text: OJ L 189, 3.7.1998, p. 42. 2 See the German Insolvenzordnung (Insolvency Law) of 5 October 1994 and the French Code de commerce (Commercial Code), Article L. 610-1 et seq., as amended by Loi n° 2005-845 du 26 juillet 2005 de sauvegarde des entreprises (Law No 2005-845 of 26 July 2005 on the preservation of undertakings).

text: It should be noted that these provisions generally repeat those contained in the most recent ‘harmonisation’ amendment of the Bankruptcy Act, which entered into force on 29 September 2005 and is a part of the Act on financial conglomerates No 377/2005 Coll. 4 These are principally Directive

text: of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ L 125, 5.5.2001, p. 15) and Directive

text: of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings (OJ L 110, 20.4.2001, p. 28), as well as certain adaptations required as a result of

text: Council Regulation (EC) No 1346/2000 of 29 May 2000

text: on insolvency proceedings (OJ L 160, 30.6.2000, p. 1), as amended by

text: Council Regulation (EC) No 603/2005 of 12 April 2005

text: amending the lists of insolvency proceedings, winding-up proceedings and liquidators in Annexes A, B and C to

text: Regulation (EC) No 1346/2000

text: on insolvency proceedings (OJ L 100, 20.4.2005, p. 1).

text: See, for example, the World Bank Country Study, ‘Czech Republic: Completing the Transformation of Banks and Enterprises’ (in particular Section 3, entitled ‘The need to reform the legal framework’, pp. 24-55), November 2000. See also ‘Report on Observance of Standards & Codes – Insolvency and Creditor Rights Systems: Czech Republic’, April 2001. These and other World Bank reports mentioned herein are available or cross-referenced on the World Bank’s website (www.worldbank.org).

text: See IMF Country Report No 04/4, ‘Czech Republic – Report on the Observance of Standards and Codes – Banking Supervision – Update’, p. 3, Section III.3 (entitled ‘Preconditions for effective banking supervision’), paragraph (ii), January 2004; available on the IMF’s website (www.imf.org).

text: See also the earlier World Bank Country Study, ‘Czech Republic: Toward EU Accession – Main Report’, pp. 118 and 119 (section entitled ‘Reform of the collateral and bankruptcy framework’), September 1999.

text: A World Bank comparative study, ‘Doing Business, Topic Reports: Bankruptcy’, of January 2003 found the average length of bankruptcy proceedings in the Czech Republic (9.2 years) to be approximately four times that of the EU average, including the acceding Member States.

text: The lack of time constraints on the court’s performance of its procedural tasks in insolvency cases has also been criticised (see the World Bank Policy Note, ‘Czech Republic: Insolvency and Creditor Rights Systems’, p. 20, paragraph 49 (in the section entitled ‘Recommendations and Next Steps’) and p. 9, February 2004).

text: Large corporate debtors are entrepreneurs and undertakings which have an annual turnover of at least CZK 100 million and at least 100 employees (Article 221(4) of the draft insolvency law) and are not entities which cannot be subject to reorganisation proceedings, such as commodities brokers, securities dealers and any legal entity that is in liquidation.

text: In other words, as a means of rehabilitating the insolvent business. Reorganisation proceedings are defined as ‘the gradual satisfaction of creditor claims whilst keeping the debtor’s business operational, secured by measures for the rehabilitation of the operations of the business under a court-approved reorganisation plan together with regular controls on compliance by the creditors with that plan’ (Article 221(1) of the draft insolvency law).

text: See the explanatory memorandum to the draft insolvency law.

text: See the World Bank Policy Note entitled ‘Czech Republic: Insolvency and Creditor Rights Systems’, February 2004.

text: Under the Bankruptcy Act, secured creditors are entitled to a maximum 70 % of the amount of any realised asset value; the balance of 30 % is treated as an ordinary claim. By contrast, under Article 1(2) of the draft insolvency law, the purpose of insolvency proceedings is stated to be to ‘achieve the highest degree of … satisfaction for the [insolvent] debtor’s creditors’ [claims], under the conditions laid down in this law’.

text: Parts Six to Eleven (Articles

text: ) of the Act on banks No 21/1992 Coll., as amended, in particular enforced administration under

text: Article 27

text: et seq. thereof.

text: Although it is noted that one of the ČNB, the delicensed bank or any one of its creditors may apply to have the bank declared insolvent (Articles 273(1) and 60 of the draft insolvency law).

text: Act on banks No 21/1992 Coll., as amended.

text: Alhough even in insolvency proceedings the role of the banking supervisory authority will be crucial to any solution for the bank and its depositors.

title: Opinion of the European Central Bank of 18 October 2005 at the request of the Czech Ministry of Justice on a draft law on insolvency and the means of its resolution and on a draft law amending certain laws in connection with the adoption of the law on insolvency (CON/2005/36)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 18 October 2005 at the request of the Czech Ministry of Justice on a draft law on insolvency and the means of its resolution and on a draft law amending certain laws in connection with the adoption of the law on insolvency (

text: 1. On 29 July 2005 the European Central Bank (ECB) received a request from the Czech Ministry of Justice (hereinafter the ‘Ministry’) for an opinion on a draft law on insolvency and the means of its resolution (hereinafter the ‘draft insolvency law’) and a draft law amending certain laws in connection with the adoption of the law on insolvency and the means of its resolution (both draft laws hereinafter referred to collectively as the ‘draft laws’).

text: 2. The ECB’s competence to deliver an opinion is based 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 laws affect the powers of Česká národní banka (ČNB) and contain rules applicable to financial institutions which 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. The draft laws

text: 3. The draft laws replace the current insolvency framework contained in the Act on bankruptcy and composition of claims No 328/1991 Coll., as amended (hereinafter the ‘Bankruptcy Act’). The main purpose of the draft laws is to overhaul and modernise Czech insolvency law, by introducing new means of resolving insolvency other than bankruptcy, such as reorganisation, discharge of debt and other specialised proceedings for particular types of entities, including financial institutions. The provisions on reorganisation proceedings, in particular, are inspired by Chapter 11 of the US Bankruptcy Code of 1978 and similar insolvency law reforms in a number of EU Member States, including Germany and France . The draft laws also contain provisions on special insolvency

text: proceedings for financial institutions , which are intended to transpose a number of EC directives

text: in this area . The draft laws thus mainly reform corporate insolvency procedures, but they are also

text: relevant to banks and other financial institutions. The draft laws will enter into force on

text: 1 January 2006.

text: Comments on the general framework for corporate insolvency and creditors’ rights

text: 4. The Czech legal framework for corporate insolvency has been closely monitored in recent years by

text: the international financial community. The ECB understands that, despite certain constructive

text: amendments to the Bankruptcy Act in 2000, international financial institutions such as the World

text: Bank and the International Monetary Fund (IMF) have criticised insolvency proceedings under

text: the Bankruptcy Act as being slow, inefficient and dysfunctional . The ECB understands that the

text: Bankruptcy Act is still widely considered to be unsuitable for current market conditions; Czech

text: banks and other public-sector undertakings have been privatised and now compete with

text: counterparts from other Member States which have more highly developed insolvency regimes .

text: The ECB also understands that the current insolvency regime is seen as hostile to creditors’ rights

text: and debt enforcement. The ECB understands that recovery rates in respect of creditors’ security are

text: particularly low, largely due to weak debt enforcement and to creditors having little effective

text: control over insolvency proceedings, which are largely under the control of the courts (with a

text: single judge sitting at first instance) and the court-appointed bankruptcy administrator. This is of

text: particular concern for banks and other financial institutions that have secured claims against a

text: debtor. If secured creditors have no confidence that their security rights will be protected upon a

text: debtor’s insolvency, this will have a negative impact on bank lending terms and heighten systemic risks within the banking system. Against this background, the ECB generally welcomes the draft laws, which represent a serious attempt to reform Czech insolvency law and which take into account these perceived shortcomings. 5. One of the key reforms introduced by the draft insolvency law is that large corporate debtors which are insolvent or face the risk of insolvency are entitled to file for reorganisation of their business (i.e. a court-approved plan of protection against their creditors) as an alternative to bankruptcy. This is an important legal reform as bankruptcy proceedings in the Czech Republic, once commenced, currently only provide for the liquidation of the debtor’s business and the sale of assets to satisfy creditors’ claims, leaving no possibility of saving the debtor’s business. The ECB notes that, under the Bankruptcy Act, the vast majority of insolvencies lead to bankruptcy proceedings and that composition of claims, which is the only alternative insolvency procedure enabling debtors to enter into voluntary arrangements with their creditors, is rarely used in practice . The ECB understands that, under the present system, bankruptcy involves a generally slow process of auctioning off bankruptcy assets under court supervision, without the active involvement of creditors. By enabling bona fide insolvent undertakings to agree with creditors on a reorganisation plan, and have it approved by the courts, and by introducing deadlines by which the courts must take individual decisions within the insolvency proceedings, undertakings should emerge from insolvency more quickly than under the present regime. Additionally, if more undertakings are approved for reorganisation rather than declared bankrupt, this should over time reduce the number of bankruptcies administered by the courts, which already have a considerable backlog of bankruptcy petitions . 6. Another key set of reforms in the draft insolvency law concerns proposed improvements to creditors’ rights. For example, under the conditions of the draft insolvency law the courts will only be able to refuse a decision by the creditors’ meeting to appoint a new insolvency administrator on the limited grounds set out in the draft insolvency law. Also, the courts will now be required to call a creditors’ meeting, the basic creditors’ body, not only upon the request of the insolvency administrator or the creditors’ committee (comprising creditors’ representatives) but also upon the request of at least two significant creditors . In reorganisation proceedings, the creditors’ meeting must also approve any reorganisation plan presented by the debtor. Secured creditors who have lent

text: to the debtor against security over the debtors’ assets are entitled to 100 % of their security, generally according to their ranking and after deducting the costs of realisation . The general principle that the purpose of insolvency proceedings is the satisfaction of creditors’ claims is stated more explicitly in the draft insolvency law than in the Bankruptcy Act. In line with that principle, the provision of the Bankruptcy Act limiting the maximum amount that may be used to repay the creditor’s security to 70 % of the value of the realised security is repealed . The ECB generally welcomes these improvements to creditors’ rights. Nonetheless, it is aware that the draft laws will not, on their own, improve the efficiency of insolvency proceedings in the Czech Republic. For example, the efficient resolution of any insolvency proceedings continues to depend on the high level of integrity and professionalism of insolvency administrators. The ECB understands that the Ministry plans to supplement the draft laws with a separate law on insolvency administrators and on the establishment of an association of insolvency administrators, which would include measures to enhance the professional requirements applicable to insolvency administrators. The ECB is generally supportive of the Ministry’s plans in this regard. Special insolvency regime for banks 7. Under the draft insolvency law, the application of insolvency proceedings to banks is strictly limited. First, the draft insolvency law is stated only to apply to a bank whose licence has been revoked by ČNB . Secondly, the draft insolvency law states that the only form of insolvency proceedings that the court may apply in respect of a bank whose licence has been revoked are bankruptcy proceedings . All other forms of insolvency proceedings or related measures provided for in the draft insolvency law, such as reorganisation, discharge of debts, moratoria, and provisional moratoria, are expressly excluded from applying to a bank whose licence has been revoked. Moreover, the regulatory and administrative powers of ČNB over banks at the preinsolvency stage have not been changed under the draft laws, except insofar as was necessary pursuant to Directive

text: . 8. The ECB welcomes the fact that the draft insolvency law excludes banks from insolvency proceedings while they are still licensed to carry on business . By making revocation of a bank’s licence by ČNB a precondition for the start of insolvency proceedings (i.e. the entity has ceased to

text: be a bank), the draft insolvency law acknowledges ČNB’s sole responsibility for supervising banks that are in financial difficulties, and for deciding when insolvency proceedings should be commenced against such banks. Furthermore, by means of this precondition, the draft insolvency law effectively insulates the banking supervision regime, which is under ČNB’s responsibility, from the general insolvency regime, which remains under the responsibility of the courts. There is consequently little risk of the two legal regimes overlapping and competing . 9. The ECB notes that the question of whether a special insolvency regime should apply to banks, or whether the general insolvency law should apply to banks and be under the responsibility of the courts, is a matter of legitimate debate among bank insolvency experts. Many Member States have adopted the latter approach, as a result of their particular constitutional and legal traditions. In the ECB’s view, whatever approach is taken, there are sound reasons for having a clear division of responsibilities between the banking supervisory authority and the courts as regards bank insolvency. It is generally accepted that banks play a special role in the economy, and for that reason their insolvency cannot be handled in the same way as that of other corporate debtors. To ensure public confidence in the banking system and generally to prevent systemic risks to other banks, the banking supervisory authority must be able to act quickly and decisively when a bank is in difficulty, not only in the interest of depositors (who should be protected by a deposit insurance scheme) and other creditors of the bank, but also in the interests of the stability of the banking and financial system as a whole. 10. In many cases the banking supervisory authority will be best placed to assess whether a distressed bank is able to continue in business or must be liquidated. In the specific Czech context, ČNB is likely to be better equipped to make such a judgement than the civil courts. ČNB has a wide range of regulatory and administrative powers under Czech law that it may use to sanction a bank or oblige a bank to remedy any shortcomings in its activities at the pre-insolvency stage. The draft insolvency law correctly assumes that when those statutory powers prove ineffective, ČNB should be able to decide whether to refer the distressed bank to the courts. If it decides to do so, the courts are then responsible for declaring the bank insolvent and for overseeing the bankruptcy proceedings, including sale of the bank’s assets and satisfaction of the bank’s depositors and other creditors , as well as for ensuring that the parties are given a fair hearing in the proceedings.

text: 11. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 18 October 2005. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: Entwurf einer Zweiundsiebzigsten Verordnung zur Änderung der Außenwirtschaftsverordnung (draft 72nd regulation amending the Foreign Trade and Payments Regulation). 2 OJ L 189, 3.7.1998, p. 42. 3 The treatment of cross-border payments between EUR 12 500 and EUR 50 000 will change at EU level on 1 January 2006, pursuant to

text: Article 3(3) of Regulation (EC) No 2560/2001

text: of the European Parliament and of the Council of 19 December 2001 on cross-border payments in euro (OJ L 344, 28.12.2001, p. 13).

text: Third edition, 1996; available on the OECD’s website (www.oecd.org).

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 21 October 2005 at the request of the German Federal Ministry of Economics and Labour on a draft regulation amending the Foreign Trade and Payments Regulation (CON/2005/37)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 21 October 2005 at the request of the German Federal Ministry of Economics and Labour on a draft regulation amending the Foreign Trade and Payments Regulation (

type: rubrik

text: 1. On 22 September 2005 the European Central Bank (ECB) received a request from the German Federal Ministry of Economics and Labour for an opinion on a draft regulation amending the Foreign Trade and Payments Regulation (hereinafter the ‘draft regulation’).

type: stycke

text: 2. The ECB’s competence to deliver an opinion is based on the fourth 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 provisions , as it contains provisions concerning the collection, compilation and distribution of financial and balance of payments 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: 3. The contents of the draft regulation The draft regulation covers reporting obligations for payment transactions. Since the EU standard transfer order does not contain a statistical reporting field, the draft regulation provides that statistical data for payments between EUR 12 500 and EUR 50 000 from 1 January 2006 will be collected using different forms from those currently used .

text: 4. Another aspect of the draft regulation is that, for the purposes of statistical reporting, the Austrian areas of Jungholz and Mittelberg will no longer be treated as German economic areas, but rather as Austrian economic areas. This reflects the fact that when Austria acceded to the European Union in 1995 and to economic and monetary union in 1999, the Austrian areas of Jungholz and Mittelberg lost a major share of their former special status as part of the German customs area. For EU statistical purposes, they are treated as part of Austria, in particular for the purposes of EU foreign trade statistics and the system of accounts, as well as in the ECB’s monetary and balance of payments statistics.

text: 5. The draft regulation also provides for some streamlining of reporting, such as dispensing with the requirement to submit duplicates. Originally, for each financial transaction reporting agents were required to provide data about both the securities/financial derivatives leg and the payment leg. The draft regulation specifies that although in certain cases the payment leg will no longer be reported, the securities/financial derivatives leg still needs to be reported.

text: 6. As regards foreign direct investment, the draft regulation contains a requirement to provide, at the time of first submission of data, a reason why reporting is required. This brings the reporting of foreign direct investment into line with the data requirements of the relevant international organisations, (the Organisation for Economic Co-operation and Development (OECD) and the International Monetary Fund (IMF)), in particular the OECD Benchmark Definition of Foreign Direct Investment .

text: 7. Assessment of the draft regulation The ECB welcomes the draft regulation as it brings German reporting requirements into line with international statistical standards. This will further enhance the international comparability of German statistics and may reduce asymmetries between the statistics of one Member State and another in relation to the same cross-border transaction, with a concomitantly positive effect on the quality of euro area statistics. The ECB also sees the draft regulation as an important step towards streamlining the German system of collecting data on cross-border transactions.

text: 8. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 21 October 2005. [ signed ] The President of the ECB Jean-Claude TRICHET

type: vagledning

utgivare: ecb


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

text: Article 126(2) of the Constitution states that the Chair of Lietuvos bankas’ Board is appointed by the Parliament on the recommendation of the President of the Republic. 3 With the exception of the persons specified in Article 74 of the Constitution. Article 74 of the Constitution concerns the impeachment procedure, which does not apply to the Chair of Lietuvos bankas’ Board. 4 Ruling of the Constitutional Court of the Republic of Lithuania of 24 January 2003 (Valstybės žinios, 2003, No 10-366).

text: See, for example, European Monetary Institute, Progress Towards Convergence 1996, p. 101; European Monetary Institute, Convergence Report: Report required by

text: Article 109

text: j of the Treaty establishing the European Community (1998), pp. 12, 294; European Central Bank, Convergence Report 2004, p. 27. 6 P. 225. 7 Article 12(1) of the Lietuvos bankas Act provides, inter alia, that the Chair of Lietuvos bankas’ Board is dismissed prior to the expiration of his/her term of office only if he/she does not fulfil the conditions required for the performance of his/her duties or he/she has been found guilty of serious misconduct.

title: Opinion of the European Central Bank of 26 October 2005 at the request of Lietuvos bankas on a draft law amending Article 125 of the Constitution of the Republic of Lithuania (CON/2005/38)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 26 October 2005 at the request of Lietuvos bankas on a draft law amending Article 125 of the Constitution of the Republic of Lithuania (

text: 1. On 30 September 2005 the European Central Bank (ECB) received a request from Lietuvos bankas for an opinion on a draft law amending Article 125 of the Constitution of the Republic of Lithuania (hereinafter the ‘draft law’).

text: 2. The ECB’s competence to deliver an opinion is based on the first and third indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to currency matters and Lietuvos bankas. 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: 3. Article 125(2) of the Constitution of the Republic of Lithuania currently provides that ‘the right of issue of currency shall belong exclusively to Lietuvos bankas’. The draft law amends this article so that it reads ‘the right of issue of currency shall belong to Lietuvos bankas’. The word ‘exclusively’ is therefore deleted. The ECB notes, however, that further changes to

text: Article 125(2)

text: are necessary in order to ensure, upon adoption of the euro by Lithuania, that the Constitution is compatible with the Treaty establishing the European Community and the Statute of the European System of Central Banks and of the European Central Bank. It is recalled that the ECB’s Convergence Report 2004 stated that all national legislation referring to Lithuania’s national currency must be brought in line with the Treaty and the Statute. In this context, the ECB raises two major concerns. First, the competence to issue euro banknotes derives from Article 106(1) of the Treaty and Article 16 of the Statute which provide that the ECB and the national central banks of the Member States which have adopted the euro (hereinafter the ‘participating Member States’) may issue banknotes which are the only banknotes to have legal tender status within the participating Member States. It is therefore Community law that foresees a plurality of issuers of euro banknotes, including Lietuvos bankas when the euro is eventually introduced in Lithuania. The draft law fails to recognise that the power to issue euro banknotes is based on Community not national law, and that it foresees a plurality of issuers. Second, Article 106(1) of the Treaty and Article 16 of the Statute provide that the ECB’s Governing Council has the exclusive right to authorise the issue of banknotes within the Community, and, under Article 106(2) of the Treaty, it also has the right to approve the volume of the issue of euro coins by Member States. The issuance of euro banknotes and coins is therefore subject to the conditions listed in the Treaty and the Statute. National legislation must recognise that the Governing Council has such rights; the current wording of the draft law does not do so. In order to address these concerns and to eliminate incompatibilities, the ECB suggests inserting in the draft law references to the Treaty and the Statute. In particular, the draft law should state that Lietuvos bankas ‘shall have the right, in accordance with the Treaty establishing the European Community, to issue banknotes’. To the extent that Lietuvos bankas is also entrusted to issue coins, the draft law should provide that Lietuvos bankas ‘shall have the right, subject to the Treaty establishing the European Community, to issue coins’.

text: 4. The draft law is silent as to its date of entry into force. The ECB notes that any provisions thereof recognising that the power to issue euro banknotes and coins is based on Community law and that the ECB has the right to authorise the issue of banknotes and to approve the volume of issuance of coins should take effect as of the date on which Lithuania’s derogation is abrogated.

text: 5. The ECB notes that the draft law does not address another issue concerning the compatibility of the Constitution with the Treaty and the Statute. This concerns the personal independence of the Chair of Lietuvos bankas’ Board. Such independence is ensured by Article 14.2 of the Statute which states, inter alia, that a ‘Governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct’.

text: 6. The ECB notes that, in accordance with Article 75 of the Constitution, the Parliament may remove 2 3 officials appointed or chosen by it by a majority vote of all members of no confidence in the officials in question. In addition,

text: Article 84(13)

text: provides that the President of the Republic may recommend that the Parliament express no confidence in the Chair of Lietuvos bankas’ Board. The Constitutional Court of the Republic of Lithuania holds the view that ‘the expression of no confidence is the ground for dismissal of an official appointed or elected by the Parliament’ .

text: 7. The ECB considers that as Articles 75 and 84(13) of the Constitution add a new ground for dismissal, the vote of no confidence, they do not comply with Article 14.2 of the Statute. The ECB (and, previously, the European Monetary Institute) has repeatedly affirmed that national law cannot provide for any other grounds than the ones foreseen by Article 14.2 of the Statute for dismissal of governors . In particular, in the Convergence Report 2004 the ECB observed that ‘under Articles 75 and 84(13) of the Constitution, Lithuania’s Parliament … may remove officials appointed or chosen by the Parliament, including the Chair of Lietuvos bankas’ Board, by a majority vote by all members of no confidence in the officials in question. The ground for dismissal, the vote of no confidence, does not comply with Article 14.2 of the Statute, and therefore must be adapted accordingly’ .

text: 8. Taking into account that the procedure for the dismissal of the Chair of Lietuvos bankas’ Board is set out in Articles

text: and

text: and (3) of the Lietuvos bankas Act and that these provisions refer to the grounds for dismissal listed in

text: Article 12(1)

text: thereof , the incompatibilities of Articles 75 and 84(13) of the Constitution with the Treaty and the Statute should be removed by excluding the Chair of Lietuvos bankas’ Board from the scope of application of Articles 75 and 84(13) of the Constitution.

text: 9. The compliance of Lithuanian law with the Treaty and the Statute will be assessed in accordance with the procedure laid down in Article 122(2) of the Treaty.

text: 10. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 26 October 2005. [signed] The President of the ECB Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 ECB Opinion

text: of 15 July 2005.

text: See the explanatory memorandum to the revised draft law. 4 Slovakia has also recently concentrated responsibility for financial supervision within its NCB (see ECB Opinion

text: of 22 September 2004 at the request of Národná banka Slovenska on a draft law on supervision of the financial market and on amendments to certain laws). 5 Article 2 of the draft amendment to the Act on the Securities Commission (to be renamed Act on supervision of the capital markets) which forms part of the revised draft law. 6 See

text: Article 2(2)

text: (d) of the Act No 6/1993 Coll., on Česká národní banka (hereinafter the ‘ČNB Act’), as amended by the revised draft law. Article 44(2) of the ČNB Act, as amended by the revised draft law, also defines ČNB supervision by listing the various tasks that the fulfilment of this function involves.

text: Clauses to that effect might be added to Article 2 of the draft amendment to the ČNB Act and also to Article 2 of the draft law on supervision of the capital market. 8 ČNB’s task of contributing to the stability of the financial system may be understood as an overarching goal of the supervision it performs, whereas investor protection, however important, is only one further objective of that supervision.

text: Article 45

text: a of the ČNB Act, as amended by the revised draft law.

text: See the Act No. 229/2002 Coll., on the financial arbiter, as amended.

text: The ECB notes, however, that in each case the term of the transitional period is not specified.

text: The ECB notes, however, that in the case of the draft amendment to the Act No 87/1995 Coll., on savings and credit cooperatives, as amended, there is no specific mention of employees being transferred from the OSCB to ČNB. The

text: transitional provisions to that draft amendment state that ‘rights and obligations … from property and other legal relations shall be transferred upon the effective date from the OSCB to ČNB’. The ECB understands that only a small number of employees (approximately 10) presently work at the OSCB and will therefore be affected by the transfer.

text: In addition, in the case of the SEC, any other property and connected obligations of that supervisor shall be settled by the Ministry of Finance.

text: Or in which the other supervisor was representing the State.

text: Act No 82/1998 Coll., on State liability for damages caused in the course of the exercise of public authority by decisions or improper administrative action, as amended; especially

text: Articles 3

text: (a) and 13 thereof.

title: Opinion of the European Central Bank of 28 October 2005 at the request of Česká národní banka on a comprehensive proposal to amend the draft law on the amendment of laws in connection with the integration of financial market supervision (CON/2005/39)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 28 October 2005 at the request of Česká národní banka on a comprehensive proposal to amend the draft law on the amendment of laws in connection with the integration of financial market supervision (

text: 1. On 21 September 2005, the European Central Bank (ECB) received a request from Česká národní banka (ČNB) for an opinion on a comprehensive proposal to amend the draft law on the amendment of laws in connection with the integration of financial market supervision (hereinafter the ‘revised draft law’).

text: 2. The ECB’s competence to deliver an opinion is based 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 revised draft law contains provisions concerning a national central bank (NCB) and rules applicable to financial institutions that 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. Integration of financial market supervision

text: 3. The purpose of the revised draft law is to establish the legal framework for integrated supervision of the Czech financial markets by ČNB. At present, ČNB is one of four financial market supervisors in the Czech Republic and is responsible for the supervision of credit institutions other than cooperative banks. The other financial market supervisors are the Securities Commission (SEC), the Office for the Supervision of Insurance and Pension Funds (OSIPF), which forms part of the Ministry of Finance, and the Office for Supervision of Cooperative Banks (OSCB) (hereinafter referred to collectively as the ‘other supervisors’). The revised draft law amends an earlier legislative proposal, which was also submitted to the ECB for consultation . That proposal only provided for the integration of the OSCB into ČNB as the first step in a broader reorganisation of financial market supervision whereby the number of supervisors would be reduced to two, with ČNB as the banking supervisor and the SEC as the non-banking sector supervisor. Under the revised draft law, however, which enters into force on 1 April 2006 (hereinafter the ‘effective date’), all three of the other supervisors will be dissolved and their responsibilities and staff will be transferred to ČNB.

text: 4. The ECB understands that the revised draft law has been agreed by ČNB and the Czech Ministry of Finance and that the Czech Government also supports the proposals set out in the revised draft law . The ECB welcomes the proposal to integrate all the other supervisors within ČNB. The ECB considers that in a Member State with a relatively small financial market, such as the Czech Republic, there are strong arguments for concentrating supervisory responsibilities in the hands of a single authority .

text: 5. The ECB considers that the proposed extension of ČNB’s supervisory tasks to non-banking supervision is compatible with its tasks in relation to the European System of Central Banks. In particular, the ECB welcomes the fact that the task of performing prudential supervision of all financial market intermediaries will be transferred to ČNB. Faced with the increasing blurring of traditional borders between the banking, securities and insurance sectors and the resulting new challenges to prudential supervision and the stability of the financial system, an NCB with overall responsibility for the financial markets is likely to cope better than several supervisors whose supervisory competences are limited to a particular financial sector. Financial stability

text: 6. The ECB takes note that the revised draft law specifies that in performing capital market supervision ČNB will contribute to investor protection and strengthen confidence in the capital markets . The revised draft law also adds to ČNB’s tasks the task of ‘taking care of the safe functioning and development of the financial market’ . Whilst these definitions of ČNB’s supervisory role and objectives are welcome, the ECB considers that the revised draft law should clearly recognise ČNB’s wider role of: (i) safeguarding the security and soundness of financial institutions, and (ii) safeguarding the stability of the financial system as a whole. The focus of NCBs on systemic stability in performing their tasks means that they can better assess not only the likelihood and the potential impact of macro-economic shocks or disturbances in domestic and international capital markets, but also the operation of common factors affecting the stability of groups of financial intermediaries. For these reasons, the ECB would welcome it if the revised draft law expressly recognised, as is the case in the statutes of other Member States’ NCBs, that ČNB has the wider task of contributing to the stability of the financial system as a whole . A clear distinction could also be made in the supervisory framework between the objective of financial stability and that of investor protection, particularly as these two objectives may not always be mutually supportive and may occasionally even conflict . The Committee for the financial market

text: 7. The ECB notes that the revised draft law establishes a ‘Committee for the financial market’ (CFM). The CFM will act as an expert consultative body to ČNB’s Bank Board (hereinafter the ‘Bank Board’) on the situation and development of the financial market and on the strategy and longer term perspective for financial market supervision. The CFM comprises seven expert members, three of whom (including the Chairman and Vice-Chairman) will be elected by the budgetary committee of the lower house of Parliament on a proposal from professional and interested organisations, while another two members will be drawn from the Ministry of Finance and appointed and recalled by the Minister of Finance. The two remaining members will comprise one member of the Bank Board and the financial arbiter . CFM members are required to exercise their functions independently and they are not remunerated. The ECB understands that the CFM will be a purely consultative body whose main tasks will be to issue opinions and recommendations to the Bank Board in its fields of its competence. In no circumstances will the CFM be able to directly or indirectly determine the Bank Board’s decision making. On that basis, the ECB broadly welcomes the establishment of the CFM, which should provide wide-ranging expertise to the Bank Board which will be useful in exercising its new responsibility for supervising the financial market. ČNB’s succession to the rights and obligations of the other supervisors

text: 8. The ECB notes that under the revised draft law, the transfer of competences from each of the other supervisors to ČNB is regulated by separate transitional provisions relating to that particular supervisor . These provisions expressly provide that on the effective date the other supervisor in question will be dissolved, with all its statutory competences passing to ČNB, and that its employees will become ČNB employees . These provisions also lay down that on the effective date any right to manage State-owned property (apart from real property) previously held by the other supervisor and which is necessary to carry out its supervisory functions will cease and that the property (and obligations relating to that property) will pass to ČNB . The details of these property transfers will be determined by an agreement between ČNB and the Ministry of Finance. The provisions also state that, from the effective date, ČNB will be substituted for the other supervisor in any proceedings to which it was a party and which commenced prior to the effective date. Moreover, the revised draft law expressly provides that the State will meet any financial obligations incurred by ČNB as a result of ČNB being substituted for one of the other supervisors either in any proceedings to which the latter was a party on the effective date or in any proceedings which commenced after the effective date but which relate to the activities of the other supervisor under the then existing legal regulations. 9. The ECB welcomes the transitional provisions of the revised draft law. They appear, when assessed in conjunction with the State Liability Act , to effectively insulate ČNB from financial obligations resulting from the activities of the other supervisors. These provisions do not therefore require assessment from the perspective of ČNB’s financial independence and its compliance with the prohibition on monetary financing under the Treaty. 10. Finally, the ECB would appreciate being provided, for information purposes, with the following: (i) a detailed description of the proposed organisational scheme and division of supervisory powers within ČNB from 1 April 2006; and (ii) a copy of any agreement concluded between the Ministry of Finance and ČNB as regards the transfer of property and connected obligations from any of the other supervisors to ČNB under the transitional provisions of the revised draft law. 11. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 28 October 2005. [signed] The President of the ECB Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 ECB Opinion

text: of 15 June 2004 at the request of the French Ministry of Economic Affairs, Finance and Industry on certain provisions of a draft order reforming transferable securities issued by joint-stock companies. 3 Order No 2005-303 of 31 March 2005 (Official Journal of the French Republic No 76, 1 April 2005) amending Articles L.431-2 and L.431-3 of the Code was ratified by Law No 2005-811 of 20 July 2005 (Official Journal of the French Republic, No 168, 21 July 2005).

text: General Regulation, Book V on market infrastructures, Title VI. This Title is provisionally entitled ‘Transfer of ownership of financial instruments - Date and conditions of the entry of financial instruments in the purchaser’s account’.

text: In its opinion

text: of 15 June 2004, the ECB stressed that ‘the ECB may review its position … once it has comprehensively assessed the implementing measures contained in the AMF's General Regulation’.

text: General Regulation, draft Article

text: . 7 General Regulation, draft Articles

text: to 560-8 and Article

text: Communication from the Commission to the Council and the European Parliament of 28 April 2004 entitled ‘Clearing and Settlement in the European Union – The way forward’, COM(2004) 312 final, p. 25.

text: Explanatory report to Order No 2005-303 of 31 March 2005 addressed to the President of the French Republic (Official Journal of the French Republic, No 76, 1 April 2005).

text: ‘Standards for securities clearing and settlement in the European Union, September 2004 report’. Standard 3: Settlement cycles and operating times, pp. 11 and 23.

title: Opinion of the European Central Bank of 28 October 2005 at the request of the French Financial Markets Authority on draft amendments to its General Regulation (CON/2005/40)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 28 October 2005 at the request of the French Financial Markets Authority on draft amendments to its General Regulation (

text: 1. On 22 September 2005 the European Central Bank (ECB) received a request from the Autorité des marchés financiers (AMF) (French Financial Markets Authority) for an opinion on draft amendments to its Règlement Général (General Regulation) (hereinafter the ‘draft amendments’). The draft amendments will simplify the rules applicable to the transfer of ownership of financial instruments admitted to the operations of a central depository or settled through a settlement system.

text: 2. The ECB’s competence to deliver an opinion is based on the fifth and sixth indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft amendments relate to payment and settlement systems 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: 3. The ECB was consulted in 2004 by the French Ministry of Economic Affairs, Finance and Industry on a draft order which contained certain draft amendments to Articles L.431-2 and L.431- 3 of the Monetary and Financial Code (hereinafter the ‘Code’) concerning rules on the transfer of ownership of financial instruments . Article L.431-2 of the Code provides as a principle that ‘the transfer of ownership of financial instruments … occurs on its entry in the purchaser’s account, on the date and subject to the conditions defined by the General Regulation of the AMF’. The draft 4 5 amendments , on which the ECB is now consulted, will define such conditions .

text: 4. The ECB notes that, under the draft amendments, the entry in the purchaser’s account will take place on the date of the actual finalisation of the trade, as indicated in the rules governing the functioning of the settlement and delivery system, when the account of the purchaser’s custodian or of the custodian’s agent is credited on the books of the central depository . The ECB understands that, with the exception of certain situations expressly provided for in the General Regulation , the date of the finalisation of the trade and, simultaneously, of the entry in the account will be three trading days following the date of execution of the orders. 5. As mentioned in its previous opinion, the ECB welcomes the French authorities’ aim of simplifying the existing transfer of ownership regimes for financial instruments and the abolition of the distinction between transactions on and outside regulated markets thus avoiding a potential source of distortion. It is fundamental to the creation and functioning of a safe, efficient and integrated EU clearing and settlement infrastructure to have clear and harmonised rules on transfer of ownership, and in particular concerning the moment of transfer of financial instruments held with central securities depositories. Against this background, the ECB welcomes the fact that the draft amendments will further clarify the applicable rules in this field. In this respect, the ECB fully shares the view of the European Commission, which has identified the rules regarding the transfer of ownership of financial instruments as one of the core legal issues to be addressed by the newly established Legal Certainty group .

text: 6. The ECB notes that the objective of the French reform is to ‘align systems of settlement of financial instruments with international standards’ and ‘to define a single regime for the transfer of property … by providing that the transfer of property takes place at the time of finalisation of the operations, i.e. in practice three days after the trade’ . The rules laid down in the draft amendments are in line with the draft standards proposed by the European System of Central Banks (ESCB) and the Committee of European Securities Regulators (CESR), which retain T+3 settlement as the current European ‘minimum standard’, implying that final settlement should occur no later than T+3 .

text: 7. According to the draft Article 560-5 of the General Regulation, the rules governing the functioning of a market or a multilateral trading facility may provide that, for certain types of transactions, the date on which entries are to be made in the purchasers’ accounts is ‘other than three trading days following the transaction date’. The ECB understands that this provision is intended to cover settlement cycles shorter than three trading days. The ECB notes however that, as currently drafted, Article

text: could also cover settlement cycles longer than three trading days. It is noted in this respect that the draft ESCB/CESR standards recommend further harmonisation of settlement cycles across markets in order to reduce fragmentation of the EU securities markets, and an evaluation of whether a settlement cycle shorter than T+3 is appropriate for certain securities. The ECB therefore suggests amending the above provision to state that the rules governing the functioning of a market or a multilateral trading facility may provide that, for certain types of transactions, the date on which entries are to be made in the purchasers’ accounts is ‘less than three trading days following the transaction date’. 8. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 28 October 2005. [signed] The President of the ECB Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 The ECB was consulted on this Regulation: see ECB Opinion

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

text: See ‘Towards a single euro payments area - Third progress report’, 2 December 2004; available on the ECB website

title: Opinion of the European Central Bank of 1 November 2005 at the request of the Banca d’Italia on a draft regulation concerning the oversight of low-value payment systems (CON/2005/41)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 1 November 2005 at the request of the Banca d’Italia on a draft regulation concerning the oversight of low-value payment systems (

text: 1. On 2 September 2005 the European Central Bank (ECB) received a request from the Banca d’Italia for an opinion on a draft regulation concerning the oversight of low-value payment systems (hereinafter the ‘draft regulation’).

text: 2. The ECB’s competence to deliver an opinion is based on the second, third, fifth 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 provisions , as it contains provisions concerning means of payment, the Banca d’Italia, payment and settlement systems and rules applicable to financial institutions that 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: 3. The contents of the draft regulation The draft regulation concerns the oversight and operation of the BI-COMP system, which covers the clearing and transmission for settlement of low-value payments. BI-COMP consists of two subsystems (Recapiti locale for the exchange of cheques and paper-based instruments and Dettaglio for electronic payment instructions), as well as the national clearing procedure (Compensazione nazionale) to which the balances of the two sub-systems are transmitted. The draft regulation results from the Banca d’Italia’s decision to enable legal persons other than the Banca d’Italia to perform certain parts of the processing of low-value retail payments, which makes it necessary to update the relevant legal framework. More specifically, as regards the Dettaglio sub-system, the draft regulation provides that the phases preceding the calculation of the multilateral clearing balances will no longer be exclusively exercised by the Banca d’Italia, but also by market participants in free competition in accordance with the rules and principles set out in the Regulation concerning the oversight of payment systems issued by the Banca d’Italia on 24 February 2004 . The draft regulation highlights that the Recapiti locale sub-system will continue to be exclusively operated by the Banca d’Italia.

text: 4. The Eurosystem’s policy statement on central bank provision of retail payment services In general, the ECB welcomes the draft regulation’s provisions allowing free competition in the ‘organisation, management and execution of the exchange of payment instructions to be entered in the “Dettaglio” sub-system’. As stated in the Governing Council’s policy statement of 4 August 2005 (hereinafter the ‘Eurosystem policy statement’), ‘in order to avoid competitive distortions or a crowding-out of market initiatives, NCBs [national central banks] which offer retail payment services to credit institutions take due account of the requirements and competitive environment of the market concerned, including cost recovery’. The ECB notes that the opening-up of certain parts of the BI-COMP retail payment system to competition does not raise oversight concerns provided that the systems in question continue to comply with Eurosystem oversight standards. Furthermore, the ECB notes that this opening-up is a policy decision of the Banca d’Italia, the aim of which is to facilitate the creation of the Single Euro Payments Area (SEPA) and to ensure compliance with the Eurosystem policy statement.

text: 5. The opening-up of certain parts of the Dettaglio sub-system to competition The ECB notes that it is clearly the intention of the draft regulation to create free competition in the Dettaglio sub-system. Therefore, the relevant provisions, in particular

text: Article 2

text: , could make this clearer by using wording such as: ‘The organisation, management and execution of payment instructions to be entered in the “Dettaglio” sub-system may be exercised by any person, in compliance with ... ’.

text: 6. Measures to ensure a level playing field The ECB notes that, alongside private operators, the Banca d’Italia itself may continue to organise, manage and execute the exchange of payment instructions to be entered in the Dettaglio subsystem. In order to ensure a level playing field, the recitals to the draft regulation should clarify that the obligations being imposed on private operators are also applicable to the Banca d’Italia in its role as operator. Appropriate measures should be put in place to ensure that observance of these requirements by both private operators and the Banca d’Italia can be transparently assessed.

text: 7. The ECB welcomes the reference in recital 8 to the application of the principle of cost recovery by central banks which directly provide low-value payment services in competition with the market, which is also intended to ensure a level playing field.

text: 8. Also, in the light of the Eurosystem policy statement, the ECB would propose the provision of further explanation regarding the statement in recital 11 that the Banca d’Italia’s exclusive operation is ‘indispensable’ in the phase of determination of the participants’ clearing balances and their consequent transmission for settlement, as far as concerns payment instructions flowing into 3 ‘Central banks’ provision of retail payment services in euro to credit institutions’; available on the ECB website the Dettaglio sub-system. This would clarify that the provision is not intended to prevent private entities from providing comparable services in Italy, outside the scope of BI-COMP (i.e. those services that are described in recital 3 as the components of a clearing process). Otherwise the provision might be considered a competitive distortion or a crowding-out of market initiatives in the retail payments field.

text: 9. The Recapiti locale sub-system The final recital to the draft regulation states that the characteristics of paper-based payment instruments make it ‘advisable’ for the Banca d’Italia to maintain operation of the entire clearing process of the Recapiti locale sub-system. However, it is noted that the explanatory note accompanying the draft regulation refers to ‘specific legal and operational characteristics that preclude the direct intervention of market operators, even in the exchange phase alone, requiring that the entire clearing process continue to be operated by the Bank of Italy’. The ECB understands that this refers to the fact that the Banca d’Italia – as a public authority – may issue an official statement certifying that a cheque has not been paid (dichiarazione sostitutiva del protesto), pursuant to the first paragraph of Article 45 of Royal Decree 1736 of 21 December 1933 (according to which a clearing house can issue such a statement), read in conjunction with Article 18 of Royal Decree-Law 812 of 6 May 1926, ratified as Law 1262 of 25 June 1926 (according to which the Banca d’Italia is responsible for managing clearing houses). However, pursuant to Royal Decree 1736 of 21 December 1933 and Law 349 of 12 June 1973, various other authorities (e.g. public notaries) could issue an equivalent legal document (protesto) if private operators were able to clear cheques. Given the requirement under Article 105(1) of the Treaty establishing the European Community for the Eurosystem to act in accordance with the principle of an open market economy with free competition, the ECB proposes that the relevant Italian authorities amend the abovementioned legislative provisions to ensure that specific functions of the Banca d’Italia in the payment system do not act as a competitive distortion or as a crowding-out of market initiatives in the retail payments field.

text: 10. Oversight requirements Article 2 of the draft regulation sets out the Banca d’Italia’s oversight role in relation to the activities of private operators which will organise, manage and execute the exchange of payment instructions to be entered in the Dettaglio sub-system. This Article builds on the Regulation concerning the oversight of payment systems issued by the Banca d’Italia on 24 February 2004. Payment systems oversight is a core competence of the Eurosystem and the common oversight policy defined by the Governing Council is the basis for the Banca d’Italia’s oversight activities. Article 3 of the draft regulation sets out that system operators will submit regular reports to the Banca d’Italia on the quantitative and qualitative characteristics of their activity. The ECB recommends that the design, reception and processing of these reports is performed in a way that allows the data to be aggregated and the resulting statistics to be delivered to the ECB.

text: 11. SEPA The changes to the BI-COMP system are clearly intended to take account of two important Eurosystem goals: creating SEPA and setting up SEPA-compliant infrastructure allowing for euro area-wide interoperability. In this respect the Eurosystem welcomes the migration from national to SEPA-compliant infrastructures in order to foster competition .

text: 12. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 1 November 2005. [signed] The President of the ECB Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 ‘Core Principles for Systemically Important Payment Systems as the Eurosystem’s oversight standards for such payment systems’, 25 January 2001, available on the ECB’s website at www.ecb.int. 3 ‘Oversight standards for euro retail payment systems’, 26 June 2003, available on the ECB’s website at www.ecb.int.

text: ‘Payment systems business continuity’, 10 May 2005, available on the ECB’s website at www.ecb.int.

title: Opinion of the European Central Bank of 1 November 2005 at the request of Magyar Nemzeti Bank on a draft regulation on the material, technical, security and business continuity requirements for clearing transactions (CON/2005/42)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 1 November 2005 at the request of Magyar Nemzeti Bank on a draft regulation on the material, technical, security and business continuity requirements for clearing transactions (

text: 1. On 20 September 2005 the European Central Bank (ECB) received a request from Magyar Nemzeti Bank for an opinion on a draft regulation on the material, technical, security and business continuity requirements of clearing transactions (hereinafter the ‘draft regulation’).

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft regulation contains provisions concerning means of payment, Magyar Nemzeti Bank, payment and settlement systems and rules that 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: 3. The draft regulation sets out in detail the different material, technical, security and business continuity requirements that clearing houses for credit institutions have to comply with as a precondition to performing their clearing activities, and also Magyar Nemzeti Bank for operating the payment and settlement system. The ECB welcomes the draft regulation, which is instrumental in order to address Core Principle VII (Security and operational reliability) of the Core Principles for Systemically Important Payment Systems of the Committee on Payment and Settlement Systems of the Bank for International Settlements. Core Principle VII requires a system with a high degree of security and operational reliability and contingency arrangements for the timely completion of daily processing. In January 2001, the ECB’s Governing Council adopted the Core Principles for Systemically Important Payment Systems as the Eurosystem’s oversight standards for such payment systems . Subsequently, in June 2003 the Governing Council adopted an oversight framework for retail payment systems operating in euro . The oversight framework is intended to ensure that retail payment systems do not become vectors of systemic risk or economic malfunctioning in the euro area. The Eurosystem has recently consulted the interested public on an issues paper concerning ‘Payment systems business continuity’ . The following suggestions are inspired by this issues paper, and are conveyed without prejudice to the Eurosystem’s future policies on business continuity arrangements for payment systems.

text: 4. The ECB considers that Section 3(3) of the draft regulation should provide that clearing houses for credit institutions and Magyar Nemzeti Bank must introduce contingency and disaster procedures for critical functions in the event of a total failure of the telecommunication networks. It is also suggested that the business continuity arrangements set out in Section 9 of the draft regulation should require a second processing site. Such second processing site should not depend on the same critical infrastructure components used by the primary site (telecommunications, water supply and electric power).

text: 5. The ECB also recommends that Section 11 of the draft regulation should also clarify that clearing systems need a well-defined business continuity strategy endorsed by senior management. Business continuity plans should envisage a variety of plausible scenarios, including major disasters affecting a wide area. Critical functions should be identified and processes within these functions should be categorised according to their criticality. Furthermore, it should also be specified that the operational staff of both the clearing house and the participants (credit institutions) should be thoroughly trained in the use of the business continuity procedures and the recovery and resumption arrangements. In this context, clearing houses could be required to implement the following measures: • business continuity processes and test results should be subject to an auditors’ security review, and • a periodic update and review of the business continuity arrangements ensuring their effectiveness, and • business continuity arrangements could also consider including crisis management information dissemination.

text: 6. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 1 November 2005. [signed] The President of the ECB Jean-Claude TRICHET


text: Last two indents of Article

text: º of the draft law.

text: June 2003; available on the FATF’s website (www.fatf-gafi.org).

text: See in particular FATF Recommendation 33; see also the explanatory memorandum to the draft law, pp. 2 and 3.

text: See Article 5 of the Statute of the European System of Central Banks and of the European Central Bank.

text: 9 also directly with securities settlement institutions . Pursuant to the draft law , the draft decree designates which securities settlement institutions are authorised to maintain dematerialised corporate securities (‘assurer la conservation des titres dématérialisés’) and settle transactions therein. The ECB notes that the supervision by the Commissie voor het Bank, Financie- en Assurantiewezen/Commission bancaire, financière et des assurances (CBFA; the Belgian Banking, Finance and Insurance Commission) of the securities settlement institutions that are authorised to settle transactions in dematerialised corporate securities is already provided for in

text: Article 23

text: , §2 of the Law of 2 August 2002 on the supervision of the financial sector and on financial services. However, contrary to what the Companies Code currently provides, the draft law explicitly charges these securities settlement institutions with the task of maintaining dematerialised corporate securities in addition to the task of settling transactions therein. The ECB understands that the CBFA’s prudential supervision under

text: Article 23

text: , §2 also encompasses these maintenance activities of the securities settlement institutions. 10 11 6. The draft law inserts a new provision into the Companies Code, which allows authorised account holders of dematerialised corporate securities to act as the ultimate depository or custodian (i.e. without having to deposit these securities with a securities settlement institution), provided that: (i) these securities are not listed on a regulated market; (ii) the account owner has agreed to this ultimate holding; and (iii) the entire volume of a particular securities issuance is booked with the issuer in the name of one account holder only. The ECB understands that the NBB may exercise its system oversight in respect of the securities holdings falling under this new provision pursuant to Article 8 of the Organic Law on the Nationale Bank van België/Banque Nationale de Belgique, for instance if such holdings are, as a result, inter alia, of their nature and volume, of systemic importance. The NBB’s ability to exercise such oversight is important in view of the role played by central banks in the oversight of securities settlement systems. 7. Finally, the draft law abolishes two Belgian statutory provisions that prohibit and provide criminal sanctions for: (i) participation in a general meeting vote by registering as an owner of securities which do not, in reality, belong to the participant; and (ii) the delivery of securities in order to allow such participation. The rationale for this abolition is to resolve the legal uncertainty surrounding participation in a general meeting vote with registered shares and bonds that are held through an intermediary . The ECB takes note of this aspect of the draft law, the aim of which is to enhance the efficiency and legal soundness of intermediated book-entry securities.

text: Article 20

text: , §1 of the draft law.

text: Article 20

text: , §2 of the draft law.

text: Article 475

text: ter. 13 See pp. 23 and 24 of the explanatory memorandum.

text: Article 37 of the draft law, inserting a new provision into the Organic Law on the Nationale Bank van België/Banque Nationale de Belgique. 15 Article 8 of the Law of 15 December 2004 on financial collateral and various tax provisions. 16 See, for example, the ECB press release of 22 July 2005 entitled ‘Eurosystem collateral framework: Inclusion of nonmarketable assets in the Single List’ (available at www.ecb.int). 18

text: Article 8

text: , §3 of the Law of 28 April 1999 implementing Directive

text: on settlement finality in payment and securities settlement systems.

title: Opinion of the European Central Bank of 3 November 2005 at the request of the Belgian Ministry of Finance on a draft law abolishing bearer securities and a draft royal decree concerning dematerialised corporate securities (CON/2005/43)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 3 November 2005 at the request of the Belgian Ministry of Finance on a draft law abolishing bearer securities and a draft royal decree concerning dematerialised corporate securities (

text: 1. On 18 July 2005 the European Central Bank (ECB) received a request from the Belgian Ministry of Finance for an opinion on a draft law abolishing bearer securities (hereinafter the ‘draft law’) and a draft royal decree concerning dematerialised corporate securities (hereinafter the ‘draft decree’).

text: 2. The ECB’s competence to deliver an opinion is, for both the draft law and the draft decree, based on Article 105(4) of the Treaty establishing the European Community and on the third, fifth 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 , since: - the draft law: (i) abolishes bearer securities, inter alia to enhance the protection of the integrity of the financial system against possible abuses; (ii) modernises the Belgian legal framework regarding the holding of dematerialised corporate securities and the settlement of transactions therein; and (iii) changes the regime applicable to certain types of collateral provided to the Nationale Bank van België/Banque Nationale de Belgique (NBB). - the draft decree designates and imposes certain requirements on the entities that are authorised to hold dematerialised corporate securities accounts, and designates the entities that are authorised to settle transactions in such securities, with the NBB being a designated entity in both cases (although only for corporate bonds in the latter case).

text: 3. The first objective of the draft law is to abolish bearer securities (e.g. corporate and public debt securities) through a gradual phasing-out of such securities. Under current Belgian law, securities are issued in registered, bearer or dematerialised form, such forms being mutually exclusive. In summary, the abolition is effected through the prohibition of new issuances of bearer securities from 1 January 2008 onwards and through the conversion of existing bearer securities into either registered or dematerialised securities by 1 January 2014. The abolition applies to bearer securities issued by Belgian issuers. Subject to restrictions regarding their physical delivery , certain bearer securities (e.g. commercial paper or corporate bonds) that are exclusively issued outside Belgium or are governed by foreign law do not fall within the scope of this abolition . Moreover, since the draft law applies only to bearer securities issued by entities incorporated under Belgian law, and since there is no limitation on the categories of securities that may be issued under Belgian law, the draft law does not prevent foreign entities from issuing certain categories of bearer securities in Belgium under Belgian law, subject only to the restriction that such securities are not physically deliverable in Belgium .

text: 4. The ECB notes that the revised Forty Recommendations of the Financial Action Task Force on Money Laundering (hereinafter the ‘FATF Recommendations’), setting out international standards for safeguarding the integrity of the financial system, emphasise the importance of customer identification and specifically refer to the risks associated with bearer securities . Furthermore, the effective implementation of FATF Recommendation 5 (‘financial institutions should undertake customer due diligence measures, including identifying and verifying the identity of their customers’) might also be of relevance in this context. Under Belgian law the holders of registered and dematerialised securities can be easily identified, which is, for instance, useful in the context of payments made in relation to securities, e.g. dividends or redemptions, and for ascertaining the capital ownership of legal persons, including financial institutions. A regime under which only registered or dematerialised securities can be issued might contribute to the protection of the integrity of the financial system, and could therefore be an important factor in safeguarding that system’s stability. The ECB therefore welcomes the first objective of the draft law. Furthermore, the ECB notes that the abolition of bearer securities could assist the compilation of statistical data , since statistical authorities in Member States are also often unable to identify the ultimate beneficial owners of bearer securities. In addition, the ECB underlines the usefulness, including for statistical purposes, of systematically allocating a unique and official identification number, preferably the International Securities Identification Number (ISIN, which respects ISO Standard 6166), to securities issued.

text: 5. The second objective of the draft law is to modernise the current legal framework, laid down in the Belgian Companies Code (Wetboek van Vennootschappen/Code des Sociétés), regarding dematerialised and, to a lesser extent, registered securities (e.g. shares, bonds and subscription rights) issued by a naamloze vennootschap/société anonyme (NV/SA) or a commanditaire vennootschap op aandelen/société en commandite par actions (Comm.VA/SCA) incorporated under Belgian law. Under the draft law, dematerialised corporate securities may be held not only with authorised account holders, as is already currently provided for in the Companies Code, but

text: 8. Another objective of the draft law is to amend two existing legal provisions that particularly concern the NBB. First, the draft law extends the application of the simplified enforcement procedure laid down in Belgian law in relation to in rem collateral arrangements and loans for financial instruments, to claims (schuldvorderingen/créances) provided to the NBB as collateral in the framework of the NBB’s credit operations. The ECB welcomes this new provision, which will become particularly relevant when the NBB has to accept large quantities of claims, including bank loans, as adequate collateral within the framework of the Eurosystem’s monetary policy operations. The ECB refers in this context to the introduction of a single list of eligible collateral for such operations, which will from 1 January 2007 include bank loans . Second, the ECB also welcomes another provision of the draft law , which changes the current reference to ‘cash or financial instruments’ as the assets underlying ‘collateral’ within the meaning of the Belgian law implementing Directive

text: of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (hereinafter the ‘Settlement Finality Directive’) with a new reference to ‘all realisable assets (including cash and claims)’. This broader reference is in line with

text: Article 2

text: (m) of the Settlement Finality Directive. Unlike the current reference, it also encompasses assets such as bills of exchange, promissory notes and claims, so that these assets may also benefit from the protection of the Settlement Finality Directive and the Law of 28 April 1999 if they are provided as collateral within payment and securities settlement systems. 9. The ECB has no comments on the draft decree.

text: 10. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 3 November 2005. [signed] The President of the ECB Jean-Claude TRICHET


text: Dziennik Ustaw (Dz. U.) (Journal of Laws) 2002 No 141, Item 1178, as amended. 2 Dz. U. 1999 No 83, Item 930, as amended. 3 OJ L 189, 3.7.1998, p. 42. 4 In this opinion reference is only made to the applicable provisions of the Treaty regarding the free movement of capital and payments. No reference is made to corresponding provisions of the Agreement on the European Economic Area of 2 May 1992, as adjusted by the Protocol of 17 March 1993 (OJ L 1, 3.1.1994, p. 3).

text: Article 6(1) of the Foreign Exchange Law. 6 Article 1(5) of the draft law in conjunction with

text: Article 10(1)

text: (1) of the Foreign Exchange Law. 7 Article 1(5) of the draft law. 8 See

text: Case C-54/99

text: Église de scientologie de Paris and Scientology International Reserves Trust v The Prime Minister [2000] ECR I-1335, Paragraph 17-19 (citing

text: Case 36/75

text: Rutili v Minister for the Interior [1975] ECR 1219, paragraphs 26-27).

text: Article 62 of the Foreign Exchange Law.

text: The definition of a ‘financial institution’ contained in

text: Article 4(1)

text: (7) of the Banking Law of 29 August 1997 (Dz. U. 2002 No 72, Item 665, as amended) reproduces the definition laid down in Directive

text: of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (OJ L 126, 26.5.2000, p. 1). Other statutory definitions of ‘financial institution’ include those contained in

text: Article 4(1)

text: (7) of the Commercial Companies Code of 15 September 2000 (Dz. U. 2000 No 94, Item 1037, as amended) and in Article 2(10) of the Act on Individual Pension Accounts of 20 April 2004 (Dz. U. 2004 No 116, Item 1205). 14 The importance of the application of the principle of non-discrimination with regard to credit institutions should be taken into account with regard to Article 15(2) of the Foreign Exchange Law, where the ECB sees no reason for excluding credit institutions from other Member States from the scope of the exemption in respect of agreements for the sale of foreign means of payment acquired within the framework of foreign exchange market operations, as concluded by a registered business entity with a Polish bank. 15 See Article 9(2) of the Foreign Exchange Law; Paragraphs 6(1) and 8 of the Regulation of 3 September 2002 of the Minister of Finance on general foreign exchange permits (Dz. U. 2002 No 174, Item 1273, as amended) (hereinafter, the ‘General Foreign Exchange Permits Regulation’). Similarly, under the Foreign Exchange Law the exportation and dispatch abroad of domestic or foreign means of payment with an aggregate value in excess of EUR 10 000 is stated, as a general rule, to be subject to the requirement to obtain a foreign exchange permit (see Article 9(3) of the Foreign Exchange Law). However, there are a number of exceptions to this general rule which render it practically ineffective, since residents and non-residents are permitted to export or dispatch abroad domestic or foreign means of payment exceeding EUR 10 000 where the money either (i) is withdrawn from a bank account or purchased from a bank with means accumulated in a bank account or (ii) comes from other sources, provided that the means of payment are declared in a written form to the customs authorities or the border guard exercising customs control (see Paragraphs 4, 4a and 4b of the General Foreign Exchange Permits Regulation).

text: Joined cases

text: and

text: Bordessa and Others [1995] ECR I-361, paragraphs 24-31; Joined cases

text: and

text: Lucas Emilio Sanz de Lera, Raimundo Diaz Jimẻnez and Figen Kapanoglu [1995] I-4821, paragraphs 23-30;

text: Case C-302/97

text: Konle v Austria [1999] ECR I-3099, paragraphs 44-46.

text: See Articles 26-27 of the Foreign Exchange Law.

title: Opinion of the European Central Bank of 4 November 2005 at the request of the Polish Minister of Finance on a draft law amending the Foreign Exchange Law (CON/2005/44)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 4 November 2005 at the request of the Polish Minister of Finance on a draft law amending the Foreign Exchange Law (

text: 1. On 24 August 2005 the European Central Bank (ECB) received a request from the Polish Minister of Finance for an opinion on a draft law (hereinafter the ‘draft law’) amending the Foreign Exchange Law of 27 July 2002 (hereinafter the ‘Foreign Exchange Law’) and the Penal Treasury Code of 10 September 1999 .

text: 2. The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community, and in particular on the first, second and third indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law concerns currency matters, means of payment and Narodowy Bank Polski (NBP). 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. General comments

text: 3. Because of its interest in the application in the ten Member States that acceded to the European Union on 1 May 2004 of the provisions of the Treaty concerning the free movement of capital and payments , the ECB has closely monitored developments in Polish foreign exchange regulation. In particular, the ECB took note of the comprehensive reform brought about by the introduction of the Foreign Exchange Law with effect from 1 October 2002.

text: 4. The ECB welcomes the fact that the draft law further enhances the free movement of capital by eliminating certain procedural requirements imposed on credit institutions in connection with the existing regime for granting general or individual foreign exchange permits for foreign exchange transactions. The ECB also welcomes the fact that the draft law introduces a greater degree of transparency for the application of the rules for granting foreign exchange permits. Specific comments regarding the draft law

text: 5. It is a general principle under the existing provisions of the Foreign Exchange Law that foreign exchange permits are automatically awarded if there is no threat to State security, public order, the balance of payments or other fundamental interests of the State . The draft law would amend this provision to state that foreign exchange permits are awarded if there is no threat to State security, public order, the balance of payments and no infringement of restrictions concerning turnover in foreign exchange convertible instruments arising from other acts and decisions by international organisations of which Poland is a member . The ECB has three specific remarks regarding this key provision of the draft law.

text: 6. First, the ECB welcomes the proposed deletion of ‘other fundamental interests of the State’ as a ground for denying a foreign exchange permit . This undefined and imprecise criterion falls outside the list of exceptions to the free movement of capital permitted under Article 58 of the Treaty.

text: 7. Second, regarding the criterion of a ‘threat to State security or public order’, the ECB would emphasise that the retention of this criterion, while in line with the ‘measures which are justified on grounds of public policy or public security’ that Member States are allowed to take under

text: Article 58(1)

text: (b) of the Treaty, should not, in accordance with Article 58(3) of the Treaty, constitute ‘a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments […]’. It is recalled that in accordance with case-law of the Court of Justice, while Member States are still, in principle, free to determine the requirements of public policy and public security in the light of their national needs, these concepts must, in the Community context and where they are, in particular, used as a justification for derogating from the fundamental principle of free movement of capital, be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community .

text: 8. Third, as regards the wording ‘threat to the balance of payments’, which the draft law proposes to retain, it is noted that this criterion remains outside the scope of the exceptions in Article 58 of the Treaty, and as such should only be considered as relevant in the extraordinary circumstances envisaged by Articles 119 and 120 of the Treaty. In this regard, the ECB notes that under the Foreign Exchange Law the Polish Council of Ministers, after inviting NBP’s Monetary Policy Council to express its opinion, may introduce special restrictions on cross-border foreign exchange operations where indispensable to ensure a stable balance of payments in situations of general instability, a sudden collapse or a threat arising out of any of the foregoing . This description of the circumstances in which special restrictions may be introduced on grounds of balance of payments difficulties generally corresponds with the grounds specified in Articles 119 and 120 of the Treaty, which refer to situations where a Member State is in difficulties or is seriously threatened with difficulties as regards its balance of payments, or where a sudden crisis in the balance of payments occurs. The ECB notes, however, that Articles 119 and 120 of the Treaty will cease to apply from the beginning of the third stage of economic and monetary union, meaning that Poland will only be allowed to rely on these exemptions from the free movement of capital until such time as it adopts the euro. Given that the Foreign Exchange Law already provides that certain provisions authorising the introduction of special restrictions are rendered void from the day of Poland’s accession to the EU , the ECB suggests that it might be helpful to introduce a parallel provision clarifying that the abovementioned provision authorising the introduction of special restrictions on grounds of balance of payments difficulties will be rendered void from the date on which Poland adopts the euro. Finally, as regards the period before Poland adopts the euro, the ECB would emphasise the Community’s competence to give final judgment as regards the compatibility with Articles 119 and 120 of the Treaty of any special restrictions introduced on balance of payments grounds. 9. The draft law amends the Foreign Exchange Law to provide that certain restrictions applicable to the turnover in foreign exchange convertible instruments do not apply where one of the parties involved, ‘acting for its own account’, is a bank or financial institution ‘operating in the country’ under supervision by supervisory authorities authorised to supervise certain financial institutions on the basis of separate provisions of law . The ECB has two specific remarks regarding this provision.

text: 10. First, the ECB understands that the requirement for a bank or financial institution which avails itself of this less onerous treatment to ‘operate in the country’ means that the bank or financial institution in question should operate in the territory of the Republic of Poland . Insofar as the concept of a bank or financial institution for the purposes of this provision is limited to Polish banks and financial institutions, to the exclusion of credit and financial institutions operating in other Member States, this amended provision would place banks and financial institutions from other Member States at a disadvantage. Under Article 12 of the Treaty, any discrimination on grounds of nationality within the scope of application of the Treaty, including the Treaty provisions on the free movement of capital, is prohibited. The ECB would therefore recommend an amendment to the draft law clarifying that all EU credit and financial institutions recognised in accordance with the single licence arrangements under Community law and operating under the supervision of the competent authorities of the Member States are included within the concept of banks and financial institutions for the purposes of this provision.

text: 11. Second, because the term ‘financial institution’ is not defined in the Foreign Exchange Law, the scope of entities covered by this concept is not entirely clear. In particular, the requirement for supervision by the authorities entitled to supervise certain financial institutions is insufficiently precise to remove all doubt as to exactly which financial institutions are covered. Since there is no standard definition of a ‘financial institution’ under Polish law , it would be helpful to clarify this term in the Foreign Exchange Law so as to avoid any misinterpretation regarding the scope of financial services providers covered by the relevant exemptions from foreign exchange restrictions. This might be done by reference to a specific definition already contained in certain existing statutory provisions (e.g. in Polish banking law). While drafting an appropriate definition lies within the Polish authorities’ discretion, the ECB notes that the principle of non-discrimination as it applies to financial institutions from other Member States is one of the fundamental Community principles inherent in Treaty . 12. The Foreign Exchange Law states that, as a general rule, the exportation and dispatch abroad of foreign exchange gold or foreign exchange platinum is subject to the requirement to obtain a foreign exchange permit. However, there are a number of exemptions to this general rule, including (i) permission for residents conducting a business activity in the area of processing and trading in precious metals to export foreign exchange gold or platinum relating to such activities, and (ii) permission for the export of gold coins issued by the NBP . The ECB notes that the abovementioned exemptions do not cover all possible situations where a resident may wish to rely on the freedom guaranteed by Article 56 of the Treaty in order to export or dispatch abroad foreign exchange gold and platinum. Furthermore, it would be helpful for the sake of completeness to extend the exemption for gold coins issued by the NBP to gold coins issued by other national central banks in the European System of Central Banks.

text: 13. Following the observations in paragraph 12, and as a more general remark, the ECB is of the view that, while the Foreign Exchange Law has already been significantly liberalised in order to ensure the free flow of capital, it might be helpful to consider further streamlining and simplifying the Foreign Exchange Law at some point in the future. For example, at a certain stage in the process of liberalisation it may be more practical to provide for general rules of a permissive nature instead of establishing detailed lists containing exemptions from general rules of a restrictive nature. The latter approach carries the risk of inadvertently retaining restrictions in relation to certain categories of entities that are not covered by the relevant exemptions. Moreover, individual foreign exchange permits cannot be considered as an effective legal tool for achieving full liberalisation as they are issued on a discretionary basis and cannot ensure legal certainty as far as compatibility with the Treaty is concerned.

text: 14. The draft law requires residents and non-residents exporting domestic or foreign means of payment or foreign exchange gold or foreign exchange platinum with a total value exceeding EUR 10 000 to present to the customs or border authorities, without being requested to do so, documents confirming that they are authorised to export the items concerned (or a foreign exchange export permit) . Similarly, the draft law requires residents and non-residents crossing the Polish border to declare to the customs or border authorities the importation into Poland of domestic or foreign means of payment as well as foreign exchange gold or platinum with a value in excess of EUR 10 000 . The imposition of such obligations may be justified insofar as a prior declaration, unlike a prior authorisation, does not have the effect of suspending transactions by making them conditional in each case on the consent of the administrative authorities, but rather allows national authorities to exercise effective supervision in order to prevent infringements of their laws and regulations . As a general remark, however, and in line with case-law of the Court of Justice, the ECB notes that it will be important to ensure that such prior declaration requirements do not have the effect of suspending transactions in contravention of Article 56 of the Treaty.

text: 15. Under the Foreign Exchange Law, the transfer of money abroad or a settlement in Poland with a non-resident is subject to certain procedural requirements (e.g. the requirement to document the legal basis for the transfer or settlement) . Insofar as these requirements might be regarded as an obstacle to the free movement of capital and payments under the Treaty, the ECB would refer to the remarks already made in paragraph 14 of this opinion concerning the case-law of the Court of Justice. In this regard the ECB would welcome the further enhancement of the free movement of capital that would result from the removal of certain procedural requirements imposed by these provisions of the Foreign Exchange Law, as this possibility has been introduced by the draft law and has been indicated in the statement of reasons provided by the Minister of Finance.

text: 16. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 4 November 2005. [ signed ] The President of the ECB Jean-Claude TRICHET