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: Law 10/2010 of 28 April 2010 on the prevention of money laundering and terrorist financing, ‘BOE’ no. 103 of 29 April 2010.

text: Directive (EU) 2018/843

text: of the European Parliament and of the Council of 30 May 2018 amending

text: Directive (EU) 2015/849

text: of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives

text: (OJ L 156, 19.6.2018, p. 43).

text: See section 1 of the new Second Additional Disposition of Law 10/2010 (section (52) of the sole Article of the draft law).

text: See section 3 of the new Second Additional Disposition of Law 10/2010 (section (52) of the sole Article of the draft law).

text: Law 10/2014 of 26 June 2014 on the regulation, supervision and solvency of credit institutions, ‘BOE’ no. 156 of 27 June 2014, page 49412.

text: See section 4 of the new Second Additional Disposition of Law 10/2010 (section (52) of the sole Article of the draft law).

text: Article 44 of Law 10/2010.

text: Article 45 of Law 10/2010.

text: Article 44

text: and Article 47 of Law 10/2010.

text: and

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

text: In the Netherlands,

text: Article 23

text: (b) of the Law on money laundering and terrorist financing prevention (Wet ter voorkoming van witwassen en financiering van) requires anyone who offers professional or commercial services in or from the Netherlands for the exchange between virtual currency and fiduciary currency or custody wallets services to register with De Nederlandsche Bank (DNB).

text: Articles 23

text: (c) to 23(f) of this same Act set out the actions that DNB may undertake in order to ensure compliance with the obligation to register. In Portugal, the Law No. 83/2017 on theprevention of money laundering and terrorist financing (Lei de medidas de combate ao branqueamento de capitais e ao financiamento do terrorismo) considers virtual asset service providers as obliged entities required to comply with AML/CFT rules, and Banco de Portugal is the authority responsible for the registration and supervision of these entities for AML/CFT purposes.

text: In Austria,

text: Article 32

text: (a) of the Law on financial market anti-money-laundering, the Finanzmarkt-Geldwäschegesetz , confers these tasks on the Financial Market Authority (FMA). In Germany, pursuant to section 32(1) of the Law on German banking, the Bundesanstalt für Finanzdienstleistungsaufsicht, keeps a register of all licensed service providers and is responsible for the respective ongoing supervision. In Finland, pursuant section 5 of the Law No. 572/2019 on the providers of virtual currencies (Laki virtuaalivaluutan tarjoajista) Finanssivalvonta keeps a register of the virtual asset service providers which ensures that these providers comply with their statutory requirements concerning, for instance, the reliability of the provider. In Luxembourg, pursuant

text: Articles 1

text: (20c) and 7-1(1) of the Law 12 November 2004 on the fight against money laundering and terrorist financing as amended by the Law of 25 March 2020 on Loi du 12 novembre 2004 relative à la lutte contre le blanchiment et contre le financement du terrorisme, entities providing exchanges services between virtual currencies and fiat currencies, or between virtual currencies, as well as custodian wallet providers, need to register with the Commission de Surveillance du Secteur Financier. The registration of the above-mentioned services providers shall be subject, as per Article 7-1(3) of the AML/CFT Law, to an assessment of their professional standing. In Malta, according to the Law on virtual asset providers of 1 November 2018, the providers of the above-mentioned services need to register in a financial register maintained by the Malta Financial Services Authority. The AML/CFT supervision of such licensed providers is executed by the Financial Intelligence Analysis Unit.

text: In Italy, Legislative Decree No. 90/2017 (Decreto Legislativo 25 maggio 2017, N. 90), amending Legislative Decree No. 231/2007 setting out the Italian anti-money laundering rules, virtual asset service providers are required to register with the Organismo degli Agenti e dei Mediatori, a body subject to the supervision of Banca d’Italia, which is responsible for maintaining the registers of financial agents and credit brokers. In Lithuania, the Law of 3 November 2019 on prevention of money laundering and terrorist financing, amending the Law of 19 June 1997 (Pinigų plovimo ir teroristų finansavimo prevencijos įstatymas), requires providers of exchange services between virtual currency and fiduciary currency and custody wallet service providers to notify the Registrar of Legal Entities about their activity no later than within 5 business days from the beginning or termination of such activities. The Financial Crime Investigation Authority (the FIU) supervises the activities of operators in the area of money laundering and/or terrorist financing prevention. The instructions that the FIU may address to these providers shall be approved in coordination with Lietuvos bankas and the Ministry of Finance. In Slovenia, according to

text: Article 4

text: (a) of the Law of 19 November 2016 on prevention of money laundering and terrorist financing (Zakon o preprečevanju pranja denarja in financiranja terorizma), the register of providers of exchange services between virtual and fiat currencies and custodian wallet providers is maintained and managed by the Office for the prevention of money laundering. However, pursuant to

text: Articles 4

text: (20d) and 151 of the above-mentioned Act, Banka Slovenije supervises compliance with the relevant statutory requirements.

text: Law 13/1994 on the autonomy of Banco de España, "BOE" no. 131 of 2 June 1994.

text: Law 10/2014 of 26 June 2014 on the regulation, supervision and solvency of credit institutions, ‘BOE’ no. 156 of 27 June 2014.

text: Law 40/2015 of 1 October 2015 on the legal regime of the public sector, ‘BOE’ no. 236 of 2 October 2015.

text: Law 13/1994 1 June 1994] on the autonomy of Banco de España, ‘BOE’ no. 131, of 7 February 1994, p. 17400.

text: Resolution of 28 March 2020, of the Governing Council of Banco de España by virtue of which the Internal Rules of Banco de España are approved.

title: Opinion of the European Central Bank of 18 December 2020 on the application of money laundering and terrorist financing requirements to virtual currency service providers (CON/2020/35)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 18 December 2020 on the application of money laundering and terrorist financing requirements to virtual currency service providers (

text: ) Introduction and legal basis

text: On 29 October 2020 the European Central Bank (ECB) received a request from the Ministerio de Asuntos Economicos y Transformación Digital (the Spanish Ministry of Economic Affairs and Digital Transformation) for an opinion on a draft law amending the Law on the prevention of money laundering and terrorism financing (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 indent of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to Banco de España. 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 main purpose of the draft law, which amends the current Law on the prevention of money laundering and terrorist financing (hereinafter the Anti-Money Laundering/Combatting the Financing of Terrorism law (‘AML/CFT law’)), is to implement

text: Directive (EU) 2018/843

text: of the European Parliament and of the Council into Spanish law. The draft law also introduces some amendments to include additional categories of virtual currency service providers. 1.2 More concretely, and as part of the amendments which implement

text: Directive (EU) 2018/843

text: , the draft law extends the addressees of the AML/CFT law to include the providers of exchange services between virtual currencies and fiat currencies, as well as custodian wallet service providers (defined as those natural or legal persons that provide private cryptographic key safeguarding services on behalf of their clients, for the holding, storing and transferring virtual

text: currencies in a manner similar to that of the custody of traditional financial funds or assets). Going beyond a transposition of

text: Directive (EU) 2018/843

text: , the draft law also incorporates additional categories of virtual currency service providers, as addressees of the AML/CFT law. 1.3 The draft law requires the providers of: (i) exchange services between virtual currencies; (ii) exchange services between virtual currencies and fiat currencies; and, (iii) custodial wallet service providers, who are located in Spain or provide services to residents in Spain, to be entered in the register established for this purpose by Banco de España . Banco de España will be required under the draft law to supervise the compliance of these service providers with the obligation to register, as well as their compliance with the requirements of good business and professional repute to be determined. According to the draft law, these requirements will be established in an administrative norm . In addition, Banco de España will exercise sanctioning powers, in line with the Spanish banking law , in cases of non-compliance with the registration requirement .

text: 2. General observations

text: 2.1 This opinion does not address the issue of whether the draft law is compatible with

text: Directive (EU) 2018/843

text: . The ECB has limited its assessment of the provisions of the draft law to the issue of whether the conferral of a new task on the Banco de España complies with the prohibition on monetary financing.

text: 3. Conferral of a new task on the Banco de España

text: 3.1 New tasks of Banco de España 3.1.1 It is envisaged that the tasks of operating the register, as well as supervision of compliance by the relevant service providers with the obligation to register subject to the fulfilment of requirements of good business and professional repute, will be conferred on the Banco de España. It should be noted that the primary AML/CFT authority in Spain is the Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias (Commission for the Prevention of Money Laundering and Monetary Offences), which is a body under the Ministry of Economic Affairs and Digital Transformation, responsible for developing and coordinating Spain’s policies on AML/CFT . In order to carry out its tasks, the Commission is supported by the Servicio Ejecutivo de la Comisión de Prevención del Blanqueo de Capitales e Infracciones Monetarias (SEPBLAC, Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences) and the

text: Commission’s Secretariat . SEPBLAC acts as the Financial Intelligence Unit, and is also responsible for supervision in relation to AML/CFT matters in all financial and non-financial sectors, in cooperation with sectoral supervisors. Accordingly, since Banco de España is the supervisor of credit institutions and other non-credit financial institutions, such as payment institutions and electronic money institutions, Banco de España also cooperates with SEPBLAC in the supervision in relation to AML/CFT matters in financial institutions under an agreement signed for this purpose. In this respect, Banco de España has the power to carry out inquiry measures, formulate recommendations and propose to the Commission’s Secretariat the formulation of requirements . 3.1.2 The ECB emphasises that a proposed conferral of new tasks on a national central bank (NCB) participating in the European System of Central Banks (ESCB) 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’ as, inter alia, ‘any financing of the public sector’s obligations vis-à-vis third parties’. 3.1.3 Ensuring that Member States implement a sound budgetary policy is one of the key objectives of the prohibition on monetary financing, 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 prohibition on monetary financing, which is to maintain sound budgetary policy by Member States, do not take place. 3.1.4 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 in the form of criteria for determining what may be considered as falling within the scope of ‘the public sector’s obligations vis-à-vis third parties’ 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 in

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 ‘functions other than those specified in [the Statute of the ESCB]’, 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 its performance 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 existing central bank tasks should not be interpreted broadly so that it could 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 properly perform 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 that 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. 3.2 Tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the Statute of

text: the ESCB

text: The tasks of operating a register and supervising compliance by the relevant virtual currency service providers with the obligation to register subject to the fulfilment of the requirements of good business and professional repute to be determined, are not related to the tasks conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. 3.3 Tasks which are atypical of central bank tasks The tasks of operating a register and supervising compliance by the relevant virtual currency service providers with the obligation to register subject to the fulfilment of the requirements of good business and professional repute to be determined, are not atypical of central bank tasks insofar as they complement the existing roles of a number of NCBs as supervisors for the financial sector in relation to AML/CFT matters. In this respect, it is noted that the majority of ESCB NCBs are

text: supervisors in relation to AML/CFT matters, a role which is complementary to their role as

text: supervisors of credit and/or financial institutions. In the implementation of

text: Directive (EU) 2018/843

text: into national law, Member States have conferred the specific tasks of operating a register (and/or

text: the related supervisory tasks) in respect of virtual currency service providers, on a wide range of

text: public authorities including financial supervisory authorities (some of whom are central banks),

text: financial intelligence units, revenue services and Government ministries. More concretely, the ECB

text: has identified two Member States that have directly conferred these particular tasks on their

text: NCBs , five Member States that have conferred these tasks on their national supervisory

text: authorities , and three other Member States that have, either directly or indirectly, conferred these

text: tasks, in whole or in part, on their respective NCBs . In addition, the ECB understands that certain

text: Member States which have not yet legislated on this matter are considering conferring these tasks

text: on their respective NCBs.

text: Banco de España, as the body responsible for the supervision of credit institutions on the basis of

text: Article 7.6 of Law 13/1994 on the autonomy of Banco de España and on the basis of Law

text: 10/2014 on the regulation, supervision and solvency of credit institutions , also cooperates with SEPBLAC as supervisor in relation to AML/CFT matters for credit institutions. Banco de España is also responsible for the supervision of other financial institutions and hence, as sectoral supervisor also cooperates with SEPBLAC in their supervision regarding AML/CFT matters. Given Banco de España’s existing role in the supervision in relation to AML/CFT matters of financial institutions – a role which numerous other ESCB NCBs fulfil in relation to such institutions in their respective Member States – as well as the fact that a number of Member States have conferred on their NCBs the specific tasks of operating a register (and/or the related supervisory tasks) in respect of virtual currency service providers, Banco de España’s new tasks under the draft law are not atypical of central bank tasks. 3.4 Tasks clearly discharged on behalf of and in the exclusive interest of the government For the same reasons, the tasks conferred by the draft law, of operating a register and supervising compliance by the relevant virtual currency service providers with the obligation to register subject to the fulfilment of the requirements of good business and professional repute to be determined, are not tasks discharged on behalf of and in the exclusive interest of the government. Banco de España already plays a role in the supervision in relation to AML/CFT matters of credit and certain financial institutions. There is no indication that, in carrying out the new tasks conferred by the draft law, Banco de España would be acting exclusively in the interest of another public authority. 3.5 Extent to which performance of the new tasks creates conflicts of interest with existing central bank

text: tasks

text: Since Banco de España’s new tasks under the draft law complement its existing tasks, no conflicts of interest arise with other aspects of Banco de España’s mandate. 3.6 Extent to which the performance of the new tasks is disproportionate to Banco de España’s

text: financial or organisational capacity

text: The ECB notes that it is essential to ensure that Banco de España has available to it sufficient resources, including personnel, for the performance of assessments and the issuance of directions under the draft law, so that its capacity to perform its ESCB-related tasks is not affected. In this regard, the draft law does not specifically address how the additional expenses that arise from the grant to Banco de España of additional powers will be financed. The ECB understands that the additional resources required by Banco de España to exercise those additional powers will be financed by Banco de España’s existing budgetary framework and so there will be no specific cost recovery mechanism designed to ensure the full recovery of the costs incurred in establishing and maintaining the register and the supervision of compliance with the relevant obligations and requirements. However, the performance of the new tasks by Banco de España is not disproportionate to its financial or organisational capacity. 3.7 Extent to which performance of the new tasks fits into the Banco de España’s institutional set-up, in light of central bank independence and accountability considerations

text: The performance of the new tasks appears to be aligned with the Banco de España’s institutional set-up. As mentioned in paragraph 3.3, Banco de España cooperates with the supervisor in relation to AML/CFT matters in the supervision of credit and financial institutions. 3.8 Extent to which the performance of tasks harbours substantial financial risks The performance of the new tasks does not harbour substantial financial risks for Banco de España. The draft law does not directly address Banco de España’s potential liability in the event of any legal action or other legal proceedings for damages in relation to the exercise of its powers under the draft law. In this respect, Article 32 of Law 40/2015 on the legal regime of the public sector establishes the right for natural or legal persons to be compensated by public administration bodies in the exercise of their functions for any damage those natural or legal persons suffer to their property and/or rights, except in cases of force majeure. Banco de España is included as a public administration body for those purposes by virtue of Article 1.2 of Law 20 21 13/1994 . Further, Article 25 of the internal rules of Banco de España states that Banco de España’s direct liability extends to claims for compensation for damages and losses that individuals make against employees of Banco de España in the exercise of their functions, except in cases of gross negligence or bad faith. 3.9 Extent to which the performance of the new tasks exposes members of Banco de España’s decision-making bodies to disproportionate political risks and has an impact on their personal

text: independence

text: The performance of the new tasks conferred by the draft law does not expose members of Banco de España’s decision-making bodies to any disproportionate political risk or have an impact on their personal independence. 3.10 Conclusion The new tasks conferred by the draft law on Banco de España, of establishing and maintaining a register and supervising compliance by the relevant virtual currency service providers with the obligation to register subject to the fulfilment of the requirements of good business and professional repute to be determined, can be regarded as central bank tasks, as they would complement Banco de España’s existing functions in relation to the supervision in relation to AML/CFT matters in financial institutions. The new tasks conferred by the draft law are not atypical of central bank tasks, and have been conferred upon a number of other ESCB NCBs.

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

text: Done at Frankfurt am Main, 18 December 2020.

text: [signed]

text: The President of the ECB

text: Christine LAGARDE


text: Закон за изменение и допълнение на Закона за кредитните институции. 2

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 Law on credit institutions (Закон за кредитните институции, обн. ДВ, бр. 59 от 21.07.2006 г.). 4 Proposed new

text: Article 121

text: b(6) of the Law on credit institutions. 5 Proposed new

text: Article 151

text: a(1) of the Law on credit institutions. 6 Proposed new

text: Article 121

text: b(7) and

text: Article 151

text: a(2) of the Law on credit institutions.

text: Proposed amended Article 151(7) of the Law on credit institutions. 8 Proposed amended

text: Article 121

text: b(4) of the Law on credit institutions. 9 Proposed new Article 80(8) of the Law on credit institutions. 10 Proposed amended Article 71(5) of the Law on credit institutions. 11 Proposed amended Article 76(6) of the Law on credit institutions. 12 Proposed new Article 152(9) of the Law on credit institutions. 13 Decision

text: (EU) 2020/1015

text: of the European Central Bank of 24 June 2020 on the establishment of close cooperation between the European Central Bank and Българска народна банка (Bulgarian National Bank) (ECB/2020/30) (OJ L 224I, 13.7.2020, p. 1). 14 See paragraphs 2.3 to 2.5 of this opinion.

text: 1516 framework provided for in

text: Council Regulation (EU) No 1024/2013

text: . 2.3 The draft law extends the deadline for the supervisory approval of proposed amendments to the statute of a credit institution. The extension of the deadline – from ten calendar days to one month from the date of notification of the proposed changes – is welcomed by the ECB, as it provides the competent authority with more time to perform its assessment and carry out its decision-making processes. Under the draft law, the issuance of a supervisory decision is required in the case of both a positive and of a negative assessment of the proposed amendments. However, consideration could be given to whether that requirement for explicit approval (in the form of a supervisory decision) could instead be formulated as an ex-ante notification requirement with the possibility for the competent authority to object within a specified timeframe, so that if it does not do so (meaning that the assessment is positive), the proposed amendments are deemed to be approved. This would seem to be appropriate, as otherwise the requirement under national law to issue a specific supervisory decision in the case of a positive assessment could increase the time required for decision-making in the context of close cooperation. 2.4 Under Article 76(4) of the Law on Credit Institutions each bank shall coordinate its choice of auditors with BNB in advance of the auditors’ appointment. BNB may object to the choice of auditors within a specific deadline, and if it doesn’t object the proposal for the choice of auditors is deemed to have been agreed with BNB. The extension of the deadline for objection from 14 calendar days to one month from the date of notification of the request is welcomed, as it provides the competent authority with more time to perform its assessment and carry out its decision-making processes. 2.5 As regards the one month deadlines provided for in the draft law, the ECB notes that the Bulgarian authorities may consider exploring the possibility of whether the period of one month could either be stipulated as a minimum timeframe or be further extended – if and where deemed appropriate given the regulatory framework – to take into account the specificities of close cooperation in view of the time needed for collaboration between the ECB and BNB in the decision-making process.

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). 16 Paragraph 4.4 of Opinion

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

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 22 December 2020 on the interaction between the European Central Bank and the Bulgarian National Bank within the framework of close cooperation in the Single Supervisory Mechanism (CON/2020/36)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 22 December 2020 on the interaction between the European Central Bank and the Bulgarian National Bank within the framework of close cooperation in the Single Supervisory Mechanism (

text: ) Introduction and legal basis

type: rubrik

text: On 10 December 2020 the European Central Bank (ECB) received a request from the Bulgarian Minister of Finance for an opinion on a draft law amending the Law on credit institutions (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 sixth indent of

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

text: , as the draft law relates to 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.

type: stycke

text: 1. Purpose of the draft law

text: As explained in the consultation letter, the draft law aims to ensure the smooth interaction between the ECB and Българска народна банка (BNB, Bulgarian National Bank) within the framework of close cooperation in the Single Supervisory Mechanism (SSM). The draft law proposes to amend the Law on credit institutions in respect of, inter alia, the following matters. 1.1 Right to be heard in supervisory procedures and notification of BNB decisions The draft law proposes to explicitly provide that credit institutions will have the right to be heard on draft BNB decisions implementing ECB instructions in relation to significant institutions and on draft BNB decisions in relation to less significant credit institutions . The hearing period provided for is 14 days from the date of notification, except in cases of the issue or revocation of a credit institution’s licence, the acquisition of a qualifying holding, or in special circumstances, the period will be three working days. These deadlines can be disapplied in circumstances where an urgent decision appears necessary in order to prevent significant damage to the financial system . The

text: draft law provides further that a BNB decision may be notified to its addressees by email or by fax, if the addressees have provided these details to BNB . 1.2 Decisions with conditions and obligations The draft law provides that BNB decisions adopted to implement ECB instructions and which grant authorisations, approvals or rights, may define conditions, upon fulfilment of which the decision will come into effect, and may also impose additional obligations and make recommendations . 1.3 Duty to provide information The draft law provides that credit institutions and, where applicable, financial holding companies, mixed financial holding companies and their shareholders or partners, shall be under a duty to provide BNB with all necessary documents, information and assistance required for banking supervision purposes and refrain from any actions that could hinder banking supervision . 1.4 Deadlines for the exercise of specific supervisory powers The draft law provides that BNB shall perform its assessment and decide within one month of the receipt of notification from the credit institution (i) whether to approve or reject any proposed amendments to a credit institution’s statute and (ii) whether to object to the proposed appointment of an independent auditor . 1.5 Administrative penalties The draft law provides that persons who obstruct BNB, the Deputy Governor who heads the Banking Supervision Department or employees duly authorised by them from exercising their supervisory powers shall be subject to an administrative penalty .

text: 2. Observations

text: 2.1 Close cooperation between the ECB and BNB started on 1 October 2020 . The ECB welcomes the proposed amendments, which aim to align the national legal framework on the right to be heard with the legal framework of the SSM, as well as the clarification that BNB decisions implementing ECB instructions may be subject to conditions and obligations and may include recommendations. The ECB also welcomes the extension of certain deadlines, which would facilitate the cooperation between the ECB and BNB in the adoption of the respective decisions in relation to significant credit institutions . 2.2 As previously noted, the ECB understands that the provisions under the draft law will be read in accordance with the other provisions of the Law on credit institutions, so that the exercise of prudential supervision over credit institutions established in Bulgaria will take place under the

text: Done at Frankfurt am Main, 22 December 2020.

text: [signed]

text: The President of the ECB

text: Christine LAGARDE

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: See the IMF’s press release No 20/10, available on the IMF’s website at www.imf.org. 3 See the IMF’s press release No 20/123, available on the IMF’s website at www.imf.org. 4 Ibid.; as regards the PRGT, see the IMF’s Questions and Answers on its response to COVID-19, available on the IMF’s website at www.imf.org: ‘The IMF is currently seeking additional donor support to expand its PRGT concessional lending for low-income countries.’ 5 Currently, the NAB arrangements between Italy and the IMF are regulated by

text: Article 2(13)

text: and (15) of the Decree Law on the extension of deadlines and on urgent measures in the field of taxation, of 29 December 2010, No 225, converted by the Law of 26 February 2011, No 10, and by

text: Article 16

text: (6-bis) to (6-quinquies) 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. 6 The legal basis for the Banca d’Italia to negotiate a bilateral loan agreement with the IMF is found in Article 25(2) of the Decree Law of 29 December 2011, No 216, converted into the Law of 24 February 2012, No 14, subsequently modified by the Decree Law of 30 December 2016, No 244, converted into the Law of 27 February 2017, No 19. See Opinions

text: and

text: . All ECB opinions are available on EUR-Lex. 7 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. See Opinions

text: and

text: . 8 The draft legislative provisions identify the sources of financing to cover the State guarantee by confirming the allocation of previously approved sources of financing: resources are provided under

text: Article 13

text: (6-ter) 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 under Article 25(6) of the Decree Law of 29 December 2011, No 216, converted by the Law of 24 February 2012, No 14.

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). 10 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: . 11 See International Monetary Fund, Balance of Payments and International Investment Position Manual (sixth edn., 2009), Chapter 8, Section F, pp. 111-18. 12 See also Opinions

text: and

text: . 13 ECB Convergence Report 2020, para. 2.2.3.

title: Opinion of the European Central Bank of 28 December 2020 on NCB participation in International Monetary Fund borrowing arrangements (CON/2020/37)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 28 December 2020 on NCB participation in International Monetary Fund borrowing arrangements (

text: ) Introduction and legal basis

text: On 18 December 2020, the European Central Bank (ECB) received a request from the Italian Ministry of Economic Affairs 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 2021 and for the multi-year period 2021-23 (hereinafter the ‘2021 Law on the budget’). The 2021 Law on the budget must be approved by the end of December 2020. 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 aim at amending existing borrowing arrangements between Italy and the International Monetary Fund (IMF). In particular, the draft legislative provisions concern the New Arrangements to Borrow (NAB), the Bilateral Borrowing Agreement (BBA), and the contribution of Italy to the Poverty Reduction and Growth Trust (PRGT). In relation to the NAB and the BBA, the draft legislative provisions aim at aligning the Italian legal framework with the outcome of the negotiations between the IMF and its creditor member countries. In particular, following a negotiation of participating member countries under the IMF 15th General Review of Quotas – in an effort to review quotas and to increase the IMF’s capacity through this main source of financing – and the unsuccessful support for such quota increase, the IMF’s Executive Board approved, on 16 January 2020, a doubling of the NAB and, on 31 March 2020, a framework for a new round of BBAs . The provision of bilateral lending by IMF member countries through BBA schemes constitutes a third line of defence, after quotas and the NAB, to supplement IMF resources. The new arrangements under the NAB and BBAs are expected to take effect on 1 January 2021, subject to timely approvals by creditor member countries and their institutions. The renegotiation of

text: the NAB, BBA and PRGT borrowing arrangements are also considered to be critical steps in order

text: to ensure that the IMF can support its membership through the global pandemic .

text: 1.2 Extension of the Banca d’Italia’s participation in the New Arrangements to Borrow

text: The draft legislative provisions authorise the Banca d’Italia to extend the term of the NAB scheme,

text: due to expire on 16 November 2022, until 31 December 2025 and to increase the maximum

text: amount of the disbursable loan, from 6,898.52 million special drawing rights (SDR) to 13,797.04

text: million SDR .

text: 1.3 Authorisation for the Banca d’Italia to renew Italy’s BBA with the IMF

text: The draft legislative provisions authorise the Banca d’Italia to renew the BBA currently in place

text: between Italy and the IMF for the previously committed maximum amount of EUR 23,480 million.

text: The term of the BBA, initially due to expire on 31 December 2020, is to be extended to

text: 31 December 2023, further extendable to 31 December 2024. On entry into force of the renewed

text: NAB, the amount of the BBA will be automatically reduced to EUR 10,115 million. While the

text: maximum amount of the disbursable loan is expressed in EUR, the disbursements are

text: denominated in SDR .

text: 1.4 New contribution to the Poverty Reduction and Growth Trust

text: The draft legislative provisions authorise the Banca d’Italia to enter into a new loan agreement to

text: the IMF’s PRGT, for an amount of 1 billion SDR. The new loan agreement is in addition to the

text: existing PRGT loan of 400 million SDR .

text: 1.5 Provision of a State guarantee and identification of financial resources

text: The draft legislative provisions further provide for a State guarantee to the Banca d’Italia in respect

text: of the reimbursement of principal and interest due on the NAB, BBA and PRGT loans. The State

text: guarantee also covers any exchange risk related to the execution of the NAB and BBA loans .

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 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 . 2.3 The ECB considers that the Banca d’Italia’s transfer of Italy’s additional contribution to the IMF’s PRGT and renewal of loans under the NAB and BBA schemes with the IMF, as set out in the draft legislative provisions, falls within the exemption of

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

text: because this financing results in foreign currency (SDR)-denominated claims of the Banca d’Italia against non-resident persons (the IMF and an IMF-administered trust) that have all the characteristics of reserve assets .

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 (ESCB) under Article 130 of the Treaty, pursuant to which Member States may not put their NCBs in a position where they have insufficient financial resources to carry out their ESCB or Eurosystem-related tasks , the ECB welcomes the guarantee to be provided by the State under the draft legislative provisions with respect to the reimbursement of principal and interest on the Banca d’Italia’s loans which, in relation to the execution of the NAB and BBA schemes, will also cover any exchange rate risk on such loans provided by the Banca d’Italia.

text: This opinion will be published on EUR-Lex. Done at Frankfurt am Main, 28 December 2020. [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).

text: Directive

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

text: Directive

text: of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (OJ L 168, 27.6.2002, p. 43).

text: 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).

text: For this purpose qualified financial transactions are defined to include transactions in respect of financial instruments specified under Section 3, Paragraph two, Clauses 4, 5, 6, 7, 8, 9 and 10 of the Law on financial instruments markets: (1) Options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates or yields, emission allowances or other derivatives instruments, financial indices or financial measures which may be settled physically or in cash; (2) Options, futures, swaps, forwards and any other derivative contracts relating to commodities that must be settled in cash or may be settled in cash at the option of one of the parties other than by reason of default or other termination event; (3) Options, futures, swaps, and any other derivative contract in accordance with

text: Regulation (EU) 2017/565

text: relating to commodities that can be physically settled provided that they are traded on a regulated market, a multilateral trading facility (MTF), or an organised trading facility (OTF), except for wholesale energy products traded on an OTF that must be physically settled; (4) Options, futures, swaps, forwards and any other derivative contracts in accordance with

text: Regulation (EU) 2017/565

text: relating to commodities, that can be physically settled not otherwise mentioned in point 3 and not being for commercial purposes, which have the characteristics of other derivative financial instruments; (5) Derivative instruments for the transfer of credit risk; (6) Financial contracts for differences; (7) Options, futures, swaps, forward rate agreements and any other derivative contracts in accordance with

text: Regulation (EU) 2017/565

text: relating to climatic variables, freight rates or inflation rates or other official economic statistics that must be settled in cash or may be settled in cash at the option of one of the parties other than by reason of default or other termination event, as well as any other derivative contracts relating to assets, rights, obligations, indices and measures not otherwise mentioned in this Section, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are traded on a regulated market, OTF, or an MTF.

text: Within the meaning of the Latvian Law on the protection of consumer rights.

text: Directive (EU) 2019/1023

text: of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of restructuring, insolvency and discharge of debt, and amending

text: Directive (EU) 2017/1132

text: (Directive on restructuring and insolvency) (OJ L 172, 26.6.2019, p. 18).

text: See the 2010 FSB working group report ‘Implementing OTC Derivatives Market Reforms’, available on the FSB’s website at www.fsb.org.

text: Bank for International Settlements (2013), Supervisory guidance for managing risks associated with the settlement of foreign exchange transactions, available on the BIS’s website at www.bis.org.

text: Articles 295

text: to 298 of

text: Regulation (EU) No 575/2013

text: of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending

text: Regulation (EU) No 648/2012

text: (OJ L 176, 27.6.2013, p. 1). The ECB has clarified the process regarding recognition of contractual netting agreements as risk-reducing in its letter to significant credit institutions of 10 October 2019 and which is available on the banking supervision website at www.bankingsupervision.europa.eu.

title: Opinion of the European Central Bank of 7 January 2021 on the enforcement of close-out netting agreements (CON/2021/1)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 7 January 2021 on the enforcement of close-out netting agreements (

text: ) Introduction and legal basis

text: On 17 November 2020 the European Central Bank (ECB) received a request from the Ministry of Finance of the Republic of Latvia for an opinion on a draft law on the enforcement of close-out netting in qualified financial transactions and on draft laws containing related amendments to the Law on credit institutions and to the Law on insolvency (the ‘draft laws’). 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 laws concern Latvijas Banka, rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets and the specific tasks conferred on the ECB 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 laws

text: 1.1 The purpose of the draft laws is threefold: first, to ensure financial market stability by limiting systemic risk that might be caused by legal protection, insolvency or winding-up proceedings against a financial market participant; second, to protect the parties to a close-out netting agreement in the event that legal protection, insolvency or winding-up proceedings are carried out in relation to any of the parties; and third, to contribute to the development of the financial instruments market in Latvia, consolidating Latvia’s position as a regional hub for financial services. 1.2 As set out in the explanatory memorandum to the draft laws, at present close-out netting in Latvia is applicable only to transactions where both counterparties are regulated credit institutions or other financial market participants or public entities, pursuant to the transposition of the relevant provisions of Directive

text: of the European Parliament and of the Council , Directive

text: of the European Parliament and of the Council and of Directive

text: of the European Parliament

text: and of the Council . The draft laws establish a legal framework governing close-out netting applicable to derivative and spot transactions with regard to currency, securities and commodities where one of the contractual parties, although not a regulated financial market participant, falls within a list of eligible entities, as described in paragraph 1.4. Latvia is one of the last Union jurisdictions in which the enforcement of close-out netting transactions with unregulated entities has not yet been implemented. The lack of relevant legislation subjects the financial sector in Latvia to a greater domino effect when a financial crisis arises. This lack of legislation also hinders Latvian financial market participants and large enterprises in attracting cheaper financing in situations where the other counterparty is from a jurisdiction in which such legislation exists, because the lack of close-out netting is a risk that is included in the price of any financial instrument. Introducing such legislation will reduce the costs of complying with capital adequacy requirements for Latvian credit institutions and financial market participants, as it will allow them to hold less capital relative to their risk-weighted assets. 1.3 The draft laws aim to ensure the enforceability of close-out netting in qualified financial transactions . Finanšu un kapitāla tirgus komisija (FKTK, the Latvian Financial and Capital Market Commission) may issue regulations to designate any other type of transaction, in addition to those specified by the draft laws, as qualified financial transactions. For the purpose of the draft laws, an agreement is deemed to be a close-out netting agreement notwithstanding the fact that such agreement may contain provisions relating to transactions that are not qualified financial transactions, provided, however, that such agreement is deemed to be a close-out netting agreement only with respect to the qualified financial transactions. 1.4 The draft laws regulate the enforcement of close-out netting where the parties to the close-out netting agreement fall into one of the following three categories: first, where both parties to the close-out netting agreement are Latvian or foreign State authorities, Latvijas Banka, the ECB, central banks of other States, the Bank for International Settlements (BIS), the International Monetary Fund (IMF), specified multilateral development banks, or credit institutions, a wide range of financial market

text: participants and central counterparties regulated by Latvia or other Union, European Economic Area (EEA) or Organisation for Economic Co-operation and Development (OECD) member states; second, where one of the parties is one of the aforementioned entities and the other party is a legal entity or private individual who is not a consumer ; and third, where both parties are legal entities which, at the moment of entering into the close-out netting agreement, meet two of the following size requirements: (1) a total balance sheet of EUR 40 million, (2) a net turnover of EUR 50 million and (3) 250 employees. 1.5 The scope of the draft laws is limited in a number of respects. First, the draft laws clarify that legal relationships concerning financial collateral are regulated by the Law on financial collateral. Second, the draft laws do not apply to systems operated by Latvijas Banka or which the FKTK has notified to the European Securities and Markets Authority (ESMA) under the Law on settlement finality in payment and financial instruments settlement systems, or to participants in such systems, or to collateral provided to participate in such systems. Third, the draft laws do not apply to collateral used by central banks in transactions related to the performance of their central bank functions. 1.6 The draft laws clarify that close-out netting can be enforced and is not affected by legal protection, insolvency or the winding-up of any of the parties, which includes any related statutory provisions, such as those on relationships with creditors, the management or retention of funds or any other steps taken in insolvency. After enforcement of close-out netting, the only obligation or claim of either party will be equal to its net obligation to or claim on the other party as determined in accordance with the terms of the close-out netting agreement. To ensure the enforceability of close-out netting, the draft laws eliminate the powers of the administrator in insolvency proceedings to unilaterally terminate a close-out netting contract concluded in the six months prior to the opening of proceedings under the Law on insolvency with regard to a company insolvency and under the Law on credit institutions with regard to the insolvency of a credit institution. The legal effect of the provisions of a close-out netting agreement are not affected by the limitations of set-off, discharge of claims and liabilities or equivalent limitations provided under the Law on insolvency or the Law on credit institutions. Close-out netting may not be declared invalid or cancelled merely because it has taken place before the commencement of the relevant winding-up or insolvency proceedings. Close-out netting is valid and binding vis-à-vis third parties. 1.7 According to the explanatory memorandum, the issue of potentially fraudulent transactions prior to an insolvency has been carefully analysed and the outcome is to presume that certain specified eligible entities, such as Latvian or foreign State authorities, Latvijas Banka, the ECB, central banks of other States, the BIS, the IMF, specified multilateral development banks, or credit institutions, a wide range of financial market participants and central counterparties regulated by Latvia or other Union, EEA or OECD member states, are reasonably reliable counterparties which are highly unlikely to enter into fraudulent transactions.

text: 1.8 Finally, the draft laws implement

text: Article 7(6) of Directive (EU) 2019/1023

text: of the European Parliament and of the Council , which states that Member States may provide that a suspension of individual enforcement measures in preventive restructuring does not apply to netting mechanisms, including close-out netting mechanisms, in financial markets, energy markets and commodity markets.

text: 2. Observations

text: 2.1 The ECB notes that the purpose of the draft laws is to provide a legal framework governing closeout netting applicable to derivative and spot transactions with regard to currency, securities and commodities where one of the contractual parties is not a regulated financial market participant. Such legal standardisation is an important element of facilitating organised platform trading and central clearing in line with the 2009 Pittsburgh G20 commitments to reform over-the-counter (OTC) derivatives markets . Further, legal certainty regarding close-out netting is an important element for reducing counterparty credit risk and to ensure the adequacy of the amount of any collateral exchanged . As such, the enforceability of close-out netting is an important element for the risk management of firms and a prerequisite for the development of safe and sound OTC derivatives markets as well as covered spot transaction markets. 2.2 The adoption of the draft laws could have practical implications for Latvian credit institutions as well as for other credit institutions dealing with Latvian counterparties. In particular, close-out netting is an important risk mitigation tool for credit institutions which allows for effective reduction of counterparty credit risk, and thus contributes to sound risk management practices of credit institutions. Due to the broader application of close-out netting provided for in the draft laws, meaning that it will also apply to transactions where one of the contractual parties is not a regulated financial market participant, provided that the party falls within the list of eligible entities, the draft laws may contribute to credit institutions dealing with Latvian counterparties meeting the conditions for contractual netting arrangements to be recognised as an eligible form of credit risk mitigation and risk reduction under

text: Regulation (EU) No 575/2013

text: of the European Parliament and the Council . 2.3 With regard to operations conducted by Latvijas Banka or the ECB with Latvian credit institutions, the draft laws should enhance the enforcement of close-out netting arrangements that central banks have with such counterparties arising out of financial transactions that are not based on collateral arrangements, e.g. foreign exchange swap transactions. In this respect, the precise interaction between the enforcement of close-out netting provisions contained in financial collateral arrangements under the Law on financial collateral, the enforcement of collateral used by central

text: banks in transactions related to the performance of their central bank functions under the Law on settlement finality in payment and financial instruments settlement systems, and the enforcement of close-out netting provisions contained in qualified financial transactions subject to the draft laws could be more clearly articulated. The draft laws provide that legal relationships related to financial collateral are regulated by the Law on financial collateral, that the draft laws do not apply to collateral used by central banks in transactions related to the performance of their central bank functions, and that an agreement is deemed to be a close-out netting agreement notwithstanding the fact that such agreement may contain provisions relating to transactions that are not qualified financial transactions, provided, however, that such agreement is deemed a close-out netting agreement only with respect to qualified financial transactions. The ECB understands that it is intended that closeout netting provisions contained in a single agreement covering both collateral arrangements and qualified financial transactions not having a collateral element are intended to be enforceable. An explicit clarification of this understanding would be welcomed, for the sake of legal certainty. 2.4 Finally, as regards the clarification that the draft laws do not apply to participants in systems operated by Latvijas Banka or which the FKTK has notified to ESMA under the Law on settlement finality in payment and financial instruments settlement systems, legal certainty could be further enhanced by explicitly clarifying, for the avoidance of doubt, that participants in such systems are exempt from the draft laws only regarding their actions, rights and obligations arising in connection with such systems.

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

text: Done at Frankfurt am Main, 7 January 2021.

text: [signed]

text: The President of the ECB

text: Christine LAGARDE


text: Закон за изменение и допълнение на Закона за кредитните институции.

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: Law on credit institutions (Закон за кредитните институции, обн. ДВ, бр. 59 от 21.07.2006 г.).

text: Law on BNB (Закон Българската народна банка, обн. ДВ, 46 от 10.06.1997 г.).

text: Law on counter-corruption and unlawfully acquired assets forfeiture (Закон за противодействие на корупцията и за отнемане на незаконно придобитото имущество, обн. ДВ, бр. 7 от 19.01.2018 г.).

text: Article 56 of the Law on credit institutions.

text: Article 56

text: a of the Law on credit institutions.

text: Article 74 of the Law on counter-corruption.

text: See Chapter 8, Section VI of Law on counter-corruption, titled ‘Consequences upon Conflict of Interest Ascertainment’. 12 This was confirmed by the Court of Justice in its judgment of 26 February 2019, Rimšēvičs v Latvia, joined cases

text: and

text: , ECLI:EU:C:2019:139, paragraphs 88 and 89. 13 ECB’s Convergence Report 2020, paragraph 2.2.

text: Commission’s Convergence Report 2020, paragraph 2.1.2. 16 Commission’s Convergence Report 2020, paragraph 2.1.2.

title: Opinion of the European Central Bank of 11 January 2021 on the implementation of the recommendations of the convergence reports into the Law on Българска народна банка (Bulgarian National Bank) (CON/2021/2)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 11 January 2021 on the implementation of the recommendations of the convergence reports into the Law on Българска народна банка (Bulgarian National Bank) (

text: ) Introduction and legal basis

text: On 10 December 2020 the European Central Bank (ECB) received a request from the Bulgarian Minister for Finance for an opinion on a draft law amending the Law on credit institutions and other laws (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 indent of

text: , as the draft law relates to Българска народна банка (BNB, Bulgarian National Bank). 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: As explained in the consultation letter, the draft law aims to address certain issues identified in the 2020 Convergence Reports of the ECB and the European Commission with regard to the independence of BNB and the prohibition of monetary financing under Article 123 of the Treaty. In 3 4 this respect, the draft law proposes to amend the Law on credit institutions , the Law on BNB and the Law on counter-corruption and unlawfully acquired assets forfeiture (hereinafter the ‘Law on counter-corruption’) in respect of, inter alia, the matters set out below. 1.1 Grounds for removal from office in case of a conflict of interest The draft law proposes to amend Article 80(1) of the Law on counter-corruption in order to provide that the ascertainment of a conflict of interest in accordance with that Law will be a ground for removal from office, unless otherwise provided for in the Constitution or the Treaties of the European Union and their protocols.

text: The draft law proposes to specify in the Law on credit institutions that BNB will not be liable for damages relating to the information stored in the central credit register and the bank account register . 1.3 Cooperation between BNB and the Council of Ministers The draft law proposes to repeal the provision of Article 3 of the Law on BNB which currently provides that in the formulation of the general outlines of the monetary policy, BNB and the Council of Ministers shall inform each other. 1.4 Independence of the members of the BNB Governing Council The draft law proposes that Article 13(1) of the Law on BNB be amended to provide that the oath to be taken by the Governor, the Deputy Governors and the other three members of the Governing Council when entering into office should refer to their contribution to the ‘independent’ performance of the BNB functions.

text: 2. General observations

text: 2.1 The ECB welcomes the draft law’s efforts to achieve the required level of legal convergence by reference to the recommendations for Bulgaria contained in the 2020 Convergence Reports of the ECB and the Commission. 2.2 The ECB notes that the compatibility of Bulgarian legislation – including the Law on BNB and the Law on counter-corruption – with the Treaties and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) will be assessed in the ECB’s next convergence report, as required by Article 131 of the Treaty.

text: 3. Specific observations

text: 3.1 Grounds for removal from office in case of a conflict of interest In accordance with Article 12 of the Law on BNB, the Governor and the three Deputy Governors are appointed by the National Assembly, while the other three members of BNB’s Governing Council are appointed by the President of the Republic. Article 14(1) of the Law on BNB provides that the appointing authority may remove a member of the Governing Council from office if one of the grounds it lists for removal from office is established. The ECB therefore understands that the competence to take a decision to remove a member of BNB’s Governing Council from office is vested solely in the appointing authority: either the National Assembly or the President of the Republic. In accordance with Article 14(1) of the Law on BNB the grounds for removal are met where: (i) the member no longer fulfils the conditions required for the performance of his duties or (ii) he has been found guilty of serious misconduct.

text: However, the Law on counter-corruption also applies to the Governor, the Deputy Governors and the other members of the Governing Council of BNB as senior public office holders . This Law on counter-corruption provides that the Counter-Corruption and Unlawfully Acquired Assets Forfeiture Commission may establish by means of a decision the existence of a conflict of interest with regard 9 10 to senior public office holders . As a consequence of such a decision , the respective senior public office holder may be removed from office in accordance with Article 80(1) of the Law on countercorruption. Against this background, the Law on counter-corruption establishes a ground for relieving from office that is in addition to the two grounds contained in Article 14.2 of the Statute of the ESCB. Therefore, the ECB has noted in its Convergence Report that the Law on counter-corruption is incompatible with the Treaty and the Statute of the ESCB and needs to be brought into line with them . According to Article 14.2 of the Statute of the ESCB, a Governor may only be relieved from office on either of the two grounds contained in that Article . As regards the other members of the decision-making bodies of national central banks (NCBs), the same rules for the security of tenure and grounds for relieving Governors from office also apply, safeguarding the personal independence of those persons. The provisions of Article 14.2 of the Statute of the ESCB are not restricted to the security of tenure of Governors, and Article 130 of the Treaty and Article 7 of the Statute of the ESCB refer to ‘members of the decision-making bodies’ of NCBs rather than to Governors specifically. This is legally required, in particular, when a Governor is a ‘first among equals’ with colleagues with equivalent voting rights or where such other members are involved in the performance of ESCBrelated tasks . Against this backdrop, the ECB understands that the intention of the proposed amendment to Article 80(1) of the Law on counter-corruption is to ensure that the ascertainment of a conflict of interest in accordance with that Law would not be a ground for removal from office of the Governor and the other members of the Governing Council of BNB, because this would be contrary to the Treaty and the Statute of the ESCB. However, for the sake of ensuring legal certainty and transparency, it is suggested to explicitly clarify that the provision of Article 80(1) of the Law on counter-corruption shall not apply to the Governor, the Deputy Governors and the other members of the Governing Council of BNB, instead of implicitly reaching this result by means of a general cross-reference to the EU Treaties and their protocols. 3.2 BNB liability in relation to the central credit register and the bank account register The ECB welcomes the waiver of liability for BNB in relation to the operation of the central credit register and the bank account register. The ECB understands that, instead of BNB, the State would be liable for damages resulting from the operation of the two registers in accordance with the general regime for State liability. 3.3 Cooperation between BNB and the Council of Ministers

text: The ECB notes that the consulting authority proposes to repeal the provision of Article 3 of the Law on BNB, which currently provides that in the formulation of the general outlines of the monetary policy, BNB and the Council of Ministers shall inform each other. The ECB understands that this proposal aims to implement the recommendations of the Commission’s Convergence Report with regard to central bank independence . For its part, however, the ECB would not object to maintaining Article 3 of the Law on BNB even if in a revised form, in order to implement the necessary safeguards for central bank independence. Dialogue between an NCB and third parties including the Government, even when based on statutory obligations to provide information and exchange views, is indeed compatible with central bank independence, provided that (i) this does not result in interference with the independence of the members of the NCB’s decision-making bodies; (ii) the special status of Governors in their capacity as members of the ECB’s decision-making bodies is fully respected; and (iii) confidentiality requirements resulting from the Statute of the ESCB are respected . 3.4 Independence of the members of the BNB Governing Council The ECB understands that the proposed amendment to Article 13(1) of the Law on BNB aims to implement the recommendations of the Commission’s Convergence Report with regard to central bank independence, henceforth requiring that the oath to be sworn by the Governor, Deputy Governors and other members of the Governing Council of BNB before the National Assembly and the President would make reference to their contribution to the independent performance of BNB’s functions . The ECB welcomes this clarification.

text: Done at Frankfurt am Main, 11 January 2021.

text: [signed]

text: The President of the ECB

text: Christine LAGARDE


text: COM(2020) 323 final.

text: Europaparlamentets och rådets förordning (EG) nr 924/2009 av den 16 september 2009

text: om gränsöverskridande betalningar i gemenskapen och om upphävande av förordning

text: (EG) nr 2560/2001

text: (EUT L 266, 9.10.2009, s. 11).

text: Europaparlamentets och rådets förordning (EU) 2019/518 av den 19 mars 2019

text: om ändring av förordning

text: (EG) nr 924/2009

text: vad gäller vissa avgifter för gränsöverskridande betalningar i unionen och valutaväxlingsavgifter (EUT L 91, 29.3.2019, s. 36).

text: Se Europeiska centralbankens yttrande

text: av den 31 augusti 2018 om ett förslag till förordning om vissa avgifter på gränsöverskridande betalningar i unionen och valutaväxlingsavgifter (EUT C 382, 23.10.2018, s. 7). Alla ECB:s yttranden finns på ECB:s webbplats www.ecb.europa.eu.

text: Förslag till Europaparlamentets och rådets förordning om ändring av förordning

text: (EG) nr 924/2009

text: vad gäller vissa avgifter på gränsöverskridande betalningar i unionen och valutaväxlingsavgifter, COM(2018) 163 final.

text: Europaparlamentets och rådets direktiv (EU) 2015/2366 av den 25 november 2015

text: om betaltjänster på den inre marknaden, om ändring av direktiven

text: och

text: samt förordning

text: (EU) nr 1093/2010

text: och om upphävande av direktiv

text: (EUT L 337, 23.12.2015, s. 35).

text: Se skäl 8 i förslaget till förordning.

text: Se ECB:s Framework for the euro foreign exchange reference rates, finns på ECB:s webbplats www.ecb.europa.eu.

text: Se ECB:s pressmeddelande av den 7 december 2015 om ändringar i proceduren för eurons referenskurser.

text: Av ECBRR-ramverket framgår tydligt att termen referensränta ska uppfattas som en växelkurs som inte är avsedd att användas i marknadstransaktioner, varken direkt eller indirekt (som ett underliggande referensvärde). Räntorna publiceras uteslutande i informationssyfte.

text: Europaparlamentets och rådets förordning (EU) 2016/1011 av den 8 juni 2016

text: om index som används som referensvärden för finansiella instrument och finansiella avtal eller för att mäta investeringsfonders resultat, och om ändring av direktiven

text: och

text: och förordning

text: (EU) nr 596/2014

text: (EUT L 171, 29.6.2016, s. 1).

sprak: sv

title: Europeiska centralbankens yttrande av den 25 januari 2021 om ett förslag till förordning om gränsöverskridande betalningar i unionen (CON/2021/3) 2021/C 65/04

text: Inledning och rättslig grund

text: Den 15 oktober 2020 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande över ett förslag till Europaparlamentets och rådets förordning om gränsöverskridande betalningar i unionen (nedan kallat förslaget till förordning).

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

text: och

text: i fördraget om Europeiska unionens funktionssätt jämförd med artikel 127.2 fjärde strecksatsen i fördraget och artikel 3.1 fjärde strecksatsen i stadgan för Europeiska centralbankssystemet och Europeiska centralbanken, eftersom förslaget till förordning innehåller bestämmelser som berör väl fungerande betalningssystem. I enlighet med artikel 17.5 första meningen i arbetsordningen för Europeiska centralbanken har detta yttrande antagits av ECB-rådet.

text: Allmänna kommentarer

text: Syftet med förslaget till förordning är en kodifiering av

text: , senast ändrad genom Europaparlamentets och rådets förordning (EU)

text: (EU) 2019/518

text: . ECB välkomnar i princip en kodifiering men noterar, enligt vad som framgår av motiveringen till förslaget till förordning, att instrument som berörs av kodifieringen inte innehåller några ändringar i sak utan endast ändringar av formell karaktär som krävs till följd av själva kodifieringen. ECB har också antagit ett yttrande om förslaget till förordning

text: (EU) 2019/518

text: . Vissa av bestämmelserna i förordning

text: (EU) 2019/518

text: introducerades dock under unionens lagstiftningsprocess efter det att kommissionens förslag sänts över till ECB, och omfattades därför inte av ECB:s yttrande. Mot bakgrund av att ECB inte haft möjlighet att yttra sig tidigare, och att förslaget till förordning kommer att antas i enlighet med det ordinarie lagstiftningsförfarande, tar ECB tillfället i akt att yttra sig om en bestämmelse i förslaget till förordning som införts genom förordning

text: (EU) 2019/518

text: 1. Specifika kommentarer

text: 1.1 Hänvisningar till referensväxelkurser för euron som ECB publicerar

text: Enligt artikel 4.1 i förslaget till förordning, vars syfte är att komplettera bestämmelserna om klara villkor och information i

text: (nedan kallat betaltjänstdirektivet) vad gäller valutaväxlingstjänster, ska betaltjänstleverantörer och parter som tillhandahåller valutaväxlingstjänster i en uttagsautomat eller på försäljningsstället uttrycka de totala valutaväxlingsavgifterna som ett procentuellt påslag i förhållande till den senast tillgängliga referensväxelkursen för euro från ECB.

text: Sedan 1998 har ECB publicerat referensväxelkurser för euro (ECBRR) utifrån det ramverk som ECB-rådet antog 1998 och sedan ändrade 2015 (nedan kallat ECBRR-ramverket). ECBRR tillhandahålls fritt för både privatpersoner och institut och används av många olika institut. Syftet med ECBRR-ramverket är att säkra integriteten på ECBRR genom att i) undvika att ECBRR blir föremål för handel, och ii) begränsa deras användning till att fungera som referensvärden. Man avråder uttryckligen från att använda ECBRR för transaktioner och ECBRR publiceras uteslutande i informationssyfte. I detta hänseende försöker ECBRR-ramverket att dra en tydlig linje mellan ECBRR och valutakurser som är avsedda att användas för transaktioner.

text: I strid med syftet bakom ECBRR, kan en hänvisning till ECBRR i förslaget till förordning skapa incitament för vissa marknadsaktörer att börja handla ECBRR. Därför rekommenderar ECB att hänvisningen till ECBRR i artikel 4 i förslaget till förordning tas bort och ersätts med en lämplig hänvisning till ett referensvärde för valutakurser som omfattas av unionens förordning om index som används som referensvärden, som kan användas vid i samband med valutaväxlingsavgifter. Ett index exakthet och integritet, som säkerställs genom de regler för administratörer av index som införs genom den förordningen, skyddar de intressen som betaltjänstleverantörernas kunder och parter som tillhandahåller valutaväxlingstjänster har.

text: I de fall där ECB rekommenderar att förslaget till förordning ska ändras anges ett specifikt förslag 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 25 januari 2021.

text: Christine Lagarde

text: ECB:s ordförande