EN ECB -PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 12 August  2013 
on OTC derivatives, central counterparties and trade repositories   
(CON/ 2013/59) 
 
Introduction and legal basis  
On 5 July 2013, the European Central Bank (ECB) received a request from  the Nationale Bank  van 
België/Banque Nationale de Belgique (NBB), acting on behalf of the Belgian Ministry of Finance , for an 
opinion on Articles 2 to 13 of a draft  law implementing Regulation (E U) No 648/2012 of the European 
Parliament and of the Council of 4 July 2012  on OTC derivatives, central counterparties and trade 
repositories1 (hereinafter the ‘ draft law’). 
The ECB’s competence to deliver an opinion is based on Article s 127(4) and 282(5)  of the Treaty  on the 
Functioning of the European Union  and the  third , fifth and  sixth  indent s of Article  2(1) of Council 
Decision 98/415/EC of 29  June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions2, since  Articles 2 to 13 of the draft law relate to  the NBB , 
paymen t and  settlement systems and the  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 Eur opean Central Bank, the Governing Council has adopted 
this opinion.  
 
1.  Purpose of the draft law 
1.1  The purpose of Articles 2 to 13 of the draft law is to  allocate responsibilities to  the NBB and the 
Financial Services and Markets Authority ( FSMA) with regard to the authorisation and supervision 
of central counterparties  (CCPs)  established in Belgium  pursuant to  Article 22 of Regulation (EU) 
No 648/2012 . 
                                                 
1  OJ L 201, 27.7.2012, p. 1. The full title of the draft law is ‘Law amending the  law of 22 February 1998 establishing the 
organic statute of the National Bank of Belgium, the law of 2 August 2002 on the supervision of the financia l sector and on 
financial services, the law of 22 March 1993 on the status and control of credit institutions, the law of 9 July 1975 on the 
control of insurance undertakings, the law of 21 December 2009 on the status of payment undertakings and electronic  money 
undertakings, on the access to the activity of payment service providers, to the activity of issuance of electronic money and  to 
the access to payment systems, the law of 28 April 1999 implementing the Directive 98/26/EC of 19 May 1998 on the finali ty 
of settlement in payment and securities settlement systems and the law of 15 December 2004 on financial collateral and 
providing for various tax provisions for arrangements establishing collateral arrangements and loans with respect to financia l 
instrum ents’.  
2  OJ L 189, 3.7.1998, p. 42.  
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2 1.2 To this end, the draft law introduces  the definition  of ‘CCP ’3 in the Organic Statute of the National 
Bank of Belgium  as a replacement for  the existing concept  of ‘clearing institution’4. With  this 
change , CCP s become subject to the NBB’s overall prudential supervision  under  Article 36/2 of the 
Organic Statute of the N ational Bank of Belgium . In paral lel, the draft law5 designate s the NBB as 
the competent authority for the authorisation and supervision of CCPs  within the context  of 
Regulation (EU) No 648/2012 . This designation is without prejudice to the powers conferred on the 
FSMA  by Article 22 of th e Law of 2 August 2002 on the supervision of the financial sector and on 
financial services , as amended by the draft law . 
1.3 As the responsible authority for carrying out the duties for the authorisation and supervision of 
CCPs established in Belgium purs uant to  Regulation (EU) No 648/2012 , the NBB also become s 
responsible , in accordance with Article 22 (2) and (3)  of the above -mentioned Regulation as 
implemented in the draft law,  for: (a) coordinatin g cooperation and the exchange of information 
with the European Commission , the European Securities and Market Authority , the competent 
authorities of other Member States, the European Banking Authority , and  the relevant  members  of 
the European System of Central Banks ; and (b) taking administrative measures  and imposin g 
administrative fines and penalties where  CCPs breach their obligation under Regulation (EU) 
No 648/2012 . On the other hand, FSMA ’s responsibility is to:  (a) issue recommendation s to NBB 
as regards  granting authorisation to institutions established  in Belgium that plan to provide CCP 
services ; (b) deal with the conflicts of interest involving CCP s; (c) be consulted by NBB when 
assessing the professional integrity of the directors and senior management.  
 
2.  General observations  
2.1 In accordance wit h Decision 98/415/EC, this opinion is limited to those provisions of the draft law 
that relate to the NBB and that go beyond harmonisation of national law with Regulation (EU) 
No 648/2012 . 
2.2 The ECB notes that the allocation of responsibilities  between the NBB and FSMA with respect to 
CCPs  reflect s the ‘twin -peaks’ type model of financial supervisory structures. The ECB commented 
on the allocation of responsibilities  betwee n the NBB and FSMA (including with respect to clearing 
institutions) in Opinion CON /2011/56. 
2.3 The ECB welcomes the draft law, as the  NBB ’s new tasks  complement the NBB’s existing 
objective  to promote the smooth operation of payment and securities settlement systems and ensure 
                                                 
3 Article 2 of the Regulation (EU) No. 648/2012 defines ‘CCP’ as ‘a legal person that interposes itself between the 
counterparties to the contracts traded on one or more financial markets, becoming the buyer to every se ller and the seller to 
every buyer’.  
4  Section 13 of Article 36/1 of the Organic Statute of the National Bank of Belgium defines ‘clearing institution’ as ‘any 
institution that undertakes conversion into net debt by means of novation or of the clearing of  mutual claims arising from 
transactions on financial instruments or forward exchange transactions’.  
5  As amended in paragraph  2 of Article 36/25 of the Organic Statute of the National Bank of Belgium.  
6  All ECB opinions are published on the ECB’s websit e at www.ecb.europa.eu.  
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3 their efficiency and soundness7, in accordance with Article  127(2) of the Treaty and the fourth 
indent of Article 3.1 and Article 22 of the Statute of the European Systems of Central Banks  and 
the European Central Bank  (hereinafter ‘Statute of the ESCB’),  as well as  the NBB’s tasks of 
contributing to the stability  of the financial system8, in accordance with Article 127(5) of the 
Treaty, as mirrored in Article 3.3 of the Statute of the ESCB . 
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main, 12 August  2013. 
 
[signed]  
 
The Vice-President of t he ECB  
Vítor CONSTÂNCIO  
                                                 
7  Article 8 of the Organic Statute of the NBB.  
8  Article 12 of the Organic Statute of the NBB.