title: Opinion of the European Central Bank of 20 December 1999 at the request of the Luxembourg Ministry of Finance on a draft law amending the Decree of the Grand Duchy of Luxembourg, as amended on 10 November 1944, relating to exchange control (CON/99/22)

text: 1. On 30 November 1999 the European Central Bank (ECB) received a request from the Luxembourg Ministry of Finance for an ECB Opinion on a draft law amending the Decree of the Grand Duchy of Luxembourg, as amended on 10 November 1944, relating to exchange control.

text: 2. The ECB’s competence to deliver an opinion is based on Article 105 (4) of the Treaty establishing the European Community and Article 2 (1), in particular the third and fourth indents, of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions, as the draft law deals with the national central banks and the collection, compilation and distribution of balance of payments and international investment position (“position extérieure globale”) statistics. In accordance with

text: Article 17.5

text: 3. The ECB notes that the purpose of the draft law is to prepare the legal framework for the transfer of statistical powers in the area of balance of payments and international investment position statistics from the Institut belgo-luxembourgeois du change (IBLC) to the Banque centrale du Luxembourg (BCL) and the Service central de la statistique et des études économiques (STATEC) and to specify the division of responsibilities between the BCL and the STATEC, both of which will finally take effect on 1 January 2002. The draft law takes account of the situation created by the transition to Stage Three of Economic and Monetary Union and of the end of the monetary association between the Grand Duchy of Luxembourg and Belgium.

text: 4. The ECB welcomes the draft law. The proposed amendments are in line with

text: Article 4 of Council Regulation (EC) No. 2533/98 of 23 November 1998

text: concerning the collection of statistical information by the European Central Bank, which requires the Member States to organise themselves in the field of statistics and to co-operate fully with the European System of Central Banks (ESCB) in order to ensure the fulfilment of the obligations arising out of Article 5 of the Statute of the European System of Central Banks and of the European Central Bank. The proposed amendments are also fully in line with the spirit of the ECB Recommendation of 1 December 1998 on the statistical reporting requirements of the European Central Bank in the field of balance of payments and international investment position statistics, which, inter alia, requests the IBLC to establish with the BCL the appropriate modalities of statistical co-operation to ensure a permanent structure of data transmission aimed at fulfilling the statistical requirements of the ECB.

text: 5. In particular, the ECB welcomes the fact that the BCL, as part of the competences that it will share with the STATEC, will not only be fully involved in the compilation of all the balance of payments and international investment position statistics, but also in the setting-up of both the data collection system and the related methodology, concepts and definitions. In principle, compliance with the statistical requirements of the ECB is thus ensured. The ECB also welcomes the proposal to establish a common database on the balance of payments and the international investment position at the BCL and the fact that the BCL will have the right to use not only data collected by itself or by the STATEC, but also data which are collected by other competent national administrative bodies or public institutions.

text: 6. The ECB notes that the procedures for implementing the draft law, in particular in the area of the collection, verification and management of data, will be subject to an agreement between the BCL and the STATEC. The ECB is of the opinion that the agreement needs to provide for a legal mechanism which would allow any amendment to the existing internal statistical legal framework of the ESCB in the area of balance of payments and international investment position statistics automatically to become part of the agreement, insofar as this is deemed necessary, without the need for a new agreement between the BCL and the STATEC. At the same time, provision must be made to ensure that the agreement does not put the BCL in a position which makes it legally impossible for the BCL to comply with any future ECB Regulation in the area of balance of payments and international investment position statistics.

text: 7. The ECB welcomes the fact that the draft law empowers the BCL and the STATEC to start to implement the provisions of the draft law before the IBLC ceases to carry out its tasks, in order to make early preparation for the cessation of these activities.

text: 8. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 20 December 1999. The Vice President of the ECB [signed] C. Noyer


publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 10 February 2000 at the request of the Austrian Ministry of Finance on a draft Federal Act to amend the Banking Act (CON/00/01)

serie: con

text: 1. On 3 January 2000 the European Central Bank (ECB) received a request from the Austrian Ministry of Finance for an ECB Opinion on a draft Federal Act to amend the Banking Act.

type: stycke

text: 2. The ECB’s competence to deliver an opinion is based on Article 105 (4) of the Treaty establishing the European Community (hereinafter referred to as the “Treaty”) and on Article 2 (1), in particular the sixth indent, of

text: Council Decision (EC) No. 98/415 of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions, as the draft laws contains rules applicable to financial institutions that could materially influence the stability of financial institutions and markets. As the request for an opinion of the ECB was not restricted to this part of the draft law, the present opinion covers the whole draft legislative proposal. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the European Central Bank, this ECB Opinion has been adopted by the Governing Council of the ECB. This ECB Opinion is based on an unofficial English translation of the official Austrian proposal.

text: 3. The ECB notes that the draft law aims at implementing individual provisions of Directive

text: (CAD II) of the European Parliament and of the Council of 22 June 1998 amending

text: Council Directive 93/6/EEC

text: on the capital adequacy of investment firms and credit institutions (CAD), and of Directive

text: of the European Parliament and of the Council of 16 February 1998 amending Directive

text: for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit In addition, other nd provisions of the draft law arise from the need to implement

text: Article 4 (1)

text: 2 subparagraph of Directive

text: of the European Parliament and of the Council of 30 May 1994 on depositnd guarantee schemes and

text: Article 7 (1)

text: 2 subparagraph of Directive

text: of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes. Lastly, the draft law addresses the need for improved co-operation with the banking supervisory authorities of third countries.

text: 4. The ECB welcomes the implementation of the above mentioned provisions of Community law in Austria and has, apart from the statements below, no further comments on the draft law.

text: 5. The ECB welcomes the new provisions of the draft law (Articles

text: and

text: to 50) regarding cooperation and exchange of information between the Ministry of Finance, as Austria’s banking supervisory authority, and the competent supervisory authorities of third countries. In particular, the ECB notes that the main aim is to ensure an effective consolidated supervision of banking groups based in Austria and operating in third countries. In this sense, the ECB should like to note that the new provisions allow the supervisory authority to have an autonomous and proactive stance towards co-operation, both as a provider and requestor of assistance and information. This is appropriately subject to principles of mutual assistance, confidentiality and professional secrecy. Moreover, the ECB welcomes that the objectives underlying the provisions of Community law concerning co-operation and exchange of information between supervisors are pursued in relation to the competent authorities of third countries. Lastly, in relation to Article 50 of the draft law and the new §77a of the Austrian Banking Act, the ECB believes that a formal agreement between the competent supervisory authorities is an appropriate instrument to establish co-operation and information sharing arrangements. In this regard, such type of agreements may include the possibility of cross-sector co-operation for the benefit of the purposes of consolidated supervision. Furthermore, such agreements have the potential to contribute to the world-wide implementation of high standards in the conduct of supervision. Thus, their geographical scope could be extended to all jurisdictions to which there are significant links. All in all, the new provisions should be seen as a step forward towards reinforcing the current framework for cross-border supervision in accordance with the international standards and recommendations.

text: 6. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 10 February 2000. The President of the ECB [signed] Willem F. Duisenberg

type: vagledning

utgivare: ecb


title: Opinion of the European Central Bank of 7 February 2000 at the request of the Danish authorities on a draft Act amending the Act on Danmarks Statistik (Statistics Denmark) (CON/00/03)

text: 1. On 14 January 2000 the European Central Bank (ECB) received a request from the Danish authorities for an ECB Opinion on a draft Act amending the Act on Danmarks Statistik (Statistics Denmark) (hereinafter referred to as the “Draft Law”).

text: 2. The ECB’s competence to deliver an Opinion is based on Article 105 (4) of the Treaty establishing the European Community (hereinafter referred to as the “Treaty”) and Article 2 (1), third and fourth indents, of Council Decision No.

text: of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft legislative provisions, as the Draft Law contains provisions on Danmarks Nationalbank and rules concerning the collection, compilation and distribution of monetary, financial, banking, payment systems and balance of payments statistics. The Draft Law also provides for other amendments, which do not relate to the above-mentioned consultative competence of the ECB. However, the present Opinion only focuses on those provisions which do so. In accordance with

text: Article 17 (5)

text: , first sentence, of the Rules of Procedure of the ECB, this Opinion has been adopted by the Governing Council of the ECB. This Opinion is based on an unofficial English translation of the relevant provisions of the Draft Law.

text: 3. The ECB understands that the Draft Law includes provisions which de facto provide a legal basis for the collection, compilation and publication of financial statistics by Danmarks Nationalbank, made possible by a transfer of this competence from the national statistical authority, Statistics Denmark, to Danmarks Nationalbank via an agreement being concluded between the two authorities. A liability agreement already exists, but the Draft Law facilitates the establishment of a more elaborate co-operation agreement. The transfer of competence implies that, inter alia, Danmarks Nationalbank will be able to sanction an institution in breach of the reporting requirements. Furthermore, by means of the envisaged division of labour between Danmarks Nationalbank and Statistics Denmark, the Draft Law provides for the possibility of the two authorities exchanging confidential statistical information. Finally, the Draft Law extends the present scope of application of the statistical reporting obligation, in terms of both the categories of institutions obliged to report and the categories of data, which have to be reported.

text: 4. The ECB welcomes the initiative, which will enhance the possibility of increasing the consistency of Danish financial statistics with international and European standards, including those set or, as the case may be, followed by the ECB. In this connection it is recalled that

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

text: concerning the collection of statistical information by the European Central Bank (hereinafter referred to as the “Council Regulation”) states in recital 17 that, inter alia: “while it is recognised that the statistical information needed to fulfil the ECB’s statistical reporting requirement is not the same for the participating as for the non-participating Member States, Article 5 of the Statute [of the European System of Central Banks and of the European Central Bank] applies to both the participating and the non-participating Member States; whereas this fact, together with Article 5 of the Treaty, implies an obligation to design and implement at the national level all the measures that Member States consider appropriate in order to carry out the collection of statistical information needed to fulfil the ECB’s statistical reporting requirements”.

text: 5. However, the ECB notes with some concern that the primary competence for establishing the financial statistics in question continues to be held by Statistics Denmark, with the possibility, according to Article 1 (1) of the Draft Law, for it to be transferred by agreement to Danmarks Nationalbank rather than entrusted to the central bank directly. In the ECB’s view, Danmarks Nationalbank should be able to avail itself independently of its own statistical data necessary to fulfil its tasks – particularly in the field of monetary policy – and, therefore, the preferable solution would be to entrust Danmarks Nationalbank with the relevant powers already at this stage. Furthermore, should Denmark adopt the euro at a later stage, there will be a need to comply with the requirements of the Treaty and the Statute of the European System of Central Banks and of the European Central Bank (hereinafter referred to as the “Statute”) for Stage Three of Economic and Monetary Union (EMU) and in particular with the ECB’s statistical reporting requirements. These reporting requirements are derived from Article 5 of the Statute as further specified by Community legislation, both of which will entrust Danmarks Nationalbank with its own statistical competence. Transferral by an agreement rather than entrustment of competencies is incompatible with Danmarks Nationalbank having its own statistical competence and the Draft Law, once adopted, would, to this extent in any case, have to be adapted should Denmark adopt the euro at a later stage.

text: 6. Notwithstanding the above, the ECB appreciates the fact that in the specific Danish context the best way to facilitate the work at this stage is considered to be transferral of the competence to Danmarks Nationalbank by means of an agreement. The Draft Law is in any event an improvement, which is expected to enable Danmarks Nationalbank to design and implement all the measures that Denmark considers to be appropriate in order to carry out the collection of statistical information needed to fulfil the ECB’s statistical reporting requirements. For these reasons the ECB does not, at this juncture, object to the envisaged transitional arrangement.

text: 7. Article 1 (2) of the Draft Law governs the exchange of documents containing data on financial statistics and balance of payments statistics between Danmarks Nationalbank and Statistics Denmark, including confidential statistical information. The provision states that the documents in question, which are exchanged between the two authorities, are exempt from the right of the public to have access to public documents according to the Act on open administration. It is noted that, should Denmark adopt the euro at a later stage, the confidentiality regime laid down in Article 8 of the Council Regulation would apply. This might also require, inter alia, practical adaptations to the proposed exchange of statistical information between Danmarks Nationalbank and Statistics Denmark.

text: 8. The ECB welcomes the division of labour between Danmarks Nationalbank and Statistics Denmark, which is described in the motivation to the Draft Law as intending to mirror the existing relationship between the Commission of the European Communities (Eurostat) and the ECB. In other words, Danmarks Nationalbank would need to have full responsibility for money and banking statistics (comprising all the balance sheet data of institutions in the European System of Accounts 1995 (ESA 95) sub-sectors S.122 and S.123, off-balance-sheet data relevant to the tasks of the European System of Central Banks (ESCB), data on interest rates, yields and financial asset prices, capital market issues and redemptions and on financial derivatives), whereas the areas of balance of payments statistics (the ECB acting under its own responsibility in capital and financial account issues, the Commission (Eurostat) acting under its own responsibility in current account issues), international investment position and financial accounts statistics will need to be treated as a shared competence. Cost and other economic statistics are the responsibility of Eurostat viz. Statistics Denmark. Article 1 (3) of the Draft Law is seen to allow sufficient flexibility for Danmarks Nationalbank to prepare for the fulfilment of the current and possible new future obligations identified by the ECB for participating national central banks.

text: 9. The ECB confirms that it has no objection to this Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 7 February 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank of 30 March 2000 at the request of the Portuguese Ministry of Finance on a draft decree law that aims to implement, in the Portuguese legal system, Directive 98/26/EC of 19 May 1998 on settlement finality in payment and securities settlement systems (CON/00/04)

text: 1. The European Central Bank (ECB) received on 4 February 2000 a request from the Portuguese Ministry of Finance for an ECB Opinion on a draft decree law (hereinafter referred to as the “Draft Law”) implementing in Portugal Directive

text: on settlement finality in payment and securities settlement systems (hereinafter referred to as the “Directive”).

text: 2. To the extent that the Draft Law represents the implementation of the Directive in the Portuguese legal system, the Portuguese authorities were not, strictly speaking, legally obliged to consult the ECB under

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions. However, the ECB is seeking to promote proactively a harmonised EU-wide implementation of the Directive in the legislation of the Member States, in order to foster maximum transparency and legal certainty for the closely connected payment and securities settlement systems, and to ensure a level playing-field throughout the European Union. In view thereof, the ECB very much welcomes the opportunity to give its opinion on the Draft Law.

text: 3. The ECB understands that this Draft Law deals only with the implementation of provisions related to payment systems, while the part of the Directive dealing with securities settlement systems was implemented by Decree-Law 486/99, of 13 November 1999, and entered into force on 11 December 1999 in the part where general provisions and provisions dealing with insolvency proceeding of participants are concerned (Title V, Chapters I and III). For the remaining parts of Title V, one comes into force only after approval of operational regulations of the securities settlement systems to be registered with the Securities Market Commission until 1 September 2000 (Chapter II, Operations); and the other comes into force on 1 March 2000 (Chapter IV, Management). Even though Member States are not bound to use any particular form or methodology when implementing EC Directives (Article 249 of the EC Treaty), the ECB is of the view that this split-up in the implementation of the Directive

text: between issues related to securities settlement systems and payment systems is somewhat artificial, especially in light of the fact that the Draft Law also covers securities given as collateral but not securities settlement systems. In particular, taking into account that the definitions used in the Directive

text: are common to payment systems and securities settlement systems, the fact that definitions used in Decree-Law 486/99 of 13 November 1999 are not coincident with the definitions used in the Draft Law is a matter of legal concern. It is the opinion of the ECB that consistency between the two laws should be envisaged, as there is a strong connection between the securities settlement systems and the payment systems. Using different definitions and applying different principles on similar activities and procedures may increase the legal uncertainty and operational risks. In particular, it should be noted that the definition of securities in the Draft Law reproduces section B of the Annex to Directive

text: , as mentioned in

text: Article 2

text: (h) of the Directive, whilst the same is not true for the definition of securities contained in Decree-Law 486/99 of 13 November 1999, thus giving rise to potential doubts in interpretation and application of legal concepts and definitions. Is also not entirely clear to the ECB how the definition of netting contained in

text: Article 2

text: (k) of the Directive was implemented into Portuguese law since it is used both in the Draft Law (

text: Article 3

text: ) and in Decree-Law 486/99 of 13 November 1999 (

text: Article 283

text: ) but never defined. The ECB is aware that Portuguese law contains a definition of netting (Article 847 of the Civil Code), which is common to other continental systems. However, the wider scope of netting as foreseen in

text: Article 2

text: (k) of the Directive is not covered by such definition and by the corresponding regime. Therefore, the ECB considers that existing civil law provisions would not provide for the appropriate implementation of

text: Article 2

text: (k) of the Directive. For that reason, it is the understanding of the ECB that proper implementation of the Directive would require a special definition of netting attached to a special regime.

text: 4. With respect to

text: article 1

text: (b) of the Draft Law, the ECB notes that the Draft Law introduces a new definition of “credit institution” rather than referring to the definition already contained in the legal framework for credit institutions and financial companies laid down in Decree-Law 298/92, of 31 December, implementing Article 1 of the First Banking Co-ordination Directive (

text: ). This is particularly relevant since for the definition of “investment firm” in

text: article 1

text: (c), a reference is made to the Investment Services Directive (

text: ). The proposed definition of “credit institution” comprises “any bank integrated in the European System of Central Banks and any postal money order service”. The ECB prefers that this part be taken out of the definition also considering that, where necessary, the ESCB is already mentioned separately and that the institutions set out in the list of Article 2(2) of the First Banking Co-ordination Directive (

text: ) do not comprise Portuguese institutions. It could also be considered to make reference to Article 1 of the First Banking Co-ordination Directive (

text: ) or otherwise to Article 2 of Decree-Law 298/92, of 31 December.

text: 5. With regard to

text: Article 1

text: (l) of the Draft Law and the definition of 'transfer order' in connection with

text: Article 3(1)

text: where reference is made to the State and other public persons, it would be beneficial to reproduce more literally the text of

text: article 2

text: (i), first indent of the Directive, since Article 3(1) of the Draft Law could be interpreted in the sense that private persons would not fall under its scope.

text: 6. With regard to

text: article 1

text: (m) of the Draft Law and the definition of “insolvency proceeding” the ECB notes that a reference is made to “obligations or associated collateral securities” where the Directive mentions “payments”. The distinction between “obligations” and “payments” is that the latter is a discharge of the former; a payment being the correct and complete fulfilment of a pecuniary obligation (by way of a final transfer of the absolute availability of the money due to the creditor). As a result, the ECB would prefer that the text of the Draft Law would correspond more closely to the text of the Directive.

text: 7. With regard to

text: article 1

text: (o) of the Draft Law and the definition of “collateral security” the ECB would prefer that also repurchase or similar agreements be mentioned, as it is the case in Article 284(3) of Decree-Law 486/99. Indeed, for reasons of consistency between the two laws implementing the Directive and to avoid legal uncertainty associated with the use of repurchase or similar agreements for purposes other than securing rights and obligations potentially arising in connection with a system, as defined in

text: Article 2

text: (a) of the Directive, it would be advisable that repurchase or similar agreements are expressly mentioned in the Draft Law, as it is the case in Article 284(3) of Decree- Law 486/99, thus avoiding a vague formulation as currently drafted. In addition, the ECB notes that the definition of “collateral security” contained in the Draft Law limits the cause of granting collateral to “credit provided to participants and to banks integrating the European System of Central Banks” whereas the Directive more broadly states “for the purpose of securing rights and obligations potentially arising in connection with a system, or provided to central banks of the Member States or to the future European central bank.” In this particular, the ECB would prefer that the text of the Draft Law would correspond more closely to the text of the Directive.

text: 8. On

text: article 6

text: , the ECB is of the view that this represents a partial implementation of article 9 of the Directive that is due to the dual implementation of the Directive as mentioned above (

text: article 9(2)

text: of

text: 9. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. In the light of the general application of the observations made, and the importance to the international financial markets of a uniform application of Community law in this field, the ECB will arrange for this Opinion to be copied to the competent national authorities of Member States responsible for implementing the Directive. Done in Madrid on 30 March 2000. The Vice-President of the ECB [signed] Christian Noyer


title: Opinion of the European Central Bank of 24 February 2000 at the request of the Ministry for Finance of the Netherlands on a draft Order in Council on the closure of De Nederlandsche Bank on 5 May 2000 (CON/00/05)

text: 1. On 2 February 2000 the European Central Bank (ECB) received a request from the Ministry for Finance of the Netherlands for an ECB Opinion on a draft Order in Council concerning the closure of De Nederlandsche Bank on 5 May 2000.

text: 2. The ECB’s competence to deliver an opinion is based on Article 105 (4), second indent, of the Treaty establishing the European Community and Article 2 (1), third indent, of

text: Council Decision (EC) No. 98/415 of 29 June 1998

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions, as the draft Order in Council concerns the closure of the national central bank. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the European Central Bank, this ECB Opinion has been adopted by the Governing Council of the ECB. This ECB Opinion is based on an unofficial translation of the official Dutch proposal.

text: 3. The closure of De Nederlandsche Bank on 5 May 2000 will be based on Section 1 (2) of the Order in Council dated 27 July 1998 concerning the establishment of rules relating to the exchange, withdrawal and cancellation of banknotes by De Nederlandsche Bank, and the information to be provided to the public on this subject. This Order in Council is, in turn, based on Section 27 (3) of the Bank Act 1998. The effect of the draft Order in Council is that on 5 May 2000 - which is a national holiday - the general public will not be able to exchange banknotes at any offices of De Nederlandsche Bank. It is important to note, however, that De Nederlandsche Bank's TOP payments system, and the link to the TARGET system of the European System of Central Banks, will not be closed on the said date.

text: 4. The ECB welcomes this consultation regarding the draft Order in Council. The ECB does not foresee any practical or operational problems arising from the intended closure of the offices of De Nederlandsche Bank and therefore has no objections to this draft Order in Council.

text: 5. The ECB confirms that it has no objections to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 24 February 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank of 09 March 2000 at the request of the Danish authorities on a draft Act amending the Depositors’ and Investors’ Guarantee Fund Act (CON/00/06)

text: 9 March 2000

text: OPINION OF THE EUROPEAN CENTRAL BANK of 09 March 2000 at the request of the Danish authorities on a draft Act amending the Depositors’ and Investors’ Guarantee Fund Act (CON/00/06)

type: rubrik

text: 1. On 9 February 2000 the European Central Bank (ECB) received a request from Danmarks Nationalbank, on behalf of the Ministry of Economic Affairs, for an ECB Opinion on a draft Act amending the Depositors’ and Investors’ Guarantee Fund Act (hereinafter referred to as the “Draft Law”).

text: 2. The ECB’s competence to deliver an Opinion is based on Article 105 (4), second indent, of the Treaty establishing the European Community (hereinafter referred to as the “Treaty”) and Article 2 (1), sixth indent, of Council Decision No.

text: of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft legislative provisions, as the Draft Law contains rules applicable to financial institutions which could have a material influence on the stability of financial institutions and markets. In accordance with

text: Article 17 (5)

text: , first sentence, of the Rules of Procedure of the European Central Bank, this Opinion has been adopted by the Governing Council of the ECB. This Opinion is based on an unofficial English translation of the relevant provisions of the Draft Law.

text: 3. The ECB understands that the main purpose of the Draft Law is to increase the freedom of choice of the Depositors’ and Investors’ Guarantee Fund (hereinafter referred to as the “Guarantee Fund”) with regard to its methods for dealing with crisis management, on the one hand, and to provide for new rules for decision-making by the board of the Guarantee Fund, on the other. These draft amendments are understood to be necessary in order to avoid uncertainties with the European Community rules concerning state aid. In this sense, the amendments are intended to facilitate a swift and simple administrative procedure for the intervention of the Guarantee Fund, as a private and independent entity, in the reorganisation of credit institutions or investment firms, with full respect of competition rules.

text: 4. The ECB welcomes the Draft Law and in particular the underlying aim of reinforcing a marketbased mechanism for handling situations of crisis relating to credit institutions and investment firms in Denmark. The new rules being introduced in the Depositors’ and Investors’ Guarantee Fund Act, while enhancing the scope of the functions of the Guarantee Fund, will ensure the observance of certain principles of fair competition, such as transparency of procedures, equal treatment and non-discrimination between credit institutions or investment firms. At the same time, it should be noted that the intervention of the Guarantee Fund will not involve public money, even though it will certainly contribute to the stability of the financial system as a public good. This should strengthen awareness that the safeguards provided by the industry itself, and not the access to public resources, are expected to contain the effects of a crisis. In this manner, it should also have a positive influence on the management and control of risks by market participants.

text: 5. The ECB notes that, according to

text: Article 1 (1)

text: , Sections 3 and 4, together with Article 1 (2) of the Draft Law, the Guarantee Fund must reimburse depositors and investors of a given credit institution or investment firm in the event of a suspension of payments or bankruptcy. In cases where the suspension of payments or bankruptcy has not occurred, but where such institution or firm no longer fulfils the conditions necessary for commercial activity, the Guarantee Fund has the option of contributing to the liquidation of such institution or firm by providing nonsubordinate creditors with financial assistance or guarantees. This latter option may only be selected if it is viable and is estimated to incur a lower cost for the Guarantee Fund. Therefore, according to the ECB’s understanding, the Draft Law indicates that the Guarantee Fund should take a decision on the basis of the Fund’s own best interests. Against this background, the ECB understands that the Guarantee Fund, when selecting the appropriate option, has to take into consideration the circumstances of the specific case in question. In this sense, the ECB suggests that the supervisory authority shall provide adequate information to the Guarantee Fund on the specific case in order for it to be able to assess which solution will involve the lowest cost for the Fund. The involvement of this public authority should not, however, imply any sort of instructions to the Fund, which in all cases shall remain independent and assume final responsibility for its decisions.

text: 6. Accordingly, the ECB notes that

text: Article 1 (2)

text: , Section 4, of the Draft Law stipulates that the Minister of Economic Affairs shall determine the rules governing co-operation between the Danish Financial Supervisory Authority (Finanstilsynet) and the Guarantee Fund, as well as the rules governing the conditions for takeover bids. The ECB therefore notes that the Guarantee Fund will, in certain situations, play a prominent role in the crisis management of credit institutions and investment firms in Denmark. Thus the ECB welcomes in this regard the fact that there are rules in place regarding co-operation between the Danish Financial Supervisory Authority and the Guarantee Fund, and also that a public authority such as the Ministry of Economic Affairs will be laying down the rules for this co-operation as well as for takeover bids. Clarification of the roles of the competent authorities and of the co-ordination of such roles vis-à-vis the market-based intervention of the Guarantee Fund can only contribute to the framework in place for the stability of the financial system.

text: 7. The ECB notes that Article 1 (2) of the Draft Law provides the Guarantee Fund with the discretion to contribute to the liquidation of a credit institution or an investment firm by providing the non-subordinate creditors of such institution or firm with financial assistance or guarantees. The suitability of these measures for obtaining takeover bids, based on the market price for such institution or firm, should be taken into consideration by the Guarantee Fund. Moreover, such measures can be implemented in connection with others. The ECB notes that these measures may give the Guarantee Fund a considerable influence over the running of the institution or firm in question. The Guarantee Fund is, however, according to the Draft Law, prohibited from becoming the owner of such institution or firm, even for a short period.

text: 8. The ECB notes that, according to Article 1 (4) of the Draft Law, a board member may veto the participation of the Guarantee Fund in the reorganisation of a credit institution or investment firm, if the member in question represents the same category of such institution or firm as the one which has failed. The majority of the board members of the Guarantee Fund represent the different categories of credit institutions and investment firms, which are covered by the deposit and investor guarantee arrangement. Consequently, the Guarantee Fund cannot contribute to the reorganisation of a credit institution or investment firm without the agreement of the representative of the sector in question. .

text: 9. The ECB confirms that it has no objection to this Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 9 March 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank at the request of the Bank of Greece under Article 105 (4), second indent, of the Treaty establishing the European Community (“the Treaty”) and Article 4 (a), second indent, of the Statute of the European System of Central Banks and of the European Central Bank (“the ESCB/ECB Statute”) on draft amendments to the Statute of the Bank of Greece (CON/2000/7)

text: OPINION OF THE EUROPEAN CENTRAL BANK establishing the European Community (“the Treaty”) and Article 4 (a), second indent, of the Statute of the European System of Central Banks and of the European Central Bank (“the ESCB/ECB Statute”) on draft amendments to the Statute of the Bank of Greece

text: 1. On 24 March 2000 the European Central Bank (ECB) received a request from the Bank of Greece for an ECB Opinion on a consultation regarding draft amendments to the Statute of the Bank of Greece (“the Draft Statute”).

text: 2. The ECB’s competence to deliver an opinion is based on Article 2, paragraph 1, third indent, of Council Decision (

text: ) of 29 June 1998 on the consultation of the ECB by national authorities regarding draft legislative provisions, as the legislative proposal contains provisions concerning central banks, in the present case the Bank of Greece. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the ECB, this ECB Opinion has been adopted by the Governing Council of the ECB.

text: 3. The Draft Statute aims at amending the present Statute of the Bank of Greece in order to ensure the full legal integration of the Bank of Greece into the Eurosystem. Furthermore, the Draft Statute addresses a number of other issues of importance to the Bank of Greece, related to its future integration into the Eurosystem. The Bank of Greece expects that the proposed amendments to its Statute will be adopted at its General Meeting of Shareholders on 25 April 2000. It is also expected that the Statute will be ratified immediately afterwards through law by Parliament and published well in advance of 31 December 2000 in the Government Gazette in order to take effect on 1 January 2001. In view of these procedures and in view of the report which the ECB is required to deliver under Article 122 (2) of the Treaty, the Bank of Greece has adapted its Draft Statute in the light of remarks made during the present consultation procedure. This was confirmed in a letter from the Bank of Greece dated 12 April 2000, to which this Opinion will refer where appropriate.

text: 4. The Statute of the Bank of Greece was amended to meet the requirements of the Treaty and the ESCB/ECB Statute for Stage Three of EMU, which were introduced with Law 2548 dated 12 December 1997, published in the Government Gazette on 19 December 1997. Law 2548/1997 was then, subsequently, incorporated in the Statute of the Bank of Greece through a decision of the Extraordinary Meeting of Shareholders of the Bank of Greece held on 22 December 1997. In accordance with Article 7 of the Bank’s Statute, this decision was later ratified by Parliament through Law 2609/1998, which was published in the Government Gazette on 11 May 1998. The European Monetary Institute (EMI) concluded in its March 1998 Convergence Report that, with the adoption and entry into force of Law 2548/1997, there were no remaining incompatibilities with Treaty and Statute requirements on central bank independence in the Statute of the Bank of Greece. The law addressed both the period during which the Bank of Greece is not an integral part of the Eurosystem as well as the situation in which Greece will have adopted the euro. The EMI also concluded, however, that there were still two imperfections in the Statute of the Bank of Greece (as meanwhile contained in Law 2609/1998; see above), which required adaptation before Greece adopts the euro. Some of the provisions of the law will become obsolete upon the adoption by Greece of the euro. This applies to the following provisions: ·

text: Article 2.4

text: on the Bank’s participation in international monetary and economic organisations does not refer to the ECB’s power of approval; ·

text: Article 7.4

text: on the imposition of minimum reserves and penalties in case of non-compliance does not recognise the ECB’s powers in this field. Following the findings of the 1998 EMI Convergence Report, the Draft Statute of the Bank of Greece is aimed at removing the two above imperfections as well as at a further fine-tuning of the Bank of Greece’s legal integration in the Eurosystem.

text: 5. The imperfection in

text: Article 2.4

text: is remedied in

text: Article 2.6

text: , last indent, of the Draft Statute through an explicit recognition of the fact that, in accordance with Article 6.2 of the ESCB/ECB Statute, participation in international monetary institutions is subject to approval of the ECB. The imperfection in

text: Article 7.4

text: is remedied in

text: Article 55

text: , No. 21 (2), of the Draft Statute which explicitly recognises that, after the adoption of the euro by Greece, the competence to impose minimum reserves and related matters is governed exclusively by the Eurosystem’s regulatory framework.

text: 6. The ECB notes that

text: Article 2

text: (f) of the Draft Statute of the Bank of Greece states that the Bank of Greece has the exclusive right to issue legal tender banknotes within Greece and makes reference to the ECB’s right of approval. The ECB is of the opinion that the reference to the ECB’s right of approval should be replaced by a general reference to Article 106 of the Treaty. In its letter dated 12 April 2000, the Bank of Greece confirms that this point will be accommodated through

text: Article 2

text: , third paragraph, which will read as follows: “As from the adoption of the euro as the currency of Greece, the Bank of Greece no longer autonomously performs the tasks under a, b, c and the ESCB-related tasks under e above, but, being an integral part of the European System of Central Banks, contributes to the performance of its tasks according to Article 2 of the ESCB Statute and acts in accordance with the guidelines and instructions of the ECB, as stipulated in

text: Articles 105

text: , paragraph 2 and 3, and 111 of the Treaty establishing the European Community as well as in Articles

text: paragraph 3, 30 and 31 of the ESCB Statute. As from the same date, the Bank of Greece may issue banknotes which have the status of legal tender in accordance with the provisions of Article 106 of the Treaty establishing the European Community and Article 16 of the ESCB Statute. In addition, it performs the tasks set forth in the present Statute and the other applicable provisions”. The ECB welcomes this clarification.

text: 7. The ECB notes that provisions that no longer apply as from the adoption of the euro by Greece such as Articles 40-43 and 60 of the present Statute of the Bank of Greece, will be deleted. Accordingly, related provisions in

text: Article 27

text: (e) and (g) need to be deleted as well. In its letter dated 12 April 2000, the Bank of Greece confirms that such deletion will take place. For reasons of legal certainty, the ECB welcomes the abolition of any provisions that will become obsolete after the adoption of the euro.

text: 8. The ECB notes that with a view to ensuring the integration of the Bank of Greece in the Eurosystem, Articles 2 and 44 of the Draft Statute aim to make the Bank of Greece an integral part of the Eurosystem by recognising that certain tasks are performed without prejudice to the provisions of the ESCB/ECB Statute. The ECB welcomes this basic assumption.

text: 9. The power of the Bank of Greece to impose administrative sanctions in the performance of its supervisory tasks is dealt with in a very comprehensive way. In addition,

text: Article 55

text: A of the Statute of the Bank of Greece deals with the power of the Bank to impose sanctions by virtue of its supervisory role. The ECB has no specific remarks on this Article.

text: 10. The ECB notes that

text: Article 55

text: , second indent, of the Draft Statute relating to the Bank’s tasks contains language that unambiguously reflects the integration of the Bank of Greece into the Eurosystem. The ECB welcomes such a general wording to clarify that the application of the Eurosystem’s legal framework is not prejudiced. Furthermore, the ECB welcomes Article 55.10 of the Draft Statute because it contains an explicit provision to clarify that, upon the adoption of the euro, the competence of the Monetary Policy Council of the Bank of Greece will change and that it may subsequently execute the terms and conditions of monetary policy as laid down in the monetary policy legal framework of the Eurosystem.

text: 11. The ECB understands that certain provisions contained in the Draft Statute are inherent to the legal personality of the Bank of Greece as a stock corporation. Accordingly,

text: Article 55.19

text: addresses the power of the Bank of Greece to issue corporate bonds in its capacity as a stock corporation. The ECB does not have any specific remarks on this provision. Incidentally, the ECB notes in this context that any non-ESCB related tasks which may be attributed to the Bank of Greece are subject to Article 14.4 of the ESCB/ECB Statute.

text: 12. Furthermore,

text: Article 55

text: C of the Draft Statute concerning the imposition of sanctions in the area of statistics will become superfluous after the adoption of the euro, since Council Regulations and related legal acts of the ECB in the area of statistics apply directly in participating Member States without the need for any reference to them in national legislation. Nevertheless, the ECB welcomes the fact that

text: Article 55

text: C of the Draft Statute explicitly recognises the exclusive competence of the ECB in the field of those statistics that are related to the ESCB tasks.

text: Article 57

text: A of the Draft Statute codifies provisions stipulating prerogatives in the creation and perfection of collateral taken by the Bank of Greece. This Article provides for a legal pledge on book-entry securities held in the participant’s securities account which is automatically created in favour of the Bank without any separate contract with a counterparty, thus deviating from the provisions for the creation of a pledge set out in the Greek Civil Code. Under the envisaged pledge structure of

text: Article 57

text: A of the Draft Statute, the Bank of Greece automatically has a right of pledge up to the amount of the claim with the applicable margin of the Bank of Greece vis-àvis a counterparty. This provision addresses any concerns that might have arisen as a result of the “specification principle” that applies to the creation of pledge under Greek law and requires that collateral is precisely itemised by parties. This Article applies also in cases where the Bank of Greece acts on behalf of other national central banks (NCBs) or of the ECB. The practical effect of such a provision will be apparent primarily within the framework of the Multilateral Agreement between the ECB and NCBs on the Correspondent Central Banking Model (CCBM).

text: 14. Moreover,

text: Article 57

text: A of the Draft Statute contains provisions on the effects of bankruptcy of a participant in a payment system, which may not be antedated prior to the publication of a court’s bankruptcy order. The objective of this Article is to secure claims of the Bank of Greece as well as of the NCBs and/or the ECB against any system participants. This provision ensures the validity of the realisation of the collateral by the Bank of Greece acting on its own behalf or on behalf of NCBs or the ECB. Such a provision is in line with the provisions of Directive

text: of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, which has already been implemented in a separate Law 2789/2000 published in the Government Gazette on 11 February 2000.

text: 15. Article 55.5 of the Draft Statute provides explicitly for the Bank of Greece to oversee and manage any payment and settlement systems. This provision is welcomed since the Bank of Greece already manages a settlement system and it gives the Bank authority to oversee a very important part of the financial system.

text: 16. In the Draft Statute the expression “the euro as the national currency of Greece” is used, which may be perceived as ambiguous, since this does not clearly reflect the wording of

text: Council Decision (EC) No. 974/98 of 3 May 1998

text: on the introduction of the euro, which defines the euro as “the currency of the participating Member States”. Although the ECB appreciates that the above expression is mainly used to indicate the replacement of the Greek drachma by the euro, the ECB recommends deletion of the word “national”. In its letter dated 12 April 2000, the Bank of Greece confirms that such deletion will take place.

text: 17. As regards the explanatory note to the Draft Statute, the ECB notes the following. In

text: Article 2

text: , second paragraph, “Treaty of the European Union” should be replaced by “Treaty establishing the European Community”. In its letter dated 12 April 2000, the Bank of Greece confirms that this replacement will take place. In Article 55.17 of the explanatory note, it is stated that the ability of the Bank of Greece to carry out transactions with foreign central banks and financial institutions, as well as with international organisations “is without prejudice to the powers of the institutions of the European Union in this field”. The ECB recommends clarification, as the ECB is, strictly speaking, not an institution of the European Union. This could be accomplished through the addition of the words “and bodies” after the word “institutions”. In its letter dated 12 April 2000, the Bank of Greece confirms that such an addition will be made.

text: 18. The ECB notes that Law 2548/1997 became obsolete after the adoption of Law 2609/1998 with regard to provisions which are incompatible with the amended Statute as presently contained in Law 2609/1998. While, in accordance with the principle “lex posteriori derogat priori” and under Article 28 of the Greek Constitution, Law 2609/1998 (as amended in the future) would prevail over Law 2548/1997, the ECB notes that Article 109 of the Treaty nevertheless requires, for reasons of legal clarity and certainty, the removal of obsolete provisions. The ECB has been informed by the Bank of Greece that the Greek legislative authorities intend to do so in the law ratifying the present amendments to the Statute of the Bank of Greece, on which the ECB will also have to be consulted under

text: Article 105 (4)

text: , second indent, of the Treaty as repeated in

text: Article 4

text: (a), second indent, of the ESCB/ECB Statute. In this connection, the ECB notes that, in its view, the legislative procedures to repeal the relevant provisions of Law 2548/1997 need to be accomplished as a matter of urgency.

text: 19. As regards the present Statute of the Bank of Greece, the ECB acknowledges that the following observations under paragraphs 20 to 24 have not been raised in the EMI’s 1998 Convergence Report. However, the ECB is at the same time of the opinion that these points merit further consideration for reasons of legal certainty and clarity.

text: 20. The ECB notes that originally no amendments to

text: Article 2

text: (a) and (b) of the present Statute of the Bank of Greece were envisaged. These provisions could, after the adoption of the euro by Greece, give the impression that, on the one hand, the drachma would still be a currency in its own right and, on the other, that the Bank of Greece would be responsible for exchange rate policy. The ECB takes the view that the technique proposed in order to avoid giving this impression, i.e. amending the third paragraph of

text: Article 2

text: by inserting references to the tasks of the ESCB and to the Bank of Greece forming an integral part of the ESCB as from the moment of adoption of the euro, might not be sufficiently clear. The ECB recommends therefore that the provisions concerned be adapted. In its letter dated 12 April 2000, the Bank of Greece confirms that this point will be accommodated through

text: Article 2

text: , third paragraph, which has already been cited above in paragraph 6 of this Opinion and to which may be referred here for reasons of brevity. The ECB welcomes this clarification.

text: 21. The ECB notes that the second paragraph of

text: Article 5

text: B comprises the obligation of the Governor of the Bank of Greece to appear, when so requested, before the competent parliamentary committee in order to report on matters relating to the Bank’s field of competence. The ECB notes that such an obligation can prejudice neither the fact that the accountability for ESCBrelated tasks has been transferred to the Community level nor the ESCB’s confidentiality regime to which a governor of an NCB is subject. This implies that the provision of information by the Bank’s Governor to a parliamentary committee is subject to constraints as far as the execution of ESCB-related tasks is concerned.

text: 22. The ECB notes that

text: Article 27

text: in conjunction with

text: Articles 35

text: A and 55 of the Draft Statute could be interpreted in such a way that the General Council of the Bank of Greece will, after the adoption of the euro, retain decision-making power in at least some ESCB-related areas (see, for instance,

text: Article 27

text: (b) which refers to the broad range of operations listed in

text: Article 55

text: , unless otherwise stated in such Article or elsewhere). Whilst the ECB appreciates that, in the context of the division of responsibilities between the Monetary Policy Council (

text: Article 35

text: A) and the Bank’s Governor (

text: Article 31

text: , second paragraph), on the one hand, and the General Council (

text: Article 27

text: ), on the other, it is not the intention to attribute any ESCB-related tasks to the General Council, this should, in the ECB’s view, be made clearer. This is also important in view of the fact that the General Council together with the Councillors and Government Commissioner do not fulfil requirements of central bank independence derived from the Treaty and the ESCB/ECB Statute for the execution of ESCB-related tasks. A method to achieve such clarity would be to list in

text: Article 27

text: (b) which paragraphs of

text: Article 55

text: do not fall within the competencies of the General Council because they represent ESCB-related tasks. In its letter dated 12 April 2000, the Bank of Greece confirms that this point will be accommodated through

text: Article 27

text: (b) which will read as follows: “general conditions and extent of the business conducted outside the scope of ESCBrelated tasks”. The ECB welcomes this clarification.

text: Article 27

text: (l) of the present Statute of the Bank of Greece vests the General Council with the power to decide “in questions concerning the design, text, material, denomination and supply of banknotes, their withdrawal and cancellation.” The ECB notes that this can, of course, only apply to banknotes denominated in Greek drachma and not to euro banknotes, which implies that this provision will have to be repealed as being obsolete after the introduction of euro banknotes, except for the withdrawal and cancellation of banknotes denominated in Greek drachma. This applies equally to Articles 66, 67 and 68 of the present Statute of the Bank of Greece. In its letter dated 12 April 2000, the Bank of Greece confirms that this point will be accommodated through an explicit limitation of the scope of Articles

text: 27 (1)

text: and

text: to “banknotes denominated in drachmae”. The ECB welcomes this clarification.

text: 24. In summary, the ECB welcomes the Draft Statute of the Bank of Greece. The ECB notes that, assuming that the draft amendments to the Statute of the Bank of Greece will be adopted by its General Assembly of Shareholders on 25 April 2000, that they will be ratified by Parliament and that they will enter into force on time, as they were presented to the ECB in the present consultation procedure, and assuming that Law 2548/1997 will be adapted accordingly, there will be no remaining imperfections in the Statute of the Bank of Greece relating to the requirements of the Treaty and the ESCB/ECB Statute for the full legal integration of the Bank of Greece in the Eurosystem.

text: 25. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 17 April 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank at the request of the Finnish Ministry of Financeon a draft legislative proposal concerning centralisation of book-entry registers at the central securities depository (CON/00/08)

text: 1. On 15 March 2000 the European Central Bank (ECB) received a request from the Finnish Ministry of Finance for an ECB Opinion on a legislative proposal concerning centralisation of book-entry registers.

text: 2. The ECB’s competence to deliver an opinion is based on Article 2, paragraph 1, fifth indent of the Council Decision (

text: ) of 29 June 1998 on the consultation of the ECB by national authorities regarding draft legislative provisions, as the legislative proposal contains provisions concerning securities settlement systems in Finland and thus affecting to some extent the efficiency and soundness of clearing and payment systems. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the European Central Bank, this ECB Opinion has been adopted by the Governing Council of the ECB.

text: 3. The Finnish book-entry system was created at the beginning of the 1990s as a decentralised system. There is one central securities depository, the Finnish Central Securities Depository, which aims at ensuring the security of operations and readiness to handle all types of book-entries. The Finnish Central Securities Depository provides centralised services relating to the handling and settlement of book-entries. It keeps an issuer-specific list of holders of equity securities. Book-entry debt registers have already been centralised at the Finnish Central Securities Depository. However, book-entry equity registers are currently still decentralised to six book-entry registrars, which maintain book-entry registers containing book-entry accounts as well as lists of holders of rights and of types of book-entries. Out of the six book-entry equity registers five are run by private financial institutions and one is run by the Finnish Central Securities Depository.

text: 4. The legislative proposal aims at reforming the Finnish book-entry system such that the present book-entry equity registers will also be centralised at the Central Securities Depository, which will become the only book-entry registrar licensed by the Finnish Ministry of Finance. This centralisation is proposed in order to acquire economies of scale relating to data technology.

text: 5. The ECB welcomes the legislative proposal to consolidate the registrar function in Finland into one centralised book-entry system. This measure will increase the safety and efficiency of securities settlement and, thereby, contribute to financial stability in Finland. A centralised book-entry system will shorten the time needed to settle securities transactions, as information on securities holdings will be obtained directly from the system, i.e. there will be no need to wait for confirmation from the registrars. The shortening of the settlement period will also reduce the counterparty risk. The legislative proposal would also facilitate further integration of the Finnish securities markets into the euro area as the proposed solution will be in line with the structure of the majority of the euro area securities settlement systems. However, the ECB wishes to note that it does not have competence to analyse the legislative proposal from the point of view of Community competition law.

text: 6. The legislative proposal would result in changes in eight different national laws, all of which concern the Finnish book-entry system. Some provisions in those eight laws relate either to Suomen Pankki or to the ESCB-related tasks of Suomen Pankki. However, the amendments proposed do not change the substance of these provisions. In addition the ECB notes that Section 3 of the Act on the Bank of Finland (214/1998) stipulates that Suomen Pankki shall participate in maintaining the reliability and efficiency of the payment system and overall financial system and participate in its development. In the opinion of the ECB, this should be understood as including the securities settlement systems in Finland.

text: 7. The ECB notes that the legislative proposal would also change the existing unlimited secondary liability of the Finnish Central Securities Depository. This liability will be transferred to a special fund to be financed by the account operators and limited to EUR 25,000 per case of damage. Furthermore the “force majeure” rule will apply. These changes have to be analysed further by the ECB when making assessments against the ESCB Standard 1 on legal soundness of link arrangements allowing for cross-border use of collateral between the Finnish Central Securities Depository and other securities settlement systems for the Eurosystem monetary policy and intraday credit operations.

text: 8. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 5 May 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank of 12 July 2000 at the request of the Luxembourg Ministry of Finance on ‘Chapter VII – Electronic Payments’ of a Luxembourg legislative proposal concerning electronic commerce (CON/00/11)

text: 1. On 3 May 2000, the European Central Bank (ECB) received a request from the Luxembourg Ministry of Finance for an ECB opinion on ‘Chapter VII – Electronic Payments’ of a Luxembourg legislative proposal concerning electronic commerce (hereinafter referred to as the ‘Draft Law’).

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

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

text: on the consultation of the ECB by national authorities regarding draft legislative provisions, as the legislative proposal contains provisions concerning means of payment. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, this ECB opinion has been adopted by the Governing Council of the ECB. This ECB opinion is based on an unofficial English translation of the official proposal written in French.

text: 3. The ECB welcomes the Luxembourg initiative to strengthen customer confidence when making payments over the internet whereby

text: Commission recommendation 97/489/EC of 30 July 1997

text: concerning transactions by electronic payment instruments and in particular the relationship between issuer and holder (the ‘recommendation’) is given due consideration. The ECB is, however, of the view that some parts of the recommendation, for example in the Section on ‘transparency of conditions for transactions’ (Section II of the recommendation) and certain aspects of the Section on ‘obligations and liabilities of the parties to a contract’ (Section III of the recommendation), have not been entirely transposed. The ECB understands at the same time that a number of provisions of the recommendation, which have not been transposed in the Draft Law, are covered by provisions of the Luxembourg Civil Code.

text: 4. The ECB understands that the Draft Law has taken account of the proposal for: 1) a directive of the European Parliament and of the Council on the taking up, the pursuit and the prudential supervision of the business of electronic money institutions; and for 2) a directive of the European Parliament and of the Council amending Directive

text: on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions; which proposal, once adopted, would be implemented in Luxembourg in a separate law.

text: 5. With regard to the definition, in Article 75(1) of the Draft Law, of ‘electronic funds transfer instrument’ (as ‘any system which permits the following transactions to be effected either fully or partly electronically: a) the transfer of funds; b) cash withdrawals and deposits; c) remote access to an account; and d) loading and unloading of a reloadable payment instrument’), the ECB finds it somewhat ambiguous that such instrument is defined by reference to the term ‘system’. The use of the term ‘system’, combined with a reference to the transfer of funds, could be read to mean that in principle any interbank transfer system can be defined as ‘electronic funds transfer instrument’ which should not be the case. Therefore, the ECB would like to propose to replace the word ‘system’ with ‘instrument’. Also, to add clarity, the definition could be reformulated as ‘any instrument which permits one or more of the following transactions to be effected either fully or partly electronically: a) the transfer of funds; b) cash withdrawals; c) deposits; d) remote access to an account; e) loading and unloading of an electronic money instrument.’

text: 6. In Article 75 (2) of the Draft Law, ‘reloadable instrument’ is defined as ‘any electronic funds transfer instrument on which value units are stored electronically’. The ECB would, however, like to propose that the concept of ‘electronic money’ be used instead throughout the Draft Law. ‘Electronic money’ is defined in

text: Article 1(3)

text: (b), of the proposal for a directive of the European Parliament and of the Council on the taking-up, pursuit of and prudential supervision of the business of electronic money institutions as ‘monetary value as represented by a claim on the issuer which is (i) stored on an electronic device; (ii) issued on receipt of funds of an amount not less in value than the monetary value issued; (iii) accepted as means of payment by undertakings other than the issuer’. In accordance with this concept, also non-reloadable electronic money usage devices (basically disposable electronic money cards) would fall within the purview of the definition. The ECB is of the view that disposable cards should also fall within the scope of this Draft Law. As according to the recommendation, the term ‘electronic money instrument’ only comprises reloadable but not non-reloadable instruments, the ECB would welcome that if this term would subsequently be introduced in the Draft Law, it would then be defined more broadly.

text: 7. Regarding the definition of an ‘issuer’ (as ‘any person who, in the course of his/her business, makes available to another person an electronic funds transfer instrument pursuant to a contract concluded with him/her’) in Article 75(3) of the Draft Law, it would seem reasonable to replace the reference to ‘any person’ with ‘any legal person’ (and, correspondingly, replace the reference to ‘his/her’ with ‘its’ and ‘it’ respectively). Secondly, it is not clear whether the definition refers to the issuer of the electronic funds transfer instrument or the issuer of the card/software on which the electronic money is stored. Therefore, one possibility to achieve further clarity would be to include after the term ‘issuer’ the words ‘of an electronic funds transfer instrument’.

text: 8. With respect to the definition of a ‘holder’ (as ‘any person who, pursuant to a contract concluded between themself and an issuer, holds an electronic funds transfer instument’) in Article 75(4) of the Draft Law, the paragraph could be redrafted as such that also persons possessing an electronic money instrument are included.

text: 9. The scope of the Draft Law has been defined in

text: Article 76

text: in the negative. In principle, this means that the Draft Law would apply to everything except to those two issues referred to in

text: Article 76

text: . In the recommendation, the scope has been defined in both a positive and a negative way, by stating to which transactions the recommendation applies and to which it does not apply. To add clarity, it would be beneficial to use the same approach also in the Draft Law.

text: 10. The definition of single purpose electronic money contained in

text: Article 76

text: (b) is not in line with the proposal for a directive of the European Parliament and of the Council on the taking up, the pursuit and the prudential supervision of the business of electronic money institutions. Therefore, the sentence in question could be reformulated e.g. as follows: ‘The provisions of this law shall not apply to (b) electronic funds transfers carried out by electronic money instruments which can only be used to pay for products bought from and/or services provided by the issuer of electronic money in question.’ Article 79 of the Draft Law does not refer to transactions undertaken by means of reloadable instruments, even if this transaction is of loading/unloading nature. The ECB proposes to include such transactions into the scope of this Article. With respect to the second sentence of Article 79(1) of the Draft Law in which it is stated that the issuer shall make available to the holder the appropriate means to make the notification, the ECB is of the view that a sentence should be added referring to the obligation of the issuer to provide the holder with evidence that such notification was made. In detail, such an additional sentence should stipulate that the issuer provide the holder with the means of proof that the holder has made a notification in case the notification was made by telephone. Furthermore, it is not clear what the second bullet point of

text: Article 79(2)

text: refers to. This could be clarified by changing the order of the sentences in this paragraph.

text: 11. Further to the issuer’s obligations and liabilities, the ECB is of the view that the obligations and liabilities of the issuer as laid down in Section III of the recommendation have only partly been considered in the Draft Law. With respect to the issuer’s liabilities, it seems that neither the Draft Law nor the Luxembourg Civil Code contains provisions that correspond to Article 8 of the recommendation. The ECB would, therefore, like to propose to insert rules in the Draft Law aimed at transposing

text: Article 8(1)

text: , (3) and (4) of the recommendation. Regarding the issuer’s obligations, the ECB notes that the Draft Law leaves out the secrecy of the holder’s personal identification codes (

text: Article 7(2)

text: (a) and (b) of the recommendation). Also with respect to this issue, the ECB would welcome that additional corresponding provisions be inserted in the Draft Law.

text: 12. The ECB proposes that provisions about notification (Article 9 of the recommendation) are included in the Draft Law. In particular, these provisions could stipulate that the issuer is obliged to provide means for notification at any time of the day and that the issuer is obliged to take actions in order to stop further use of electronic payment instruments upon receipt of notification.

text: 13. The ECB confirms that it has no objection to this ECB opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 12 July 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank at the request of the Euro Changeover Board of Ireland on draft Ministerial Orders issued under the Economic and Monetary Union Act, 1998 (CON/00/13)

text: 1. On 24 May 2000 the European Central Bank (ECB) received a request from the Euro Changeover Board of Ireland for an ECB Opinion on draft Ministerial Orders issued under the Economic and Monetary Union Act, 1998.

text: 2. The ECB’s competence to deliver an opinion is based on Article 2 of the Council Decision (

text: ) of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft legislative provisions, as the legislative proposal contains provisions concerning currency matters. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the European Central Bank, this ECB Opinion has been adopted by the Governing Council of the ECB.

text: 3. The Ministerial Orders make provision for the following: (1) in accordance with

text: Regulation (EC) No. 974/98

text: and section 9(1) of the Economic and Monetary Union Act, 1998, the retention of legal tender status for banknotes and coins denominated in Irish pounds until 9 February 2002; (2) in accordance with section 15 of the Economic and Monetary Union Act, 1998, the calling-in of decimal coins of all denominations in Irish pounds and a commemorative coin with effect from the date of withdrawal of legal tender status; (3) in accordance with section 11(1) of the Economic and Monetary Union Act, 1998, the technical specifications, dimensions and design of euro and cent coins provided by the Minister for Finance (in compliance with

text: Council Regulation (EC) No. 975/98 of 3 May 1998

text: on denominations and technical specifications of euro coins intended for circulation, as amended by

text: Council Regulation (EC) No. 423/1999 of 22 February 1999

text: amending

text: Regulation (EC) No. 975/98

text: ); and (4) in accordance with Section 11(2) of the Economic and Monetary Union Act, 1998, the issuance of euro and cent coins with effect from 1 January 2002.

text: 4. The ECB notes the decision by the Irish Government to end the period of dual circulation of euro and Irish pound banknotes and coins at midnight on 9 February 2002 by withdrawing the legal tender status of Irish banknotes and coins from that date. This decision will facilitate a rapid cash changeover in Ireland.

text: 5. The ECB agrees that it would not be appropriate to repeat in Irish law the denominations and technical specifications for euro coins prescribed by

text: amending

text: Regulation (EC) No. 975/98

text: . The ECB notes that the Ministerial Order prescribing the design of coins provided by the Minister for Finance attaches as a schedule to the Ministerial Order the agreed text describing the designs for the common face of each of the coins, as approved by the ECOFIN Council and announced at the June 1997 European Council meeting in Amsterdam. The ECB notes that this text has not been set out in any formal legal instrument to date. The ECB welcomes the decision by the Irish Government, in conjunction with six of the other participating Member States, to adopt a common edge lettering for the EUR 2 coin, which will further enhance the harmonisation of the technical specifications for such coins circulating throughout the euro area.

text: 6. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 7 June 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank at the request of the Austrian Ministry of Finance under Article 105 (4), second indent, of the Treaty establishing the European Community and Article 4 (a), second indent, of the Statute of the European System of Central Banks and of the European Central Bank on a draft Federal Act by way of which measures in the field of currency in connection with the issuance of euro banknotes and coins are adopted (Euro Act), and the Austrian Coinage Act of 1988 and the Central Bank Act of 1984 are amended (CON/00/14)

text: OPINION OF THE EUROPEAN CENTRAL BANK Treaty establishing the European Community and Article 4 (a), second indent, of the Statute of the European System of Central Banks and of the European Central Bank on a draft Federal Act by way of which measures in the field of currency in connection with the issuance of euro banknotes and coins are adopted (Euro Act), and the Austrian Coinage Act of 1988 and the Central Bank Act of 1984 are amended CON/00/14

text: 1. On 24 May 2000 the European Central Bank (ECB) received a request from the Austrian Ministry of Finance on a draft Federal Act by way of which measures in the field of currency in connection with the issuance of euro banknotes and coins are adopted (Euro Act), and the Austrian Coinage Act of 1988 and the Central Bank Act of 1994 are amended.

text: 2. The ECB’s competence to deliver an opinion is based on Article 2(1) first and third indents, of Council Decision (

text: ) of 29 June 1998 on the consultation of the EC B by national authorities regarding draft legislative provisions, as the legislative proposal contains provisions concerning currency matters and national central banks. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the ECB, this ECB Opinion has been adopted by the Governing Council of the ECB.

text: 3. The objectives of the draft Federal Act are to adapt national legal provisions in order to (i) shorten the period of dual circulation of banknotes and coins to two months, (ii) arrange the changeover of the government budget to euro, (iii) amend national monetary law which conflicts with Community law and repeal it where it has become obsolete, (iv) establish the legal basis for the issuance of euro and cent coins, and (v) adopt additional banknote protection in the Central Bank Act.

text: 4. The ECB notes that according to the draft Federal Act the period of dual circulation of euro and Austrian schilling banknotes and coins ends at midnight on 28 February 2002 by withdrawing the legal tender status of Austrian schilling banknotes and coins from that date. This provision is in accordance with the joint Declaration of the Council of the European Union concerning the introduction of euro banknotes and coins of 8 November 1999, according to which the transitional period of dual circulation of euro banknotes and coins and national banknotes and coins of the individual EU Member States is to last between four weeks and two months.

text: 5. The ECB welcomes that those provisions in Austrian legislation which have become obsolete are explicitly repealed by the draft Federal Act.

text: 6. The ECB notes that the description of the legal tender status of euro banknotes and coins in Article I (1) (a), (b) and (d) of the draft Federal Act would not be necessary from a legal perspective. As stated correctly in the explanatory memorandum to the draft Federal Act, euro banknotes issued by the ECB and the national central banks of the Member States participating in the euro area, as well as the euro or cent coins issued by these Member States (competent mints) intended for circulation and in compliance with the measures laid down by the Council in accordance with Article 106(2) of the EC Treaty, are already legal tender in Austria by virtue of the provisions in Articles

text: and

text: of Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro. Therefore, no standardisation competencies are conferred upon the national legislator in this respect. Hence, the ECB understands that these provisions have only been referred to in the draft Federal Act for reasons of clarity.

text: 7. The ECB notes that according to Article II (4) of the draft Federal Act (now Article 9 (2) of the Austrian Coinage Act), the Münze Österreich Aktiengesellschaft shall, in order to inform the general public, immediately announce in the “Amtsblatt” (“Official Journal”) of the “Wiener Zeitung” issues of euro and cent coins made available by other Member States participating in Stage Three of Economic and Monetary Union without a derogation which are legal tender in all the Member States taking part in the third stage of Economic and Monetary Union. For the same reason, the Münze Österreich Aktiengesellschaft is according to Article II (5) of the draft Federal Act (now Article 10 (5) of the Austrian Coinage Act) obliged to announce in the “Amtsblatt” (“Official Journal”) of the “Wiener Zeitung” withdrawals of coins in other Member States.

text: 8. The ECB notes that according to Article II (5) of the draft Federal Act (now Article 10 (4) of the Austrian Coinage Act), for coins withdrawn from circulation in other Member States, where only a limited exchange period is provided for by the national rules of the issuing Member State, the obligation on the part of the Münze Österreich Aktiengesellschaft and the Oesterreichische Nationalbank to exchange such coins shall cease three weeks before the end of this exchange period. The ECB understands from the explanatory memorandum to the draft Federal Act that this obligation of the Münze Österreich Aktiengesellschaft and the Oesterreichische Nationalbank refers to the period during which such coins can be exchanged in the Member State which has withdrawn the coins after the coins have lost their legal tender status. The ECB notes that this provision represents the first determining such a period.

text: 9. The ECB understands that the provision of the draft Federal Act on legal tender euro and cent coins would probably not cover legal tender euro and cent coins that could be issued in the future by San Marino, the Vatican and Monaco, if a decision was to be taken to entitle these countries to issue such coins.

text: 10. The ECB welcomes that according to Article III of the draft Federal Act a provision to enhance the legal protection of banknotes is incorporated in the Central Bank Act, following a recommendation of the ECB of 7 July 1998 regarding the adoption of certain measures to enhance the legal protection of euro banknotes and coins (ECB/1998/7). The ECB notes, that according to this provision, the issuance and use of documents for payment purposes which are similar to banknotes, denominated in euro and intended for circulation, shall – to the extent that the act does not constitute a set of facts amounting to a punishable act falling within the competence of the courts and is not subject to a more severe punishment under other penal administrative provisions – be deemed an administrative infringement and shall be punished by the district administrative authority by the imposition of a fine of up to EUR 3,000.

text: 11. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 28 June 2000. The Vice President of the ECB [signed] Christian Noyer


title: Opinion of the European Central Bank of 27 June 2000 at the request of the Bank of Greece on a draft law ratifying amendments to the Statute of the Bank of Greece (CON/00/15)

text: 1. On 5 June 2000 the European Central Bank (ECB) received a request from the Bank of Greece for an ECB Opinion on a draft law ratifying amendments to the Statute of the Bank of Greece which were endorsed by its General Assembly of Shareholders on 25 April 2000 (the “draft law”).

text: 2. The ECB’s competence to deliver an opinion is based on Article 2, paragraph one, third indent, of the Council Decision (

text: ) of 29 June 1998 on the consultation of the ECB by national authorities regarding draft legislative provisions, as the legislative proposal contains provisions concerning a national central bank. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the European Central Bank, this ECB Opinion has been adopted by the Governing Council of the ECB.

text: 3. The amendments to the Statute of the Bank of Greece aim at the integration of the Bank of Greece in the Euro system upon introduction of the euro by Greece. The ECB has already delivered its Opinion CON/00/07 on the amendments to the Statute of the Bank of Greece on 17 April 2000 and it has also addressed such amendments in its May 2000 Convergence Report on Greece and Sweden. In its Opinion and Convergence Report, the ECB noted that the ECB should also be consulted on the draft law to be adopted by Parliament, which is with this procedure now effectuated.

text: 4. The draft law ratifies in

text: Article 18

text: the decision of the General Assembly of 25 April 2000 and reiterates the amendments to the Statute of the Bank of Greece as adopted by the General Assembly on that date.

text: 5. The ECB notes that Article 18 of the draft law contains provisions incorporating the observations of the ECB made in its Opinion CON/00/07 under sections 5 to 24. In accordance with the observation in section 16 of Opinion CON/00/07, the ECB notes that paragraph 37 of

text: Article 18

text: recognises that the words “adoption of the euro as the national currency of Greece” throughout the Statute of the Bank of Greece shall be replaced by the “adoption of the euro as the currency of Greece”. The ECB welcomes this clarification.

text: 6. In accordance with the ECB’s Opinion and its April 2000 Convergence Report, the draft law repeals the core provisions of Law 2548/97 in

text: Article 19

text: . The provisions remaining in force amend or repeal previous legislation, regulate issues relating to the interim period after the entry into force of the draft law until the introduction of the euro or are of a transitional or technical nature and, consequently, have not been incorporated in the Bank of Greece’s Statute. The ECB appreciates that Law 2548/97 has now almost completely been abolished, but that there are at the same time a very limited number of provisions which, by nature, may be better placed in a law which can be more easily amended rather than in the Bank of Greece’s Statute, which is of a more permanent nature. The ECB acknowledges that the Bank of Greece’s Statute in any case clearly and unambiguously elaborates, for example in

text: Article 2

text: , third paragraph, the Bank of Greece’s status as an integral part of the Eurosystem and the implications thereof.

text: 7. All in all, the ECB welcomes the draft law and notes with satisfaction that its adoption will complete the legislative procedure to make the Bank of Greece’s Statute compatible with requirements for the introduction of the euro as laid down in the Treaty establishing the European Community and the Statute of the ESCB/ECB.

text: 8. The ECB confirms that it has no objection to this ECB Opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 27 June 2000. The President of the ECB [signed] Willem F. Duisenberg


title: Opinion of the European Central Bank of 28 August 2000 at the request of the Irish Department of Justice, Equality and Law Reform on a draft legislative proposal on the counterfeiting of euro-denominated notes and coins (CON/00/16)

text: 1. On 7 July 2000 the European Central Bank (ECB) received a request from the Irish Department of Justice, Equality and Law Reform for an ECB opinion on a draft Criminal Justice (Theft and Fraud Offences) Bill, 2000.

text: 2. The ECB’s competence to deliver an opinion is based on

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the legislative proposal contains provisions concerning currency matters. In accordance with

text: Article 17.5

text: , first sentence, of the Rules of Procedure of the European Central Bank, this ECB opinion has been adopted by the Governing Council of the ECB.

text: 3. Part 5 and Section 56 of the draft Bill establish the criminal law regime under Irish law for the counterfeiting of currency notes and coins, the passing of counterfeit currency notes or coins, the custody or control of counterfeit currency, the custody or control of any thing used for making counterfeit currency, the import and export of counterfeits and the criminal liability for offences committed by artificial legal persons (e.g., bodies corporate and unincorporated). It is noted, in particular, that the draft Bill makes provision for the following: (1) ‘currency note’ and ‘coin’ are defined to mean, respectively, a currency note and coin lawfully issued or customarily used as money in the Irish State or in any other State and include a note denominated in the euro unit and a coin denominated in euro or in cent, whether issued or not; (2) a person who outside the Irish State makes a counterfeit of a currency note or coin, with the intention that he or she or another shall pass or tender it in any Member State of the European Union as genuine, is guilty of an offence, and is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both; and (3) a person who without lawful authority or excuse imports into, or exports from, a Member State of the European Union a counterfeit of a currency note or coin is guilty of an offence, and is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.

text: 4. The ECB recalls its recommendation of 7 July 1998 regarding the adoption of certain measures to enhance the legal protection of euro banknotes and coins (ECB/1998/7) , and in particular the ECB’s recommendation that the Council of the European Union, the European Commission and the Member States should consider a review of current policies to combat counterfeiting, inter alia evaluating the need for harmonisation of penal laws in the field of counterfeiting. In this regard, the ECB notes that

text: Article 12 of Council Regulation (EC) No 974/98 of 3 May 1998

text: on the introduction of the euro obliges the Member States participating in economic and monetary union to ensure adequate sanctions against counterfeiting and falsification of euro banknotes and coins.

text: 5. With respect to the Council Framework Decision of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (2000/383/JHA), the ECB notes that Member States are required to take the necessary measures to comply with this framework Decision by 31 December 2000 as far as

text: Article 5

text: (a) of the framework Decision is concerned and not later than 29 May 2001 as far as the other provisions of the framework Decision are concerned. By the same dates the Member States are required to transmit to the General Secretariat of the Council, the Commission and the ECB the text of the provisions transposing into their national law the obligations imposed on them under this framework Decision, and the Council will, by 30 June 2001 at the latest, on the basis of this information and a written report by the Commission, assess the extent to which Member States have taken the necessary measures in order to comply with this framework Decision.

text: 6. Under Article 2 of the framework Decision the Member States that have not yet done so undertake to accede to the International Convention of 20 April 1929 for the Suppression of Counterfeiting Currency and its Protocol. The ECB understands that Ireland ratified the Convention and its Protocol on 24 July 1934, and notes that a text evidencing the transposition of the Convention and its Protocol into Irish law has to be transmitted to the ECB not later than 29 May 2001. OJ L 189, 3.7.1998, p. 42-43. OJ C 246, 6.8.1998, p. 9. OJ L 139, 11.5.1998, pp. 1-5.

text: 7. Article 3(2) of the framework Decision requires each Member State to take the necessary measures to ensure that participating in and instigating the conduct referred to in Article 3(1) of the framework Decision, and attempting the conduct referred to in points (a) to (c) of said

text: Article 3(1)

text: , are punishable. The ECB notes that a text evidencing the transposition, as a matter of general Irish criminal law, of the inchoate criminal offences of attempting, conspiring or inciting the commission of offences covered by said

text: Article 3(1)

text: 8. Article 4 of the framework Decision requires that Member States ensure that conduct referred to in

text: Article 3

text: is also punishable with respect to banknotes or coins being or having been manufactured by use of legal facilities or materials in violation of the rights of the competent authorities. Further consideration may need to be given to whether the scope of Section 31(2)(a) of the draft Bill sufficiently covers this offence by extending the concept of a counterfeit to a currency note or coin that ‘resembles a currency note or coin (whether on one side only or both) to such an extent that it is reasonably capable of passing for a currency note or coin of that description’.

text: 9. Under Article 5 of the framework Decision each Member State is required to take the necessary measures to ensure that the conduct under Articles 3 and 4 of the framework Decision is punishable if (a) it relates to the future banknotes and coins of the euro and is committed before 1 January 2002; and (b) it relates to banknotes and coins which are not yet issued but are designated for circulation, and are of a currency which is legal tender. Section 31(1) of the draft Bill refers to euro banknotes and coins ‘whether issued or not’. Further consideration may need to be given to whether this formula should be more closely tied to the precise wording of Article 5 of the framework Decision. In this context, it could also be considered whether Section 31(1) of the draft Bill, which refers to ‘a note denominated in the euro unit’, could be simplified by referring to ‘a note denominated in euro’.

text: 10. The ECB notes that Article 7(2) of the framework Decision requires that at least the Member States in which the euro has been adopted take the appropriate measures to ensure that the prosecution of counterfeiting, at least in respect of the euro, is possible, independently of the nationality of the offender and the place where the offence has been committed (the universality principle). The ECB notes that under the draft Bill the only criminal offences OJ L 140, 14.6.2000, p. 1. committed outside the Irish State which are proposed to constitute punishable offences under the draft Bill are the offences of (a) a person making a counterfeit of a currency note or coin outside the State with the intention that he or she or another shall pass or tender it in any Member State of the European Union as genuine (Section 32(2)); and (b) a person importing into, or exporting from, a Member State of the European Union a counterfeit currency note or coin (Section 36(1)). The ECB notes that the offences listed in the draft Bill relating to the making (with the intention of passing or tendering it as genuine outside the EU), passing or tendering of counterfeit currency or of having custody or control of counterfeit currency or things to be used for making counterfeit currency are not stated to be punishable offences where committed outside the Irish State.

text: 11. Article 7(3) of the framework Decision provides that where more than one Member State has jurisdiction and has the possibility of viable prosecution of an offence based on the same facts, the Member States involved shall co-operate in deciding which Member State shall prosecute the offender or offenders with a view to centralising the prosecution in a single Member State where possible. The ECB notes that Ireland intends to implement such co-operation on the basis of existing administrative procedures, and a text evidencing the transposition of this provision into Irish law will therefore not be transmitted to the ECB.

text: 12. The ECB confirms that it has no objection to this ECB opinion being made public by the competent national authorities at their discretion. Done at Frankfurt am Main on 28 August 2000. The President of the ECB [signed] Willem F. Duisenberg