EN Official Journal of the European Union C 17/5

GUIDELINE OF THE EUROPEAN CENTRAL BANK

of 21 December 2006

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

(ECB/2006/28)

(2007/C 17/02)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty establishing the European Community, and in particular to the third indent of Article 105(2) thereof,

Having regard to the third indent of Article 3(1) and Articles 12(1) and 30(6) of the Statute of the European System of Central Banks and of the European Central Bank,

Whereas:

(1) Pursuant to Article 30(1) of the Statute, the European Central Bank (ECB) is provided by the national central banks (NCBs) of the Member States that have adopted the euro with foreign reserve assets and has the full right to hold and manage the foreign reserves that are transferred to it.

(2) Pursuant to Articles 9(2) and 12(1) of the Statute, the ECB may manage certain of its activities through the NCBs and has recourse to the NCBs to carry out certain of its operations. Accordingly, the ECB considers that the NCBs should manage the foreign reserves transferred to it as its agents.

(3) The involvement of the NCBs in the management of the foreign reserve assets transferred to the ECB and the transactions relating to such management require specific documentation for operations involving the ECB's foreign reserves.

(4) Guideline ECB/2000/1 of 3 February 2000 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 the foreign reserve assets of the European Central Bank (1) has already been amended several times since its adoption and should be recast in the interests of clarity and transparency,

HAS ADOPTED THIS GUIDELINE:

Article 1

Definitions

For the purposes of this Guideline:

— ‘European jurisdictions’ means the following jurisdictions: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Slovenia, Spain, Sweden, Switzerland and the United Kingdom (England and Wales only);

— ‘participating NCB’ means the NCB of a Member State that has adopted the euro.

Article 2

Management of foreign reserve assets by the participating NCBs as the ECB's agents

1. Each participating NCB shall be entitled to participate in the operational management of the foreign reserve assets transferred to the ECB. A participating NCB may decide to abstain from such management or to pool such management with one or more other participating NCBs. If an NCB does not participate in the operational management of the ECB's foreign reserve assets, then the other NCBs shall manage the assets that otherwise would have been managed by the abstaining NCB.

2. Participating NCBs shall carry out operations involving the foreign reserve assets of the ECB as agents of the ECB. By commencing such operations, a participating NCB shall be deemed to acknowledge its status as the ECB's agent. In relation to all operations that the participating NCBs conduct on the ECB's behalf, when agreeing on each operation such participating 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 participating NCB shall subordinate its own interests, or the interests of any 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 participating 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.

2. All collateralised operations involving the foreign reserve assets of the ECB comprising repurchase agreements, reverse repurchase agreements, buy/sell-back agreements and sell/buy-back agreements, and all over-the-counter derivatives operations involving the foreign reserve assets of the ECB shall be documented under the standard agreements listed in Annex I, in such forms as may be approved or amended by the ECB from time to time.

3. A document in the format set out in Annex II shall be annexed to and form an integral part of every standard agreement, except the FBE Master Agreement for Financial Transactions (Edition 2004), under which collateralised operations (including, without limitation, repurchase agreements, reverse repurchase agreements, buy/sell-back agreements, sell/buy-back agreements, securities lending agreements and triparty repo arrangements) or over-the-counter derivatives operations involving the ECB's foreign reserve assets are conducted.

4. There shall be in place with all counterparties a master netting agreement in one of the forms set out in Annex III, except counterparties: (i) with which the ECB has signed an FBE Master Agreement for Financial Transactions (Edition 2004); and (ii) which are organised or incorporated under the laws of any of the European jurisdictions, except Ireland.

5. The provision of financial services involving the foreign reserve assets of the ECB by financial intermediaries including, without limitation, banking, 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

Final provisions

1. This Guideline shall enter into force on 1 January 2007.

2. Guideline ECB/2000/1, as amended, is hereby repealed.

3. References to the repealed Guideline shall be construed as being made to this Guideline.

4. This Guideline is addressed to the participating NCBs.

Done at Frankfurt am Main, 21 December 2006. For the Governing Council of the ECB The President of the ECB Jean-Claude TRICHET

(1) OJ L 207, 17.8.2000, p. 24. Guideline as last amended by Guideline ECB/2005/15 (OJ L 345, 28.12.2005, p. 33).

ANNEX I STANDARD AGREEMENTS FOR COLLATERALISED OPERATIONS, OVER-THE-COUNTER DERIVATIVES OPERATIONS AND DEPOSITS 1. All collateralised operations involving the foreign reserve assets of the ECB (comprising repurchase agreements, reverse repurchase agreements, buy/sell-back agreements and sell/buy-back agreements) must be documented using the following standard agreements, in such form as may be approved or amended by the ECB from time to time: (a) The FBE Master Agreement for Financial Transactions (Edition 2004) 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 for operations with counterparties organised or incorporated under US federal or state laws; and (c) The TBMA/ISMA Global Master Repurchase Agreement (2000 version) for operations with counterparties organised or incorporated under the laws of any jurisdiction other than those listed in subparagraphs (a) or (b). 2. All over-the-counter derivatives operations involving the ECB's foreign reserve assets must be documented using the following standard agreements, in such form as may be approved or amended by the ECB from time to time: (a) The FBE Master Agreement for Financial Transactions (Edition 2004) 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) 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) for operations with counterparties organised or incorporated under the laws of any jurisdiction other than those listed in subparagraphs (a) or (b). 3. All deposits involving the ECB's foreign reserve assets with counterparties which: (i) are eligible for collateralised operations as described in paragraph 1 and/or over-the-counter derivatives operations as described in paragraph 2, and (ii) are organised or incorporated under the laws of any of the European jurisdictions, except Ireland, must be documented using the FBE Master Agreement for Financial Transactions (Edition 2004), in such form as may be approved or amended by the ECB from time to time.

ANNEX II ECB ANNEX (1) This Annex is to be annexed to and form an integral part of any standard agreement, except the FBE Master Agreement for Financial Transactions (Edition 2004), under which collateralised operations (including without limitation repurchase agreements, reverse repurchase agreements, buy/sell back agreements, sell/buy back agreements, securities lending agreements and triparty repo arrangements) or over-the-counter derivatives operations involving the ECB's foreign reserve assets are conducted in accordance with Article 3(3) of this Guideline. 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. (1) This Annex has been drawn up in English and is incorporated into master agreements drawn up in English which are governed by English or New York law. The translation of this Annex into other languages is for illustrative purposes only and is not legally binding.