text: In particular, BNB has reconsulted the ECB on certain provisions of the draft law which were not included in the original draft on which the ECB issued Opinion

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

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: Opinion

text: Regulation (EU) 2016/1011

text: of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives

text: and

text: and

text: Regulation (EU) No 596/2014

text: (OJ L 171, 29.6.2016, p. 1).

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).

text: Directive

text: of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing

text: Council Directive 87/102/EEC

text: (OJ L 133, 22.5.2008, p. 66).

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: Published in Darjaven Vestnik No 46, 10 June 1997.

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: On the basis of a contractual agreement between BNB, the Association of Banks in Bulgaria and the ACI Bulgaria- BDA.

text: In accordance with the Methodology for calculation of the LEONIA Plus reference rate, adopted by the Governing Council of BNB.

text: In accordance with Article 35 of the Law on Българска народна банка (Bulgarian National Bank).

text: See Opinion

text: and the European Commission’s public consultation on the regulation of indices – Eurosystem’s response, November 2012.

text: See press release, ‘ECB to publish new unsecured overnight interest rate’, 21 September 2017, available on the ECB’s website at www.ecb.europa.eu.

text: Article 192

text: a(1)(j) of Law No 256/2004 Coll. on capital market undertakings designates Česká národní banka as the competent authority for the purposes of

text: Regulation (EU) 2016/1011

text: effective as of 3 January 2018.

text: Article 2

text: , n.º 1, al. b of Regulatory Decree No 8/2017 designates the Banco de Portugal as competent national authority for the supervision of the use of benchmark indices in financial contracts entered into by entities subject to its supervision.

text: Article 132

text: s of the Law on securities and investment services designates Národná banka Slovenska as the competent authority for implementing authorisations in relation to authorisations in respect of the indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds.

title: Opinion of the European Central Bank of 29 November 2017 on benchmarks in financial instruments and financial contracts (CON/2017/52)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 29 November 2017 on benchmarks in financial instruments and financial contracts (

text: ) Introduction and legal basis

text: On 6 October 2017 the European Central Bank (ECB) received a request from Българска народна банка (Bulgarian National Bank) (BNB), following correspondence exchanged between BNB and the Minister of Finance, for an opinion on a draft law on payment services and payment systems (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 BNB. 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: One of the aims of the draft law that the ECB’s previous opinion on the draft law did not address is the implementation in Bulgaria of some elements of

text: Regulation (EU) 2016/1011

text: of the European Parliament and of the Council . In particular, BNB will be designated as the competent authority responsible for carrying out the duties specified under

text: Regulation (EU) 2016/1011

text: in relation to administrators of interest rate benchmarks and the relevant supervised entities, which are credit institutions within the meaning of

text: Regulation (EU) No 575/2013

text: of the European Parliament and of the Council , creditors within the meaning of Directive

text: of the European Parliament and of the Council , and non-credit institutions within the meaning of Directive

text: BNB will therefore have the supervisory powers set out in

text: Article 41 of Regulation (EU) 2016/1011

text: , as well as the power to impose administrative sanctions and other administrative measures in relation to infringements, in accordance with

text: Article 42

text: thereof. The draft law also amends the Law on Българска народна банка (Bulgarian National Bank) in order to ensure that the Governing Council of BNB is competent to adopt the related decisions.

text: 2. General observations

text: 2.1 The draft law confers upon BNB the new task of supervising compliance of administrators of interest rate benchmarks and the relevant supervised entities with

text: Regulation (EU) 2016/1011

text: . Where a new task is conferred on a national central bank (NCB) in the European System of Central Banks (ESCB) it must be assessed against the prohibition on monetary financing under Article 123 of the Treaty. For the purposes of that prohibition,

text: Article 1(1)

text: (b)(ii) of

text: Council Regulation (EC) No 3603/93

text: defines ‘other type of credit facility’ as, inter alia, ‘any financing of the public sector’s obligations vis-à-vis third parties’. 2.2 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 . In view of this, the task of financing measures, which are normally the responsibility of the Member States and funded 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 no circumventions of the objective of the monetary financing prohibition of maintaining a sound budgetary policy of Member States take place. 2.3 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’), and in order 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.

text: Second, as Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘other functions’, new tasks, i.e. tasks that are not related to tasks that have been conferred upon the ECB and the NCBs, are not precluded per se. However, new tasks that are undertaken by an NCB and which are atypical of NCB tasks or which are clearly discharged on behalf of, and in the exclusive interest of the government or of other public sector entities, should be considered government tasks. Third, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly 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 also be examined in relation to the financing of those tasks; (b) whether without new financial resources the performance of the new task is disproportionate to the NCB’s financial or organisational capacity, and may have a negative impact on the capacity to perform properly the existing central bank tasks; (c) whether the performance of the new task fits into the institutional set-up of the NCB in the light of central bank independence and accountability considerations; (d) whether the performance of the new task harbours substantial financial risks; (e) whether the performance of the new task exposes the members of the NCB decision-making bodies to political risks which are disproportionate and may also have an impact on their personal independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the Statute of the ESCB.

text: 3. Specific observations

text: Currently BNB carries out activities related to the calculation and publication of interest rate benchmarks, 11 12 namely the SOFIBID and SOFIBOR reference rates , the LEONIA Plus reference rate , as well as the base interest rate in Bulgaria . While BNB administers these benchmarks, it has no dedicated supervisory function with regard to them. The draft law therefore confers upon BNB а new task. On the basis of the criteria set out in paragraph 2.3, the following paragraphs assess whether BNB’s new task is in line with the monetary financing prohibition.

text: 3.1 New tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the

text: Statute of the ESCB

text: The supervision of compliance of administrators of interest rate benchmarks and the relevant supervised entities with

text: Regulation (EU) 2016/1011

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 BNB relates to overseeing compliance with Union law requirements by credit institutions (among others), it does not form part of BNB’s prudential supervisory tasks. It follows that the new task conferred on BNB 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 BNB is required in order to determine whether it constitutes a government task, and whether the related funding gives rise to monetary financing concerns. 3.2 Tasks which are atypical of NCB tasks Designation as a competent authority responsible for carrying out the duties under

text: Regulation (EU) 2016/1011

text: in relation to administrators of interest rate benchmarks and the relevant supervised entities is a new task for national authorities in the Union. In this regard, central banks have a particular interest in interest rate benchmarks which are of importance for the monetary policy transmission and financial stability . In fact, the ECB itself is also planning the compilation and publication of a new unsecured overnight interest rate benchmark . While the majority of Member States have designated national capital markets supervisors for this task, the ECB has identified a number of Member States, including the Czech Republic , 17 18 Portugal and Slovakia , where NCBs have been conferred at least part of the tasks under

text: Regulation (EU) 2016/1011

text: . The new task conferred on BNB by the draft law does not, therefore, appear to be atypical for an NCB of the ESCB. 3.3 Impact of the tasks on the independence of BNB The potential impact of the new task on the institutional, financial and personal independence of BNB must also be taken into consideration. 3.3.1 Extent to which the performance of the new task creates conflicts of interest with existing central

text: bank tasks

text: As noted above, BNB is already performing activities related to the calculation and publication of interest rate benchmarks and is consequently administering these benchmarks. Central banks are not subject to

text: Regulation (EU) 2016/1011

text: , as they already meet principles, standards and procedures that ensure that they carry out their activities with integrity and in an independent manner . To the extent that BNB has been conferred the tasks of supervising administrators of interest rate benchmarks, potential conflicts of interest may arise and therefore, sufficient safeguards to mitigate such conflicts should be put in place. 3.3.2 Extent to which the performance of the new task places a disproportionate burden on BNB’s

text: financial or organisational capacity

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 impacting on the NCB’s financial or operational capacity to perform its ESCB tasks. In order to ensure that BNB’s capacity to perform its ESCB-related tasks is not impacted, BNB must, therefore, be in a position to avail itself of the necessary resources, including personnel, to carry out supervision under the draft law. 3.3.3 Extent to which performance of the new task fits into BNB’s institutional set-up, in the light of the

text: principles of central bank independence and accountability

text: The performance of the new tasks does not appear to be problematic from the perspective of BNB’s institutional set-up or to raise accountability or personal and institutional independence concerns. 3.3.4 Extent to which the performance of tasks harbours substantial financial risks The draft law does not directly address BNB’s potential liability in the event of any legal action, application or other legal proceedings for damages in relation to the exercise of its powers under the draft law or the failure to exercise such powers. In the absence of any provision in the draft law excluding BNB’s liability in performing the tasks under the draft law, BNB would ultimately be liable for damages in accordance with the general liability regime under Bulgarian law. Therefore, the new task conferred on BNB under the draft law would entail additional financial risks. 3.3.5 Extent to which the performance of the new task exposes members of BNB’s decision-making bodies to disproportionate political risks and has an impact on their personal independence The performance of the new task does not appear to expose the members of BNB’s decisionmaking bodies to any disproportionate political risk or to have an impact on their personal independence. 3.4 Conclusion regarding the compatibility of the draft law with the prohibition on monetary financing The task of carrying out the duties under

text: Regulation (EU) 2016/1011

text: in relation to administrators of interest rate benchmarks and the relevant supervised entities is not among the central banking tasks listed in the Treaty. The new task conferred on BNB could be regarded as complementing

text: BNB’s monetary policy and financial stability tasks. Furthermore, this task might be seen as a legitimate task to confer on BNB given that it does not appear to be atypical for NCBs in the ESCB. However, there is uncertainty as regards the size of the additional financial burden imposed on BNB in undertaking this task. The ECB therefore recommends that the consulting authority takes this concern into account when conferring upon BNB the new task of carrying out the duties under

text: Regulation (EU) 2016/1011

text: in relation to administrators of interest rate benchmarks and the relevant supervised entities.

text: Done at Frankfurt am Main, 29 November 2017.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 1 December 2017 on conferring upon Lietuvos bankas the function of a fiscal agency of the International Monetary Fund (CON/2017/53)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 1 December 2017 on conferring upon Lietuvos bankas the function of a fiscal agency of the International Monetary Fund (

text: ) Introduction and legal basis

type: rubrik

text: On 20 November 2017 the European Central Bank (ECB) received a request from Lietuvos bankas, following correspondence with the Ministry of Finance, for an opinion on a draft law on Lithuania’s membership of the International Monetary Fund (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 relates to Lietuvos bankas. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

type: stycke

text: 1. Purpose of the draft law

text: 1.1 The purpose of the draft law is to establish the principles and procedures for the fulfilment of the obligations related to Lithuania’s membership of the International Monetary Fund (IMF). 1.2 The draft law provides that the Lithuanian Parliament shall decide on the change of the amount of Lithuania’s quota in the IMF. 1.3 The draft law further provides as follows: (a) according to Article V(1) of the Articles of Agreement of the International Monetary Fund (hereinafter the ‘IMF Articles of Agreement’), Lietuvos bankas is a fiscal agency of the IMF that executes the IMF’s financial operations on behalf of Lithuania, and Lietuvos bankas uses its financial assets to execute these financial operations; (b) in accordance with Article XIII(2)(a) of the IMF Articles of Agreement, Lietuvos bankas is the depository of the IMF; (c) the special drawing rights (SDRs) allocated to Lithuania by the IMF are part of the official foreign reserves of Lietuvos bankas, which are managed, used and disposed of in accordance with the Law on Lietuvos bankas ; (d) Lietuvos bankas decides on participation in the IMF’s financial initiatives for which the financial assets of Lietuvos bankas are to be used; and (e) the Government of Lithuania decides on Lithuania’s participation in the IMF financial initiatives for which State budgetary funds are to be used.

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: 2 Lietuvos Respublikos Lietuvos bankos įstatymas, Nr. I-678, Valstybės žinios, 1994-12-23, Nr. 99-1957. 1.4 The draft law provides that Lithuania shall be represented in the Board of Governors of the IMF by the Chairman of the Board of Lietuvos bankas as Lithuania’s governor, with the Minister of Finance as the alternate governor. The draft law further provides that Lietuvos bankas and the Ministry of Finance shall cooperate in accordance with a mutually agreed procedure, coordinate Lithuania’s position and exchange information on all matters concerning its membership of the IMF. 1.5 Finally, the draft law provides that within 30 business days from the entry into force of the draft law Lietuvos bankas shall take over the rights and obligations relating to the performance of the functions of the fiscal agency of the IMF from the Ministry of Finance, and shall return to the State budget the amount paid by the Ministry of Finance for Lithuania’s quota at the IMF corresponding to the balance of the IMF accounts No 1 and No 2, presently held with Lietuvos bankas, at the date of entry into force of the draft law.

text: 2. New tasks of Lietuvos bankas

text: 2.1 While Lietuvos bankas already acts as the IMF’s depository , the draft law considerably expands its role in discharging Lithuania’s obligations under the IMF Articles of Agreement by conferring upon it a number of new IMF-related tasks. 2.2 The ECB underlines that a proposed conferral of tasks on a national central bank (NCB) in the European System of Central Banks (ESCB) must be assessed against the prohibition on monetary financing under Article 123 of the Treaty. For the purposes of that prohibition,

text: Article 1(1)

text: (b)(ii) of

text: Council Regulation (EC) No 3603/93

text: defines ‘other type of credit facility’, 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 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. 2.3 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

text: 3 See paragraph 2 of the Resolution No 264 of the Government of the Republic of Lithuania of 14 April 1992 on admission to the International Monetary Fund and the World Bank.

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: 5 Article 123 of the Treaty also serves the objective of maintaining price stability and reinforces central bank independence. 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 personal independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the Statute of the ESCB. 2.4 On the basis of the criteria set out above, the following paragraphs assess whether the new tasks of Lietuvos bankas are in line with the monetary financing prohibition. 2.4.1 Tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB The Treaties acknowledge the role that the NCBs and the ECB play vis-à-vis the IMF. The basic tasks to be carried out through the ESCB include holding and managing the official foreign reserves of the Member States . Under the Statute of the ESCB, the ECB and the NCBs may establish relations, where appropriate, with international organisations and conduct all types of banking transactions in their relations with such organisations, including borrowing and lending 7 8 operations . The ECB and the NCBs may act as fiscal agents for, inter alia, central governments . The NCBs are allowed to perform transactions in fulfilment of their obligations towards international organisations . The ECB may hold and manage IMF reserve positions and SDRs and provide for the pooling of such assets . Against this background, the new tasks to be conferred upon Lietuvos bankas are related to those conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. 2.4.2 Tasks which are atypical of NCB tasks The ECB notes that the NCBs in the Eurosystem and the ESCB play an important role in representing their respective countries in the IMF, within the framework of the country-based membership structure of the IMF. In accordance with Article V(1) of the IMF Articles of Agreement , each member country must designate the agencies through which it will deal with the IMF. In the majority of the euro area Member States the NCBs are designated as such agencies. Furthermore, the NCBs play an important role in representing their Member States in the decisionmaking bodies of the IMF. Governors of the individual NCBs of a majority of euro area Member States serve as that Member State’s governor on the IMF’s Board of Governors, while those of the remainder serve as an alternate governor on the IMF’s Board of Governors. Moreover, in several cases the governor of an NCB is an alternate member of the International Monetary and Financial Committee (IMFC). In addition, many NCBs are closely involved in the selection procedure for the election of the Executive Director representing their country in the IMF's Executive Board and the selection of the respective Alternate Executive Director(s) to be appointed by the elected Executive Director, and in some cases the NCBs make the selection. In this context, the new tasks conferred upon Lietuvos bankas by the draft law are not atypical of an NCB task. 2.4.3 Tasks clearly discharged on behalf of and in the exclusive interest of the government The membership structure of the IMF is country based. Article V(1) of the IMF Articles of Agreement states that each member shall deal with the Fund only through its treasury, central

text: 7 See the first and fourth indents of Article 23 of the Statute of the ESCB.

text: 8 See Article 21.2 of the Statute of the ESCB.

text: 9 See Article 31.1 of the Statute of the ESCB.

text: 10 See Article 30.5 of the Statute of the ESCB.

text: 11 See Section 1 of Article V of the IMF Articles of Agreement, which provides that each member country must deal with the Fund only through its Treasury, central bank, stabilisation fund or other similar agency, and that the Fund must deal only with or through the same agencies.

text: 12 This is currently the case in respect of Belgium, Estonia, Germany, Latvia, Lithuania, the Netherlands, Austria, Slovakia, Slovenia, Finland and Portugal. bank, stabilisation fund, or other similar fiscal agency, and the Fund shall deal only with or through the same agencies. To this end, the draft law designates Lietuvos bankas as a fiscal agency of the IMF, which shall carry out financial operations of the IMF on behalf of Lithuania. Therefore, the new tasks conferred on Lietuvos bankas may be considered as performed exclusively in Lithuania’s interests. 2.4.4 Extent to which performance of the new task creates conflicts of interest with existing central bank tasks The new tasks conferred upon Lietuvos bankas by the draft law do not create any conflicts of interest with the other central bank tasks that it performs, and indeed complement its existing task of managing, using and disposing of its official foreign reserves . 2.4.5 Extent to which performance of the new task is disproportionate to the financial or organisational capacity of Lietuvos bankas The principle of financial independence requires that the Member States may not put their NCBs in a position where they have insufficient financial resources to carry out both their ESCB-related tasks and their national tasks, from an operational and financial perspective. Lietuvos bankas will have to fulfil the financial obligations related to the IMF quota assigned to Lithuania. As provided under the draft law, Lietuvos bankas will use its own financial assets for carrying out the financial operations of the IMF on behalf of Lithuania . The ECB understands that the quota allocated to Lithuania by the IMF is 441,6 million SDRs (currently equivalent to about EUR 554 million ) while the financial assets managed by Lietuvos bankas amount to about EUR 14,5 billion . Such financing by Lietuvos bankas results in it having foreign claims that have all the characteristics of reserve assets. Furthermore, it is not expected that the performance of a fiscal agency task by Lietuvos bankas and its participation in the IMF’s financial operations will create disproportionate operational burdens for Lietuvos bankas. Taking this into account, the new tasks assigned to Lietuvos bankas are not disproportionate to its financial or organisational capacity. 2.4.6 Extent to which performance of the new task fits into the institutional set-up of Lietuvos bankas, in the light of central bank independence and accountability considerations The performance of the new tasks is not problematic from the perspective of the institutional set-up of Lietuvos bankas, and does not raise any accountability or personal and institutional independence concerns. Lietuvos bankas will decide on participation in financial initiatives of the IMF to be implemented using its financial assets and the Chairman of its Board will represent Lithuania in the Board of Governors of the IMF .

text: 15 Based on the information provided in the explanatory memorandum of the draft law.

text: 16 Based on the annual report of Lietuvos bankas of 2016.

text: 17 See Articles 6 and 7 of the draft law.

text: 18 See Article 8 of the draft law. 2.4.7 Extent to which the performance of tasks harbours substantial financial risks The explanatory memorandum of the draft law indicates that the conferral of the new tasks upon Lietuvos bankas will expose it to credit and foreign exchange risks . Given the basic task of NCBs to hold and manage the official foreign reserves of the Member States, Lietuvos bankas is well placed to manage these financial risks arising from its participation in IMF financial operations. 2.4.8 Extent to which performance of the new task exposes members of the decision-making bodies of Lietuvos bankas to disproportionate political risks and impacts on their personal independence The performance of the tasks conferred under the draft law does not expose the members of the decision-making bodies of Lietuvos bankas to disproportionate political risks or impact upon their personal independence. 2.4.9 Conclusion The ECB considers that the IMF-related tasks to be conferred upon Lietuvos bankas under the draft law are central banking tasks. These new tasks are related to the tasks conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB, and a majority of euro area NCBs perform such tasks. While these tasks, within the country-based system of the IMF, are performed exclusively in the interests of Lithuania, this does not create conflicts of interest with existing central bank tasks and is not disproportionate to the financial or organisational capacity of Lietuvos bankas. While the conferral of these new tasks will expose Lietuvos bankas to additional credit and foreign exchange risks, it is well placed to manage financial risks arising from participation in the IMF’s financial operations in view of its existing task of holding and managing its official foreign reserves. Furthermore, the new task fits into the institutional set-up of Lietuvos bankas, also in the light of central bank independence and accountability considerations, and does not expose the members of its decision-making bodies to disproportionate political risk or impact upon their personal independence.

text: 3. Return of funds paid by Ministry of Finance in respect of Lithuania’s IMF quota

text: 3.1 Lietuvos bankas shall be required within 30 business days from the entry into force of the draft law to return to the State budget the amount paid by the Ministry of Finance for Lithuania’s IMF quota, corresponding to the balance of the IMF accounts No 1 and No 2 held within Lietuvos bankas on the date of the entry of the draft law . The ECB notes that Lietuvos bankas, when making payments to the State budget, must comply with the monetary financing prohibition under Article 123 of the Treaty, which is subject to certain exemptions contained in Article 123(2) of the Treaty, Article 21.2 of the Statute of the ESCB and

text: Regulation (EC) No 3603/93

text: . In particular,

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

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

text: Recital 14

text: of

text: Regulation (EC) No 3603/93

text: clarifies the rationale behind this exemption by stating that it is appropriate to authorise the financing by the NCBs of obligations

text: 19 See page 2 of the explanatory memorandum to the draft law. falling upon the public sector vis-à-vis the IMF because such financing ‘results in foreign claims which have all the characteristics of reserve assets’. Therefore, the exemption in

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

text: must be interpreted in line with this rationale . 3.2 Reserve assets have been defined as those external assets that are readily available to and controlled by monetary authorities for meeting balance of payments financing needs, for interventions in exchange markets to affect the currency exchange rate, and for other related purposes, such as maintaining confidence in the currency and the economy, and serving as a basis for foreign borrowing . Under this definition reserve assets must be foreign currency assets and, other than gold bullion, must be claims on non-residents. In this respect, the payment by Lietuvos bankas to the State budget of the amount corresponding to the balance of the IMF accounts No 1 and No 2 will result in Lietuvos bankas taking over from the Ministry of Finance the foreign currency claims, denominated in SDR, against non-resident persons (the IMF) that have all the characteristics of reserve assets . 3.3 Based on the foregoing, the ECB considers that the transfer to the State budget by Lietuvos bankas of the amount of funds paid by the Ministry of Finance for Lithuania’s quota at the IMF, as referred to in paragraph 3.1, complies with

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

text: and does not infringe the monetary financing prohibition . This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 1 December 2017. [signed] The President of the ECB Mario DRAGHI

text: 21 Consistent with this interpretation, see Opinions

text: and

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

text: and

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

text: 22 See International Monetary Fund, Balance of Payments and International Investment Position Manual, 6 edn., 2009, pp. 111-18.

text: 23 Point 2.1(c) in the ‘Assets’ table in Annex IV to Guideline

text: (EU) 2016/2249

text: of the European Central Bank of 3 November 2016 on the legal framework for accounting and financial reporting in the European System of Central Banks (ECB/2016/34) (OJ L 347, 20.12.2016, p. 37) lists under ‘other claims’ any ‘general arrangements to borrow, loans under special borrowing arrangements, deposits made to trusts under the management of the IMF’ as ‘Receivables from the IMF’.

text: 24 See also Opinions

text: and

type: vagledning

utgivare: ecb


text: Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).

text: 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).

title: Opinion of the European Central Bank of 4 December 2017 on limiting the number of central credit unions (CON/2017/54)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 4 December 2017 on limiting the number of central credit unions (

text: ) Introduction and legal basis

text: On 12 October 2017 the European Central Bank (ECB) received a request from the Lithuanian Parliament for an opinion on a draft law amending the Law on central credit unions (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the sixth indent of

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

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

text: 1. Purpose of the draft law

text: 1.1 The draft law amends the Law on central credit unions by limiting the number of central credit unions to one. The aim of the draft law is to prevent regulatory arbitrage within, and the fragmentation of, the Lithuanian credit union system. 1.2 More particularly, central credit unions have regulatory and supervisory powers over credit unions, which are their members under the existing legislation. The authors of the draft law argue that the existence of several central credit unions may lead to a situation where they compete against each other, by easing their regulatory or supervisory requirements, with a view to gaining credit unions as members, and that this will result in a general lowering of regulatory and supervisory standards in the sector. The authors of the draft law consider that this may increase the likelihood of credit unions and central credit unions becoming bankrupt, and ultimately harm the stability of the entire sector.

text: 2. General observations

text: 2.1 The ECB notes that Lietuvos bankas is the supervisory authority for credit unions. Although they are exempted from Union prudential regulation pursuant to

text: Article 2(5)

text: (14) of Directive

text: of the European Parliament and of the Council , credit unions are required to follow, on an individual basis, the minimum prudential requirements established by Lietuvos bankas. Considering that central credit unions may only set additional requirements for affiliated credit unions that are compatible with legal acts and the mandatory instructions issued by Lietuvos bankas, the ECB takes the view that the risk of a potential ‘race to the bottom’ in respect of the regulatory and supervisory standards to be applied by central credit unions is immaterial. 2.2 In addition, the ECB considers that the existence of different central credit unions will possibly also have positive effects, as it would foster more efficient organisation of the credit union sector by not forcing credit unions with very different operating business models and policies to be members of the same central credit union. 2.3 The ECB further notes that credit unions have a very small market share in the national banking sector, accounting for approximately for 2 % of its total assets, so the risk that the credit union sector poses to the stability of financial institutions and markets in Lithuania is rather limited.

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

text: Done at Frankfurt am Main, 4 December 2017.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


text: COM (2017) 114 final. Åtgärderna i föreslaget till förordning ska ersätta de åtgärder som framgår av de tio rättsakter som ska upphävas, vilka framgår av skäl 36 i förslaget till förordning.

text: Rådets förordning

text: (EG) nr 2533/98

text: av den 23 november 1998 om Europeiska centralbankens insamling av statistiska uppgifter (EGT L 318, 27.11.1998, s. 8).

text: Review OF the requirements in the field OF General Economic Statistics, Europeiska centralbanken, 2004, finns på ECB:s webbplats www.ecb.europa.eu

text: Ekofinrådets slutsatser om EU-statistik, 2972:a mötet i Europeiska unionens råd (ekonomiska och finansiella frågor) i Bryssel den 10 november 2009, finns på www.consilium.europa.eu

text: av den 31 oktober 2016 om förbättrad statistik över fastighetssektorn (EUT C 31, 31.1.2017, s. 1).

text: Europeiska centralbankens riktlinje ECB/2011/23 av den 9 december 2011 om Europeiska centralbankens krav på statistikrapportering inom området extern statistik (EUT L 65, 3.3.2012, s. 1).

text: Europaparlamentets och rådets förordning (EU) nr 1092/2010 av den 24 november 2010

text: om makrotillsyn av det finansiella systemet på EU-nivå och om inrättande av en europeisk systemrisknämnd (EUT L 331, 15.12.2010, s. 1).

text: Europaparlamentets och rådets förordning (EU) nr 1176/2011 av den 16 november 2011

text: om förebyggande och korrigering av makroekonomiska obalanser (EUT L 306, 23.11.2011, s. 25).

text: Europaparlamentets och rådets förordning (EG) nr 184/2005 av den 12 januari 2005

text: om gemenskapsstatistik över betalningsbalansen, internationell handel med tjänster och utländska direktinvesteringar (EUT L 35, 8.2.2005, s. 23).

text: Rådets beslut

text: av den 13 november 2006 om upprättandet av en kommitté för valuta-, finans- och betalningsbalansstatistik (EUT L 332, 30.11.2006, s. 21).

text: Se punkt 4 i ECB:s yttrande

text: (EUT C 105, 11.4.2012, s. 1), punkt 8 i ECB:s yttrande

text: (EUT C 203, 9.7.2011, s. 3) och punkt 4 i ECB:s yttrande

text: (EUT C 159, 28.5.2011, s. 10).

sprak: sv

title: Europeiska centralbankens yttrande av den 2 januari 2018 om ett förslag till Europaparlamentets och rådets förordning om europeisk företagsstatistik, om ändring av förordning (EG) nr 184/2005 och om upphävande av tio rättsakter på området företagsstatistik (CON/2018/1)

text: Inledning och rättslig grund

text: Den 24 mars 2017 mottog Europeiska centralbanken (ECB) en begäran från Europeiska unionens råd om ett yttrande om ett förslag till Europaparlamentets och rådets förordning om europeisk företagsstatistik, om ändring av förordning

text: (EG) nr 184/2005

text: och om upphävande av tio rättsakter på området företagsstatistik (nedan kallat förslaget till förordning).

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

text: och

text: i fördraget om Europeiska unionens funktionssätt eftersom förslaget till förordning berör insamlandet av betalningsbalansstatistik, som är en uppgift för Europeiska centralbankssystemet (ECBS) i linje med

text: artikel 5 i stadgan

text: för Europeiska centralbankssystemet och Europeiska centralbanken (nedan kallad ECBS-stadgan) och

text: artikel 2 i rådets förordning (EG) nr 2533/98

text: , relevant för ECBS grundläggande uppgifter att utforma och genomföra penningpolitiken, genomföra valutatransaktioner samt inneha och förvalta medlemsstaternas officiella valutareserver i enlighet med

text: artikel 127.2

text: första, andra och tredje strecksatserna i fördraget. I enlighet med

text: artikel 17.5

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

text: 1. Allmänna kommentarer

text: 1.1 ECB välkomnar kommissionens målsättning att ytterligare öka konsistensen, kvaliteten och harmoniseringen på den europeiska företagsstatistiken, särskilt genom att tillhandahålla ändamålsenlig statistik som bidrar till att utforma och övervaka den EU-politik som påverkar företagen samtidigt som rapporteringsbördan för företagen begränsas till ett minimum.

text: 1.2 Bestämmelserna i förslaget avseende utestående uppgiftskrav är också mycket välkomna. ECB noterar även med tillfredsställelse de förslagna förbättringarna avseende tillgängligheten av information om tjänstesektorn i samband med kortfristig statistik, särskilt eftersom frekvensen på tillhandahållandet av sådana uppgifter kommer att öka från kvartalsvis till månadsvis. Denna förbättring återspeglar den ökade betydelsen som tjänsteindustrierna har – deras andel av Euroområdets bruttonationalprodukt överstiger nu två tredjedelar. Detta motsvarar även ECB:s behov, som framförts under de senaste åren, samt även Ekofinrådets slutsatser.

text: 1.3 ECB förslår att Europeiska systemrisknämndens rekommendation

text: om förbättrad statistik över fastighetssektorn, bör återspeglas i uppgifterna om byggsektorn och deras uppdelning. Man bör särskilt överväga att ta med uppgifterna om påbörjad och färdigställd nybyggnation samt vakansgrader i förslaget till förordning.

text: 1.4 Enligt

text: artikel 2 i förordning (EG) nr 2533/98

text: ska ECB, med hjälp av de nationella centralbankerna, bl.a. samla in statistiska uppgifter om betalningsbalansen och utlandsställningen, antingen från behöriga nationella myndigheter eller direkt från de ekonomiska aktörerna. ECB:s rapporteringskrav avseende statistik framgår av Europeiska centralbankens riktlinje ECB/2011/23.

text: 1.5 Statistik om betalningsbalansen och utlandsställningen är av avgörande betydelse för att utföra ECBS grundläggande uppgifter enligt fördraget som omfattar att utforma och genomföra unionens penningpolitik, att genomföra valutatransaktioner samt att inneha och förvalta medlemsstaternas officiella valutareserver. Statistiken används även för att bedöma externa sårbarheter och sammankopplingar inom ramen för det finansiella stabilitetsarbetet och används för indikatorerna i europeiska systemrisknämndens (ESRB) riskkontrolltavla i enlighet med ESRB:s uppgifter enligt

text: artikel 3 i Europaparlamentets och rådets förordning (EU) nr 1092/2010

text: samt resultattavlan för förfarandet vid makroekonomiska obalanser enligt

text: artikel 4 i Europaparlamentets och rådets förordning (EU) nr 1176/2011

text: . Statistik om betalningsbalansen och utlandsställningen utgör även en del av Internationella valutafondens (IMF) särskilda standard för utgivning av statistik (Special Data Dissemination Standard) och behövs för artikel IV-konsultationer som genomförs av euroområdet och euroområdets medlemsstater i enlighet med artikel IV i Internationella valutafondens stadgar.

text: 1.6 ECB noterar att vissa av de krav som ska tas med i förslaget till förordning, särskilt kvartalsstatistiken över den internationella handeln med tjänster, för närvarande definieras i tabell 2 i bilaga I till

text: och att identiska krav definieras i tabell 2 i bilaga II till riktlinje ECB/2011/23. För att uppnå en högkvalitativ europeisk statistik över betalningsbalansen och utlandsställningen är det viktigt att konsistens upprätthålls mellan sådan statistik som tas fram av Europeiska statistiksystemet (ESS) och ECBS. Det är också av yttersta vikt att statistiken om betalningsbalansen och utlandsställningen fortsätter att vara konsekvent och heltäckande.

text: 1.7 Eftersom dessa krav delvis uppfylls på nationell nivå genom de nationella centralbankernas datainsamlingsinitiativ välkomnar ECB artikel 23 i förslaget till förordning och den roll som ges kommittén för valuta-, finans- och betalningsbalansstatistik som inrättats genom

text: rådets beslut 2006/856/EG

text: . Rent allmänt är det viktigt med ett nära samarbete mellan ECBS och ESS när man definierar, ändrar eller uppdaterar sådana krav samt andra krav avseende företagsstatistiken (t.ex. behovet att uppgifter om globalisering) som direkt eller indirekt påverkar sammanställningen av statistik om betalningsbalansen och utlandsställningen.

text: 1.8 Genomförandebefogenheter för att exakt definiera uppgiftskraven Enligt artikel 7 i förslaget till förordning ges kommissionen befogenhet att anta genomförandeakter med avseende på att närmare ange vissa element i de uppgifter som ska överföras. Dessa inkluderar fundamentala metodologiska aspekter, t.ex. definitionen av relevanta statistiska enheter och andra tillämpliga statistiska klassificeringar. I detta sammanhang är det viktigt för både dem som använder och sammanställer statistiken att man säkerställer att ITS-kraven som definieras i förslaget till förordning och de som definieras i förordning

text: (EG) nr 184/2005

text: är koherenta. ECB vill därför understryka vikten av att de två uppsättningarna med uppgifter bygger på samma metoder och är koherenta.

text: 1.9 ECB vill avslutningsvis understryka vikten av att ECB, i enlighet med

text: artiklarna 127.4

text: första strecksatsen och 282.5 i fördraget om Europeiska unionens funktionssätt, i god tid bör höras om alla delegerade akter eller genomförandeakter som faller inom ECB:s behörighetsområde.

text: 2. Tekniska kommentarer samt förslag

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


text: Council Decision 98/415/EC of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).

text: Directive

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

text: and Directive

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

text: Commission Delegated

text: Directive (EU) 2017/593 of 7 April 2016

text: supplementing Directive

text: of the European Parliament and of the Council with regard to safeguarding of financial instruments and funds belonging to clients, product governance obligations and the rules applicable to the provision or reception of fees, commissions or any monetary or non-monetary benefits (OJ L 87, 31.3.2017, p. 500).

text: Νόμος υπ’ αριθμ. 4261 «Πρόσβαση στη δραστηριότητα των πιστωτικών ιδρυμάτων και προληπτική εποπτεία πιστωτικών ιδρυμάτων και επιχειρήσεων επενδύσεων (ενσωμάτωση της Οδηγίας 2013/36/ΕΕ), κατάργηση του ν. 3601/2007 και άλλες διατάξεις», ΦΕΚ Α 107/05.05.2014.

text: 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).

text: Regulation (EU) No 600/2014

text: Regulation (EU) No 648/2012

text: (OJ L 173 12.6.2014, p. 84).

text: Νόμος υπ’ αριθμ. 3606 «Αγορές χρηματοπιστωτικών μέσων και άλλες διατάξεις», ΦΕΚ Α 195/17.08.2007. 11 Directive

text: of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives

text: and

text: and Directive

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

text: Council Directive 93/22/EEC

text: (OJ L 145, 30.4.2004, p. 1). 12 See Article 59 of Law No 3606/2007. 13 See Article 60 of Law No 3606/2007. 14 See Article 61 of Law No 3606/2007. 15 See Article 14 of Law No 3606/2007.

text: Kοινή απόφαση της Εκτελεστικής Επιτροπής της Τράπεζας της Ελλάδος και της Επιτροπής Κεφαλαιαγοράς Πιστοποίηση επαγγελματικής επάρκειας υπαλλήλων και στελεχών πιστωτικών ιδρυμάτων αναφορικά με την παροχή επενδυτικών υπηρεσιών (ΦΕΚ Β/1168/16.06.2009). 17 Kοινή απόφαση της Τράπεζας της Ελλάδος και της Επιτροπής Κεφαλαιαγοράς υπ’ αριθ. 4/505/3.4.2009 «Πιστοποίηση καταλληλότητας προσώπων απασχολουμένων σε πιστωτικά ιδρύματα που παρέχουν υπηρεσίες σύμφωνα με το άρθρο 14 του ν.3606/2007» (ΦΕΚ Β/2452/13.11.2015). 18

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

text: See

text: Article 55

text: A of the Statute of the Bank of Greece. 21 See paragraph 2.2 of Opinion

text: and paragraph 4 of Opinion

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

text: See

text: Articles 4(1)

text: (26) and 67 of Directive EU/2014/65 and

text: Article 2(1)

text: (18) of

text: Regulation (EU) No 600/2014

text: . 23 The Czech Republic, Hungary, Ireland, Lithuania and Slovakia. 24 See ‘List of competent authorities to carry out the duties provided for by the Directive

text: on Markets in Financial Instruments (MiFID I) as required by Article 48(1) of MiFID I and delegation of part of those duties under Article 48(2) of MiFID’ (last update 3 February 2016), published by the European Securities and Markets Authority, available at www.esma.europa.eu.

text: See paragraph 4.7 of Opinion

text: See paragraph 3.4 of Opinion

text: . 27 See paragraph 3.2 of Opinion

text: See paragraphs 3.3.2 and 3.4 of Opinion

title: Opinion of the European Central Bank of 9 January 2018 on markets in financial instruments (CON/2018/2)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 9 January 2018 on markets in financial instruments (

text: ) Introduction and legal basis

text: On 3 November 2017 the European Central Bank (ECB) received a request from the Greek Ministry of Finance for an opinion on a draft law on markets in financial instruments (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 relates to the Bank of Greece. 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 implement Directive

text: of the European Parliament and of the Council in Greek law. To this end, the draft law also takes into account Commission Delegated

text: Directive (EU) 2017/593

text: . 1.2 The draft law designates the Bank of Greece as one of the competent authorities responsible for carrying out certain duties provided for in Directive

text: with respect to credit institutions that provide investment and ancillary services or perform investment activities. The draft law designates the Hellenic Capital Markets Commission as the competent authority responsible for carrying out all other duties provided for under Directive

text: with respect to both investment firms and credit institutions that provide investment and ancillary services or perform investment activities. 1.3 Under the draft law, the Bank of Greece is responsible for supervising the enforcement of the requirements listed in Article 67 of the draft law, which include: (a) governance arrangements ensuring effectiveness and prudent management; (b) obligations relating to membership of an authorised investor compensation scheme; (c) organisational requirements ensuring adequate policies and procedures; (d) obligations relating to the appointment of tied agents; (e) obligations

text: relating to the provision of investment services in Member States other than the home Member State; (f) obligations relating to the provision of investment services through the establishment of a branch in a Member State other than the home Member State; and (g) obligations relating to the provision of investment services by credit institutions established in third countries. 1.4 As the competent authority, powers to grant and withdraw authorisations have been conferred on the Bank of Greece. These powers are in addition to those granted under Law No 4261/2014 on access to the activity of credit institutions and prudential supervision of credit institutions and investment firms , which implements Directive EU/2013/36 of the European Parliament and of the Council , and the Bank of Greece’s supervisory powers. They include investigatory powers and powers to impose remedies and administrative sanctions that are necessary for the Bank of Greece to fulfil its competencies under the draft law, particularly in cases where there are indications of infringement. The Bank of Greece’s investigatory powers include the power to access documents, carry out on-site inspections, conduct investigations and suspend the marketing or sale of structured deposits by credit institutions when certain conditions are met. The Bank of Greece is also required to cooperate and exchange information with the Hellenic Capital Markets Commission, the European Securities and Markets Authority and with the competent authorities of third countries. 1.5 Furthermore, the draft law confers on the Bank of Greece intervention powers with respect to structured deposits issued by credit institutions. Pursuant to

text: Article 42 of Regulation (EU) No 600/2014

text: of the European Parliament and of the Council the draft law designates the Bank of Greece as the competent authority responsible for prohibiting or restricting the marketing, distribution or sale of structured deposits by credit institutions when certain conditions are met, and notably where risks relating to investor protection, the orderly functioning of financial markets or the stability of the financial system have been identified . Additionally, the draft law confers on the Bank of Greece the power to suspend the marketing or sale of structured deposits by credit institutions where (a) the credit institution has not developed or applied an effective product approval process or otherwise failed to comply with the organisational requirements set out in Article 16(3) of the draft law ; or (b) the conditions set out in Articles

text: or

text: of Regulation (EU) No 600/2014 are met . 1.6 The draft law also designates the Bank of Greece as the authority responsible for granting certificates to persons providing investment services or performing investment activities on behalf of credit institutions or insurance companies to confirm that they possess the required knowledge and competence. The Bank of Greece is accordingly assigned a number of tasks in relation to the

text: certification procedure which include assessing the eligibility of candidates and determining the relevant eligibility criteria, setting out the examination syllabus, conducting the examinations and renewing or withdrawing certification. 1.7 The provisions of the draft law concerning the Bank of Greece enter into force on 3 January 2018.

text: 2. General observations

text: 2.1 This opinion does not address whether the draft law effectively implements Directive

text: in Greek law. The ECB will only assess those provisions of the draft law that may impact on the role and tasks of the Bank of Greece as a central bank, national supervisory authority and member of the Eurosystem and the European System of Central Banks (ESCB). 2.2 The draft law amends the Bank of Greece’s existing tasks in respect of markets in financial instruments. The Bank of Greece is already the competent authority responsible for carrying out certain duties with regard to credit institutions that provide investment and ancillary services or perform investment activities pursuant to Law No 3606/2007 on markets for financial instruments (hereinafter ‘Law No 3606/2007’), which transposed Directive

text: of the European Parliament and of the Council into the Greek legal order. These duties are of a similar nature to those conferred upon the Bank of Greece by the draft law and include: (a) supervision of the enforcement of organisational requirements and requirements relating to the prevention and management of conflicts of interest, the membership of an authorised investor compensation scheme, the trading process and the finalisation of transactions in a multilateral trading facility and the appointment of tied agents ; (b) the duty to cooperate with the Hellenic Capital Markets Commission, as the competent authority for the supervision of investment firms ; and (c) the power to impose administrative sanctions for the violation of provisions falling within its supervisory competence . Thus, the conferral upon the Bank of Greece under the draft law of the power of authorisation and supervisory powers does not amount to a conferral of genuinely new tasks in the area of markets in financial instruments. The ECB notes that the Bank of Greece’s existing tasks under Law No 3606/2007 also include the certification of the financial knowledge of persons providing investment services or performing investment activities on behalf of credit institutions and that these tasks are specified in greater detail in the draft law. The draft law provides that the Bank of Greece is responsible for certifying the financial knowledge of persons providing investment services or performing investment activities on behalf of credit institutions or insurance companies and remains responsible for the renewal of a certificate, irrespective of the kind of company where the person seeking renewal of that certificate was last employed. The draft law also details the composition of the Examination

text: Committee responsible for conducting the relevant examinations and outlines the duties of its members. In addition, the draft law provides that the following are to be determined by a joint decision of the Bank of Greece and the Hellenic Capital Markets Commission: (a) requirements for participating in the examinations for those persons providing investment services on behalf of credit institutions or insurance companies; and (b) the conditions governing the renewal or withdrawal of certifications and the conditions for outsourcing the conduct of examinations to third parties. Thus, the draft law does not confer on the Bank of Greece genuinely new tasks in this field. The draft law does not specify the resources to be used by the Bank of Greece in performing its financial education tasks, as amended by the draft law, nor does it provide an estimate of the direct costs likely to be incurred in the process. At the same time, the draft law provides that a joint decision of the Bank of Greece and the Hellenic Capital Markets Commission will determine the requirements for participating in the certification examinations and set the fees of the three members of the Examination Committee, which will be borne by the budgets of the Bank of Greece and the Hellenic Capital Markets Commission. In this respect, the ECB notes that the existing financial education tasks of the Bank of Greece under Law No 3606/2007 are remunerated by means of a fee of EUR 100 per participant in the certification examinations. The payment of this fee forms part of the requirements for participating in the certification examinations and was established pursuant to a joint decision of the Bank of Greece and the Hellenic Capital Markets Commission adopted by 16 17 virtue of Law No 3606/2007 in 2009 and replaced in 2015 . The ECB understands that the remuneration of the financial education tasks of the Bank of Greece will continue to be governed by the existing joint decision of the Bank of Greece and the Hellenic Capital Markets Commission until a new joint decision is issued under the draft law. 2.3 As noted in paragraph 1.5 the draft law confers new tasks upon the Bank of Greece which are derived from its new product intervention powers relating to the marketing, distribution or sale of structured deposits by credit institutions. Where a new task is conferred on a national central bank (NCB) of the ESCB it must be assessed against the prohibition of monetary financing under Article 123 of the Treaty. For the purposes of that prohibition,

text: Article 1(1)

text: (b)(ii) of

text: Council Regulation (EC) No 3603/93

text: defines ‘other type of credit facility’ as, inter alia, ‘any financing of the public sector’s obligations vis-à-vis third parties’. 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 . In view of this, the task of financing measures, which are normally the responsibility of the Member States and funded 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

text: 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 also be examined in relation to the financing of those tasks; (b) whether without new financial resources the performance of the new task is disproportionate to the NCB’s financial or organisational capacity and may have a negative impact on the capacity to perform properly the existing central bank tasks; (c) whether the performance of the new task fits into the institutional set-up of the NCB in the light of central bank independence and accountability considerations; (d) whether the performance of the new task harbours substantial financial risks;

text: (e) whether the performance of the new task exposes the members of the NCB decision-making bodies to political risks which are disproportionate and may also have an impact on their personal independence and, in particular, on the guarantee of term of office set out in Article 14.2 of the Statute of the ESCB.

text: 3. Conferral of new tasks on the Bank of Greece

text: 3.1 On the basis of the criteria set out in paragraph 2.5, paragraphs 3.2 to 3.10 below assess whether the Bank of Greece’s new tasks deriving from its new product intervention powers are in line with the monetary financing prohibition. 3.2 New tasks related to the tasks conferred upon the ECB and the NCBs by the Treaty and the

text: Statute of the ESCB

text: Tasks deriving from the exercise of product intervention powers are not among the 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. In addition, the conferral on the Bank of Greece of product intervention tasks involving assessments relating to investor protection, the orderly functioning of financial markets and the stability of the financial system goes beyond the scope of its existing tasks both in its capacity as the national supervisory authority and macroprudential authority and as the competent authority in respect of credit institutions that provide investment and ancillary services pursuant to Law No 3606/2007. The objectives of the Bank of Greece’s prudential supervisory tasks are to enhance the stability and effectiveness of the credit system and of the financial sector in general, and in this context the Bank of Greece carries out macroprudential tasks with a view to strengthening the resilience of the financial system and decreasing the build-up of systemic risks . Furthermore, Law No 3606/2007 currently implements a supervisory model involving a functional division of responsibilities between the Bank of Greece and the Hellenic Capital Markets Commission with regard to supervision of the financial sector. This model is upheld by the draft law, which confers on the Bank of Greece certain duties with regard to credit institutions that provide investment and ancillary services or carry out investment activities. The remaining tasks are assigned to the Hellenic Capital Markets Commission and include, in particular, tasks concerning investor protection and the transparency and integrity of the market. The ECB has positively assessed this supervisory model in previous opinions , taking into consideration that it acknowledges the distinct character of the goals of financial stability and investor protection, while recognising the complementarity of these goals and the need for the authorities to which they are entrusted to pursue them consistently while acting in close cooperation with one another. In conclusion, although the new tasks conferred on the Bank of Greece relate to credit institutions, which are entities supervised by the Bank of Greece, they do not form part of either the Bank of Greece’s existing prudential supervisory tasks or macroprudential tasks. These new tasks include prohibiting or restricting the marketing, distribution or sale of structured deposits by credit institutions where the conditions set out in

text: are met and

text: suspending the marketing or sale of structured deposits by credit institutions where the credit institution has failed to comply with organisational requirements or where the conditions set out in Articles

text: or

text: of Regulation (EU) No 600/2014 are met. The assessment of credit institutions’ compliance with organisational requirements and the imposition of sanctions in case of infringement of these requirements is a task related to the Bank of Greece’s prudential supervisory tasks. However, the assessment of whether the conditions set out in Articles

text: and

text: of Regulation (EU) No 600/2014 are met requires expertise relating to investor protection, the orderly functioning of financial markets and the stability of the financial system, which do not fall within the exclusive competence of the Bank of Greece. Consequently, a careful assessment of the conferral of these tasks on the Bank of Greece is required in order to determine whether they constitute a government task and whether the related funding gives rise to monetary financing concerns. 3.3 Tasks which are atypical of NCB tasks Directive

text: and

text: Regulation (EU) No 600/2014

text: grant Member States wide discretion in determining the competent authority for the performance of the product intervention tasks which involve an assessment of whether the conditions set out in Articles

text: and

text: of Regulation (EU) No 600/2014 are met . The ECB considers that the new product intervention tasks involving assessments relating to investor protection, the orderly functioning of financial markets and the stability of the financial system conferred on the Bank of Greece correspond more closely to investor protection tasks than to the prudential supervisory and macroprudential tasks that are currently carried out by the Bank of Greece. It is therefore necessary to analyse whether investor protection tasks are typical tasks that are also undertaken by other NCBs of the ESCB. In this respect, the ECB notes that although the majority of NCBs of the ESCB have thus far not been assigned any tasks under Directive

text: , including investor protection tasks, there are five Member States in which the NCBs perform all tasks under Directive

text: , including investor protection tasks . Consequently, the new tasks conferred on the Bank of Greece are not atypical for an NCB of the ESCB. 3.4 Impact of the tasks on the independence of the Bank of Greece The impact of the new tasks on the institutional, financial and personal independence of the Bank of Greece must also be taken into account. 3.5 Extent to which the performance of the new task creates conflicts of interest with existing central

text: bank tasks

text: No apparent conflicts of interest with other existing central bank tasks arise from the Bank of Greece’s product intervention tasks. 3.6 Extent to which the performance of the new task places a disproportionate burden on the Bank of

text: Greece’s financial or organisational capacity

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 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 additional financial and human resources at its disposal to ensure that the tasks can be carried out without impacting on the NCB’s operational or financial capacity (including sufficient human resources) to perform its ESCB tasks. In order to ensure that the Bank of Greece’s capacity to perform its ESCB-related tasks is not impacted, the Bank of Greece must, therefore, be in a position to avail itself of the necessary resources, including personnel, for assessing whether the conditions set out in Articles

text: and

text: of Regulation (EU) No 600/2014 are met under the draft law . The draft law does not specify the resources to be used by the Bank of Greece in performing its new tasks, nor does it provide an estimate of the direct costs likely to be incurred in the process. Thus, it cannot be excluded that the new tasks will impact on the Bank of Greece’s regular budget. 3.7 Extent to which performance of the new task fits into the Bank of Greece’s institutional set-up, in the light of the principles of central bank independence and accountability Although the draft law deviates from the regime currently in force, under which investor protection tasks and tasks relating to the transparency and integrity of the market under Directive

text: are conducted by the Hellenic Capital Markets Commission, given the complementarity of the new product intervention tasks with the Bank of Greece’s existing prudential supervisory and macroprudential tasks, they appear to broadly fit into the Bank of Greece’s institutional set-up. 3.8 Extent to which the performance of tasks harbours substantial financial risks The draft law does not directly address the Bank of Greece’s potential liability in the event of any legal action, application or other legal proceedings for damages in relation to the exercise of, or failure to exercise, its product intervention powers under the draft law. In the absence of any provision in the draft law excluding the Bank of Greece’s liability in performing the new product intervention tasks under the draft law, the Bank of Greece could potentially be held liable for damages in accordance with the Greek liability rules applicable to the Bank of Greece. 3.9 Extent to which the performance of the new tasks exposes members of the Bank of Greece’s decision-making bodies to disproportionate political risks and has an impact on their personal

text: independence

text: The performance of the new product intervention tasks does not appear to expose the Bank of Greece’s decision-making bodies to any disproportionate political risk or to have an impact on their personal independence. The new task appears to be complementary to the Bank of Greece’s existing macroprudential and prudential supervisory tasks, which aim at enhancing the stability and effectiveness of the credit system and of the financial sector in general, strengthen the resilience of the financial system and decrease the build-up of systemic risks. 3.10 Conclusion regarding the compatibility of the draft law with the prohibition on monetary financing The new tasks relating to the assessment of whether the conditions set out in Articles

text: and

text: of Regulation (EU) No 600/2014 conferred on the Bank of Greece could in principle be regarded

text: as central banking tasks based on the understanding that they complement the prudential supervisory and macroprudential tasks currently performed by Bank of Greece and are not atypical for NCBs of the ESCB. However, it is noted that the assessment of whether the conditions set out in Articles

text: and

text: of Regulation (EU) No 600/2014 are met requires expertise in investor protection, the orderly functioning of financial markets and the stability of the financial system, none of which fall within the exclusive competence of the Bank of Greece. Furthermore, the assignment of these tasks to the Bank of Greece deviates from the regime currently in force, under which investor protection tasks and tasks relating to the transparency and integrity of the market under Directive

text: are conducted by the Hellenic Capital Markets Commission. Additionally, the conferral of new tasks is not accompanied by an estimate of the direct costs that the Bank of Greece is likely to incur in the performance of these tasks, thereby creating uncertainty with regard to the additional financial burden imposed on the Bank of Greece in undertaking these tasks. The ECB therefore recommends that the consulting authority take these considerations into account in its decision on whether to confer the new product intervention tasks on the Bank of Greece. In particular the consulting authority should consider whether the new product intervention tasks could rather be allocated to the Hellenic Capital Markets Commission or whether it would be appropriate to introduce a consultation procedure between the two competent authorities.

text: 4. The Bank of Greece’s existing tasks relating to the certification of financial knowledge

text: 4.1 Regarding the Bank of Greece’s tasks relating to the certification of the financial knowledge of persons providing investment services or performing investment activities on behalf of credit institutions or insurance companies, the ECB understands that under the draft law the certification of financial knowledge is a mandatory requirement for a large number of individuals employed by credit institutions providing investment services or performing investment activities. 4.2 The ECB was not consulted on Law No 3606/2007, pursuant to which these tasks were originally conferred upon the Bank of Greece. As previously noted by the ECB, the supervision of financial education is not among the central banking tasks listed in the Treaties . These tasks could be regarded as complementary to the prudential supervisory and macroprudential tasks currently performed by the Bank of Greece, in the light of its contribution to the objective of ensuring that individuals employed by credit institutions providing investment services or performing investment activities have adequate professional qualifications. Furthermore, they do not appear to be atypical for NCBs of the ESCB . However, ensuring the sound provision of specialised financial education forms part of the educational policies of the State. In this respect, these tasks would be administered at least in part on behalf of and in the interest of the government which requires taking into account the prohibition of monetary financing. Moreover, the draft law does not provide an estimate of the additional financial burden that is expected to be imposed on the Bank of Greece in undertaking these tasks or specify the resources to be used by the Bank of Greece in performing its new tasks, so as to ensure that these tasks can be carried out without impacting on

text: the Bank of Greece’s operational or financial capacity (including sufficient human resources) to perform its ESCB tasks . The ECB therefore recommends that the consulting authority take these considerations into account when reviewing the Bank of Greece’s existing tasks relating to the certification of financial knowledge by means of the draft law, having due regard to the fact that the Bank of Greece should be able to avail itself of sufficient resources for the performance of these tasks, including, in this context, being adequately remunerated for such tasks.

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

text: Done at Frankfurt am Main, 9 January 2018.

text: [signed]

text: The President of the ECB

text: Mario DRAGHI


title: Opinion of the European Central Bank of 11 January 2018 on markets in financial instruments (CON/2018/3)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 11 January 2018 on markets in financial instruments (

text: ) Introduction and legal basis

text: On 1 December 2017 the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance for an opinion on a draft Law on the financial instruments market (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the Functioning of the European Union and the third and sixth indents of

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

text: , as the draft law relates to Banka Slovenije 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 One of the purposes of the draft law, which recasts the currently applicable Law on the Financial 3 4 Instruments Market , is to transpose Directive

text: and Delegated

text: Directive (EU) 2017/593

text: supplementing Directive

text: into Slovenian law, and to implement and apply Regulation 6 7

text: (EU) No 600/2014

text: and

text: Regulation (EU) 2016/1011

text: , together with the related delegated acts of the Commission. 1.2 The Securities Market Agency (Agencija za trg vrednostnih papirjev) is the designated competent authority responsible for supervising compliance with

text: Regulation (EU) No 600/2014

text: and the acts

text: 1 Predlog zakona o trgu finančnih instrumentov (ZTFI-1).

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: 3 Zakon o trgu finančnih instrumentov (Official Gazette of the Republic of Slovenia, No 108/10 – official consolidated version, 78/11, 55/12, 105/12 – ZBan-1J, 63/13 – ZS-K, 30/16 and 9/17).

text: 4 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: 5 Commission Delegated

text: Directive (EU) 2017/593 of 7 April 2016

text: supplementing Directive

text: of the European Parliament and of the Council with regard to safeguarding of financial instruments and funds belonging to clients, product governance obligations and the rules applicable to the provision or reception of fees, commissions or any monetary or non-monetary benefits (OJ L 87, 31.3.2017, p. 500).

text: Regulation (EU) No 600/2014

text: Regulation (EU) No 648/2012

text: (OJ L 173, 12.6.2014, p. 84).

text: Regulation (EU) 2016/1011

text: of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives

text: and

text: and

text: Regulation (EU) No 596/2014

text: (OJ L 171, 29.6.2016, p. 1). transposing Directive

text: into Slovenian law , and the designated contact point pursuant to

text: Article 79(1) of Directive 2014/65/EU

text: . 1.3 Banka Slovenije also has a certain supervisory role in respect of the market in financial instruments, so far as concerns credit institutions. In particular, Banka Slovenije is responsible for granting and withdrawing licences to credit institutions established in Slovenia to provide investment services and activities . Furthermore, the draft law specifies its individual provisions, transposing Directive

text: and with regard to

text: Regulation (EU) No 600/2014

text: , that are to be applicable mutatis mutandis to credit institutions and special financial institutions providing investment services and activities. In applying those provisions, the references to investment firms shall, subject to certain exceptions, be read as references to credit institutions and special financial institutions and the references to the Securities Market Agency are to be read as references to Banka Slovenije . Accordingly, Banka Slovenije will be responsible inter alia for: (i) carrying out the duties of a competent authority of the home Member State regarding the intended use by Slovenian banks of tied agents established in Slovenia or another Member State ; (ii) carrying out the duties of the competent authority of the home Member State where Slovenian banks operating a multilateral trading facility (MTF) or an organised trading facility (OTF) intend to provide for remote access and the use thereof by persons established in another Member State ; (iii) checking compliance by credit institutions with their obligations where they act as participants in an organised market ; and (iv) issuing decisions to credit institutions with regard to misdemeanours in the event of breach of the provisions of the draft law, including breaches identified by the Securities Market Agency in supervisory proceedings . 1.4 However, the Securities Market Agency will be responsible for the supervision of credit institutions and special financial institutions and for issuing supervisory measures . The Securities Market Agency carries out this supervision in close cooperation with Banka Slovenije . The Securities Market Agency has the authority to conduct supervisory activities under the draft law, while the withdrawal of a licence and sanctioning for breaches of the draft law pursuant to a misdemeanour procedure remains under the authority of Banka Slovenije . 1.5 The Securities Market Agency is designated also as the competent authority under

text: Regulation (EU) 2016/1011

text: . 1.6 In addition to the transposition and implementation of the abovementioned Union legislation in Slovenian law, the draft law also revises the provisions of the Law on the Financial Instruments Market concerning the investor compensation scheme. Banka Slovenije currently has an administrative role in respect of the scheme and its tasks under the draft law have a similar scope . 1.7 The draft law provides that in the event of the insolvency of a member investment firm, including those which are credit institutions, the other member investment firms participating in the scheme guarantee, proportionately to their size in terms of number of clients, the repayment of the eligible claims of the insolvent firm’s investor clients up to EUR 22 000 per investor. On the basis of the list of eligible claims, as prepared by the insolvency administrator, reviewed by the Securities Market Agency and approved by the competent court, the Agency requests the member investment firms to pay the necessary amounts to a specified account to be opened at Banka Slovenije. Banka Slovenije transfers the funds that it receives from the member firms to the account of a bank appointed by Banka Slovenije to make individual payouts to investors of the insolvent firm. For the first six months after the paying-out begins, the funds at the appointed bank shall be deemed, in the relationship between the appointed bank and the investors of the insolvent firm, as an interest free deposit of the investors and the bank is entitled to charge a maintenance fee not higher than the amount determined by Banka Slovenije. Thereafter, the bank can apply its market interest rate and fees for the maintenance of the deposit. 1.8 Where Banka Slovenije finds that member firms have not timely or fully ensured payment of the necessary amounts into the account it holds, the draft law provides that Banka Slovenije shall notify the Securities Market Agency and the Ministry of Finance. The draft law further provides that the ensuing shortfall in the scheme is to be temporarily covered by the Republic of Slovenia. The State is to provide a short-term loan to Banka Slovenije, acting as an agent for member investment firms who have failed to pay the relevant amounts into the scheme. The loan agreement with the Republic of Slovenia is to be concluded by Banka Slovenije on behalf of the member investment firms. Members who have failed to pay the required amount into the scheme would have to pay their proportionate amount of the loan back to the State. Banka Slovenije is further empowered to recover the outstanding amounts from the members who have not timely or fully ensured the necessary funds and thereby caused the shortfall in the scheme, together with any interest and fees. Any reimbursements from the enforcement procedure are to be used for repaying the loan provided by the State, together with interest and fees. 1.9 Following the activation of the scheme, the investors’ guaranteed claims towards the insolvency estate are deemed to be transferred to the member investment firms. Any reimbursements from the insolvency estate are paid to Banka Slovenije for the benefit of the scheme members. Banka Slovenije transfers the reimbursements received to the members in proportion to their share in the scheme.

text: 2. General observations

text: 2.1 This opinion does not consider whether the draft law indeed transposes Directive

text: and Commission Delegated

text: Directive (EU) 2017/593

text: into Slovenian law, or implements and applies

text: 18 Chapter 14 of the draft law.

text: Regulation (EU) No 600/2014

text: Regulation (EU) 2016/1011

text: and further related delegated acts of the Commission. The ECB will only assess those provisions of the draft law that may impact on the role and tasks of Banka Slovenije as a central bank and member of the Eurosystem and the European System of Central Banks (ESCB). 2.2 It is noted that Banka Slovenije is already responsible for granting and withdrawing licences to credit institutions established in Slovenia to provide investment services and activities and for carrying out the abovementioned tasks and cooperating with the Securities Market Agency with regard to the supervision of compliance by investment firms, including credit institutions and special financial institutions, with the provisions governing markets in financial instruments . Therefore, the draft law does not alter Banka Slovenije’s existing role or confer genuinely new tasks on Banka Slovenije in respect of the market in financial instruments. 2.3 Furthermore, the draft law does not confer on Banka Slovenije any genuinely new tasks in the context of the operation of the investor compensation scheme as described in paragraphs 1.7 to 1.9.

text: 3. Specific observations

text: 3.1 As regards the tasks of Banka Slovenije, the ECB notes that from a legal certainty perspective it might be advisable to simplify the legislative drafting. The draft law contains numerous crossreferences, and provides for the mutatis mutandis application of certain articles of the draft law and other laws depending on the type of undertaking in question, including with regard to the description of the respective responsibilities of the Securities Market Agency and Banka Slovenije. In addition, it would be beneficial if the division of responsibilities between Banka Slovenije and the Securities Market Agency under the draft law was more clearly specified. 3.2 Concerning the investor compensation scheme, the ECB notes that the draft law aims to better and more precisely define the operation of the scheme, including how potential shortfalls in the scheme are to be covered. The ECB understands that the intention in this respect is to provide an explicit legal basis allowing and indeed requiring shortfalls to be financed by the Republic of Slovenia. The draft law establishes that it is the government of the Republic of Slovenia which has to finance potential shortfalls, thereby clarifying that Banka Slovenije does not finance them. While welcoming such clarification in the draft law, the ECB understands that any mismatch between the maturity of the short-term loan provided by the State to Banka Slovenije on behalf of the member investment firms who failed to ensure the provision of sufficient funds into the scheme and the timing of the recovery by Banka Slovenije of the outstanding funds from those members will be mitigated in such a way to ensure that Banka Slovenije does not bear any financial risks under the scheme. Any loss resulting from unsuccessful enforcement of amounts due from the individual members should be borne by the State.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 11 January 2018 [signed]

text: The President of the ECB

text: Mario DRAGHI