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

text: Explanatory memorandum no. 413-01-1/2021/4 of 14 April 2021 (hereinafter the ‘explanatory memorandum’), p. 8. 3 Explanatory memorandum, p. 8.

text: Article 293 of the Law on banking (Official Gazette of the Republic of Slovenia no. 92/21 as amended). 5 See paragraph 3.1 of Opinion

text: . 6

text: Council Regulation (EU) No 1024/2013 of 15 October 2013

text: conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). 7

text: Regulation (EU) No 468/2014

text: of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ L 141, 14.5.2014, p. 1).

text: See Article 52(1) of the Charter of Fundamental Rights of the European Union, Article 5 of the Treaty on European Union, and judgment of the General Court of 6 October 2021, Ukrselhosprom,

text: and

text: , ECLI:EU:T:2021:669, paragraphs 307 to 345. 9 See Opinion

text: and Opinion

text: . All ECB opinions are published on EUR-Lex. 10 For further information on lending in foreign currencies in the Union see the Annex to Recommendation

text: of the European Systemic Risk Board of 21 September 2011 on lending in foreign currencies (OJ C 342, 22.11.2011, p. 1). 11 See, for example, paragraph 2.1 of Opinion

text: and paragraph 2.2. of Opinion

text: . 12 See, for example, paragraph 2.2 of Opinion

text: and paragraph 2.3 of Opinion

text: . 13 Article 52 of the Law on consumer credit (Official Gazette of the Republic of Slovenia no. 77/16 as amended).

text: Explanatory memorandum, p. 13. 15 Directive

text: of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives

text: and

text: and

text: Regulation (EU) No 1093/2010

text: (OJ L 60, 28.2.2014, p. 34). 16 See

text: Article 43(1) of Directive 2014/17/EU

text: . 17 See the paragraphs referred to in footnote 12. 18 See, for example, judgment of the Court of Justice of 10 March 2009, Heinrich,

text: , ECLI:EU:C:2009:140. 19 See, for example, judgment of the Court of Justice of 16 May 1979, Tomadini, 84/78, ECLI:EU:C:1979:129. 20 See paragraph 2.2.3 of Opinion

text: and paragraph 2.3.3 of Opinion

text: . 21 See, for example, paragraph 3.3 of Opinion

text: . 22 See paragraph 3.2.1 of Opinion

text: . 23 See paragraph 3.2.1 of Opinion

text: and paragraph 3.2.1 of Opinion

text: See paragraph 3.2.2 of Opinion

text: . 25 See paragraph 3.2.2 of Opinion

text: and paragraph 3.2.2 of Opinion

text: . 26 See paragraph 3.2.3 of Opinion

text: . 27 See paragraph 1.1. of Opinion

text: and paragraph 3.2.4 of Opinion

text: . 28 See the Council's press release of 11 July 2017 on the ‘Council conclusions on Action plan to tackle nonperforming loans in Europe’, available on the Council's website at: http://www.consilium.europa.eu. 29 See, for example, paragraph 2.2.4 of Opinion

text: and paragraph 3.2.4 of Opinion

text: See, for example, paragraph 2.2.4 of Opinion

text: and paragraph 3.2.4 of Opinion

text: . 31 See paragraph 3.2.6 of the Opinion

text: . 32 See paragraph 2.2.3 of Opinion

text: and paragraph 3.2.7 of Opinion

text: . 33 See, in particular, the ECB Financial Stability Review of June 2010 and, with respect to foreign currency loans in Hungary, Opinions

text: and

text: ; with respect to foreign currency loans in Poland, Opinions

text: , and

text: ; with respect to foreign currency loans in Slovenia, Opinions

text: and

text: ; and with respect to foreign currency loans in Croatia, Opinion

text: . 34 However, this does not seem to be the case in Slovenia.

text: Currently, the share of total loans denominated in Swiss francs is 1.2% of total loans to households and nonfinancial corporations. 36 See, for example, paragraph 3.3.2 of Opinion

text: . 37 See, for example, paragraph 3.3.2 of Opinion

text: and paragraph 3.3.2 of Opinion

text: . 38 See, for example, paragraph 3.4.1 of Opinion

text: and paragraph 3.4.1 of Opinion

text: Article 403 of the Law on banking (Official Gazette of the Republic of Slovenia no. 92/21 in 123/21 – ZBNIP). 40 See the Law on consumer credit. 41 See, for example, paragraph 4.1.2 of Opinion

text: and paragraph 4.1.2 of Opinion

text: . 42

text: Council Regulation (EC) No 3603/93 of 13 December 1993

text: specifying definitions for the application of the prohibitions referred to in Articles

text: and

text: b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). 43 Article 123 of the Treaty also serves the objective of maintaining price stability and reinforces central bank independence.

text: See, for example, paragraph 4.2.1 of Opinion

text: and paragraph 4.2.1 of Opinion

text: See paragraph 4.3.1 of Opinion

text: and paragraph 4.3.1 of Opinion

text: . 46 See paragraph 4.3.2 of Opinion

text: and paragraph 4.3.2 of Opinion

text: . 47 The Central Bank of Cyprus was entrusted with sanctioning powers in relation to the compliance of credit institutions with restrictions regarding the variation of the interest rates on credit facilities imposed by Cypriot Law 160(I)/1999 and supervisory tasks relating also to civil law aspects in the area of payment services and mortgage credit. In connection with the performance of these tasks, the Central Bank of Cyprus may also request and review privately negotiated contracts between credit institutions and their customers. 48 Magyar Nemzeti Bank has a supervisory role in connection with the compliance by credit institutions with legal requirements relating to the conversion of foreign currency denominated consumer loans, including loans denominated in Swiss francs, as defined in applicable laws (e.g. Law XXXVIII of 2014 and Law XL of 2014, both as amended by Law LXXVIII of 2014, Law XXVII of 2014, Law LII of 2015 (amending Law XL of 2014) and Law CXLV of 2015). The performance of these supervisory tasks involves the verification of compliance by credit institutions, which includes also the review of privately negotiated contracts between credit institutions and their customers. See Opinion

text: . 49 Hrvatska narodna banka carries out oversight over credit institutions’ compliance with the Law on credit institutions, which includes compliance with internal bylaws of credit institutions governing the relationship with their clients, contracts concluded and consumer protection provisions. 50 Česká národní banka has been assigned tasks related to consumer protection, including supervision of compliance by supervised entities of the observance of the prohibition of unfair business practices and supervision of rules regarding consumer discrimination or the obligation to inform about prices. 51 See, for example, paragraph 3.4.2 of Opinion

text: . 52 The Banca d'Italia has been assigned with tasks in relation to the supervision, from a transparency perspective, of the terms of banking and financial agreements between credit institutions and non-credit institution lenders. 53 Národná banka Slovenska has powers in the area of the protection of financial consumers, which include a preliminary assessment of unfair commercial practices of supervised entities and unacceptable conditions in contracts for the provision of financial services. The scope of this supervision does not include the adjudication of disputes between the supervised entities and their customers. 54 See, for example, paragraph 3.4.2 of Opinion

text: See paragraph 4.3.2 of Opinion

text: and paragraph 4.3.2 of Opinion

text: . 56 See the explanatory memorandum, pp. 8, 9 and 11. 57 See, for example, paragraph 4.5.1 of Opinion

text: and paragraph 4.5.1 of Opinion

text: . 58 See, for example, paragraph 4.6.1 of Opinion

text: and paragraph 4.6.1 of Opinion

text: See Article 79 of the Law on consumer credit. 60 See paragraph 4.8.1 of Opinion

text: and 4.8.1 of Opinion

text: . 61 See paragraph 4.9.1 of Opinion

text: and 4.9.1 of Opinion

text: See paragraph 4.10.1 of Opinion

text: and paragraph 4.10.1 of Opinion

title: Opinion of the European Central Bank of 26 November 2021 on the modification of Swiss franc loan agreements (CON/2021/36)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 26 November 2021 on the modification of Swiss franc loan agreements (

text: ) Introduction and legal basis

text: On 15 April 2021 the European Central Bank (ECB) received a request from the National Assembly of the Republic of Slovenia for an opinion on a draft law on relations between lenders and borrowers concerning credit agreements in Swiss francs (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third and sixth indents of

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

text: , as the draft law relates to Banka Slovenije, rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets, and the ECB’s tasks concerning the prudential supervision of credit institutions pursuant to Article 127(6) of the Treaty. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The purpose of the draft law is to restructure consumer loans denominated in Swiss francs (hereinafter ‘CHF’) or containing a currency clause in CHF that were concluded between 28 June 2004 and 31 December 2010 (hereinafter ‘Swiss franc loans’). 1.2 According to the explanatory memorandum accompanying the draft law, the draft law aims to place borrowers of Swiss franc loans in a position to limit their exchange rate risk and to enable them to repay their loans under conditions that, according to the explanatory memorandum, they could reasonably expect when acting in good faith when concluding loan agreements . The draft law further aims to protect consumers, prevent unfair business practices by credit institutions and prevent a debt crisis . 1.3 To achieve these aims, the draft law requires lenders to introduce an exchange-rate cap clause in relation to all agreements for Swiss franc loans concluded between 28 June 2004 and 31 December 2010. Such an exchange rate cap will be activated when the change in the exchange rate causes: (1) the actual credit balance to differ by more than 5% from the credit

text: balance calculated based on the exchange rate applicable at the date of drawdown; or (2) the actual instalment to differ by more than 5% from the instalment calculated based on the exchange rate applicable at the date of drawdown. When the exchange rate cap is activated, the instalments and other payments based on the loan agreement are calculated taking into account the currency exchange rate at which the exchange rate cap is activated. 1.4 The draft law requires lenders – defined as credit institutions that concluded Swiss franc loans with borrowers during the period 28 June 2004 to 31 December 2010 – to prepare the following documentation within 60 days after the draft law takes effect: (1) a draft agreement on the settlement of mutual claims in the form of an annex to a valid loan agreement or in the form of a separate agreement if the loan agreement has already been terminated or has expired; (2) a new repayment plan that reflects the exchange rate cap; and (3) a recalculation of the remaining debt taking account of the exchange rate cap. In the preparation of the new repayment plan and the recalculation of the remaining debt, the cumulative amount of instalments paid in excess of the amount of the instalments as calculated under the exchange rate cap must be used for the repayment of the remaining unpaid instalments. All the documentation must be prepared without any costs for the borrower and submitted to the borrower within 75 days. If the calculations based on the exchange rate cap show that all the obligations under a loan agreement have already been discharged in full, the lender must return any overpayment to the borrower within 30 days. In case of overpayment where any part of the obligations under a loan agreement were paid by a guarantor, the guarantor must be reimbursed before the borrower. If, however, the obligations under the loan agreement have not yet been discharged in full, the relationship continues under the amended conditions and pursuant to the new repayment plan. 1.5 The draft law also regulates a number of specific situations that may occur after the conclusion of agreements for Swiss franc loans. In particular, if the Swiss franc loan agreement has been terminated by the lender, the following applies: (1) the lender must prepare a new repayment plan and an agreement on the settlement of mutual claims for the period when the loan agreement was valid and effective; (2) if the amounts already paid are insufficient to discharge all the obligations under the loan agreement, the parties may agree that the outstanding debt is to be repaid under the terms of the credit agreement subject to the exchange rate cap; and (3) if the amounts already paid exceed the total amount payable, the excess amount must be repaid to the borrower. 1.6 If the receivables from Swiss franc loans have been assigned to a third party, the following applies: (1) the original lender must prepare a new repayment plan for the period until the assignment and an agreement on the settlement of mutual claims; (2) If the borrower still has any outstanding debt towards the transferee, the original creditor and the transferee may agree to reduce the amount of the borrower’s outstanding debt for the amount of overpayments. The original lender is obliged to inform the borrower and provide him with evidence of debt reduction; (3) If the payments until the transfer exceed the total amount due under the loan agreement taking into account the currency cap, the lender must return overpayments to the borrower within 30 days of receipt of the signed agreement on settlement of mutual claims. In the same deadline,

text: the lender must also return to the borrower the countersigned agreement on settlement of mutual claims. 1.7 The draft law provides that the general legal protection available to any of the parties is not compromised by the provisions of the draft law. However, the draft law does not entitle the lender to avoid an amendment to loan agreements by proving that the borrowers were appropriately informed of the risks. 1.8 The draft law provides that Banka Slovenije is responsible for (1) overseeing the implementation of the law and (2) conducting misdemeanour procedures. If breaches are identified, Banka Slovenije can impose monetary penalties or even initiate the procedure for withdrawal of the banking licence. The draft law specifies that if a lender fails to eliminate in a timely manner the identified irregularities in more than 10 cases, Banka Slovenije must initiate the process for the withdrawal of the lender’s banking licence.

text: 2. Withdrawal of the banking licence

text: 2.1 The Slovenian Law on banking specifies that the authorisation to provide banking services may be withdrawn, among other reasons, if a credit institution does not act in accordance with the order and does not eliminate the violations or does not implement the measures required by Banka Slovenije and if identified violations cannot be rectified by implementing other supervisory measures . Under the draft law, however, Banka Slovenije is obliged to initiate the process for the withdrawal of the lender’s banking licence if a lender fails to eliminate in a timely manner the identified irregularities in more than 10 cases. Further, the draft law does not provide for a requirement that the identified irregularities cannot by rectified by implementing other supervisory measures. The explanatory memorandum does not identify reasons justifying the stricter approach taken under the draft law compared to the Law on banking. In those circumstances, the ECBinvites the consulting authority to ensure that the measures provided for in the draft law are proportionate and suitable for their purpose . 2.2 Further, in view of the primacy of Union legislation, the ECB also notes that when Banka Slovenije considers that it is necessary to initiate the process for withdrawal of a banking licence, it must have full regard to

text: Articles 4(1)

text: (a) and 14(5) of

text: Council Regulation (EU) No 1024/2013

text: , which assign to the ECB the exclusive competence, for prudential supervisory purposes, to withdraw the authorisation of both significant and less significant credit institutions. Under

text: Regulation (EU) No 468/2014

text: of the European Central Bank (ECB/2014/17) , if Banka Slovenije, as the relevant national competent authority in the Single Supervisory Mechanism, considers that a credit institution’s authorisation should be withdrawn in whole or in part in accordance with relevant

text: Union or national law, it must submit to the ECB a draft decision proposing the withdrawal of the authorisation. In that case, the ECB will take a decision on the proposed withdrawal of authorisation, taking into account the justification for withdrawal put forward by Banka Slovenije and the safeguards under Union law, including the principle of proportionality . Against this background, Banka Slovenije should be in a position to consider in its draft decision submitted to the ECB that the withdrawal of an authorisation is appropriate for attaining the legitimate objectives pursued by the legislation and does not exceed the limits of what is necessary in order to achieve those objectives, also considering any reasonable prospect for alternative measures to remediate the breaches committed.

text: 3. Restructuring of Swiss franc loans

text: 3.1 In 2018 and 2019 the ECB issued two opinions on earlier draft Slovenian laws concerning Swiss franc loans, which were, however, not enacted into law . 3.2 Prior to the global financial crisis, borrowing in foreign currencies by households and non-financial 10 11 corporations was popular in several Member States . As previously noted by the ECB , the lower interest rates applicable to foreign currency loans compared to loans in the domestic currency increased the demand for such loans. According to the explanatory memorandum accompanying the draft law, most of the Swiss franc loans in Slovenia are long-term mortgage loans. 3.3 According to the draft law, the restructuring of Swiss franc loans whether still outstanding, already terminated or sold will be compulsory for credit institutions. The draft law does not provide for any possibility for credit institutions to avoid or challenge the restructuring, even if they can prove that the borrower took the Swiss franc loan on the basis of informed consent. 3.4 Legal aspects concerning retroactivity 3.4.1 As previously noted by the ECB , introducing measures with retroactive effect undermines legal certainty and is not in line with the principle of legitimate expectations and may also interfere with acquired rights. 3.4.2 The existing provisions of the Slovenian Law on consumer credit , which applies from 2 March 2017, enable consumers holding mortgage loans denominated in a foreign currency or containing a foreign currency clause to request conversion into EUR if the change in the exchange rate exceeds 10%. In such a case, the banks are obliged to convert such loans at the exchange rate applicable at the date the consumer makes the request. According to the explanatory

text: memorandum, the draft law provides for a similar mechanism which is to be applied retroactively. However, the draft law introduces a much lower threshold for restructuring, requiring a change in the exchange rate in excess of 5%. 3.4.3

text: Article 23(1) of Directive 2014/17/EU

text: of the European Parliament and of the Council , which applies to credit agreements that enter into existence from 21 March 2016 , specifies that Member States must ensure that an appropriate regulatory framework is in place for credit agreements in respect of foreign currency loans to ensure, at a minimum, that (a) the consumer has a right to convert the credit agreement into an alternative currency under specified conditions, or (b) there are other arrangements in place to limit the exchange rate risk to which the consumer is exposed under the credit agreement.

text: Article 23(5) of Directive 2014/17/EU

text: allows Member States to further regulate foreign currency loans provided that such regulation is not applied with retroactive effect. The retroactive effect of the draft law is contrary to the general aim of

text: Article 23(5) of Directive 2014/17/EU

text: , reflecting one of the general principles of Union law, namely the 18 19 principle of legal certainty which supports the limitation of retroactive laws . 3.4.4 It is for the Slovenian authorities to assess whether the retroactive character of the draft law also complies with Slovenian legal and constitutional principles . 3.5 Eligibility criteria The draft law does not prescribe specific criteria for borrowers to be eligible to participate in the restructuring other than specifying that the Swiss franc loan should have been approved between 28 June 2004 and 31 December 2010. This raises some concerns with regard to the purpose of the draft law. In particular, as the ECB has previously noted , the application of certain targeted eligibility criteria, such as, for example, linking the right to restructure to the borrower’s actual income position or the loan-to-value (LTV) ratio, may be appropriate. 3.6 Effects on the banking sector 3.6.1 As previously noted by the ECB , the implementation of the draft law is expected to entail financial costs for the Slovenian banking sector. Credit institutions may be affected to different degrees depending on the extent to which they concluded Swiss franc loans between 28 June 2004 and 31 December 2010. This, in turn, is expected to have a negative impact on the profitability, capitalisation and future lending capacity of the banking sector as a whole .

text: 3.6.2 The exact impact on the banking sector is unknown since the draft law does not include any impact assessment. Further, even if such assessment existed, it would be difficult to predict the possible future impact since this is dependent on the CHF exchange rate. In addition, the timing and scale of loan restructuring envisaged under the draft law could introduce longer-term uncertainty into credit institutions’ business planning. 3.6.3 As previously noted by the ECB , the restructuring will lead to a one-off increase in operational costs for affected credit institutions in Slovenia, in particular due to the restructuring of existing hedges, refinancing measures, and the costs associated with the obligation to recalculate Swiss franc loans and notify each borrower individually thereof . 3.6.4 The ECB already emphasised its additional concern related to the placing of the main burden of the restructuring of Swiss franc loans on the originator credit institutions, envisaged under the draft law, even if the originators have already transferred the loans (e.g. as non-performing loans, ‘NPLs’) to third parties, as is the case with numerous Slovenian credit institutions. Such provisions in the draft law represent an important impediment to the effective resolution of NPLs as the originator credit institutions would not be able to effectively transfer NPLs off their balance sheet. The reasoning behind NPL transfers is, amongst other things, to remove uncertainty with regard to potential future losses associated with the transferred assets. In particular, it is unknown what the impact of such restructuring of loans already transferred would mean for the contractual agreements between the originator credit institutions and third-party purchasers (e.g. whether such retroactive adjustment would invalidate the contracts and/or the exposures would need to be repurchased by the originators). The draft law does not provide certainty with respect to its implementation in relation to assets already transferred. 3.6.5 As previously noted by the ECB , the ECB has been a strong proponent of the development of secondary markets for credit institution assets, particularly NPLs, as reflected in the action plan agreed by the Council of the EU to tackle NPLs in Europe . As part of a comprehensive solution to NPL resolution, the development of secondary markets may contribute to reducing NPLs. Looking ahead, well-functioning secondary markets may also prevent stocks of NPLs building up in the future. Moreover, a well-functioning secondary market may have a positive effect on financial stability to the extent that it could facilitate the transfer of the risks of NPLs off credit institutions' balance sheets. The presence of significant volumes of NPLs on credit institutions' balance sheets reduces their ability to fulfil their function as providers of credit to the real economy and hampers the operational flexibility and overall profitability that are essential to a wellfunctioning banking sector. It is essential that the legal framework applicable to secondary markets enables the efficient transfer of NPLs off the balance sheet of credit institutions, an aspect with regard to which the draft law may introduce uncertainty .

text: 3.6.6 As a consequence of the draft law, Slovenian credit institutions might incur new losses with regard to NPLs already removed from their balance sheets. The ECB has already pointed out on previous occasions that the ability of financial institutions to effectively manage credit risk depends on a reliable, predictable and stable legal framework that adequately balances the interests of both the creditor and the debtor. In this respect, it is important to carefully consider the impact of the draft law in order to ensure legal certainty, and to prevent moral hazard arising in the relationship between creditor and debtor. If credit institutions are deprived of efficient tools to work out NPLs in an effective and timely manner, this could result in unnecessarily high levels of NPLs and private sector debt, which in turn have an adverse impact on financial stability and could undermine future credit supply. 3.6.7 Additionally, as the ECB has already noted , the Slovenian credit institutions that transferred their NPL portfolios to third parties have also handed over all relevant documentation regarding the loans transferred to the new creditors, who were fully aware of the nature of the loans prior to that transaction. The draft law could therefore interfere with the commercial agreements between the credit institutions and the purchasers of loans and cause disproportionate operational costs for credit institutions. Further, the fact that such credit institutions no longer have access to the documentation on loans transferred could make it impossible to carry out the recalculations and prepare the documentation required by the draft law. 3.6.8 The ECB also notes that in the case of a transfer of receivables relating to Swiss franc loans, the draft law requires credit institutions to restructure Swiss franc loans for the period from the drawdown until the transfer. However, the draft law does not envisage a restructuring of the loans for the period following the transfer. 3.6.9 To conclude, the draft law must carefully balance the benefits of creating well-functioning secondary markets for NPLs against the impetus to protect debtors . In addition, the draft law would benefit from a thorough impact assessment, including on both significant and less significant credit institutions. 3.7 Effects on financial stability 3.7.1 The ECB has pointed out on several occasions the risks associated with foreign currency loans . In particular, foreign currency loans have constituted a major risk to financial stability in several Member States , where the share of foreign currency loans is relatively high. The ECB points, in this respect, to the analysis of such risks made by the European Systemic Risk Board in Recommendation

text: 3.7.2 Data provided by Banka Slovenije show that the stock of Swiss franc loans to households reached a maximum share in October 2008, when they accounted for 34.7% of housing loans and 8.5% of consumer loans. Nevertheless, the overall household portfolios seems to have been of a better quality compared to the rest of the banks’ portfolios, as reflected in a relatively low proportion of NPLs. Since then, the share of total loans denominated in Swiss francs has decreased significantly . At present, loans denominated in Swiss francs do not give rise to any systemic risks or pose threats to financial stability. As previously mentioned, however, the implementation of the draft law is expected to entail financial costs for the Slovenian banking sector and may, therefore, have a negative impact on the profitability and capitalisation of Slovenian credit institutions. In particular, the provision that the lender must return any overpayment to the borrower within 30 days if the total amount due under a loan agreement as amended in accordance with the exchange rate cap has been paid in full may imply substantial pressure on the income of credit institutions. 3.7.3 As the ECB has already highlighted in terms of the long-term effects on financial stability , when introducing measures in relation to the restructuring of foreign currency loans, due consideration should always be given to fair burden sharing among all stakeholders in order to avoid moral hazard in the future . The draft law specifies that, regardless of the magnitude of the exchange rate fluctuation, the borrower always covers the first 5% of the fluctuation. Therefore, the draft law limits the risk exposure for the borrower, but not for the credit institutions, which are otherwise required to cover the risk of exchange rate fluctuations without any limitations. 3.8 Effects on the Slovenian economy As the ECB has previously noted , the restructuring of Swiss franc loans with retroactive effect, as envisaged by the draft law, could have negative effects if it were to lead to a deterioration in both foreign and domestic investor sentiment, and trust in the system, due to a perceived increase in legal uncertainty and country risk.

text: 4. Conferral of new tasks on Banka Slovenije

text: 4.1 New task of Banka Slovenije 4.1.1 The draft law confers the task of supervising the restructuring procedures performed by credit institutions on Banka Slovenije. Further, it designates Banka Slovenije as the competent misdemeanour authority in the event of breaches of the draft law. The draft law does not specify in detail the scope of this new task. The ECB understands that Banka Slovenije would be essentially required to supervise the compliance of credit institutions with the requirements of the draft law in relation to the restructuring of their private contractual relationships with individual customers regarding Swiss franc loans. Banka Slovenije has been designated as the competent

text: misdemeanour authority in relation to breaches of the draft law, within the scope of the performance of its prudential supervisory tasks over credit institutions , and also has, to a certain extent, an existing consumer protection role . However, Banka Slovenije has no comparable responsibilities with respect to supervision of the compliance by credit institutions with the legal requirements relating to the restructuring of privately negotiated loan contracts with their customers. The draft law therefore confers a new task upon Banka Slovenije. 4.1.2 As the ECB already underlined in relation to the previous draft laws , a proposed conferral of new tasks on a national central bank (NCB) in the European System of Central Banks must be assessed against the prohibition on monetary financing under Article 123 of the Treaty. For the purposes of that prohibition,

text: Article 1(1)

text: (b)(ii) of

text: Council Regulation (EC) No 3603/93

text: defines ‘other type of credit facility’, inter alia, as ‘any financing of the public sector’s obligations vis-à-vis third parties’. 4.1.3 Ensuring that Member States implement a sound budgetary policy is one of the key objectives of the monetary financing prohibition, which may not be circumvented . Therefore, the task of financing measures, which are normally the responsibility of the Member States, and which are financed from their budgetary sources rather than by the NCBs, must not be entrusted to NCBs. To decide what constitutes financing of the public sector’s obligations vis-à-vis third parties, which can be translated as the provision of central bank financing outside the scope of central bank tasks, it is necessary to carry out, on a case-by-case basis, an assessment of whether the task to be undertaken by an NCB is a central bank task or a government task, i.e. a task within the responsibility of the Member States. In other words, adequate safeguards must be in place to ensure that circumventions of the objective of the monetary financing prohibition of maintaining a sound budgetary policy of Member States do not take place. 4.1.4 As part of its discretion in the exercise of its duty, on the basis of

text: Article 271

text: (d) of the Treaty and Article 35.6 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’), to ensure that NCBs honour the obligations laid down by the Treaty, the Governing Council has endorsed safeguards of that kind in the form of criteria for determining what may be seen as falling within the scope of an obligation of the public sector within the meaning of

text: Article 1(1)

text: (b)(ii) of

text: Regulation (EC) No 3603/93

text: or, in other words, what constitutes a government task as follows: First, central bank tasks are in particular those tasks that are related to the tasks that have been conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks are mainly defined in

text: Article 127(2)

text: , (5) and (6) and Article 128(1) of the Treaty, as well as

text: Article 22

text: and Article 25.1 of the Statute of the ESCB.

text: Second, as Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘other functions’, new tasks, i.e. tasks that are not related to tasks that have been conferred upon the ECB and the NCBs, are not precluded per se. However, new tasks that are undertaken by an NCB and which are atypical of NCB tasks or which are clearly discharged on behalf of, and in the exclusive interest of, the government or of other public sector entities should be considered government tasks. Third, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly discharged on behalf of and in the exclusive interest of the government or other public sector entities is the impact of the task on the institutional, financial and personal independence of that NCB. In particular, the following aspects should be taken into account: (a) whether the performance of the new task creates conflicts of interest with existing central bank tasks which are not adequately addressed and does not necessarily complement those existing central bank tasks. If a conflict of interest arises between existing and new tasks, sufficient safeguards to mitigate that conflict should be in place. The complementarity between a new task and the existing central bank tasks should not be interpreted broadly, so as to lead to the creation of an indefinite chain of ancillary tasks. Such complementarity should be examined in relation to the financing of those tasks; (b) whether without new financial resources the performance of the new task is disproportionate to the NCB’s financial or organisational capacity, and may have a negative impact on the capacity to perform properly the existing central bank tasks; (c) whether the performance of the new task fits into the institutional set-up of the NCB in the light of central bank independence and accountability considerations; (d) whether the performance of the new task harbours substantial financial risks; (e) whether the performance of the new task exposes the members of the NCB decision-making bodies to political risks which are disproportionate and may also have an impact on their personal independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the Statute of the ESCB. 4.1.5 On the basis of the criteria set out above, the following paragraphs assess whether the new task of Banka Slovenije is in line with the prohibition on monetary financing. 4.2 Tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the Statute

text: of the ESCB

text: 4.2.1 As previously noted by the ECB , supervising the compliance of credit institutions with the requirements of the draft law in relation to the restructuring of privately negotiated loan contracts with their consumers is not among the basic central banking tasks listed in

text: Article 127(2)

text: or (5) of the Treaty or otherwise conferred upon the NCBs by the Statute of the ESCB. Nor does the task falls within the scope of the supervisory tasks of Banka Slovenije. Thus, a careful assessment of the conferral of this task on Banka Slovenije is required in order to determine

text: whether it constitutes a government task, and whether the related funding gives rise to monetary

text: financing concerns.

text: 4.3 Tasks which are atypical of NCB tasks

text: 4.3.1 As previously noted by the ECB , the new task conferred on Banka Slovenije by the draft law

text: relates to supervision of the compliance by credit institutions with the requirements under the

text: draft law relating to the restructuring of privately negotiated loan agreements with their customers.

text: Banka Slovenije’s new task can be seen, to a certain extent, as being related to the protection of

text: consumers.

text: 4.3.2 As previously noted by the ECB , it is necessary to analyse whether this new task is atypical of

text: NCB tasks. While the majority of NCBs do not appear to have been assigned tasks of this nature,

text: the ECB has identified two Member States where NCBs have been given similar tasks. In

text: Cyprus and Hungary , the NCBs have been given tasks relating to the supervision of the

text: compliance by credit institutions with the legal requirements in relation to the restructuring of

text: private, contractual loan agreements between credit institutions and their customers. In the case

text: of Hungary, these tasks are substantially similar to the tasks conferred on Banka Slovenije under

text: the draft law. In addition, the NCBs in Croatia , the Czech Republic , Ireland , Italy and

text: Slovakia have been given similar supervisory tasks relating more generally to consumer

text: protection and the transparency of loan arrangements. In this regard, also taking into account the

text: consumer protection roles which are currently fulfilled by numerous ESCB NCBs in the field of

text: financial services , the new task does not appear to be completely atypical of NCB tasks.

text: However, the new task would be considered as atypical if Banka Slovenije’s supervisory role

text: were to extend to the resolution of disputes between contractual parties, which is a matter that is usually handled by the courts . The ECB understands that this is not the case with the draft law. 4.4 Tasks clearly discharged on behalf of and in the exclusive interest of the government 4.4.1 According to the explanatory memorandum, the objective of the draft law is to implement the constitutional principle of the ‘welfare state’ and to introduce sanctions for breaches of obligations arising under contractual relationships, thereby providing legal protection to a number of consumers who have taken out Swiss franc loans . The draft law is therefore intended to provide protection to consumers of financial services. 4.4.2 Due to the retroactive application of the draft law, it is not clear whether the draft law would effectively guarantee the fulfilment of the objective of protecting consumers of financial services. Thus, the ECB cannot exclude the risk that, in carrying out its supervisory functions, Banka Slovenije would act exclusively in the interest of another public entity. 4.5 Extent to which performance of the new task creates conflicts of interest with existing central bank

text: tasks

text: 4.5.1 As previously noted by the ECB , it may be considered that the new task at least partially complements other similar existing supervisory and consumer protection tasks of Banka Slovenije. As with other consumer protection tasks, sufficient mitigation measures must be put in place to ensure that in the event of a conflict of interest supervisory considerations prevail. 4.6 Extent to which performance of the new task is disproportionate to the financial or organisational

text: capacity of Banka Slovenije

text: 4.6.1 As previously noted by the ECB , the principle of financial independence requires that Member States do not put their NCBs in a position where they have insufficient resources to carry out both their ESCB-related tasks and their national tasks, from an operational and financial perspective. Furthermore, when allocating specific new tasks to NCBs, each NCB concerned should have sufficient financial and human resources at its disposal to ensure that the tasks can be carried out without impacting on the NCB’s financial or operational capacity to perform its ESCB tasks. In order to ensure that Banka Slovenije’s capacity to perform its ESCB-related tasks is not impaired, Banka Slovenije must, therefore, be in a position to avail itself of the necessary resources to carry out its duties under the draft law. 4.6.2 At this early stage, it is difficult to predict what additional resources Banka Slovenije will require in order to perform its new supervisory task under the draft law. However, it is likely that Banka Slovenije will have to dedicate additional human, technical and financial resources to implement this new supervisory task. This may impose an additional burden on existing central banking and supervisory tasks performed by Banka Slovenije. Additionally, Banka Slovenije could be exposed to reputational risk in carrying out its supervisory assessment of the appropriateness of the legal costs of the credit institutions concerned.

text: 4.6.3 While supervised entities are required to pay fees to Banka Slovenije in relation to the performance of its supervisory tasks under the Law on consumer credit , the draft law does not provide for Banka Slovenije to be reimbursed for the costs of carrying out this new task. The ECB invites the consulting authority to consider the impact of the draft law on the resources of Banka Slovenije and undertake appropriate measures to ensure that the central banking and supervisory tasks performed by Banka Slovenije will in no way be affected. 4.7 Extent to which performance of the new task fits into the institutional set-up of Banka Slovenije, in the light of central bank independence and accountability considerations 4.7.1 The potential impact of the new task on the institutional, financial and personal independence of Banka Slovenije must be taken into consideration. 4.8 Extent to which the performance of tasks harbours substantial financial risks 4.8.1 The draft law does not contain any specific provisions on liability in relation to the exercise of Banka Slovenije’s powers under the draft law or the failure to exercise such powers. Banka Slovenije’s potential liability in respect of the performance of the new task will thus be subject to the rules on liability for damage caused in the exercise of public authority pursuant to the Law on banking and the general liability regime under Slovenian law. As previously noted by the ECB , the general liability regime would also apply with respect to any potential damage resulting from decisions of Banka Slovenije delivered in supervisory proceedings pursuant to the draft law which are later declared to be invalid in the courts. 4.9 Extent to which the performance of the new task exposes members of the decision-making bodies of Banka Slovenije to disproportionate political risks and impacts on their personal independence 4.9.1 As previously noted by the ECB , due to the sensitivity of the subject matter and the high degree of public attention being given to the restructuring of Swiss franc loans in Slovenia, due consideration should be given to any disproportionate political risk or impact on the personal independence of the members of the decision-making bodies of Banka Slovenije that may arise in the performance of the new task. 4.9.2 In this respect, consideration might be given to the possibility of conferring this task on a separate government agency to which Banka Slovenije could provide technical support in view of its expertise and experience in dealing with the Slovenian banking sector. 4.10 Conclusion The new task of Banka Slovenije of supervising the compliance of credit institutions with the requirements under the draft law in relation to the restructuring of privately negotiated loan agreements between credit institutions and their customers can be regarded as a central bank task. However, as the new task conferred upon Banka Slovenije by the draft law must not adversely affect its capacity to carry out its NCB or ESCB-related tasks, careful consideration should be given to its impact on Banka Slovenije’s operational capacity. In addition, careful

text: consideration should be given to any disproportionate political risk or impact on the personal independence of the members of the decision-making bodies of Banka Slovenije that may arise in the performance of the new task . This opinion will be published on EUR-Lex. Done at Frankfurt am Main, 26 November 2021. [signed]

text: The President of the ECB

text: Christine LAGARDE


text: COM(2021) 422 final.

text: Paketet omfattar också a) ett förslag till förordning om åtgärder för att förhindra att det finansiella systemet används för penningtvätt eller finansiering av terrorism (COM(2021) 420 final), b) ett förslag till direktiv om de mekanismer som medlemsstaterna ska inrätta för att förhindra att det finansiella systemet används för penningtvätt eller finansiering av terrorism och om upphävande av

text: direktiv (EU) 2015/849

text: (COM(2021) 423 final) samt c) ett förslag till förordning om inrättande av en myndighet för bekämpning av penningtvätt och finansiering av terrorism och om ändring av förordningarna

text: (EU) nr 1093/2010

text: (EU) nr 1094/2010

text: (EU) nr 1095/2010

text: (COM(2021) 421 final).

text: Se FATF:s rekommendationer. Finns på FATF:s hemsida https://www.fatf-gafi.org

text: COM(2020) 593 final.

text: Se fotnot 12 i Europeiska centralbanken yttrande

text: av 19 februari 29,4 om ett förslag till förordning om marknader för kryptotillgångar och om ändring av

text: direktiv (EU) 2019/1937

text: (EUT C 152, 29.4.2021, s. 1.). Alla ECB:s yttranden finns i EUR-Lex.

text: Se skäl 8 och 27 i förslaget till förordning.

text: Se punkt 2.1.5 i yttrande

text: och punkt 1.1.3 i Europeiska centralbankens yttrande av den 12 oktober 2016 om ett förslag till Europaparlamentets och rådets direktiv om ändring av

text: direktiv (EU) 2015/849

text: om åtgärder för att förhindra att det finansiella systemet används för penningtvätt eller finansiering av terrorism och om ändring av direktiv

text: (EUT C 459, 9.12.2016, s. 3).

text: Se avsnitt 1 punkt 1 åttonde stycket i motiveringen till förslaget till förordning.

text: Exempelvis har det tyska finansministeriet utfärdat en förordning som trädde ikraft den 1 oktober 2021 som föreskriver skärpta krav på kundkännedom vid överföringen av kryptotillgångar (Verordnung über verstärkte Sorgfaltspflichten bei dem Transfer von Kryptowerten vom 24. September 2021 (BGBl. I S. 4465)). Enligt den förordningen ska leverantörer av kryptotjänster som överför kryptotillgångar samtidigt och på ett säkert sätt till den leverantör av kryptotillgångstjänster som agerar för mottagarens räkning överföra initiatorns namn, adress och kontonummer (t.ex. öppen nyckel) samt mottagarens namn och kontonummer (t.ex. öppen nyckel). Leverantören av kryptotillgångstjänster som agerar för mottagarens räkning ska säkerställa att den tar emot och lagrar information om både initiator och mottagare. Genom att parterna i transaktionen genom vilken kryptotillgångar överförs ska kan spåras kan man förebygga, upptäcka och utreda penningtvätt och finansiering av terrorism samt även övervaka huruvida sanktioner kringgås. Förordningen föreskriver också att ansvariga enheter säkerställer att uppgifter om mottagaren eller initiatorn till en överföring samlas in när överföringen görs från eller till en elektronisk plånbok som inte förvaltas av en leverantör av kryptotjänster, även om det inte finns någon risk för överföring av data.

publisher: Europeiska centralbanken

sprak: sv

title: Europeiska centralbankens yttrande av den 30 november 2021 om ett förslag till förordning om att utvidga kraven på spårbarhet till att även omfatta kryptotillgångar (CON/2021/37) 2022/C 68/02

serie: con

text: Inledning och rättslig grund

type: rubrik

text: Den 14 och den 20 oktober 2021 mottog Europeiska centralbanken (ECB) en begäran från Europaparlamentet respektive Europeiska unionens råd om ett yttrande om ett förslag till Europaparlamentets och rådets förordning om uppgifter som ska åtfölja överföringar av medel och vissa kryptotillgångar (omarbetning) (nedan kallat förslaget till förordning).

type: stycke

text: ECB:s behörighet att avge ett yttrande grundas på artiklarna

text: och

text: i fördraget om Europeiska unionens funktionssätt eftersom förslaget till förordning innehåller bestämmelser som berör Europeiska centralbankssystemets (ECBS) grundläggande uppgifter att genomföra unionens penningpolitik, att främja välfungerande betalningssystem i enlighet med artikel 127.2 första och fjärde strecksatserna i fördraget, ECBS uppgift att medverka till det finansiella systemets stabilitet i enlighet med artikel 127.5 i fördraget, och eurosedlarnas ställning som lagliga betalningsmedel i enlighet med artikel 128.1 i fördraget. I enlighet med artikel 17.5 första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: Allmänna kommentarer

text: ECB välkomnar kommissionens initiativ att, genom förslaget till förordning, utvidga kraven på spårbarhet till kryptotillgångar som utgör en del av paketet för bekämpning av penningtvätt och finansiering av terrorism som antogs av kommissionen den 20 juli 2020.

text: Eftersom det i samband med överföringar av kryptotillgångar finns liknande risker för penningtvätt och finansiering av terrorism som vid överföringar av pengar, bör leverantörer av kryptotillgångstjänster omfattas av samma typ av krav avseende penningtvätt och finansiering av terrorism som andra aktörer. ECB välkomnar därför föreslaget till förordning som ett medel att skapa konkurrens på lika villkor vad gäller leverantörer av kryptotillgångstjänster.

text: ECB välkomnar föreslaget att anpassa EU:s rättsliga ram till rekommendationerna från arbetsgruppen för finansiella åtgärder (FATF), särskilt rekommendation 16, eftersom den ytterligare minskar riskerna för penningtvätt och finansiering av terrorism i samband med överföringar av kryptotillgångar, vilket bidrar till att skapar jämförbara villkor mellan överföringar i officiella valutor och överföringar i kryptotillgångar för att förhindra missbruk av kryptotillgångar för penningtvätt och finansiering av terrorism. Samtidigt som jämförbara regler bör uppnås när det gäller intensiteten i de krav på bekämpning av penningtvätt och finansiering av terrorism som tillämpas på leverantörer av kryptotillgångstjänster, bör de specifika kraven fånga upp de risker som är förknippade med de tekniska egenskaperna hos kryptotillgångar och överföringar av kryptotillgångar. Exempelvis bör krav på att överföringar av kryptotillgångar ska kunna spåras ta hänsyn till den speciella teknik som ligger till grund för sådana överföringar.

text: För att minska riskerna för penningtvätt och finansiering av terrorism bör förslaget till förordning förtydligas så att man undviker tvivel om huruvida transaktioner mellan lokala och andra plånböcker omfattas, vilket innebär att exakt samma information bör samlas in och lagras som vid andra överföringar av kryptotillgångar. Dessutom bör kommissionen och de berörda nationella myndigheterna också noga övervaka marknadsutvecklingen och penningtvättsaktiviteter som berör kryptotillgångar utan att man använder tjänsteleverantörer eller direkta decentraliserade transaktioner mellan parter, och ytterligare lagstiftningsåtgärder bör vid behov föreslås om man inom detta segment ser tecken på en betydande ökning av transaktionsvolymerna och en ökad användning av sådana tillgångar för olaglig verksamhet.

text: Med tanke på den snabba tekniska utvecklingen på området kryptotillgångar är det också viktigt att noga övervaka genomförandet av ramverket i samarbete med berörda myndigheter och, i förekommande fall, den privata sektorn.

text: 1. Definitionen av kryptotillgångar och tillämpningsområdet för förslaget till förordning

text: 1.1 Förslaget till förordning kommer att använda den definition av kryptotillgångar som framgår av förslaget till Europaparlamentets och rådets förordning om marknader för kryptotillgångar och om ändring av

text: direktiv (EU) 2019/1937

text: (nedan kallat förslaget till förordning om marknader för kryptotillgångar). Som ECB påpekat tidigare, innehåller förslaget till förordningen om marknader för kryptotillgångar en definitionen av kryptotillgång som är både teknikspecifik och bred. ECB tolkar det som att avsikten är att ha en bred och allomfattande definition och att föreslaget till förordning därför syftar till att utvidga kraven om spårbarhet till alla kryptovalutor, oavsett vilken underliggande teknik (teknik för distribuerade liggare eller annat) som används för att emittera dem.

text: 1.2 Vad det gäller tillämpningsområdet för föreslaget till förordning är det ECB:s uppfattning att det, i likhet med förslaget till förordningen om marknader för kryptotillgångar, inte är avsett att omfatta kryptotillgångar som emitteras av centralbanker som agerar i egenskap av monetära myndigheter. Av rättssäkerhetsskäl och för att till fullo anpassa tillämpningsområdet för föreslaget till förordning till tillämpningsområdet för förordningen om marknader för kryptotillgångar, föreslår ECB att detta uttryckligen anges i skälen och bestämmelserna i föreslaget till förordning.

text: 2. Hänvisning till officiella valutor

text: Förslaget till förordning innehåller flera hänvisningar till fiatvalutor. I enlighet med fördragen och unionens monetära lagstiftning är euron den gemensamma valutan i euroområdet, dvs. för de medlemsstater som har antagit euron som sin valuta. Vad gäller medlemsstater som inte har antagit euron som sin valuta hänvisas det i fördragen konsekvent till dessa medlemsstaters valutor. I fördragen omnämns euron eller medlemsstaternas valutor ingenstans som fiatvalutor. Mot denna bakgrund är det inte lämpligt att i en unionsrättsakt hänvisa till fiatvalutor. I förslaget till förordning bör det i stället hänvisas till officiella valutor.

text: 3. Datum då föreslaget till förordning ska tillämpas

text: Ur ett systemiskt och finansiellt stabilitetsperspektiv skulle det vara fördelaktigt att anpassa det datum då förslaget till förordning ska börja tillämpas till datumet då förordningen om marknader för kryptotillgångar ska börja tillämpas, för att på så sätt säkerställa att förslaget till förordning tillämpas på överföringar av kryptotillgångar så snart som möjligt, i stället för att vänta på att övriga delar av paketet för bekämpning av penningtvätt och finansiering av terrorism börja tillämpas. Som kommissionen påpekar är aktörer med kryptotillgångar för närvarande utsatta för en risk för penningtvätt och finansiering av terrorism eftersom flöden av olagliga pengar möjliggörs genom överföringar av sådana tillgångar, vilket skadar den finansiella sektorns integritet, stabilitet och anseende. Ett antal medlemsstater har redan lagstiftat på denna punkt.

text: I de fall där ECB rekommenderar att förslaget till förordning ska ändras anges de specifika förslagen i ett separat tekniskt arbetsdokument som åtföljs av en förklaring. Det tekniska arbetsdokumentet finns på engelska på i EUR-Lex.

text: Utfärdat i Frankfurt am Main den 30 november 2021.

text: Christine Lagarde

text: ECB:s ordförande

type: vagledning

utgivare: ecb


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

text: Article 107 of the draft law. 3 4 See Article I.8, 39° of the Code of Economic Law. 5 See pages 6 and7 of the explanatory memorandum of the draft law.

text: Article I.9, 2° Code of Economic Law, which transposes

text: Article 4(11) of Directive (EU) 2015/2366

text: of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives

text: and

text: and

text: Regulation (EU) No 1093/2010

text: , and repealing Directive

text: (OJ L 337, 23.12.2015, p. 35). 7 See pages 4 and 5 of the explanatory memorandum of the draft law. 8 9 As referred to in

text: Article 1

text: :25 Code for Companies and Associations. 10 See paragraph 2.2 of Opinion

text: and paragraph 2.3 of Opinion

text: . All ECB opinions are published on EUR-Lex.

text: See paragraph 2.4 of Opinion

text: , paragraph 2.1 of Opinion

text: , paragraph 9.2.1 of Opinion

text: , paragraph 2.3 of Opinion

text: , paragraph 7.2.1 of Opinion

text: and paragraphs 2.1 and 2.3 of Opinion

text: . 12

text: Article 127(2)

text: TFEU and Article 3.1 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’). 13 First sentence of

text: Article 128(1)

text: TFEU and first sentence of Article 16 of the Statute of the ESCB. 14 Third sentence of

text: Article 128(1)

text: TFEU and third sentence of Article 16 of the Statute of the ESCB. 15 OJ L 83, 30.3.2010, p. 70.

text: See judgment of the Court of Justice of 26 January 2021, Hessischer Rundfunk,

text: and

sprak: en

title: Opinion of the European Central Bank of 22 December 2021 on the provision of an electronic payment option to consumers (CON/2021/38)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 22 December 2021 on the provision of an electronic payment option to consumers (

text: ) Introduction and legal basis

text: On 22 November 2021 the European Central Bank (ECB) received a request from the Governor of the Nationale Bank van België/Banque Nationale de Belgique, on behalf of the Vice Prime Minister and Minister of Economy and Labour, for an opinion on a preliminary draft program-law introducing, inter alia, the obligation for undertakings to provide an electronic payment option for consumers (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the second indent of

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

text: , as the draft law relates to means of payment. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The draft law provides that where a payment in euro is made in the simultaneous physical presence of a consumer and an undertaking, the undertaking must also make available to the consumer an electronic means of payment . As stated in the explanatory memorandum accompanying the draft law, the objective of the draft law is twofold. First, the requirement for undertakings to provide to consumers an electronic means of payment is designed to guarantee that the consumer always has the possibility of paying via an electronic means of payment. Second, the requirement falls within the plan to combat tax fraud . 1.2 The draft law defines ‘undertaking’ as any natural or legal person pursuing an economic purpose on a long-term basis, including its associations . This definition is not limited to companies in the strict sense, but captures any legal or natural person that engages in economic activities towards consumers. In that respect, any of the liberal professions and any person and association can be interpreted as an undertaking. Public institutions can also fall under the definition of an undertaking when they engage in activities outside the realm of providing public services . 1.3 The draft law defines ’electronic means of payment’ as any means of payment other than euro

text: banknotes and coins, supplied by a payment service provider . Luncheon vouchers, eco-vouchers and consumer vouchers, which are subject to a specific legal framework in the area of taxation and labour rights, are excluded from the definition of an electronic means of payment, as are cryptocurrencies . 1.4 According to the explanatory memorandum, undertakings are not authorised to refuse payments in cash, which will always have to be accepted as euro banknotes and coins are the only legal tender in the euro area. 1.5 The legislator understands that the mandatory provision of an electronic means of payment can bring extra costs for undertakings, especially for the smallest ones, as they carry out many low value transactions and less commonly use electronic means of payment. For that reason, the explanatory memorandum states that micro-companies and natural persons that meet the criteria for microcompanies will be entitled to a 120% tax deduction for the costs incurred or borne in order to provide consumers an electronic means of payment . ’Micro-companies’ are defined as small companies with legal personality which are not subsidiaries or parent companies and which do not exceed one of the following criteria on the balance sheet date for the last completed financial year: an annual average number of employees of 10; an annual turnover excluding value added tax of a maximum of EUR 700,000; or a balance sheet total of a maximum of EUR 350,000 .

text: 2. General observations

text: Role of electronic payments and cash in society, and legal tender status of euro banknotes and coins 2.1 The ECB notes that the introduction of a mandatory requirement for undertakings to provide an electronic means of payment to consumers alongside cash will ensure that consumers have a choice when making payments at the premises of undertakings. Even though, as noted in the explanatory memorandum, Belgians make considerably fewer bank card or mobile payments as compared with consumers in other European countries, the changing reality is that electronic payment instruments are becoming increasingly common and important in everyday life. The ECB holds a positive view of further innovation and development in the field of electronic payment instruments and their continued spread in society . 2.2 Taking a common European approach for payments is important, particularly for Member States that have adopted the euro as their currency. The Single Euro Payments Area makes it possible for residents of euro area Member States to make payments in other euro area Member States as easily as they are accustomed to do in their home Member States. In this respect, electronic means of payment in the form of purely national card schemes or mobile payment solutions that are not available to non-permanent residents would be a step back.

text: 2.3 Cash continues to play a unique and important role in society, as certain groups, such as the elderly, immigrants, the disabled, socially vulnerable citizens and marginalised people, are less familiar with or even unable to use electronic means of payment. For these groups, cash is and continues to be an essential payment method to meet their daily needs. There are other legitimate reasons to pay in cash rather than with an electronic payment instrument. Cash is widely accepted, fast and facilitates control over the payer’s spending. Moreover, it is the only payment instrument that allows citizens to settle a transaction instantly and in central bank money. Lastly, cash has the advantage that it is not affected in the event of a disturbance in the electronic payment system and possesses therefore an important back-up function. 2.4 Belgium is a member of the euro area and as Union law regulates the legal tender status of euro banknotes and coins, the Union framework applicable to the legal tender status of euro banknotes and coins is directly applicable in Belgium. 2.5 Under the Treaty, the European System of Central Banks has the basic task of promoting the smooth operation of payment systems , and the ECB has the exclusive right to authorise the issue of euro banknotes within the Union . The euro banknotes issued by the ECB and the national central banks of the euro area are the only banknotes with legal tender status within the euro area . 2.6 The concept of ‘legal tender’ of a means of payment denominated in a currency unit has been considered by the Court of Justice of the European Union. In particular, the Court has clarified that ‘legal tender’ signifies that this specific means of payment cannot generally be refused in settlement of a debt, denominated in the same currency unit at its full face value, with the effect of discharging the debt. In clarifying the concept of ‘legal tender’ under Union law, the Court has taken into consideration Commission Recommendation 2010/191 of 22 March 2010 on the scope and effects of legal tender of euro banknotes and coins , which provides useful guidance for the interpretation of the relevant provisions of Union law. Point 1 of Recommendation 2010/191 states that, where a payment obligation exists, the legal tender of euro banknotes and coins should imply (a) mandatory acceptance of those banknotes and coins; (b) their acceptance at full face value; and (c) their power to discharge from payment obligations. According to the Court, this shows that the concept of ‘legal tender’ encompasses, inter alia, an obligation in principle to accept banknotes and coins denominated in euro for payment purposes . 2.7 Insofar as it allows Union legislature to lay down the measures necessary for the use of the euro as the single currency, the Court clarified that Article 133 of the Treaty empowers the Union legislature alone to specify the legal rules governing the status of legal tender accorded to banknotes and coins denominated in euro, insofar as that is necessary for the use of the euro as the single currency. Such exclusive competence precludes any competence on the part of the Member States in the matter,

text: unless they have been empowered by the Union to do so or for the implementation of Union acts . 2.8 However, the Court further clarified that the status of legal tender calls only for acceptance in principle of banknotes and coins denominated in euro as a means of payment, not for absolute acceptance. The Union’s exclusive competence in matters of monetary policy is without prejudice to the competence of the Member States whose currency is the euro to regulate the procedures for settling pecuniary obligations, which do not affect the principle that, as a general rule, it must be possible to discharge a payment obligation in cash . Preferential tax treatment for the costs of implementing the requirement to provide electronic means

text: of payment

text: 2.9 The ECB acknowledges that the practical implementation of the draft law entails costs in relation to the acceptance of electronic payments and the use of services offered by commercial entities under market conditions. These costs include, but are not limited to, fees in relation to individual payment transactions consisting of a fixed fee and/or ad valorem percentage per transaction, fees for the purchase or rental of payment terminals, as well as periodic fees for payment service providers. These costs may have a more substantial impact on small undertakings. Assuming stable revenues, the increase in costs for payment acceptance would lead to a decrease of profitability. 2.10 However, it is noted that, according to the explanatory memorandum, every micro-company will be able to benefit from a 120% tax deduction in respect of its costs, including those micro-companies that provided an electronic means of payment to consumers before the coming into force of the draft law. 2.11 In this regard, while the draft law ensures that undertakings must not refuse payments in cash, the tax deduction for undertakings with respect to the cost of offering an electronic means of payment to consumers should not be designed in such a way as to give rise to an incentive for these undertakings to persuade consumers to favour electronic means of payment.

text: This opinion will be published on EUR-Lex.

text: Done at Frankfurt am Main, 22 December 2021.

text: [signed]

text: The President of the ECB

text: Christine LAGARDE


text: 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 (OJ L 189, 3.7.1998, p. 42). 3 Under Italian law, the draft laws submitted to the Parliament by the Government are accompanied by a technical report, which must describe the financial burden of any provision.

text: Currently, Italy’s participation in the PRGT is regulated by

text: Article 16

text: (6-sexies) of the Decree Law on the extension of deadlines, of 30 December 2016, No 244, converted by the Law of 27 February 2017, No 19 and by Article 1(638) of Law No 178 of 30 December 2020. See Opinions

text: and

text: . All ECB opinions are published on EUR-Lex. 5 The draft legislative provisions specify that any charges stemming from the abovementioned guarantee shall be covered by the payment to the State budget of the amounts available in the special accounts referred to in Article 8(4) of Decree-Law No 201 of 6 December 2011, converted, with amendments, into Law No 214 of 22 December 2011, and the subsequent reallocation to the relevant chapters of the Italian Ministry of Economy and Finance’s budget. 6 Article 127(3) of the draft legislative provisions provides that a special fund with a yearly endowment shall be allocated to the budget of the Italian Ministry of Economy and Finance, ‘in order to comply with the applicable national and European legislative provisions’. Paragraph 11 of the explanatory memorandum and the note on Article 127(3) of the draft legislative provisions contained in the technical report both clarify that such amounts are to be transferred in advance, in full, to the Banca d’Italia by the Italian Ministry of Economy and Finance. 8

text: Council Regulation (EC) No 3603/93 of 13 December 1993

text: specifying definitions for the application of the prohibitions referred to in Articles

text: and

text: b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1).

text: Consistent with this interpretation, see Opinions

text: and

text: . With regard to the issue of NCBs’ financing of IMF quota increases, see Opinions

text: and

text: . 10 See International Monetary Fund, Balance of Payments and International Investment Position Manual (sixth edn., 2009), Chapter 8, Section F, p. 111. 11 See also Opinions

text: and

text: . As regards the credit quality of the claims on the PRGT, the protection of the PRGT’s loan resources is ensured by the IMF under a multilayered framework comprising IMF policy safeguards, financial buffers and the IMF’s de facto preferred creditor status. 12 See Opinions

text: and

text: See Article 127(3) of the draft legislative provisions. 14 Pursuant to the principle of financial independence, Member States may not put their NCBs in a position where they have insufficient financial resources to carry out their tasks. See ECB Convergence Report 2020, para. 2.2.3.

title: Opinion of the European Central Bank of 28 December 2021 on Italy’s participation in the International Monetary Fund programmes: Poverty Reduction and Growth Trust and debt relief for Sudan (CON/2021/39)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 28 December 2021 on Italy’s participation in the International Monetary Fund programmes: Poverty Reduction and Growth Trust and debt relief for Sudan (

text: ) Introduction and legal basis

text: On 13 December 2021, the European Central Bank (ECB) received a request from the Italian Ministry of Economy and Finance for an opinion on draft legislative provisions (hereinafter the ‘draft legislative provisions’) included in the Italian Law on the budget for the year 2022 and for the multi-year period 2022-24 (hereinafter the ‘2022 Law on the budget’). The 2022 Law on the budget must be approved by the end of December 2021. The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third indent of

text: , as the draft legislative provisions relate to the Banca d’Italia. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft legislative provisions

text: 1.1 Background context The draft legislative provisions make provision for new arrangements in relation to the Poverty Reduction and Growth Trust (PRGT) between Italy and the International Monetary Fund (IMF), first in the form of loan agreements and, second, in the form of donations. The renegotiation of the loan and donation arrangements under the PRGT is part of the IMF’s effort to support global liquidity, especially in the poorest countries, in the light of the changing global environment arising from the economic and social consequences of the COVID-19 pandemic . The draft legislative provisions also aim at providing reimbursement to the Banca d’Italia of a sum equal to the resources of the Banca d’Italia used for the Italian share of participation in the Heavily Indebted Poor Countries (HIPC) initiative in favour of Sudan. The draft legislative provisions are accompanied by an explanatory memorandum and a technical report (‘relazione tecnica’) which provide additional operational and timing details on these arrangements.

text: 1.2 New contribution to the PRGT in the form of a loan agreement The draft legislative provisions authorise the Banca d’Italia to enter into a new loan agreement to contribute to the IMF’s PRGT, for an amount of 1 billion special drawing rights (SDR). The new loan agreement is in addition to the existing PRGT loans of 400 million and 1 billion SDR . The draft legislative provisions further provide for a State guarantee to the Banca d’Italia in respect of the reimbursement of principal and interest due on the new PRGT loan . 1.3 New contribution to the PRGT in the form of subsidies In addition, the draft legislative provisions authorise the Banca d’Italia to provide subsidies, in the form of donations, to the PRGT, for an amount up to EUR 101 million, equivalent to 83 million SDR, over a period of five years starting from 2022. The draft legislative provisions, read in conjunction with the explanatory memorandum and technical report, further provide for the pre-funding by the Ministry of Economy and Finance of the subsidies to be made to the PRGT by the Banca d’Italia . 1.4 Participation in the HIPC initiative in favour of Sudan The draft legislative provisions authorise the Ministry of Economy and Finance to reimburse the Banca d’Italia the sum of EUR 49 million, equivalent to the amount of 40,46 million SDR. The sum was paid by the Banca d’Italia on 29 June 2021, in connection with the Italian share of participation in the HIPC initiative in favour of Sudan. The reimbursement will be made in 2022, with the value date set at the date of payment made by the Banca d’Italia (i.e. 29 June 2021). According to the explanatory memorandum, the reimbursement is intended to comply with the prohibition of monetary financing as set out in Article 123(1) of the Treaty .

text: 2. Monetary financing prohibition

text: 2.1 Article 123(1) of the Treaty prohibits the national central banks (NCBs) from granting overdraft facilities or any other type of credit facility to public authorities and bodies of the Member States. This prohibition is however subject to certain exemptions contained in

text: Council Regulation (EC) No 3603/93

text: . In particular,

text: Article 7 of Regulation (EC) No 3603/93

text: provides that the financing by NCBs of obligations falling upon the public sector vis-à-vis the IMF is not regarded as a credit facility within the meaning of Article 123 of the Treaty. The fourteenth recital of

text: Regulation (EC) No 3603/93

text: clarifies the rationale behind this exemption, stating that it is appropriate to authorise the financing by the NCBs of obligations falling upon the public sector vis-à-vis the IMF because such financing ‘results

text: in foreign claims which have all the characteristics of reserve assets’. Therefore, the exemption in

text: Article 7 of Regulation (EC) No 3603/93

text: must be interpreted in line with this rationale . 2.2 Reserve assets have been defined as those external assets that are readily available to and controlled by monetary authorities for meeting balance of payments financing needs, for interventions in exchange markets to affect the currency exchange rate, and for other related purposes, such as maintaining confidence in the currency and the economy, and serving as a basis for foreign borrowing. Under this definition, reserve assets must be foreign currency assets and, other than gold bullion, must be claims on non-residents . The need for availability on demand to meet balance of payments financing needs and other related purposes implies that the credit quality and liquidity of the claims must be ensured. 2.3 The ECB understands that the draft legislative provisions are accompanied by, and must be read in conjunction with the explanatory memorandum and technical report which provide additional operational and timing details on these arrangements. These documents provide an interpretation of how the draft legislative provisions must be understood.

text: Contribution to the PRGT in the form of a loan

text: 2.4 For the exemption laid down in

text: Article 7 of Regulation (EC) No 3603/93

text: to apply to the new PRGT loan envisaged by the draft legislative provisions, the terms and conditions of the agreement with the IMF must provide for a potential early repayment of the principal amount of the borrowed resources. Under this arrangement, the SDRs channelled by the Banca d’Italia to the PRGT would be readily repayable, to meet balance of payments and reserve needs, so that the liquidity of the claims of the Banca d’Italia is safeguarded with a view to ensuring their reserve asset status. 2.5 Subject to the above arrangement, the ECB considers that the Banca d’Italia’s additional loan to the IMF’s PRGT set out in the draft legislative provisions is compatible with the monetary financing prohibition, as it results in SDR-denominated claims of the Banca d’Italia against an IMF-administered trust that have all the characteristics of reserve assets .

text: Contribution to the PRGT in the form of subsidies

text: 2.6 With regard to the new PRGT subsidies envisaged by the draft legislative provisions, the ECB understands that they are pre-funded by the Ministry of Economy and Finance, such that the contribution to the PRGT subsidy resources is in fact not financed by the Banca d’Italia. The Banca d’Italia is only executing the transfer of funds on the Ministry’s behalf. In such case, the transfer of funds to the IMF by the Banca d’Italia would not give rise to a credit facility within the meaning of Article 123(1) of the Treaty and

text: Article 1(1)

text: (b)(ii) of

text: Regulation (EC) No 3603/93

text: , irrespective of whether the conditions for the application of

text: Article 7 of Regulation (EC) No 3603/93

text: are met . 2.7 In this respect the ECB notes, first, that according to the draft legislative provisions the Banca d’Italia

text: is authorised, not required, to provide the new subsidies . Second, according to a combined reading of the draft legislative provisions and the explanatory memorandum and technical report, as described in paragraph 1.3, the transfers to the IMF are to be made by the Banca d’Italia only after the receipt of an equal amount of funds from the Ministry of Economy and Finance. 2.8 Without prejudice to the above interpretation, the ECB recommends that the draft legislative provisions are clarified to explicitly state that the Banca d’Italia is to provide the new PRGT subsidies to the IMF only after it has received the necessary funds from the Ministry of Economy and Finance. Reimbursement in connection with the HIPC Initiative in favour of Sudan 2.9 Where Member States are invited by the IMF to contribute non-refundable resources to a debt relief programme, such as the debt relief programme for Sudan, the financing of their contribution by the NCBs will not result in any foreign claims. Consequently, the NCBs’ financing does not fall under the exemption laid down in

text: Article 7 of Regulation (EC) No 3603/93

text: and is therefore not compatible with the prohibition of monetary financing. 2.10 Against this backdrop, the ECB welcomes the fact that the draft legislative provisions aim to take corrective action by way of the reimbursement to be made by the Ministry of Economy and Finance to the Banca d’Italia of the resources contributed in connection with Italy’s participation in the debt relief program for Sudan.

text: 3. Financial independence

text: 3.1 From the perspective of the financial independence required of an NCB in the European System of Central Banks under Article 130 of the Treaty , the ECB takes note of the guarantee provided by the State under the draft legislative provisions with respect to the reimbursement of principal and interest on the Banca d’Italia’s new loan to the PRGT. Also, from that perspective, the ECB welcomes the pre-funding by the Ministry of Economy and Finance of the new subsidies to be provided to the PRGT.

text: Done at Frankfurt am Main, 28 December 2021.

text: [signed]

text: The President of the ECB

text: Christine LAGARDE