text: OJ L 189, 3.7.1998, p. 42.

text: See ECB Opinions:

text: of 11 May 2004 at the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the protection of savings;

text: of 6 October 2005 at the request of the Italian Ministry of Economy and Finance on an amendment to the draft law on the protection of savings concerning the Banca d’Italia;

text: of 23 December 2005 at the request of the Italian Ministry of Economy and Finance on an amendment to the draft law on the protection of savings concerning the Banca d’Italia;

text: of 25 August 2006 at the request of the Banca d’Italia on the amended Statute of the Banca d’Italia; and

text: of 3 November 2006 at the request of the Italian Ministry of Economic Affairs and Finance on a draft legislative decree exercising powers delegated under the Law on the protection of savings.

text: See ECB Opinion

text: of 7 June 2004 at the request of the Ministry of Finance of the Netherlands on a draft Financial Sector Supervision Act.

text: On this issue, see paragraph 10 of ECB Opinion

text: and paragraph 2.3 of ECB Opinion

text: See paragraph 11 of ECB Opinion

text: of 24 April 2002 at the request of the Belgian Ministry of Finance on a draft proposal for a law on prudential supervision of the financial sector and financial services.

text: Article 12 of the draft law.

text: Article 11 of the draft law. See also paragraph 9 of ECB Opinion

text: at the request of the Italian Ministry of the Treasury, Budget and Economic Planning under

text: Articles 109

text: f (6) and 109l (2) of the Treaty establishing the European Community, Article 5.3 of the Statute of the European Monetary Institute and

text: Council Decision 93/717/EC of 22 November 1993

text: on a draft legislative decree implementing Article 108 of the Treaty concerning the Ufficio Italiano dei Cambi.

text: See e.g. the ECB’s Convergence Report 2007, p. 19.

text: See paragraph 2.3 of ECB Opinion

text: of 25 July 2006 at the request of the Bank of Greece on a draft provision on the Bank of Greece’s powers in the field of consumer protection.

text: OJ L 309, 25.11.2005, p. 15.

text: See Articles

text: and

text: of Directive 2005/60/EC.

text: On this issue, see paragraph 14 of ECB Opinion

text: , paragraphs 7 and 8 of ECB Opinion

text: and Section 3 of ECB Opinion

text: See paragraphs 8 and 10 of ECB Opinion

text: , paragraph 5 of ECB Opinion

text: and paragraph 3.1 of ECB Opinion

title: Opinion of the European Central Bank of 18 June 2007 at the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the regulation and supervision of markets and the functioning of the competent independent authorities (CON/2007/17)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 18 June 2007 at the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the regulation and supervision of markets and the functioning of the competent independent authorities (

text: ) Introduction and legal basis

text: On 14 May 2007 the European Central Bank (ECB) received a request from the Italian Ministry of Economic Affairs and Finance for an opinion on a draft law on the regulation and supervision of markets and the functioning of the competent independent authorities (hereinafter the ‘draft law’) . The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third and sixth indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to the Banca d’Italia and rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The draft law was approved by the Italian Council of Ministers on 2 February 2007 and submitted to the Parliament on 5 March 2007. It is currently being discussed by the competent Senate committees. This opinion is based on the version of the draft law that the consulting authority sent to the ECB with its consultation request. The ECB notes that the preparation of the draft law is a dynamic process, whereby amendments may still be introduced. It stands ready to comment on any such amendments to the extent possible. 1.2 The aims of the draft law are to strengthen the existing legislative framework as regards the Italian authorities for the regulation and supervision of markets, to fill current lacunae and to eliminate overlapping jurisdictions. In particular, as regards the financial sector, the draft law further modifies the institutional supervisory framework in Italy and represents another step in the direction of the refinement of the Italian supervisory model on the basis of allocating regulatory and supervisory tasks to authorities in accordance with their objectives. The ECB has already been

text: consulted previously on other Italian draft legislative provisions which had as their aim the establishment of a functional supervisory model .

text: 2. Refinement of the supervisory model

text: 2.1 In general, the draft law further refines the current functional supervisory system regarding the financial sector. The Istituto per la Vigilanza sulle Assicurazioni Private e di Interesse Collettivo (ISVAP, the insurance supervisory authority) and the Commissione di vigilanza sui fondi pensione (COVIP, the pension funds authority) will be abolished by legislative decrees which must be adopted within one year from the date of entry into force of the draft law. These two bodies’ existing tasks and duties are allocated to the Banca d’Italia and the Commissione nazionale per le Società e la Borsa (CONSOB, the National Commission for Companies and the Stock Exchange), in accordance with their respective objectives. As a result, as stated in Article 7 of the draft law, there will be two supervisory authorities: the Banca d’Italia, which will be responsible for matters relating to the stability of financial institutions, and CONSOB, which will be responsible for matters relating to the transparency of the market and the propriety of conduct. Moreover, the Ufficio Italiano dei Cambi (UIC, the Italian Foreign Exchange Office) will be liquidated and its functions and assets attributed to the Banca d’Italia. 2.2 The ECB confirms its positive assessment of this supervisory model, which involves a functional division of responsibilities for supervising the financial sector , and welcomes the draft law’s aim of enhancing the model’s efficiency and effectiveness. First, the proposed institutional framework is oriented towards recognising the essential role of the central bank in promoting the safety and soundness of financial institutions and the stability of the financial system as a whole. Second, the chosen approach fully recognises the emergence of financial groups that provide different types of financial services and the need to address prudential concerns relating to such groups in a highly coordinated manner. However, careful attention should be paid to some elements of the new institutional framework, as further specified below. 2.3 The ECB notes that the Comitato Interministeriale per il Credito ed il Risparmio (CICR, Interdepartmental Committee for Credit and Savings) is proposed to be abolished and that the tasks and duties assigned to it by the consolidated Law on Banking (TUB) will be allocated to the Ministry of Economic Affairs and Finance and the Banca d’Italia by means of legislative decrees (which must be adopted within one year from the date of entry into force of the draft law). The ECB recalls its previous request for a clarification of CICR’s role, in particular with a view to

text: safeguarding the operational independence of supervisory authorities, which is an essential and internationally recognised standard . The ECB therefore welcomes the specific reference to ‘ensuring the independence of supervisory activities’ in

text: Article 10(1)

text: (g) as regards the matters to be specified by subsequent legislative decrees, which will regulate in detail the transfer of powers and resources between authorities and coordinate between existing laws concerning financial intermediaries and markets. The ECB stands ready to provide a further assessment of such matters when consulted on these legislative decrees. However, the reference in

text: Article 1(3)

text: to the ‘functions for the general direction and for the high supervision of the Government and of the Ministers’ in relation to the matters referred to in the draft law, particularly in connection with the cross-reference to this provision in

text: Article 9(4)

text: , might merit further clarification to safeguard the independence of supervisory authorities. 2.4 Furthermore, the ECB welcomes the improved accountability of supervisory action introduced by Article 18 of the draft law, which establishes a duty for supervisory authorities to consult stakeholders, give reasons for their decisions and explain the consequences of their actions. Indeed, supervisory independence must be accompanied by clear accountability as regards the action undertaken by the authorities. The ECB also notes that Article 21 of the draft law establishes an adhoc bicameral committee, to which all authorities will present annual reports, and welcomes the explicit prohibition of any interference by this committee in day-to-day supervision. 2.5 In addition, in line with the experience of other EU Member States, Article 9 of the draft law establishes a new Committee for Financial Stability (CFS), composed of the Minister for Economic Affairs and Finance (who will chair the CFS), the Banca d’Italia’s Governor and CONSOB’s President. The ECB welcomes the establishment of the CFS, as it responds to the need to promote financial stability and take coordinated action in financial crises that may have an impact on the entire financial system. The establishment of such coordination at national level is also in line with recommendations made at EU level. However, the ECB considers that the tasks attributed to such committees must not compromise the central bank’s independence, in particular with regard to the preservation of the stability of the financial system and crisis management, which may directly concern certain central bank functions .

text: 3. The UIC

text: 3.1 The ECB notes that the UIC’s tasks and duties will in the future be performed by the Banca d’Italia, including responsibility for anti-money laundering measures, which will be assigned in particular to the Financial Analysis Service . Moreover, an Anti-Money Laundering Committee

text: will be established within the Ministry of Economic Affairs and Finance . The ECB welcomes that the Committee will be established for coordination purposes only, without affecting the Financial Intelligence Unit’s independence. 3.2 The fact that the UIC and its tasks will be absorbed by the Banca d’Italia will constitute a transfer of additional powers to a national central bank (NCB). The ECB has always made clear that ‘Member States may not put their NCBs in a position where they have insufficient financial resources to carry out their ESCB- or Eurosystem-related tasks, as applicable’ . The ECB therefore expects that, in implementing the new structure, care will be taken to ensure that the Banca d’Italia’s operational capacity to carry out Eurosystem-related tasks will not be affected . 3.3 Directive

text: of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing requires that Member States ensure that their Financial Intelligence Unit ‘has access, directly or indirectly, on a timely basis, to the financial, administrative and law enforcement information that it requires to properly fulfil its tasks’. The Italian legislation implementing Directive

text: will therefore have to ensure that the Banca d’Italia is entrusted with such powers, in order to be able to request and receive all necessary information from the institutions and persons covered by that Directive .

text: 4. Relationship between the Banca d’Italia and the Competition Authority

text: Article 14(5) of the draft law provides that, in the event of a merger in the banking sector, the Banca d’Italia must issue a non-binding opinion within 30 days of receiving the relevant documentation. In the event of non-compliance with this obligation, the Autorità Garante della Concorrenza e del Mercato (AGCM, the Competition Authority) may adopt its decision without it. The ECB welcomes this solution, which reflects the principle of allocating powers to authorities in accordance with their respective objectives and maintains a clear distinction from the merger authorisation process .

text: 5. The Banca d’Italia’s ownership structure

text: 5.1 Pursuant to

text: Article 14(6)

text: and (7) of the draft law, upon a proposal by the Minister for Economic Affairs and Finance, the Government is delegated the power to adopt, within one year from the date

text: of entry into force of the draft law, a legislative decree redefining the criteria for participation in the Banca d’Italia’s capital and introducing limits on the possession of participation shares, as a guarantee of the Banca d’Italia’s independence, as well as criteria for the remuneration of participation shares, having regard to the public nature of the functions exercised. 5.2. The ECB reiterates what it has already stated in this regard in past opinions, in particular the need for the modified ownership structure to comply with central bank independence and the public nature of the Banca d’Italia. It expects to be consulted by the Italian Government on the relevant draft legislative decree .

text: 6. Compatibility with Article 14.2 of the Statute of the European System of Central Banks and of the European Central Bank

text: Article 16(6) of the draft law provides for a penalty of ‘termination’ if a member of the board of any of the authorities referred to in the draft law breaches the rules regarding conflicts of interest. The ECB would point out that Article 14.2 of the Statute contains an exhaustive list of the grounds for dismissal of Governors and other members of NCB decision-making bodies who are involved in the performance of ESCB-related tasks. Therefore, to avoid any incompatibility with Community law, the ECB strongly recommends that Article 16(6) of the draft law is listed in Article 16(8) of the draft law as one of the provisions which do not apply to Banca d’Italia.

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

text: Done at Frankfurt am Main, 18 June 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42.

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 20 June 2007 at the request of the Slovenian Ministry of Justice on a draft law amending the Law on payment transactions (CON/2007/18)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 20 June 2007 at the request of the Slovenian Ministry of Justice on a draft law amending the Law on payment transactions (

text: ) Introduction and legal basis

type: rubrik

text: On 1 June 2007 the European Central Bank (ECB) received a request from the Slovenian Ministry of Justice for an opinion on a draft law amending the Law on payment transactions (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the fifth indent of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to payment and settlement systems. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

type: stycke

text: 1. Purpose of the draft law

text: The draft law amends Article 29 of the Law on payment transactions concerning access to data in the register of transaction accounts. The main aim of the proposed amendments is to eliminate an administrative barrier. In addition, it is intended to accelerate enforcement proceedings and cut costs by facilitating direct court access to data in the register of transaction accounts. First, by amending

text: Article 29(3)

text: , the draft law provides that, during judicial proceedings, the courts may access the register of transaction accounts by the name, surname and address of the holder of transaction account, but without having to state the tax number. The waiver of the tax number related information for courts is expected to spare additional queries to courts and accelerate enforcement proceedings. Second, the proposed amendment to

text: Article 29(5)

text: provides that the courts, as opposed to other State authorities and holders of public office with which Banka Slovenije may conclude a contract on direct electronic access to data in the register of transaction accounts, will be entitled to directly access data in the register. Both amendments should accelerate enforcement proceedings and alleviate the courts’ workload.

text: 2. General observations

text: The ECB welcomes the draft law, which is expected to reinforce and accelerate court enforcement proceedings by facilitating access to data on natural persons in the register of transaction accounts. The ECB also expects that these amendments will not affect the protection of personal data for natural transaction account holders. Therefore, the ECB has no objections to the text of the draft law.

text: Done at Frankfurt am Main, 20 June 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET

type: vagledning

utgivare: ecb


text: KOM(2007) 257 slutlig.

text: KOM(2007) 260 slutlig.

text: SEK(2007) 836 slutlig.

text: SEK(2007) 837 slutlig.

sprak: sv

title: Europeiska centralbankens yttrande av den 5 juli 2007 på begäran av Europeiska unionens råd över ett förslag till rådets förordning om ändring av förordning (EG) nr 974/98 vad beträffar införandet av euron i Cypern, ett förslag till rådets förordning om ändring av förordning (EG) nr 974/98 vad beträffar införandet av euron i Malta, ett förslag till rådets förordning om ändring av förordning (EG) nr 2866/98 vad beträffar omräkningskursen till euron för Cypern samt ett förslag till rådets förordning om ändring av förordning (EG) nr 2866/98 vad beträffar omräkningskursen till euron för Malta (CON/2007/19)

text: Inledning och rättslig grund

text: Den 25 maj 2007 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande över ett förslag till rådets förordning om ändring av förordning

text: (EG) nr 974/98

text: vad beträffar införandet av euron i Cypern och ett förslag till rådets förordning om ändring av förordning

text: (EG) nr 974/98

text: vad beträffar införandet av euron i Malta. Den 4 juli 2007 mottog ECB en begäran från Europeiska unionens råd om ett yttrande över ett förslag till rådets förordning om ändring av förordning

text: (EG) nr 2866/98

text: vad beträffar omräkningskursen till euron för Cypern och ett förslag till rådets förordning om ändring av förordning

text: (EG) nr 2866/98

text: vad beträffar omräkningskursen till euron för Malta (nedan kallade de föreslagna förordningarna).

text: ECB:s behörighet att avge ett yttrande grundar sig på artikel 123.5 i fördraget om upprättandet av Europeiska gemenskapen. I enlighet med

text: artikel 17.5

text: första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: 1. Kommentarer

text: 1.1 De föreslagna förordningarna kommer, efter upphävandet av Cyperns och Maltas undantag i enlighet med förfarandet i artikel 122.2 i fördraget, att möjliggöra införandet av euron som Cyperns och Maltas valuta.

text: 1.2 ECB välkomnar de föreslagna förordningarna.


text: Ingressen till IGC-mandatet.

text: Punkt 4 i IGC-mandatet. I punkt 17 i IGC-mandatet kallas det för fördraget om Europeiska unionens funktionssätt.

text: Punkt 5 i IGC-mandatet.

text: Bilaga 1, punkt 3 i IGC-mandatet.

text: Bilaga 1, punkt 3 i IGC-mandatet.

text: Punkt 18 i IGC-mandatet.

text: Bilaga 2.B, punkt 16 i IGC-mandatet.

text: Punkt 22 i IGC-mandatet.

text: I samband med 2004 års regeringskonferens utfärdade ECB yttrandet

text: av den 19 september 2003 på begäran av Europeiska unionens råd om utkastet till fördrag om upprättande av en konstitution (EUT C 229, 25.9.2003, s. 7).

text: Bilaga 2.B, punkt 16 i IGC-mandatet.

text: Punkt 12 i IGC-mandatet.

text: Punkt 19a i IGC-mandatet.

text: Punkt 19a i IGC-mandatet.

text: Punkt 18 i IGC-mandatet.

text: Det vill säga i enlighet med den anpassning som 2004 års regeringskonferens enades om.

title: Europeiska centralbankens yttrande av den 5 juli 2007 på begäran av Europeiska unionens råd om inledandet av en regeringskonferens för att upprätta ett fördrag genom vilket de nuvarande fördragen ändras (CON/2007/20)

text: 1. Den 27 juni 2007 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande om inledandet av en konferens mellan företrädare för medlemsstaternas regeringar (regeringskonferens eller IGC) för att upprätta ett fördrag genom vilket de nuvarande fördragen ändras (reformfördraget).

text: 2. ECB:s behörighet att avge ett yttrande grundar sig på

text: artikel 48 i fördraget om Europeiska unionen

text: . I enlighet med artikel 17.5 första meningen i arbetsordningen för ECB har detta yttrande antagits av ECB-rådet.

text: 3. Mandatet för regeringskonferensen överenskoms vid Europeiska rådets möte i Bryssel den 21–22 juni 2007 och återfinns som bilaga till ordförandeskapets slutsatser (IGC-mandatet). Av IGC-mandatet framgår att det utgör den enda grunden och ramen för IGC. IGC ges mandat att upprätta ett reformfördrag som kommer att införa de nya idéer som blev resultatet av 2004 års regeringskonferens i fördraget om Europeiska unionen (EU-fördraget) och fördraget om upprättandet av Europeiska gemenskapen (EG-fördraget), som kommer att ombenämnas till fördraget om unionens funktionssätt.

text: 4. ECB välkomnar inledandet av regeringskonferensen. ECB utgår från att EU-fördragets ordalydelse, utöver vad som framgår av IGC-mandatet, inte kommer att ändras. ECB välkomnar särskilt att IGC-mandatet bekräftar att prisstabilitet är ett av unionens mål och att penningpolitiken uttryckligen anges som en av unionens exklusiva behörigheter. ECB välkomnar också ändringen av artikeln om unionens mål så att denna inkluderar upprättandet av en ekonomisk och monetär union vars valuta är euron.

text: 5. IGC-mandatet hänvisar uttryckligen till förbättringar av styrningen av euron genom att ange att de nya idéer som 2004 års regeringskonferens enades om kommer att införas i fördraget om unionens funktionssätt genom specifika ändringar på gängse sätt. ECB nämns uttryckligen och IGC ges mandat att föra in bestämmelserna som rör ECB i avsnitt 4a i del V av fördraget om unionens funktionssätt. IGC ges även mandat att till reformfördraget foga ett protokoll för att ändra de befintliga protokollen på det sätt som 2004 års regeringskonferens enades om. Detta inkluderar bl.a. ändringar av Protokollet om stadgan för Europeiska centralbankssystemet och Europeiska centralbanken.

text: 6. När det gäller ECB:s, Eurosystemets och Europeiska centralbankssystemets ställning, mandat, uppgifter och rättsliga ställning tolkar ECB det som att de förändringar av de gällande fördragen som införs av IGC kommer att vara begränsade till, och omfatta alla, de nya idéer som 2004 års regeringskonferens enades om.

text: 7. Med beaktande av de nya idéer som 2004 års regeringskonferens enades om avseende styrningen av euron, hänvisar bilagan till det här yttrandet till några som har särskild betydelse för ECB och, i förekommande fall, förklarar ECB:s syn på hur dessa skulle kunna föras in i fördraget om unionens funktionssätt utan att gå utöver IGC-mandatet.

text: 8. ECB är berett att när som helst under regeringskonferensens verksamhet bidra till dess arbete och, när en text väl tagits fram, yttra sig över frågor som faller inom dess behörighetsområde.

text: BILAGA

text: A. Bestämmelser som rör ECB

text: 1. IGC ges mandat att föra in de nya idéer som berör ECB som 2004 års regeringskonferens enades om i fördraget om unionens funktionssätt tillsammans med artiklarna om Revisionsrätten och unionens rådgivande organ. I fördraget om unionens funktionssätt kommer bestämmelserna som berör ECB att vara identiska med de som 2004 års regeringskonferens enades om, med undantag för nödvändiga ändringar av hänvisningar. Detta innebär bl.a. att den nyhet angående ECB som 2004 års regeringskonferens enades om, nämligen att definiera ECB som en (annan) institution kommer att tas med i fördragen, tillsammans med introduktionen av termen Eurosystemet och den uttryckliga bekräftelsen av ECB:s finansiella oberoende.

text: 2. Samtidigt som artikeln om ECB kommer att införlivas i fördraget om unionens funktionssätt, anger IGC-mandatet att EU-fördraget och fördraget om unionens funktionssätt skall ha samma rättsliga värde. Detta innebär att den nya artikeln 1 i fördraget om unionens funktionssätt, som bör ange förhållandet mellan fördraget om unionens funktionssätt och EU-fördraget, inte kommer att upprätta någon hierarki mellan de två fördragen och inte heller inför några skillnader mellan de ändringsförfaranden som gäller för grundläggande bestämmelser som rör ECB/ECBS och sådana som rör EU-institutioner. Mot bakgrund av detta är det ECB:s tolkning att ECB kommer att ges samma rättsliga ställning som de EU-institutioner som nämns i EU-fördraget trots att artikeln om ECB införlivas i fördraget om unionens funktionssätt.

text: B. Uppdatering av den terminologi som används i fördragen avseende den gemensamma valutan

text: 3. Utöver IGC-mandatet kommer reformfördraget att ersätta termerna gemenskapen med unionen och ecu med euro i fördragen, samt medföra en rad ändringar av gamla hänvisningar till de olika etapperna av den ekonomiska och monetära unionen. Nödvändiga ändringar kommer att göras i protokollen som avser Danmark och Förenade kungariket.

text: 4. När reformfördraget överenskommits kommer den gemensamma valutans namn att återfinnas i unionens primärrätt. ECB anser därför att den enhetliga stavningen av termen euro av rättssäkerhets- och tydlighetsskäl skall respekteras i alla olika alfabet och språkversioner av reformfördraget, i EU-fördraget och fördraget om unionens funktionssätt, samt att detta kräver att termen stavas euro i det latinska alfabetet, ευρώ i det grekiska alfabetet och еуро i det kyrilliska alfabetet.

text: C. Upphävande av EMI-protokollet

text: 5. Genom den text som 2004 års regeringskonferens enades om upphävdes protokollet om Europeiska monetära institutet (EMI-protokollet), och följaktligen kommer EMI-protokollet att utgå. Även om ECB välkomnar att protokollet utgår, har dock vissa av de funktioner som utförs enligt protokollets bestämmelser fortfarande betydelse för medlemsstater med undantag. Enligt artiklarna 44 och 47.1 i ECBS-stadgan utförs sådana funktioner för närvarande av ECB:s allmänna råd. ECB uppfattar det som att strykningen av EMI-protokollet kommer att åtföljas av en ändring av artikel 117.2 i EG-fördraget så att dessa funktioner även fortsättningsvis kommer att utföras av ECB.


text: OJ L 189, 3.7.1998, p. 42. 2 OJ L 375, 31.12.1985, p. 3.

text: Article 1 of the draft law amending first sentence of § 12(1) of Law on investment. 4 Article 1 of the draft law amending first and third sentences § 12(4) of the Law on investment. 5 Article 1 of the draft law amending § 19 of the Law on investment. 6 Article 1 of the draft law amending § 97 of the Law on investment. 7 Article 1 of the draft law amending § 42(6) of the Law on investment 8 Article 1 of the draft law amending § 45 of the Law on investment. 9 Article 1 of the draft law amending § 19 of the Law on investment. 10 Article 1 of the draft law amending § 19 of the Law on investment. 11 Article 1 of the draft law amending § 19 of the Law on investment. 12 Article 1 of the draft law amending first sentence of § 34(3) of the Law on investment. 13 Article 1 of the draft law amending § 44 of the Law on investment. 14 Article 1 of the draft law amending the first sentence of § 51(1), (2), (3) of the Law on investment. 15 Article 1 of the draft law amending the first sentence of § 119 of the Law on investment.

text: See, e.g. paragraph 2.1.2 of ECB Opinion

text: of 9 March 2006 at the request of the Polish Minister of Finance on a draft law on the supervision of financial institutions and ECB Opinion

text: of 25 April 2006 on the Dutch draft law concerning financial sector supervision. 17 See, e.g. paragraph 2.3 and 2.4 of ECB Opinion

text: and paragraph 2.4 and 2.5 of ECB Opinion

text: . 18 See e.g. paragraph 5 of ECB Opinion

text: of 8 November 2001 at the request of the German Ministry of Finance on a draft law establishing an integrated financial services supervision.

text: Moreover, even the explanatory memo attached to the amendment of § 18 of the law does not specify how the term ‘by other means’ has to be interpreted, i.e. whether it requires the Deutsche Bundesbank to seek the information from ‘public sources’ only or whether Deutsche Bundesbank has to liaise with other public authorities who might possess the information in question.

title: Opinion of the European Central Bank of 18 July 2007 at the request of the German Ministry of Finance on a draft law amending the Law on investment and other laws (CON/2007/21)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 18 July 2007 at the request of the German Ministry of Finance on a draft law amending the Law on investment and other laws (

text: ) Introduction and legal basis

text: On 14 June 2007 the European Central Bank (ECB) received a request from the Federal Ministry of Finance for an opinion on the draft law amending the Law on investment and other laws (Gesetz zur Änderung des Investmentgesetzes und zur Anpassung anderer Vorschriften) (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third, fourth and sixth indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to national central banks (NCBs), the collection, compilation and distribution of monetary, financial, banking, payment systems and balance of payments statistics, as well as to rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The draft law aims at enhancing competitiveness of the investment fund industry in Germany. To this end, it envisages a large number of measures, in particular, deregulation, modernisation of open-ended property funds, promotion of product innovation and improved investor protection and corporate governance. 1.2 The draft law will align the Law on investment with

text: Council Directive 85/611/EEC of 20 December 1985

text: on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) . As a consequence, investment management companies (Kapitalanlagegesellschaften) will no longer qualify as credit institutions or be subject to the German Law on banking. This entails important changes in their regulation and supervision. Henceforth, investment management companies will be exclusively

text: subject to supervision by the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin)) as sole regulator and supervisory authority, since the draft law abolishes the Deutsche Bundesbank’s supervision of investment management companies, as well as their supervisory reporting requirements vis-à-vis the Bundesbank. 1.3 For instance, investment management companies will no longer be obliged to report their intention of forming a branch in another Member State or member of the European Economic Area . The same would apply to changes related to branches . Furthermore, investment management companies would no longer be required to provide the Deutsche Bundesbank with annual financial 5 6 statements, management reports, audit reports and to notify reductions in their start-up capital . Similarly, investment management companies would not have to transmit their prospectus , interim reports, annual, semi-annual and dissolution reports on the funds under their management . Moreover, the Deutsche Bundesbank would no longer be informed of the nomination of an auditor , and the auditors of the investment management companies would no longer have any duties towards the Deutsche Bundesbank . As far as queries and investigatory powers regarding the prosecution of unauthorised investment deals by investment management companies are concerned, the supervisory powers rest with the BaFin and the Deutsche Bundesbank would not play any role in this context . 1.4 The draft law also restricts the rules concerning information exchange between the BaFin and the Deutsche Bundesbank. The amended § 18 of the Law on investment provides that the BaFin must provide the Deutsche Bundesbank with information and documents which it has received on the basis of the Law on investment only if this information is indispensable for the Deutsche Bundesbank to comply with its obligation of ensuring the stability of the financial system and if the Deutsche Bundesbank cannot obtain such information in another manner. 1.5 Furthermore, the draft law intends to abolish the need for prior consultation of the Deutsche Bundesbank by the Ministry of Finance with regard to the issue of the latter’s statutory regulations containing more specific rules in the fields of accounting, valuation of any unit classes or any sub- 12 13 14 15 funds , interim reports , derivatives , nature of risk management systems etc.

text: 1.6 In addition, several constraints deriving from the German Law on stock corporations (Aktiengesetz) would no longer apply to investment stock companies.

text: 2. Financial stability and prudential role of a central bank

text: 2.1 General observations 2.1.1 Article 105(5) of the Treaty establishing the European Community assigns to the European System of Central Banks the task of contributing to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system. The ECB has consistently favoured the involvement of central banks in prudential supervision due to their pivotal role in the financial system, in particular regarding implementing monetary policy and ensuring the proper functioning of payment systems . Moreover, maintaining a close involvement by NCBs in prudential supervision is an important condition for allowing the Eurosystem to contribute adequately to monitoring the risks to financial stability in the euro area, in accordance with Article 105(5) of the Treaty, and to safeguard a smooth coordination between the central banking functions exercised at the Eurosystem level and the supervisory functions carried out at national level. 2.1.2 In this respect, the access of central banks to prudential information and cooperation between financial supervisory authorities and central banks are essential . In particular from a financial stability perspective, the central bank would inevitably need to be involved in any crisis in financial markets. In that context, the ready availability of relevant information and the ability to interpret it are crucial. 2.1.3 In view of these considerations, the ECB supports the coordination and cooperation framework currently in force between the BaFin and the Deutsche Bundesbank, encompassing matters relating to the stability of the German financial system, the development of supervisory practice, as well as aspects of the day-to-day supervision of credit and financial services institutions. This is in line with the ECB’s view that maintaining the close involvement of NCBs in prudential supervision is a mandatory condition to allow the Eurosystem to contribute adequately to monitoring the risks to financial stability in the euro area .

text: 2.2 Specific observations 2.2.1 The ECB notes with concern that the draft law – particularly with regard to the abolishment of the direct reporting of information to the Deutsche Bundesbank and the prior consultation of the Deutsche Bundesbank by the Ministry of Finance – would introduce considerable legal

text: impediments to the Deutsche Bundesbank’s access to information and information sharing on all matters relating to financial stability. Given the enhanced integration of financial services, the ECB deems that it is necessary to maintain the Deutsche Bundesbank’s involvement in the definition of the scope of information to be reported by institutions and its up-to date access to the information that may be needed to perform its functions. The central bank should have the means to assess possible systemic implications for the money and capital markets as well as for payment and settlement systems stemming from cross-sectoral linkages and from the behaviour of complex financial groups. 2.2.2 The ECB is not in favour of the introduction of the condition in § 18 of the draft law that the Deutsche Bundesbank may acquire information from the BaFin only if there are no other means available to obtain such information. The introduction of this condition could materially impair the Deutsche Bundesbank’s discharge of its obligations covered by its ESCB-related tasks, in particular in the field of financial stability . In addition, the ECB proposes clarifying in the draft law that the information currently reported to the Deutsche Bundesbank is necessary and appropriate for the fulfilment of its tasks and that this information should continue to be received from the BaFin under § 18.

text: 3. Statistical reporting requirements

text: The draft law does not have an impact on the Deutsche Bundesbank’s statistical reporting requirements. In this regard, the ECB understands that the amendment made to § 18 of the Law on the Deutsche Bundesbank, which acknowledges the role of the Deutsche Bundesbank in the collection of statistics from investment companies and investment stock companies, is a mere technical adaptation since these companies would no longer qualify as credit institutions.

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

text: Done at Frankfurt am Main, 18 July 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: Article 288 of Government Emergency Ordinance No 99 of 6 December 2006 on credit institutions and capital adequacy published in Monitorul Oficial al României, Part I, No 1027 of 27 December 2006 defines building societies as follows: ‘Romanian legal persons, as credit institutions specialised in long-term financing for housing, which have as their primary activity collective savings and lending for housing.’

text: OJ L 333, 17.12.2001, p. 1. Regulation as last amended by Regulation ECB/2006/20 (OJ L 2, 5.1.2007, p. 3). 6 Please note that some aspects of the Eurosystem framework were changed in March 2004.

text: See Section 1 Article 1 of Regulation No 6 of 24 July 2002 of Banca Naţională a României on the minimum reserves regime. 8 See ECB Opinion

text: of 23 February 2006 at the request of Latvijas Banka on draft amendments to the Regulation on calculating and fulfilling the minimum reserve requirements for banks and ECB Opinion

text: of 14 December 2006 at the request of Eesti Pank on a draft decree establishing a procedure to calculate and comply with reserve requirements.

title: Opinion of the European Central Bank of 1 August 2007 at the request of Banca Naţională a României on a draft circular on the minimum reserves regime (CON/2007/22)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 1 August 2007 at the request of Banca Naţională a României on a draft circular on the minimum reserves regime (

text: ) Introduction and legal basis

text: On 5 July 2007 the European Central Bank (ECB) received a request from Banca Naţională a României for an opinion on a draft circular amending and the supplementing Regulation No 6/2002 on the minimum reserves regime (hereinafter ‘draft circular’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and

text: Article 2(2) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft circular relates to minimum reserves requirements, and the authorities of Member States other than participating Member States are obliged to consult the ECB on any draft legislative provisions on the instruments of monetary policy. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft circular

text: 1.1 The main purpose of the draft circular is to align the minimum reserves regime in Romania with the corresponding standards of the Eurosystem concerning the minimum reserve base. To this end, the draft circular amends the definition of the liability elements included in the minimum reserve base. In particular, it excludes the amounts in transit from the minimum reserves base. Moreover, the amounts in transit are also excluded from the calculation of the average rate of the sight deposit interest, reported by the credit institutions for the establishment of the interest rate paid for the minimum reserves. 1.2 In addition, the draft circular introduces changes regarding building societies. It introduces a 0% minimum reserves ratio for such credit institutions .

text: 2. General observations

text: 2.1 The ECB notes that, although non-participating Member States retain their powers in the field of monetary policy, it is nevertheless beneficial to gradually achieve consistency with Eurosystem standards so that credit institutions operating in their territory can become acquainted with the minimum reserve requirements that will apply once the respective Member States have joined the euro area. The legal framework underlying the Eurosystem’s minimum reserve system is laid down in: (i) Article 19 of the Statute of the European System of Central Banks and the European Central Bank; and (ii)

text: Council Regulation (EC) No 2531/98 of 23 November 1998

text: concerning the application of minimum reserves by the European Central Bank ; and (iii) Regulation ECB/2003/9 of 12 September 2003 on the application of minimum reserves ; and (iv) relating to the definition and calculation of the reserve base, Regulation ECB/2001/13 of 22 November 2001 concerning the consolidated balance sheet of the monetary financial institutions sector . The purpose of these legal acts, which are directly applicable to and binding on euro area credit institutions, is to ensure that the terms and conditions for the Eurosystem’s minimum reserve system are uniform throughout the euro area. 2.2 In the course of preparing for the introduction of the euro in Romania, Banca Naţională a României will need to examine whether the Eurosystem’s requirements can be fulfilled effectively and whether the necessary measures have been adopted in Romania to ensure that the authorities have the requisite powers, under Romanian law, to assist and cooperate with the ECB to collect and verify the information necessary for the Eurosystem’s minimum reserve system.

text: 3. Concept of minimum reserves

text: 3.1 The ECB welcomes the provisions of the draft circular which narrow the minimum reserve base as it contributes to aligning Romanian minimum reserves regime with that of the Eurosystem. Article 3 of the Regulation ECB/2003/9 does not include amounts in transit in the reserve base when determining the liabilities comprising an institution's reserve base. 3.2 However, the ECB observes that the general Romanian framework for the minimum reserves requirements still significantly differs from that of the Eurosystem (e.g. the calculation of the reserve base in correlation with the residual maturity; indirect holdings for minimum reserves not generally admitted; specific definition of credit institutions for the purpose of minimum reserves; differentiation between ratios applied to holdings in national and foreign currencies; definitions of reference and maintenance periods according to previous Eurosystem standards) . Differences from the legal framework under which the Eurosystem operates will have to be eliminated on adoption of the euro by Romania.

text: 4. The 0% minimum reserve ratio for building societies

text: 4.1 The draft circular introduces a 0% minimum reserve ratio for building societies. This amendment would further widen the divergence between the Romanian and the Eurosystem’s minimum reserve frameworks, at least with respect to their holdings with a maturity of less than two years. Indeed, according to Article 2 of Regulation ECB/2003/9, all credit institutions in the euro area are subject to a minimum reserve requirement and the Romanian regime also explicitly defines building societies as credit institutions for statistical reporting and minimum reserve obligations . For the Eurosystem, Article 2(2) of the Regulation only admits exceptions to the minimum reserve system on a non-discriminatory basis for: ‘(a) institutions subject to reorganisation measures; (b) institutions for which the purpose of the ECB’s minimum reserve system would not be met by imposing reserve requirements upon them. In reaching a decision on any such exemption, the ECB shall take into account one or more of the following criteria: (i) the institution is pursuing specialpurpose functions; (ii) the institution is not exercising active banking functions in competition with other credit institutions; (iii) the institution has all its deposits earmarked for purposes relating to regional and/or international development assistance’. This means that under the Eurosystem’s regime there can only be exemptions by decision on a case-by-case basis for individual credit institutions based on a thorough analysis of their specific situation. The foreseen automatic application of a 0% minimum reserve ratio for all building societies in Romania leads to a de facto exemption of this category of credit institutions from minimum reserve requirements, which would not meet the abovementioned Eurosystem’s exemption criteria. As such treatment also differs considerably from the Eurosystem's regime, it would have to be re-adjusted upon the introduction of the euro at the latest .

text: Done at Frankfurt am Main, 1 August 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 OJ L 309, 25.11.2005, p. 15.

text: See e.g. ECB’s Convergence Report 2007, p. 19, available on www.ecb.int. 4 See paragraph 3.2 of ECB Opinion

text: of 18 June 2007 at the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the regulation and supervision of markets and the functioning of the competent independent authorities.

title: Opinion of the European Central Bank of 2 August 2007 at the request of Banca Naţională a României on a draft law on non-banking financial institutions (CON/2007/23)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 2 August 2007 at the request of Banca Naţională a României on a draft law on non-banking financial institutions (

text: ) Introduction and legal basis

text: On 16 July 2007 the European Central Bank (ECB) received a request from Banca Naţională a României for an opinion on a draft law on non-banking financial institutions (hereinafter ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the third and sixth indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to national central banks and rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The draft law clarifies and adapts the legal framework for non-banking financial institutions, harmonising it with the new legislation on credit institutions and capital adequacy, and on commercial companies in Romania. At the same time, it anticipates the expansion of the regulatory and supervisory powers of Banca Naţională a României over non-banking financial institutions in the area of money laundering and terrorist financing in the context of the future implementation of Directive

text: of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing in Romania.

text: 2. Extension of regulatory and supervisory powers of Banca Naţională a României in the area of money laundering and terrorist financing

text: 2.1 The ECB takes note of the changes in the legislative framework for non-banking financial institutions and underlines that ‘Member States may not put their NCBs in a position where they

text: have insufficient financial resources to carry out their ESCB- or Eurosystem-related tasks, as applicable’ . Therefore, the ECB expects that when extending Banca Naţională a României’s tasks, care will be taken to ensure that it has sufficient financial and personnel resources both in terms of quantity and quality to carry out all its tasks, and in particular that its capacity to carry out ESCBrelated tasks will not be affected . It should be kept in mind that such sufficient and skilled resources will, at a later stage, be assessed in the framework of the Mutual Evaluation Report reviewing Member States’ compliance with Financial Action Task Force Standards.

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

text: Done at Frankfurt am Main, 2 August 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 318, 27.11.1998, p. 8.

text: See ECB Opinion

text: of 5 December 2005 at the request of Magyar Nemzeti Bank on a draft regulation on the scope of information to be supplied to the central bank’s information system and on the method and time limits for data supply and ECB Opinion

text: of 30 November 2005 at the request of Česká národní banka on a draft provision concerning the submission of statements by banks and foreign bank branches to Česká národní banka.

text: See ECB Opinion

text: of 2 August 2007 at the request of Banca Naţională a României on a draft law on nonbanking financial institutions.

title: Opinion of the European Central Bank of 8 August 2007 at the request of Banca Naţională a României on a draft regulation concerning statistical reporting of assets and liabilities recorded on the balance sheet of non-banking financial institutions (CON/2007/24)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 8 August 2007 at the request of Banca Naţională a României on a draft regulation concerning statistical reporting of assets and liabilities recorded on the balance sheet of non-banking financial institutions (

text: ) Introduction and legal basis

text: On 12 July 2007 the European Central Bank (ECB) received a request from Banca Naţională a României (BNR) for an opinion on a draft regulation concerning statistical reporting of assets and liabilities recorded on the balance sheet of non-banking financial institutions (hereinafter the ‘draft regulation’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the fourth indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft regulation relates to the collection, compilation and distribution of monetary, financial and banking statistics. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft regulation

text: 1.1 The draft regulation is aimed at aligning statistical reporting requirements in the field of money and banking statistics with Guideline ECB/2003/2 of 6 February 2003 concerning certain statistical reporting requirements of the European Central Bank and the procedures for reporting by the national central banks of statistical information in the field of money and banking statistics . Guideline ECB/2003/2 is one of the key legal instruments relating to the provision of monetary, financial institutions and markets statistics. The ECB is currently preparing a recast of Guideline ECB/2003/2 to make it more readable and user-friendly for its addressees and users. 1.2 The draft regulation sets up a legal framework that will ensure the collection of statistical information necessary for analysing the credit activity of non-banking financial institutions in Romania. In particular, the draft regulation requires non-banking financial institutions that are registered in the General Register maintained by BNR to report quarterly statistical data on assets

text: and liabilities recorded on their balance sheet. The draft regulation is expected to enter into force on 1 December 2007 so that statistical data relating to the financial year 2007 can be collected.

text: 2. General observations

text: 2.1 Article 5.2 of the Statute of the European System of Central Banks and of the European Central Bank provides that ‘national central banks shall carry out, to the extent possible, the tasks described in

text: Article 5.1

text: ’, which are the tasks of the European System of Central Banks (ESCB) as defined by the Treaty and the Statute. Article 43.1 of the Statute implies that legal instruments adopted by the ECB for the fulfilment of its statistical reporting requirements do not confer any rights or impose any obligations on the non-participating Member States. 2.2 At the same time, Article 47.2 of the Statute states that the ECB’s General Council is required to contribute to the collection of statistical information as referred to in Article 5 of the Statute. In addition, Article 10 of the Treaty requires Member States to ‘take all appropriate measures ... to ensure fulfilment of the obligations arising out of the Treaty’ and, more specifically,

text: Article 4 of Council Regulation (EC) No 2533/98 of 23 November 1998

text: concerning the collection of statistical information by the European Central Bank requires all Member States to ‘organise themselves in the field of statistics … and fully co-operate with the ESCB in order to ensure the fulfilment of the obligations arising out of Article 5 of the Statute’. These provisions, therefore, imply that nonparticipating Member States are under an obligation to design and implement, at the national level, all measures they consider appropriate to carry out the collection of statistical information needed to fulfil the ECB’s statistical reporting requirements and to make timely preparations in the field of statistics in order for them to become participating Member States . 2.3 In this context, it is primarily the task of the national authorities of non-participating Member States to determine which detailed reporting requirements and collection methods are the most efficient and effective at the national level and the least burdensome for the reporting population concerned. On this basis, the ECB welcomes the draft regulation which is aimed at aligning BNR’s statistical reporting requirements for non-banking financial institutions with the ECB’s statistical reporting requirements for financial corporations. 2.4 The ECB notes that the draft regulation forms part of the new legal framework which was introduced by the new law on non-banking financial institutions. The ECB has already provided its opinion on this new law .

text: 3. Technical comments

text: 3.1 The ECB considers that BNR should closely monitor the activities of non-banking financial corporations and ensure the inclusion of the entire sectorial breakdown in Appendix 1 to the draft regulation, in accordance with Guideline ECB/2003/2. The ECB also recommends that loans for health services (

text: Article 3

text: (e1.1) of the draft regulation) be classified as ‘credits for other purposes’. In addition, the ECB notes the following differences between the ECB’s statistical reporting framework and the draft regulation: (i) while Guideline ECB/2003/2 requires that securities other than shares, shares and other equity held by financial corporations be reported at market value, the draft regulation does not lay down such requirements; and (ii) according to asset categories in Annex I, Part 3 of Regulation ECB/2001/13 of 22 November 2001 concerning the consolidated balance sheet of the monetary financial institutions sector , loans granted to households for the purpose of education (

text: Article 3

text: (e1.1) of the draft regulation) are classified as ‘other loans’ and not as ‘consumer credits’. 3.2 This opinion does not prejudice any future ECB assessment relating to the reporting scheme for statistics on balance sheet assets and liabilities of non-banking financial corporations applicable in Romania.

text: Done at Frankfurt am Main, 8 August 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42.

text: Directive

text: of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166, 11.6.1999, p. 45).

title: Opinion of the European Central Bank of 23 August 2007 at the request of the Spanish Ministry for Economic Affairs and Finance on the draft State budget law for 2008 amending Law 41/1999 on payment and securities settlement systems (CON/2007/25)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 23 August 2007 at the request of the Spanish Ministry for Economic Affairs and Finance on the draft State budget law for 2008 amending Law 41/1999 on payment and securities settlement systems (

text: ) Introduction and legal basis

text: On 1 August 2007 the European Central Bank (ECB) received a request from the Spanish Ministry for Economic Affairs and Finance for an opinion on some provisions of the draft State budget law for 2008 (hereinafter the ‘draft law’) amending Law 41/1999 on payment and securities settlement systems. The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the fifth indent of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to payment and settlement systems. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The purpose of the draft law is to adapt the Spanish legislation in the field of payment and securities settlement systems to the Trans-European Automated Real-time Gross settlement system 2 (TARGET2) in general and more specifically to TARGET2-Banco de España by: (i) including TARGET2-Banco de España in the list of designated systems; (ii) allowing designated systems to settle credit transfer orders not only in an account held with the Banco de España, but also in an account held with other European Union central banks whose systems are connected to the Banco de España's system in the European System of Central Banks context; and (iii) prohibiting funds on a settlement account from being used for other purposes during a system’s daily settlement session, fully protecting them from insolvency proceedings and from attachments or similar measures.

text: 2. General observations

text: The ECB welcomes the amendments proposed by the draft law, as they support the smooth functioning of TARGET2.

text: 3. Specific observations

text: 3.1 The ECB welcomes the broadening of the concept of designated system by the proposed new

text: Article 3

text: (d) and considers that the possibility to settle in central bank money through accounts with any member of the ESCB is compatible with the design and organisation of TARGET2. However, the scope of

text: Article 3

text: (d) and the protection of systems proposed in the draft law are limited to payment and securities settlement systems settling in an account at the Banco de España or any other ESCB member. Although not strictly required by the Settlement Finality Directive , the national authorities might consider broadening the concept of designated system so as to include the possibility of also designating systems settling in commercial bank money. In such instances, steps should be taken to protect participants from credit and liquidity risks arising from the failure of the cash settlement agent whose assets are used for that purpose. Also, the ECB observes that the TARGET2 component system operated by the ECB is not expressly covered by the provisions of the proposed

text: Article 3

text: (d). 3.2 The ECB also welcomes the full protection by the new Article 11(3) of funds on a settlement account from insolvency proceedings and any other judicial or administrative enforcement measure, thus guaranteeing the availability of a participant account and the enforceability of credit transfer orders during the operational day according to the system rules. 3.3 With regard to the designation of TARGET2-Banco de España as a system, it should be considered clarifying in the draft law that the current Spanish RTGS system, Servicio de Liquidación del Banco de España (SLBE), will only operate until its replacement by TARGET2-Banco de España.

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

text: Done at Frankfurt am Main, 23 August 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: Consolidated text: Dz.U. of 19 April 2007 No 70, Item 474.

text: OJ L 189, 3.7.1998, p. 42.

text: Participation in the deposit-guarantee scheme operated by the Fund is mandatory for all banks established in Poland, including cooperative banks, but not for the Polish variety of credit unions operating on the basis of the Law of 14 December 1995 on cooperative savings and loan associations (Dz.U. of 4 January 1996 No 1, Item 2, as amended). Branches of non-EU banks must, and branches of EU credit institutions may, be covered by the scheme to the extent that their home country schemes do not ensure deposit guarantees at the level established in Polish law (Articles

text: and

text: b of the Law of 14 December 1994 on the Bank Guarantee Fund (hereinafter ‘Law on the Bank Guarantee Fund’)). For simplicity, the entities covered by the mandatory deposit-guarantee scheme operated by the Fund are referred to in this opinion as ‘commercial banks’.

text: Article 4(1)

text: and

text: Articles 21

text: to 36 of the Law on the Bank Guarantee Fund. Contributions provided by commercial banks, in case of the involuntary liquidation of a bank participating in the scheme, are collected by the Fund and paid into a dedicated account held with NBP, from which the relevant amounts are provided to the liquidator or administrator for the fulfilment of deposit guarantees (

text: Article 28(3)

text: and

text: Article 29(1)

text: together with Article 22(3) of the above Law; and paragraph 33 of the Annex to the Regulation of the Council of Ministers of 28 February 1995 on the adoption of the Statute of the Bank Guarantee Fund (Dz.U. of 6 March 1995 No 21, Item 113, as amended, hereinafter the ‘Fund Statute’)).

text: Article 4(2)

text: and

text: Articles 19

text: to 20a of the Law on the Bank Guarantee Fund; paragraph 4 of the Regulation of the Council of Ministers of 22 September 1999 on the trade by the Bank Guarantee Fund in the receivables acquired from banks threatened with insolvency (Dz.U. of 8 October 1999 No 80, Item 904).

text: Hence, the Polish deposit-guarantee scheme represents a mixed model financed both by the ex post cover for guaranteed deposits provided by the commercial banks in the event of the involuntary liquidation of a bank, and by a number of ex ante sources, which include, in addition to the commercial banks’ annual contributions, contributions to the Fund’s statutory fund paid in equal parts by NBP and the Minister for Finance, as well as income received by the Fund from its investments in government or NBP securities and from participation units in money market funds (

text: Articles 13(1)

text: to (3), 15, 16(3) and 45 of the Law on the Bank Guarantee Fund; and paragraphs 27 to 31 of the Fund Statute).

text: In 1998 NBP’s subsidy covered 30% of the commercial banks’ contributions. This was later raised to 40 % for 1999-2000, and 50 % for later years (paragraphs (3a) and (3b), as added to Article 13 of the Law on the Bank Guarantee Fund by the amending laws of 20 February 1997 (Dz.U. of 14 March 1997 No 24, Item 119) and of 6 May 1999 (Dz.U. of 6 May 1999 No 40, Item 399), respectively).

text: Article 1(10)

text: (a) and (b) of the draft law, amending paragraph (1) and adding a new paragraph (1a) to Article 13 of the Law on the Bank Guarantee Fund. At the same time, the draft law proposes abolishing the current general exemption of the Fund from corporation tax obligations; see the amendments in

text: Article 1(12)

text: and Article 2 of the draft law (repeal of Article 18 of the Law on the Bank Guarantee Fund and the related amendments to Article 17 of the Law of 15 February 1992 on corporation tax (consolidated text: Dz.U. of 13 July 2000 No 54, Item 654, as amended)).

text: See the amendments in

text: Article 1(2)

text: to (9), (11) and (14) and (15) of the draft law (amendments to

text: Articles 3(4)

text: and (5), 4(2a) and (3), 6, 7(2) and (3), 8(1), 9(1), 17(3), 34(4), 38(7) and 44 of the Law on the Bank Guarantee Fund and amendments to Article 2(1) of the Law of 23 December 1994 on the Supreme Chamber of Control (consolidated text: Dz.U. of 17 August 2001 No 85, Item 937, as amended)).

text: See the ECB Convergence Report, December 2006, ‘Introduction and executive summary’, Section 2 (‘Compatibility of national legislation with the Treaty’), Subsection 2.4 (‘Prohibition on monetary financing and privileged access’), under the heading ‘Financial support for deposit insurance and investor compensation schemes’, p. 30.

text: Law on Narodowy Bank Polski of 29 August 1997 (consolidated text: Dz.U. of 1 April 2005 No 1, Item 2, as amended).

text: See ECB Convergence Report, December 2006, Chapter 2 (‘Compatibility of national legislation with the Treaty’), Section 7 (‘Poland’), Subsection 7.3 (‘Monetary financing and privileged access’), p. 229. In the same passage it is pointed out that in its current formulation NBP’s right to issue refinancing credit to commercial banks is incompatible with the monetary financing prohibition.

text: See the third paragraph of the explanatory memorandum accompanying the draft law, and the second and third paragraphs of the letter of Minister for Finance of 26 July 2007 requesting the ECB’s opinion.

text: The President of NBP may extend credit to the Fund if: (i) the amounts of claims received under the deposit-guarantee scheme exceed the amounts which the commercial banks are obliged to transfer to the Fund in the event of the involuntary liquidation of a bank participating in the scheme (in accordance with rules set out in Articles

text: (2) and 29(1) of the Law on the Bank Guarantee Fund); and (ii) the Fund’s own financial resources have been exhausted. The amount of such credit extended by NBP may not exceed half the Fund’s receipts from annual contributions payable by the commercial banks. The credit may only be used to fulfill the Funds’ task of protecting guaranteed deposits. Any funds recovered by the Fund from the insolvent estates of liquidated commercial banks must be applied in the first place to the repayment of money paid out under NBP’s credit arrangements and the restoration of the Fund’s assets derived from the contributions of NBP and the Minister for Finance to the Fund’s statutory fund (Articles 15(6), 16(2), 34(3) and 35(2) of the Law on the Bank Guarantee Fund; Article 43 of the Law on Narodowy Bank Polski; and paragraph 33(1) and (2)(6) of the Fund Statute).

text: Article 10(13)

text: (a) and (b) of the draft law, amending

text: Article 13(1)

text: and (2) of the Law on the Bank Guarantee Fund. Under the current formula, each commercial bank’s contribution is computed as a specified percentage of the risk-weighted balance sheet assets, guarantees and endorsements, as well as certain other risk-weighted non-balance sheet obligations. The draft law proposes to link the level of each bank’s contributions not to its risk-weighted assets and obligations but to the level of its capital requirements, as defined under the regime introduced by Directive

text: of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) (OJ L 177, 30.6.2006, p. 1) and Directive

text: of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) (OJ L 177, 30.6.2006, p. 201), hereinafter referred to jointly as the ‘Capital Requirements Directives’.

text: The Capital Requirements Directives (see footnote 16) have been implemented in Poland by the Law of 26 January 2007 amending the Law on banking (Dz.U. of 9 March 2007 No 42, Item 272) and by resolutions of the Banking Supervision Commission (Nos 1 to 6/2007 of 13 March 2007). In the ninth paragraph of the explanatory memorandum accompanying the draft law, and in the second and fourth paragraphs of the letter of Minister for Finance of 26 July 2007 requesting the ECB’s opinion, it is stated that the changes in the calculation method proposed by the draft law are linked to the implementation of the Capital Requirements Directives.

text: Paragraph 8 of ECB Opinion

text: of 1 December 2005 at the request of Národná banka Slovenska on a draft law amending the Act No 118/1996 Coll. on the protection of bank deposits and on amendments to certain laws, as last amended.

text: Financial Stability Forum, ‘Guidance for Developing Effective Deposit Insurance Systems’, September 2001, point V.4 (‘Funding arrangements’), p. 26.

text: OJ L 135, 31.5.1994, p. 5.

text: See the twenty-third recital of Directive

text: The President of NBP appoints four members of the Fund Council (until 1998 – three members), the Minister for Finance and the Polish Banks Association each appoint three Fund Council members (Articles

text: and

text: to (3) of the Law on the Bank Guarantee Fund).

text: See Articles

text: (2a) and (3) of the Law on the Bank Guarantee Fund. Additionally, on specific issues listed in the Law, the regulatory competence is exercised by the Minister for Finance or the President of NBP (see footnote 27).

text: The Fund Council’s Chairman is currently appointed by the Prime Minister on the joint recommendation of the Minister for Finance and the President of NBP; the draft law provides for appointment by the Minister for Finance after consulting the President of NBP (Article 1(6) of the draft law, amending

text: Article 6(2)

text: Under the proposed provision, candidates would only have to have ‘appropriate’ higher education and professional experience (Article 1(9) of the draft law, amending Article 9(2) of the Law on the Bank Guarantee Fund).

text: Under the provisions of the draft law, the President of NBP would express a non-binding opinion on draft regulations presented by the Minister for Finance in relation to: (i) the adoption of the Fund Statute; (ii) the conditions for the Fund’s trading in the loans acquired from commercial banks threatened with insolvency; (iii) any additional tasks of the Fund concerning the provision of assistance to commercial banks; (iv) the remuneration of the Fund Council’s members; and (v) the commercial banks’ reporting obligations to the Fund (

text: Article 1(3)

text: (a), (5)(b) and (c), (6) and (14) of the draft law, amending Articles

text: (2a) and (3), 6(4) and 38(7) of the Law on the Bank Guarantee Fund). Currently, proposals for regulations in the above areas must either be agreed between the Minister for Finance and the President of NBP or they are adopted exclusively by NBP (in the case of regulations referred to under (iv) and (v) above). Additionally, the draft law eliminates the President of NBP’s right to give an opinion on draft regulations relating to the emergency rates of commercial banks’ contributions to the Fund, as set by the Council of Ministers (Article 1(13) of the draft law, amending Article 34(4) of the Law on the Bank Guarantee Fund).

text: Under the current rules, the Fund’s financial statements are audited by authorised auditors selected by a tender procedure by the President of NBP, having sought the opinion of the Fund Council (Article 17(2) of the Law on Bank Guarantee Fund). In order to allow the parallel exercise of auditing competences by the Supreme Chamber of Control, the draft law proposes to change the definition of the Fund’s public law status (

text: Article 1(15)

text: and Article 3 of the draft law, respectively amending Article 44 of the Law on Bank Guarantee Fund and Article 2(1) of the Law of 23 December 1994 on the Supreme Chamber of Control (consolidated text: Dz.U. of 17 August 2001 No 85, Item 937, as amended)).

text: See e.g. paragraph 7 of ECB Opinion

text: of 25 May 2001 at the request of the Austrian Ministry of Finance on a draft Federal law establishing and organising the financial market supervisory authority (title shortened). Cf. also

text: Article 3(2)

text: (6) of the Law on Narodowy Bank Polski (see footnote 11 above).

text: See Financial Stability Forum, ‘Guidance for Developing Effective Deposit Insurance Systems’, September 2001, point V.1(c) (‘Basic governance arrangements’), p. 19. According to these recommendations, the governing body of a deposit-guarantee scheme should include individuals with the requisite knowledge to allow them to understand the environment in which the scheme operates.

title: Opinion of the European Central Bank of 27 August 2007 at the request of the Polish Minister for Finance on a draft law amending the Law on the Bank Guarantee Fund (CON/2007/26)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 27 August 2007 at the request of the Polish Minister for Finance on a draft law amending the Law on the Bank Guarantee Fund (

text: ) Introduction and legal basis

text: On 5 July 2007 the European Central Bank (ECB) received a request from the Polish Minister for Finance for an opinion on a draft law amending the Law of 14 December 1994 on the Bank Guarantee Fund (hereinafter the ‘draft law’) . The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third and sixth indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to Narodowy Bank Polski (NBP) and to rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The draft law amends the current legal framework for the financing, governance, regulation and supervision of the Bank Guarantee Fund (hereinafter the ‘Fund’), which is a public law body established by statute to manage the national deposit-guarantee scheme in Poland. The Fund’s main tasks include: (i) specifying, for a given year, the amount of money to be separated by the banks in connection with the obligations to establish a fund for protection guaranteed assets, as well

text: as administering the collection of the necessary amounts from such accounts and ensuring

text: pay-outs of the guaranteed deposits in case of their unavailability ; and

text: (ii) providing repayable financial assistance, under statutorily defined conditions, to commercial

text: banks threatened with insolvency by, among other things, issuing credit facilities, guarantees

text: and endorsements to such commercial banks, acquiring specified types of their loan

text: portfolios and other receivables, or crediting the acquisition of bank shares or stocks .

text: The Fund’s operations are financed by, among others, annual contributions paid by the commercial

text: banks . In addition, NBP has a statutory obligation to subsidise the commercial banks’ annual

text: contributions, currently at the level of 50 % .

text: 1.2 The draft law is aimed at introducing the following key changes to the model described above:

text: (i) changes to the method of financing the Fund, by abolishing NBP’s annual contributions and

text: changing the current formula for calculating the commercial banks’ contributions ; and (ii) changes

text: to the Fund’s governance, legal status, regulation and supervision, in particular increasing the

text: competences of the Minister for Finance and limiting the current competences of NBP .

text: 2. Financial resources of the Fund

text: 2.1 Compliance with the monetary financing prohibition The ECB recalls its stance on the prohibition on monetary financing, as expressed in the 2006 Convergence Report where the ECB specified that national legislation which provides for the financing by a national central bank (NCB) of a public sector national deposit insurance scheme for credit institutions would not be compatible with the monetary financing prohibition, if it is not short term, does not address urgent situations, systemic stability aspects are not at stake, and decisions do not remain at the NCB’s discretion . The ECB further noted that: (i) Article 43 of the Law on Narodowy Bank Polski and Article 15(6) of the Law on the Bank Guarantee Fund, which give NBP the power to grant credit to the Fund; as well as (ii)

text: Article 13

text: (3b) of the Law on the Bank Guarantee Fund, which provides for annual payment on behalf of NBP to the Fund, are incompatible with the Treaty provisions on monetary financing . 2.2 It is proposed that the draft law will abolish the annual subsidies contributed by NBP to the financing of the Fund . It is explained that this proposal is motivated by the need to ensure full compatibility of the Law on the Bank Guarantee Fund with the monetary financing prohibition in Article 101(1) of the Treaty . The ECB welcomes this amendment, as the abolition of the annual NBP subsidies will ensure that non-compliance with the monetary financing prohibition in this particular regard will be eliminated. 2.3 However, the second incompatibility with the monetary financing prohibition identified in the Convergence Report in relation to the financing of the Fund (i.e. NBP’s right to extend credit to the Fund) is not addressed by the draft law. In particular, Article 15(6) of the Law on the Bank Guarantee Fund provides that one source of financing of the Fund is ‘funds from a credit facility extended by NBP on the conditions agreed with the Fund’. In its present form, the Law on the Bank

text: Guarantee Fund specifies certain further conditions regarding this source of financing . These

text: conditions, however, fall short of ensuring compatibility with the prohibition on monetary

text: financing specified by the Treaty. The Fund is a public law body established by statute to manage

text: the national deposit-guarantee scheme in Poland, hence it qualifies as a body governed by public

text: Treaty. Therefore, the ECB considers that these provisions remain incompatible with

text: Article 101

text: of

text: the Treaty.

text: 2.4 Calculation of the commercial bank contributions

text: The draft law proposes changing the current formula for calculating the annual contributions of

text: commercial banks to the Fund . The change is explained as being necessary in order to adapt the

text: Polish deposit-guarantee scheme to the new risk-measurement and capital requirements framework

text: introduced by the Capital Requirements Directives, as recently implemented in Poland .

text: 2.5 As already noted by the ECB, deposit protection is an important element of the financial safety net

text: and therefore contributes to safeguarding financial stability . Further, according to international

text: standards, sound funding arrangements are critical to the effectiveness of deposit-guarantee

text: schemes and the maintenance of public confidence in the banking system . At the same time,

text: Directive

text: of the European Parliament and of the Council of 30 May 1994 on

text: deposit-guarantee schemes does not prescribe a method for financing deposit-guarantee schemes,

text: as long as: (i) the costs of financing are borne, in principle, by credit institutions themselves;

text: (ii) the financing capacity of the scheme is in proportion to credit institutions’ liabilities; and

text: (iii) the stability of the banking system of the Member State concerned is not jeopardised . Any

text: change to the current system should respect these principles.

text: 3. Governance, regulation and supervision of the Fund

text: 3.1 Under the current provisions, the Fund’s governing bodies are: (i) the Fund Council, whose

text: members are appointed by the President of NBP, the Minister for Finance and the Polish Banks

text: Association; and (ii) the Management Board, appointed by the Fund Council . The Council of

text: Ministers, acting on requests of the Minister for Finance in agreement with the President of NBP,

text: has legislative competence over the general regulation of the Fund’s activities . The Minister for

text: Finance exercises overall supervision of the Fund, based on the criteria of legality and compliance

text: with the Fund Statute .

text: 3.2 The draft law is aimed at making certain changes to the current regime which, among other things,

text: would result in: (i) reducing the number of the Fund Council’s members appointed by the President

text: of NBP from four to three, and limiting the role of the President of NBP in the selection of the

text: Fund Council’s Chairman ; (ii) eliminating the current requirement for candidates for the Fund’s

text: Management Board to have five years professional experience in banking ; (iii) assigning the

text: regulatory powers for the Fund to the Minister for Finance, who will have to seek the opinion of

text: the President of NBP in certain cases ; and (iv) strengthening the supervisory powers exercised

text: over the Fund by the Minister for Finance by, among other things, allowing the Minister to request information and documents directly from the Fund’s staff and contractors and not merely from the governing bodies of the Fund . Furthermore, supervision of the Fund by the Supreme Chamber of Control (the state auditing body) is introduced . 3.3 The ECB repeats its earlier observation that central banks are in general in the best position to take on responsibility for financial stability, given their insight into money and financial market developments and their involvement in payment systems and monetary policy operations . At the same time, deposit-guarantee schemes are a key element of the financial safety net. Therefore, the governance framework should ensure that the important function of such schemes is carried out professionally and efficiently . Moreover, effective coordination with the overall role of central banks in safeguarding financial stability should be ensured. This aim may be achieved through, among other things, maintaining an adequate level of involvement of the central bank in the governance and regulation of the national deposit-guarantee scheme.

text: Done at Frankfurt am Main, 27 August 2007.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


title: Opinion of the European Central Bank of 21 September 2007 at the request of Banca Naţională a României on a draft regulation on oversight of payment systems, securities settlement systems and payment instruments (CON/2007/27)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 September 2007 at the request of Banca Naţională a României on a draft regulation on oversight of payment systems, securities settlement systems and payment instruments (

text: ) Introduction and legal basis

text: On 30 July 2007 the European Central Bank (ECB) received a request from Banca Naţională a României (BNR) for an opinion on a draft regulation on oversight of payment systems, securities settlement systems and payment instruments (hereinafter the ‘draft regulation’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third and fifth indents of

text: Article 2(1) of Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft regulation relates to BNR and payment and settlement systems. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft regulation

text: 1.1 The draft regulation sets up the regulatory framework for the oversight by BNR of payment systems, securities settlement systems and payment instruments. In particular, it specifies: (i) the categories of systems and entities subject to oversight; (ii) the requirements for operators of payment systems, securities settlement systems and infrastructure services and for persons who issue/put into circulation and/or manage payment instruments; and (iii) the oversight activities to be carried out by BNR to ensure the smooth functioning of these systems and, ultimately, to ensure financial stability, including BNR’s right to carry out on-site inspections to obtain and verify information. 1.2 The draft regulation is issued on the basis of Article 405 of Government Urgency Ordinance No 99/ 2006 on credit institutions and capital adequacy (hereinafter the ‘GUO 99/2006’), which

text: 1 OJ L 189, 3.7.1998, p. 42.

text: 2 Published in the Monitorul Oficial al României, Part One, No 1027, 27.12.2006, as amended and approved by Law No 227/2007, published in the Monitorul Oficial al României, Part One, No 480, 18.7.2007. establishes that BNR ‘shall issue regulations’ concerning payment and securities settlement systems, and, in particular, ‘the criteria and the rules for the supervision of the systems, including the participants in these systems and their operators’.

text: 2. General observations

text: 2.1 The ECB welcomes the draft regulation which establishes the rules applicable to the oversight of payment systems, securities settlement systems and payment instruments, as the oversight function is inherent in the central banks’ task of promoting a sound market infrastructure to safeguard the effectiveness of monetary policy and the overall stability of the financial system . 2.2 As mentioned in previous ECB opinions , payment systems and securities settlement systems are interlinked, particularly in view of the use of the ‘delivery versus payment’ mechanism, under which settlements of securities and transfers of funds take place simultaneously. There is therefore a strong argument in favour of the model used in some Member States of integrating the oversight of payment systems and securities settlement systems, and for the national central banks (NCBs) to perform the oversight function. 2.3 The oversight of payment systems has always been recognised as one of the NCBs’ main tasks and the framework for this function has been effective and successful.

text: Article 2(2)

text: (b) and Article 22(1) of Law No 312/2004 on the Statute of Banca Naţională a României , which entitle BNR to oversee payment systems, including payment instruments, Article 404 of GUO 99/2006, which entitles BNR to regulate, authorise and supervise the payment systems and securities settlement systems from Romania, including their operators, Article 405 of GUO 99/2006 and Article 13(4) of Law No 253/2004 on settlement finality in payment and securities settlement systems , reflect, at the national level, the general legal framework for the oversight of payment systems created at the Community level through Article 105(2) of the Treaty and

text: Article 3.1

text: and Article 22 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the

text: 3 See, e.g. ECB Opinions

text: of 15 July 2005 at the request of the Ministry of Finance of the Czech Republic on a draft law on the integration of financial market supervisors;

text: of 7 August 2003 at the request of Banca d’Italia on a draft regulation on payment systems, payment infrastructures and payment instruments; and CON/99/19 of 20 January 2000 at the request of the Luxembourg Ministry for the Treasury and the Budget on a draft legislative proposal implementing Directive

text: on settlement finality in payment and securities settlement systems in the law of 5 April 1993, as amended, relating to the financial sector and completing the law of 23 December 1998 creating a commission in charge of the prudential supervision of the financial sector. See also the Bank for International Settlements (BIS) Committee on Payment and Settlement Systems, ‘Central bank oversight of payment and settlement systems’, May 2005, available on the BIS website at www.bis.org.

text: 4 See ECB Opinion

text: of 25 April 2006 on the Dutch draft law concerning financial sector supervision.

text: 5 Published in the Monitorul Oficial al României, Part One, No 582, 30.6.2004.

text: 6 ‘Banca Naţională a României will permanently oversee the payment systems and the securities settlement systems which settle through systemically important payment systems or through payment systems of prominent importance.’

text: 7 Published in the Monitorul Oficial al României, Part One, No 566, 28.6.2004.

text: 8 Article 105(2) of the Treaty states that ‘[t]he basic tasks to be carried out through the ESCB shall be … to promote the smooth operation of payment systems.’ ‘ESCB Statute’) . 2.4 Within the Eurosystem, oversight activities are performed by NCBs in line with the common oversight policy, as defined by the ECB’s Governing Council. This will also apply to BNR once Romania adopts the euro. Furthermore, on Romania’s adoption of the euro the securities settlement system selected to provide securities settlement of central bank credit operations will be assessed against the Eurosystem standards for the use of European Union securities settlement systems in ESCB credit operations . For that reason, this opinion is without prejudice to any future ECB assessment of the securities settlement system selected to provide securities settlement of central bank credit operations against the abovementioned standards . 2.5 The explanatory memorandum states that BNR will issue norms which will specify the standards and the methodology for carrying out an assessment for each type of system. Once such draft provisions are prepared, BNR should consider whether these are also subject to the duty of consultation which stems from Article 105(4) of the Treaty and Decision

text: . ‘Given the objectives of Decision

text: … an opinion should only be sought from the ECB on such draft secondary legislation if the subject matter is closely related to the ECB’s tasks and if the impact on areas within the ECB’s fields of competence is different from that resulting from the primary legislation itself.’

text: 3. Specific observations

text: 3.1 The ECB recommends clarifying the definitions of ‘payment system’ and ‘securities settlement system’ set out in

text: Article 2(4)

text: and (6) of the draft regulation to avoid uncertainties, in particular in view of the definition of ‘system’ contained in Law No 253/2004 on settlement finality in payment and securities settlement systems, which implements the Directive on settlement finality in payment and securities settlement systems . Furthermore, the definition of ‘significant infrastructure’ in

text: Article 2(8)

text: is rather open-ended. Therefore, the ECB would encourage establishing objective and transparent criteria, and making them publicly available. In addition, there is no reference to the oversight of clearing systems. Therefore, the draft regulation should include clearing systems in the scope of oversight conducted by BNR.

text: 9 Article 3.1 of the ESCB Statute states that ‘[i]n accordance with Article 105(2) of this Treaty, the basic tasks to be carried out through the ESCB shall be … to promote the smooth operation of payment systems.’

text: Article 22

text: states that ‘[t]he ECB and national central banks may provide facilities, and the ECB may make regulations, to ensure efficient and sound clearing and payment systems within the Community and with other countries’. See also

text: Article 34.2

text: , which states that a ‘regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’

text: 10 The standards are available on the ECB’s website at www.ecb.int.

text: 11 See ECB Opinion

text: of 14 November 2006 at the request of Latvijas Banka on a draft regulation on Latvijas Banka's securities settlement system, paragraph 2.1.

text: 12 Guide to consultation of the European Central Bank by national authorities regarding draft legislative provisions, p. 14, available on the ECB’s website at www.ecb.int.

text: 13 Directive

text: of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166, 11.6.1998, p. 45). 3.2

text: Article 3

text: (f) and

text: Article 7

text: refer to ‘persons that issue and/or manage payment instruments’ and provide for their obligations under the draft regulation, respectively. The scope of the term ‘persons’ in these articles, as well as in the definition of ‘infrastructure’ in Article 2(7) of the draft regulation, is unclear and could lead to legal uncertainty; therefore, the range of entities that fall within this category require clarification. 3.3 In line with Article 6 of the draft regulation, which mentions several measures to address operational risks, BNR could consider also mentioning operational risk more generally in

text: Article 5 (1)

text: (b). 3.4 According to

text: Article 6(2)

text: (b) significant infrastructure services operators ‘shall have the ... obligation … to promote interconnection with other infrastructures’. Since this constitutes a requirement imposed on entities subject to the scope of the draft regulation, against which they will be assessed, the obligation contained in this rule needs to be further clarified, because its exact content and scope of application is unclear . 3.5

text: Article 14

text: states that BNR will use the information and data collected pursuant to Chapter III, Section I of the draft regulation to assess compliance by the entities subject to the draft regulation with specific requirements and principles applied by BNR in the field of oversight of payment systems, securities settlement systems and payment instruments. The ECB recommends adding to this purpose a more general purpose, which is the provision of data for participation in ESCBrelated tasks and also ensuring the general availability of information. 3.6 With regard to the assessment of systems, ‘the objectives and responsibilities as well as roles and major policies of … the central bank should be clearly defined and publicly disclosed’ . Although there is a Memorandum of understanding between BNR, the National Securities Commission and the Insurance Supervisory Commission on cooperation aimed at promoting the stability of the financial system under which the parties agree to exchange information to ensure the proper licensing, regulation and supervision of the financial system, BNR could also set out the criteria under which BNR and the National Securities Commission may exchange information in the draft regulation.

text: 14 See paragraph 13 of ECB Opinion

text: of 7 August 2003 at the request of Banca d’Italia on a draft regulation on payment systems, payment infrastructures and payment instruments.

text: 15 See CPSS-IOSCO Recommendations for securities settlement systems, 2001, No 18, paragraph 3.86.

text: 16 Signed on 10 March 2006, as amended by the Additional Act No 1 of 14.12.2006. 3.7

text: Article 16

text: (b) of the draft regulation states that BNR ‘may apply sanctions, according to banking legislation’, if the persons performing activities subject to the scope of the draft regulation do not comply with the recommendations and/or adjustments set out by BNR. As the entities subject to the scope of the draft regulation may not always be credit institutions, the reference to banking legislation under this

text: Article 16

text: (b) seems ambiguous regarding its scope of application. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 21 September 2007. [signed] The President of the ECB Jean-Claude TRICHET