EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 7 December 2009 
on the general terms and conditions, and the op erating and technical requirements, of clearing 
service providers for the payment system in Hungary 
(CON/2009/98) 
 
Introduction and legal basis  
On 16 November 2009, the European Central Bank (E CB) received a request from the Magyar Nemzeti 
Bank (MNB) for an opinion on two draft regulations: th e first on the requirements for the general terms 
and conditions and regulati ons of clearing services providers for the payment system (hereinafter the 
‘draft operational regulation’), and a second on the material, technical, security and business continuity 
requirements of clearing service providers for the pa yment system (hereinafter the ‘draft technical 
regulation’) (the draft operational regulation and the dr aft technical regulation are hereinafter referred to 
jointly as ‘the draft regulations’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the fifth indent of Article  2(1) of Council Decisi on 98/415/EC of 29 June 1998 
on the consultation of the European Central Bank by  national authorities regarding draft legislative 
provisions1, as the draft regulations concern payment and se ttlement systems. In acco rdance 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 According to Article 4(5) of Law LVIII of 2001 on the Magyar Nemzeti Bank
2 (hereinafter the ‘the 
MNB Law’), one of the basic tasks of the centr al bank is to develop and regulate payment and 
clearing systems, and to oversee and monitor these systems. Pursuant to Article 19/C of Law CXII of 1996 on credit and financial institutions
3, in the process of applying for authorisation to carry out 
clearing operations, applicants inter alia  have to submit the general te rms and conditions, as well as 
the internal regulations of the clearing house con cerning operational, technical and security rules 
                                                 
1  OJ L 189, 3.7.1998, p. 42. 
2  Published in Magyar Közlöny  2001/76 (VII. 5.), as amended. 
3  Published in Magyar Közlöny  1996/109 (XII. 12.), as amended. 
2 and requirements, and business continuity plans. Pu rsuant to Article 27(1) of the MNB Law, such 
general terms and conditions and th eir amendments are subject to prior authorisation by the MNB. 
1.2 The smooth functioning of Hungarian payment and settlement systems is a crucial aspect of a 
sound currency and essential to the conduct of mone tary policy at national level. These systems 
also have a significant bearing on the functioning of  financial markets. Moreover, safe and efficient 
payment systems are critical to the maintenance of  banking and financial stability. Therefore the 
purpose of regulating uniform preconditions is to re inforce a consistent legal framework for entities 
providing clearing services in Hungary.  
1.3 The draft operational regulation lays down variou s general rules, such as requirements for the 
contents of the general terms and conditions a nd the regulations for clearing houses. The draft 
technical regulation governs certain risk manageme nt measures, such as the material, technical and 
general security conditions for operating the paymen t system. Furthermore, it also sets the rules for 
business continuity planning and regular testing,  as well as recovery and resumption objectives. 
 2. General observations 2.1 The ECB understands that the draft regula tions lay down preconditions for clearing service 
providers in Hungary, ensuring that they are subject to the same uniform minimum standards, thereby taking into account internationally accept ed oversight standards; notably the Core 
Principles for Systemically Important Payment Systems
4 (Core Principles), and the Business 
Continuity Oversight Expectations for Systemically Important Payment Systems5 (BCOE 
Principles) , while also making it possible for entiti es providing clearing services to include 
additional provisions in the general terms and c onditions and to introduce further or stricter 
measures to ensure the safety of their operations. 
2.2 The ECB welcomes such preconditions as they ar e essential to the MNB’s oversight function. The 
draft regulations enhance the soundness of cl earing and settlement systems as the uniform 
standards clearly define the responsibilities and legal basis of organisations providing clearing 
services in Hungary, thereby greatly improving the transparency and accountability of such 
organisations and their operations. The ECB consid ers that the draft regulations follow the legal 
rules and standards established by the Eurosystem for payment and settlement systems, also taking 
account of recent developments in the financial markets.  
 
                                                 
4  Available on the Bank for International Settlement’s website at www.bis.org.  
5  Available on the ECB’s we bsite at www.ecb.europa.eu. 
3 3. Specific observations 
3.1 The ECB suggests that Article 11 of the draft op erational regulation consider the whole life cycle 
of a payment and also cover the pre-settlement pha se of the payment process. Besides the time of 
settlement finality, it would in particular be advisab le to require the system to clearly define the 
time of acceptance and irrevocability of payment orders in the system’s rules, in particular in the 
case of interconnections between systems, as it is one of the key requirements of Core Principle IV. 
3.2 The tools and measures used fo r liquidity provision are key components of a system’s overall risk 
management framework; the ECB therefore welcomes  the requirements in Article 12 of the draft 
operational regulation in this respect. The ECB recommends that the terms and conditions of 
granting credit specify in particular whether and how intraday credit provided for eligible participants may be converted to overnight credit. 
3.3 Article 15 of the draft opera tional regulation addresses rules fo r liability sharing, as well as for 
mitigation and compensation for damages. The MN B could consider extending this by requiring 
the clearing house to define evidence, i.e. that  electronic or written records of the payment 
messages will be accepted as mean s of evidence, because these cond itions usually form an integral 
part of the liability regime. 
3.4 The ESCB has developed a glossary of main bus iness continuity terms for market infrastructures 
with the aim of improving the consistency of the terminology used in business continuity planning 
and procedures. In order to take full advantage of these harmonisation efforts, it is recommended 
that the definitions listed in Article 2 of the dr aft technical regulation take these commonly agreed 
definitions into account. 
3.5 The ECB suggests clarifying ‘the great majority of the clearing days’ in Article 13(7) of the draft 
technical regulation, because it could give rise to different interpretations. The ECB also considers 
it preferable to make an express reference in Arti cle 13(12) to the different risk profiles, i.e. 
geographical location, infrastructure, personnel, of  the secondary site as compared to the primary 
site. 
3.6 As part of the overall business continuity fra mework, the BCOE Principles impose on the system 
operator the key responsibility for identifying cr itical participants and for assessing the potential 
risks they present to the smooth functioning of th e system. Moreover, critical participants must 
implement some BCOE Principles, under the control of the operator. The ECB is of the view that 
the draft technical regulation should also clarif y the tasks and responsibilities of organisations 
providing clearing services in this respect. 
 
4 This opinion will be published on the ECB’s website.  
  Done at Frankfurt am Main, 7 December 2009. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET