Opinion of the European Central Bank of 11 April 2001 at the request of the French Ministry of Economy, Finance and Industry on a draft article of a legal act in the field of payment systems (CON/2001/2)
Date: 2001-04-11
Institutions: European Central Bank
Subjects: Eurosystem, France, central bank, disclosure of information, financial supervision, financial technology, money, payment system

EN

OPINION OF THE EUROPEAN CENTRAL BANK

of 11 April 2001

at the request of the French Ministry of Economy, Finance and Industry on a draft article of a

legal act in the field of payment systems

(CON/2001/2)

1. 

On  22  March  2001,  the  European  Central  Bank  (ECB)  received  a  request  from  the  French

Ministry  of  Economy,  Finance  and  Industry  for  an  opinion  on  a  draft  amendment  to  Article

L. 141-4  of  the  French  Monetary  and  Financial  Code  in  the  field  of  payment  systems

(hereinafter referred to as the ‘draft amendment’).

2. 

The  ECB’s  competence  to  deliver  an  opinion  is  based  on  Article 105(4)  of  the  Treaty

establishing the European Community (hereinafter referred to as the ‘Treaty’), Article 3.1 of the

Protocol on the Statute of the European System of Central Banks and of the European Central

Bank, and Article 2 of Council Decision 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  amendment  contains  provisions  concerning  a  national  central  bank,  in  addition  to  rules

applicable to the smooth operation of payment systems in so far as it is intended to increase the

capacity of the Banque de France to ensure such smooth operation. In accordance with the first

sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, this opinion

has been adopted by the Governing Council of the ECB.

3. 

The draft amendment is based on Article 105(2) of the Treaty and draws from the ECB’s policy

statement of June 2000 relating to the ‘Role of the Eurosystem in the field of payment systems

oversight’.  The  draft  amendment  extends  the  competence  of  the  Banque  de  France  to  the

security of the payment instruments themselves. According to the draft amendment, where the

Banque de France considers that a payment instrument does not provide for sufficient security,

it  may  recommend  that  its  issuer  adopt  the  corrective  measures  necessary  to  remedy  that

1 OJ L 189, 3.7.1998, pp. 42-43.

                                                          
situation. If these recommendations are not implemented, the Banque de France may decide to

issue a negative opinion and to publish it. In order to carry out these tasks, the Banque de France

shall carry out expert work and obtain relevant information.

4. 

The ECB welcomes the introduction of the draft amendment. Indeed, safeguarding the security

of  payment  instruments  used  by  the  public  is  one  of  the  main  objectives  of  the  Eurosystem

within its oversight competence. The security of payment instruments is of high importance for

the Eurosystem in order to maintain the confidence of users of payment systems.

5. 

The  ECB  notes  that,  pursuant  to  the  first  indent  of  the  draft  amendment,  the  provision

introduced  by  the  draft  amendment  applies  to  the  payment  instruments  ‘defined  by

Article L. 311-3  of  the  Monetary  and  Financial  Code  with  the  exception  of  fiduciary  money’.

Article L. 311-3 of the Monetary and Financial Code is drafted broadly to cover all instruments

which allow any person to transfer funds whatever the support or technical means used. Besides,

the  ECB  understands  that  in  France,  making  available  to  the  customer  or  administrating

payment  instruments,  including  e-money  instruments,  is,  according  to  Article  L.  311-1  of  the

Monetary and Financial Code, a banking operation and that, consequently, all e-money products

are covered by the draft amendment. However, it should be noted that the note presenting the

draft amendment, which was attached to the request from the Ministry of Economy, Finance and

Industry, states that the draft amendment empowers the Banque de France to ensure the security

of  scriptural  payment  instruments  (‘moyens  de  paiements  scripturaux’).  For  the  sake  of

completeness, the ECB would appreciate a clarification that the draft amendment covers also all

e-money products where the payment instrument is not necessarily linked to the credit or debit

of a bank account. 

6. 

The  last  indent  of  the  draft  amendment  provides  that  ‘In  order  to  carry  out  these  tasks,  the

Banque de France shall carry  out  expert  work  and obtain any  relevant  information’. The  note

presenting  the  draft  amendment  is  more  explicit  than  the  draft  amendment  as  far  as  the

communication  of  information  is  concerned.  It  specifies  that  the  Banque  de  France  is

empowered ‘to obtain from the issuers or from any party having an interest in the circulation of

the  payment  instrument,  all  relevant  information  for  the  accomplishment  of  these  tasks’.  The

ECB  proposes  the  incorporation  of  these  specifications  in  the  draft  amendment  itself.  This

would make it clear in the legislation itself that the Banque de France has the power to obtain

information from issuers or from any party having an interest in the circulation of the payment

instrument.

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7. 

The ECB confirms that it has no objection to the publication of this opinion by the competent

national authorities at their discretion.

Done at Frankfurt am Main on 11 April 2001.

The President of the ECB

[signed]

Willem F. DUISENBERG

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