EN ECB -PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 5 December  2013  
on means of payment and payment systems  
(CON/20 13/84) 
 
Introduction and legal basis  
On 24 October 2013, the European Central Bank (ECB) received a request from the French Minist ry of 
Economic Affair s and Finance for an opinion on draft amendments to the Monetary and Financial Code 
(COMOFI) regarding means of payment and payment systems (hereinafter the ‘draft provisions ’). 
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 and the second, third and fifth indents 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 regardi ng draft legisl ative provisions1, as the draft law relates to means of payment, the 
Banque de France and payment systems. 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 provisions   
1.1 The main purpose of the draft provisions  is to make it possib le for the Banque de France to use  
third p arties , e.g. auditing bodies, external auditors, experts registered on a list of judicial experts, 
or competent persons or authorities, to carry out the checks necessary for the performance of some  
of the Banque de France’s tasks , in accordance with the conditions laid down by a decree of the 
Conseil d’État . Such third parties may receive remuneration from  the Banque de France.  
1.2 First, one provision will be inserted in Article L.141 -4 of COMOFI relating to the Banque de 
France’s task pertaining to the oversight of payment systems, and its task of maintaining the 
security of clearing houses, the means of payment  and the systems used to clear, settle and deliver 
financial instruments.  These tasks are referred to in COMOFI as tasks related to the European 
System of Central Banks (ESCB).  
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
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2 1.3 Second, another similar  provision will be inserted in Article L.525 -4 of COMOFI , which relates to 
special electronic payment vouchers that are only to be used for purchasing a limited and defined 
number of categories of goods or services or to be used within a limited network  of providers , and 
that are not considered elect ronic money. The Banque de France ensures the security of such 
special electronic payment vouchers.  
 
2. General observations  
2.1 Legal basis for the Eurosystem’s oversight function concerning clearing and payment systems  
2.1.1  Under the fourth in dent of Article 127(2) of the Treaty and the fourth indent of Article 3.1  and 
Article 22 of the Statute of the European System of Central Banks  and of the European Central 
Bank  (hereinafter the ‘Statute of the ESCB’) , the Eurosystem  has the task of promot ing the smo oth 
operation of payment system s and is responsible for the oversight of clearing  and payment systems . 
The aims of such oversight are to maint ain systemic stability, promot e efficiency and safeguard the 
transmission channel for monetary policy.   
2.1.2  In general , within  the Eurosystem , oversight activities are performed by the national central banks 
(NCBs ), in line with the Governing Council’s common oversight  policy. Th is prohibits  interference  
with the Eurosystem’s oversight role by any Union  or national body other  than central bank s acting 
within the framework of the Eurosystem . 
2.2 Limits on and conditions for entrusting  certain  activities related to Eurosystem tasks  to third  
parties  
2.2.1 As noted in previous ECB opinions2, the ECB emphasises the genera l principle that the tasks 
assigned to the Eurosystem by the Treaty and the Statute  of the ESCB  have to be fulfilled 
exclusively by the ECB and the NCBs . It is the NCBs  that are responsible for fulfilling the  
obligations arising from the Treaty and the Sta tute of the ESCB  or from guidelines and instructions 
issued by  the ECB.  Member States cannot, therefore, entitle their NCBs  to delegate competencies 
in Eurosystem -related tasks to third  parties . An entity other than an NCB, even if entirely 
controlled by i t, could only be entrusted with the performance of ancillary and preparatory 
activities  related to Eurosystem tasks of the NCBs , whilst the legal responsibilit y for the 
implementation of ECB legal instruments should be  retained at the NCB3. 
2.2.2 The tasks  that have been assigned by the Treaty  and the Statute  of the ESCB  to the Eurosystem 
central banks and require the exercise of discretionary power s, including taking Eurosystem policy 
decisions, and the exercise of public authority , canno t be delegated . Furthermore, activities that are 
directly related to the execution of core tasks , as well as any critical functions related to 
Eurosystem tasks , must not be delegated . 
                                                 
2  See Opinions CON/98/12, CON/98/35 and CON/99/20. All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu . 
3  See footnote 1.  
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3 2.2.3  Third parties could be  entrusted by an NCB with the conduct of  activities that offer  limited room 
for discretion , provided that the activities are of an ancillary and preparatory nature , the assessment 
of any discretionary elements remain s with the commissioning NCB , and certain additional 
conditions are fulfil led. 
2.2.4 The key criteria developed from the principles of Union law, the case -law of the European courts 
and previous ECB opinions in  assess ing whether activities of a ancillary and preparatory  nature  can 
be entrusted by an NCB to third parties are  the following : (a) the activitie s entrusted to third parties 
must relate to the pure implementation of public tasks, in such a way that they are ancillary or 
preparatory in nature, and must not confer any decision -making power (discretion) to the third 
party /external  service provider; (b) legal responsibility for the public task must remain with the 
NCB; (c) the entrusting of activities to third parties by the NCB must not jeopardise the application 
of any relevant ECB legal instrument s or policies and the third party /external service pro vider must 
implement equivalent legal instruments and policies to those the NCB must fulfil;  (d) the 
possibility of entrusting such activities to third parties must be provided for in  law, or at least not 
specifica lly prohibited by the law; (e ) the entrust ing of activities to third parties must not prevent 
the exercise  of supervisory and oversight functions by the NCB  over those activities and must not 
result in depriving the NCB o f the necessary systems and controls to manage the risks it faces; 
(f) the NC B must have direct access to the relevant information of those activities; ( g) the NCB 
must evaluate the quality of the services provided and retain the necessary expertise and resources 
to do so ; (h) appropriate measures for the management and avoidance o f conflicts of interest 
pertaining to the NCB and the third  party to which the activity was entrusted must be  put in place 
by the NCB; (i) the NCB must take appropriate measures to ensure that the third party /external 
service provider complies with the app licable confidentiality regime, including any ESCB 
confidentiality rules and minimum standards , and the service provider  must protect any 
confidential information relating to the NCB.  
 
3. Specific observations  
3.1 The draft provisions refer  to a decree of the Conseil d’État intended to lay down the conditions for  
recourse  to third parties by the Banque de France.  In this respect, the provision to be introduced in 
Article L.141 -4 of COMOFI  should be distinguished from the one to be inserted in Article L.525 -4 
of COMOFI . 
3.2 As regards t he provision to be introduced in Article L.141 -4 of COMOFI , it is not clear what kind s 
of activities the Banque de France may entrust to third parties  and whether the Banque de France 
remains responsible for the task  in questio n. Since the tasks conferred upon the Banque de France 
in Article L.141 -4 of COMOFI are Eurosystem tasks, if the Banque de France uses third parties  in 
relation to them , this should only take place in relation to activities of an ancillary and preparatory 
nature that meet all of the conditions laid down above .  
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4 3.3 Special electronic payment vouchers, which the Banque de France oversees pursuant to  Article 
L.525 -4 of COMOFI, are not considered to be part of the Eurosystem ’s tasks.  Therefore , the 
entrusting to third par ties of activities related to s pecial electronic payment vouchers is subject to 
the conditions stipulated under  French law.  
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main,  5 December 2013 . 
 
[signed]  
 
The President of the ECB  
Mario DRAGHI