European Central Bank Regulation (EC) No 2157/1999 of 23 September 1999 on the powers of the European Central Bank to impose sanctions (ECB/1999/4)
Date: 1999-09-23
Institutions: European Central Bank
Subjects: European Central Bank, administrative sanction, fine, infringement procedure (EU), statutory power, type of business

12. 10. 1999

EN

Official Journal of the European Communities

L 264/21

EUROPEAN CENTRAL BANK REGULATION (EC) No 2157/1999

of 23 September 1999

on the powers of the European Central Bank to impose sanctions

(ECB/1999/4)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL
BANK,

Having regard to the Treaty establishing the European
Community (hereinafter referred to as the Treaty) and in par-
ticular to Article 110(3) thereof, to the Statute of the European
System of Central Banks and of the European Central Bank
(hereinafter referred to as the Statute) and in particular to
Articles 34.3 and 19.1 thereof, and to Council Regulation (EC)
No 2532/98 of 23 November 1998 concerning the powers of
the European Central Bank to impose sanctions (1) (hereinafter
referred to as the Council Regulation) and in particular to
Article 6(2) thereof;

Whereas:

(1)

(2)

(3)

(4)

(5)

according to Article 34.3 of the Statute, in conjunction
with Article 43.1 of the Statute, paragraph 8 of Protocol
No 25 on certain provisions relating to the United
Kingdom of Great Britain and Northern Ireland and
paragraph 2 of Protocol No 26 on certain provisions
relating to Denmark, this Regulation shall not confer
any rights or impose any obligations on a non-particip-
ating Member State;

the Council Regulation has established the limits and
conditions under which the European Central Bank
(ECB)
is entitled to impose fines or periodic penalty
payments on undertakings for failure to comply with
obligations under its regulations and decisions;

Article 6(2) of the Council Regulation provides the ECB
with the regulatory power to specify the arrangements
whereby sanctions may be imposed in accordance with
the Council Regulation;

other Council or ECB Regulations may provide for
specific sanctions in specific fields and may refer to this
Regulation for the principles and procedures relating to
the imposition of such sanctions;

when carrying out
the procedure to determine the
applicable sanction, the ECB must ensure the widest
possible respect of the rights of defence of third parties,
in accordance with the general principles of law and the
the European
case law of
Communities on the matter, in particular existing case
law concerning the inquiry powers of
the European
Commission in the field of competition;

the Court of

Justice of

(1) OJ L 318, 27.11.1998, p. 4.

(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

there are no legal obstacles to the exchange of informa-
tion within the European System of Central Banks
(ESCB) relating to the detection of an infringement of
ECB Regulations or Decisions;

the principle of ne bis in idem must be respected as
regards the initiation of infringement procedures;

the rules governing the powers of the ECB and the
competent national central bank in the framework of
the infringement procedure must ensure the effective
conduct of a thorough investigation of an alleged
infringement, while at the same time providing for a
high level of protection of the rights of defence of the
undertaking concerned and the confidentiality of the
infringement procedure;

assistance by the authorities of the Member States may
be required to ensure the effective exercise of the powers
of the ECB and of the competent national central bank
to carry out the infringement procedure;

the undertaking concerned shall have the right to be
heard once the inquiry stage, if any, of the infringement
procedure has been completed and once it has received
the factual results of the inquiry and the notice of objec-
tions;

an infringement procedure shall be carried out subject to
the principles of confidentiality and of professional
secrecy; confidentiality or professional secrecy shall not
affect
the undertaking
the
concerned;

rights of defence of

a decision on an infringement may be subject to further
review by the Governing Council of the ECB; the pro-
cedural conditions under which such further review shall
take place must be established;

for the purposes of enhancing the transparency and the
effectiveness of its powers to impose sanctions, the ECB
may decide to publish its final decisions regarding sanc-
tions or any information relating thereto; in view of the
specific features of financial markets, publication of a
decision to impose a sanction shall be an exceptional
measure which shall only be taken by the ECB after due
consideration of the circumstances of the specific case,
the likely effects of such a decision on the reputation of
the undertaking concerned and the legitimate business
interests of the latter; such a decision to publish must

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Official Journal of the European Communities

12. 10. 1999

(14)

(15)

(16)

respect the principle of non-discrimination and guar-
antee a level playing-field; in this context, consultation
with the relevant supervisory authorities prior to taking
a decision to publish is desirable; the publication of a
decision to impose a sanction shall
in any event not
disclose any information of a confidential nature;

a decision to impose a pecuniary obligation is to be
enforced in accordance with Article 256 of the Treaty;
whereas national central banks may be delegated to
adopt all measures which are necessary to that end;

for the sake of sound and efficient administration,
it
appears appropriate to provide for a simplified infringe-
ment procedure for the penalisation of minor infringe-
ments;

this Regulation shall apply to cases of non-compliance
foreseen in Article 7(1) of Council Regulation (EC) No
2531/98 of 23 November 1998 concerning the applica-
tion of minimum reserves by the European Central
Bank (1) (hereinafter referred to as the Council Regula-
tion on minimum reserves) within the limits and condi-
tions set out by the same Article 7(2); the particular
features of cases of non-compliance with minimum
reserve requirements as laid down in Article 7(1) of the
Council Regulation on minimum reserves warrant the
adoption of a specific legal regime which provides for an
expeditious procedure for the imposition of sanctions
while, at the same time, not violating the rights of
defence of the undertaking concerned;

infringement procedure shall be taken by the Executive Board
of the ECB or by the competent national central bank until
they have informed and consulted with one another.

Prior to a decision to initiate an infringement procedure,
2.
the ECB and/or the competent national central bank may
request
from the undertaking concerned any information
relating to the alleged infringement.

3.
Either the Executive Board of the ECB or the competent
national central bank, as the case may be, shall, upon request,
be entitled to assist and cooperate with the other in carrying
out the infringement procedure, in particular by transmitting
any information that may be deemed relevant.

Unless otherwise agreed between the parties concerned,
4.
any communication between the ECB or
the competent
national central bank, as the case may be, and the undertaking
concerned shall be conducted in the official Community
language (or in one of the official Community languages) of the
Member State in whose jurisdiction the alleged infringement
has occurred.

Article 3

Powers of the ECB and the competent national central
bank

(17)

the ECB shall act in accordance with the Council Regula-
tion and this Regulation in exercising the powers laid
down in Article 7 of Council Regulation (EC) No 2533/
98 of 23 November 1998 concerning the collection of
statistical information by the European Central Bank (2),

The powers conferred by the Council Regulation upon
1.
the ECB and the competent national central bank in carrying
out the inquiry shall include, for the purpose of obtaining any
information relating to the alleged infringement, the right to
search for any items of information and the right to conduct a
search without prior notification of the undertaking concerned.

HAS ADOPTED THIS REGULATION:

Article 1

Definitions

For the purposes of
the term ‘competent
this Regulation,
national central bank’ shall mean the national central bank of
the Member State in whose jurisdiction the alleged infringe-
ment has occurred. Other terms used shall have the same
meaning as defined in Article 1 of the Council Regulation.

2.
The staff of the ECB or of the competent national central
bank, as the case may be, who are authorised, in accordance
with their respective internal rules, to search for information
on the premises of the undertaking concerned, shall exercise
their powers upon the production of formal authorisation in
writing issued in accordance with their respective internal rules.

3.
Any request made to the undertaking concerned on the
basis of the powers conferred upon the ECB or the competent
national central bank, as the case may be, shall specify the
subject matter and purpose of the investigation.

Article 4

Article 2

Assistance by the authorities of the Member States

Initiation of an infringement procedure

No more than one infringement procedure shall be
1.
initiated against the same undertaking based on the same facts.
For this purpose, no decision on whether or not to initiate an

(1) OJ L 318, 27.11.1998, p. 1.
(2) OJ L 318, 27.11.1998, p. 8.

1.
The assistance of the authorities of the Member States
may be requested by the ECB or the competent national central
bank, as the case may be, as a precautionary measure.

2.
No authority of a Member State can act as a substitute for
the ECB or the competent national central bank, as the case
may be, in the assessment of the need for the investigations.

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Official Journal of the European Communities

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Article 5

Notice of objections

1.
The ECB or the competent national central bank, as the
case may be, shall notify the undertaking concerned in writing
of the factual results of any inquiry carried out and of the
objections raised against the undertaking concerned before any
decision is taken on the imposition of a sanction.

2.
The ECB or the competent national central bank, as the
case may be, shall, when giving notice of objections, fix a time
limit within which the undertaking concerned may inform in
writing the ECB or the competent national central bank, as the
case may be, of its views on the objections raised, without
prejudice to the possibility to develop these views at an oral
hearing, if so requested in its written comments. This time limit
shall be no less than 30 working days and shall start to run
from receipt of the notification referred to in paragraph 1.

3.
Further to the response received from the undertaking
concerned, the ECB or the competent national central bank, as
the case may be, shall decide whether to carry out further
inquiries in order to resolve any outstanding issues. An addi-
tional notice of objections pursuant to paragraph 1 shall be
sent to the undertaking concerned only if the result of the
further inquiries conducted by the ECB or the competent
national central bank, as the case may be, is to take new facts
into account against the undertaking concerned or to alter the
evidence for the contested infringements.

4.
The ECB shall, in its decision to impose a sanction, deal
only with those objections which have been notified in the
manner outlined in paragraph 1 and in respect of which the
undertaking concerned has been afforded the opportunity to
make its views known.

Article 6

Rights and obligations of the undertaking concerned

1.
The undertaking concerned shall cooperate with the ECB
or the competent national central bank, as the case may be, in
the inquiry stage of an infringement procedure. The under-
taking concerned shall namely have the right to submit any
documents, books or records, or copies or extracts thereof, and
to provide any written or oral explanations.

The obstruction, non-compliance or non-performance by
2.
the undertaking concerned of duties imposed by the ECB or by
the competent national central bank, as the case may be, in the
exercise of its powers under the infringement procedure may
provide sufficient grounds to initiate an infringement proce-
dure under the terms of this Regulation and give rise to the
imposition of periodic penalty payments.

The undertaking concerned shall have the right to legal

3.
representation during the infringement procedure.

Once it has been notified in accordance with Article 5(1),
4.
the undertaking concerned shall have the right to access the
documents and other materials compiled by the ECB or by the
competent national central bank, as the case may be, which
serve as the basis for the evidence of an alleged infringement.

5.
Should the undertaking concerned request in its written
comments also to be heard at an oral hearing, this shall be
conducted, on the date set, by the persons appointed for that
purpose by the ECB or the competent national central bank, as
the case may be. Oral hearings will take place on the premises
of the ECB or the competent national central bank. Oral hear-
ings shall not be public. Persons shall be heard separately or in
the presence of other persons called upon to attend. The
undertaking concerned may propose, within reasonable limits,
that the ECB or the competent national central bank, as the
case may be, should hear persons who may corroborate any
aspect of its written comments.

6.
The essential content of the statements made by each
person heard shall be recorded in minutes which shall be read
and approved by such person only in relation to his or her
own statements.

7.
Information and requests to attend oral hearings from the
ECB or the competent national central bank, as the case may
be, shall be sent to the addressees by registered post with
acknowledgement of receipt, or shall be delivered by hand
against receipt.

Article 7

Confidentiality of the infringement procedure

1.
An infringement procedure shall be carried out subject to
the principles of confidentiality and of professional secrecy.

the undertaking
2. Without prejudice to Article 6(4),
concerned shall not have access to documents or other mater-
ials in the possession of the ECB or the competent national
central bank that are deemed to be confidential in relation to
third parties or to the ECB or the competent national central
include, in particular, documents or other
bank. These shall
materials containing information relating to the business inter-
ests of other undertakings, or internal documents of the ECB,
the competent national central bank, other Community institu-
tions or bodies, or other national central banks, such as notes,
drafts and other working papers.

Article 8

Review of the decision by the Governing Council of the
ECB

The Governing Council of

1.
the
undertaking concerned, the Executive Board of the ECB and/or
the competent national central bank to provide additional
information in order to review the decision of the Executive
Board of the ECB.

the ECB may request

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Official Journal of the European Communities

12. 10. 1999

The Governing Council of the ECB shall fix a time-limit
2.
by which the information shall be provided, but this shall be
no fewer than 10 working days.

above, the decision of the Executive Board of the ECB on
the imposition of a sanction becomes final.

Article 9

Enforcement of the decision

Once the decision on the imposition of a sanction has
1.
become final,
the ECB, after
the Governing Council of
consulting the relevant national supervisory authorities, may
decide to publish the decision or information relating thereto
in the Official Journal of the European Communities. Such decision
to publish shall have regard to the legitimate interest of the
undertaking concerned to protect its business interests, and
also to any other individual

interest.

The decision of the ECB shall establish the manner in

2.
which payment of the sanction is to be made.

3.
The ECB may request the national central bank of the
Member State in whose jurisdiction the sanction is to be
enforced to adopt all measures necessary to that end.

The national central banks shall report to the ECB on the

4.
enforcement of the sanction.

The ECB shall store all the information relevant to the
5.
determination and enforcement of the sanction in a file that
shall be kept for at least five years from the date on which the
decision on the imposition of the sanction becomes final. In
order for the ECB to fulfil this duty, the competent national
central bank shall forward to the ECB all original documenta-
tion and materials in its possession relating to the infringement
procedure.

Article 10

Simplified procedure for minor infringements

1.
In the event of a minor infringement the Executive Board
of the ECB may decide to apply a simplified infringement
procedure. The sanction to be imposed under this procedure
shall not exceed EUR 25 000.

2.

The simplified procedure shall entail the following steps:

(a) the Executive Board of the ECB shall notify the undertaking

concerned of the alleged infringement;

(b) the notification shall contain all the facts which constitute
the alleged infringement and the cor-

the evidence of
responding sanction;

(c) the notification shall inform the undertaking concerned of
the fact that the simplified procedure is being applied and
of its right to object to this procedure within 10 working
days of receipt of the notification; and

(d) if an objection is raised before the deadline laid down in (c)
above, the infringement procedure shall be deemed to be
initiated and the time limit of 30 working days within
which it is possible to exercise the right to be heard shall
start as from expiry of the deadline laid down in (c) above.
If no objection is raised before the deadline laid down in (c)

3.
This Article shall be without prejudice to the procedure
applicable in the event of non-compliance with minimum
reserve requirements as laid down in Article 11 of this Regula-
tion.

Article 11

Procedure in the event of non-compliance with minimum
reserve requirements

1.
In the event of non-compliance as foreseen in Article 7(1)
of the Council Regulation on minimum reserves, Article 2(1)
and (3), Articles 3, 4 and 5 and Article 6, with the exception of
paragraph 3, of this Regulation shall not be applicable. The
time limit foreseen in Article 8(2), shall be reduced to five
working days.

The Executive Board of the ECB may specify and publicise
2.
the criteria according to which it will apply the sanctions
provided for in Article 7(1) of the Council Regulation on
minimum reserves. Such criteria may be published through a
notice in the Official Journal of the European Communities.

3.
Before any sanction is imposed in accordance with
Article 7(1) of the Council Regulation on minimum reserves,
the Executive Board of the ECB or, on its behalf, the competent
national central bank shall notify the undertaking concerned of
the alleged non-compliance and of the corresponding sanction.
The notification shall contain all relevant facts of the alleged
non-compliance
also inform the undertaking
concerned that, unless it submits any objections, the sanction
shall be deemed to be imposed by decision of the Executive
Board of the ECB.

and shall

Upon receipt of

4.
concerned shall be given five working days either:

the notification,

the undertaking

— to acknowledge the alleged non-compliance and agree to
the payment of the specified sanction, in which case the
infringement procedure shall be deemed to have come to
an end,

or

— to present any written information, explanations or objec-
tions which may be deemed relevant to a decision on
whether or not to impose the sanction. The undertaking
concerned may also attach any relevant documents as proof
of the content of its reply. The competent national central
bank shall without undue delay forward the file to the
then decide
Executive Board of
whether or not to impose a sanction.

the ECB, which shall

5.
If no written objections are raised by the undertaking
concerned within the established time limit, the sanction shall
be deemed to be imposed by decision of the Executive Board of
the ECB. After the decision has become final
in accordance
with the provisions of the Council Regulation, the undertaking
concerned shall be charged the amount of the sanction speci-
fied in the notification.

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In the situations foreseen in paragraph 4, first indent, and
6.
in paragraph 5, the ECB or the competent national central
bank, on behalf of the ECB, as the case may be, shall give
notification in writing to the relevant supervisory authorities.

Article 12

Time limits

1. Without prejudice to Article 4 of the Council Regulation,
the time limits foreseen in this Regulation shall run from the
day following receipt of a communication or delivery thereof
by hand. Any communication from the undertaking concerned
must be received by the addressee or be dispatched by regis-
tered post before the relevant time limit has expired.

2. Where the time limit would expire on a Saturday, Sunday
or public holiday, it shall be extended up to the end of the
following working day.

For the purposes of this Regulation, relevant public holi-
3.
days for the ECB shall be those set out in the Annex to this
Regulation, whereas public holidays relevant to national central
banks shall be those established by law in the respective area of
the Member State in which the undertaking concerned is
located. The term ‘working day’ shall be construed accordingly.
The ECB shall update the Annex of this Regulation whenever
necessary.

Done at Frankfurt am Main, 23 September 1999.

On behalf of the Governing Council of the
ECB

The President

Willem F. DUISENBERG

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ANNEX (Indicative)

List of public holidays (as referred to in paragraph 3 of Article 12)

The following public holidays will be observed by the ECB:

New Year's Day

Carnival Tuesday (half day)

Good Friday

Easter Monday

Labour Day

Anniversary of the Declaration of Robert Schuman

Ascension Day

Whit Monday

Corpus Christi

Day of German Unity

All Saints' Day

Christmas Eve

Christmas Day

26 December

New Year's Eve

1 January

date varies

date varies

date varies

1 May

9 May

date varies

date varies

date varies

3 October

1 November

24 December

25 December

26 December

31 December