3.2.2015   

EN

Official Journal of the European Union

L 27/1

(1)

Regulation (EC) No 2532/98 (4) is founded on Article 132(3) TFEU and Article 34.3 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute’) that empower the Council to establish the limits and the conditions for the European Central Bank (hereinafter the ‘ECB’) to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions. The content of Regulation (EC) No 2532/98 should therefore be confined to the infringements of regulations and decisions adopted by the ECB. For infringements of directly applicable Union law, other than regulations and decisions adopted by the ECB, the relevant provisions laid down by Regulation (EU) No 1024/2013 (5) should apply.

(2)

The ECB has applied Regulation (EC) No 2532/98 to impose sanctions in its various fields of competence, including in particular the implementation of the monetary policy of the Union, the operation of payment systems and the collection of statistical information.

(3)

Regulation (EU) No 1024/2013 vested the ECB with some supervisory tasks and entitled the latter to impose on the credit institutions it supervises: (a) administrative pecuniary penalties when these institutions breach a requirement under directly applicable Union law in relation to which administrative pecuniary sanctions shall be made available to competent authorities under the relevant Union law; and (b) sanctions in accordance with Regulation (EC) No 2532/98 in case of a breach of ECB regulations or decisions (hereinafter jointly referred to as ‘administrative penalties’).

(4)

Article 18(7) of Regulation (EU) No 1024/2013 provides that for the purposes of carrying out the tasks conferred on it by that Regulation in case of breach of ECB regulations and decisions, the ECB may impose sanctions in accordance with Regulation (EC) No 2532/98.

(5)

In this regard, certain provisions of Regulation (EC) No 2532/98 are not coherent with a wide range of provisions contained in Regulation (EU) No 1024/2013 that are directly relevant to the ECB's powers to impose sanctions in case of a breach of ECB regulations and decisions. It is therefore necessary to identify the rules laid down in Regulation (EC) No 2532/98 that should be amended when referring to the imposition of sanctions by the ECB in case of a breach of ECB regulations or decisions relating to its supervisory tasks.

(6)

On the basis of its power to implement the supervisory tasks allocated to it by the Treaties, laid down under Article 34 of the Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank, the ECB has adopted Regulation (EU) No 468/2014 (6). In order to organise the ECB task of ensuring compliance with the rules contained under the directly applicable Union law, Regulation (EU) No 468/2014 further specifies, in accordance with Article 4(3) of Regulation (EU) No 1024/2013 and in accordance with the fundamental rights and principles laid down in the Charter of Fundamental Rights of the European Union, the framework for administrative penalties laid down in Article 18 of Regulation (EU) No 1024/2013. It also establishes rules concerning the imposition of administrative penalties in case of a breach of an ECB regulation or decision. Regulation (EU) No 468/2014 is an instrument implementing secondary legislation. Accordingly, in case of conflict between the provisions laid down in that Regulation and the provisions of Regulation (EC) No 2532/98, Regulation (EC) No 2532/98 will prevail.

(7)

The ECB should publish decisions imposing sanctions in case of a breach of an ECB regulation or decision in the supervisory field, unless such publication would jeopardise the stability of financial markets or would cause, in so far as it can be determined, disproportionate damage to the undertaking involved.

(8)

The upper limit of a fine that the ECB may impose on an undertaking for failure to comply with an ECB regulation or decision in the supervisory field should not differ from the upper limit of a fine that the ECB may impose on an undertaking for a breach of directly applicable Union law, in order to ensure consistency in the treatment of equally serious infringements. All fines imposed by the ECB in the exercise of its supervisory tasks should therefore be subject to the same upper limits.

(9)

The ECB should be able to impose periodic penalty payments on undertakings in order to compel them to comply with ECB regulations or decisions in the supervisory field, or to put an end to a continued infringement thereof. The upper limit of periodic penalty payments should be commensurate with the upper limit of fines applicable in the supervisory field.

(10)

Article 25 of Regulation (EU) No 1024/2013 lays down the principle of separation, whereby the ECB carries out the tasks conferred on it by Regulation (EU) No 1024/2013 without prejudice to and separately from its tasks relating to monetary policy and any other tasks. This principle is to be followed without restriction in all tasks carried out by the ECB. In order to strengthen this principle of separation, a Supervisory Board has been established pursuant to Article 26 of Regulation (EU) No 1024/2013, which, inter alia, is responsible for preparing complete draft decisions for the Governing Council of the ECB in the supervisory field. In addition, the decisions taken by the Governing Council of the ECB are subject to review by the Administrative Board of Review, under the conditions laid down in Article 24 of Regulation (EU) No 1024/2013. Taking account of the principle of separation and the establishment of the Supervisory Board and the Administrative Board of Review, two distinct procedures should apply: (a) where the ECB contemplates the imposition of administrative penalties in the exercise of its supervisory tasks, decisions to this effect are taken by the Governing Council of the ECB based on a complete draft decision from the Supervisory Board and subject to review by the Administrative Board of Review; and (b) where the ECB contemplates the imposition of sanctions in the exercise of its non-supervisory tasks, decisions to this effect are taken by the Executive Board of the ECB and subject to review by the Governing Council of the ECB.

(11)

Due to the complexity of the investigation of infringements in the supervisory field, the power to impose and enforce sanctions relating to the supervisory tasks of the ECB should be subject to longer time limits than those provided for sanctions relating to the non-supervisory tasks of the ECB. The suspension and interruption of these time limits should be regulated accordingly, also taking into account that infringement procedures in the supervisory field may overlap with criminal investigations and criminal proceedings that are based on the same facts.

(12)

Regulation (EC) No 2532/98 should therefore be amended accordingly,

(1)

Article 1 is amended as follows:

(2)

the following Article is inserted:

‘Article 1a

General principles and scope

1.   This Regulation shall apply to the imposition by the ECB of sanctions on undertakings for failure to comply with obligations arising from ECB decisions or regulations.

2.   The rules applying to the imposition by the ECB, in the exercise of its supervisory tasks, of sanctions in case of a breach of an ECB regulation or decision shall derogate from the rules laid down in Articles 2 to 4 to the extent laid down in Articles 4a to 4c.

3.   The ECB shall publish any decision imposing sanctions on an undertaking in case of a breach of an ECB regulation or decision, in the supervisory field, whether or not such decision has been appealed.

The ECB shall carry out such a publication on its website without undue delay, and after the decision has been notified to the undertaking concerned. The publication shall include information on the type and nature of the breach and the identity of the undertaking concerned, unless publication in this manner would either:

In these circumstances, decisions regarding sanctions shall be published on an anonymised basis. Alternatively, where such circumstances are likely to cease within a reasonable period of time, publication under this paragraph may be postponed for such period of time.

If an appeal to the Court of Justice in respect of a decision imposing a sanction is pending, the ECB shall, without undue delay, also publish information on the status of the appeal in question and the outcome thereof on its official website.

The ECB shall ensure that information published under this paragraph remains on its official website for at least five years.’

(3)

in Article 2, paragraph 4 is replaced by the following:

‘4.   Whenever the infringement consists of a failure to perform a duty, the application of a sanction shall not exempt the undertaking from its performance, unless the decision adopted in accordance with Article 3(4) or Article 4b explicitly states the contrary.’

(4)

Article 3 is amended as follows:

(5)

the following Articles are inserted:

‘Article 4a

Specific rules regarding the upper limits of sanctions imposed by the ECB in the exercise of its supervisory tasks

1.   By way of derogation from Article 2(1), in the case of infringements relating to decisions and regulations adopted by the ECB in the exercise of its supervisory tasks, the limits within which the ECB may impose fines and periodic penalty payments shall be as follows:

2.   For the purposes of paragraph 1:

Article 4b

Specific procedural rules for sanctions imposed by the ECB in the exercise of its supervisory tasks

1.   By way of derogation from Article 3(1) to (8) of this Regulation, the rules laid down in this Article shall apply to infringements relating to decisions and regulations adopted by the ECB in the exercise of its supervisory tasks.

2.   Where the ECB, in carrying out its tasks under Regulation (EU) No 1024/2013, considers that there is reason to suspect that one or more breaches of an ECB regulation or decision as referred to in Article 18(7) of Regulation (EU) No 1024/2013 are being or have been committed by an undertaking having its head office in an euro area Member State, the ECB shall exercise the relevant investigations in accordance with the following provisions.

3.   On completion of an investigation and before a proposal for a complete draft decision is prepared and submitted to the Supervisory Board, the ECB, in its capacity to investigate breaches in the field of supervision, shall notify the undertaking concerned in writing of the findings under the investigation carried out and of any objections raised thereto.

In the notification referred to in the first subparagraph, the ECB, in its capacity to investigate breaches in the field of supervision, shall inform the undertaking concerned of its right to make submissions in writing to the ECB on the factual results and the objections raised against the entity as set out therein, including the individual provisions which have been allegedly infringed, and it shall set a reasonable time limit for making such submissions. The ECB shall not be obliged to take into account written submissions made after the time limit set by the ECB in its capacity to investigate breaches in the field of supervision has expired.

The ECB, in its capacity to investigate breaches in the field of supervision may also, following notification in accordance with the first subparagraph, invite the undertaking concerned to attend an oral hearing. The parties subject to investigation may be represented and/or assisted by lawyers or other qualified persons at the hearing. Oral hearings shall not be held in public.

The right of access to the file by the undertaking concerned under investigation shall be guaranteed. It shall not extend to confidential information.

4.   The Supervisory Board shall propose a complete draft decision to the Governing Council, determining whether or not the undertaking concerned has committed a breach and specifying the sanctions to be imposed, if any, in accordance with the procedure under Article 26(8) of Regulation (EU) No 1024/2013.

5.   The undertaking concerned shall have the right to request a review by the Administrative Board of Review of the decision taken by the Governing Council pursuant to paragraph 4, in accordance with the procedure laid down in Article 24 of Regulation (EU) No 1024/2013.

Article 4c

Specific time limits for sanctions imposed by the ECB in the exercise of its supervisory tasks

1.   By way of derogation from Article 4, the right to take a decision to impose a sanction in case of a breach of an ECB decision or regulation relating to its supervisory tasks, shall expire five years after the infringement occurred or, in the case of a continued infringement, five years after the infringement ceased.

2.   Any action taken by the ECB for the purposes of the investigation or proceedings with respect to an infringement shall cause the time limit laid down in paragraph 1 to be interrupted. The limitation period shall be interrupted with effect from the date on which the action is notified to the supervised entity concerned. Each interruption shall cause the time limit to recommence. However, the time limit shall not exceed a period of 10 years after the infringement occurred or, in the case of a continued infringement, 10 years after the infringement ceased.

3.   The time limits described in the preceding paragraphs can be extended if:

4.   The right of the ECB to enforce a decision to impose a sanction shall expire five years after such decision has been taken. Any action of the ECB designed to enforce payment or payment terms and conditions under the imposed sanction shall cause the limitation period for the enforcement to be interrupted.

5.   The limitation period for the enforcement of sanctions shall be suspended: