DECISION (EU) 2019/1348 OF THE EUROPEAN CENTRAL BANK

of 18 July 2019

on the procedure for recognising non-euro area Member States as reporting Member States under Regulation (EU) 2016/867 on the collection of granular credit and credit risk data (ECB/2019/20)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty on the Functioning of the European Union, and in particular, Article 127(2) and (5) thereof,

Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular Article 5 and the second indent of Article 34.1,

Having regard to Regulation (EU) 2016/867 of the European Central Bank of 18 May 2016 on the collection of granular credit and credit risk data (ECB/2016/13) (1), and in particular point (1) of Article 1 thereof,

Having regard to the contribution of the General Council of the European Central Bank,

Whereas:

(1) Regulation (EU) 2016/867 (ECB/2016/13) sets out the general framework for the collection of granular credit and credit risk data (hereinafter ‘credit data’). It is mentioned in that Regulation that Member States whose currency is not the euro (hereinafter ‘non-euro area Member States’) may decide to become a reporting Member State by incorporating the provisions of the Regulation into their national law or otherwise imposing relevant reporting requirements in accordance with their national law. This may include, in particular, Member States that participate in the Single Supervisory Mechanism (SSM) via close cooperation in accordance with Article 7 of Council Regulation (EU) No 1024/2013 (2).

(2) Article 5 of the Statute of the European System of Central Banks and of the European Central Bank, together with Article 4(3) of the Treaty on European Union, implies an obligation to design and implement at national level all the measures that the non-euro area Member States consider appropriate to collect the statistical information needed to fulfil the statistical reporting requirements of the European Central Bank (ECB) and to make timely preparations in the field of statistics in order to become Member States whose currency is the euro (hereinafter ‘euro area Member States’).

(3) As recognised in recital 7 of Regulation (EU) 2016/867 (ECB/2016/13), the common granular analytical credit data base (hereinafter ‘AnaCredit’) shared between the Eurosystem central banks should be open, on a voluntary basis, to non-euro area Member States, in particular those participating in the SSM, in order to broaden its geographical and data scope, and increase harmonisation across the Union. Several national central banks (NCBs) of non-euro area Member States (hereinafter ‘non-euro area NCBs’) are already cooperating with the ECB and NCBs of euro area Member States (hereinafter ‘euro area NCBs’) on the basis of Recommendation ECB/2014/7 (3), applying the preparatory measures for the collection of granular credit data in accordance with Decision ECB/2014/6 (4).

(4) Non-euro area Member States that decide to become a reporting Member State under Regulation (EU) 2016/867 (ECB/2016/13) should notify their intention to do so to the ECB. The ECB should verify that they have incorporated the provisions of that Regulation into their national law or that they have imposed relevant reporting requirements in accordance with their national law and without prejudice to the constitutional order of the Member State concerned.

(5) As mentioned in recital 4 of Guideline (EU) 2017/2335 of the European Central Bank (ECB/2017/38) (5), non-euro area Member States may also incorporate the provisions of that Guideline into national law or otherwise implement measures pursuant to their national law to ensure they fulfil equivalent obligations to transmit data to the ECB in a harmonised manner, including the requirements for registering counterparties in the Register of Institutions and Affiliates Data (RIAD) in accordance with Guideline (EU) 2018/876 of the European Central Bank (ECB/2018/16) (6). In this way, in line with recital 9 of Guideline (EU) 2018/876 (ECB/2018/16), the non-euro area Member States may contribute to the data reporting and validation in RIAD and, on a reciprocal basis, share data on their domestic entities and have access to the euro area dataset on the basis of Recommendation ECB/2018/36 (7).

(6) It is therefore necessary to specify the procedures to be followed by the ECB relating to (a) expressions of interest by non-euro area Member States to become reporting Member States under Regulation (EU) 2016/867 (ECB/2016/13), (b) its assessment of these expressions of interest, and (c) its recognition of a non-euro area Member State as a reporting Member State. It is also necessary to provide for procedures relating to the potential suspension and termination of such a recognition of a non-euro area Member State as a reporting Member State.

(7) The conditions for the access to and use of credit data collected by the ECB, euro area NCBs and non-euro area reporting Member States by non-euro area NCBs, and the access to and use by the ECB, euro area NCBs and NCBs of non-euro area reporting Member States of the data collected by non-euro area reporting Member States on the basis of their respective national laws, need to be established in a separate legally binding agreement. These conditions should be established taking into account the applicable provisions of Council Regulation (EC) No 2533/98 (8).

(8) The decision to recognise a non-euro area Member State as a reporting Member State will therefore be dependent on the existence of a legally binding agreement governing the interaction between the non-euro area NCBs, the ECB and the euro area NCBs on the sharing of credit data and other relevant issues, including the protection of the confidentiality of the information and restrictions on the use or transmission of the credit data, such as in the context of any feedback loops established under Article 11 of Regulation (EU) 2016/867 (ECB/2016/13),

HAS ADOPTED THIS DECISION:

Article 1 Scope and objectives This Decision establishes the procedures to be followed by the ECB to recognise non-euro area Member States as reporting Member States under Regulation (EU) 2016/867 (ECB/2016/13).

Article 2 Definitions The terms used in this Decision have the same meaning as in Regulation (EU) 2016/867 (ECB/2016/13), unless otherwise provided. For the purposes of this Decision, ‘reporting agent’ means either a legal entity or a foreign branch that is resident in the relevant non-euro area Member State and that is subject to reporting requirements which are the same as or relevant to the reporting requirements of Regulation (EU) 2016/867 (ECB/2016/13).

Article 3 Criteria to qualify as a reporting Member State 1. The ECB may only recognise a non-euro area Member State as a reporting Member State under Regulation (EU) 2016/867 (ECB/2016/13) if it is satisfied that the non-euro area Member State has incorporated the provisions of Regulation (EU) 2016/867 (ECB/2016/13) and Guideline (EU) 2017/2335 (ECB/2017/38) into its national law or otherwise imposed relevant reporting requirements in accordance with its national law. 2. For the purposes of paragraph 1, the ECB shall consider if the NCB of the non-euro area Member State, in cooperation with other relevant national authorities where necessary under applicable national law, has been empowered, at a minimum: (a) to identify and review the actual reporting population as defined in Article 3(1) of Regulation (EU) 2016/867 (ECB/2016/13); (b) to collect credit data sourced from the actual reporting population as defined in Article 3(1) of Regulation (EU) 2016/867 (ECB/2016/13), without prejudice to the application of the provisions of Article 8(4) and (5) of that Regulation or of equivalent provisions in its national law; (c) to identify counterparties in the manner described in Article 9 of Regulation (EU) 2016/867 (ECB/2016/13); (d) to impose on the reporting agents identified in point (a) the same or equivalent statistical reporting requirements to those set out in Articles 4 to 8, and 13 to 15 of Regulation (EU) 2016/867 (ECB/2016/13); (e) to grant derogations to small reporting agents as set out in Article 16 of Regulation (EU) 2016/867 (ECB/2016/13); (f) to verify and carry out the compulsory collection of the information when a reporting agent does not fulfil the minimum standards for transmission, accuracy, compliance with concepts and revisions pursuant to Article 17 of Regulation (EU) 2016/867 (ECB/2016/13); and (g) to impose sanctions on reporting agents as prescribed in Article 18 of Regulation (EU) 2016/867 (ECB/2016/13). For the avoidance of doubt, the requirements with respect to the implementation stages and first reporting as specified in Article 2 of Regulation (EU) 2016/867 (ECB/2016/13) do not need to be incorporated into national law. 3. For the purposes of paragraph 1, the ECB shall also consider whether, without prejudice to paragraph 2, national laws contain provisions incorporating Articles 7 and 8 of Regulation (EC) No 2533/98.

Article 4 Expression of interest 1. A non-euro area Member State wishing to become a reporting Member State pursuant to Regulation (EU) 2016/867 (ECB/2016/13) may submit to the ECB an official expression of interest to become a reporting Member State (hereinafter ‘interested Member State’), using the template provided in Annex I. 2. In order for the ECB to consider the expression of interest referred to in paragraph 1, it must be accompanied by the implementing documentation for the purposes of the verification referred to in Article 5(3), including, but not limited to the following: (a) a completed correlation table, using the template provided in the Appendix to Annex I; (b) a copy of the relevant national legislation together with an English translation thereof; (c) a legal opinion, issued by an external independent third party or the legal services of the relevant national authority, satisfactory to the ECB confirming that: (i) the national legislation will be binding and enforceable in the interested Member State, and (ii) the NCB of the interested Member State is obliged to follow the ECB's specific guidelines, requests and measures issued in relation to Regulation (EU) 2016/867 (ECB/2016/13), within the timeframe laid down by the ECB, where specified. 3. Such expression of interest must be received by the ECB at least nine months before the date of the first transmission of credit data, as set out in Article 6, as indicated by the interested Member State in its expression of interest, and must specify the reporting reference dates and reference periods which shall be covered from the first transmission.

Article 5 Verification procedure 1. The ECB shall acknowledge in writing receipt of an expression of interest by an interested Member State to that Member State within 20 days. 2. The ECB may request additional information or documentation to that specified in Article 4(2) that it considers appropriate for the purposes of assessing the interested Member State's expression of interest. The ECB shall promptly acknowledge in writing receipt of any such additional information or documentation to the interested Member State. 3. The ECB shall verify that the interested Member State has incorporated the provisions of Regulation (EU) 2016/867 (ECB/2016/13) and Guideline (EU) 2017/2335 (ECB/2017/38) into its national law, or otherwise imposed relevant reporting requirements in accordance with its national law. 4. For the purpose of the verification referred to in paragraph 3, the ECB shall mandate the European System of Central Banks Statistics Committee (STC) to coordinate the process and to mandate the Legal Committee (LEGCO) to prepare a verification report. The verification report shall assess: (a) the extent to which those provisions of Regulation (EU) 2016/867 (ECB/2016/13) specified in Article 3(2) have been implemented in national law and, (b) where the provisions referred to in point (a) have not been implemented, the reason for such non-implementation. 5. Where, on the basis of the complete documentation submitted by the interested Member State the ECB is satisfied that the criteria set out in Article 3 have been fulfilled, it shall decide to recognise that the interested Member State qualifies as a reporting Member State under Regulation (EU) 2016/867 (ECB/2016/13). The decision shall specify the date from which the recognition applies, the reporting reference dates and reference periods which shall be covered from the first transmission, and the relevant date for the first reporting, which shall be no earlier than the date indicated by the interested Member State in its expression of interest. 6. The decision referred to in paragraph 5 shall be subject to the NCB of the interested Member State entering into an agreement in the form set out in Annex II, governing its interaction with the ECB, the euro area NCBs and NCBs of non-euro area Member States that have been recognised as reporting Member States on the credit data sharing and related issues. Taking into account the provisions of Regulation (EC) No 2533/98, this agreement shall establish the conditions for: (a) the access to and use of credit data collected by the ECB, euro area NCBs and non-euro area reporting Member States by non-euro area NCBs, and (b) the access to and use by the ECB, euro area NCBs and NCBs of non-euro area reporting Member States of the data collected by non-euro area reporting Member States on the basis of their respective national laws. Any such agreement entered into by the NCB of an interested Member State may not be amended in a manner which is inconsistent with the form set out in Annex II. 7. The ECB shall decide that the interested Member State does not qualify as a reporting Member State under Regulation (EU) 2016/867 (ECB/2016/13) in any of the following cases: (a) where, on the basis of the complete documentation submitted by the interested Member State, the ECB concludes that it does not meet the criteria to qualify as a reporting Member State pursuant to Article 3; (b) where the ECB does not receive the information necessary to perform its assessment within one year from the receipt of an expression of interest by the interested Member State; (c) where the agreement referred to in paragraph 6 has not been entered into. 8. At the latest six months following the ECB's date of acknowledgement of receipt of the documentation in accordance with paragraph 1, or, where applicable, paragraph 2, the ECB shall notify the interested Member State of its decision as referred to in paragraphs 5 and 7. Such notification shall include the reasons on which the decision is based. However, the ECB and the interested Member State may agree to extend the period during which the ECB shall notify the interested Member State of its decision. 9. The ECB shall consider a request for review of the decision referred to in paragraph 7 by the interested Member State provided that it: (a) is received within 30 days from the date of the notification of the decision; (b) specifies the grounds for the request for review; and (c) includes all supporting information. Upon receipt of a request for review, the ECB shall review its decision and may provide the interested Member State with the opportunity to put in place the necessary arrangements that would enable it to be recognised as a reporting Member State. The ECB reserves the right to request the submission of a new legal opinion, issued by an external independent third party or the legal services of the relevant national authority, confirming the validity and applicability of these arrangements.

Article 6 First transmission of credit data 1. Following the notification of the ECB's decision recognising that an interested Member State qualifies as a reporting Member State under Regulation (EU) 2016/867 (ECB/2016/13), and subject to the entry into force of the agreement referred to in Article 5(6), the ECB shall request the NCB of the interested Member State to identify and review the actual reporting population in accordance with Article 5 of Guideline (EU) 2017/2335 (ECB/2017/38). 2. If the interested Member State has been recognised as a reporting Member State under Regulation (EU) 2016/867 (ECB/2016/13) and such recognition applies from a date which prevents the NCB of that Member State from identifying and reviewing the actual reporting population in the first quarter of the first year in which it shall start reporting, then the actual reporting population shall be identified by the other reporting Member States, in line with Article 5 of Guideline (EU) 2017/2335 (ECB/2017/38) in that year. 3. The first transmission of credit data may only take place after the ECB has established that the NCB of the interested Member State has developed an IT system interoperable with the ECB technical infrastructure. 4. The first monthly and quarterly transmission shall start on the date indicated by the ECB in its decision as referred to in Article 5(5).

Article 7 Suspension or termination 1. The ECB may decide to suspend or terminate its recognition of a non-euro area Member State as a reporting Member State if it has grounds to believe that the relevant Member State no longer meets the criteria to qualify as a reporting Member State pursuant to Article 3. In the event of a termination of the recognition of a non-euro area Member State as a reporting Member State, the agreement entered into pursuant to Article 5(6) shall be automatically terminated. 2. In any decision under paragraph 1, the ECB shall state the reasons for the suspension or termination, specify the effect of the decision and indicate the date from which the suspension or termination shall apply and the duration of the period of suspension. A suspension shall be for a maximum period of six months. The ECB may extend the period of the suspension in exceptional circumstances, but only once. Where the reasons for the suspension are not remedied within the prescribed period, the ECB shall terminate the recognition of the relevant non-euro area Member State as a reporting Member State. 3. The ECB and the NCB of a non-euro area reporting Member State may terminate the agreement referred to in Article 5(6) in accordance with the provisions thereof. In such a case, the recognition of the non-euro area Member State as a reporting Member State shall be automatically terminated and cease to have effect.

Article 8 Entry into force This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Done at Frankfurt am Main, 18 July 2019. The President of the ECB Mario DRAGHI

(1) OJ L 144, 1.6.2016, p. 44.

(2) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).

(3) Recommendation ECB/2014/7 of 24 February 2014 on the organisation of preparatory measures for the collection of granular credit data by the European System of Central Banks (OJ C 103, 8.4.2014, p. 1).

(4) Decision ECB/2014/6 of 24 February 2014 on the organisation of preparatory measures for the collection of granular credit data by the European System of Central Banks (OJ L 104, 8.4.2014, p. 72).

(5) Guideline (EU) 2017/2335 of the European Central Bank of 23 November 2017 on the procedures for the collection of granular credit and credit risk data (ECB/2017/38) (OJ L 333, 15.12.2017, p. 66).

(6) Guideline (EU) 2018/876 of the European Central Bank of 1 June 2018 on the Register of Institutions and Affiliates Data (ECB/2018/16) (OJ L 154, 18.6.2018, p. 3).

(7) Recommendation ECB/2018/36 of 7 December 2018 on the Register of Institutions and Affiliates Data (OJ C 21, 17.1.2019, p. 1).

(8) Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the European Central Bank (OJ L 318, 27.11.1998, p. 8).