EN ECB-PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 2 December 2022  
on a draft law concerning clearing and settlement of payments 
(CON/2022/42) 
 
Introduction and legal basis 
On 2 September 2022 the European Central Bank (ECB) received a request from the Swedish Ministry of 
Finance for an opinion on memorandum (Fi2022/02529) on increased resilience in the payment system 
(hereinafter the ‘memorandum’)1 containing a draft law concerning clearing and settlement of payments 
(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 European Union (hereinafter referred to as the ‘Treaty’) and the fifth and sixth indents of 
Article 2(1) of Council Decision 98/415/EC2, as the draft law relates to payment and settlement systems 
and rules applicable to financial institutions insofar as  they materially 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 law 
1.1 The overall purpose of the draft law, which applies to Swedish companies that conduct clearing 
activities and to branch offices located in Sweden of foreign companies that conduct clearing 
activities in their home country, is to update the current Swedish legislation on clearing and 
settlement of payments. As noted in  the memorandum of which the draft law forms part, this update 
is needed for a number of reasons. First, the curr ent Swedish legislation regarding clearing and 
settlement of payments dates from the mid-1990s. Since then, there have been major changes in 
the payments market, e.g. due to the rapidly increasing digitalisation3. Second, the current clearing 
activities for which mandatory authorisation is required do not cover the whole payment flow and 
some types of payments fall outside this scope4. Third, the current legislation is not in line with 
relevant international standards, such as the Prin ciples for financial market infrastructures (the 
‘PFMI’), published by the Committee on Payments and Market Infrastructures (CPMI) and the 
International Organisation of Securities Commissions (IOSCO), which have been implemented 
within the euro area in respect of systemically important payment systems through Regulation (EU) 
 
1  Finansdepartementets promemoria “Ökad motståndskr aft i betalningssystemet” september 2022 (Fi2022/02529) . 
2  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative pr ovisions (OJ L 189, 3.7.1998, p. 42). 
3  See Section 4.2 of the memorandum. 
4  See Section 4.1 of the memorandum. 
ECB-PUBLIC  
2 No 795/2014 (the ‘SIPS Regulation’) 5. As noted in the memorandum, Sweden does not have the 
euro as its currency and therefore the ECB’s legal acts do not apply (Article 139 of the Treaty). The 
SIPS Regulation therefore does not apply to Swedish payment systems.  However, both the 
Swedish Financial Supervisory Authority (SFSA) , which supervises clearing companies, and 
Sveriges Riksbank (hereinafter the ‘Riksbank’), wh ich is responsible for the oversight of certain 
systems of financial infrastructure, use the PFMI s in their supervision and oversight of clearing 
companies. Because the abovementioned internationa l standards are not binding, there is limited 
opportunity for the SFSA to impose requirements requiring companies to comply with them6. All in 
all, this means that a general overhaul must be ca rried out to ensure that the Swedish legislation 
on clearing and settlement of payments corresponds to what applies globally and within the euro 
area. Such an overhaul could, according to the memorandum, contribute to stronger regulation for both firms and supervisory authorities, and to greater resilience in the relevant financial 
infrastructure
7. 
1.2 In short, the draft law mainly contains prov isions on authorisations for carrying out clearing 
activities, requirements in relation to cleari ng activities and supervision as regards clearing 
companies (which is performed by the SFSA) and interventions relating thereto.  
1.3 In particular, the draft law proposes to ex tend the scope of mandatory authorisation by amending 
the definition of clearing activities to include: (i) requesting transfers, checking, confirming and 
offsetting payment orders and establishing final pos itions before settlement (clearing) and (ii) the 
settlement of payments for participants in the cleari ng system through final transfer (settlement) 8. 
As noted in the memorandum, this means that clearing activities in the draft law will cover the entire 
payment flow, and not just the final steps of the payment flow, i.e. performing clearing of clearing 
participants’ obligations to pay in Swedish or foreign currency and being liable for the obligations being settled through the transfer of cash or cash equivalents, as is the case today and which could 
give rise to cut-off problems with regard to which parts of clearing activities fall inside or outside of 
the scope of mandatory authorisation. This also means  that clearing activities in the draft law will 
cover instant payments, which are expected to rise in number and which are not currently within 
the scope of mandatory authorisat ion as instant payments are facilitated one by one, without 
clearing, and settlement will take place at the Riksbank and not at a cl earing company going 
forward
 9.  
As regards the settlement of payments, liability fo r the obligations being settled through the transfer 
of cash or cash equivalents is subject to  mandatory authorisation. Although the Riksbank will 
operate the settlement system for instant payments in  the future, authorisation should continue to 
be required for a private entity to carry out settlement activities. The definition of the term settlement 
 
5  Regulation of the European Central Bank (EU) No 795/2014 of 3 July 2014 on oversight requirements for systemically 
important payment systems (ECB/201 4/28) (OJ L 217, 23.7.2014, p. 16).  
6  See Section 4.2 of the memorandum. 
7  See Section 4.2 of the memorandum. 
8  See Chapter 1, Section 1 of the draft law. 
9 See Section 6.1 and p. 73 of the memorandum.  
ECB-PUBLIC  
3 should, according to the memorandum, nonetheless be updated to refer to the settlement of 
payments through final transfer10.  
Under the draft law, the Riksbank and payment service providers11 are exempted from the scope 
of mandatory authorisation12. 
1.4 A number of new requirements in respect of clearing companies and clearing activities are 
introduced by the draft law.  
Proportionality : in addition to the already existing requi rement that clearing companies conduct 
their business in a sound way, it is proposed that  they shall also, as is the case internationally, 
apply the principle of proportiona lity in their clearing activities13. This means that rules may not 
hinder access more than necessary to protect agains t risks within clearing activities and to protect 
the financial and operational stability of clearing companies14.  
Risk management : it is proposed that a clearing compan y must identify, measure, monitor, 
internally report, and manage the risks with which it s activities are associated, as well as ensure 
that there is satisfactory internal governance  and control, including assurance of operational 
stability15, which includes having the ability to manage increasing payment volumes when 
disruptions occur within the financial system that lead to operational or financial stress; which in 
turn means that the clearing company’s ability to carry out its activities should be maintained even in situations of financial stress
16. Further, a clearing company must  take into account operational 
risks and commercial, investment, credit, and liquidi ty risks, as well as ensure satisfactory 
operational reliability, including the ability to handle increased payment volumes as a consequence 
of operational or financial stress17. There should also be a clear allocation of re sponsibilities and 
obligations in connection with risk management as well as guidelines for how decisions are made 
in the event of disruption of the clearing or settlement system or in other crises18. 
Business continuity : currently, there is no express requirement for a clearing company to have a 
business continuity plan. The digitalisation of the payment market has been ongoing for a fairly 
long time and has accelerated over recent years,  with digital payments being far more common 
than cash payments today. The financial system is  creating the conditions for payments to be made 
swiftly, smoothly, and securely, which is necessary for the economy as a whole to function 
effectively. Even brief disruptions to the payment  system risk causing major consequences for the 
society at large. Longer interrupt ions could potentially threaten fi nancial stability as a whole. A 
clearing company plays a central role in the payme nts market, and the financ ial infrastructure for 
 
10  See Section 6.1 of the memorandum. 
11  I.e., companies that provide payment services in  accordance with the Swedish Payment Services Act. ( lag 
(2010:751) om betaltjänster ). This, in turn, constitutes part of the Sw edish implementation of Directive 2015/2366/EU 
of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, 
amending Directives 2002/65/EC, 2009/ 110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing 
Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35). 
12  See Chapter 2, Section 2 of the draft law. 
13  See Chapter 3, Section 1 of the draft law. 
14  See Section 7.1 of the memorandum. 
15  See Chapter 3, Section 2 of the draft law. 
16  See Section 7.2 of the memorandum. 
17  See Chapter 3, Section 2 of the draft law. 
18  See Section .2 of the memorandum. 
ECB-PUBLIC  
4 payments that a clearing company provides must function even in the event of disruptions that lead 
to significant operational or financial stress19. Against this backdrop, it is proposed that a clearing 
company must identify critical activities and ensur e that clearing activities can be resumed promptly 
after an interruption, as well as have business cont inuity plans, which must be reviewed and revised 
regularly, to be able to manage events that present a significant risk of interruption to the activities20. 
The requirement for business continuity planning in cludes the stipulation that a clearing company 
provide the requisite training and drills for employees and contractors and after a major disruption. 
The clearing company should review the incident and identify the cause in order to be able to prevent similar events in the future
21. 
Cyber security : it is also proposed that a clearing com pany must have strategies, which must be 
reviewed and revised regularly, for data security, IT security, and cybersecurity in order to be able 
to manage risks, threats, and vulnerabilities (as well as having plans for such strategies) 22.  
Currently, there are requirements on clearing compan ies (as clearing activities are considered to 
be systemically important services within financial market infrastructures) regarding, inter alia , 
security measures and incident reporting23. A clearing company must also meet the security 
requirements associated with clearing activities , meaning that the clearing company must meet 
certain requirements as regards organisational st ructure, risk management systems, and secure 
technical systems24. In addition, the SFSA has issued regulations and general advice on data 
security, IT activities, and depository systems25 and the provisions therein on data security and IT 
activities apply to clearing companies. As digita lisation of the payment market has been ongoing 
for a fairly long time and has been accelerating over  recent years, a clearing company should have 
strategies for data security, IT security, and cyber security26.  
Outsourcing : currently, there are no provisions on which requirements can be imposed on a 
clearing company that outsources activities to cont ractors, but such provisions do exist for most 
other financial firms, e.g., credit institutions, central counterparties, and central securities 
depositories. There should be certain requirements for clearing companies as well in relation to outsourcing tasks that are central to their activities
27. Therefore, it is proposed that a clearing 
company may commission a third party to carry out wo rk that is central to the clearing activities, 
provided that the clearing compan y takes responsibility for ensuring: (i) that  the contractor’s 
activities are carried out with operational stability and in forms that are satisfactory from a security 
point of view (i.e. the requirements are the same as  if the activities were being carried out inhouse), 
(ii) that the contra ctors’ activities are subject to satisf actory internal governance and control, and 
(iii) the SFSA’s supervision is not hampered28 (where the SFSA discover s that outsourcing is 
 
19  See Section 7.3 of the memorandum. 
20  See Chapter 3, Section 3 of the draft law. 
21  See Section 7.3 of the memorandum. 
22  See Chapter 3, Section 4 of the draft law and p. 81 of the memorandum. 
23  See Section 7.4 of the memorandum. 
24  See Chapter 20, Section 1 of the Securities Market Act ( lag (2007:528) om värdepappersmarknaden ). 
25  Finansinspektionens föreskrifter och allmä nna råd (FFFS 2014:5) om värdepappersmarknaden. 
26  See Section 7.4 of the memorandum. 
27  See Section 7.6 of the memorandum. 
28  See Chapter 3, Section 6 of the draft law.  
ECB-PUBLIC  
5 impeding effective supervision or breaches any ot her provision of the law, it can intervene and 
order the company to take the steps required to remedy the deficiencies) 29. Also, outsourcing 
agreements must be approved by the SFSA if the agreement represents a change in the conditions 
of the clearing activities30. The review may differ depending on whether the outsourcing is taking 
place within the European Economic Area or a third country31. 
Capital : it is proposed that a clearing company must use its shareholders’ funds to cover the risks 
to which the company is exposed and be able to contin ue to carry out critical activities even if losses 
arise32. This provision partly corresponds to the curr ent requirement that a clearing company must 
have share capital that is sufficient in view of its activities’ nature and scale. Furthermore, a clearing 
company must be sufficiently prepared to dischar ge whatever payment obligation may arise as a 
result of its clearing activities33.  
Governance : it is proposed that the executive board of  a clearing company shall be responsible for 
ensuring that the requirements in relation to the acti vities set out in the draft law (e.g. on soundness, 
proportionality, risk management, preparedness, information, IT and cyber security, capital and 
outsourcing) are observed34.  Further, it is proposed to add, as a requirement for authorisation, that 
the board of directors of a cl earing company shall have sufficient expertise and experience, 
meaning that the board of director s shall contain a suitable mix of technical abilities and expertise 
and experience of clearing operations and the financial market35.  
1.5 Under the draft law, the SFSA shall supervise clearing companies36. The SFSA shall, in its 
supervisory activities, cooperate and exchange in formation with foreign supervisory authorities37. 
The term ‘foreign supervisory authorities’ has, according to the memorandum, a wide meaning, 
and covers all authorities that monitor clearing activi ties, regardless of whether the activities abroad 
are subject to mandatory authorisation38. Currently, there is an obligation for the SFSA to inform 
the competent supervisory authorities in the relev ant country, the European Securities and Market 
Authority, and the European System Risk Board when  it has learned of a liquidation decision or a 
decision concerning corporate reorganisation in resp ect of a participant in a registered settlement 
system39. Aside from this obligation, there are curr ently no provisions stipulating that the SFSA 
must cooperate or exchange information with fore ign authorities in relation to clearing activities. 
The payments market has become ever more intern ational in recent years. As a consequence, 
there is a need to facilitate the cooperation and exchange of information between authorities in 
 
29  See Chapter 6, Section 1 of the draft law. 
30  See Chapter 3, Section 6 of the draft law. 
31  See p. 82 to 83 of the memorandum. 
32  See Chapter 3, Section 5 of the draft law. 
33  See Section 7.5 of the memorandum. 
34  See Chapter 3, Section 7 of the draft law. 
35  See Chapter 2, Section 3 of the draft law. 
36  See Chapter 5, Section 1 of the draft law. 
37  See Chapter 5, Section 4 of the draft law. 
38  See p. 86 of the memorandum. 
39  Registered in accordance with the Swedish Law on Settlements ( lag (1999:1309) om system för avveckling av 
förpliktelser på finansmarknaden ). 
ECB-PUBLIC  
6 relation to clearing activities. The SFSA should, therefore cooperate and exchange information with 
foreign supervisory authorities in it s supervision of clearing activities40. 
 
2. General observations 
2.1 The ECB welcomes the initiative to modernise the Swedish legislation on clearing and settlement 
of payments in order to achieve gr eater resilience in the relevant fi nancial market infrastructures. 
Given the rapidly increasing technological development  and digitalisation, it is important that the 
legislation is continuously reviewed and, when nece ssary, revised in order to remain up to date.  
2.2 Sweden is a Member State with a derogation that has not adopted the euro as its currency, 
meaning that the SIPS Regulation does not apply in Sweden. However, the ECB welcomes the 
intention of harmonising the Swedish rules on cl earing and settlement of payments with the 
principles established under the PFMI, and also – even though it does not apply in Sweden – the 
SIPS Regulation41. While the draft law harmonises the rules on clearing and settlement of payments 
by establishing requirements on, among others, risk management, business continuity, cyber security and governance, the SIPS Regulation is more detailed than the provisions of the draft law 
overall. The ECB understands that the provisions of the draft law appears to be intended to 
implement certain parts of the SIPS Regu lation and not the whole legislative text
42. In this respect, 
the ECB understands that, under the draft law43, the government or the public agency appointed 
by the government may issue regulations on, inter alia , what actions a clearing company must take 
to meet the requirements in relation to the abovementioned provisions which are intended to 
implement certain parts of the SIPS Regulation.  As the SFSA may already issue regulations that 
clearing companies must observe concerning IT activities and information security44 and is the 
designated supervisory authority under the draft law,  the ECB understands that it is likely that the 
SFSA will be appointed to issue regulations on what ac tions a clearing company must take to meet 
the requirements in relation to the activities set out  in the relevant provisions of the draft law. The 
ECB therefore understands that t he SFSA may issue regulations which could provide for a more 
detailed understanding of the provisions of the dr aft law which are intended to implement the SIPS 
Regulation. Further, as the ECB understands t hat the draft law, unlike the SIPS Regulation, 
encompasses not only systemically important payme nts systems but any activity which constitutes 
a clearing activity in accordance with the draft la w, it is worthwhile noti ng that the definition of 
clearing activities in the draft law appears to be inconsistent with the PFMI, which applies to 
financial market infrastructures which perform all activities (i.e. clearing, settlement, securities, 
derivatives, etc.) and not just any activiti es that constitutes clearing activities45. In turn, this may 
 
40  See Section 9.2 of the memorandum. 
41  See paragraph 2.1 of Opinion CON/202 1/11 and paragraph 2.1 of Opinion CON/2021/28. All ECB Opinions are 
published on EUR-Lex. 
42  See, mainly, Chapter 3, Sect ions 1 to7 of the draft law. 
43  See Chapter 7, Section 1, of the draft law. 
44  Chapter 20, Section 8, of the Securities Market Act. 
45   As the PFMI applies to systemically important payment s systems, such as clearing systems, it presupposes that 
clearing systems transmit, reconcile and, in some cases,  confirm transactions prior to settlement, potentially 
including the netting of transactions and t he establishment of final positions for settlement. Sometimes clearing is 
also used (imprecisely ) to cover settlement. 
ECB-PUBLIC  
7 result in the mandatory scope of authorisation in  the draft law applying to companies that are 
technical suppliers, for example, and not payment systems. In addition, the ECB understands that 
the abovementioned right of the SFSA to issue r egulations would not enable a distinction to be 
made between different kinds of clearing companies  as the ECB understands that such regulations 
would apply to all clearing companies. The Swedish legislator may wish to give further consideration to this matter.  
2.3 Many provisions in the draft law are provisions  that are proposed to be moved from existing law 
and remain unchanged in terms of meaning
46. Thus, this opinion will focu s on the provisions of the 
draft law that are new, in whole or part.  
 
3. Specific observations 
Definition of clearing activities  
3.1 The ECB understands that final transfer rega rding instant payments will be operated by the 
Riksbank in the future and not by clearing companies. However, insofar as the Swedish legislator wishes that authorisation should continue to be r equired for private entitie s carrying out settlement 
activities with respect to instant payments, t he definition of clearing activities may need to be 
corrected to ensure that the conc ept of settlement within that definition does not require the 
settlement of payments through final transfer. 
Implementation of the SIPS Regulation 
3.2 As mentioned in paragraph 2.2 above, in general  the SIPS Regulation is more detailed than the 
provisions of the draft law that are intended to implement certain parts of  the SIPS Regulation and 
not the whole legislative text
47. For instance, the provisions of the draft law on risk management, 
compared to the corresponding provisions of the SIPS Regulation48, do not appear to fully 
encompass, among other things, the provisions of the SIPS Regulation regarding the provision of 
incentives to participants and customers 49 or the provisions of the SIPS Regulation regarding 
specific risks, i.e. credit risk, liquidity risk, gener al business risk, custody and investment risks and 
operational risk50. Further, the draft law’s provisions on governance51, compared to the 
corresponding provisions of the SIPS Regulation52, do not appear to fully encompass the provisions 
of the SIPS Regulation on: (i) management’s roles,  responsibilities and reporting obligations; (ii) 
the risk management framework; (iii) the board’s approval for decisions that have a significant 
impact; and (iv) major decisions affecting the sy stemically important payment systems technical 
and functional setup, rules and overall strategy53. 
Sharing of information 
 
46  See Securities Market Act. 
47  See, mainly, Chapter 3, Sectio ns 1 to 7 of the draft law. 
48  See Articles 5, 6, 8, 13, 14 and 15 of the SIPS Regulation. 
49  See Article 5(2) of the SIPS Regulation. 
50  See Articles 6, 8, 13, 14 and 15 of the SIPS Regulation. 
51  See Chapter 3, section 7 of the draft law. 
52  See Article 4 of the SIPS Regulation. 
53  See Articles 4(6), 4(7), 4(7a) and 4(8) of the SIPS Regulation. 
ECB-PUBLIC  
8 3.3 As mentioned in paragraph 1.6, under the draft law the SFSA shall, in its supervisory activities, 
cooperate and exchange information with forei gn supervisory authorities. The term ‘foreign 
supervisory authorities’ has a wide meaning a ccording to the memorandum and covers all 
authorities that monitor clearing activities, regardle ss of whether the activities abroad are subject 
to mandatory authorisation. It appears to be unclear w hether, or to what extent, the obligation to 
share information with foreign supervisory authori ties applies to central banks in the European 
System of Central Banks (ESCB), including the ECB, acting as oversight, as opposed to 
supervisory, authorities. In parti cular, the use of the word ‘monitor’ appears ambiguous in this 
respect. It could be that the obligation to share info rmation with foreign supervisory authorities may 
be interpreted as applying to ESCB central banks onl y to the extent that the relevant ESCB central 
bank has supervisory authority. Consequently, if ESC B central banks only have overseer capacity, 
the obligation for the SFSA to share information w ould not apply. As previously noted by the ECB, 
legislative provisions on the sharing of info rmation with the ECB and/or foreign competent 
authorities should ensure that the information may also be shared with other ESCB central banks 
to the extent that this is necessary for the effi cient functioning of payment and securities settlement 
systems, and with supervisory and oversight author ities of Member States and the Union to the 
extent that this is necessary for the performance of their public tasks54. Central banks provide 
valuable input to the supervisory process and access  by central banks to supervisory information 
benefits the conduct of monetary policy operation s, the oversight of payment systems and the 
pursuit of financial stability55. 
 
This opinion will be published on EUR-Lex. 
  
Done at Frankfurt am Main, 2 December 2022. 
 [signed] 
 
The President of the ECB Christine LAGARDE 
 
54  See paragraph 5.2 of Opinion CON/2014/33. 
55  See, e.g., paragraph 9 of Opinion CON/2001/ 10 and paragraph 2.4.1 of Opinion CON/2006/15.