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"BEUROPEAN CENTRAL BANK REGULATION (EC) No 2157/1999
of 23 September 1999
on the powers of the European Central Bank to impose sanctions
(ECB/1999/4)
(OJ L 264, 12.10.1999, p. 21)
Amended by:
Official Journal
No page date
"M1 Regulation (EC) No 985/2001 of the European Central Bank of 10
May 2001L 137 24 19.5.20011999R2157 — EN — 24.06.2001 — 001.001 — 1
EUROPEAN CENTRAL BANK REGULATION (EC) No 2157/1999
of 23 September 1999
on the powers of the European Central Bank to impose sanctions
(ECB/1999/4)
THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL
BANK,
Having regard to the Treaty establishing the European Community
(hereinafter referred to as the Treaty) and in particular to Article 110(3)
thereof, to the Statute of the European System of Central Banks and of
the European Central Bank (hereinafter referred to as the Statute) and in
particular to Articles 34.3 and 19.1 thereof, and to Council Regulation
(EC) No 2532/98 of 23 November 1998 concerning the powers of the
European Central Bank to impose sanctions (1) (hereinafter referred to as
the Council Regulation) and in particular to Article 6(2) thereof;
Whereas:(1) according to Article 34.3 of the Statute, in conjunction with
Article 43.1 of the Statute, paragraph 8 of Protocol No 25 on
certain provisions relating to the United Kingdom of Great Britain
and Northern Ireland and paragraph 2 of Protocol No 26 on certain
provisions relating to Denmark, this Regulation shall not confer
any rights or impose any obligations on a non-participating
Member State;
(2) the Council Regulation has established the limits and conditions
under which the European Central Bank (ECB) is entitled to
impose fines or periodic penalty payments on undertakings for
failure to comply with obligations under its regulations and
decisions;
(3) Article 6(2) of the Council Regulation provides the ECB with the
regulatory power to specify the arrangements whereby sanctions
may be imposed in accordance with the Council Regulation;
(4) other Council or ECB Regulations may provide for specific
sanctions in specific fields and may refer to this Regulation for the
principles and procedures relating to the imposition of such
sanctions;
(5) when carrying out the procedure to determine the applicable
sanction, the ECB must ensure the widest possible respect of the
rights of defence of third parties, in accordance with the general
principles of law and the case law of the Court of Justice of the
European Communities on the matter, in particular existing case
law concerning the inquiry powers of the European Commission
in the field of competition;
(6) there are no legal obstacles to the exchange of information within
the European System of Central Banks (ESCB) relating to the
detection of an infringement of ECB Regulations or Decisions;
(7) the principle of ne bis in idem must be respected as regards the
initiation of infringement procedures;
(8) the rules governing the powers of the ECB and the competent
national central bank in the framework of the infringement
procedure must ensure the effective conduct of a thorough
investigation of an alleged infringement, while at the same time
providing for a high level of protection of the rights of defence of
the undertaking concerned and the confidentiality of the
infringement procedure;
(9) assistance by the authorities of the Member States may be required
to ensure the effective exercise of the powers of the ECB and of!B
(1) OJ L 318, 27.11.1998, p. 4.1999R2157 — EN — 24.06.2001 — 001.001 — 2
the competent national central bank to carry out the infringement
procedure;
(10) the undertaking concerned shall have the right to be heard once
the inquiry stage, if any, of the infringement procedure has been
completed and once it has received the factual results of the
inquiry and the notice of objections;
(11) an infringement procedure shall be carried out subject to the
principles of confidentiality and of professional secrecy; con-
fidentiality or professional secrecy shall not affect the rights of
defence of the undertaking concerned;
(12) a decision on an infringement may be subject to further review by
the Governing Council of the ECB; the procedural conditions
under which such further review shall take place must be
established;
(13) for the purposes of enhancing the transparency and the effective-
ness of its powers to impose sanctions, the ECB may decide to
publish its final decisions regarding sanctions or any information
relating thereto; in view of the specific features of financial
markets, publication of a decision to impose a sanction shall be an
exceptional measure which shall only be taken by the ECB after
due consideration of the circumstances of the specific case, the
likely effects of such a decision on the reputation of the
undertaking concerned and the legitimate business interests of
the latter; such a decision to publish must respect the principle of
non-discrimination and guarantee a level playing-field; in this
context, consultation with the relevant supervisory authorities
prior to taking a decision to publish is desirable; the publication of
a decision to impose a sanction shall in any event not disclose any
information of a confidential nature;
(14) a decision to impose a pecuniary obligation is to be enforced in
accordance with Article 256 of the Treaty; whereas national
central banks may be delegated to adopt all measures which are
necessary to that end;
(15) for the sake of sound and efficient administration, it appears
appropriate to provide for a simplified infringement procedure for
the penalisation of minor infringements;
(16) this Regulation shall apply to cases of non-compliance foreseen in
Article 7(1) of Council Regulation (EC) No 2531/98 of 23
November 1998 concerning the application of minimum reserves
by the European Central Bank (1) (hereinafter referred to as the
Council Regulation on minimum reserves) within the limits and
conditions set out by the same Article 7(2); the particular features
of cases of non-compliance with minimum reserve requirements
as laid down in Article 7(1) of the Council Regulation on
minimum reserves warrant the adoption of a specific legal regime
which provides for an expeditious procedure for the imposition of
sanctions while, at the same time, not violating the rights of
defence of the undertaking concerned;
(17) the ECB shall act in accordance with the Council Regulation and
this Regulation in exercising the powers laid down in Article 7 of
Council Regulation (EC) No 2533/98 of 23 November 1998
concerning the collection of statistical information by the
European Central Bank (2),!B
(1) OJ L 318, 27.11.1998, p. 1.
(2) OJ L 318, 27.11.1998, p. 8.1999R2157 — EN — 24.06.2001 — 001.001 — 3
HAS ADOPTED THIS REGULATION:
Article 1
Definitions
For the purposes of this Regulation, the term ‘competent national central
bank’shall mean the national central bank of the Member State in whose
jurisdiction the alleged infringement has occurred. Other terms used
shall have the same meaning as defined in Article 1 of the Council
Regulation.
Article 2
Initiation of an infringement procedure
1. No more than one infringement procedure shall be initiated against
the same undertaking based on the same facts. For this purpose, no
decision on whether or not to initiate an infringement procedure shall be
taken by the Executive Board of the ECB or by the competent national
central bank until they have informed and consulted with one another.
2. Prior to a decision to initiate an infringement procedure, the ECB
and/or the competent national central bank may request from the
undertaking concerned any information relating to the alleged infringe-
ment.
3. Either the Executive Board of the ECB or the competent national
central bank, as the case may be, shall, upon request, be entitled to assist
and cooperate with the other in carrying out the infringement procedure,
in particular by transmitting any information that may be deemed
relevant.
4. Unless otherwise agreed between the parties concerned, any
communication between the ECB or the competent national central
bank, as the case may be, and the undertaking concerned shall be
conducted in the official Community language (or in one of the official
Community languages) of the Member State in whose jurisdiction the
alleged infringement has occurred.
Article 3
Powers of the ECB and the competent national central bank
1. The powers conferred by the Council Regulation upon the ECB and
the competent national central bank in carrying out the inquiry shall
include, for the purpose of obtaining any information relating to the
alleged infringement, the right to search for any items of information and
the right to conduct a search without prior notification of the undertaking
concerned.
2. The staff of the ECB or of the competent national central bank, as
the case may be, who are authorised, in accordance with their respective
internal rules, to search for information on the premises of the
undertaking concerned, shall exercise their powers upon the production
of formal authorisation in writing issued in accordance with their
respective internal rules.
3. Any request made to the undertaking concerned on the basis of the
powers conferred upon the ECB or the competent national central bank,
as the case may be, shall specify the subject matter and purpose of the
investigation.
Article 4
Assistance by the authorities of the Member States
1. The assistance of the authorities of the Member States may be
requested by the ECB or the competent national central bank, as the case
may be, as a precautionary measure.!B1999R2157 — EN — 24.06.2001 — 001.001 — 4
2. No authority of a Member State can act as a substitute for the ECB
or the competent national central bank, as the case may be, in the
assessment of the need for the investigations.
Article 5
Notice of objections
1. The ECB or the competent national central bank, as the case may be,
shall notify the undertaking concerned in writing of the factual results of
any inquiry carried out and of the objections raised against the
undertaking concerned before any decision is taken on the imposition
of a sanction.
2. The ECB or the competent national central bank, as the case may be,
shall, when giving notice of objections, fix a time limit within which the
undertaking concerned may inform in writing the ECB or the competent
national central bank, as the case may be, of its views on the objections
raised, without prejudice to the possibility to develop these views at an
oral hearing, if so requested in its written comments. This time limit shall
be no less than 30 working days and shall start to run from receipt of the
notification referred to in paragraph 1.
3. Further to the response received from the undertaking concerned, the
ECB or the competent national central bank, as the case may be, shall
decide whether to carry out further inquiries in order to resolve any
outstanding issues. An additional notice of objections pursuant to
paragraph 1 shall be sent to the undertaking concerned only if the result
of the further inquiries conducted by the ECB or the competent national
central bank, as the case may be, is to take new facts into account against
the undertaking concerned or to alter the evidence for the contested
infringements.
4. The ECB shall, in its decision to impose a sanction, deal only with
those objections which have been notified in the manner outlined in
paragraph 1 and in respect of which the undertaking concerned has been
afforded the opportunity to make its views known.
Article 6
Rights and obligations of the undertaking concerned
1. The undertaking concerned shall cooperate with the ECB or the
competent national central bank, as the case may be, in the inquiry stage
of an infringement procedure. The undertaking concerned shall namely
have the right to submit any documents, books or records, or copies or
extracts thereof, and to provide any written or oral explanations.
2. The obstruction, non-compliance or non-performance by the under-
taking concerned of duties imposed by the ECB or by the competent
national central bank, as the case may be, in the exercise of its powers
under the infringement procedure may provide sufficient grounds to
initiate an infringement procedure under the terms of this Regulation and
give rise to the imposition of periodic penalty payments.
3. The undertaking concerned shall have the right to legal represen-
tation during the infringement procedure.
4. Once it has been notified in accordance with Article 5(1), the
undertaking concerned shall have the right to access the documents and
other materials compiled by the ECB or by the competent national
central bank, as the case may be, which serve as the basis for the
evidence of an alleged infringement.
5. Should the undertaking concerned request in its written comments
also to be heard at an oral hearing, this shall be conducted, on the date
set, by the persons appointed for that purpose by the ECB or the
competent national central bank, as the case may be. Oral hearings will
take place on the premises of the ECB or the competent national central
bank. Oral hearings shall not be public. Persons shall be heard separately!B1999R2157 — EN — 24.06.2001 — 001.001 — 5
or in the presence of other persons called upon to attend. The
undertaking concerned may propose, within reasonable limits, that the
ECB or the competent national central bank, as the case may be, should
hear persons who may corroborate any aspect of its written comments.
6. The essential content of the statements made by each person heard
shall be recorded in minutes which shall be read and approved by such
person only in relation to his or her own statements.
7. Information and requests to attend oral hearings from the ECB or the
competent national central bank, as the case may be, shall be sent to the
addressees by registered post with acknowledgement of receipt, or shall
be delivered by hand against receipt.
Article 7
Confidentiality of the infringement procedure
1. An infringement procedure shall be carried out subject to the
principles of confidentiality and of professional secrecy.
2. Without prejudice to Article 6(4), the undertaking concerned shall
not have access to documents or other materials in the possession of the
ECB or the competent national central bank that are deemed to be
confidential in relation to third parties or to the ECB or the competent
national central bank. These shall include, in particular, documents or
other materials containing information relating to the business interests
of other undertakings, or internal documents of the ECB, the competent
national central bank, other Community institutions or bodies, or other
national central banks, such as notes, drafts and other working papers.
Article 8
Review of the decision by the Governing Council of the ECB
1. The Governing Council of the ECB may request the undertaking
concerned, the Executive Board of the ECB and/or the competent
national central bank to provide additional information in order to review
the decision of the Executive Board of the ECB.
2. The Governing Council of the ECB shall fix a time-limit by which
the information shall be provided, but this shall be no fewer than 10
working days.
Article 9
Enforcement of the decision
1. Once the decision on the imposition of a sanction has become final,
the Governing Council of the ECB, after consulting the relevant national
supervisory authorities, may decide to publish the decision or
information relating thereto in the Official Journal of the European
Communities . Such decision to publish shall have regard to the legitimate
interest of the undertaking concerned to protect its business interests, and
also to any other individual interest.
2. The decision of the ECB shall establish the manner in which
payment of the sanction is to be made.
3. The ECB may request the national central bank of the Member State
in whose jurisdiction the sanction is to be enforced to adopt all measures
necessary to that end.
4. The national central banks shall report to the ECB on the
enforcement of the sanction.!B1999R2157 — EN — 24.06.2001 — 001.001 — 6
!M1
5. The national central bank concerned or the ECB, as the case may be,
shall store all the information relevant to the determination and
enforcement of the sanction in a file that be kept for at least five years
from the date on which the decision on the imposition of the sanction
becomes final. The competent national central bank shall forward to the
ECB copies of all original documentation and materials in its possession
relating to the infringement procedure.
Article 10
Simplified procedure for minor infringements
1. In the event of a minor infringement the Executive Board of the ECB
may decide to apply a simplified infringement procedure. The sanction
to be imposed under this procedure shall not exceed EUR 25 000.
2. The simplified procedure shall entail the following steps:
(a) the Executive Board of the ECB shall notify the undertaking
concerned of the alleged infringement;
(b) the notification shall contain all the facts which constitute the
evidence of the alleged infringement and the corresponding
sanction;
(c) the notification shall inform the undertaking concerned of the fact
that the simplified procedure is being applied and of its right to
object to this procedure within 10 working days of receipt of the
notification; and
(d) if an objection is raised before the deadline laid down in (c) above,
the infringement procedure shall be deemed to be initiated and the
time limit of 30 working days within which it is possible to exercise
the right to be heard shall start as from expiry of the deadline laid
down in (c) above. If no objection is raised before the deadline laid
down in (c) above, the decision of the Executive Board of the ECB
on the imposition of a sanction becomes final.
3. This Article shall be without prejudice to the procedure applicable in
the event of non-compliance with minimum reserve requirements as laid
down in Article 11 of this Regulation.
Article 11
Procedure in the event of non-compliance with minimum reserve
requirements
1. In the event of non-compliance as foreseen in Article 7(1) of the
Council Regulation on minimum reserves, Article 2(1) and (3), Articles
3, 4 and 5 and Article 6, with the exception of paragraph 3, of this
Regulation shall not be applicable. The time limit foreseen in Article
8(2), shall be reduced to five working days.
2. The Executive Board of the ECB may specify and publicise the
criteria according to which it will apply the sanctions provided for in
Article 7(1) of the Council Regulation on minimum reserves. Such
criteria may be published through a notice in the Official Journal of the
European Communities .
3. Before any sanction is imposed in accordance with Article 7(1) of
the Council Regulation on minimum reserves, the Executive Board of the
ECB or, on its behalf, the competent national central bank shall notify
the undertaking concerned of the alleged non-compliance and of the
corresponding sanction. The notification shall contain all relevant facts
of the alleged non-compliance and shall also inform the undertaking
concerned that, unless it submits any objections, the sanction shall be
deemed to be imposed by decision of the Executive Board of the ECB.!B1999R2157 — EN — 24.06.2001 — 001.001 — 7
4. Upon receipt of the notification, the undertaking concerned shall be
given five working days either:
— to acknowledge the alleged non-compliance and agree to the
payment of the specified sanction, in which case the infringement
procedure shall be deemed to have come to an end,
or
— to present any written information, explanations or objections which
may be deemed relevant to a decision on whether or not to impose
the sanction. The undertaking concerned may also attach any
relevant documents as proof of the content of its reply. The
competent national central bank shall without undue delay forward
the file to the Executive Board of the ECB, which shall then decide
whether or not to impose a sanction.
5. If no written objections are raised by the undertaking concerned
within the established time limit, the sanction shall be deemed to be
imposed by decision of the Executive Board of the ECB. After the
decision has become final in accordance with the provisions of the
Council Regulation, the undertaking concerned shall be charged the
amount of the sanction specified in the notification.
6. In the situations foreseen in paragraph 4, first indent, and in
paragraph 5, the ECB or the competent national central bank, on behalf
of the ECB, as the case may be, shall give notification in writing to the
relevant supervisory authorities.
Article 12
Time limits
1. Without prejudice to Article 4 of the Council Regulation, the time
limits foreseen in this Regulation shall run from the day following
receipt of a communication or delivery thereof by hand. Any
communication from the undertaking concerned must be received by
the addressee or be dispatched by registered post before the relevant time
limit has expired.
2. Where the time limit would expire on a Saturday, Sunday or public
holiday, it shall be extended up to the end of the following working day.
3. For the purposes of this Regulation, relevant public holidays for the
ECB shall be those set out in the Annex to this Regulation, whereas
public holidays relevant to national central banks shall be those
established by law in the respective area of the Member State in which
the undertaking concerned is located. The term ‘working day’ shall be
construed accordingly. The ECB shall update the Annex of this
Regulation whenever necessary.!B1999R2157 — EN — 24.06.2001 — 001.001 — 8
ANNEX (Indicative)
List of public holidays (as referred to in paragraph 3 of Article 12)
The following public holidays will be observed by the ECB:
New Y ear’ s Day 1 January
Carnival Tuesday (half day) date varies
Good Friday date varies
Easter Monday date varies
Labour Day 1 May
Anniversary of the Declaration of Robert Schuman 9 May
Ascension Day date varies
Whit Monday date varies
Corpus Christi date varies
Day of German Unity 3 October
All Saints’ Day 1 November
Christmas Eve 24 December
Christmas Day 25 December
26 December 26 December
New Y ear’ s Eve 31 December!B1999R2157 — EN — 24.06.2001 — 001.001 — 9