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Document 01998R2532-20150204
COUNCIL REGULATION (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions
Consolidated text: COUNCIL REGULATION (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions
COUNCIL REGULATION (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions
01998R2532 — EN — 04.02.2015 — 001.001
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COUNCIL REGULATION (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions (OJ L 318 27.11.1998, p. 4) |
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COUNCIL REGULATION (EC) No 2532/98
of 23 November 1998
concerning the powers of the European Central Bank to impose sanctions
Article 1
Definitions
For the purposes of this Regulation:
‘participating Member State’ shall mean a Member State which has adopted the single currency in accordance with the Treaty;
‘national central bank’ shall mean the central bank of a participating Member State;
‘undertakings’ shall mean those natural or legal persons, private or public, with the exception of public persons in the exercise of their public powers, in a participating Member State, which are the subject of obligations arising from ECB regulations and decisions, and shall include branches or other permanent establishments located in a participating Member State, the head office or registered office of which is outside a participating Member State;
‘infringement’ shall mean any failure by an undertaking to fulfil an obligation arising from ECB regulations or decisions;
‘fine’ shall mean a single amount of money which an undertaking is obliged to pay as a sanction;
‘periodic penalty payments’ shall mean amounts of money which, in the case of a continued infringement, an undertaking is obliged to pay either as a punishment, or with a view to forcing the persons concerned to comply with the ECB supervisory regulations and decisions. Periodic penalty payments shall be calculated for each complete day of continued infringement:
following notification of the undertaking of a decision requiring the termination of such an infringement in accordance with the procedure laid down in the second subparagraph of Article 3(1); or
when the continued infringement falls under the scope of Article 18(7) of Council Regulation (EU) No 1024/2013 ( 4 ) in accordance with the procedure laid down in Article 4b of this Regulation;
‘sanctions’ shall mean fines and periodic penalty payments.
Article 1a
General principles and scope
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:
jeopardise the stability of the financial markets or an ongoing criminal investigation; or
cause, in so far as can be determined, disproportionate damage to the undertaking concerned.
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.
Article 2
Sanctions
The limits within which the ECB may impose fines and periodic penalty payments on undertakings, unless otherwise provided for in specific Council Regulations, shall be the following:
fines: the upper limit shall be EUR 500 000 ; and
periodic penalty payments: the upper limit shall be EUR 10 000 per day of infringement. Periodic penalty payments may be imposed in respect of a maximum period of six months following the notification of the undertaking of the decision in accordance with Article 3(1).
The ECB shall take into consideration, where relevant, the circumstances of the specific case, such as:
on the one hand, the good faith and the degree of openness of the undertaking in the interpretation and fulfilment of the obligation arising from an ECB regulation or decision as well as the degree of diligence and cooperation shown by the undertaking or, on the other, any evidence of wilful deceit on the part of officials of the undertaking;
the seriousness of the effects of the infringement;
the repetition, frequency or duration of the infringement by that undertaking;
the profits obtained by the undertaking by reason of the infringement;
the economic size of the undertaking; and
prior sanctions imposed by other authorities on the same undertaking and based on the same facts.
Article 3
Procedural rules
Written notification of the decision to initiate an infringement procedure shall be given to the undertaking concerned, to the relevant supervisory authority and to the national central bank of the Member State in whose jurisdiction the alleged infringement has occurred or to the ECB. The notification shall disclose the details of the allegations against the undertaking and the evidence on which such allegations are founded. Where appropriate, the decision shall require the termination of the alleged infringement and shall give notice to the undertaking concerned that periodic penalty payments may be imposed.
The decision referred to in paragraph 1 may require the undertaking to submit to an infringement procedure. In carrying out the infringement procedure, the ECB or the national central bank, as the case may be, shall have the right to:
require the submission of documents;
examine the books and records of the undertaking;
take copies or extracts from such books and records; and
obtain written or oral explanations.
When an undertaking obstructs the conduct of the infringement procedure, the participating Member State where the relevant premises are located shall afford the necessary assistance, including ensuring access by the ECB or the national central bank to the premises of the undertaking, so that the aforementioned rights can be exercised.
No sanction shall be enforced against the undertaking until the decision has become final through either:
the period of thirty days referred to in paragraph 6 having elapsed without the undertaking making a request for review to the Governing Council of the ECB; or
the Governing Council notifying the undertaking of its decision, or the period referred to in paragraph 7 having elapsed without the Governing Council having taken a decision.
Article 4
Time limits
Article 4a
Specific rules regarding the upper limits of sanctions imposed by the ECB in the exercise of its supervisory tasks
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:
for fines, the upper limit shall be twice the amount of the profits gained or losses avoided because of the infringement where these can be determined, or 10 % of the total annual turnover of the undertaking;
for periodic penalty payments, the upper limit shall be 5 % of the average daily turnover per day of infringement. Periodic penalty payments may be imposed in respect of a maximum period of six months from the date stipulated in the decision imposing the periodic penalty payment.
For the purposes of paragraph 1:
‘annual turnover’ means the annual turnover of the undertaking concerned in the preceding business year, as defined in relevant Union law, and where this is not available, according to the most recently available annual financial accounts of such person. Where the undertaking concerned is a subsidiary of a parent undertaking, the relevant total annual turnover shall be the total annual turnover resulting from the most recently available consolidated annual financial accounts in the preceding business year, and where this is not available, according to the most recently available annual financial accounts of such person;
‘average daily turnover’ means the annual turnover, as defined under point (a), divided by 365.
Article 4b
Specific procedural rules for sanctions imposed by the ECB in the exercise of its supervisory tasks
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.
Article 4c
Specific time limits for sanctions imposed by the ECB in the exercise of its supervisory tasks
The time limits described in the preceding paragraphs can be extended if:
a decision of the Governing Council is subject to review before the Administrative Board of Review or appeal proceedings before the Court of Justice of the European Union; or
criminal proceedings are pending against the concerned undertaking in connection with the same facts. In such a case, the time limits described in the previous paragraphs shall be extended for the period of time it takes for the Administrative Board of Review or the Court of Justice to review the decision or until conclusion of the criminal proceedings against the concerned undertaking.
The limitation period for the enforcement of sanctions shall be suspended:
until the deadline for payment of the imposed sanction has passed;
if enforcement of payment of the imposed sanction is suspended pursuant to a decision of the Governing Council or of the Court of Justice.
Article 5
Judicial review
The Court of Justice of the European Communities shall have unlimited jurisdiction within the meaning of Article 172 of the Treaty over the review of final decisions whereby a sanction is imposed.
Article 6
General provisions and regulatory power
Article 7
Final provisions
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 6(2) shall apply from the date of entry into force of this Regulation. The remaining Articles shall apply from 1 January 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
( 1 ) OJ C 246, 6. 8. 1998, p. 9.
( 2 ) OJ C 328, 26. 10. 1998.
( 3 ) Opinion delivered on 8 October 1998 (not yet published in the Official Journal).
( 4 ) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).