2015年-ECB欧洲央行_Guide_to_consultation_of_the_European_Central_Bank_by_national_authorities_regarding_draft_legislative_provisions_31页_371kb

Summary of the Guide to Consultation of the European Central Bank by National Authorities regarding Draft Legislative Provisions

Core Content

This guide outlines the consultation procedure that national authorities must follow when preparing draft legislative provisions that fall within the European Central Bank's (ECB) fields of competence. It is based on Council Decision 98/415/EC, which has been in force since 1 January 1999, and serves as a reference for ensuring legal compatibility and harmonisation of national legislation within the European System of Central Banks (ESCB) and Eurosystem.

The guide is intended to raise awareness of the rights and obligations of national authorities and to encourage transparency and cooperation with the ECB. It also provides recommendations to ensure the efficiency of the consultation process.

Main Objectives

The primary objectives of Council Decision 98/415/EC are:

• To ensure national legislation is compatible with the Treaty on the Functioning of the European Union (TFEU) and the ESCB Statute.
• To promote harmonisation of legislation among Member States within the ECB's areas of competence.
• To enhance the quality of national legislation by incorporating expert advice from the ECB.
• To support the legal validity of national legislation by enabling the ECB to provide opinions that may be considered by national courts or the European Court of Justice (ECJ).

Key Information

1. Scope of Consultation

• Applicable to: All Member States except the United Kingdom, which is exempt.
• Consulting Authorities: Include national governments, national parliaments, national central banks (NCBs), supervisory authorities, competition authorities, and anti-money laundering authorities, provided they are acting on behalf of the initiating or adopting authority.
• Draft Legislative Provisions: Defined as provisions that, once enacted, apply to an indefinite number of cases and natural or legal persons.
• Excluded: Draft provisions solely for transposing Union directives into national law.

2. Fields of Competence of the ECB

The ECB is consulted on draft provisions affecting the following areas:

• Currency matters and means of payment (e.g., introduction of the euro, legal tender, commemorative coins, counterfeiting prevention).
• National Central Banks (NCBs) (e.g., status, independence, prudential supervision, foreign reserves).
• Collection, compilation, and distribution of monetary, financial, banking, payment systems, and balance of payments statistics.
• Payment and settlement systems (e.g., oversight, central counterparties, settlement finality, netting).
• Rules applicable to financial institutions that materially influence the stability of financial institutions and markets (e.g., prudential supervision, anti-money laundering, financial collateral, reorganisation of financial institutions).

3. Consultation Procedure

• Timing: Consultation should occur at the draft stage, especially when the ECB's opinion can influence the legislation.
• Request for Opinion: National authorities must submit a formal request to the ECB.
• Time Limits: The ECB has specific timeframes to respond to consultations.
• Acknowledgement: The ECB acknowledges receipt of the request.
• Opinion Preparation: The ECB prepares and adopts its opinion based on the draft provisions.
• Language: The ECB may provide opinions in the language of the requesting authority.
• Transmission: The ECB transmits its opinion to the consulting authority.
• Publication: ECB opinions are published on its website after adoption and transmission.

4. Compliance and Legal Consequences

• Non-compliance: May affect the legality of the legislation, as the ECB's opinion can be considered by the ECJ or national courts.
• Effectiveness: The consultation process has proven effective, with national legislators often amending or withdrawing draft provisions in response to ECB opinions.
• Non-binding Nature: ECB opinions are non-binding, but they are expected to be taken into account.

Conclusion

The guide highlights the importance of consultation with the ECB as a preventive measure to ensure consistency and legal compatibility across the EU. It provides clear guidelines on who is required to consult, what types of provisions are covered, and the procedure to follow. The increase in consultations since the 2008 financial crisis reflects the growing role of the ECB in ensuring financial stability and harmonising legislation. The ECB's expertise and advisory function are crucial for maintaining transparency and public trust in the Union's financial and monetary policies.