02008O0005 — EN — 19.10.2020 — 002.001

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►B GUIDELINE OF THE EUROPEAN CENTRAL BANK of 20 June 2008 on the management of the foreign reserve assets of the European Central Bank by the national central banks and the legal documentation for operations involving such assets (recast) (ECB/2008/5) (2008/596/EC) (OJ L 192 19.7.2008, p. 63)

Amended by:









▼B

GUIDELINE OF THE EUROPEAN CENTRAL BANK

of 20 June 2008

on the management of the foreign reserve assets of the European Central Bank by the national central banks and the legal documentation for operations involving such assets (recast)

(ECB/2008/5)

(2008/596/EC)







Article 1

Definitions

For the purposes of this Guideline:

— ‘euro area NCB’ means the NCB of a Member State that has adopted the euro, and

— ‘European jurisdictions’ means the jurisdictions of all Member States that have adopted the euro in accordance with the Treaty, as well as Denmark, Sweden, Switzerland and the United Kingdom (England and Wales only).

Article 2

Management of foreign reserve assets by the euro area NCBs as the ECB’s agents

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1. Each euro area NCB shall be entitled to participate in the operational management of the foreign reserve assets transferred to the ECB. A euro area NCB may decide to: (a) abstain from such management or (b) pool such management with one or more other euro area NCBs. If a euro area NCB decides to abstain from such management, then the other euro area NCBs shall manage the assets that otherwise would have been managed by the abstaining euro area NCB. A request by a euro area NCB to the ECB or another euro area NCB to assume certain tasks whilst retaining other tasks relating to the management of the foreign reserve assets transferred to the ECB shall also be possible. The ECB and the relevant euro area NCB are free to consent to or to reject such a request.

▼B

2. The euro area NCBs shall carry out operations involving the foreign reserve assets of the ECB as agents of the ECB. By commencing such operations, a euro area NCB shall be deemed to acknowledge its status as the ECB’s agent. In relation to all operations that the euro area NCBs conduct on the ECB’s behalf, when agreeing on each operation such euro area NCBs shall disclose to all parties the ECB’s status as principal both by name and by reference to an account number or identifier.

3. When carrying out operations involving the foreign reserve assets of the ECB as the ECB’s agent, each euro area NCB shall subordinate its own interests, or the interests of any other entity for which it carries out operations, to the ECB’s interests.

4. When asked by a counterparty of the ECB for proof of its authority to carry out operations involving the foreign reserve assets of the ECB as the ECB’s agent, a euro area NCB shall provide such counterparty with proof of its mandate of agency.

Article 3

Legal documentation

1. All operations involving the foreign reserve assets of the ECB shall be conducted using standard legal documentation, as required by this Article and in such forms as may be approved or amended by the ECB from time to time. Before a euro area NCB may commence trading with a counterparty on behalf of the ECB, the legal documentation shall be signed by the counterparty and the originals lodged with the ECB.

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2. Repurchase and reverse repurchase, buy/sell-back and sell/buy-back operations involving the foreign reserve assets of the ECB shall be documented using the following standard agreements in the edition or version indicated, or any subsequent edition or version approved by the ECB: (a) the FBE Master Agreement for Financial Transactions (Edition 2004) shall be used for operations with counterparties organised or incorporated under the laws of any of the European jurisdictions and under the laws of Northern Ireland and Scotland; (b) the Bond Market Association Master Repurchase Agreement (September 1996 version) shall be used for operations with counterparties organised or incorporated under US federal or state laws; and (c) the TBMA/ISMA Global Master Repurchase Agreement (2000 version) shall be used for operations with counterparties organised or incorporated under the laws of any jurisdiction other than those listed in points (a) or (b).

3. Over-the-counter derivatives operations involving the foreign reserve assets of the ECB shall be documented using the following standard agreements in the edition or version indicated, or any subsequent edition or version approved by the ECB: (a) the FBE Master Agreement for Financial Transactions (Edition 2004) shall be used for operations with counterparties organised or incorporated under the laws of any of the European jurisdictions; (b) the 1992 International Swaps and Derivatives Association Master Agreement (Multicurrency – cross-border, New York law version) shall be used for operations with counterparties organised or incorporated under US federal or state laws; and (c) the 1992 International Swaps and Derivatives Association Master Agreement (Multicurrency – cross-border, English law version) shall be used for operations with counterparties organised or incorporated under the laws of any jurisdiction other than those listed in points (a) or (b).

▼B

4. The Executive Board may decide to use one of the standard agreements referred to in paragraphs 2(c) or 3(c) rather than the agreements referred to in paragraphs 2(a) or 3(a) in relation to a Member State when it adopts the euro, if no legal assessment that is both in form and in substance acceptable to the ECB is available regarding the use of the relevant standard agreement in that Member State. The Executive Board shall promptly inform the Governing Council of any decision taken under this provision.

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5. Deposits involving the ECB’s foreign reserve assets with counterparties which: (i) are eligible for the operations mentioned in paragraphs 2 and/or 3 above; and (ii) are organised or incorporated under the laws of any of the European jurisdictions, except Ireland, shall be documented using the FBE Master Agreement for Financial Transactions (Edition 2004 or any subsequent edition thereof). In cases not falling under points (i) and (ii) above, deposits involving the ECB’s foreign reserve assets shall be documented using the master netting agreement as specified in paragraph 7.

▼B

6. A document in the format set out in Annex I (hereinafter the ECB Annex) shall be annexed to and form an integral part of every standard agreement under which repurchase, reverse repurchase, buy/sell-back, sell/buy-back, securities lending, triparty repo or over-the-counter derivatives operations involving the ECB’s foreign reserve assets are conducted unless such operations are conducted under the FBE Master Agreement for Financial Transactions (Edition 2004).

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7. A master netting agreement shall be concluded with all counterparties, except counterparties: (i) with which the ECB has signed an FBE Master Agreement for Financial Transactions (Edition 2004 or any subsequent edition thereof); and (ii) which are organised or incorporated under the laws of any of the European jurisdictions, except Ireland, as follows: (a) a master netting agreement governed by English law and drafted in English shall be concluded with all counterparties, with the exception of the counterparties specified in points (b), (c) and (d); (b) a master netting agreement governed by French law and drafted in English shall be concluded with counterparties incorporated in France; however, such agreements already in force that are drafted in French shall continue to be valid and may be replaced by an agreement drafted in English at an appropriate later date; (c) a master netting agreement governed by German law and drafted in English shall be concluded with counterparties incorporated in Germany; however, such agreements already in force that are drafted in German shall continue to be valid and may be replaced by an agreement drafted in English at an appropriate later date; and (d) a master netting agreement governed by New York law and drafted in English shall be concluded with counterparties incorporated in the United States.

▼B

8. The provision of financial services involving the foreign reserve assets of the ECB by financial intermediaries including, without limitation, banking, brokerage, custodial and investment services obtained from correspondents, custodians and depositories, settlement organisations and central clearers for exchange-traded derivatives shall be documented under such specific agreements as the ECB may approve from time to time.

Article 4

Entry into force

1. Guideline ECB/2006/28 is hereby repealed with effect from 25 June 2008.

2. References to Guideline ECB/2006/28 shall be construed as being made to this Guideline.

3. This Guideline shall enter into force on 25 June 2008.

Article 5

Addressees

This Guideline applies to the euro area NCBs.









ANNEX I

ECB ANNEX ( 1 )

1. The provisions of this Annex shall be supplemental terms and conditions applying to [name the standard agreement to which this Annex applies] dated [date of agreement] (the Agreement) between the European Central Bank (the ECB) and [name of counterparty] (the Counterparty). The provisions of this Annex shall be annexed to, incorporated in and form an integral part of the Agreement. If and to the extent that any provisions of the Agreement (other than the provisions of this Annex) or the ECB Master Netting Agreement dated as of [date] (the Master Netting Agreement) between the ECB and the Counterparty, including any other supplemental terms and conditions, Annex or schedule to the Agreement, contain provisions inconsistent with or to the same or similar effect as the provisions of this Annex, the provisions of this Annex shall prevail and apply in place of those provisions.

2. Except as required by law or regulation, the Counterparty agrees that it shall keep confidential, and under no circumstances disclose to a third party, any information or advice furnished by the ECB or any information concerning the ECB obtained by the Counterparty as a result of it being a party to the Agreement, including without limitation information regarding the existence or terms of the Agreement (including this Annex) or the relationship between the Counterparty and the ECB created thereby, nor shall the Counterparty use the name of the ECB in any advertising or promotional material.

3. The Counterparty agrees to notify the ECB in writing as soon as reasonably practicable of: (i) any consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all of its assets to, another entity; (ii) the appointment of any liquidator, receiver, administrator or analogous officer or the commencement of any procedure for the winding-up or reorganisation of the Counterparty or any other analogous procedure; or (iii) a change in the Counterparty’s name.

4. There shall be no waiver by the ECB of immunity from suit or the jurisdiction of any court, or any relief against the ECB by way of injunction, order for specific performance or for recovery of any property of the ECB or attachment of its assets (whether before or after judgment), in every case to the fullest extent permitted by applicable law.

5. There shall not apply in relation to the ECB any event of default or other provision of any kind in which reference is made to the bankruptcy, insolvency or other analogous event of the ECB.

6. The Counterparty agrees that it has entered into the Agreement (including this Annex) as principal and not as agent for any other entity and that it shall enter into all transactions as principal.

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