Recommendation of the European Central Bank for a Council Regulation (EC) concerning the powers of the European Central Bank to impose sanctions
Date: 1998-07-07
Institutions: European Central Bank
Subjects: European Central Bank, administrative sanction, fine, infringement procedure (EU), supervisory power

6.8.98

EN

Official  Journal  of  the  European  Communities

C  246/9

Recommendation  of  the  European  Central  Bank  for  a  Council  Regulation  (EC)  concerning  the
powers  of  the  European  Central  Bank  to  impose  sanctions

(98/C  246/07)

(Submitted  by  the  European  Central  Bank  on  7  July  1998)

THE  COUNCIL  OF  THE  EUROPEAN  UNION,

(the  Treaty)  and 

Having  regard  to  the  Treaty  establishing  the  European
Community 
in  particular  Article
108a(3)  thereof  and  to  Article  34.3  of  the  Statute  of  the
European  System  of  Central  Banks  and  of  the  European
Central  Bank  (the  Statute),

Having  regard  to  the  recommendation  of  the  European
Central  Bank  (the  ECB),

Having 
Parliament,

regard 

to 

the  opinion  of 

the  European

Having  regard  to  the  opinion  of  the  Commission,

In  accordance  with  the  procedure  foreseen  in  Article
106(6)  of  the  Treaty  and  in  Article  42  of  the  Statute,

(1)(cid:217)Whereas  this  Regulation,  according  to  Article  34.3
of  the  Statute,  in  conjunction  with  Article  43.1  of  the
Statute,  paragraph  8  of  the  Protocol  (11)  on  certain
provisions  relating  to  the  United  Kingdom  of  Great
Britain  and  Northern  Ireland  and  paragraph  2  of  the
Protocol  (12)  on  certain  provisions  relating 
to
Denmark,  shall  not  confer  any  rights  or  impose  any
obligations  on  a  non(cid:220)participating  Member  State;

(2)(cid:217)Whereas  Article  34.3  of  the  Statute  requires  the
Council  to  specify  the  limits  and  conditions  under
which  the  ECB  shall  be  entitled  to  impose  fines  or
periodic  penalty  payments  on  undertakings 
for
failure  to  comply  with  obligations  under  its  regu(cid:220)
lations  and  decisions;

(3)(cid:217)Whereas 

infringements  of  the  obligations  arising
from  ECB  regulations  and  decisions  can  arise  in
various  fields  of  competence  of  the  ECB;

(4)(cid:217)Whereas 

is  appropriate, 

in  order  to  ensure  a
it 
uniform  approach 
imposition  of
towards 
sanctions  in  the  various  fields  of  competence  of  the
ECB,  that  all  general  and  procedural  provisions  for

the 

the  imposition  of  such  sanctions  are  contained  in  a
single  Council  regulation;  whereas  other  Council
regulations  provide  for  specific  sanctions  in  specific
fields  and  refer  to  the  present  Regulation  for  the
principles  and  procedures  relating  to  the  imposition
of  such  sanctions;

(5)(cid:217)Whereas,  in  order  to  provide  an  effective  regime  for
the  administration  of  sanctions,  this  Regulation  must
allow  the  ECB  a  certain  discretion,  both  in  relation
to  the  relevant  procedures  and  to  their  implemen(cid:220)
tation  within  the  limits  and  conditions  laid  down  in
this  Regulation;  whereas  the  provisions  of  this  Regu(cid:220)
lation  can  only  be  effectively  applied  if  participating
Member  States  have  adopted  the  necessary  measures
with  a  view  to  ensuring  that  their  authorities  have
the  powers  to  assist  and  collaborate  fully  with  the
infringement
implementation  of  the 
in  the 
ECB 
procedure  as 
in
conformity  with  Article  5  of  the  Treaty;

this  Regulation, 

required  by 

(6)(cid:217)Whereas  the  ECB  shall  have  recourse  to  the  national
central  banks  to  carry  out  the  tasks  of  the  European
System  of  Central  Banks  (the  ESCB)  to  the  extent
deemed  possible  and  appropriate;

(7)(cid:217)Whereas  decisions  under  this  Regulation  imposing
in

pecuniary  obligations 
accordance  with  Article  192  of  the  Treaty,

enforceable 

shall  be 

HAS  ADOPTED  THIS  REGULATION:

Article  1

Definitions

For  the  purposes  of  this  Regulation:

1. participating  Member  State:  shall  mean  a  Member
in

the  single  currency 

State  which  has  adopted 
accordance  with  the  Treaty;

C  246/10

EN

Official  Journal  of  the  European  Communities

6.8.98

2. national  central  bank:  shall  mean  the  central  bank  of  a

participating  Member  State;

2.(cid:218)(cid:217)In  determining  whether  to  impose  a  sanction  and  in
determining  the  appropriate  sanction,  the  ECB  shall  be
guided  by  the  principle  of  proportionality.

3. undertakings: 

shall  mean 

those  natural  or 

legal
persons,  private  or  public,  with  the  exception  of
public  persons  in  the  exercise  of  their  public  powers,
in  a  participating  Member  State,  which  are  the  subject
of  obligations  arising  from  ECB  regulations  and
decisions,  and 
include  branches  or  other
permanent  establishments  located  in  a  participating
Member  State,  the  head  office  or  registered  office  of
which  is  outside  a  participating  Member  State;

shall 

4. infringement:  shall  mean  any  failure  by  an  under(cid:220)
taking  to  fulfil  an  obligation  arising  from  ECB  regu(cid:220)
lations  or  decisions;

5. fine:  shall  mean  a  single  amount  of  money  which  an

undertaking  is  obliged  to  pay  as  a  sanction;

a 

in 

case  of 

6. periodic  penalty  payments:  shall  mean  amounts  of
money  which, 
continued
the 
infringement,  an  undertaking  is  obliged  to  pay  peri(cid:220)
odically  as  a  sanction,  which  shall  be  calculated  for
infringement  following  the
each  day  of  continued 
notification  of  the  undertaking  of  a  decision, 
in
accordance  with  Article  3(1),  second  paragraph,  of
this  Regulation,  requiring  the  termination  of  such  an
infringement;

7. sanctions: 
payments 
infringement.

shall  mean 
imposed 

fines  and  periodic  penalty
an
consequence  of 

a 

as 

Article  2

Sanctions

3.(cid:218)(cid:217)The  ECB  shall  take 
into  consideration,  where
relevant,  the  circumstances  of  the  specific  case,  such  as:

(a)(cid:217)on  the  one  hand,  the  good  faith  and  the  degree  of
openness  of  the  undertaking  in  the  interpretation  and
fulfilment  of  the  obligation  arising  from  an  ECB
regulation  or  decision  as  well  as  the  degree  of
diligence  and  cooperation  shown  by  the  undertaking
or,  on  the  other,  any  evidence  of  wilful  deceit  on  the
part  of  officials  of  the  undertaking;

(b) the  seriousness  of  the  effects  of  the  infringement;

(c) the 

repetition, 

frequency  or  duration  of 

the

infringement  by  that  undertaking;

(d) the  profits  obtained  by  the  undertaking  by  reason  of

the  infringement;

(e) the  economic  size  of  the  undertaking,  and

(f) prior  sanctions  imposed  by  other  authorities  on  the

same  undertaking  and  based  on  the  same  facts.

4.(cid:218)(cid:217)Whenever  the  infringement  consists  of  a  failure  to
perform  a  duty,  the  application  of  a  sanction  shall  not
exempt  the  undertaking  from  its  performance,  unless  the
decision  adopted  in  accordance  with  Article  3(4)  of  this
Regulation  explicity  states  the  contrary.

1.(cid:218)(cid:217)The  limits  within  which  the  ECB  may  impose  fines
and  periodic  penalty  payments  on  undertakings,  unless
otherwise  provided  for  in  specific  Council  regulations,
shall  be  the  following:

(a)(cid:217)fines:  the  upper  limit  shall  be  EUR  500(cid:216)000,  and

(b) periodic  penalty  payments:  the  upper  limit  shall  be
EUR  10(cid:216)000  per  day  of 
infringement.  Periodic
penalty  payments  may  be  imposed  in  respect  of  a
maximum  period  of  six  months  following  the  notifi(cid:220)
cation  of 
in
the  undertaking  of 
accordance  with  Article  3(1)  of  this  Regulation.

the  decision 

Article  3

Procedural  rules

1.(cid:218)(cid:217)The  decision  on  whether  or  not  to 
initiate  an
infringement  procedure  shall  be  taken  by  the  Executive
Board  of  the  ECB,  acting  on  its  own  initiative  or  on  the
basis  of  a  motion  to  that  effect  addressed  to  it  by  the
national  central  bank  of  the  Member  State  in  whose
jurisdiction  the  alleged  infringement  has  occurred.  The
same  decision  may  also  be  taken,  on  its  own  initiative  or
on  the  basis  of  a  motion  to  that  effect  addressed  to  it  by
the  ECB,  by  the  national  central  bank  of  the  Member
State  in  whose  jurisdiction  the  alleged  infringement  has
occurred.

6.8.98

EN

Official  Journal  of  the  European  Communities

C  246/11

to 

the  decision 

Written  notification  of 
initiate  an
infringement  procedure  shall  be  given  to  the  undertaking
concerned,  to  the  relevant  supervisory  authority  and  to
the  national  central  bank  of  the  Member  State  in  whose
jurisdiction  the  alleged  infringement  has  occured  or  to
the  ECB.  The  notification  shall  disclose  the  details  of  the
allegations  against  the  undertaking  and  the  evidence  on
which  such  allegations  are  founded.  Where  appropriate,
the  decision  shall  require  the  termination  of  the  alleged
infringement  and  shall  give  notice  to  the  undertaking
concerned 
that  periodic  penalty  payments  may  be
imposed.

2.(cid:218)(cid:217)The  decision  may  require  the  undertaking  to  submit
to  an 
the
infringement  procedure,  the  ECB  or  the  national  central
bank,  as  the  case  may  be,  shall  have  the  right  to:

infringement  procedure.  In  carrying  out 

(a)(cid:217)require  the  submission  of  documents;

(b) examine  the  books  and  records  of  the  undertaking;

(c) take  copies  or  extracts  from  such  books  and  records,

and

(d) obtain  written  or  oral  explanations.

When  an  undertaking  obstructs  the  conduct  of  the
infringement  procedure,  the  participating  Member  State
where  the  relevant  premises  are  located  shall  afford  the
necessary  assistance,  including  ensuring  access  by  the
ECB  or  the  national  central  bank  to  the  premises  of  the
undertaking,  so  that  the  aforementioned  rights  can  be
exercised.

3.(cid:218)(cid:217)The  undertaking  concerned  shall  have  the  right  to
be  heard  by  the  ECB  or  the  national  central  bank,  as  the
case  may  be.  The  undertaking  shall  be  given  no  fewer
tha  30  days  to  present  its  defence.

in  whose 

jurisdiction 

4.(cid:218)(cid:217)The  Executive  Board  of  the  ECB  shall,  as  soon  as
possible  after  receiving  a  submission  from  the  national
central  bank  which  initiates  the  infringement  procedure
or  after  having  consulted  the  national  central  bank  of  the
Member  State 
the  alleged
infringement  has  occured,  adopt  a  reasoned  decision  as
an
an  undertaking  has 
to  whether 
infringement  together  with  the  sanction,  if  any,  to  be
imposed.  The  undertaking  concerned  shall  be  notified  in
writing  of  the  decision  and  shall  be  informed  of  its  right
of  review,  to  which  the  following  paragraph  refers.
Notification  of  the  decision  shall  also  be  given  to  the
relevant  supervisory  authorities  and 
the  national
central  bank  of  the  Member  State  in  whose  jurisdiction
the  infringement  has  occurred.

committed 

to 

5.(cid:218)(cid:217)The  undertaking  concerned  shall  have  the  right  to
request  a  review  of  the  decision  of  the  Executive  Board
by  the  Governing  Council  of  the  ECB.  Such  a  request
shall  be  made  within  30  days  of  the  receipt  of  the  notifi(cid:220)
cation  of  the  decision  and  shall  include  all  supporting
information  and  allegations.  Such  a  request  shall  be
addressed  in  writing  to  the  Governing  Council  of  the
ECB.

to 

thereof 

shall  be  given 

6.(cid:218)(cid:217)A  decision  by  the  Governing  Council  of  the  ECB  in
response  to  a  request  submitted  under  paragraph  5  shall
include  the  reasons  for  the  decision  and  written  notifi(cid:220)
the  undertaking
cation 
concerned,  to  the  relevant  supervisory  authority  of  that
undertaking  and  to  the  national  central  bank  of  the
Member  State 
infringement
occurred.  The  notification  shall  inform  the  undertaking
of  its  right  to  judicial  review.  If  no  decision  has  been
taken  by  the  Governing  Council  of  the  ECB  within  two
months  of  the  request,  the  undertaking  concerned  may
request  a  judicial  review  of  the  decision  of  the  Executive
Board  in  accordance  with  the  Treaty.

in  whose  jurisdiction  the 

7.(cid:218)(cid:217)No  sanction  shall  be  enforced  against  the  under(cid:220)
taking  until  the  decision  has  become  final  through  either:

(a)(cid:217)the  period  of  30  days  referred  to  in  paragraph  5
having  elapsed  without  the  undertaking  making  a
request  for  review  to  the  Governing  Council  of  the
ECB;  or

(b) the  Governing  Council  notifying  the  undertaking  of
its  decision,  or  the  period  referred  to  in  paragraph  6
the  Governing  Council
having  elapsed  without 
having  taken  a  decision.

8.(cid:218)(cid:217)The  proceeds  from  sanctions  imposed  by  the  ECB
shall  belong  to  the  ECB.

9.(cid:218)(cid:217)If  an 
infringement  relates  exclusively  to  a  task
entrusted  to  the  ESCB  under  the  Treaty  and  the  Statute,
an  infringement  procedure  may  only  be  initiated  on  the
basis  of  this  Regulation,  irrespective  of  the  existence  of
any  national  law  or  regulation  which  may  provide  for  a
separate  procedure.  If  an  infringement  also  relates  to  one
or  more  areas  outside  the  competence  of  the  ESCB,  the
right  to  initiate  an  infringement  procedure  on  the  basis
of  this  Regulation  shall  be  independent  of  any  right  of  a
separate
authority 
competent  national 
procedures 
the
to 
competence  of  the  ESCB.  This  provision  shall  be  without
law  and  to
prejudice  to  the  application  of  criminal 
prudential 
in  participating
Member  States.

supervisory  competencies 

such  areas  outside 

relation 

initiate 

to 

in 

10.(cid:218)(cid:217)An  undertaking  shall  bear 
the
infringement  procedure  if  it  has  been  decided  that  it  has
committed  an  infringement.

the  costs  of 

C  246/12

EN

Official  Journal  of  the  European  Communities

6.8.98

Article  4

Time  limits

172  of  the  Treaty  over  the  review  of  final  decisions
whereby  a  sanction  is  imposed.

1.(cid:218)(cid:217)The  right  to  take  the  decision  to 
initiate  an
infringement  procedure,  as  provided  for  in  this  Regu(cid:220)
lation,  shall  expire  one  year  after  the  existence  of  the
alleged  infringement  first  became  known  either  to  the
ECB  or  to  the  national  central  bank  of  the  Member  State
in  whose  jurisdiction  the  alleged  infringement  occured
and, 
infringement
occurred  or,  in  the  case  of  a  continued  infringement,  five
years  after  the  infringement  was  terminated.

in  any  case,  five  years  after  the 

2.(cid:218)(cid:217)The  right  to  take  the  decision  to  impose  a  sanction
in  respect  of  an  infringement,  as  provided  for  in  this
Regulation,  shall  expire  one  year  after  the  decision  to
initiate  the  procedure  as  described  in  Article  3(1)  was
taken.

3.(cid:218)(cid:217)The  right  to  start  an  enforcement  procedure  shall
expire 
the  decision  has  become
six  months  after 
enforceable  pursuant  to  Article  3(7).

Article  6

General  provisions

1.(cid:218)(cid:217)In  the  event  of  a  conflict  between  the  provisions  of
this  Regulation  and  the  provisions  of  other  Council
regulations  enabling  the  ECB  to  impose  sanctions,  the
provisions  of  the  latter  shall  prevail.

2.(cid:218)(cid:217)Subject  to  the  limits  and  conditions  laid  down  in
this  Regulation,  the  ECB  may  adopt  regulations  to
specify  further  the  arrangements  whereby  sanctions  may
be  imposed  in  accordance  herewith  as  well  as  guidelines
to  coordinate  and  harmonise  the  procedures  in  relation
to  the  conduct  of  the  infringement  procedure.

Article  7

Final  provisions

Article  5

Judicial  review

This  Regulation  shall  enter  into  force  on  1  January  1999.

The  Court  of  Justice  of  the  European  Communities  shall
have  unlimited  jurisdiction  within  the  meaning  of  Article

This  Regulation  shall  be  binding  in  its  entirety  and  shall
be  directly  applicable  in  all  Member  States.

Recommendation  of  the  European  Central  Bank  for  a  Council  Regulation  (EC)  concerning  the
collection  of  statistical  information  by  the  European  Central  Bank

(98/C  246/08)

(Submitted  by  the  European  Central  Bank  on  7  July  1998)

THE  COUNCIL  OF  THE  EUROPEAN  UNION,

Having  regard  to  the  Statute  of  the  European  System  of
Central  Banks  and  of  the  European  Central  Bank  (the
Statute)  and  in  particular  Article  5.4  thereof,

Having  regard  to  the  recommendation  of  the  European
Central  Bank  (the  ECB),

Having 
Parliament,

regard 

to 

the  opinion  of 

the  European

Having  regard  to  the  opinion  of  the  Commission,

In  accordance  with  the  procedure  foreseen  in  Article
106(6)  of 
the  European
Community  (the  Treaty)  and  in  Article  42  of  the  Statute,

the  Treaty 

establishing 

(1)(cid:217)Whereas  Article  5.1  of  the  Statute  requires  the
ECB,  assisted  by  the  national  central  banks,  to
collect  either  from  the  competent  national  auth(cid:220)
orities  or  directly  from  economic  agents  the  stat(cid:220)
istical  information  which  is  necessary  for  the  tasks
of  the  European  System  of  Central  Banks  (the
ESCB)  to  be  performed;  whereas  to  facilitate  the
execution  of  these  tasks,  set  out  in  Article  105  of
the  conduct  of
in  particular 
the  Treaty,  and 
is
information 
this 
monetary  policy, 
primarily  used  for  the  production  of  aggregated
statistical  information,  for  which  the  identity  of
individual  economic  agents  is  irrelevant,  but  may
also  be  used  at  the  level  of  individual  economic
agents;  whereas  Article  5.2  of  the  Statute  requires
the  national  central  banks  to  carry  out,  to  the
extent  possible,  the  tasks  described  in  Article  5.1  of
the  Statute;  whereas  Article  5.4  of  the  Statute

statistical