Decision (EU) 2019/1349 of the European Central Bank of 26 July 2019 on the procedure and conditions for exercise by a competent authority of certain powers in relation to oversight of systemically important payment systems (ECB/2019/25)

• Published date: 16 August 2019
• Subject Matter: Libertà di stabilimento
• Official Gazette Publication: Gazzetta ufficiale dell'Unione europea, L 214, 16 agosto 2019

02019D0025(01) — EN — 25.05.2021 — 001.001

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►B DECISION (EU) 2019/1349 OF THE EUROPEAN CENTRAL BANK of 26 July 2019 on the procedure and conditions for exercise by a competent authority of certain powers in relation to oversight of systemically important payment systems (ECB/2019/25) (OJ L 214 16.8.2019, p. 16)

Amended by:

		Official Journal
		No	page	date
►M1	DECISION (EU) 2021/730 OF THE EUROPEAN CENTRAL BANK of 29 April 2021	L 157	7	5.5.2021

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▼B

DECISION (EU) 2019/1349 OF THE EUROPEAN CENTRAL BANK

of 26 July 2019

on the procedure and conditions for exercise by a competent authority of certain powers in relation to oversight of systemically important payment systems (ECB/2019/25)

Article 1

Definitions

The terms used in this Decision shall have the same meaning as the terms defined in Regulation (EU) No 795/2014 (ECB/2014/28) and the following definitions shall also apply:

(1)

‘independent expert’ means a natural or a legal person which has no relationship that raises a conflict of interest regarding the SIPS or the SIPS operator or its controlling shareholders and has specific expertise in conducting investigations and reviews of financial market infrastructures with a focus on financial regulation, information systems and communication technology, risk management, financial reporting or auditing;

(2)

‘independent review’ means an evaluation of the operation of a SIPS the purpose of which is to provide: insight into any risks and vulnerabilities; assurance on the progress made by a SIPS operator to mitigate any risks and vulnerabilities; and validation of the effectiveness of a SIPS operator's policies, procedures and controls to mitigate any risks and vulnerabilities;

(3)

‘investigation’ means an examination and analysis of facts, documents, information and events, and an interpretation of the findings thereof, using known and commonly used investigative methods;

(4)

‘on-site inspection’ means an examination taking place at the location of the SIPS operator or at a relevant location related to the activities of a SIPS operator, including at the location of a critical service provider insofar as the contractual arrangements between the SIPS operator and that critical service provider allow for such an inspection, the purpose of which is to provide an in-depth analysis of, amongst other things, business models or governance, different risks and internal control systems;

(5)

‘on-site inspection team’ means a group of experts from the competent authority or its delegate or, as the case may be, another Eurosystem central bank, led by a head of team, the purpose of which is to conduct an on-site inspection;

(6)

‘critical service provider’ means a service provider that has a direct contractual arrangement with a SIPS operator to provide, on a continuous basis, services to that SIPS operator, and potentially to the participants in the SIPS, which are essential for ensuring information confidentiality and integrity and service availability, as well as the smooth functioning of the core operations of the SIPS;

(7)

‘another authority’ means an authority responsible for oversight of a SIPS, other than the competent authority or the central banks overseeing or supervising the critical service providers of a SIPS, to which the power of conducting on-site inspections may be delegated.

Article 2

General principles

1.

This Decision sets out the procedure a competent authority shall follow and the conditions it shall comply with in exercising its powers under Article 21(1) of Regulation (EU) No 795/2014 (ECB/2014/28).

▼M1

1a.

Where two Eurosystem central banks are designated as competent authorities in relation to a given SIPS for the purposes of Regulation (EU) No 795/2014 (ECB/2014/28), and unless otherwise specifically provided for in the decision pursuant to Article 1(2) of that Regulation that identifies the relevant payment system as a SIPS, the following principles shall apply:

(a)

the powers and rights of a competent authority as set out in this Decision may be exercised either individually by either one of the two Eurosystem central banks designated as competent authorities or jointly by both;

(b)

any obligation of the competent authority to act in a prescribed manner or undertake a certain action in relation to the exercise of a given power as set out in this Decision shall be an obligation of the Eurosystem central bank that exercises the given power or, where the given power is exercised by both Eurosystem central banks as designated competent authorities jointly, shall be an obligation of each of them;

(c)

the two Eurosystem central banks designated as competent authorities shall coordinate between themselves any interactions with, and any requests addressed to, the operator of the SIPS concerned;

(d)

any obligation of a SIPS operator, or of an independent expert – as the case may be – to a competent authority pursuant to this Decision shall be an obligation to each of the two Eurosystem central banks designated as competent authorities, and a response to any request of either or both of them pursuant to this Decision shall be submitted to eachof them.

▼B

2.

When exercising its powers under Article 21(1) of Regulation (EU) No 795/2014 (ECB/2014/28), a competent authority shall:

(a)

have regard to the objectives of Regulation (EU) No 795/2014 (ECB/2014/28) and their applicability to the circumstances of the case and only exercise such powers as are proportional to those objectives and the circumstance of the case in order to avoid any unnecessary burden on a SIPS operator;

(b)

either apply the same requirements consistently to similar SIPS operators or justify the different treatment of SIPS operators.

3.

Without prejudice to Article 11, the competent authority shall notify a SIPS operator in writing of its decision to exercise either of the powers set out in points (b) or (c) of Article 21(1) of Regulation (EU) No 795/2014 (ECB/2014/28).

4.

The decision referred to in paragraph 3 shall set out the following:

(a)

its legal basis and a statement of reasons;

(b)

the power to be exercised;

(c)

any additional requirement set out in Articles 4 to 7 according to the power to be exercised;

(d)

if the power to be exercised is the power to conduct on-site inspections and the written notification to the SIPS operator concerned is omitted in accordance with Article 11, the reasons for proceeding without informing the SIPS operator in advance;

(e)

the grounds on which the SIPS operator may challenge the decision.

5.

The independent expert or on-site inspection team, as applicable, shall have the following powers:

(a)

the right to require the submission of information and documents in accordance with Article 3;

(b)

the right to examine the books and records of the SIPS operator and take copies or extracts from such books and records, including those related to services performed by critical service providers of the SIPS insofar as the respective contractual arrangements between the SIPS operator and a critical service provider allow;

(c)

the right to obtain written or oral explanations from any representative or member of staff of the SIPS operator or its critical service providers (in the latter case only insofar as the respective contractual arrangements between the SIPS operator and a critical service provider allow and in relation to the services provided by that critical services provider to the SIPS);

(d)

interview any other person that is legally or contractually obliged to provide information for the purpose of collecting information relating to the subject matter of the investigation, independent review or on-site inspection.

6.

On conclusion of an investigation or independent review, the independent expert shall provide its draft report to the SIPS operator and the competent authority and subsequently its final report to the competent authority in the format and structure specified by the latter. The independent expert shall ensure that all findings within the report are evidence-based and, to the best of its knowledge and belief, accurate.

7.

On conclusion of an on-site inspection, the competent authority shall provide its draft report to the SIPS operator.

8.

The SIPS operator shall have the opportunity to comment in writing on a draft report provided by an independent expert or the competent authority. The SIPS operator's management board shall approve and sign the final report prior to submitting it or returning it to the competent authority or the independent expert, as applicable.

9.

The obligation of professional secrecy shall apply to all persons with respect to their work in connection with investigations, independent reviews or on-site inspections. All the information exchanged under this Decision shall be treated as confidential, except where its disclosure is required by Union law or national law.

10.

Findings resulting from...