EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 24 March 2016  
on payment services 
(CON/2016/19)  
 
Introduction and legal basis  
On 26 January 2016 the European Central Bank (ECB) received a request from Българска народна 
банка (Bulgarian National Bank  - BNB) for an  opinion on a draft law amending and supplementing the law 
on payment services and payment systems (hereinafter the ‘draft law’ ). 
The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the Euro pean Union and the second, third and sixth indents of Article 2(1) of Council 
Decision 98/415/EC1, as the draft law  relates to means of payment,  a national central bank  (NCB)  and 
contains rules applicable to financial institutions insofar as they materiall y influence the stability of 
financial institutions and markets . In accordance with the first sentence of Article 17.5 of the Rules of 
Procedure of the European Central Bank, the Governing Council has adopted this opinion.  
 
1.  Purpose of the draft  
1.1  The primary purpose of the draft law is to transpose Directive 2014/92/EU of the European 
Parliament and of the Council2 (hereinafter the ‘ Payment Accounts Directive’ or PAD)  into 
Bulgarian law . Under the PAD, Member States must designate a national competent authority to 
oversee the application and enforcement of its provisions. Such competent authorit ies must either 
be public authorit ies or entities  recognised by national law or by public authorities expressly 
empowered for that purpose under  national law. While such competent authorities may not be 
payment service providers, an exception is made for national central banks. In the draft law , BNB is 
designated as the competent authority , responsible for the application and enforcement of the rules  
that implem ent the PAD into national legislation.   
1.2. In addition,  the draft law introduces several amendments to the Bulgarian Law on credit institutions , 
including the following : 
• exempting licenced  institutions that grant loans as an ancillary service from the r equirement 
to register , provid ed they have been granted a licence for another type of activity ; 
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on t he consultation of the European Central Bank by national 
authorities regarding draft legislative provisions ( OJ L 189, 3.7.1998, p. 42) . 
2  Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees 
related to payment accounts, payment account switching and access to payment accounts with basic features (OJ L 
257, 28.8.2014, p. 214).  
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2 • establishing a procedure allowing  capital instruments  to be classified as Additional Tier 1 
instruments and Tier 2 instruments  in accordance with Regulation (EU ) No 575/2013  of the 
European Parliament and of the Council3; 
• introducing a f ee for anyone requesting access to information from the central credit register ; 
• regarding the supervisory powers of BNB ; 
• repeal of BNB’s  competence to impose administrative sanct ions on persons who 
communicate false information regarding a bank , which may be detrimental to its reputation 
and credibility.  
 
2. General observations  
2.1 New NCB task  
The ECB would like to recall that when new tasks are conferred on a member  of the Europea n 
System of Central Banks (ESCB) , it is necessary to assess these tasks against the prohibition of 
monetary financing under Article 123 of the Treaty. For this purpose and in the light of that basic 
need, the ECB has developed guidance in the form of gener al and specific considerations on the 
basis of which the ECB may decide whether the new task conferred on an NCB is to be considered 
a central banking task or a government task for the purposes of the monetary financing prohibition
4. This guidance is set out in this paragraph 2.1. The concrete assessment of whether 
BNB’s task of overseeing the application and enforcement of the new rules  in the draft law that  
relate to payment accounts is to be considered a central banking task or a government task is then 
undertaken in paragraph 3.1. 
2.1.1  General considerations  
First, the systematic categorisation of tasks assigned to NCBs as central banking or government 
tasks applies to genuinely new tasks that did not exist in the past or did not form an integral part of 
the central banking tasks already assigned to an NCB. In recognition of the different Member 
States’ legal frameworks, central banking traditions and national set -ups, the tasks currently 
discharged by an NCB as central banking tasks are not reviewed and re-categorised, but may be 
reassessed if their substance is amended.  
Second, the principle of financial independence requires that the Member States may not put their 
NCBs in a position where they have insufficient financial resources to carry out their E SCB or 
Eurosystem -related tasks.  
Third, central banking tasks comprise in particular those tasks that are related to the tasks listed in 
Article 127(2), (5) and (6) of the Treaty.  
                                                 
3  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential 
requirements for  credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 
27.6.2013, p. 1).  
4  See paragraph 2 of Opinion CON2015/22. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.  
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3 Fourth, new tasks conferred on an NCB which are atypical of NCBs’ tasks, or which are clearly 
discharged on behalf of and in the exclusive interest of the government or of other public entities, 
should be considered to be government tasks . 
2.1.2   Specific considerations  
An important criterion for qualifying a new task as a governm ent task is the impact of the task on 
the institutional, financial and personal independence of the NCB. In particular, the following issues should be taken into account.  
First, it should be assessed whether the performance of the new task creates inadequately addressed conflicts of interests with existing central banking tasks, without necessarily complementing the existing central banking tasks. If a conflict of interest arises between existing 
and new tasks, there should be sufficient mitigation measures  in place to adequately address that 
conflict. Complementarity between the new task and existing central banking tasks should not, 
however, be interpreted broadly, as this could lead to the creation of an indefinite chain of ancillary 
tasks. The assessment  of the complementarity of a new task should also take into account the 
financing of that task.  
Second, it should be assessed whether , without new financial resources , the performance of the 
new task places a disproportionate burden on the financial or organisational capacity of the NCB 
and may negatively impact on its capacity to properly perform existing central banking tasks.  
Third, it should be assessed whether the performance of the new task is aligned with the 
institutional set -up of the NCB, in parti cular as regards central bank independence and 
accountability considerations.  
Fourth,  it should be assessed whether the performance of the new task entails substantial financial 
risks.  
Fifth,  it should be assessed whether the performance of the new task ex poses the members of the 
NCB’s decision -making bodies to political risks that are disproportionate and could also impact on 
their personal independence and, in particular, the guarantee of the Governor’s term of office under 
Article  14.2 of the Statute of the ESCB.  
2.2 Any final assessment on the qualification of a task given to an NCB as either falling within the scope of a central banking task or a government task will be guided by the objective of ensuring the 
consistent application of the monetary financing prohibition within the Eurosystem and the ESCB.  
 
3. Specific observations  
3.1 Conferral of the task relating to the application and enforcement of the new rules  
The ECB notes that the draft law would assign to BNB the application and enforcement of the ru les 
implementing the PAD into national law . To this end,  BNB’s  Governing Council must adopt a 
regulation on the application of the new rules
5 and enforce its implementation. Furthermore, BNB is 
mandated to take the necessary measures to raise public awareness of the availability of payment 
                                                 
5  See § 27 of the draft law . 
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4 accounts with basic features6 and must provide access , free of charge,  to a website comparing the 
fees charged by payment service providers for the relevant payment services7. 
3.1.1  New task  
The application and enforcement of t he rules implementing the PAD  is a new task, which no public 
authority in Bulgaria has previously performed. In the light of the guidance set out in paragraph 2.1 
it must therefore be assessed carefully whether this new task and the associated responsibili ties 
for BNB could constitute a breach of the monetary financing prohibition.  
3.1.2  The principle of financial independence  
The principle of financial independence requires that the Member States may not put their NCBs in 
a position where they have insufficient financial resources to carry out not only their ESCB -related 
tasks, but also their national tasks, both from an  operational and financial perspective8. 
Further more, w hen allocating specific non- ESCB- related tasks to the NCBs, additional personnel  
and financial resources must also be allocated so that these tasks may be carried out in a manner 
that will not affect the NCBs’ op erational or financial capacity to perform their  ESCB -related tasks9. 
In this regard,  the ECB also notes that the PAD requires  Member States to ensure that the national 
authorities in charge of the application and enforcement of its rules are granted adequate 
resources for the efficient and effective performance of their duties. However, t he draft law does 
not specify whether the State w ould reimburse BNB for the costs  related to the performance of this 
new task . 
3.1.3  Links to tasks listed in Article 127(2), (5) and (6) of the Treaty  
The application and enforcement of the rules implementing the PAD is a task related to the task conferred in th e fourth indent of Article 127(2) of the Treaty, as this task is ancillary to the 
promotion of the smooth operation of payment systems.  
3.1.4  Atypical tasks 
The application and enforcement of the rules implementing the PAD is a new task for national 
author ities in the Union. The PAD provides that Member States may designate their central banks 
as competent authorities , and the ECB understands that a number of Member States intend to do 
so
10. 
3.1.5  Complementarity of the new task with existing BNB tasks  
BNB is alre ady in charge of  the application of the provisions of the Law on payment services and 
payment systems11. The new rules in the draft law apply to payment service providers licenc ed by 
                                                 
6  See § 24 of the draft law.  
7  See new Article 73и  as set out in § 3 of the draft law.  
8  See the ECB’s 2014 Convergence Report, p. 25.    
9  See, for example, paragraph 3.1.2 of Opinion CON/2016/6.  
10  At the time of the adoption of this opinion, there were indications  that Member States were roughly split in equal 
proportion: while many d id not intend to designate their NCBs as the competent authority under the PAD , many 
others  did intend to do so. This is  consistent with the existing  allocation of  cons umer protection tasks exercised by 
NCBs in those Member States . 
11  See Article 112 of the Law on payment services and payment systems.  
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5 BNB, as well as to the branches and agents of payment service providers that conduct business on 
Bulgarian territory12. BNB’s new task  therefore seems to complement BNB’s existing tasks.  
3.1.6  Extent to which the performance of the new task is aligned with the institutional set -up of BNB  
The performance of the new task appears to be aligned with the institutional set -up of BNB . As 
mentioned in paragraph 3.1.4, BNB is already in charge of the application of provisions regarding 
payment services and system s. Further more,  BNB’s Governing Council is entrusted with the 
adoption of a regulat ion on the application of the draft law’s new rules , thus allowing it to decide on 
the approach that best suits its own institutional set -up. 
3.1.7  Extent to which the performance of the new task is proportional with  BNB’s financial and  
operational capacity and its ability to perform ESCB -related tasks  
The draft law entrusts BNB with the potentially resource- intensive task of appl ying and enforc ing 
the new rules. Moreover , the draft law mandates BNB to take the necessary measures to raise 
public awareness of the availability of payment accounts with basic features. More importantly , the 
ECB understands that the draft law requires BNB to establish and operate a website comparing the 
fees charged by payment service provider s13. The ECB therefore understands that BNB will bear 
the cost of establishing  such a website at its own expense.  All such costs go beyond those relating 
to the issuance of licences , which  BNB currently recover s under the existing law.  
3.1.8 Conclusion  
The ECB considers that, given their link to the ESCB task of promoting the smooth operation of 
payment systems, the tasks conferred on BNB under the draft law can be considered as central 
banking tasks. As s uch, their financing by BNB is  – in principle  – in compliance with the prohibition 
of monetary f inancing under Article 123 TFEU. Nonetheless, given that the PAD requires that the 
national competent authorities be granted adequate resources necessary for the efficient and 
effective performance of their duties14, the absence of any clear commitment from  the State to 
reimburse BNB for the costs that it incurs as a result of the draft law raises some concerns as 
regards BNB’s financial independence . Adequate provisions to implement the full extent of the PAD 
requirements should therefore be taken into account by the draft law.  
3.2 Amendments to the L aw on credit institutions  
3.2.1  The ECB welcomes the amendments to the Law on credit institutions , especially insofar as they 
contain a clarification regarding the fees charged for access ing the central credit r egister , which is 
also consistent w ith the ECB’s previous stance15. 
3.2.2  As regards the provision exempting licenc ed institutions  that grant loans as an ancillary service 
from the requirement to register16, the ECB notes that it should  be ensured that the c redit risk 
associated with such loans is mitigated appropriately.  
                                                 
12  See new Article 73а (2) as provided in § 3 of the draft law.  
13  See new Article 73и (2) as provided in § 3 of the draft law.  
14  Article 21(1) of PAD.  
15  See paragraph 3.1.6 of Opinion CON/2015/46.  
16  See Article 3а (9) of the draft law.  
ECB -PUBLIC  
6 3.2.3  The ECB considers that any BNB regulation specifying the procedure for allowing  capital 
instruments to be classified as Additional Tier 1 instruments and Tier 2 instruments , should be 
consistent with the relevant rules of Regulation (EU) No 575/2013.  
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main,  24 March 2016.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI