text: ECB Opinion

text: of 7 June 2004 at the request of the Ministry of Finance of the Netherlands on a draft Financial Sector Supervision Act.

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

text: In paragraph 9 of ECB Opinion

text: , the ECB made a similar recommendation.

text: Article 3.1

text: , fourth indent of the Statute.

text: Article 3.3 of the Statute.

text: See Article 5.1 of the Statute.

text: In paragraph 9 of ECB Opinion

text: Directive

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

title: Opinion of the European Central Bank of 25 April 2006 on the Dutch draft law concerning financial sector supervision (CON/2006/20)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 25 April 2006 on the Dutch draft law concerning financial sector supervision (

text: ) Introduction: background and legal basis

text: On 6 May 2004 the European Central Bank (ECB) received a request from the Dutch Ministry of Finance for an opinion on the first part of the Voorstel Van Wet op het financieel toezicht (draft law on financial sector supervision) (hereinafter the ‘draft law’), which contained general provisions of an institutional nature. On 7 June 2004 the ECB issued an opinion on the first part of the draft law pointing out, inter alia, that ‘The ECB looks forward to being able to supplement this opinion when it is consulted on the other parts.’ On 1 September 2004 the ECB received part two of the draft law for information purposes only. On 30 September 2004 the President of the ECB sent a letter to the Dutch Minister for Finance requesting that the ECB be consulted on part two of the draft law. The Dutch Minister for Finance clarified in a letter of 5 November 2004 that, in his opinion, it is not necessary to consult the ECB on the parts of the draft law which concern prudential supervision, as well as those concerning the conduct of business by financial institutions. The Minister did undertake to consult the ECB in the future on the part of the draft law which concerns the infrastructure of the financial markets. However, the ECB understands that this part is still under preparation. The ECB’s competence to deliver an opinion on part two of the draft law is based on Article 105(4) of the Treaty establishing the European Community and the third, fifth and sixth indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to a national central bank (NCB), namely De Nederlandsche Bank (DNB), payment and settlement systems and rules applicable to financial institutions in so far as they materially influence the stability of financial institutions and markets. In view of the above, and furthermore considering that the ECB has several comments with respect to the current draft law, the ECB has decided to submit this own-initiative opinion.

text: In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The purpose of the draft law is to establish a legal framework for the introduction of a functional model for supervision. 1.2 The draft law is divided into six parts. Part ‘General Provisions’; Part ‘Market Access financial companies’; Part ‘Prudential Supervision on financial companies’; Part ‘Market Conduct Supervision on financial companies’; Part ‘Market Conduct Supervision on financial markets’; Part ‘Infrastructure financial markets’. The first five parts of the draft law on Financial Sector Supervision are scheduled to enter into force from 1 January 2007. The sixth part ‘Infrastructure financial markets’ is currently under preparation and is intended that it should enter into force on 1 January 2008. The necessary transitional provisions and amendments of other laws will be covered in a separate law implementing the draft law which will be submitted to Parliament in due course and will enter into force on 1 January 2007.

text: 2. Comments on the proposed institutional framework

text: 2.1 The draft law introduces a new functional model on the basis of which DNB will be responsible for prudential supervision of the entire financial sector, whereas the Authority for Financial Markets (AFM) will be responsible for market conduct supervision and will focus on ensuring orderly and transparent financial market processes, clear relationships between market entities and that consumers are treated with due care. 2.2 As stated above, the ECB has already provided its opinion on an earlier version of part one of the draft law. The ECB is aware that the draft law has since been modified on several occasions through five memorandums of amendments. Currently the sixth memorandum of amendments is under preparation. 2.3 In its earlier opinion, the ECB commented on several aspects of the draft law’s institutional part and noted that some draft provisions did not distinguish between DNB’s tasks relating to its participation in the European System of Central Banks (ESCB) and its non-ESCB related tasks. As a consequence, some of those provisions were deemed incompatible with the legal framework established by the Treaty concerning NCBs as members of the ESCB. These incompatibilities concerned parts of the draft law dealing with the accountability of DNB and the AFM to the Minister for Finance, the budgetary approval process, the amendment of DNB’s statutes and the exchange of information between the Dutch supervisors and the ECB and other central banks. These comments have not been taken into account in the latest version of the draft law.

text: 2.4 As already mentioned in the earlier ECB opinion , the draft law allows the Dutch supervisory authorities to exchange confidential information with the ECB, a foreign central bank or other foreign authorities with similar tasks, but only to the extent that this is conducive to fulfilling their ‘monetary task’ (

text: Article 1

text: :77(1)(a) of the draft law). This limitation to the ‘monetary task’ is deemed too restrictive as this would not cover the entire set of tasks the Treaty and the Statute of the European System of Central Banks and of the European Central Bank conferred upon the ESCB. Indeed, in addition to its basic task which consists of defining and implementing the single monetary policy, the ESCB’s basic tasks also include promoting the smooth operation of payment systems and contributing to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system . With regard to the latter function, it is noted that the transmission of supervisory information and data, primarily in aggregated form, is necessary for the effectiveness of the central bank’s financial stability monitoring and assessment of the conditions of the financial system as a whole as well as of the efficacy of its response when a financial crisis occurs. 2.5 In order to undertake these and other tasks, the ECB, assisted by the NCBs, collect the necessary statistical information either from the competent national authorities or directly from economic agents , while limiting the overall reporting burden. Moreover, the ECB anticipates that an exchange of such information can serve to further enhance the statistics needed by the ESCB. 2.6 Therefore, the ECB emphasises the need to insert an explicit provision in the draft law stipulating that the exchange of information under

text: Article 1

text: :77(1)(a) applies to all ESCB-related tasks and not merely to the monetary policy task , as well as introducing the other changes suggested in ECB Opinion

text: 3. Payment and securities settlement systems

text: 3.1 As has already been noted, the division of tasks under the draft law implies that the AFM will supervise market conduct of financial institutions, including clearing institutions. Market conduct supervision is defined in the draft law as ‘promoting orderly and transparent financial market processes’ (

text: Article 1

text: :8). 3.2 Payment systems fall under the draft law’s definition of financial institutions and might also fall under the scope of the AFM’s market conduct supervision. Given the similarity between the concept of market conduct supervision, as defined in the draft law, and the Eurosystem’s statutory task of ‘promoting the smooth operation of payment systems’ (which it performs through its oversight function), considering Article 25.1 of the ESCB Statute on the ECB role in the area of

text: financial stability and knowing that payment systems and securities settlement systems (SSSs) are interlinked, there may be a conflict between the responsibilities of the ESCB and the responsibilities of the AFM, as may be provided for in the future sixth Part ‘Infrastructure financial markets’ of the draft law. 3.3 At the Community level, the general legal basis for the oversight of payment systems is provided by the Treaty and the Statute with more detailed policies introduced by the Eurosystem’s common oversight policy, as defined by the Governing Council. 3.4 In the interest of making responsibilities clear, the ECB recommends that the oversight of payment systems, including market conduct, be explicitly assigned to DNB in the future sixth Part of the draft law, which would be consistent with the participation of DNB in the ESCB. 3.5 As noted in previous ECB opinions, payment systems and SSSs are interlinked, particularly in view of the use of the ‘delivery versus payment’ mechanism, under which settlements of securities and transfers of funds take place simultaneously. There is therefore a strong argument in favour of the model used in some Member States of integrating the oversight of payment systems and SSSs, and for the NCB to perform this function. Settlement of both legs of such transactions should be subject to similar safeguards in order to avoid asymmetries, possibly with systemic implications. 3.6 In order to safeguard the effectiveness of monetary policy and the overall stability of the financial system, the NCBs’ oversight responsibilities mean that they must ensure that SSSs are sufficiently protected against systemic disruptions. The framework for the NCBs’ conduct of this function, although informal, has been effective and successful. A growing number of NCBs see a benefit in formalising their oversight role. The majority of NCBs carry out this function on the basis of their statutes without any explicit detailed legal provisions. The ECB therefore also recommends clarifying DNB’s role in the oversight of SSSs.

text: 4. Final institution

text: 4.1 Another important issue is that non-public banks (or opting-in banks, i.e. banks that do not longer fall within the scope of the new definition of ‘bank’ in the draft law, but have opted in for a voluntary bank permit on the basis of

text: Article 2

text: :5 of the draft law) also need to qualify as ‘final institutions’ within the meaning of

text: Article 212

text: a of the Dutch Law on bankruptcies and

text: Article 2

text: (b) of the Settlement Finality Directive in order to be able to participate in payment systems and SSSs. 4.2 The ECB understands that the definition of final institution in

text: Article 212

text: a of the Law on bankruptcies will only be aligned with the definition of a bank in

text: Article 1

text: :1 of the draft law once the law implementing the draft law – which is now under preparation – is adopted. Furthermore, the ECB would like to observe that, from the point of view of a level playing field, it is considered

text: desirable that opting-in banks that hold a voluntary bank permit on the basis of

text: Article 2

text: :5 of the draft law, are brought into line with banks that hold a ‘conventional’ bank permit. The ECB would also welcome being consulted on this issue. This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 25 April 2006. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 139, 11.5.1998, p. 6. Regulation as amended by

text: Regulation (EC) No 423/1999

text: (OJ L 52, 27.2.1999, p. 2).

text: Available on the European Commission’s website at www.europa.eu.int.

publisher: Europeiska centralbanken

sprak: en

title: Opinion of the European Central Bank of 28 April 2006 at the request of the Portuguese Ministry of Finance and Public Administration on a draft decree-law on the issue, minting, putting into circulation and marketing of coins (CON/2006/22)

serie: con

text: OPINION OF THE EUROPEAN CENTRAL BANK of 28 April 2006 at the request of the Portuguese Ministry of Finance and Public Administration on a draft decree-law on the issue, minting, putting into circulation and marketing of coins (

type: rubrik

text: On 20 March 2006 the European Central Bank (ECB) received a request from the Portuguese Ministry of Finance and Public Administration for an opinion on a draft decree-law on the issue, minting, putting into circulation and marketing of coins (hereinafter the ‘draft decree-law’). The ECB’s competence to deliver an opinion is based on the first and second indents of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft decree-law relates to currency matters and means of payment. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

type: stycke

text: 1. Purpose of the draft decree-law

text: The purpose of the draft decree-law is to codify in a single legal act the various laws relating to the classification of coins and the rules on the issue, marketing and distribution of coins that are currently in force in Portugal, namely Decree-Law 293/86 of 12 September 1986, Decree-Law 178/88 of 19 May 1988 and Decree-Law 318/2002 of 28 December 2002. Furthermore, it lays down sanctions for infringements of

text: Council Regulation (EC) No 2182/2004 of 6 December 2004

text: concerning medals and tokens similar to euro coins .

text: 2. General observations

text: 2.1 The ECB understands that the aim of the draft decree-law is to regulate those matters relating to the issue, minting, putting into circulation and marketing of coins that are not covered by Community legislation. From a formal point of view, the ECB trusts that grouping all these rules, which are currently dispersed in various legal acts, in the draft decree-law will enhance legal certainty and transparency. 2.2 The ECB welcomes the fact that the draft decree-law includes a sanctions regime for infringements of

text: Regulation (EC) No 2182/2004

text: , as required under Article 6(1) of that Regulation. However, this

text: opinion does not assess whether the sanctions laid down in the draft decree-law are effective, proportionate and dissuasive, as required by

text: Article 6(1) of Regulation (EC) No 2182/2004

text: , since this is an implementation matter falling outside the ECB’s competences under the Treaty establishing the European Community.

text: 3. Issues relating to the classification of coin types

text: 3.1 Articles 2 and 3 of the draft decree-law distinguish between ‘standard coins’ and ‘collector coins’. The former refers to coins that are intended to meet the needs of monetary circulation and Community legislation provides for the visual characteristics of the common side, the face value and technical specifications of such coins; the latter are issued solely for numismatic purposes. The ECB understands that, pursuant to

text: Article 2(3)

text: and (4) of the draft decree-law, commemorative issues may be made of standard coins, and such issues are characterised by a variation in the design of the national side of the coins to celebrate important national or international events. 3.2 The ECB supports including commemorative coins within the classification of ‘standard coins’, in particular as they are circulation coins which comply with the technical specifications laid down in

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

text: on denominations and technical specifications of euro coins intended for circulation , even if they have a different national design from the standard national obverse design.

text: Article 2

text: (b) of

text: Commission Recommendation 2003/734/EC of 29 September 2003

text: on a common practice for changes to the design of national obverse sides of euro circulation coins refers to the 2-euro coin as the sole denomination for commemorative coin issues. Recital 7 to the draft decree-law refers to Recommendation

text: , thus anticipating that the decree-law will comply with Recommendation

text: , in particular with

text: Article 2

text: (b) thereof, and this Recommendation was endorsed in the EU Council’s Conclusions of 8 December 2003 on changes in the design of the national sides of euro coins . The ECB therefore proposes rewording recital 7 to the draft decree-law so that it includes a reference to the fact that Recommendation

text: refers to a single denomination for the issuance of commemorative euro circulation coins. 3.3 As for collector coins, the ECB welcomes the fact that these will be issued solely for numismatic purposes, hence not for circulation, and the fact that they have different visual characteristics, face values and technical specifications from standard coins.

text: 4. The issue and putting into circulation of coins

text: 4.1 The ECB notes that Article 5 of the draft decree-law correctly states that the issue of coins is the responsibility of the Portuguese State, irrespective of the type of finish, and that this is subject to

text: the volume of coin issuance approved by the ECB. The ECB understands that the latter reference includes both standard and collector coins. 4.2 The ECB notes that Article 8(1) of the draft decree-law entrusts the Banco de Portugal with the task of putting coins into circulation. Article 8(4) of the draft decree-law states that the face value of coins put into circulation is paid over by the Banco de Portugal to the Directorate-General of the Treasury. The ECB understands that these payments are only due in relation to the number of euro coins which have actually been put into circulation, rather than in relation to the number of coins the Banco de Portugal holds. In this regard, the ECB recalls that, pursuant to

text: Article 6 of Council Regulation (EC) No 3603/93 of 13 December 1993

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

text: and

text: (b)(1) of the Treaty , ‘the holding by the European Central Bank or the national central banks of coins issued by the public sector and credited to the public sector shall not be regarded as a credit facility where the amount of these assets remains at less than 10 % of the coins in circulation’.

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

text: Done at Frankfurt am Main, 28 April 2006.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET

type: vagledning

utgivare: ecb


text: Available on www.ecb.int.

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

text: on the introduction of the euro (OJ L 139, 11.5.1998, p. 1). Regulation as amended by

text: Regulation (EC) No 2596/2000

text: (OJ L 300, 29.11.2000, p. 2).

text: See for instance paragraphs 10 to 14 of ECB Opinion

text: of 7 August 2003 at the request of the Banca d’Italia on a draft regulation on payment systems, payment infrastructures and payment instruments; paragraphs 13 to 16 of ECB Opinion

text: of 15 July 2005 at the request of the Ministry of Finance of the Czech Republic on a draft law on the integration of financial market supervisors.

text: Directive

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

text: For instance, Directive

text: of the European Parliament and of the Council of 27 January 1997 on cross-border credit transfers (OJ L 43, 14.2.1997, p. 25); Directive

text: of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (OJ L 126, 26.5.2000, p. 1), Directive as last amended by

text: Commission Directive 2006/29/EC

text: (OJ L 70, 9.3.2006); Directive

text: of the European Parliament and of the Council of 18 October 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions (OJ L 275, 27.10.2000, p. 39), Directive

text: of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ L 125, 5.5.2001, p. 15); Directive

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

text: Regulation (EC) No 2560/2001

text: of the European Parliament and of the Council of 19 December 2000 on cross-border payments in euro (OJ L 344, 28.12.2001, p. 13).

title: Opinion of the European Central Bank of 22 May 2006 at the request of the Central Bank of Malta concerning a draft law amending the Central Bank of Malta Act (CON/2006/23)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 22 May 2006 at the request of the Central Bank of Malta concerning a draft law amending the Central Bank of Malta Act (

text: ) Introduction and legal basis

text: On 31 March 2006, the European Central Bank (ECB) received a request from the Central Bank of Malta for an opinion on a bill amending the Central Bank of Malta Act (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the first, second, third, fourth and fifth indents of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to currency matters, means of payment, national central banks (NCBs), the collection, compilation and distribution of statistics and payment and settlement systems. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion. The ECB welcomes the amendments contained in the draft law intended to integrate the Central Bank of Malta (‘CBM’) into the Eurosystem. They also address the issues raised in the ECB’s 2004 Convergence Report , as well as some additional issues relevant to the introduction of the euro in Malta. The amendments relate mainly to the CBM’s tasks, including monetary policy, foreign reserves, euro banknotes and coins and payment systems. They also cover the CBM’s relations with the Maltese Government and the appointment of auditors for the CBM. In addition, these amendments provide transitional provisions to regulate the exchange of Maltese lira banknotes and coins after the euro adoption date.

text: 1. Comments on Part I ‘Preliminary’

text: 1.1 The bill defines ‘coins denominated in euro’. It is understood that the purpose of this definition is to clarify that any reference to euro coins also includes the coins of the subdivisions of the euro, i.e. the euro cent coins. The ECB proposes deleting this definition, given that any reference to the euro

text: should always be construed as a reference to a currency, of which the currency unit is one euro and which is subdivided into 100 cent . 1.2 The ECB would also like to draw attention to the fact that in the definition of the term ‘Treaty’, the correct date should read ‘25 March 1957’.

text: 2. Comments on Part II ‘Establishment and Conduct of Affairs of Bank’

text: 2.1 The ECB welcomes the comprehensive

text: Article 3

text: to be inserted in the Central Bank of Malta Act as it will be amended (hereinafter the ‘amended CBM Act’), establishing that the CBM will be an integral part of the European System of Central Banks as established under the Treaty. This Article also refers to the CBM’s rights and obligations due to such status, and imposes the obligation to comply with the objectives conferred on it by the Statute of the European System of Central Banks and of the European Central Bank. 2.2 Although this introductory Article asserts the compatibility of the CBM’s functions with those prescribed to it by the Statute and the Treaty, and that any interpretation of the following provisions of the amended CBM Act should be construed within an ESCB context, the ECB nevertheless suggests that some provisions of the amended CBM Act should make more explicit references to the Statute and the Treaty. To this end, Article 5 of the amended CBM Act should be clearer in establishing that the CBM will execute any of its tasks in accordance with the Statute and the Treaty rather than providing for action ‘within the framework of the ESCB’. Hence, the strict approach adopted in Articles

text: and

text: should also be used in

text: Article 5

text: . 2.3 Article 5(2) of the amended CBM Act prohibits the CBM, or any of its officials or members of its Board of Directors when exercising any function, duty or power under the same Act, from seeking or taking instructions from the Government or any other body. For the sake of clarity, however, this Article should mirror in the amended CBM Act Article 108 of the Treaty, including the prohibition on the Government from seeking to influence the CBM, its Board of Directors or any of its officials. 2.4

text: Article 17(1)

text: (g) of the amended CBM Act provides that the CBM safeguards financial stability or in other exceptional circumstances may grant a loan or advance to any credit institution incorporated in Malta against such forms of security as the Board may consider appropriate. The ECB understands that the purpose of this provision is to provide for the possibility of emergency liquidity assistance. While similar provisions can be found in several NCBs’ statutes,

text: Article 17(1)

text: (g) should also provide that such loans or advances are provided without prejudice to the requirements derived from the CBM’s participation in the ESCB. In any event, compliance with the prohibition on monetary financing in Article 101 of the Treaty must be ensured.

text: 2.5 Article 17(3) of the amended CBM Act should also refer to the wider general term ‘financial instruments’ rather than ‘securities’, given the risk usually associated with investing solely in the latter type of instrument. 2.6 Once Malta introduces the euro and the CBM effectively becomes part of the Eurosystem, monetary policy will no longer be subject to national scrutiny. Article 15 of the Statute provides that the ECB’s President, on behalf of the ESCB, will report to the European Parliament, the Council, the Commission and the European Council. In addition, the CBM’s Governor may still ask to be heard, or be requested to provide information or answer any questions related to the implementation of the Eurosystem’s monetary policy and decisions before the Maltese House of Representatives, provided that the CBM’s independence and the Eurosystem’s communication rules are respected. In view of this, the ECB recommends inserting in Article 18(4) of the amended CBM Act the necessary safeguards.

text: 3. Comments on Part III ‘Financial Provisions’

text: 3.1. The ECB welcomes the fact that Article 19 of the amended CBM Act establishes a minimum level for the CBM’s legal reserves since this reinforces the principle of financial independence. Nevertheless, the CBM might consider including in the amended CBM Act the procedures describing the recapitalisation of the reserves if they have been exhausted by a financial loss. 3.2. Article 20 of the amended CBM Act does not adequately reflect the proceedings under Article 27.1 of the Statute. The independent external auditors appointed to verify the CBM’s accounts, whilst appointed by the CBM’s Board of Directors, also have to be recommended by the ECB’s Governing Council and approved by the EU Council under Article 27.1 of the Statute. In the current wording of

text: Article 20

text: , these requirements seem to be covered by the concluding phrase ‘in accordance with the Statute’. However,

text: Article 20

text: also provides for the approval of the external auditors by the Maltese Minister for Finance, which is incompatible with Article 27.1 of the Statute since the latter provision establishes that they have to be approved by the EU Council. For this reason, Article 20 of the amended CBM Act should provide that the CBM’s accounts are to be audited by independent external auditors recommended by the ECB’s Governing Council and approved by the Council, and authorise the Board to appoint such auditors.

text: 4. Comments on Part IV ‘Collection of Information’

text: 4.1. The ECB recommends slightly amending Article 24(1) of the amended CBM Act to clarify that the CBM’s power to issue directives is subject to their conformity with

text: Article 5.1 of Council Regulation (EC) No 2533/98 of 23 November 1998

text: concerning the collection of statistical information by the European Central Bank . This reference would recognise the primacy of

text: secondary Community legislation over national law in the field of statistics and is in the interests of legal certainty. 4.2. Along the same lines, in

text: Article 24(2)

text: concerning the CBM’s right to verify the accuracy and quality of statistical information submitted under Article 24(1) of the amended CBM Act, a reference to

text: Article 6 of Regulation (EC) No 2533/98

text: would be beneficial.

text: 5. Comments on Part V ‘Relations with Government’

text: 5.1. National legislation mirroring the directly applicable provisions of

text: Article 101

text: may not narrow the scope of application of the monetary financing prohibition. Therefore, Article 27(1) of the amended CBM Act needs to be extended to be consistent with the Treaty and to fully mirror the content of Article 101 of the Treaty to avoid any confusion as to the entities covered by the monetary financing prohibition, or alternatively could contain a reference to Article 101 of the Treaty, or be deleted.

text: 6. Comments on Part VI ‘Relations with Credit and Financial Institutions’

text: 6.1. The ECB proposes including in Article 32 of the amended CBM Act a clear reference to Article 14.4 of the Statute. In this way, any cooperation with credit and financial institutions for the furtherance of policies in the national interest would be emphasised, given this clearly falls outside the functions specified in the Statute. It will be carried out under the CBM’s responsibility and liability, and permitted unless decided otherwise by the ECB’s Governing Council. Alternatively, the ECB proposes deleting Article 32 of the amended CBM Act. 6.2. It appears that Article 33 of the amended CBM Act refers to minimum reserve requirements, although using slightly different terminology (‘reserve deposits’). The proposed amendments to

text: Article 33

text: do not bring Maltese reserve requirements fully into line with the regime adopted under Article 19 of the Statute and the relevant Community law, namely (i)

text: Council Regulation (EC) No 2531/98 of 23 November 1998

text: concerning the application of minimum reserve requirements by the European Central Bank ; and (ii) Regulation ECB/2003/9 of 12 September 2003 on the application of minimum reserves . This legislation, which is directly applicable to and binding on credit institutions in the euro area, is intended to ensure that the terms and conditions for the Eurosystem’s minimum reserve system are uniform throughout the euro area. Article 33 of the amended CBM Act should therefore use wording closer to the wording for the minimum reserve system established under Article 19 of the Statute.

text: 7. Comments on Part VII ‘Payment Systems’

text: 7.1. Part VII of the amended CBM Act is entitled ‘Payment Systems’.

text: Article 35(7)

text: makes equivalent the definition of ‘payment system’ and ‘system’. It is not entirely clear whether or not the amended CBM Act also covers securities clearing and settlement systems. In fact, as noted in previous ECB opinions , payment systems and securities clearing and settlement systems are interlinked, particularly in view of the use of the ‘delivery versus payment’ mechanism, which ensures that delivery of securities occurs only if payment occurs. There is therefore a strong argument in favour of the model used in some Member States of integrating the oversight of payment and securities settlement systems, and for the central bank to perform this function. Settlement of both legs of such transactions should be subject to similar safeguards in order to avoid asymmetries with systemic implications. Therefore, the amended CBM Act should clarify that it expressly also covers securities clearing and settlement systems. In this context, the ECB recommends aligning the terms and concepts used in national law as closely as possible to the corresponding concepts of Community legislation, notably the definition and concept of ‘participant’ in systems in the Settlement Finality Directive . 7.2. Payment systems oversight is a core Eurosystem competence and the common oversight policy defined by the Governing Council is the basis for the central banks’ oversight activity. The ECB is of the opinion that it would be useful if the amended CBM Act reflected the role of the Eurosystem more clearly by, for example, stating that the CBM would continue to conduct oversight within the Eurosystem’s framework on the basis of requirements and standards endorsed by the ECB’s Governing Council. 7.3. The current draft law gives the CBM very general regulatory rights over payments. Article 35(5) of the amended CBM Act mentions several different aspects of payments, e.g. participation in payment systems, cross-border credit transfers and electronic payment services. Community legislation already covers these areas to some extent. To avoid any confusion regarding the CBM’s regulatory powers within an ESCB context and for the purposes of clarity and legal certainty, the ECB strongly recommends inserting in

text: Article 35(5)

text: a reference to the relevant Community legislation as well as to the national regulatory regime implementing it.

text: 8. Comments on Part IX ‘Relations with International and Other Organisations’

text: 8.1. Although it is understood that Article 40 of the amended CBM Act also has to provide for the CBM’s participation in international organisations involving tasks outside the ESCB, such Article should refer to Article 6 of the Statute in so far as international cooperation involving tasks entrusted to the ESCB is concerned. With regards to the latter type of cooperation, the ECB decides on the representation of the ESCB. Hence, Article 40 of the amended CBM Act should reflect this through a reference to the Statute.

text: 9. Comments on Part X ‘Currency’

text: 9.1. In addition to the reference to the Statute, Article 52 of the amended CBM Act should refer to Decision ECB/2003/4 of 20 March 2003 on the denominations, specifications, reproduction, exchange and withdrawal of euro banknotes , in particular to Articles

text: and

text: thereof.

text: Done at Frankfurt am Main, 22 May 2006.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 168, 27.6.2002, p. 43.

text: See paragraph 12 of ECB Opinion

text: of 25 May 2005 at the request of the Ministry of Finance of Luxembourg on a draft law on financial collateral arrangements; available on the ECB’s website at www.ecb.int.

text: See paragraph 10 of ECB Opinion

text: of 13 June 2001 at the request of the Council of the European Union concerning a proposal for a Directive of the European Parliament and of the Council on financial collateral arrangements, paragraph 6 of ECB Opinion

text: of 26 June 2003 at the request of Austrian Federal Ministry of Justice on a draft federal law implementing Directive

text: on financial collateral arrangements, and paragraph 15 of ECB Opinion

text: . The opinions are available on the ECB’s website at www.ecb.int.

text: Zakon o Banki Slovenije, adopted on 19 June 2002 and last amended on 30 March 2006; published in the Official Gazette of the Republic of Slovenia, Nos 58/02, 85/02 and 39/06.

title: Opinion of the European Central Bank of 22 May 2006 at the request of the Slovenian Ministry of Justice on a draft law amending the Law on financial collateral (CON/2006/24)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 22 May 2006 at the request of the Slovenian Ministry of Justice on a draft law amending the Law on financial collateral (

text: ) Introduction and legal basis

text: On 13 April 2006 the European Central Bank (ECB) received a request from the Slovenian Ministry of Justice for an opinion on a draft law amending the Law on financial collateral (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the fifth and sixth indents of Article 2(1) and

text: Article 2(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 draft law relates to payment and settlement systems, the rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets, and instruments of monetary policy. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The main objectives of the draft law are: (i) to introduce into the Law on financial collateral (hereinafter the ‘Law’) the concept of a ‘maximum pledge’ with respect to the provision of financial collateral; and (ii) to implement Directive

text: of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (hereinafter the ‘Collateral Directive’) .

text: 2. General observations

text: 2.1 In general terms, the ECB welcomes the proposed amendments as the draft law addresses matters that are directly relevant to the Eurosystem’s core fields of competence and will have an impact 1 OJ L 189, 3.7.1998, p. 42. 2 Zakon o finančnem zavarovanju, adopted on 22 April 2004, published in the Official Gazette of the Republic of Slovenia No 47/04.

text: both on the efficient and safe use of financial collateral arrangements in EU financial markets and the Eurosystem’s credit operations. As the Law applies, inter alia, to financial collateral arrangements concluded by national central banks of Member States and the ECB with their counterparties, the new provisions should give additional support to the conduct of credit operations with Banka Slovenije’s domestic counterparties, as well as operations in the context of the correspondent central banking model. In this respect, the introduction of the concept of a ‘maximum pledge’ (as defined in Article 1 of the draft law) will allow collateral providers to provide collateral up to a defined amount or, in case the maximum amount is not stipulated, up to the full value of the pledged financial instrument in relation to one or several claims in a legal relationship without the need to do so separately for each individual claim. 2.2 Articles 2, 3 and 4 of the draft law would further clarify the implementation of the Collateral Directive in Slovenia. In this respect, the ECB notes the following proposed changes: (a) the draft law specifies for the avoidance of doubt that, among other rights arising under a financial collateral contract, the right to enforce collateral also remains valid even after an insolvency procedure has been opened against a collateral provider or collateral taker: such a procedure should therefore not represent an obstacle to the swift and unimpeded realisation of collateral (in line with Article 8 of the Collateral Directive); (b) the validity of a close-out netting agreement is expressly extended to cases of judicial and other attachment to fully meet the requirement laid down in Article 7 of the Collateral Directive; and (c) the law applicable to financial collateral provided by way of entry of a transfer as collateral or pledge in the register of financial instruments is stated to be the law of the country of the register (see Article 9 of the Collateral Directive).

text: 3. Maximum pledge

text: 3.1. The new concept of ‘maximum pledge’ should facilitate the provision of collateral, as it enables collateral providers to provide collateral up to a defined amount for several claims in a legal relationship without having to do so separately for each individual claim. It is noted that a ‘maximum pledge’ may only be established in relation to financial instruments entered in the official register, thereby ensuring transparency of established collateral rights. In this context, the ECB refers to Article 3 of the Collateral Directive and would like to reiterate its position that ‘simple and reliable methods of collateralisation, which include efficient enforcement methods, are of fundamental interest to the Eurosystem, as they help, inter alia, to ensure the smooth functioning of the Eurosystem’s single monetary policy’ . 3.2. As regards the presumption contained in the last sentence of

text: Article 7

text: .a(1) of the draft law, the ECB suggests that the wording ‘it shall be deemed that the financial instrument fully guarantees the

text: secured claims’ should be made clearer by providing that, in such case, it is deemed that the financial instrument is fully available to guarantee the secured claims.

text: 4. Implementation of the Collateral Directive

text: 4.1. The ECB notes that the definition of ‘financial instruments’ in Article 3 of the Law reflects the wording used in the Collateral Directive. The ECB has consistently maintained that the scope of national implementation of the Collateral Directive should cover all types of assets eligible for Eurosystem credit operations. This is particularly relevant with regard to credit claims in the form of bank credits. In 2005, the Governing Council of the ECB approved a unified regime for the use of bank credits from all euro area countries as collateral for Eurosystem credit operations from 2007. It is therefore of crucial importance to the Eurosystem that credit claims can be handled safely and smoothly both domestically and on a cross-border basis. In this context, pursuant to

text: Article 22

text: .d of the Law on Banka Slovenije , credit claims provided as collateral by means of an entry in the register of financial assets to be established and maintained by Banka Slovenije will fully benefit from the regime established by the Law. This regime would thus ensure, inter alia, the validity of an assignment for security purposes or simplified enforcement of bank credits. 4.2. The ECB welcomes the provision inserted into Article 11 of the Law, which makes it clear that, among other rights arising under a financial collateral contract, the right to enforce collateral also remains valid even after an insolvency procedure has been opened against the collateral provider or collateral taker. The ECB suggests that this provision could be made even clearer by stating that the relevant methods of enforcement are those listed in point 9 of Article 3 of the Law, and that such methods are without prejudice to close-out netting as provided for under Article 12 of the Law. 4.3. Pursuant to Article 12 of the Law, the validity of a close-out netting agreement is expressly extended to cover cases of judicial and other attachment to meet the requirement laid down in Article 7 of the Collateral Directive. If considered appropriate, the application of this provision could be extended further to cover certain insolvency-like proceedings, such as regulatory moratoria. 4.4. The draft law proposes a revised

text: Article 15

text: , which contains a conflict-of-law provision regarding the determination of the applicable law in relation to securities provided as collateral by means of an entry in a financial instruments register. It is acknowledged that this provision is consistent with Article 9 of the Collateral Directive. However, the ECB suggests introducing an additional general conflict-of-law provision, which would determine the applicable law in cases where financial

text: instruments are held on securities accounts outside a register or a central securities depository. This additional provision would cover situations where financial instruments are provided as collateral by way of an entry on a securities account held with a financial intermediary (e.g. a credit institution), whereby the applicable law is determined by the jurisdiction of the place of the relevant securities account in accordance with Article 9 of the Collateral Directive.

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

text: Done at Frankfurt am Main, 22 May 2006.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: For the ECB’s views on the Law of 28 February 2002 see ECB Opinion

text: of 30 August 2001 at the request of the Belgian Minister of Finance on a draft law on the compilation of the balance of payments and the international investment position of Belgium and amending the Decree Law of 6 October 1944 on foreign exchange controls and various legal provisions.

text: For the ECB’s views on the Law of 1 May 2006 see ECB Opinion

text: of 29 August 2005 at the request of the Belgian Minister of Finance on a preliminary draft law that amends the Law of 28 February 2002 regulating the

text: compilation of the balance of payments and the international investment position of Belgium and amending the Decree Law of 6 October 1944 on foreign exchange control and various legal provisions.

text: For the ECB’s views on the Royal Decree of 19 March 2002 establishing the balance of payments and the international investment position of Belgium (hereinafter the ‘Royal Decree of 19 March 2002’) see ECB Opinion

text: of 14 2002 at the request of the Governor of the Nationale Bank van België/Banque Nationale de Belgique on a draft royal decree and draft accompanying regulations on the compilation of the balance of payments and the international investment position of Belgium.

text: OJ L 333, 17.12.2001, p. 1. Regulation as last amended by Regulation ECB/2004/21 (OJ L 371, 18.12.2004, p. 42).

title: Opinion of the European Central Bank of 29 May 2006 at the request of the Belgian Ministry of Finance on a draft royal decree establishing the balance of payments, the international investment position and international trade statistics for services and foreign direct investment in Belgium (CON/2006/25)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 29 May 2006 at the request of the Belgian Ministry of Finance on a draft royal decree establishing the balance of payments, the international investment position and international trade statistics for services and foreign direct investment in Belgium (

text: ) Introduction and legal basis

text: On 17 March 2006, the European Central Bank (ECB) received a request from the Belgian Ministry of Finance for an opinion on a draft royal decree establishing the balance of payments, the international investment position and international trade statistics for services and foreign direct investment in Belgium (hereinafter the ‘draft royal decree’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the second, third, fourth and fifth indents of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft royal decree relates to the collection by the Nationale Bank van België/Banque Nationale de Belgique (NBB) of data from Belgian residents to establish the balance of payments and related monetary and financial statistics. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft royal decree

text: The draft royal decree is intended to implement the Belgian Law of 28 February 2002 regulating the compilation of the balance of payments, the international investment position and the statistics of the international trade in services and the foreign direct investments of Belgium and amending the Decree Law of 6 October 1944 on foreign exchange control and various legal provisions 2 3 (hereinafter the ‘Law of 28 February 2002’) , as last amended by the Law of 1 May 2006 . The

text: main change by the Law of 1 May 2006 is the introduction of the possibility to implement a direct reporting system for the collection of statistical data by the NBB, as opposed to the previously applicable system whereby the relevant data were primarily collected through the banking sector. Following this amendment, the draft royal decree intends to replace the Royal Decree of 19 March 2002 concerning the establishment of the balance of payments and the international investment position of Belgium , which currently implements the Law of 28 February 2002. The draft royal decree thus specifies how, according to the categories of economic agents and/or foreign transactions concerned, statistical data will need to be provided to the NBB, which is empowered to adopt more detailed regulations in this manner. Although the draft royal decree thereby largely maintains the structure and content of the Royal Decree of 19 March 2002, it contains adaptations that are necessary mainly to take account of the new direct reporting system and of the reporting of foreign transactions instead of the current reporting of foreign payments.

text: 2. General observations

text: 2.1 As a general comment, the ECB refers to paragraphs 5 and 6 of its Opinion

text: on the benefits of a direct reporting system and of sample surveys as facilitating the operation of such system. The data reporting requirements laid down in the draft royal decree are also based on such system and method. The ECB therefore welcomes the purpose and effects of the draft royal decree in reducing the administrative burden for undertakings and natural persons who carry out professional activities, while at the same time ensuring the high quality of the data used to compile the euro area balance of payments and international investment position statistics, in accordance with Guideline ECB/2004/15 of 16 July 2004 on the statistical reporting requirements of the European Central Bank in the field of balance of payments and international investment position statistics, and the international reserves template . The ECB notes in this respect that, in order to perform the tasks of the European System of Central Banks, the ECB, assisted by the national central banks, including the NBB, collects the necessary statistical information either from the competent national authorities or directly from economic agents, thereby endeavouring to limit as far as possible the overall reporting burden for the economic agents concerned. 2.2 The ECB also welcomes the exclusion of natural persons’ private transactions from the draft royal decree thus exempting them completely for such transactions from its reporting requirements. Given that no threshold applies to this exemption for natural persons, this exemption is obviously wider than the exemption for cross-border payments in Article 6(1) of Regulation (EC)

text: No 2560/2001 of the European Parliament and of the Council of 19 December 2001 on crossborder payments in euro (hereinafter ‘the Regulation’) and, similarly, in Article 2 of the Royal Decree of 19 March 2002. As regards the categories of transactions covered by the draft royal decree, it should be ensured that the reporting requirements for such transactions are in line with Article 6(1) of the Regulation, when such transactions fall within its scope of application (see e.g. the second and third paragraphs of Article 1 of the Regulation for this scope). In particular, the ECB questions whether the cross-border reporting requirements for payment card issuers and operators of payment card systems in Article 6 of the draft royal decree should not be subjected to the conditions laid down in the Regulation, particularly the EUR 12 500 exemption threshold in

text: Article 6(1)

text: thereof. 2.3 Additionally, in the context of national legislation on the reporting of payment-related transactions, such as the draft royal decree, the ECB refers to the establishment of the Single Euro Payments Area (SEPA) by the European banking industry and strongly supported by the ECB. The SEPA aims to establish the euro area as a domestic payment area without internal borders. When fully implemented, a single set of payment instruments will be used for both national and cross-border payments in the euro area, thereby eliminating differences between national and euro area crossborder payments.

text: 3. Technical observations

text: 3.1 The ECB proposes using the concept of ‘monetary financial institution’ instead of ‘credit institution’ in the fourth indent of

text: Article 1

text: , §1 of the draft royal decree. This concept is defined in Regulation ECB/2001/13 of 22 November 2001 concerning the consolidated balance sheet of the monetary financial institutions sector and is also used in the fourth indent of

text: Article 1

text: , §1 of the Royal Decree of 19 March 2002. 3.2 In addition, the ECB notes that the draft royal decree will, when adopted, apply retroactively from 1 January 2006 (

text: Article 21

text: ). While the draft royal decree’s reporting requirements mostly simplify the current requirements under the Royal Decree of 19 March 2002, the ECB trusts that, for every category of reporting agent and transaction subject to the draft royal decree, retroactive compliance with the reporting requirements imposed by the draft royal decree will be possible without imposing a burden on the reporting agents.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 29 May 2006. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: ECB Opinion

text: of 13 January 2006 at the request of Eesti Pank on a draft decree establishing a procedure to calculate and comply with reserve requirements and draft decree amending Decree No 12 of 12 July 2002 on credit institutions’ prudential ratios.

title: Opinion of the European Central Bank of 31 May 2006 at the request of the Latvian Financial and Capital Market Commission on draft amendments to the Regulation on compliance with liquidity requirements (CON/2006/26)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 31 May 2006 at the request of the Latvian Financial and Capital Market Commission on draft amendments to the Regulation on compliance with liquidity requirements (

text: ) Introduction and legal basis

text: On 27 April 2006 the European Central Bank (ECB) received a request from the Latvian Financial and Capital Market Commission for an opinion on draft amendments to the Regulation on compliance with liquidity requirements (hereinafter the ‘draft amendments’). The Latvian Financial and Capital Market Commission is the national authority that will adopt the draft amendments. The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the sixth indent of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft amendments relate to rules applicable to financial institutions insofar as they materially influence the stability of financial institutions and markets. In addition, under

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

text: , the authorities of Member States other than participating Member States are obliged to consult the ECB on any draft legislative provisions on the instruments of monetary policy. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The main objective of the draft amendments is to increase the short-term liquidity of the banking system by both increasing the minimum liquidity ratio and amending the formula for its calculation. The draft amendments provide for an increase in the liquidity ratio from 30 % to 50 % of the total current liabilities of the bank. The draft amendments also adjust the basis for calculating the liquidity ratio by including only the surplus of claims on monetary financial institutions (MFIs) with a residual maturity of less than 30 days over current liabilities to MFIs with a residual maturity of less than 30 days.

text: 2. General observations

text: 2.1 According to the consultation letter from the Latvian Financial and Capital Market Commission to the ECB, the draft amendments are designed as a precautionary measure to maintain financial stability and the intention is not to address concerns about the financial standing of individual credit institutions. The ECB understands from the explanatory note to the draft amendments that, although at present the indicators of financial strength and asset quality of the Latvian banking sector are satisfactory, existing macroeconomic risks require a slowdown in lending rates. The explanatory note states that the rapid growth in lending rates has been one of the essential factors driving domestic demand, thus increasingly affecting both inflation and the current account deficit. Furthermore, rapid lending growth has increased maturity imbalances between the banking sector’s assets and liabilities, thus increasing the liquidity risk. The explanatory note goes on to state that in view of the above, a set of measures for risk mitigation has been considered, incorporating both monetary measures and those measures at the disposal of the banking supervisor. 2.2 The ECB notes that, according to the above explanation, the envisaged change in the supervisory regime for liquidity is not meant to serve prudential purposes but rather macroeconomic ones, notably to overcome the difficulty in countering excessive credit growth in a country with a peg to the euro. The ECB would emphasise that the use of supervisory tools such as the liquidity ratio for macroeconomic purposes is not an uncommon practice in Member States. There have been similar cases where specific circumstances have determined the purpose of supervisory tools, in particular to address the potential risks related to strong credit growth (e.g. in Estonia ). 2.3 In that respect, the ECB assumes that the relevant national authorities – in considering the effectiveness of the envisaged measure – have given due consideration to all relevant implications, including the possible structural and competitive effects of the fact that the measure will not apply to foreign branches. 2.4 The ECB understands that, while the consulting authority is the Latvian Financial and Capital Market Commission, the initiative to propose draft amendments to the Regulation on compliance with liquidity requirements originated with Latvijas Banka. In this context, the ECB would like to recall that the objectives of the legislation are of a financial stability – and not monetary policy – nature. Any measures involving monetary policy instruments should fall under the authority of Latvijas Banka.

text: This opinion will be published on the ECB’s website. Done at Frankfurt am Main, 31 May 2006. [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: ECB Convergence Report May 2006, p. 63.

title: Opinion of the European Central Bank of 9 June 2006 at the request of the Latvian Ministry of Finance on a draft law amending the Latvian Constitution (CON/2006/27)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 9 June 2006 at the request of the Latvian Ministry of Finance on a draft law amending the Latvian Constitution (

text: ) Introduction and legal basis

text: On 8 May 2006, the European Central Bank (ECB) received a request from the Latvian Ministry of Finance for an opinion on a draft law entitled amendments to the Constitution of the Republic of Latvia (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the third indent of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to the status of Latvijas Banka under the Latvian Constitution (hereinafter the ‘Constitution’). In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: 1.1 The draft law is designed to reconcile the text of the Constitution, which provides that all administrative institutions of the State shall be under the authority of the Cabinet of Ministers, and the existence in practice of independent administrative institutions, which are not placed under the authority of the Cabinet of Ministers. 1.2 These provisions concern, inter alia, Latvijas Banka. While the general principle provided for in the draft law is to entitle the Parliament to designate those institutions which are not subordinated to the Cabinet of Ministers and to legislate on their tasks and structure, Latvijas Banka is explicitly mentioned in the text of the draft law as a central bank whose organisation and competences are provided for by a special law and which is supervised by the Parliament.

text: 2. General observation

text: The ECB welcomes the fact that the draft law aims to confirm Latvijas Banka’s status in the Constitution and would like to stress the importance of ensuring that the proposed amendments do not entail any changes with regard to the status and functions of Latvijas Banka, but only restate its position in the hierarchy of different institutions at the constitutional level.

text: 3. Specific observations

text: 3.1 The ECB has two concerns with regard to the content of the provisions governing Latvijas Banka in the draft law. First, the ECB takes note of the fact that the wording used in Article 88 of the Constitution in relation to Latvijas Banka is different from the wording in

text: Article 87

text: in relation to the State Audit Office. Following adoption of the draft law, the State Audit Office and Latvijas Banka will be the only independent bodies defined specifically in the text of the Constitution. However, while

text: Article 87

text: clearly provides that the State Audit Office is an independent collegial body,

text: Article 88

text: on Latvijas Banka merely identifies Latvijas Banka as the central bank. For details concerning the central bank’s organisation and competences,

text: Article 88

text: instead refers to a specific law, namely the Law on Latvijas Banka, which in turn provides that Latvijas Banka is independent in the adoption of its decisions and in their practical implementation . 3.2 The ECB notes that the independence of Latvijas Banka, which is also a member of the European System of Central Banks, is laid down in Article 108 of the Treaty and Article 7 of the Statute on the European System of Central Banks and of the European Central Bank. These two provisions prohibit the national central banks (NCBs) and the members of their decision-making bodies from seeking or taking instructions from Community institutions or bodies, from any government of a Member State or from any other body. In addition, they prohibit Community institutions and bodies and the governments of the Member States from seeking to influence those members of the NCBs’ decision-making bodies whose decisions may affect the fulfilment of the NCBs’ ESCBrelated tasks. These requirements already apply to Latvia, and the ECB understands that the wording of Article 88 of the Constitution does not entail a restriction on Latvijas Banka’s independence. If, however, this understanding is incorrect, the wording of

text: Article 88

text: will need to be further considered and amended in order to reflect the independent status of Latvijas Banka. 3.3 Second, the ECB notes that the draft law provides that ‘Latvijas Banka shall be supervised by the Parliament’. Although this provision might be intended to clarify that Latvijas Banka is not an institution under the authority of the Cabinet of Ministers, but instead an independent authority under the Parliament, there is a clear risk that the language used will be interpreted differently. The ECB notes in particular that the absence of a similar provision in

text: Article 87

text: in relation to the State Audit Office, together with the absence of constitutional confirmation of Latvijas Banka’s independence, may be interpreted as limiting Latvijas Banka’s independence. 2 Article 13(2) of the Law on Latvijas Banka.

text: 3.4 While similar wording is currently used in Article 43(1) of the Law on Latvijas Banka, the ECB notes that the term ‘supervision’ is usually applied to designate a much stronger link between the supervisor and the supervised entity than, for example, oversight or accountability. The ECB would therefore like to stress that the notion of ‘supervision’ is misleading, since it could be interpreted as allowing the Parliament to interfere with Latvijas Banka’s tasks in a manner which goes beyond the level covered by the accountability regime and does not adequately reflect the requirement of central bank independence under the Treaty and the Statute. The ECB’s May 2006 Convergence Report, contains the following statement: ‘dialogue between NCBs and third parties, even when based on statutory obligations to provide information and exchange views, is compatible with central bank independence provided that: (i) this does not result in interference with the independence of the members of the NCB’s decision-making bodies; (ii) the special status of Governors in their capacity as members of the ECB’s General Council is fully respected; and (iii) confidentiality requirements resulting from the Statute are observed’ . In accordance with Article 113(3) of the Treaty and Article 15.3 of the Statute, the ECB addresses an annual report on the activities of the ESCB and on the monetary policy of both the previous and the current year to the European Parliament, the Council and the Commission, and also to the European Council. Against this background, the ECB would welcome it if the proposed provision pursuant to which Latvijas Banka will be supervised by the Parliament were replaced by a provision on the status of Latvijas Banka as an independent authority under the Parliament or, alternatively, if this provision were deleted.

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

text: Done at Frankfurt am Main, 9 June 2006.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


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

text: Second

text: Council Directive 77/91/EEC of 13 December 1976

text: on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ L 26, 31.1.1977 p. 1). 3 See ECB Opinion CON/98/48 of 20 October 1998 at the request of the Luxembourg Minister for Relations with Parliament, the Grand Duchy of Luxembourg, under

text: Articles 109

text: l (2) and 109f (6) of the Treaty establishing the European Community and Article 5.3 of the Statute of the European Monetary Institute on a draft legislative proposal to facilitate the redenomination of the capital of corporations in euro and settle rounding problems in this connection.

text: See ‘The Impact of the introduction of the euro on capital markets’, Commission Communication (Euro Paper No 03, July 1997; available on the European Commission’s website at www.europa.eu.int), p. 3.

title: Opinion of the European Central Bank of 9 June 2006 at the request of the Estonian Ministry of Justice on a draft law amending the Commercial Code and some other legislation to facilitate euro introduction (CON/2006/28)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 9 June 2006 at the request of the Estonian Ministry of Justice on a draft law amending the Commercial Code and some other legislation to facilitate euro introduction (

text: ) Introduction and legal basis

text: On 11 April 2006 the European Central Bank (ECB) received a request from the Estonian Ministry of Justice for an opinion on a draft law amending the Commercial Code, the Law on the land register, the Law on commercial pledges, the Law on commercial associations and the Law on State fees (hereinafter ‘the draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and the first and sixth indents of

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to currency matters and the stability of financial markets. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The draft law provides for (i) the redenomination into euro of shares and share capital for companies registered in Estonia; and (ii) the option for companies to issue non-par value shares. In addition, it amends Estonian law to allow amounts in the land register and commercial pledge register to be expressed in euro. One purpose of the draft law is to reduce the costs and eliminate the state fees payable on share capital increases or decreases resulting from recalculations relating to the future introduction of the euro in Estonia.

text: 2. General observations

text: 2.1 The draft law introduces provisions regarding the methods and procedure for redenomination of the nominal values of shares and share capital into euro. The redenomination is based on the following principles:

text: - minimum share values are to be rounded up to EUR 1 for unlimited partnerships and public limited companies; exceptionally, public limited companies established before 1 July 2006 may have share values of 50 euro cent or its multiple; - minimum share values are to be rounded down to EUR 5 for private limited companies established until 1 July 2006 and the minimum share value is EUR 10 for companies established after 1 July 2006; - the minimum share capital of private limited companies is to be rounded down to EUR 2 500; - the minimum share capital of public limited companies is to be rounded down to EUR 25 000, the minimum amount of share capital required by the Second Company Law Directive . 2.2 The draft law also introduces in Estonian law the additional option for companies to have shares without a nominal amount. This would eliminate the need to increase or decrease share capital on conversion to the euro, thus introducing flexibility and simplicity . This solution was recommended by the European Commission . The draft law is also in line with the Second Company Law Directive, which recognises and permits the use of either ‘nominal value of shares’ or ‘accountable par’. According to the draft law, the minimum amount of an accountable par share is EUR 1 (or 50 euro cent for companies established before 1 July 2006) in order to avoid the emergence of pennystocks.

text: 3. Specific remarks

text: 3.1 The ECB generally welcomes early preparation for the introduction of the euro. However, the current draft law (i) is scheduled to enter into force before the introduction of the euro in Estonia, namely on 1 July 2006; and (ii) applies the current exchange rate between the euro and the Estonian kroon on the apparent assumption that it will be the same as the eventual conversion rate. 3.2 With regard to the timing of the entry into force of the draft law, the ECB would like to stress that any form of official redenomination (as currently provided for by the draft law) should not take place before the date of the introduction of the euro, following the Council’s decision on the abrogation of Estonia’s derogation under Article 122(2) of the Treaty. The practice of other Member States has been that the official redenomination from the national currency into the euro

text: through national legislation only takes place upon the introduction of the euro. This practice provides both clarity and legal certainty and is consistent with Community legislation. 3.3 In respect of the exchange rate for the redenomination of the nominal values of shares and share capital into euro, the ECB would like to recall that Article 123(5) of the Treaty provides that if the Council decides to abrogate the derogation, it ‘shall … adopt the rate at which the euro shall be substituted for the currency of the Member State concerned’. Furthermore, Community secondary legislation on monetary matters, including the conversion rates adopted in accordance with Article 123(5) of the Treaty, is directly applicable in the Member States. Official redenomination should therefore only take place on the basis of the adopted conversion rate and it cannot be assumed that the current exchange rate between the euro and the Estonian kroon will be the same as the eventual conversion rate. 3.4 In view of the above comments, the ECB is of the opinion that the date of entry into force of the draft law (currently 1 July 2006) should relate to the date when Estonia’s derogation is abrogated and the Council has adopted the rate at which the euro will be substituted for the Estonian kroon.

text: Done at Frankfurt am Main, 9 June 2006.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: OJ L 189, 3.7.1998, p. 42. 2 OJ L 162, 19.6.1997, p. 1. Regulation as amended by

text: Regulation (EC) No 2595/2000

text: (OJ L 300, 29.11.2000, p. 1).

text: OJ L 139, 11.5.1998, p. 1. Regulation as last amended by

text: Regulation (EC) No 2169/2005

text: (OJ L 346, 29.12.2005, p. 1).

text: OJ L 359, 31.12.1998, p. 1. Regulation as amended by

text: Regulation (EC) No 1478/2000

text: (OJ L 167, 7.7.2000, p. 1).

text: See: ECB Opinion

text: of 16 December 2005 at the request of the Slovene Ministry of Economic Affairs on the provisions of the draft Companies Act concerning redenomination resulting from the introduction of the euro; ECB Opinion

text: of 13 March 2006 at the request of the Slovenian Ministry of Finance on a draft law amending the Law on Banka Slovenije; and the ECB’s Convergence Report of May 2006, Chapter II, Section 5 and Subsection 7.2.

text: Article 3 of the draft law repeats

text: Article 2 of Regulation (EC) No 974/98

text: Article 9(1)

text: Article 11(1)

text: and (2), and Article 13(1) of the draft law repeat

text: Article 14 of Regulation (EC) No 974/98

text: As stated by the Court of Justice of the European Communities in Case 34-73 Fratelli Variola S.p.A. v Amministrazione italiana delle Finanze [1973] ECR 981: ‘by virtue of the obligations arising from the Treaty and assumed on ratification, Member States are under a duty not to obstruct the direct applicability inherent in regulations and other rules of Community law. Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of Community regulations throughout the Community’. This position was reiterated in Case 50-76 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR 137.

text: See Commission Communication of 2 July 1997 on the impact of the introduction of the euro on capital markets (COM(97) 337 final).

text: Available on the Slovenian Government website at www.gov.si.

text: OJ L 130, 1.5.1998, p. 26.

text: Zakon o Banki Slovenije, adopted on 19 June 2002 and last amended on 30 March 2006; published in the Official Gazette of the Republic of Slovenia, Nos 58/02, 85/02 and 39/06. Article 67(1) of the Law on Banka Slovenije reads: ‘From the day of the introduction of the euro as the currency of the Republic of Slovenia, Articles 21 and 22 of this act shall cease to apply. Notwithstanding the preceding sentence, the Bank of Slovenia shall publish an exchange rate list on the basis of reference exchange rates of foreign currencies determined and published by the European Central Bank. The Bank of Slovenia may also determine and publish exchange rates of foreign currencies that are not on the exchange rate list of the European Central Bank.’

text: For the interpretation of the Court of Justice of the European Communities of the euro rounding rules, see

text: Case C-19/03

text: Verbraucher-Zentrale Hamburg eV v O2 (Germany) GmbH & Co. OHG [2004] ECR I-8183.

title: Opinion of the European Central Bank of 12 June 2006 at the request of the Slovenian Ministry of Finance on a draft law on the introduction of the euro (CON/2006/29)

text: OPINION OF THE EUROPEAN CENTRAL BANK of 12 June 2006 at the request of the Slovenian Ministry of Finance on a draft law on the introduction of the euro (

text: ) Introduction and legal basis

text: On 12 May 2006 the European Central Bank (ECB) received a request from the Slovenian Ministry of Finance for an opinion on a draft law on the introduction of the euro (hereinafter the ‘draft law’). The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing the European Community and on the first and second indents of

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

text: on the consultation of the European Central Bank by national authorities regarding draft legislative provisions , as the draft law relates to currency matters and means of payment. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

text: 1. Purpose of the draft law

text: The main objectives of the draft law are to facilitate the euro changeover and to address the issues relating to the introduction of the euro that are not contained in the relevant Community legislation, i.e.

text: Council Regulation (EC) No 1103/97 of 17 June 1997

text: on certain provisions relating to the introduction of the 2 3 euro ,

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

text: on the introduction of the euro and

text: Council Regulation (EC) No 2866/98 of 31 December 1998

text: on the conversion rates between the euro and the currencies of the Member States adopting the euro .

text: 2. General observations

text: 2.1. The ECB welcomes the draft law as it contains a comprehensive set of provisions for the introduction of the euro, which should greatly facilitate a smooth changeover to the euro in

text: Slovenia. The Slovenian Government’s initiative of preparing early for the introduction of the euro should ensure the timely implementation of the necessary measures. 2.2. Name of the single currency The draft law that was submitted to the ECB for consultation uses the correct spelling of the name of the single currency in the nominative singular case and is therefore compatible with Community law in this respect . Moreover, in the course of the consultation procedure, the consulting authority informed the ECB that a new provision would be inserted in the draft law providing that as from the day of entry into force of the draft law the word ‘evro’ in all grammatical cases will be replaced with the word ‘euro’ in the relevant case in laws and regulations. The ECB welcomes this new provision, as it will satisfactorily solve the spelling issue in Slovenia. 2.3. Timing for adoption of the draft law and preconditions for its entry into force According to

text: Article 28

text: , the draft law ‘shall enter into force on the fifteenth day after its publication and shall take effect from the day following the publication of the Council decision on abrogation of the derogation pursuant to Article 122(2) of the Treaty’. It should be recalled that the Community has exclusive competence in matters relating to economic and monetary union, and national legislation should not in any way prejudge the EU Council’s decision regarding abrogation of the derogation and the date on which this abrogation takes effect. Certain provisions of the draft law containing specific dates (e.g.

text: Article 11(3)

text: , potentially

text: Article 16

text: and indirectly

text: Article 8(2)

text: ) presuppose that Slovenia will adopt the euro on 1 January 2007. However, in practice this should not cause any problems as the consulting authority has informed the ECB that the draft law will be submitted to the Slovenian Parliament after abrogation of the derogation. 2.4. Direct applicability of Community regulations Certain provisions of the draft law repeat the relevant provisions of

text: Regulation (EC) No 974/98

text: . In this context, the ECB notes that Article 249 of the Treaty provides that a Community regulation ‘shall be binding in its entirety and directly applicable in all Member States’. A Community regulation therefore does not need to be transposed into the domestic law of Member States . If a Member State transposes a regulation into national law, the fact that the provision is a Community law provision may be obscured. In addition, if a Member State transposes a regulation in even a

text: slightly different form, there is a risk that its content will be altered . In light of the above, the ECB would recommend deleting those articles of the draft law which repeat provisions of

text: Regulation (EC) No 974/98

text: or, alternatively, amending those articles to refer merely to the relevant provisions of

text: Regulation (EC) No 974/98

text: 3. Definitions

text: 3.1. Conversion rate The definition of ‘convergence rate’ in Article 2 of the draft law refers to the Treaty establishing the European Community published in the Official Gazette of the Republic of Slovenia. This definition should be amended to refer to the Official Journal of the European Union as only the text of the Treaty published there is deemed to be authentic. 3.2. Day of the introduction of the euro The definition of ‘day of the introduction of the euro’ in Article 2 of the draft law, which refers to Article 122(2) of the Treaty, does not comply fully with Community law. Article 122(2) of the Treaty is the legal basis for the EU Council’s decision on abrogation of the derogation. Following this decision, and in accordance with Article 123(5) of the Treaty, the EU Council adopts the conversion rate between the euro and the currency of the relevant Member State and determines the date on which abrogation of the derogation will take effect. Therefore, the definition of ‘day of the introduction of the euro’ in Article 2 of the draft law should be amended by referring to it as the day on which the abrogation of Slovenia’s derogation takes effect, as determined by the EU Council in accordance with Article 122(2) of the Treaty. 3.3. Bottom-up method The bottom-up method is defined in Article 2 of the draft law as a ‘debt-redenomination method, whereby the value of each denomination of a debt security is redenominated’, and this is partially repeated in the last sentence of Article 12(1) of the draft law. For reasons of legal clarity, the ECB would advise deleting the repetition in

text: Article 12(1)

text: and defining the method in detail in Article 2 of the draft law, which contains the definitions.

text: 4. Cash changeover

text: 4.1. There appears to be a need to phrase Article 4(2) of the draft law more precisely. Currently, there seems to be a discrepancy between, on the one hand, the period of 14 days and, on the other hand,

text: the period beginning at 00.00 on the day of the introduction of the euro and ending at 24.00 on the fourteenth day after the day of the introduction of the euro, which would mean a total of 15 days. 4.2. Article 6(1) of the draft law provides that from the day of the introduction of the euro, Banka Slovenije ‘shall start withdrawing tolar banknotes and coins from circulation’. From an operational point of view, the ECB would like to draw attention to the experience of past changeovers, where it proved very practical gradually to start withdrawing coins before the day of the introduction of the euro, to facilitate the logistics of this withdrawal (particularly given the bulk and weight of coins in circulation, the required special storage facilities, etc.). 4.3. In accordance with Article 6(2) of the draft law, Banka Slovenije ‘may adopt an executive regulation laying down the procedures and methods for the cash changeover’. This provision should be amended to state explicitly that any Banka Slovenije decision in this respect must be in accordance with decisions taken by the ECB’s decision-making bodies.Article 7 of the draft law read in conjunction with Article 24 of the draft law leaves some room for different interpretations in relation to the cash changeover in post offices. The draft law refers to three different entities in this respect: Pošta Slovenije (a state-owned company providing postal services in Slovenia), Poštna banka Slovenije (a bank partially owned by Pošta Slovenije for which the latter also acts as the contractual service provider) and post offices (local business units of Pošta Slovenije). The ECB would recommend clarifying whether ‘post offices’ in

text: Article 24

text: refers to such local units of Pošta Slovenije or, if they do not have separate legal personality, whether any fines incurred would be imposed on Pošta Slovenije. Since Pošta Slovenije is only the contractual service provider for Poštna banka Slovenije, it may be appropriate that the latter be held responsible in the event of any infringement. However, if this is the case Poštna banka Slovenije is already included in the category of ‘banks’ under Article 24 of the draft law. 4.4. With respect to Article 8(2) of the draft law, the ECB would recommend specifying more clearly what the situation will be after 31 December 2016, i.e. Banka Slovenije will no longer exchange tolar coins and after that date any exchange claim against the Republic of Slovenia will be timebarred.

text: 5. Account balances and payment transactions

text: 5.1. For reasons of legal clarity, the ECB would recommend stating explicitly that ‘payment transactions’ in Article 10 of the draft law only refers to non-cash payments. 5.2. According to Article 12 of the draft law, debt securities of the state budget denominated in tolars and issued as book-entry securities in accordance with Slovenian law must be redenominated using the bottom-up method and the minister responsible for finance will prescribe the methods and procedures for redenominating individual types of such debt securities. The ECB would suggest amending this provision by explicitly stating that any such redenomination must comply with Community law.

text: 5.3. According to Article 14(1) of the draft law, ‘debtors shall be responsible for the accuracy of the conversion into euro of amounts denominated in tolars at the time of payment or when submitting a payment order’, ‘unless otherwise agreed by the parties or provided for in a regulation’. According to the explanatory memorandum accompanying the working version of the draft law which was made public at an earlier stage of the legislative process , the intention behind this provision was to make clear that it is the debtor (and not the bank acting as payment intermediary) who will be responsible for the accuracy of conversion from tolars into euro, in particular as regards money orders issued before 31 December 2006 (when tolars are the only legal tender) and falling due after the introduction of the euro. In order to avoid any misunderstanding in interpreting the scope of this provision, especially in the light of

text: Commission Recommendation 98/287/EC of 23 April 1998

text: concerning dual display of prices and other monetary amounts , the ECB suggests that the draft law explicitly specifies that relations between retailers and consumers are exempted from

text: Article 14(1)

text: 6. Interest rates, indices and exchange rates

text: The ECB would recommend aligning Article 18 of the draft law with Article 67 of the Law on Banka Slovenije . In respect of foreign currencies that are on the ECB’s exchange-rate list, the exchange rates were previously determined by Banka Slovenije but will now only be published by Banka Slovenije (on the basis of the reference exchange rates of foreign currencies determined and published by the ECB). Banka Slovenije may, however, still determine and publish the reference exchange rates for foreign currencies that are not on the ECB’s exchange-rate list.

text: 7. Other provisions on rounding

text: 7.1. Article 21(2) of the draft law provides for an exception to the rule of rounding to no less than two decimal places: for lower-value prices and for goods and services that are sold in bulk ‘prices shall be rounded to no less than four decimal places’. Currently, there seems to be significant scope for different interpretations of when rounding to no less than four decimal places should be used, and the draft law only provides a few examples (such as prices for electricity units, telephone charges, etc.) . For reasons of legal certainty, the draft law should contain more precise definitions of prices

text: which ‘have lower values’ and of goods and services falling within the category of those ‘sold in bulk’. This is particularly important since the draft law provides for sanctions for infringements of this provision. 7.2. Article 22(1) of the draft law provides that, where there is dual pricing in accordance with the Law on dual pricing in tolars and euro, ‘undertakings may indicate prices to the nearest EUR 0.05 or to the nearest multiple thereof’, where goods and services are sold via automatic vending machines or by similar selling methods and where, for technical reasons, it is not possible to make payments with an accuracy of EUR 0.01 and 0.02. The ECB understands that the rounding possibility set out in this provision: (i) refers to the actual price of the goods or services sold exclusively using the methods mentioned above; (ii) is due exclusively to the technical restrictions of the vending machines in question; and (iii) is in any event without prejudice to the rounding rules in

text: Council Regulation (EC) No 1103/97

text: 8. Penal provisions

text: With respect to Article 25 of the draft law, the ECB would like to make the following editorial comment. It seems that there is a discrepancy between the penal provision in point 5 of

text: Article 25(1)

text: (referring to infringements of

text: Article 21(2)

text: ) and the wording of

text: Article 21(2)

text: , as well as between point 6 of

text: Article 25(1)

text: and the wording of the underlying provision (

text: Article 21(5)

text: ). For reasons of legal clarity, the ECB would recommend aligning the wording of the penal provisions in points 5 and 6 of Article 25(1) of the draft law with their underlying provisions.

text: Done at Frankfurt am Main, 12 June 2006.

text: [signed]

text: The President of the ECB

text: Jean-Claude TRICHET


text: EGT L 189, 3.7.1998, s. 42. 2 Se ECB:s yttrande

text: av den 18 november 2005 på begäran av Sveriges riksbank om ett utkast till föreskrifter om räntekostnadsersättning för kontanter som avskilts och lagrats i särskild ordning.

text: Denna definition är samma som definitionen av ”depåägare” i artikel 2 i Sveriges riksbanks föreskrifter om räntekostnadsersättning för kontanter som avskilts och lagrats i särskild ordning (RBFS 2005:1).

sprak: sv

title: Europeiska centralbankens yttrande av den 12 juni 2006 på begäran av Sveriges riksbank om utkast till föreskrifter om kontantförsörjning (CON/2006/30)

text: EUROPEISKA CENTRALBANKENS YTTRANDE av den 12 juni 2006 på begäran av Sveriges riksbank om utkast till föreskrifter om kontantförsörjning (

text: ) Inledning och rättslig grund

text: Den 8 maj 2006 mottog Europeiska centralbanken (ECB) en begäran från Sveriges riksbank om ett yttrande över ett utkast till Sveriges riksbanks föreskrifter om kontantförsörjning (nedan kallat utkastet till föreskrifter). ECB:s behörighet att avge ett yttrande grundas på artikel 105.4 i Fördraget om upprättandet av Europeiska gemenskapen och artikel 2.1 andra och tredje strecksatserna i

text: rådets beslut 98/415/EG av den 29 juni 1998

text: om nationella myndigheters samråd med Europeiska centralbanken rörande förslag till rättsregler , eftersom förslaget till rättsregler rör betalningsmedel och Sveriges riksbank. I enlighet med

text: artikel 17.5

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

text: 1. Syftet med utkastet till föreskrifter

text: Utkastet till föreskrifter rör villkoren för ett instituts rätt att lämna in och hämta ut kontanter till och från Sveriges riksbank. De institut enligt definitionen i artikel 2 i utkastet till föreskrifter som har ingått avtal om kontantförsörjning med Sveriges riksbank har rätt att lämna in och hämta ut kontanter. För närvarande regleras kontanthanteringen genom avtal om kontantförsörjning mellan Sveriges riksbank och de kommersiella banker som vill lämna in och hämta ut kontanter till och från Sveriges riksbank. Sedan 2004 kan Sveriges riksbank meddela föreskrifter inom kontanthanteringsområdet. I november 2005 meddelade Sveriges riksbank föreskrifter om räntekostnadsersättning för kontanter som avskiljts och lagrats i bankägda depåer . Sveriges riksbank anser nu att inlämning och uthämtning av kontanter bör regleras av samma typ av rättsakt, som skall kompletteras med avtal. Den samrådande myndigheten har informerat ECB om att utkastet till föreskrifter inte utgör en materiell ändring av de gällande kontantförsörjningsavtalen. Förslaget att meddela föreskrifter är således endast en ändring i form från ett

text: detaljerat avtal mellan parterna till lagstadgade föreskrifter som kommer att kompletteras med kortare avtal.

text: 2. Allmänna kommentarer

text: 2.1 Sveriges riksbank håller på att utarbeta ett nytt kontantförsörjningssystem som syftar till en säkrare och effektivare kontanthantering i Sverige och ECB förstår att utkastet till föreskrifter är nästa steg i etablerandet av detta system. ECB stöder syftena bakom det nya kontanthanteringssystemet och välkomnar generellt sett utkastet till föreskrifter, inklusive den föreslagna ändringen från avtal till föreskrifter inom kontanthanteringsområdet. Definitionen av ”institut” som har rätt lämna in och hämta kontanter enligt artikel 2 i utkastet till föreskrifter är viktig för det nya kontantförsörjningssystemet, och Sveriges riksbank kan komma att vilja reflektera ytterligare över formuleringen av denna bestämmelse för att kunna välja de lämpligaste objektiva kriterierna som krävs enligt syftet med utkastet till föreskrifterna, nämligen att uppnå säkerhet och effektivitet. 2.2 Sverige är en medlemsstat med undantag och ECB:s krav beträffande organisationen av nationella kontanthanteringskedjor i de medlemsstater som har infört euron gäller för närvarande inte Sveriges riksbank, men dessa krav kommer att gälla för Sveriges riksbank då Sverige inför euron och Sveriges riksbank blir en fullt integrerad del av Eurosystemet. ECB konstaterar därför rent allmänt att Sveriges riksbanks kontantförsörjningspraxis till viss del skiljer sig från Eurosystemets praxis och att denna måste anpassas till Eurosystemets praxis då Sverige inför euron. 2.3 ECB skulle också återigen vilja betona, liksom den gjorde i yttrande

text: , att i enlighet med den gemensamma strategin för Eurosystemet, är den vägledande principen inom Eurosystemet att det är och förblir möjligt för centralbanken att utföra sina uppgifter, särskilt att säkerställa en smidig och effektiv leverans av eurosedlar, samt att eurosedlarnas ställning upprätthålls (inklusive att kvaliteten på och äktheten av eurosedlar i omlopp garanteras).

text: 3. Tvistlösning i fall där differens föreligger

text: Artikel 22 i utkastet till förordning avser utredningen av tvister avseende skillnader mellan uppgivet och faktiskt värde av kontanterna i fråga, men föreskriver inte hur fall skall lösas där parterna är oense om resultatet av sådana utredningar. ECB föreslår att det klargörs i utkastet till förordning hur sådana tvister skall lösas.

text: Detta yttrande skall offentliggöras på ECB:s webbplats. Utfärdat i Frankfurt am Main den 12 juni 2006. [Namnteckning] Jean-Claude TRICHET

text: ECB:s ordförande