worded Article 51(1), point 13 of the ZPK that a person holding office, in particular that of deputy governor of the BNB, is required to declare to the KPK, inter alia, any participation in companies and in the management or supervisory bodies of non-profit legal entities or cooperatives at the time of their appointment and during the 12 preceding months.
49. It should be added that, as is apparent from the case file, the KPK is an independent, specialised and permanent administrative authority entrusted with responsibilities in the field of preventing and combating corruption and identifying conflicts of interests. (20) As in the present case and as I will explain in more detail in Part D of the present Opinion, the KPK decision may trigger action on the part of the BNB’s Governing Council with a view to determining whether a ground for dismissal within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB has been established.
50. In the light of those elements, I fail to see how an obligation imposed on a member of the decision-making body of a national central bank, such as the deputy governor, to submit declarations to a body such as the KPK, disclosing their participation in profit and non-profit entities, could give rise to an incompatibility with the principle of the independence of the national central banks. On the contrary, as argued by the BNB, the Spanish Government, the ECB and the Commission, that obligation contributes to preserving that independence. It is precisely through scrutiny of such declarations that potential threats to the independence of a central bank may be identified and, where necessary, addressed.
51. That said, where the mechanism for such declarations is linked to a subsequent procedure intended to establish the existence of a ground for dismissal within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB, it is, of course, essential that the conditions governing those declarations be clearly defined, as regards both the situations to be disclosed and the applicable time limits.
52. In that respect, and subject to verification by the referring court, the applicable provisions of national law, as recalled in point 48 above, appear to define with sufficient clarity the obligation to disclose participation in profit and non-profit entities.
53. Moreover, it follows from the wording of the fifth question and from the order for reference that the time limit for submitting the relevant declaration begins to run as soon as the person concerned takes office, and up to one month. (21) In the abstract, and in the absence of any specific arguments to the contrary, such a period appears to strike a reasonable balance between the need to safeguard the independence of the central bank – which would militate against an excessively long time limit in relation to the duration of the deputy governor’s mandate – and the need to allow the person concerned sufficient time to comply with the obligation at issue.
54. I therefore take the view that Article 130 TFEU and Article 7 of the Statute of the ESBC and of the ECB do not preclude rules of national law requiring that the deputy governor of a national central bank submit to the competent national authority a declaration disclosing his or her participation as a shareholder in a company, or his or her participation in the management bodies of a non-profit entity.
55. That conclusion allows me to turn to the next issue, which concerns the possibility of relieving of office such a member of a national central bank’s decision-making body, where the information disclosed leads to the conclusion that one of the grounds for dismissal laid down in Article 14.2 of the Statute of the ESCB and of the ECB is established.
B. The applicability of Article 14.2 of the Statute of the ESCB and of the ECB (Questions 1 and 2)
56. In this section I will explain that the criteria governing the removal from office of a governor of a national central bank, laid down in Article 14.2 of the Statute of the ESCB and of the ECB (‘the removability test’), apply, as a matter of EU law, only to the governors of national central banks (1). I will then explain that Member States remain free to extend the applicability of that test to other members of the decision-making bodies of their national central banks (2).
1. The scope of Article 14.2 of the Statute of the ESCB and of the ECB (Question 1)
57. It should be recalled that, pursuant to the first subparagraph of Article 14.2 of the Statute of the ESCB and of the ECB, ‘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 five years.’ The same provision states, in the second subparagraph thereof, that ‘a Governor may be relieved from office only if he [or she] no longer fulfils the conditions required for the performance of his [or her] duties or if he [or she] has been guilty of serious misconduct.’ (22) That article also provides that a decision to that effect ‘may be referred to the Court of Justice by the Governor concerned or the Governing Council [of the ECB] on grounds of infringement of [the FEU Treaty] or of any rule of law relating to its application’.
58. It follows that Article 14.2 of the Statute of the ESCB and of the ECB contains three distinct rules. First, it lays down a rule on the minimum length of the mandate of the governor of a national central bank; secondly, it specifies two situations in which that mandate may be brought to an end prematurely (the ‘removability test’); and, thirdly, it establishes a specific remedy, conferring on the governor concerned and the Governing Council of the ECB locus standi to challenge such a decision before the Court of Justice.
59. The clear wording of that provision shows that, in all three respects, it applies only to governors and not to other members of decision-making bodies of national central banks.
60. That conclusion is, moreover, confirmed by the context of that provision and by the objectives which it pursues.
61. As already noted, Article 14.2 of the Statute of the ESCB and of the ECB complements Article 130 TFEU, reproduced in essence in Article 7 of that statute, which, as the Court has recalled, reflects the importance that the authors of the Treaties attached to ensuring that the ECB and the ESCB are able to carry out the tasks conferred on them independently. (23)
62. In that context, the Court emphasised in its judgment in Rimšēvičs that the purpose of the three rules contained in Article 14.2 of the Statute of the ESCB and of the ECB is ‘to guarantee the functional independence of the governors of the national central banks’ which, together with the ECB, constitute the ESCB. (24) Moreover, the particular features of the remedy provided for by the third rule of that provision – which constitutes a specific form of annulment action directed against a national measure (25) – led the Court to characterise the logic underpinning Article 14.2 of the Statute of the ESCB and of the ECB as encapsulating a ‘highly integrated system which the authors of the Treaties envisaged for the ESCB’. (26)
63. The Court further explained the rationale behind that regime by reference to the specific institutional link between the ‘euro area governors’ and the ECB, given that those governors are de iure members of the Governing Council of the ECB, the main decision-making body of both the ECB and the ESCB. (27) For the sake of completeness, I would add that, while that aspect illustrates with particular clarity the ‘highly integrated’ nature of the regime, Article 14.2 of the Statute is not, unlike certain other provisions thereof, limited in its application to euro-area Member States. Member States ‘with a derogation’, (28) within the meaning of Article 139(1) TFEU, participate in the ESCB in their own right, (29) which explains why the guarantees laid down in Article 14.2 of the Statute of the ESCB and of the ECB apply to them as well.
64. At any rate, contrary to what is argued by MA, the BNB, the ECB and the Spanish Government, neither the specific nature of the regime established by that provision nor, more generally, the need to safeguard the independence of the national central banks within the framework of the ECB (and of the ESCB) mean that the removability test laid down in Article 14.2 of the Statute of the ESCB and of the ECB applies, as a matter of EU law, to members of the decision-making bodies of the national central banks other than governors.
65. In line with the foregoing, and as the Commission also submits, while the particular role of governors within the ESCB – and, in particular, of ‘euro-area governors’ – explains why the provision under discussion is specifically addressed to them, the objective of preserving the independence of the national central banks cannot be relied upon in order to extend, contra legem, the personal scope of that provision.
66. However, as I will explain next, there is nothing in the rationale behind Article 14.2 of the Statute of the ESCB and of the ECB that prevents a Member State from providing, under its national law, that the removability test also applies to other members of the decision-making body of its national central bank, such as a deputy governor.
2. The extended applicability of the removability test (Question 2)
67. As already mentioned, the Bulgarian legislature decided, by Article 14(1) of the Law on the BNB, to make the removability test laid down in Article 14.2 of the Statute of the ESCB and of the ECB applicable to all members of the decision-making bodies of the Bulgarian central bank.
68. By its second question, the referring court asks whether such an extension is compatible with that provision of the Statute.
69. As already foreshadowed, I see no difficulty in that regard.
70. First, nothing in EU law prevents the Member States from drawing inspiration from a specific rule of EU law and making it applicable, under national law, to situations for which that rule was not originally designed.
71. Secondly, a contrary conclusion would be warranted only if such an extension of the scope of a rule of EU law were to undermine its effectiveness or infringe another rule of EU law.
72. In the circumstances of the present case, I note that, pursuant to Article 131 TFEU, the legislation of the Member States must be compatible with the Treaties and the Statute of the ESCB and of the ECB. That requirement points, in particular, to Article 130 TFEU and Article 7 of that statute, which, as already observed, enshrine the principle of the independence of the national central banks, applicable to all members of their decision-making bodies. That principle requires that those banks be shielded from political pressure in order to enable the ESCB to pursue its tasks effectively, in particular the maintenance of price stability, as provided for in Article 282 TFEU, through the independent exercise of the powers conferred on it. (30)
73. In that light, I recall the Court’s explanation referred to above, according to which Article 14.2 of the Statute of the ESCB and of the ECB serves to safeguard the functional independence of the governors of national central banks. More specifically, as regards the removability test laid down in that provision, by limiting the possibility of early dismissal to the two situations defined therein, the authors of the Treaties equipped national central banks with a specific guarantee intended to ensure continuity and consistency in decision-making, protected from short-term political considerations. Given that that test preserves, in principle, the possibility for a governor to remain in office for the full duration of his or her mandate, the decision to extend that protection to all members of the decision-making body of a national central bank – who may likewise be involved in the performance of ESCB-related tasks – contributes to the functional independence of the institution as a whole, by ensuring that those members enjoy the same protection against arbitrary removal.
74. In that respect, it scarcely needs to be recalled that the tasks conferred on national central banks by EU law within the framework of the ESCB are not necessarily reserved to the governors alone. (31) Moreover, even where certain tasks are reserved to them, the Statute of the ESCB and of the ECB envisages the possibility that a governor may be replaced, as provided for in Article 10.2 thereof. (32)In the same vein, the European Monetary Institute, the historical predecessor of the ECB, observed in its convergence report of 1995 that the independence of the national central banks ‘would be further enhanced if the same rules [as those envisaged, in particular, by the removability test] were also applied to other members of decision-making bodies of [national central banks] dealing with ESCB-related tasks’. (33)
75. It follows that in reply to the first and second questions referred, Article 14.2 of the Statute of the ESBC and the ECB applies, as a matter of EU law, only to governors of national central banks. However, that provision does not preclude national legislation which makes the removability test laid down therein applicable also to the deputy governor of such a bank.
76. That conclusion allows me to turn to the examination of the next series of questions, which concern whether that provision of EU law allows for the finding that the grounds for relieving of office are established in the circumstances such as those of the present case.
C. The (im)possibility to hold certain assets and exercise certain activities (Questions 3, 4, 6 and 7)
77. By its third and fourth questions, the referring court asks, in essence, whether Article 14.2 of the Statute of the ESCB and of the ECB permits a situation in which the governor of a national central bank, first, holds a capital participation in a company entitling him or her to a share of that company’s profits (Question 3) and, secondly, sits, without the required authorisation, on the management body of a non-profit legal entity which may engage in an economic activity (Question 4).
78. By its sixth and seventh questions, the referring court further seeks to ascertain, first, whether the first limb of the removability test (‘the conditions required for the performance of … duties’) allows for an obligation of the governor to adopt, within a specified period following his or her taking office, measures intended to bring such participations to an end (Question 6) and, secondly, where those participations are terminated out of time, whether it permits the conclusion that that first limb of the test is satisfied (Question 7). (34)
79. In order to answer those questions, I shall examine the logic underpinning the removability test (1) and the implications flowing therefrom (2).
1. The removability test: general comments
80. The first point to recall is that Article 14.2 of the Statute of the ESCB and of the ECB limits the possibility for a Member State to remove a governor prematurely from office to two situations: where he or she no longer fulfils the conditions required for the performance of his or her duties or where he or she has been found guilty of serious misconduct. Member States are therefore not permitted to add to the list of the grounds justifying early dismissal. Whether a governor may be relieved from office must be assessed exclusively by reference to those two grounds. (35)
81. As already explained, the removability test is a specific instrument designed to safeguard the functional independence of the national central banks. The effective pursuit of that objective requires that governors may, in principle, remain in office for the full duration of their mandate, subject only to those two exceptions.
82. Secondly, the use of the verb ‘may’ in that provision indicates that, even where one of the grounds for dismissal is established, the governor does not have to be necessarily dismissed. Article 14.2 of the Statute of the ESCB and of the ECB thus confers on Member States a certain margin of appreciation as to whether dismissal should follow in the circumstances of a given case, subject, however, to the need to preserve the effectiveness of the guarantee of independence.
83. Against that background, I shall now examine the two grounds for dismissal in more detail.
(a) The failure to fulfil the conditions for the performance of duties
84. As regards the first ground for dismissal, I have already noted that it forms part of a broader test governing the circumstances in which a governor may be relieved from office. In the absence of any reference to the laws of the Member States, that test must be regarded as an autonomous concept of EU law. (36) However, since Article 14.2 of the Statute of the ESCB and of the ECB provides no indication as to the nature of the ‘conditions required for the performance of … duties’, the task of defining those conditions is, in principle, left to the Member States,(37) subject to certain limits which I shall set out below.
85. A comparative overview shows that the national legislation at issue adopts a variety of positions, as regards both the level of detail and the substance of the qualifying and disqualifying requirements for membership of the decision-making bodies of national central banks. Those conditions typically concern general attributes such as integrity, good reputation or recognised expertise, (38) or more specific requirements inspired by similar considerations, such as the absence of a criminal conviction or insolvency proceedings, or the possession of a university degree (whether in general or in a particular field, such as economics or finance). (39)
86. At the same time, Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB – which, again, apply to all members of decision-making bodies of national central banks – enshrine the objective of their independence. The effective pursuit of that objective entails certain constraints which the Member States have to respect, both when defining the conditions required for the performance of those duties and when assessing whether the first ground for dismissal under the removability test has been met.
87. In the present context, that general limit finds expression in two more specific requirements.
88. First, the conditions relating to the performance of the duties must be formulated with sufficient clarity to avoid abuse or instrumentalisation, without which recourse to the first ground for dismissal in Article 14.2 of the Statute of the ESCB and of the ECB could undermine the very effectiveness of that provision.(40) Rather than constituting a safeguard against external pressure and arbitrary dismissal, it could become a gateway for precisely those risks to materialise. The clarity of the rules governing the circumstances in which a member of a national central bank may hold office or be dismissed is therefore of paramount importance for the existence of a stable and impartial institutional environment.
89. That requirement of clarity does not, of course, preclude the use of open-ended conditions, such as those mentioned above (integrity, reputation and the like). In such cases, the assessment of whether those conditions are (still) fulfilled will necessarily involve an examination of multiple factors (which will rarely be necessary in the case of narrowly defined conditions, such as the absence of a criminal conviction). The level of generality with which those conditions are defined is, in my view, a factor that will affect the proportionality analysis to determine whether the person concerned may and should be relieved from office within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB, such analysis calling for a balancing, in particular, of the interest in safeguarding the bank’s independence against the interest in the stability of office.
90. Moreover, the autonomy of the Member States also allows them to lay down negative requirements identifying certain situations as being incompatible with office, irrespective of whether they give rise to a concrete conflict of interests. In other words, Member States may, in my view, require not only an absence of actual or potential conflicts of interests but also an absence of situations that may reasonably be perceived as such. Those prohibitions may range from absolute bans to regimes allowing for exceptions to be decided on a case-by-case basis.(41)
91. The approach of treating certain situations as being incompatible with office, irrespective of any actual or potential conflicts of interests, is justified by the fact that they may be perceived as typically liable to give rise, in the public mind, to doubts as to whether the members of the decision-making bodies of national central banks act in the public interest rather than on the basis of private ones. (42) Such doubts risk undermining the credibility of the institution itself, (43) and it is therefore legitimate for the Member States to seek to ensure that situations capable of producing that effect simply do not arise. (44)
92. Secondly, irrespective of whether the Member State opts for narrowly defined or open-ended conditions, the resulting framework must be comprehensive. In particular, where negative conditions (incompatibilities) are enumerated, the existence of an explicit list cannot render it impossible to address a conflict of interests arising in a situation not expressly covered by that list.
93. Although a conflict of interests is not, as such, listed as a ground for dismissal in Article 14.2 of the Statute of the ESCB and of the ECB, it scarcely needs to be emphasised that the absence of conflicts of interests is inherent in the requirement that the tasks entrusted to the central banks be performed independently, (45) in much the same way as impartiality is implied by the requirement of the independence of judges (46) or of the members of the European Court of Auditors. (47)
94. Where a conflict of interests arises without being caught by a predefined abstract category of incompatibility, a case-by-case assessment, applying the principle of proportionality, is in my view required in order to determine whether it may justify dismissal, as argued, in essence, by the ECB and the Spanish Government in the present proceedings. With that clarification, I shall now turn to the second limb of the removability test laid down in Article 14.2 of the Statute of the ESCB and of the ECB.
(b) Serious misconduct
95. I should start by observing that, in the absence of any reference in Article 14.2 of the Statute of the ESCB and of the ECB to national law, the concept of serious misconduct must be regarded as an autonomous concept of EU law. Since that concept is not defined, (48) it must be interpreted in accordance with the usual meaning of the terms in everyday language, while taking account of the objectives pursued by the rules of which it forms part and the context in which it is used. (49)
96. In its ordinary meaning, the adjective ‘serious’ denotes a certain degree of gravity, while the word ‘misconduct’ refers to ‘unacceptable or bad behaviour by someone in a position of authority or responsibility’. (50)
97. As regards the relevant context and objectives, three considerations, in my view, are of particular importance.
98. First, the concept of serious misconduct forms part of the guarantees designed to safeguard the independence of an institution against external interference in the performance of its tasks. It is, moreover, linked to a consequence as far-reaching as the dismissal of a governor of a national central bank, a measure which necessarily affects – even if only temporarily, pending replacement – the functioning of the ESCB and of the ECB. That is, in particular though not exclusively, where the governor of a national central bank of a euro-area Member State is concerned. (51) That consideration implies that the threshold for ‘serious misconduct’ cannot be set too low. (52)
99. Secondly, the same concept also serves to protect the credibility of the institution, and thereby its capacity to fulfil its duties, against internal conduct by its members that is liable to put those attributes in jeopardy. The independence enjoyed by the institution has, as its corollary, the accountability of its members, so as to ensure that their conduct does not have a knock-on effect on public trust in the institution. (53) That consideration requires the test to be sufficiently flexible to encompass any conduct which seriously affects either the institution’s ability to perform its duties or the confidence which the public places in the independence of its operation.
100. The assessment of both aspects described above must, by its very nature, be carried out on a case-by-case basis and take account of a range of factors, such as those identified by the ECB in the present proceedings; in particular, the nature of the breach, the circumstances in which it occurred, whether it resulted from intentional or grossly negligent conduct, the scale of the harm caused, and its concrete impact on the functioning of the institution or its public image.
101. Thirdly, I should add that, contrary to the submissions of the ECB and the Commission, I do not consider that the ground of serious misconduct is necessarily mutually exclusive with the ground relating to failure to fulfil the conditions required for the performance of duties. It is true that the failure to fulfil certain conditions will, in many cases, be unlikely to amount to serious misconduct. That, in my view, is typically so in the case of certain incompatible activities, where they are prohibited in the abstract, in the absence of any specific conflict of interest. However, it does not follow that a failure to fulfil a specific condition for the performance of the duties can never, in itself, constitute serious misconduct as well. In the same example, that could be the case where a prohibited activity is in fact pursued and gives rise to a conflict of interest affecting the independent operation of the institution or the public trust in its independent functioning. The failure to meet the condition of not having been criminally convicted may be cited as another illustration.
102. It is in the light of those general considerations that I shall now turn to the factual situations at issue in the main proceedings.
2. Consideration of the factual scenarios at issue (Questions 3, 4, 6 and 7)
103. The most appropriate way to build on the foregoing developments in the context of the present case is, first, to examine MA’s shareholding in the company (a) and, secondly, to address his involvement in the non-profit entities (b).
(a) The shareholding in a company (Questions 3, 6 and 7)
104. The first factual scenario which led the BNB to find that both grounds of removal under Article 14.2 of the Statute of the ESCB and of the ECB were satisfied concerns MA’s 2% shareholding in a company at the time of his appointment. I must confess that it is not entirely clear to me how that conclusion was reached, since it does not appear from the national legal framework as described in the order for reference that such a shareholding constitutes an ‘abstract’ incompatibility, irrespective of any actual conflict of interest, as the ECB and the Commission have also observed.
105. By way of explanation, I recall that Article 11(4), point 4 of the Law on the BNB classifies as incompatible with the office of, inter alia, deputy governor, the status of, inter alia, ‘a sole proprietor [of a business], a general partner in a partnership, director […or] a member of a management or supervisory body of a company or cooperative […]’. I also recall that Iontech Engineering, the company at issue, is described in the order for reference as a limited liability company in which MA held a 2% shareholding. That would suggest that MA’s situation does not fall within the scope of that provision although the BNB appears to take the view to the contrary. (54)
106. While that question is of course for the referring court to verify, I note that the third question referred proceeds on the premiss that shareholding in the company concerned is not, per se, prohibited by the applicable national law. I shall therefore adopt that premiss as the main hypothesis, and shall address the other hypothesis – namely that such shareholding is prohibited – only in the alternative and for the sake of completeness.
107. Turning to the main premiss, I do not consider that the principle of independence enshrined in Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB precludes a rule of national law that does not prohibit the deputy governor of a national central bank from holding a shareholding in a limited liability company, as the Commission has observed.
108. In that regard, I refer to my earlier observations concerning the autonomy of the Member States to lay down the applicable conditions for the performance of duties, subject to the obligation to provide for mechanisms capable of identifying conflicts of interests on a case-by-case basis.
109. I note, by way of analogy, that, as regards the President of the ECB, the applicable rules provide that ‘the management of [her] personal assets …, beyond the assets required for ordinary personal and family use, shall be organised in a manner that ensures their independence and the absence of conflict of interest and impedes any use of privileged information by the President.’ (55) More detailed provisions are set out in the ECB Code of Conduct and in the ECB Ethics Framework Guideline. None of those instruments excludes, in absolute terms, shareholdings in limited liability companies; rather, they establish mechanisms designed to detect and prevent conflicts of interests and misuse market-sensitive information. (56)
110. In that light, if the referring court were to conclude that the shareholding at issue is not caught by an abstract prohibition, it would follow that it must examine whether it gives rise to a conflict of interest, and could conclude that the first limb of the removability test is satisfied only if such a conflict is established and is of such a nature as to warrant the dismissal. That assessment must take account of all the relevant circumstances in order to determine whether they create an actual or a potential risk that a personal interest may influence, or may be perceived as influencing, the impartial and objective performance of the duties. Relevant factors may include, inter alia, the size of the shareholding and the rights attached to it, as well as the structure, size or activity of the company concerned. (57)
111. Moreover, in response to the relevant aspects of the sixth and seventh questions, I observe that, where a conflict of interest is identified on a case-by-case basis, the margin of appreciation inherent in the application of the removability test allows, in my view, for national legislation to make it possible for the conflict to be remedied within a specific and appropriate time limit, failing which the person concerned may then be regarded as no longer fulfilling the conditions required for the performance of the duties.(58) I understand those questions to imply that the national legal framework allows an ‘incompatibility’, within the meaning of national law, to be removed within one month, and that this possibility could also apply where a conflict of interest is identified on a case-by-case basis. As the ECB has submitted, whether such a period is adequate depends on the circumstances. I note in that context that it is not entirely clear what was regarded, in the present case, as the relevant starting point of that time limit, as the ECB has also observed. (59) Those matters are therefore for the referring court to determine.
112. Finally, the possibility of remedying a conflict of interest must itself be assessed in the light of the obligation to safeguard the independence of the national central banks, as enshrined, in particular, in Article 130 TFEU. In my view, the effectiveness of the protection which that independence must be given precludes recourse to such a remedy where the nature of the conflict of interest is such as to lead to the conclusion that public trust in the institution’s independence has already been undermined, or that the functioning of the institution has already been affected, or, moreover, it has given rise to ‘serious misconduct’ within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB.
113. Turning now to the second (alternative) scenario, namely that the shareholding of a deputy governor in a limited liability company is prohibited (which appears to be how the Commission understands the third question referred), I do not see in what way such a rule could be contrary to Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB.
114. It may, of course, be objected that not every shareholding in a limited liability company will give rise to a personal conflict of interest. On that basis, it could be argued that such shareholding does not necessarily place the independence of the decision-making body of a national central bank at risk, as the Spanish Government has suggested, and that a case-by-case assessment might therefore be preferable.
115. However, as I have already explained, the discretion enjoyed by the Member States in this field is rather broad, having regard, in particular, to the legitimate objective of preventing situations capable of giving rise to doubts as to whether the duties of a national central bank are being performed solely in the public interest, as the Commission has, in essence, argued. The pursuit of that objective – which is aimed not only at preventing actual conflicts of interests, but also at safeguarding the public image of the institution – is, by its very nature, not conditional upon whether the person concerned has a realistic opportunity to misuse information obtained in the performance of his or her duties.
116. Should the referring court conclude that the shareholding at issue was prohibited, I would refer it to my earlier comments concerning the possibility of remedying that situation, in so far as such a possibility appears to be provided for under the applicable national law.
(b) The unauthorised participation in non-profit entities (Questions 4, 6 and 7)
117. I recall that the second situation relied upon against MA is that, at the time of his appointment, he was a member of the board of directors of two non-profit entities capable of engaging in economic activity, namely the Institute for Advanced Study and the Golf Klub, without having obtained the prior authorisation required under Article 12(5) of the Law on the BNB. (60)
118. I note that MA argued at the hearing that that provision is too general to be regarded as laying down a condition for the performance of his duties. In that respect, its precise classification is, of course, for the referring court to determine in the light of all the relevant elements of domestic law. That said, the information contained in the order for reference, and the wording of that provision as presented, suggest that it does indeed establish a negative condition for the exercise of duties. (61) If that is so, it would constitute a condition necessary for the performance of duties, within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB.
119. In line with what I have stated earlier, and in agreement with the Commission, I consider that the Member States are free to lay down a general prohibition of all parallel activities, including non-renumerated ones, and to couple that general prohibition with the possibility of case-by-case authorisations, as appears to be the case under Article 12(5) of the Law on the BNB. I also consider that, where such a prohibition is not complied with, the conclusion that the conditions for the performance of duties are not fulfilled may be justified, provided that the conditions governing the request for authorisation are sufficiently clear.
120. Such a consequence may appear harsh, as the Commission has observed. However, as it has also noted, members of the decision-making bodies of a national central bank, such as a deputy governor, are entrusted with a particularly high level of responsibility and exercise significant influence over the manner in which that bank performs its duties. Their conduct is therefore especially liable to affect public perception of the national central bank’s operation. That, as I have already explained, justifies a Member State prohibiting certain situations or activities in which such members might otherwise engage, in order to prevent the independent operation of the bank from being put in jeopardy and to safeguard public trust that the bank acts without being influenced by the private interests of its members or third parties.
121. In that light, where national legislation requires a member of a national central bank, such as its deputy governor, not to hold any external position without authorisation, and where that requirement is not complied with, the Member States are, in my view, entitled to take the position that failing to draw the appropriate consequences under the first limb of the ‘removability test’ would deprive that requirement of its effectiveness and could undermine the confidence which the public places in the institution as a whole.
122. That said, and as I have already indicated, the conditions (even negative) for the performance of the duties must be sufficiently clear. In the present context, that entails, in particular, clarity as to the point in time when the authorisation must be obtained and regarding whether the applicable law provides for the possibility of remedying the incompatibility which may arise (should, in particular, the person concerned fail to request the authorisation). The existence of such a possibility appears, once again, to be implied by the sixth and seventh questions referred. Those matters are, of course, for the referring court to verify and assess in the light of the general considerations set out in the previous subsection.
123. In the light of the foregoing, I consider, in reply to the third, fourth, sixth and seventh questions, first, that Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB do not preclude national legislation which does not prohibit the deputy governor of a national central bank from having a shareholding in a limited liability company, provided that that legislation includes a mechanism enabling it to be determined whether, in the specific circumstances, such a shareholding gives rise to a conflict of interests capable of affecting the independent operation of the national central bank or the public trust in that independence. Where such a conflict of interests has been identified, and a possibility exists to eliminate it within a given period of time, Article 14.2 of the Statute of the ESCB and of the ECB must be interpreted as meaning that, if the person concerned fails to eliminate that conflict within that period, he or she may be regarded as no longer fulfilling the conditions for the performance of the duties, provided that the period allowed is adequate and that the point in time from which it runs is clearly defined.
124. Secondly, Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB do not preclude national legislation which prohibits the participation of a deputy governor in the management body of a non-profit legal entity without the authorisation of the competent body. Where national law makes it possible for such an incompatible activity to be terminated within a given period following the appointment, Article 14.2 of the Statute of the ESCB and of the ECB must be interpreted as meaning that, if the person concerned fails to terminate that activity within that period of time, he or she may be regarded as no longer fulfilling the requirements for the performance of the duties, on the condition that the period allowed is adequate and that the point in time from which it runs is clearly defined.
D. The scope of the BNB’s competence to establish the existence of serious misconduct (Question 8)
125. By its eighth question, the referring court asks whether Article 131 TFEU, together with Articles 7 and 14.2 of the Statute of the ESCB and of the ECB, permit national legislation which allows the authority responsible for establishing the grounds for dismissal to assess, for that purpose, whether the person concerned has been guilty of serious misconduct, within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB.
126. In my view, that question may be given a very short answer: not only does EU law permit the competent authority to carry out such an assessment, but it also requires it to do so.
127. In order to develop that position, I shall first address the domestic-law context and the circumstances of the case which appear to have given rise to the eighth question (1). I shall then set out my legal assessment (2). Finally, since several of the interested persons have emphasised the importance of judicial review in the present context, I shall return to that aspect by way of conclusion (3).
1. The domestic-law context and the circumstances of the case
128. I recall that, under the applicable national law, it is for the BNB’s Governing Council to determine whether one of the grounds for dismissal of one of its members (other than the governor) is present. (62) I also recall that those grounds, for all members, are those referred to in Article 14.2 of the Statute of the ESCB and of the ECB. Although the BNB decision found that both grounds were satisfied in respect of MA, the eighth question concerns only the ground of serious misconduct.
129. The BNB decision was adopted following the KPK decision concerning the incompatibilities between MA’s position, in particular as the BNB’s Deputy Governor, and his participation in the limited liability company and the two non-profit entities concerned. (63)
130. In that regard, it follows from the order for reference that the KPK is entrusted, more generally, with determining the existence of incompatibilities between certain public offices, including those of the governor and deputy governor of the BNB, and other activities pursued by the holders of those offices. Under Article 13(1), point 8 of the ZPK, when an incompatibility is established, the KPK refers the matter to the competent public body for further action. I understand that this occurred when the KPK notified the National Assembly and the BNB of its findings concerning MA.
131. The referring court further explains that the BNB’s Governing Council is bound by the KPK decision as regards the existence of the incompatibility. Although the referring court adds that, in the present case, the BNB’s Governing Council verified the existence of those incompatibilities by consulting publicly available sources, such as commercial registers, I understand that explanation as meaning, first, that the Council is bound by the KPK’s factual findings and legal classification as ‘incompatibilities’ within the meaning of national law, and, secondly, that that decision constitutes a mandatory trigger for the BNB to examine whether the incompatibilities in question amount to grounds for dismissal.
132. Lastly, it follows from the order for reference that MA challenged the legality of the KPK decision before the Administrativen sad Sofia-grad (Administrative Court, Sofia City). MA, the BNB, the Commission and the ECB state in their written observations that that court declared, on 11 December 2024 (that is to say, after the present reference was made), the KPK decision to be null and void. Subject to verification by the referring court, according to MA and the Commission the reasons for that annulment relate to the formal unlawfulness (the KPK allegedly lacked a mandate from the National Assembly during the relevant period) and to the substance of the decision (the facts considered did not constitute an incompatibility), as well as to other aspects (in particular, the failure to notify MA of the proceedings and the incomplete nature of the evidence gathered).
133. For its part, the BNB observes that that annulment judgment has been appealed by the KPK, that appeal being pending before the referring court in separate proceedings. In response to those developments, MA submits, in the present proceedings, that the BNB decision – adopted following the KPK decision – cannot be upheld because it constitutes a direct and automatic consequence of that decision, whereas the BNB maintains that its decision rests on independent grounds. That issue, including the effects which the annulment of the KPK decision may have is, if confirmed on appeal, of course for the referring court to resolve. I understand, however, that the lawfulness of the BNB decision remains, in any event, one of the matters which that court is called upon to assess, albeit from a different perspective.
2. The merits of Question 8
134. I note that the provisions of EU law at issue, namely Articles 130 and 131 TFEU and Articles 7 and 14 of the Statute of the ESCB and of the ECB, do not contain any rule governing the conditions for exercising the competence of the body that is entrusted, under national law, with establishing the existence of the grounds for dismissal within the meaning of Article 14.2 of that statute.
135. That aspect thus falls within the discretion of the Member States which is subject to the need to preserve the practical effectiveness of the above provisions of EU law (while ensuring consistency with the rights guaranteed by EU law, in particular by the Charter of Fundamental Rights of the European Union). (64)
136. In the present context, the above means in particular that the competence with which the competent authority (in casu the BNB’s Governing Council) is endowed must allow for an effective preservation of the independence of the national central bank and, therefore, for the effective assessment of the elements that form part of the removability test set out in Article 14.2 of the Statute of the ESCB and of the ECB.
137. In that respect, first, I consider that the principle of the independence of the national central banks does not, per se, prevent a situation where the findings of another body, such as the KPK, trigger an action on the part of the authority, such as the BNB’s Governing Council, which is competent to assess the existence of grounds for dismissal.
138. Indeed, it seems to me that various bodies within the public administration may be entrusted with specific mandates to survey the proper functioning of that administration. I note, by analogy, that the Court found no infringement of the independence of the ECB in the fact that the EU legislature granted the European Anti-Fraud Office (OLAF) powers of investigation in the area of fraud prevention capable of applying to the ECB. (65) The Court emphasised that the ECB’s independence, enshrined in Article 130 TFEU (then Article 108 EC), ‘does not have the consequence of separating [the ECB] entirely from the European Community and exempting it from every rule of Community law’. (66) That reflects the more general idea that the central banks’ independence does not require clinical isolation from other parts of the public administration but (merely) isolation from external influences that preserves its capacity to perform its tasks independently.
139. Returning to the circumstances of the present case, the abstract statement that the requirement for independence does not preclude a specific triggering system (which obliges the competent authority such as the BNB’s Governing Council to act) does not mean that any such mechanism is compatible with the above principle, irrespective of the ways in which it operates and irrespective of its features. I note, again by analogy, that in the case cited above, the Court referred to various guarantees providing OLAF with independence, ensuring that it act in full observance of EU law, to achieve a clearly delineated purpose through means that are specifically listed. (67) That said, in the absence of any arguments that the operation of the KPK was as such flawed, I limit myself to that general statement. (68)
140. Secondly, the requirement of the principle of the independence of the central banks does not exclude the BNB’s Governing Council being bound by the KPK decision and their legal qualification as an ‘incompatibility’ as defined under national law. Thus, I am of the view that the principle of the independence of the national central banks does not require (and thus empower) the authority which is competent to establish the grounds for dismissal to review and replace the legal effects of domestic administrative acts (including the factual findings gathered and the legal qualifications made). That observation stands, in my view, even when that authority is the body of a national central bank. Unless specific rules of national law provide otherwise, a contrary conclusion would imply that that competent authority may encroach upon the powers of other public administrative bodies, as the BNB warned, in essence, at the hearing. (69) The opposing position would further mean that the authority which is competent to establish the grounds for dismissal could substitute itself for the respective administrative body (such as the police, tax authorities and so on) which could, moreover, result in diverging decisions concerning the same factual situation and their legal qualification under the same legislation being adopted, in breach of the principle of legal certainty.
141. Thirdly, the effective pursuance of the objective of ensuring the independence of the central banks, however, excludes any automaticity in the assessment of whether a ground for dismissal exists, as argued by MA, the BNB and the Spanish Government. In other words, the effective protection of the independence of the national central banks does not allow for a rule of national law that would require the competent authority to conclude automatically, without any autonomous assessment, that a ground for dismissal is established by merely extrapolating such a conclusion from factual and legal findings made by another authority under a specific set of national rules that pursue a different objective (irrespective of the fact that that objective may be related to the one pursued by the removability test at issue here). Such rubberstamping would defy the very logic of having the autonomous grounds for dismissal in the first place, as well as the possibility to proceed to a case-by-case assessment where that assessment is called for. (70) I note that the issue of whether the BNB’s Governing Council undertook an autonomous assessment of the grounds for dismissal is in dispute between the parties to the main proceedings, and that aspect is of course a matter for the referring court to verify.
142. Fourthly (and finally), where the competence to establish the grounds for dismissal is conferred upon an authority without there being any further rules potentially empowering other bodies to trigger the procedure before it (which, subject to the verification of the referring court, seems to be the case of the BNB’s Governing Council (71)), I consider that the competent authority has to have the power to initiate the procedure of its own motion. Under such circumstances, I do not see any other solution that would ensure the effectiveness of the removability test under Article 14.2 of the Statute of the ESCB and of the ECB and, by extension, the effectiveness of the protection of the independence of the central banks.
143. Indeed, as I understand the situation under the national law at issue, the obligation for the KPK to seise the BNB’s Governing Council is limited to situations defined as ‘incompatibilities’ under national law. However, the situations that may constitute serious misconduct within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB may be manifold. While I have clarified the criteria that should guide the application of that concept, the factual situations capable of being classified as serious misconduct cannot be exhaustively listed in advance. Consequently, the definition of ‘incompatibilities’ under the respective legislation cannot capture every scenario that might be relevant for the purpose of Article 14.2 of the Statute of the ESCB and of the ECB. That, in my view, requires that the authority responsible for establishing whether a ground for dismissal based on serious misconduct exists should act of its own motion where relevant facts are brought to its attention or come to light as a result of its own investigation, indicating that the independence of the central banks may be undermined, as argued, in essence, by the BNB and the Spanish Government.
144. For that purpose, the competent authority must in my view be allowed to gather as much relevant evidence as is legally possible under the respective legislation, including in cooperation with the competent bodies or by consulting publicly available information, such as that found in the public commercial registers, to reach an informed conclusion about whether the ground for dismissal of serious misconduct has arisen, in full respect of the rights of defence of the person concerned. (72)
145. In the light of the above considerations, I conclude that Article 130 TFEU and Articles 7 and 14.2 of the Statute of the ESCB and of the ECB must be interpreted as requiring the authority responsible for establishing the grounds for dismissal to be allowed to assess, for that purpose, whether the person concerned is to be found guilty of serious misconduct within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB.
146. While that conclusion provides a reply to the eighth question, I wish to react to specific arguments made by some of the interested persons concerning judicial oversight within the overall process.
3. Judicial oversight within the process
147. Two distinct lines of argument have been developed in the course of the present proceedings, each relating to a different aspect of judicial review.
148. First, the ECB, supported at the hearing by the Spanish Government, submitted that a finding of serious misconduct should be preceded by a judicial decision.
149. More specifically, the ECB argued that, while the principle of irrevocability inherent in the independence of the central banks requires the competent authority to assess the gravity of the misconduct and the proportionality of the dismissal, it is for an independent court to determine, in the first place, whether misconduct has occurred. That conclusion is, according to the ECB, suggested by the wording of Article 14.2 of the Statute of the ESCB and of the ECB in certain language versions.(73)
150. I am not convinced by that position. While the expression ‘guilty of serious misconduct’ in some of the language versions might, prima facie, be read as referring to a prior judicial finding of guilt (for a criminal offence), (74) other language versions refer more broadly to serious misconduct having been ‘committed’, (75) which does not imply such a requirement.
151. Moreover, that interpretation would be at odds with the objective pursued by Article 14.2 of the Statute of the ESCB and of the ECB, namely the protection of the independence of the central banks. Although conduct seriously undermining the independence of an institution may also constitute a criminal offence and may ultimately be the subject of criminal proceedings, such proceedings may in any event take considerable time. As the ECB itself acknowledged, there may be situations in which the competent authority must be able to act swiftly, on the basis of the available evidence, including in cases where the evidence is overwhelming (CCTV footage, for example) or the facts are clear and undisputed (such as a confession). (76)
152. That said, I agree with MA, the Commission and the ECB that, where the decision establishing a ground for dismissal is taken by a body which is not a court, effective judicial review in accordance with Article 47 of the Charter of Fundamental Rights must be available. (77)
153. In that context, the Commission has expressed doubts regarding the compatibility with the right to effective judicial protection of the time limits laid down in the national legislation, which provide, in essence, for a very short period to bring an action and an equally short period for the court to rule. It referred, in that respect, to the ECB’s convergence report of 2024, which identifies ‘the short time limit for the appeal and the very constrained timeframe for the judicial procedure in [now Article 14(2) of the Law on the BNB] as a residual imperfection’. (78) This is also reflected in the convergence report of 2025. (79)
154. Prima facie, I share those concerns. However, no question has been referred to the Court on that issue, which has therefore not been fully debated before it. I also note that the Bulgarian Government did not participate in the present proceedings. In those circumstances, I do not consider it appropriate to examine that issue here.
155. Should the Court nevertheless wish to address it, in particular as regards the very short time limit imposed on the referring court (which appears to be relevant, once the Court gives its reply in the present case), I would make the following brief observations.
156. In general, the existence of time limits for judicial review is not, as such, problematic, since such limits serve the legitimate aim of ensuring the expeditious conduct of proceedings. It is, however, difficult to assess in the abstract whether a particular time limit is appropriate in all circumstances. What may be adequate in one situation might prove insufficient in another. (80)
157. In the present context, the necessity to ensure the continuity of the functioning of the national central bank admittedly justifies the need for swift judicial review. At the same time, the importance of the decision at issue for the operation of the national bank concerned and its potentially serious consequences for the person concerned, together with the need to respect the rights of the defence, may make it impossible for the national court to complete its review within an extremely short period of time. If such a situation were to arise, I consider that the national court must be able to disregard that time limit and to deliver its decision as soon as possible thereafter. (81)
V. Conclusion
158. In the light of the foregoing, I propose that the Court reply to the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) as follows:
(1) Article 130 TFEU and Article 7 of the Statute of the European System of Central Banks and of the European Central Bank (‘the Statute of the ESCB and of the ECB’)
must be interpreted as not precluding rules of national law requiring a member of the decision-making body of a national central bank, such as a deputy governor, to submit to the competent national authority a declaration disclosing his or her interests, such as his or her participation as a shareholder in a company, or his or her participation in a management body of a non-profit entity (Question 5).
(2) Article 14.2 of the Statute of the ESCB and of the ECB
must be interpreted as being applicable, as a matter of EU law, only to governors of national central banks. However, that provision must be interpreted as not precluding national legislation which makes the substantive conditions defined therein, under which a governor of a national central bank may be prematurely relieved from office, applicable also to the deputy governor of such a bank (Questions 1 and 2).
(3) Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB
must be interpreted as not precluding national legislation which does not prohibit the deputy governor of a national central bank from having a shareholding in a limited liability company, provided that that legislation includes a mechanism enabling it to be determined whether, in the specific circumstances, such shareholding gives rise to a conflict of interests capable of affecting the independent operation of the national central bank or the public trust in that independence. Where such a conflict of interests has been identified and a possibility exists to eliminate it within a given period of time following the appointment, Article 14.2 of that statute must be interpreted as meaning that, if the person concerned has failed to eliminate that conflict within that period, he or she may be regarded as no longer fulfilling the conditions for the performance of duties, provided that the period allowed is adequate and that the point in time from which it runs is clearly defined.
Article 130 TFEU and Article 7 of the Statute of the ESCB and of the ECB
must also be interpreted as not precluding national legislation which prohibits the participation of a deputy governor in the management body of a non-profit legal entity, without the authorisation of the competent body. Where national law makes it possible for such an incompatible activity to be terminated within a given period following the appointment, Article 14.2 of that statute must be interpreted as meaning that, if the person concerned has failed to terminate that activity within that period, he or she may be regarded as no longer fulfilling the requirements for the performance of duties, within the meaning of that provision, on the condition that the period allowed is adequate and that the point in time from which it runs is clearly defined (Questions 3, 4, 6 and 7).
(4) Article 130 TFEU and Articles 7 and 14.2 of the Statute of the ESCB and of the ECB
must be interpreted as requiring that the authority which is competent to establish the grounds for dismissal of a governor of a national central bank be empowered to assess, for that purpose, whether the person concerned has been found guilty of serious misconduct within the meaning of Article 14.2 of that statute (Question 8).