EN
OPINION OF THE EUROPEAN CENTRAL BANK
of 11 April 2001
at the request of the French Ministry of Econom y, Finance and Industry on a draft article of a
legal act in the field of payment systems
(CON/2001/2)
1. On 22 March 2001, the European Central Bank (ECB) received a request from the French
Ministry of Economy, Finance and Industry for an opinion on a draft amendment to ArticleL. 141-4 of the French Monetary and Financial Code in the field of payment systems(hereinafter referred to as the draft amendment).
2. The ECBs competence to deliver an opinion is based on Article 105(4) of the Treaty
establishing the European Community (hereinafter referred to as the Treaty), Article 3.1 of theProtocol on the Statute of the Eu ropean System of Central Banks and of the European Central
Bank, and Article 2 of Council Decision 98/415/EC of 29 June 1998 on the consultation of theEuropean Central Bank by national authorities regarding draft legislative provisions
1, as the
draft amendment contains provisions concerning a national central bank, in addition to rulesapplicable to the smooth operation of payment systems in so far as it is intended to increase thecapacity of the Banque de France to ensure such smooth operation. In accordance with the firstsentence of Article 17.5 of the Rules of Procedure of the European Central Bank, this opinionhas been adopted by the Governing Council of the ECB.
3. The draft amendment is based on Article 105(2) of the Treaty and draws from the ECBs policy
statement of June 2000 relating to the Role of the Eurosystem in the field of payment systems
oversight. The draft amendment extends the competence of the Banque de France to thesecurity of the payment instruments themselves . According to the draft amendment, where the
Banque de France considers that a payment instrument does not provide for sufficient security,it may recommend that its issuer adopt the corrective measures necessary to remedy that
                                                          
1 OJ L 189, 3.7.1998, pp. 42-43.
2situation. If these recommendations are not implemented, the Banque de France may decide to
issue a negative opinion and to publish it. In order to carry out these tasks, the Banque de Franceshall carry out expert work and obtain relevant information.
4. The ECB welcomes the introduction of the draft amendment. Indeed, safeguarding the security
of payment instruments used by the public is one of the main objectives of the Eurosystemwithin its oversight competence. The security of payment instruments is of high importance forthe Eurosystem in order to maintain the confidence of users of payment systems.
5. The ECB notes that, pursuant to the first indent of the draft amendment, the provision
introduced by the draft amendment applies to the payment instruments defined byArticle L. 311-3 of the Monetary and Financial Code with the exception of fiduciary money.Article L. 311-3 of the Monetary and Financial Code is drafted broadly to cover all instrumentswhich allow any person to transfer funds whatever the support or technical means used. Besides,the ECB understands that in France, making available to the customer or administratingpayment instruments, including e-money instrume nts, is, according to Article L. 311-1 of the
Monetary and Financial Code, a banking operation and that, consequently, all e-money productsare covered by the draft amendment. However, it should be noted that the note presenting thedraft amendment, which was attached to the request from the Ministry of Economy, Finance andIndustry, states that the draft amendment empowers the Banque de France to ensure the securityof scriptural payment instruments ( moyens de paiements scripturaux ). For the sake of
completeness, the ECB would appreciate a clarification that the draft amendment covers also alle-money products where the payment instrument is not necessarily linked to the credit or debitof a bank account. 
6. The last indent of the draft amendment provides that In order to carry out these tasks, the
Banque de France shall carry out expert work and obtain any relevant information. The notepresenting the draft amendment is more explic it than the draft amendment as far as the
communication of information is concerned. It specifies that the Banque de France isempowered to obtain from the issuers or from an y party having an interest in the circulation of
the payment instrument, all relevant information for the accomplishment of these tasks. TheECB proposes the incorporation of these specifications in the draft amendment itself. Thiswould make it clear in the legislation itself that the Banque de France has the power to obtaininformation from issuers or from any party having an interest in the circulation of the paymentinstrument.
37. The ECB confirms that it has no objection to the publication of this opinion by the competent
national authorities at their discretion.
Done at Frankfurt am Main on 11 April 2001.
The President of the ECB
[signed]
Willem F. DUISENBERG