text: COM/2016/0450 final - 2016/0208 (COD).

text: « Loi du 22 février 1998 fixant le statut organique de la Banque Nationale de Belgique ». 4 See ECB Opinions

text: and

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 5 See paragraphs 3.2 and 3.8 of ECB Opinion

title: Opinion of the European Central Bank of 26 January 2018 on organising the central register of bank accounts and financial transactions (CON/2018/4)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 26 January 2018 on organising the central register of bank accounts and financial transactions (

text: ) Introduction and legal basis

text: On 22 December 2017 the European Central Bank (ECB) received a request from the Belgian Ministry of Finance for an opinion on a draft law organising the central register of bank accounts and financial transactions (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

text: , as the draft law contains provisions concerning the Nationale Bank van België/Banque Nationale de Belgique (NBB). 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 is to serve as the stand-alone legal framework for the operation and maintenance by the NBB of the central register of bank accounts and financial transactions. 1.2 The register was initially established and operated by the NBB in accordance with the Law of 14 April 2011 which was implemented by Royal Decree on 17 July 2013. It was then designed as a component part of the Income Tax Code and served as a database available exclusively to the tax authorities for controlling and recovery purposes. Access to the database was subsequently expanded in 2016, in particular, to support efforts to combat money laundering, the financing of terrorism and financial crime in general. 1.3 Under the draft law, the existing central register of bank accounts and financial transactions will become a multi-purpose database that will, in particular, serve as the centralised automated mechanism, contemplated for all Member States under the Proposal for a Directive of the European Parliament and of the Council and amending

text: Directive (EU) 2015/849 of 20 May 2015

text: on the prevention of the use of the financial system for the purpose of money laundering or terrorist

text: financing , as a means of facilitating the timely identification of any natural or legal person holding or controlling payment or bank accounts held in Belgium. To this end, the provisions on the operation and maintenance of the central register of bank accounts and financial transactions have been extracted from the Income Tax Code and placed in a stand-alone piece of legislation. 1.4 The list of reporting agents under the draft law will include stock exchange brokers, payment and electronic payment institutions, foreign exchange agents, lenders, leasing companies and insurance undertakings, as well as credit institutions. These entities will be required to provide additional information relating to the designation of proxyholders, the renting of safes by credit institutions, the execution of certain types of insurance contracts, foreign money transfers in exchange for a withdrawal or remittance of cash and exchange transactions involving cash or precious metals in exchange for a withdrawal or remittance of cash. The Administration of the Treasury for Belgium will be tasked with monitoring the compliance of the reporting entities with the new obligations under the draft law and imposing fines. Communication between the central register, the reporting entities and the persons requesting information will exclusively take place electronically. 1.5 The draft law provides that legal or private persons may be either directly authorised to access the register or, where necessary, by way of a centralising institution tasked with managing the information requests, designated by the King. The persons authorised to access the register and the centralising institutions should establish and implement policies and procedures to ensure compliance with the relevant requirements by those requesting and receiving information from the central register, in particular, with respect to ensuring that the request is in line with the purpose for which access was granted and maintaining data confidentiality. Persons authorised to receive information from the register and all centralising institutions must also enter into a framework agreement with the NBB with respect to the technical conditions and practical arrangements governing access to the register. 1.6 Under the draft law, the persons authorised to receive information or the centralising institution will reimburse the NBB for all the costs incurred as a result of the establishment, functioning and maintenance of the register. The costs incurred by the NBB will be shared between the persons authorised to receive information in proportion to the number of their respective requests for information from the register and, where appropriate, to any other relevant factor determined by the King. The King will determine the arrangements for implementing these provisions, including (1) the method for calculating the interim payment to be paid by the persons authorised to receive information or, where appropriate, by the centralising institution in order to cover the NBB’s costs in advance, and the method for calculating the definitive amount of the share of the NBB’s costs for each person authorised to receive information or the centralising institution and; (2) the frequency of the invoices sent by the NBB as well as the payment period, which may not exceed ninety calendar days.

text: 1.7 The draft law excludes any civil liability of the NBB and the members of its decision-making bodies or staff as a result of any mistake or negligence arising in the performance of its tasks under the draft law, except in cases of fraud, willful misconduct or gross negligence. The NBB is also authorised to use the information in the register for scientific or statistical purposes, or in the context of performing its public interest missions and tasks in accordance with the Act of 22 February 1998 on the Organic Status of the National Bank of Belgium .

text: 2. General observations

text: 2.1 The ECB has issued a number of opinions on the Law of 14 April 2011 on the central register of bank accounts and the Royal Decree of 17 July 2013 on the functioning of the central point of contact establishing and expanding access to the central register for banks accounts and financial transactions . 2.2 The ECB welcomes the enactment of a stand-alone piece of legislation specifically dedicated to the central register for bank accounts and financial accounts with comprehensive and detailed rules on its establishment, functioning and financing. 2.3 The ECB particularly welcomes the introduction of a cost recovery mechanism designed to ensure the full recovery of the costs incurred by the NBB in the establishment, maintenance and operation of the register, through the combination of an ex ante interim payment made by the persons authorised to receive information from the register and the centralising institution to the NBB to cover the expected costs of the register for a period of one year and the ex post quarterly invoicing by the NBB of the actual costs incurred by the NBB in respect of these persons. This cost recovery mechanism safeguards the financial independence of the NBB under the Treaty and dispels concerns relating to the prohibition of monetary financing under the Treaty that are associated with the NBB carrying out government tasks . The ECB requests to be consulted under Article 127(4) of the Treaty on the implementing regulation relating to this cost recovery mechanism as it is an important element for assessing that the prohibition of monetary financing is properly addressed. 2.4 The various mechanisms aimed at alleviating the operational burden of the NBB – including the access to the register that exclusively takes place in electronic form; the monitoring by the Administration of the Treasury of the compliance by reporting entities with their obligations; the involvement of the centralising institutions and the limited liability of the NBB and its decisionmaking bodies and staff in the establishment and operation of the central register – are also a welcome development. These mechanisms reduce the scope for operational and political risks,

text: thereby enhancing the independence of the NBB. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 26 January 2018. [signed]

text: The President of the ECB

text: Mario DRAGHI


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: Regulation (EU) No 1286/2014

text: of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (OJ L 352, 9.12.2014, p. 1).

text: The Law on Financial Instruments Market (2007).

text: Directive

text: of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive

text: and Directive

text: (OJ L 173, 12.6.2014, p. 349).

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: Article 123 of the Treaty also serves the objective of maintaining price stability and reinforces central bank independence.

text: See, for example, paragraph 3.4.1 of Opinion

text: , paragraph 2.2.1 of Opinion

text: , paragraph 3.1 of Opinion

text: and paragraph 3.1 of Opinion

text: The following Member States have designated their national capital markets supervisors as either their sole or one of their competent authorities under

text: Regulation (EU) No 1286/2014

text: : Austria (Finanzmarktaufsicht – the Austrian Financial Market Authority), Belgium (Autorité des Services et Marches Financiers – Belgian Financial Services and Markets Authority), Bulgaria (Financial Supervision Commission), Cyprus (Securities and Exchange Commission – one of the competent authorities), Denmark (Finanstilsynet – Danish Financial Supervisory Authority), Estonia (Finantsinspektsioon – the Estonian Financial Supervisory Authority), France (l'Authorité des marchés financiers – the French Financial Markets Regulator; one of the competent authorities), Germany (Bundesanstalt für Finanzdienstleistungsaufsicht – the German Federal Financial Supervisory Authority), Finland (Finanssivalvonta - the Finnish Financial Supervisory Authority), Italy (Commissione Nazionale per le Società et la Borsa – Italian Companies and Exchange Commission – one of the competent authorities), Latvia (Finanšu un kapitãla tirgus komisijas – the Latvian Financial and Capital Market Commission), Malta (Malta Financial Services Authority), Netherlands (Autoriteit Financiële Markten – Dutch Authority for the Financial Markets), Poland

text: (Komisja Nadzoru Finansowego – Polish Financial Supervision Authority) and Sweden (Finansinspektionen – Swedish Financial Supervisory Authority). In addition, the following Member States are in the process of designating their national capital markets supervisors as either their sole or one of their competent authorities: Croatia (Hrvatska Agencija za Nador Financijskih Usluga – Croatian Financial Services Supervisory Agency), Greece (Hellenic Capital Market Commission – one of the competent authorities), Luxembourg (Commission de surveillance du secteur financier – Luxembourg Commission for Supervision of the Financial Sector; one of the competent authorities), Portugal (Commisao do Mercato de Valores Mobiliaros – Portuguese Securities Market Commission; one of the competent authorities), Romania (Financial Supervisory Authority) and Spain (Comisión Nacional del Mercado de Valores – Spanish National Securities Market Commission one of the competent authorities).

text: The following Member states have designated their national insurance supervisors as either their sole or one of their competent authorities under

text: Regulation (EU) 1286/2014

text: : Cyprus (Superintendent of Insurance – one of the competent authorities), France (l'Authorité de contrôle prudential et de résolution – the French Prudential Supervision and Resolution Authority; one of the competent authorities) and Italy (Istituto per la Vigilanza sulle Assicurazioni – Italian Institute for Insurance Supervision; one of the competent authorities). In addition, the following Member States are in the process of designating their national insurance supervisors as their sole or one of their competent authorities: Luxembourg (Commissariat aux assurances – Luxembourg Insurance Commission; one of the competent authorities), Portugal (Autoridade de Supervisão de Seguros e Fundos de Pensões – Portuguese Insurance and Pension Funds Supervisory Authority; one of the competent authorities) and Spain (Spanish sectorial competent authorities on insurance matters - one of the competent authorities).

text: The Central Bank of Cyprus is one of the designated competent authorities pursuant to Regulatory Act Number 283/2015, of 4 September 2015.

text: Česka národní banka is the sole designated competent authority pursuant to Articles 136, 137 and 179 of Law No. 256/2004 Coll. on Capital Markets Undertakings.

text: The Magyar Nemzeti Bank is the sole designated competent authority pursuant to

text: Article 186(5)

text: m) of Law CXXXIX of 2013 on the Hungarian National Bank.

text: The Central Bank of Ireland is the sole designated competent authority pursuant to Regulation 3 of the European Union (Key Information Documents for Packaged Retail and Insurance-based Investment Products (PRIIPS)) Regulations 2017 (S.I. 629/2017). 15 Národná Banka Slovenska is the sole designated competent authority pursuant to

text: Articles 38

text: g and 38h of Law no 747/2004 Coll. on Supervision of the Financial Market as amended. 16 In addition, the following Member States are in the process of designating their NCBs as either their sole or one of their competent authorities: Greece (one of the competent authorities), Lithuania (sole competent authority) and Portugal (one of the competent authorities).

text: See paragraph 3.1 of Opinion

text: and paragraph 2.2.2 of Opinion

text: . 18 See, for example, paragraph 2.2.5. of Opinion

text: , paragraph 3.3.2. of Opinion

text: and paragraph 3.3.2 of Opinion

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 31 January 2018 on key information documents for packaged retail and insurance-based investment products (CON/2018/5)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 31 January 2018 on key information documents for packaged retail and insurance-based investment products (

text: ) Introduction and legal basis

type: rubrik

text: On 27 December 2017 the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance for an ECB opinion on a draft law implementing

text: Regulation (EU) No 1286/2014

text: on key information documents for packaged retail and insurance-based investment products (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 Banka Slovenije. 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: 1.1 The main purpose of the draft law is the implementation and application of

text: Regulation (EU) No 1286/2014

text: of the European Parliament and of the Council into Slovenian legislation. 1.2 The draft law designates the competent authorities in Slovenia for supervising the key documents for PRIIPs pursuant to

text: Regulation (EU) No 1286/2014

text: . In this respect, the draft law designates the following three competent authorities: Banka Slovenije, the Insurance Supervision Agency (Agencija za zavarovalni nadzor) and the Securities Market Agency (Agencija za trg vrednostnih papirjev). Banka Slovenije is designated as the competent authority for credit institutions, which are to be regarded as manufacturers of or persons selling PRIIPs pursuant to

text: Regulation (EU) No 1286/2014

text: . 1.3 Pursuant to the draft law Banka Slovenije is granted, in the context of its supervisory role, the power to impose administrative sanctions and measures listed in points (a) to (d) of

text: Article 24(2) of Regulation (EU) No 1286/2014

text: and to impose administrative fines in misdemeanour proceedings in accordance with point (e) of the same Article..

text: 1.4 The draft law provides that each competent authority may introduce, as a part of its applicable tariffs, a new fee to be paid by supervised entities for performing supervisory duties pursuant to the draft law and

text: Regulation (EU) No 1286/2014

text: 2. Observations

text: 2.1 This opinion does not address the issue of whether the draft law effectively implements and applies

text: Regulation (EU) No 1286/2014

text: . The ECB only assesses those provisions of the draft law that may impact on the role and tasks of Banka Slovenije as an NCB and as a member of the Eurosystem and of the European System of Central Banks (ESCB). 2.2 The supervision of financial markets is shared in Slovenia between three institutions: Banka Slovenije, the Insurance Supervision Agency and the Securities Market Agency. Currently Banka Slovenije has a limited role in relation to the supervision of PRIIPs. The Securities Market Agency is primarily responsible for supervising financial instruments markets, and therefore also for supervising investment products . In performing its prudential supervisory tasks Banka Slovenije also takes into account the risks that arise for credit institutions active in the investment products market, however it does not supervise the market conduct of credit institutions in relation to investment products, with the exception of structured deposits as defined in point 43 of

text: Article 4(1) of Directive 2014/65/EU

text: of the European Parliament and of the Council , for which Banka Slovenije is responsible for supervising the market conduct of credit institutions active on that market. As regards the insurance sector, Banka Slovenije’s role is limited to issuing licences to banks for insurance brokerage services . The draft law therefore confers a new task upon Banka Slovenije namely that of supervising the compliance of credit institutions with the provisions of

text: Regulation (EU) No 1286/2014

text: and the draft law, which are deemed to be manufacturers of or persons selling PRIIPs, including the provisions of

text: Regulation (EU) No 1286/2014

text: on imposing administrative sanctions and measures. 2.3 The ECB underlines that a proposed conferral of a new task on a national central bank (NCB) in the 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’, inter alia, as ‘any financing of the public sector’s obligations vis-à-vis third parties’. 2.4 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

text: 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. 2.5 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 a public sector’s obligation 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. 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 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;

text: (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 decisionmaking 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.

text: 3. Specific observations

text: 3.1 New tasks of Banka Slovenije On the basis of the criteria set out in paragraph 2.5, the following paragraphs assess whether the new task of Banka Slovenije is in line with the monetary financing prohibition. 3.1.1 New tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the

text: Statute of the ESCB

text: Supervising compliance with the provisions of the draft law and

text: Regulation (EU) No 1286/2014

text: , including the provisions of

text: Regulation (EU) No 1286/2014

text: on imposing administrative sanctions and measures, 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. Although the new task conferred on Banka Slovenije relates to supervising credit institutions’ compliance with Union law requirements, it does not form part of the prudential supervisory tasks of Banka Slovenije. Banka Slovenije’s new task relates mainly to the protection of consumers. Against this backdrop, the new task conferred on Banka Slovenije under the draft law is not directly related to the tasks conferred on the ECB and the NCBs by the Treaty and the Statute of the ESCB. Consequently, a careful assessment of the conferral of this task on Banka Slovenije is required to determine whether it constitutes a government task, and whether the related funding gives rise to monetary financing concerns . 3.1.2 Tasks which are atypical of NCB tasks The new task conferred on Banka Slovenije by the draft law does not appear to be atypical of NCB tasks. While the majority of Member States have designated national capital markets and

text: insurance supervisors as their competent authorities under

text: Regulation (EU) No 1286/2014

text: , the

text: ECB has identified a number of Member States, including Cyprus , the Czech Republic ,

text: Hungary , Ireland and Slovakia , where at least part of the tasks under Regulation (EU)

text: 1286/1014 have been conferred on NCBs .

text: 3.1.3 In addition, Banka Slovenije’s new task related to the supervision of PRIIPs does not appear to

text: be atypical also in the light of the consumer protection roles which are currently also fulfilled by

text: numerous ESCB NCBs in the field of financial services. The ECB has consistently expressed the

text: view that consumer protection tasks discharged by an NCB may be regarded as central banking

text: tasks provided that such tasks do not interfere with the performance of the NCB’s ESCB-related

text: tasks, and to the extent that those tasks complement existing supervisory powers and thus

text: contribute to the soundness of the financial market and the preservation of confidence in the

text: marketplace.

text: 3.1.4 Impact of the new task on the independence of Banka Slovenije

text: The potential impact of the new task on the institutional, financial and personal independence of

text: Banka Slovenije must also be taken into consideration.

text: 3.1.5 Extent to which performance of the new task creates conflicts of interest with existing central

text: bank tasks

text: As noted above, although to date Banka Slovenije has not carried out any activities related to insurance products or PRIIPs, Banka Slovenije is currently involved in supervising other investment products such as structured deposits. Given that PRIIPs go beyond deposit-related products Banka Slovenije’s new task seems to only partially complement its existing tasks. As with other consumer protection tasks, sufficient mitigation measures must be put in place to ensure that in the event of a conflict of interests supervisory considerations prevail . 3.1.6 Extent to which performance of the new task is disproportionate to the financial or organisational

text: capacity of Banka Slovenije

text: The principle of financial independence requires that Member States may 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 an adverse impact on the NCB’s financial or operational capacity to perform its ESCB tasks . In order to ensure that the capacity of Banka Slovenije to perform its ESCB-related tasks is not impaired, Banka Slovenije must, therefore, be in a position to avail itself of the necessary resources, including personnel and the provision of IT services, to carry out its duties under the draft law. In this regard, it is noted that pursuant to the draft law Banka Slovenije can introduce a new fee applicable to supervised entities for the performance of its new supervisory duties, which has a positive impact on Banka Slovenije’s capacity to perform its new task, without negatively affecting the performance of its ESCB-related tasks. However, the impact of the new task on Banka Slovenije’s operational capacity is still unclear, due to the fact that the new task relates to a number of new products in respect of which Banka Slovenije has no previous supervisory experience. 3.1.7 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 The performance of the new task does not appear to be problematic from the perspective of the institutional set-up of Banka Slovenije, nor does it raise accountability or personal and institutional independence concerns. However, the complementarity between Banka Slovenije’s new task and its existing tasks should not be interpreted too broadly, as this would lead to the creation of an indefinite chain of ancillary tasks which could eventually undermine Banka Slovenije’s independence.

text: 3.1.8 Extent to which the performance of tasks harbours substantial financial risks 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 for the performance of the new task given to it under the draft law will thus be subject to the rules on liability for damages caused in the exercise of public authority pursuant to the Law on Banking and the general liability regime under Slovenian law. 3.1.9 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

text: independence

text: The performance of the new task does not appear either to expose the members of the decisionmaking bodies of Banka Slovenije to any disproportionate political risk or to have an impact on their personal independence. 3.1.10 Conclusion regarding the compatibility of the draft law with the prohibition on monetary financing The task of carrying out the duties in relation to supervising credit institutions’ compliance with the provisions of

text: Regulation (EU) No 1286/2014

text: and the draft law relating to PRIIPs 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 ESCB or Eurosystem related duties, careful consideration should be given to its impact on Banka Slovenije’s operational capacity due to the fact that the new task relates to a number of new products in respect of which Banka Slovenije has no previous supervisory experience. In addition, the complementarity between new tasks to be conferred on Banka Slovenije and its existing tasks should not be interpreted too broadly, as this would lead to the creation of an indefinite chain of ancillary tasks which could eventually undermine Banka Slovenije’s independence. 3.2 Division of competences between the three Slovenian supervisory authorities The ECB notes that the proposed division of competences under the draft law between the three Slovenian supervisory authorities may also raise certain conflicts when applying the draft law, these possible conflicts should be further clarified. The draft law divides supervisory competences based on the identity of the supervised entities. However, since the obligations under the draft law and

text: Regulation (EU) No 1286/2014

text: relate to both entities that manufacture PRIIPs and those that sell PRIIPs, situations could arise where two different competent authorities would exercise supervisory tasks over a single PRIIP. For example, in the case of insurance-based investment products these would be manufactured by an insurance undertaking, implying that the Insurance Supervision Agency would be regarded as the competent authority in relation to the manufacturer. At the same time insurance-based investment products may be sold by credit institutions acting as intermediaries selling PRIIPs. This means that Banka Slovenije would be regarded as a competent authority in relation to the seller of the PRIIPs. Such situations could give rise to two divergent opinions from two different competent authorities in relation to a single PRIIP. Against this backdrop the consulting authority may wish to further reflect on the division of competences under the draft law.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 31 January 2018. [signed]

text: The President of the ECB

text: Mario DRAGHI

type: vagledning

utgivare: ecb


text: Available on the Prime Minister of the Republic of Malta’s website at www.opm.gov.mt.

text: See the IMF’s Staff Concluding Statement of the 2017 Article IV Mission on Malta from 17 November 2017, available on the IMF’s website at www.imf.org.

text: See Article 400 of the Companies Act and Chapter 386 of the Laws of Malta.

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).

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) (OJ L 141, 14.5.2014, p. 1).

text: Without prejudice to certain provisions of

text: Regulation (EU) No 1024/2013

text: , NCAs shall carry out and be responsible for certain tasks and adopting all relevant supervisory decisions with regard to certain less significant credit institutions or financial holding companies. Wherever the ECB is assisted by national competent authorities for the purpose of exercising the tasks conferred on it by

text: Regulation (EU) No 1024/2013

text: , the ECB and the NCAs shall comply with the provisions set out in the relevant Union acts in relation to the allocation of responsibilities and cooperation between competent authorities from different Member States. 7 See paragraph 2.4 of Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.

title: Opinion of the European Central Bank of 6 February 2018 on funding sources and governance of the Malta Financial Services Authority (CON/2018/6)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 6 February 2018 on funding sources and governance of the Malta Financial Services Authority (

text: ) Introduction and legal basis

text: On 22 December 2017 the European Central Bank (ECB) received a request from the Central Bank of Malta, acting on behalf of the Parliamentary Secretariat for Financial Services, Digital Economy & Innovation, for an opinion on a draft law proposing amendments to the Maltese Financial Services Authority Act (hereinafter the ‘draft law’). On 8 January 2018 the ECB received additional information from the Central Bank of Malta with further proposed amendments to 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 as the draft law concerns the specific tasks conferred upon the ECB concerning the prudential supervision of credit institutions under 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 proposed amendments to the Malta Financial Services Authority Act (hereinafter referred to as the ‘MFSA Act’) stem from feedback from stakeholders to a consultation document entitled ‘Strengthening the Malta Financial Services Authority; Taking the financial sector to a new level , which was issued in August 2017. During the consultation process, stakeholders called for greater levels of efficiency and effectiveness of the MFSA, echoing similar views expressed by the European Commission, the European supervisory authorities and the International Monetary Fund (IMF) . 1.2 The draft law proposes amendments to the MFSA Act in order to strengthen the governance structure of the MFSA through the creation of a Chief Executive Officer (CEO) position. The CEO will be responsible for the MFSA’s overall performance in terms of the achievement of its objectives and implementation of its strategy and policies, as set out by the Board of Governors. The CEO will be appointed by the Board of Governors and will be a non-voting member of the Board. 1.3 The MFSA currently manages Malta’s Registry of Companies, and the Registrar of Companies is an MFSA senior official appointed by the Minister of Finance on the advice of the MFSA, pursuant

text: to the Companies Act . The draft law proposes to separate the function of Registrar of Companies from the MFSA. In particular, the Registrar will no longer be a member of the MFSA Coordination Committee and the Registry of Companies will thereby be separated from the MFSA. This is complemented by the deletion of references to the Registrar of Companies in the MFSA Act. 1.4 The draft law also addresses the financial provisions of the MFSA Act. It proposes that any sums required by the MFSA for carrying out any of its functions will be paid out of the Maltese Government’s Consolidated Fund and without further appropriation. In preparing the estimates of the MFSA’s income and expenditure for a given financial year, the MFSA must take account of any funds and other monies that may be due to be paid to it from the Consolidated Fund during the relevant financial year. The MFSA must also aim to ensure that its total revenues are sufficient to cover all sums properly chargeable to its income and expenditure account. A House of Representatives committee will examine the estimates and report its findings for consideration by the House of Representatives. Where, in respect of any given financial year, it is found that the amount approved by the MFSA Board of Governors is not sufficient or a need has arisen for expenditure for a purpose not provided for in the estimates, the MFSA Coordination Committee may adopt supplementary estimates for approval by the Board of Governors and for consideration by the House of Representatives following examination by the abovementioned committee. The sums referred to in the estimates will be fixed by resolution of the House of Representatives after considering the estimates prepared by the MFSA and the committee report. 1.5 The separation of the Registry of Companies from the MFSA will have a significant impact on the revenue of the MFSA. However, the Government is determined to guarantee the MFSA’s full and effective autonomy as a public institution reporting to the House of Representatives. To this end, the annual budget of the MFSA will no longer depend substantially on the income of a structure – the Registrar of Companies – that is statutorily not within the MFSA’s responsibility.

text: 2. Observations

text: 2.1 Pursuant to Article 127(6) of the Treaty and

text: Article 6 of Council Regulation (EU) No 1024/2013

text: , the ECB carries out its tasks within a single supervisory mechanism (SSM) composed of the ECB and the national competent authorities (NCAs). Within the framework for cooperation within the SSM, the ECB is responsible for the effective and consistent functioning of the SSM, and both the ECB and NCAs are subject to a duty of cooperation, and an obligation to exchange information. Where appropriate and without prejudice to the responsibility and accountability of the ECB for the tasks conferred on it by

text: Regulation (EU) No 1024/2013

text: , NCAs are responsible for assisting the ECB, under the conditions set out in

text: Regulation (EU) No 468/2014

text: of the European Central Bank (ECB/2014/17) , with the preparation and implementation of any acts relating to the tasks

text: conferred on the ECB under

text: Article 4 of Regulation (EU) No 1024/2013

text: related to all credit institutions, including assistance in verification activities . 2.2 Taking account of the foregoing responsibilities of the MFSA within the framework of the SSM, the ECB would like to point out that, when considering the MFSA’s resources, the Maltese authorities should take into account the SSM’s need for NCA staff on joint supervisory teams and inspection teams and the more intense supervision expected for less significant institutions .

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

text: Done at Frankfurt am Main, 6 February 2018.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


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). 2 2013. évi CCXXXVII. Törvény a hitelintézetekről és a pénzügyi vállalkozásokról, published in Magyar Közlöny 217/2013 on 23 December 2013.

text: 2013. évi CXXXV. Törvény a szövetkezeti hitelintézetek integrációjáról és egyes gazdasági tárgyú jogszabályok módosításáról published in Magyar Közlöny 120/2013 on 12 July 2013. 4 Directive

text: of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive

text: and repealing Directives

text: and

text: (OJ L 176, 27.6.2013, p. 338). 5 See Point 4 of the Annex to the draft decree. 6 It is specified that amounts on a deposit account shall be considered as having a maturity equalling to the earliest possibility of withdrawal. 7 See Section 6, point 3 of 2013. évi CCXXXVII. Törvény a hitelintézetekről és a pénzügyi vállalkozásokról.

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). 9 14/2014. (V. 19.) MNB rendelet a hitelintézetek devizapozícióbeli lejárati összhangjának szabályozásáról, valamint a pénz- és hitelpiaci szervezetek által a jegybanki információs rendszerhez elsődlegesen a Magyar Nemzeti Bank felügyeleti feladatai ellátása érdekében teljesítendő adatszolgáltatási kötelezettségekről szóló 43/2013. (XII. 29.) MNB rendelet módosításáról, published in Magyar Közlöny 72/2014 on 19 May 2014. 10 In the light of the fact that the volume of foreign currency-denominated mortgage lending to households expanded rapidly in Hungary until 2008 resulting in significant maturity mismatches, consequently increasing Hungary’s need for foreign currency reserves. See Opinion

text: , as well as Opinions

text: and

title: Opinion of the European Central Bank of 6 February 2018 on the reliance of credit institutions on funds originating from financial corporations (CON/2018/7)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 6 February 2018 on the reliance of credit institutions on funds originating from financial corporations (

text: ) Introduction and legal basis

text: On 15 December 2017 the European Central Bank (ECB) received a request from the Magyar Nemzeti Bank (the ‘MNB’) for an opinion on a draft MNB decree on the regulation of the reliance of credit institutions on funds originating from financial corporations (hereinafter the ‘draft decree’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the sixth indent of

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

text: , as the draft decree contains rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft decree

text: 1.1 The draft decree is a targeted macro-prudential measure aimed at preventing the build-up of excessive reliance by credit institutions on wholesale funding. To this end, the draft decree sets a maximum limit on the share of the total funding of credit institutions originating from financial corporations. The MNB considers that although wholesale funding is not currently at an excessive level in the Hungarian banking sector, the potentially significant role of such funding in the banks’ funding structure and composition justifies the need for preventive macro-prudential measures. 1.2 The draft decree lays down a limit for an interbank funding ratio (IFR), which is defined as the weighted amount of liabilities originating from financial corporations, divided by the balance sheet total excluding own funds, and which is set to be at a maximum of 30% as of 1 July 2018. 1.3 The limit will apply in respect of entities covered by the scope of the draft decree, which includes: credit institutions operating as limited companies (with specific enumerated exceptions); Hungarian branches of foreign credit institutions; and entities belonging to groups which include credit institutions and fall under consolidated supervision pursuant to Law CCXXXVII of 2013 on credit institutions and financial enterprises and Law CXXXV of 2013 on the integration of cooperative

text: credit institutions . The limit will not be applicable to entities exempt from the scope of the draft decree, which includes: credit institutions with a balance sheet total of less than HUF 30 billion (approx. EUR 100 million); home savings and loan associations; two Hungarian institutions outside the scope of Directive

text: of the European Parliament and of the Council (Magyar Fejlesztési Bank Zártkörűen Működő Részvénytársaság and Magyar Export-Import Bank Zártkörűen Működő Részvénytársaság); and KELER Ltd., the Hungarian central securities depository. 1.4 For the purposes of calculating the IFR, the draft decree also specifies those items that are not to be considered as liabilities originating from financial corporations and are therefore exempt from being included in the numerator of the IFR formula. This includes for example: mortgage bonds; refinancing mortgage loans; bonds issued with a maturity of two years or longer; or any funds provided by foreign branches to Hungarian parent companies. In addition, with respect to the numerator of the IFR formula, the draft decree also specifies certain weightings of liabilities originating from financial corporations according to a six-pronged classification , in which each category has a different weighting. The weighting of 0 to 100 percentage points generally depends on whether the liability is denominated in forint (HUF) or in another currency and on the remaining maturity of the funds (liabilities), with short-term and non-HUF denominated liabilities assigned a higher weighting. Moreover, the specific weighting of 0 to 20 percentage points lower than the weighting of 0 to 100 percentage points is to be assigned to either: (i) any funds received from parent companies, as defined in Law CCXXXVII of 2013 on credit institutions and financial enterprises or, in the case of a Hungarian branch of a foreign credit institution, from the establishing institution; or (ii) the balance of ‘loro’ accounts other than those in point (i), defined as demand deposit or payment accounts maintained by a credit institution or a member of a group of credit institutions for credit institutions established outside Hungary for the purpose of providing financial services. 1.5 The IFR limit should be complied with by both individual and, in case of group members established in Hungary, on a consolidated level. 1.6 The IFR will be calculated on the basis of regular reporting of credit institutions to the MNB. 1.7 The IFR aims to rule out the overreliance of the banking system on funds originating from financial corporations which are a highly volatile type of funding. Overall, the IFR does not cover the whole liability side of the balance sheet, but only items originating from financial corporations, which, in the MNB’s view, have proven to be excessively volatile during crisis situations. The IFR is not regarded as a preliminary stable funding or a net stable funding ratio (NSFR) type requirement or a

text: requirement aimed at the general diversification of funding sources, but rather as a measure targeting one specific funding risk. The draft decree also intends to set differentiated requirements for funds with between 0 to 1 year and 1 to 2 year remaining maturities. The MNB does not consider the IFR to be a derivation or early implementation of the NSFR, as provided for in

text: Article 413(3) of Regulation (EU) No 575/2013

text: of the European Parliament and of the Council , since in its current calibration it serves as a backstop measure aimed at limiting the possibility of a build-up of systemic risks and is therefore of a macro-prudential nature.

text: 2. General observations

text: 2.1 The ECB understands that the MNB intends to introduce the IFR as a national measure, based on national law, targeting different systemic risks than those addressed by the standards for liquidity coverage requirements and net stable funding requirements laid down in the relevant EU regulatory framework, most notably

text: Regulation (EU) No 575/2013

text: . 2.2 The IFR is intended to complement the foreign funding adequacy ratio (FFAR), a requirement that is currently applicable for credit institutions in respect of foreign exchange assets and that is regulated by MNB Decree 14/2014 . The FFAR is a systemic risk mitigation measure which aims to regulate the maturity mismatches and foreign currency positions of credit institutions. The ECB has previously noted that the FFAR is similar in concept to the NSFR developed by the Basel Committee on Banking Supervision, since it builds upon structural funding metrics that require banks to hold stable funding in relation to the composition of their assets. However, there are a number of differences between the NSFR and the FFAR .

text: 3. Specific observations

text: 3.1 The ECB notes that the risk of unstable funding sources is to be addressed by the NSFR pursuant to

text: Article 413 of Regulation (EU) No 575/2013

text: Article 413(3)

text: specifically provides that Member States may maintain or introduce national provisions in the area of stable funding requirements before binding minimum standards for net stable funding requirements are specified and introduced in the Union in accordance with Article 510 of the same Regulation. 3.2 The ECB agrees that the IFR is less complex than the NSFR being developed under the European Union regulatory framework as the NSFR addresses risk stemming from undiversified funding more generally and also considers the funding needs of the assets held on the balance sheet. Both

text: metrics, nevertheless, address the risk stemming from the excessive reliance by credit institutions on wholesale funding from financial corporations. In the light of this, the ECB suggests that the need for the IFR, as well as its calibration, be reassessed once the NSFR has been fully implemented as a binding minimum ratio at the Union level. 3.3 As a separate matter, the ECB reiterates that the need for and calibration of the FFAR laid down in MNB Decree 2014/14 should be reassessed with the implementation of the binding NSFR in the European Union, as expressed in its previous opinions.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


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 Council conclusions adopted in Brussels on 5 December 2017, document number 15429/17, FISC 345, ECOFIN 1088, and the Commission’s accompanying press release, available at: http://europa.eu/rapid/pressrelease_IP-17-5121_en.htm.

text: See the Questions and Answers on the EU list of non-cooperative tax jurisdictions, available at: http://europa.eu/rapid/press-release_MEMO-17-5122_en.htm. 4 See for example ECB Opinion

text: . All ECB opinions are published on the ECB's website at www.ecb.europa.eu. 5 Directive

text: of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive

text: and repealing Directives

text: and

text: (OJ L 176, 27.6.2013, p. 338). 6

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

text: concerning the collection of statistical information by the European Central Bank (OJ L 318, 27.11.1998, p. 8).

text: See paragraph 6.4 of ECB opinion

text: . 8 See paragraph 6.3 of ECB opinion

text: . 9 See ECB Convergence Report 2016, p.25. 10 See for example ECB opinions

title: Opinion of the European Central Bank of 14 February 2018 on the return of monetary funds to the Republic of Slovenia from designated tax havens (CON/2018/8)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 14 February 2018 on the return of monetary funds to the Republic of Slovenia from designated tax havens (

text: ) Introduction and legal basis

text: On 11 December 2017 the European Central Bank (ECB) received a request from the National Assembly of the Republic of Slovenia (the “National Assembly”) for an opinion on a draft law on the return of monetary funds to the Republic of Slovenia from designated tax havens (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 (hereinafter ‘TFEU’) and the third indent of

text: as the draft law relates to Banka Slovenije. 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 objective of the draft law, which was prepared by the National Council of the Republic of Slovenia (Državni svet), is to introduce a regime resembling a penalty tax regime in order to combat the leaking of monetary funds into designated low or no-tax countries (so-called ‘tax havens’) which, according to the draft law’s explanatory memorandum, are causing harmful tax competition to traditional tax countries such as Slovenia. The draft law stipulates the conditions, procedure and relevant authorities for enabling the return of funds from the designated tax havens into the national budget. The list of countries considered as tax havens under the draft law includes inter alia several EU Member States. 1.2 The draft law provides that funds which have been directly or indirectly transferred from Slovenian bank accounts into accounts in the designated tax havens will be subject to a penalty tax rate. For transfers made from 25 June 1991 until the entry into force of the draft law, a rate of 20 per cent will apply and the liable persons will have to make payments within a six-month period following the entry into force of the draft law. For transfers of funds made after the entry into force of the draft law, a rate of 22 per cent will apply and payments will be due within three months of making the relevant transfer. In case of breach of the obligation of payment of the relevant sum, the liable person will be charged by the tax authority at a rate of 80 per cent of the transferred funds. 1.3 Liable persons include natural persons with Slovenian citizenship; foreign natural persons holding accounts in banks and other payment institutions in Slovenia; legal entities registered in Slovenia

text: operating in the relevant period covered by the draft law; and foreign legal entities holding accounts in banks and other payment institutions in Slovenia during the relevant period. The draft law excludes from its scope certain entities, including State authorities, international organisations, religious organisations, as well as remittances made by banks on their own behalf and payments made by Banka Slovenije. 1.4 Public authorities and financial institutions, including banks and Banka Slovenije, are obliged to provide information to the authorities responsible for the implementation of the draft law on any payments made by liable persons to the designated tax havens and to provide any other assistance, free of charge. The draft law indicates that all data related to liable persons under the draft law and all data related to the payments made to the designated tax havens is public information that can be acquired and published by anyone.

text: 2. Observations

text: 2.1 The ECB notes that on 5 December 2017 the Council adopted the Council conclusions on the EU list of non-cooperative jurisdictions for tax purposes . According to the Commission, when assessed against the EU list criteria, all Member States are fully compliant. Since the taxation of funds transferred to Member States designated as tax havens as foreseen by the draft law would also appear to affect the free movement of capital, the National Assembly should consult the Commission, as the guardian of the Treaties, on the draft law, if it has not already done so . 2.2 The ECB understands that the data to be provided to the relevant authorities responsible for the implementation of the draft law is limited to information on remittances of monetary funds of liable persons, as stipulated in article 9(1) of the draft law. However, where Banka Slovenije, which is also the national competent authority empowered by national law to supervise credit institutions, shares such information with, or provides assistance to, the relevant authorities, it must comply with the confidentiality regime set out in Directive

text: of the European Parliament and of the Council. 2.3 While it appears that the data requests to Banka Slovenije would, primarily, not concern statistical information, in view of the broad scope of the potential assistance to be provided by Banka Slovenije to the relevant authorities, the framework applicable to confidential statistical data should be considered.

text: Article 8(3) of Council Regulation (EC) No 2533/98

text: provides that the European System of Central Bank (ESCB) members shall take all the necessary regulatory, administrative, technical and organisational measures to ensure the physical and logical protection of confidential

text: statistical information. Confidential statistical information collected pursuant to

text: Council Regulation (EC) No 2533/98

text: may be used exclusively for the exercise of the tasks of the ESCB as well as in the field of prudential supervision with regard to NCBs or for other statutory NCB tasks. 2.4 NCB staff members are also subject to the obligation of professional secrecy under Article 37 of the Statute of the European System of Central Banks and of the European Central Bank. The primacy of Union law means that national laws on third party access to documents may not result in infringements of the ESCB’s confidentiality regime. Where access to an NCB’s information and documents is allowed under Union law, the NCBs should ensure that the receiving bodies protect the confidentiality of information and documents disclosed at a level corresponding to that applied by the NCBs themselves. Any provision of information under the draft law by Banka Slovenije should comply with applicable Union laws, including those governing the exchange of supervisory and statistical information, as well as the obligation of professional secrecy. 2.5 The ECB understands Article 9 of the draft law to constitute a cooperation arrangement between, inter alia, Banka Slovenije and the relevant authorities responsible for the implementation of the draft law. Banka Slovenije is to provide to the authorities, free of charge, data relating to transfers of funds of liable persons and assistance as necessary. In this respect the ECB notes the principle of financial independence of NCBs which requires that Member States do not put their NCB in a position where they have insufficient financial resources to carry out their Eurosystem-related tasks, both from an operational and a financial perspective . Therefore, the cooperation arrangement should not create any financial risks for Banka Slovenije. Should the scope of the draft law in respect of any assistance provided by Banka Slovenije prove in practice to require a regular, lasting and substantial engagement of Banka Slovenije’s resources with the result that its assistance qualifies as a new task for Banka Slovenije, then the ECB would need to be informed accordingly in order to reassess the draft law and the related tasks of Banka Slovenije against the prohibition on monetary financing under Article 123 of the Treaty.

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

text: Done at Frankfurt am Main, 14 February 2018.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


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 European Systemic Risk Board, Vulnerabilities in the EU residential real estate sector, November 2016, pp. 5 and 86 to 89, available on the ESRB’s website at: www.esrb.europa.eu..

text: See the International Monetary Fund, Staff Report for the 2015 Article IV Consultation, p. 47, and Financial Sector Assessment Program, August 2017, Technical note, selected issues on banking supervision, pp. 30 – 32, available on the IMF’s website at: www.imf.org.

text: See Opinion

text: . All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.

text: See paragraph 2.3 of Opinion

text: , paragraph 2.2 of Opinion

text: and Recommendation of the Eurosystem Systemic Risk Board of 4 April 2013 on intermediate objectives and instruments of macro-prudential policy (

text: ) (OJ 170, 15.6.2013, p. 1).

text: See paragraph 2.4 of Opinion

text: , paragraph 2.3. of Opinion

text: and the Governing Council’s statement on macro-prudential policies of 15 December 2016, available on the ECB’s website at www.ecb.europa.eu.

text: See Opinion

text: , Section 2.4.

title: Opinion of the European Central Bank of 19 February 2018 on additional macro-prudential tools for residential mortgages (CON/2018/9)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 19 February 2018 on additional macro-prudential tools for residential mortgages (

text: ) Introduction and legal basis

text: On 13 December 2017, the European Central Bank (ECB) received a request from the Luxembourg Ministry of Finance for an opinion on a draft law on macro-prudential measures on residential mortgage loans in Luxembourg and amending the Law on banking and the Law establishing the Luxembourg Systemic Risk Committee (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, fourth and sixth indents of

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

text: , as the draft law relates to the Banque centrale du Luxembourg (BCL), statistics and rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The purpose of the draft law is to adapt the macro-prudential legal framework to address the threat posed in Luxembourg to financial stability by the combination of high residential real estate sector prices and increasing household indebtedness. As noted in the remarks accompanying the draft law, in the light of the alert issued by the European System Risk Board in November 2016 identifying emerging vulnerabilities in the residential property sector in Luxembourg, and, more particularly, with regard to household debt and property prices , as well as the International Monetary Fund’s recommendations with regard to the introduction of new macro-prudential tools for the property sector in Luxembourg , it has become important for Luxembourg to equip itself with a legislative framework that can be used to effectively deal with macro-prudential risks stemming from the residential property sector.

text: 1.2 To this end, the draft law empowers the Financial Sector Supervisory Commission (CSSF) to lay down the conditions for granting mortgages for residential property located in Luxembourg by lending institutions, insurance companies and professionals carrying out credit operations. 1.3 More specifically, the CSSF may define the following: (a) upper limits for the ratio between the total credit obligations of a borrower and the total market value of a given property; (b) upper limits for the ratio of the total amount of a borrower’s repayment obligations resulting from a residential mortgage and the borrower’s total available annual income; (c) upper limits for the ratio between the borrower’s total indebtedness and the borrower’s total available annual income; (d) upper limits for the ratio between the total annual mortgage charges and the borrower’s total available annual income; and (e) upper limits for a loan’s initial repayment amount. These measures may be applied alone or in combination and may refer to all or part of the amount of new loans. The CSSF may only adopt such measures once it receives a recommendation from the Systemic Risk Committee, and following consultation with the BCL to reach a common position. 1.4 The CSSF may ask the national authorities of other Member States to recognise the conditions set out for granting mortgages for property located in Luxembourg and to apply them to the entities under their supervision. Conversely, the CSSF may recognise conditions set down by the national authorities of other Member States for granting loans for property located in those Member States and apply them to the entities under its supervision. The CSSF will take such measure only after receiving a recommendation from the Systemic Risk Committee and following consultation with the BCL to reach a common position. 1.5 The draft law also stipulates that the BCL has a right to access aggregate information available from State departments, public institutions apart from those placed under the supervision of the communes and other competent State authorities, as long as that information is necessary for its research and analysis work with regard to the role of the Systemic Risk Committee. As noted in the remarks accompanying the draft law, the BCL’s right to access such information will contribute to identifying the emergence of systemic risks in the financial system as early as possible. The BCL’s right to access this information is strictly supervised through the BCL’s professional secrecy system as provided in Article 37 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank and Article 33 of the Organic Law of the BCL.

text: 2. Preliminary observation

text: The ECB issued an opinion on the draft law establishing the Systemic Risk Committee in 2014 . The following observations are without prejudice to the recommendations made in that opinion, which are reiterated in this opinion, notably the principle that the ECB and the national central banks (NCBs) should play a leading role in macro-prudential oversight, given their expertise and existing responsibilities in the area of financial stability (point 5.2) and that any additional task that may be entrusted to the BCL with regard to macro-prudential policy must not affect the BCL’s institutional, functional and financial independence, or that of its Governor.

text: 3. General observations

text: 3.1 The ECB welcomes the draft law insofar as it equips the CSSF with new macro-prudential tools intended to remedy imbalances in the residential real estate sector, which result from overvaluation of residential property accompanied by excessive credit provision and may have significant negative implications for financial stability and the real economy. Against this background, the core objectives of the draft law seem appropriate, namely to create instruments that enable the CSSF to impose upper limits on the level of indebtedness of residential mortgage borrowers, with a view to strengthening the resilience of the financial system and counteracting the cyclical build-up of systemic risk, when deemed necessary. The objectives of the draft law are also in line with the principles set out in the ESRB’s Recommendation on intermediate objectives and instruments of macro-prudential policy, in particular with regard to the objective of mitigating and preventing excessive credit growth and leverage . 3.2 From a financial stability perspective, the ECB welcomes the implementation of a legislative framework for borrower-based measures in all euro area countries . The ECB takes positive note of the fact that the CSSF may activate part or all of the above-described tools, thereby responding in a flexible and proportionate way to potential risks to financial stability. A thorough quantitative impact assessment is, however, important to verify the effect and appropriateness of the new tools when they are activated. 3.3 From a statistical perspective, the ECB notes the extended right of the BCL to access information available from state departments and public institutions. This is basically in line with Article 32 of the BCL Organic Law, which provides that, in order to undertake its tasks, the BCL shall be empowered to collect the necessary statistical information, either from the competent national authorities or directly from economic agents. The BCL may likewise perform spot checks of the information from these authorities and economic agents, in accordance with relevant Community law provisions and within the competences of the ESCB and the ECB. However, the draft law, which concerns the research and analysis work of the Systemic Risk Committee, should also provide for access to more granular information, to the extent and at the level of detail necessary for the performance of tasks of the ESCB. This would be a necessary condition to the exercise of the analytical capabilities of the BCL, also with regard to its role in the Systemic Risk Committee.

text: 3.4 The ECB expects the Ministry of Finance to consult the ECB in accordance with Article 127(4) of the Treaty on draft regulations that CSSF will enact under the draft law . This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 19 February 2018. [signed]

text: The President of the ECB

text: Mario DRAGHI


text: Regulation (EU) 2015/751

text: of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ L 123, 19.5.2015, p. 1).

text: Ο περί Υπηρεσιών Πληρωμών Νόμος του 2009 (Ν. 128(I)/2009).

text: Directive

text: of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (OJ L 257, 28.8.2014, p. 214).

text: 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).

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: Article 123 of the Treaty also serves the objective of maintaining price stability and reinforces central bank independence.

text: Pursuant to Law 128(I)/2009 on payment services. See also paragraph 1.1 of Opinion

text: . Under Law 128(I)/2009 on payment services, the CBC is also responsible for supervising the compliance of credit institutions and other payment service providers with the conduct of business rules under

text: 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), such as the requirement to provide information to payment service users, the time limits for the execution of payment orders, etc.

text: See paragraph 3.1.3 of Opinion

text: and paragraph 2.4.1 of Opinion

text: This is the case in Bulgaria (

text: Article 122(2)

text: and Articles 124 and 139 of the Law on Payment Services and Payment Systems), Hungary (Article 41(19) of the Act CXXXIX of 2013 on the Magyar Nemzeti Bank and Act LXXXV of 2009), Lithuania (Article 62 of Law No XII-2561 of 30 June 2016 on Payments), Malta (Regulation 2 of Legal Notice 326 of 2015), Spain (Law 18/2014 of 15 October 2014), and Slovenia (based on the list of competent authorities available on the European Commission’s website http://ec.europa.eu/competition/sectors/financial_services/national_competent_authorities.pdf).

text: This is the case in Belgium (Article XV.18/4 of the Code of Economic Law), Croatia (

text: Article 4

text: paragraphs 1, 2, 5 and 6, and Article 6 of the Law NN 50/2016 on Implementation of EU Regulations Governing Payment Systems), Ireland (Regulation 6 of Statutory Instrument No 550 of 2015 and of Statutory Instrument No 292 of 2016), Italy (Article 3 of legislative Decree No 218 of 15 December 2017 and

text: Article 34

text: -quater of the Law on payment services), Netherlands (

text: Article 2

text: (r) and

text: Article 5

text: and Annex 2 of the Administrative Order of 17 March 2017 amending the Administrative Order implementing EU Regulations on Financial Markets), Poland (Article 14 of the Law on Payment Services of 19 August 2011 (Dz.U. 2017, item 2003)), Slovakia (Article 2(3) of Law 492/2009 Coll., Law 747/2004 Coll.,

text: Article 2

text: b of Law No 291/2002 Coll., Article 36(1) of Law No 80/1997 Coll., Law No 514/2003 Coll., Article 90 of Law No 492/2009 Coll.), and the Czech Republic (based on the list of competent authorities available on the European Commission’s website http://ec.europa.eu/competition/sectors/financial_services/national_competent_authorities.pdf).

text: See paragraphs 3.2 and 4.4 of Opinion

text: and paragraph 2.3.2 of Opinion

text: See paragraph 3.1 of Opinion

text: See paragraphs 2.1 and 2.2 of Opinion

text: See Article 22(1) of the draft law. 16 See Article 22(2) of the draft law. 17 See paragraphs 2.1 and 2.2 of Opinion

text: . 18 See Article 23 of the draft law.

title: Opinion of the European Central Bank of 14 February 2018 on conferring new tasks relating to interchange fees for card-based payment transactions to the Central Bank of Cyprus (CON/2018/10)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 14 February 2018 on conferring new tasks relating to interchange fees for card-based payment transactions to the Central Bank of Cyprus (

text: ) Introduction and legal basis

text: On 15 January 2018 the European Central Bank (ECB) received a request from the Ministry of Finance of the Republic of Cyprus for an opinion on a draft law on interchange fees for card-based payment transactions (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 the Central Bank of Cyprus (CBC). 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 effectively implement Articles

text: and

text: of Regulation (EU) 2015/751 into the Cypriot legal order by designating the CBC and the Commission for the Protection of Competition of the Republic of Cyprus (hereinafter the ‘Competition Commission’) as the competent authorities for the purposes of

text: Regulation (EU) 2015/751

text: . According to the draft law, the two authorities will be jointly responsible to ensure the enforcement of the provisions of

text: Regulation (EU) 2015/751

text: and of the draft law, except where responsibility is expressly assigned otherwise. 1.2 In relation to the enforcement of Articles

text: and

text: of Regulation (EU) 2015/751, which govern the interchange fee caps that should be imposed by payment service providers in consumer credit and debit card transactions, and the requirement to keep payment card schemes separate from processing entities, the CBC is required to set up and manage a procedure for the regular collection of information and records from all payment services providers and, where appropriate, from all card payment schemes. In addition, where the CBC considers, in the light of the information and records that it may receive from any payment service provider or card payment

text: scheme, that competition issues arise, it is required to transmit the relevant information to the Competition Commission which may further investigate the matter and proceed with enforcement and administrative sanctions and/or measures. 1.3 The Competition Commission is designated as the exclusive competent authority for the enforcement of Articles 6, 8, 9, 10, 11 and 12 of the

text: Regulation (EU) 2015/751

text: and the Financial Ombudsman of the Republic of Cyprus is entrusted with responsibility for out-of-court resolution of disputes that may arise under

text: Regulation (EU) 2015/751

text: . 1.4 Furthermore, for the purposes of enforcing

text: Regulation (EU) 2015/751

text: , and in particular

text: Article 13

text: which requires competent authorities to effectively monitor compliance with

text: Regulation (EU) 2015/751

text: , both authorities are vested with a number of powers, including the power to collect information, documents and records from any supervised entity, to carry out on-site investigations and to cooperate with the competent authorities of other Member States. In line with

text: Article 14 of Regulation (EU) 2015/751

text: , the competent authorities are also empowered to impose administrative sanctions in cases of infringement of the provisions of the draft law and/or

text: Regulation (EU) 2015/751

text: , and to take any necessary measures in order to ensure the enforcement of the draft law and

text: Regulation (EU) 2015/751

text: . Any decision to impose an administrative sanction or to take other measures in the case of an infringement should be published by each competent authority on its website. The draft law further enables the competent authorities to determine the fees for the performance of their duties and to issue any relevant directives and guidelines. 1.5 As far as cooperation between the two authorities is concerned, notwithstanding the more detailed provisions as regards enforcement of Articles

text: and

text: of Regulation (EU) 2015/751 as described in paragraph 1.2 above, the draft law provides that the competent authorities will enter into a memorandum of cooperation and will take all necessary measures to regulate cooperation between them. The draft law also grants the competent authorities the right to exchange information with each other for the purposes of the draft law. 1.6 Finally, the draft law limits the liability of the competent authorities and their employees, including, in addition to the CBC, the Governor of the CBC, the board of directors of the CBC and any person who is an advisor or officer of the CBC, in relation to an action, application or other legal proceedings for damages for any act or omission that took place during the performance of their duties and the exercise of their powers pursuant to the draft law and/or

text: Regulation (EU) 2015/751

text: , except where the act or omission was not committed in good faith or was the result of gross negligence.

text: 2. General observations

text: 2.1 In this opinion, the ECB will only assess those provisions of the draft law that may impact on the role and tasks of the CBC as a national central bank (NCB), national supervisory authority, member of the Eurosystem and the European System of Central Banks (ESCB). Consequently, this opinion will not address the question of whether the draft law, if adopted as proposed, would represent an effective means of implementing

text: Regulation (EU) 2015/751

text: in Cyprus.

text: 2.2 The ECB understands that the draft law does not intend to confer competition-related tasks on the CBC as these tasks are intended to be conferred on the Competition Commission. The ECB welcomes this, and invites the Ministry of Finance, for the avoidance of doubt, to make it explicitly clear that the CBC has not been conferred competition-related tasks under the draft law.

text: 3. New tasks of the CBC

text: 3.1 The draft law expands the current supervisory functions of the CBC, by granting it the responsibility of supervising interchange fees in respect of payment service providers and payment card schemes and other technical and business requirements relating to card-based payment transactions. It should be noted that the CBC is already the competent authority for supervising payment service providers pursuant to Law 128(I)/2009 on payment services . It should also be noted that the CBC has been granted responsibility for tasks related to consumer protection, as it has been designated as the competent authority responsible for the application and enforcement of the rules implementing Directive

text: , and as one of the competent authorities, together with the Consumer Protection Service of the Republic of Cyprus, responsible for the application and enforcement of the rules implementing Directive

text: . However, the tasks attributed to the CBC under the draft law appear to go beyond the scope of its current tasks. Thus, the conferral upon the CBC under the draft law of the power to monitor and ensure compliance of payment service providers, payment card schemes and payees with their obligations under

text: Regulation (EU) 2015/751

text: , and to impose administrative sanctions in cases of infringement, are considered to be new tasks of the CBC. 3.2 The ECB underlines that a proposed conferral of tasks on an NCB in the 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’, inter alia, as ‘any financing of the public sector’s obligations vis-à-vis third parties’. 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

text: 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. 3.3 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 a public sector’s obligation 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. 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 also 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

text: personal independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the Statute of the ESCB. 3.4 On the basis of the criteria set out above, the following paragraphs assess whether the new tasks of the CBC are in line with the monetary financing prohibition. 3.4.1 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 conferred on the CBC in relation to ensuring enforcement of interchange fee caps between the issuing and the acquiring banks of card-based payment instruments as well as compliance with the requirements of

text: Regulation (EU) 2015/751

text: by payment service providers, card payment schemes and payees, are not among the central banking tasks listed in

text: Article 127(2)

text: and (5) of the Treaty, or otherwise conferred upon the NCBs by the Statute of the ESCB. Furthermore, these tasks appear to go beyond the scope of the CBC’s existing tasks as supervisory authority of payment service providers. At the same time, the new tasks, notwithstanding their consumer protection dimension, are similar to CBC’s existing tasks and appear to complement them given that the CBC is already responsible for authorising, supervising and withdrawing the authorisation of payment institutions providing payment services , with the ultimate objective of safeguarding the smooth and efficient functioning of the payment systems. In this sense, CBC’s new tasks can be regarded as related to the task conferred upon the ESCB in the fourth indent of Article 127(2) of the Treaty, as well as in the fourth indent of Article 3.1 of the Statute, based on the understanding that these tasks are ancillary to the promotion of the smooth operation of payment systems . In addition, the consumer protection objectives of

text: Regulation (EU) 2015/751

text: are closely interrelated with the objective of safeguarding the smooth functioning of payment systems. Taking this into account, the tasks to be conferred on the CBC can be seen as ultimately reinforcing the smooth operation of payment systems. 3.4.2 Tasks which are atypical of NCB tasks

text: Regulation (EU) 2015/751

text: grants Member States a wide discretionary power in determining the competent authorities which are responsible for monitoring compliance with its provisions, provided that the designated authorities have adequate resources for the performance of the duties assigned to them. A number of Member States have already designated their NCBs as the sole competent authorities to ensure compliance with the provisions of

text: Regulation (EU) 2015/751

text: , while

text: many other Member States have allocated these tasks between their NCBs and other public authorities with competences in the fields of competition and/or consumer protection. There are also Member States that have not assigned any of these tasks to their NCBs. As the majority of the Member States have allocated at least some of the tasks relating to the application of

text: Regulation (EU) 2015/751

text: to their NCBs, the new tasks conferred upon the CBC would thus not be regarded as atypical of NCB tasks. In addition, the ECB has consistently expressed the view that consumer protection tasks discharged by an NCB (and, in particular, by the CBC) may be regarded as central banking tasks provided that such tasks do not interfere with the performance of the NCB’s ESCB-related tasks, and to the extent that those tasks complement existing supervisory powers and thus contribute to the soundness of the financial market and the preservation of confidence in the marketplace . It therefore follows that the new tasks which are conferred upon the CBC by the draft law cannot be regarded as atypical of an NCB, nor as being discharged in the exclusive interest of the government. 3.4.3 Extent to which performance of the new task creates conflicts of interest with existing central bank

text: tasks

text: The new task conferred upon the CBC by the draft law does not appear to create any conflicts of interest with other central bank tasks performed by the CBC. 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 . 3.4.4 Extent to which performance of the new task is disproportionate to the financial or organisational

text: capacity of the CBC

text: The principle of financial independence requires that Member States do not put their NCBs in a position where they have insufficient financial resources to carry out their national and their ESCBrelated tasks, both from an operational and financial perspective. Furthermore, each NCB concerned should have additional financial and human resources at its disposal to ensure that the new tasks can be carried without impacting on the NCBs’ operational or financial capacity to perform its ESCB-related tasks . It is noted that the draft law provides that each competent authority may set reasonable cost-oriented fees for the performance of its duties pursuant to the draft law and/or the

text: Regulation (EU) 2015/751

text: and demand payment of such fees by the

text: supervised entities . Each competent authority is also entitled to issue directives on the determination and payment of these fees . The ECB notes that the CBC must be in a position to avail itself of the necessary resources, including personnel, in view of the need to ensure that it has the capacity to perform its ESCB-related tasks and that existing supervisory functions are not affected by these new tasks . 3.4.5 Extent to which performance of the new task fits into the institutional set-up of the CBC, in the light of central bank independence and accountability considerations Given the complementarity of the new tasks with the CBC’s existing functions, in particular in the field of supervision of payment institutions and other payment service providers, the performance of the new tasks does not appear to be problematic as regards the institutional set-up of the CBC or raise accountability or personal and institutional independence concerns. 3.4.6 Extent to which the performance of tasks harbours substantial financial risks The draft law provides that the CBC, the Governor of the CBC, the board of directors of the CBC and any person who is an advisor or officer of the CBC, will not be liable in the event of an action, application or other legal proceedings for damages in relation to any act or omission that took place during the performance of their duties and the exercise of their powers and responsibilities pursuant to the draft law and/or

text: Regulation (EU) 2015/751

text: , except where the act or omission was not committed in good faith or was the result of gross negligence . The performance of the new tasks would not, therefore, appear to harbour undue financial risks for the CBC. 3.4.7 Extent to which performance of the new task exposes members of the decision-making bodies of the CBC to disproportionate political risks and impacts on their personal independence The performance of the new tasks conferred under the draft law does not appear to expose the decision-making bodies of the CBC to any disproportionate political risk or to impact their personal independence. 3.4.8 Conclusion The new tasks conferred upon the CBC can be regarded as central banking tasks based on the understanding that they are complementary to the CBC’s existing tasks in the area of supervision of payment service providers and, ultimately, ancillary to the task of promoting the smooth operation of payment systems. This understanding is supported by the fact that the consumer protection objectives of

text: Regulation (EU) 2015/751

text: are closely interrelated with the objective of promoting the smooth operation of payment systems. It is, however, important that the CBC can avail itself of the necessary resources for the performance of its new tasks, so that the CBC’s

text: capacity to perform its ESCB-related tasks and existing supervisory functions is not affected. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 14 February 2018. [signed]

text: The President of the ECB

text: Mario DRAGHI