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

OPINION OF THE EUROPEAN CENTRAL BANK of 18 December 2025 on certain provisions relating to the interaction between national law and the Single Supervisory Mechanism and sector-specific banking rules (CON/2025/43) Introduction and legal basis

On 12 November 2025 the European Central Bank (ECB) received a request from the Italian Ministry of Economy and Finance for an opinion on a draft legislative decree on the comprehensive reform of the provisions on capital markets, of the Civil Code provisions on companies and on necessary amendments to ensure adequate coordination (hereinafter the ‘draft legislative decree’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union, as the draft legislative decree concerns the ECB’s tasks concerning the prudential supervision of credit institutions pursuant to Article 127(6) of the Treaty. In accordance with Article 17.5, first sentence, of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

1. Purpose of the draft legislative decree

1.1 The provisions of the draft legislative decree with respect to which this opinion is adopted have two main purposes. 1.2 First, the draft legislative decree aims to implement an organic reform of capital market rules in the Consolidated Law on Finance (TUF) and in the applicable corporate law. The key objectives of this reform include, inter alia, (a) supporting economic growth and access to capital, facilitating companies’ access to regulated markets and alternative financing and making companies more attractive to international investors; (b) increasing market transparency, ensuring effective delivery of market information; and (c) enhancing competitiveness and simplifying issuer rules, including participation thresholds, related-party transactions, and multiple voting rights systems, all of which affect corporate governance and systemic risk oversight. 1.3 Second, the draft legislative decree amends the TUF to clarify the division of competences between the ECB and the Banca d’Italia . The draft legislative decree introduces amendments to the TUF to the effect that (a) the ECB is competent for the authorisation, and for the revocation of such authorisation, of specific banking activities of supervised entities, such as investment services, portfolio management, and depository, safe keeping and custodian services; (b) the Banca d’Italia is competent to authorise

EN and supervise branches of non-Union banks and investment firms; and (c) the Banca d’Italia performs preparatory assessments in relation to ECB decisions and remains the national point of contact within the Single Supervisory Mechanism (SSM). Furthermore, the draft legislative decree also provides for derogations to ordinary Italian Civil Code governance and ordinary TUF governance with respect to sector-specific banking rules. It provides that, apart from credit institutions whose supervision is directly regulated by Union legislative provisions, the Banca d’Italia is exclusively competent for assessing (a) the suitability of shareholders and (b) the suitability of corporate officers (administrators, auditors) of supervised entities . Finally, the draft legislative decree provides for the standard of liability applicable to non-executive directors .

2. General observations

2.1 By way of background, Article 9(1) of Council Regulation (EU) No 1024/2013 (hereinafter the ‘SSM Regulation’) provides that, for the exclusive purpose of carrying out the tasks conferred on it by, inter alia, Article 4(1) of that Regulation, the ECB is to be considered the competent authority in the participating Member States as established by the relevant Union law. Under Article 9(1), second subparagraph, the ECB is also granted all the powers and obligations which competent authorities have under the relevant Union law, unless otherwise provided for by the SSM Regulation. In particular, Article 14 of the SSM Regulation confers on the ECB the power to adopt decisions concerning the authorisation to take up the business of a credit institution, which applies to the activities subject to mutual recognition within the meaning of Annex I to Directive 2013/36/EU of the European Parliament and of the Council (e.g. investment services), as well as to other regulated activities which require authorisation under national law. This is confirmed by Article 78(5) of Regulation (EU) No 468/2014 of the European Central Bank (ECB/2014/17) (hereinafter the ‘SSM Framework Regulation’), according to which the decision granting authorisation covers the applicant’s activities as a credit institution as provided for in the relevant national law. 2.2 The ECB considers that certain provisions of the draft legislative decree reiterate or reproduce relevant provisions of Union law by referring to responsibilities of the ECB and of the Banca d’Italia under the SSM Regulation . However, such reproduction may create uncertainty both as to the legal nature and origin of the applicable provisions and as to the date of their entry into force. This would not align with

EN the principle of the uniform application and interpretation of Union law throughout the Union . Moreover, if a national provision uses wording different from the relevant Union provision, it creates regulatory content of its own, which is not in line with the Union’s exclusive competence in the respective matters. 2.3 The incorporation of some elements of directly applicable provisions of Union law into national law is warranted only in exceptional circumstances for the sake of coherence and in order to make them comprehensible to the persons to whom they apply . If such exceptional circumstances do exist, the reproduction of elements of directly applicable provisions of Union law should be done precisely, without modifying their wording and only to the extent warranted by the exceptional circumstances. However, such exceptional circumstances do not exist if the directly applicable provisions of Union law are sufficiently coherent and comprehensive, making it unnecessary to repeat them in national law . To the extent that national law necessarily reproduces directly applicable provisions of Union law for the abovementioned reasons, it should do so in an explicit manner and clarify that its provisions are either ‘in accordance with’ or ‘in compliance with’ the relevant provisions of Union law, where the latter are merely reproduced to put the national law in the larger context, or ‘without prejudice to’ the relevant provisions of Union law.

3. Observations regarding supervisory coordination and sector-specific governance

3.1 As concerns the proposed amendment to the TUF provisions noted in paragraph 1.3, the ECB reiterates that the cooperation between the ECB and the relevant national competent authorities is based on the framework provided for in the SSM Regulation, as further detailed by the SSM Framework Regulation. In particular, some of the provisions relate to the powers linked to the ECB’s exclusive competence to grant and withdraw authorisations to credit institutions in accordance with Article 4(1), point (a), and Article 14 of the SSM Regulation. The ECB invites the Italian authorities to consider deleting directly applicable provisions of Union law that may have been reproduced in the draft legislative decree. 3.2 However, the ECB also acknowledges that the proposed amendment aims at clarifying the cooperation between the ECB and the Banca d’Italia and the specific regime applicable to credit institutions within the broader scope of application of the SSM Regulation. The ECB understands that these provisions aim at making the draft legislative decree comprehensible to the persons to whom they apply and that, therefore, the reproduction of directly applicable Union law may exceptionally be appropriate in this specific case. Nevertheless, in the light of the general observations expressed in paragraph 2, the ECB

EN invites the Italian legislator to amend the relevant provisions by clarifying that those provisions must be read ‘in accordance with’, “in compliance with” or ‘without prejudice to’ the framework provided for in the SSM Regulation, as further detailed by the SSM Framework Regulation. 3.3 Finally, the ECB welcomes the amendments to the TUF and the Italian Civil Code with regard to the application of sector-specific banking rules and the standard of liability applicable to non-executive directors referred to in paragraph 1.3. The ECB considers that, for the companies subject to the supervision of the ECB or of the Banca d’Italia, the provisions of the TUF and the Italian Civil Code, as amended by the draft legislative decree, are aimed at ensuring the sound and prudent management of credit institutions and the stability of the banking and financial system as a whole. Hence, the ECB understands that such references to sector-specific banking rules may be appropriate in this specific circumstance. The same principle of ensuring the sound and prudent management of credit institutions suggests that it would be desirable to extend the derogations for sector-specific banking rules also with regard to the liability of non-executive directors.

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

Done at Frankfurt am Main, 18 December 2025.

[signed]

The President of the ECB

Christine LAGARDE