Opinion of the European Central Bank of 18 December 2002 at the request of the French Minister of Economy, Finance and Industry on a draft law on financial security (CON/2002/32)
Date: 2002-12-18
Institutions: European Central Bank
Subjects: France, electronic money, financial stability, financial supervision, national law, payment system

EN

OPINION OF THE EUROPEAN CENTRAL BANK

of 18 December 2002

at the request of the French Minister of Economy, Finance and Industry

on a draft law on financial security

(CON/2002/32)

1.

On  13  November  2002  the  European  Central  Bank  (ECB)  received  a  request  from  the  French

Ministry  of  Economy,  Finance  and  Industry  for  an  opinion  on  certain  aspects  of  a  draft  law  on

financial security (the draft law). The provisions of the draft law submitted for consultation by the

French  authorities  together  with  the  statement  of  reasons  deals  with  the  modernisation  of

supervisory authorities (Title 1) and the security of savers and insured persons (Title 2).

2. 

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

the European Community and on the second, third, fourth, fifth and sixth 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  regarding  draft  legislative  provisions1.  The  French  authorities  refer  in

particular, in the consultation letter, to the sixth indent of Article 2(1) of Decision 98/415/EC which

concerns  the  rules  applicable  to  financial  institutions  "in  so  far  as  they  materially  influence  the

stability of financial institutions". The second, third, fourth and fifth indents of Article 2(1) should

also be  mentioned  since  certain  provisions  of the draft law  affect  a  national  central  bank,  and/or

concern statistics, means of payment and payment and settlement systems. Although the ECB does

not need to be consulted on the implementation of Community directives, some of the provisions of

the draft law that intend to amend the French Monetary and Financial Code (the Code) in respect of

e-money  institutions  affect  means  of  payment  and  payment  systems.  As  a  consequence,  this

opinion also relates to these provisions. In accordance with the first sentence of Article 17(5) of the

Rules of Procedure of the European Central Bank, the Governing Council of the ECB has adopted

this opinion.

3. 

A  large  part  of  the  draft  law  relates  to  the  modernisation  of  the  French  financial  institutional

framework  (Title 1  of the draft law). This  involves  mainly  the  creation  of  the  Financial  Markets

Authority  -  Autorité  des  marchés  financiers  -  (AMF),  as  a  result  of  the  merger  of  the  functions

currently  divided  amongst  the  Commission  des  opérations  de  bourse  (COB),  the  Conseil  des

marchés financiers (CMF) and the Conseil de discipline de la gestion financière (CDGF). This part

1 

OJ L 189, 3.7.1998, p. 42.

                                                     
of the draft law also  deals  inter  alia  with the  reinforcement  of  cooperation  between  the  Banking

Commission and the Insurance Commission, the simplification of advisory procedures in the field

of  banking,  insurance  and  financial  regulation  and  with  emergency  situations  in  the  context  of

financial markets.

4. 

This  opinion  focuses  primarily  on  these  amendments  as  well  as  on  some  proposed  changes

included in Title 2 of the draft law which concern in particular the rules applying to money market

instruments  and  to  custody  account  keepers  of  financial  instruments.  Certain  aspects  of  the

implementation of the E-money Directive and a proposed amendment to the Statute of the Banque

de France are also considered in the present opinion.

A.

5. 

The creation of the Financial Markets Authority (AMF)

The  ECB  welcomes  the  plans  to  modernise  the  French  financial  authorities  and  to  simplify  the

French institutional and legal framework for financial regulation. The ECB welcomes in particular

the intention of the French authorities to create the AMF, mainly as a result of the merger of the

functions currently divided amongst the Commission des opérations de bourse (COB), the Conseil

des marchés financiers (CMF) and the Conseil de discipline de la gestion financière (CDGF).

6. 

The  AMF,  as  an  independent  administrative  authority  and  a  legal  person  governed  by

administrative  law,  will  have  a  sui  generis  status  similar  to  that  of  the  Banque  de  France.  This

authority  will  be  mainly  composed  of  a  college  of  16  representatives  and  of  an  entirely  separate

Sanctions  Committee.  The  ECB  welcomes  the  participation  of  the  Banque  de  France  as  a  full

member  in  the  college  of  the  AMF,  the  composition  of  which  will  offer  an  appropriate  balance

between representatives of the public authorities and of the market. In  the  ECB’s  view, the draft

law  should  however  ensure  that  the  members  appointed  by  the  Minister  for  the  College  and  the

Sanctions  Committee  effectively  cover  the  whole  spectrum  of  market  participants,  i.e.  issuers,

financial  intermediaries,  market  undertakings,  individual  and  institutional  investors  but  also

representatives  of  market  infrastructure.  The  ECB  also  welcomes  the  entitlement  of  some

representatives  of  the  Banque  de  France  to  participate,  where  required,  in  the  specific  ad  hoc

commissions set up by the College and that the AMF will have the possibility to receive Banque de

France staff.

7. 

As  regards  the  missions  and  functions  of  the  AMF,  they  are  wide  since  the  authority  will  be

responsible for the protection of savings invested in financial instruments and all other investments

giving  rise  to  public  offerings,  investor  information  and  the  smooth  functioning  of  markets  for

financial instruments. Without prejudice to the respective powers of the Banking Commission and

of  the  Banque  de  France,  the  AMF  will  regulate  the  operation  of  the  markets  placed  under  its

control,  the  persons  making  public  offerings,  as  well  as  the  persons  who,  by  reason  of  their

professional activity, are involved in operations relating to financial instruments invested by public

offerings, or the persons who provide individual or collective portfolio management services and

2

the collective investment undertakings that they manage. The ECB notes that an important element

of  modernisation  and  simplification  of  the  French  legal  framework  in  the  field  of  financial

regulation  will  be  the  adoption  by  the  AMF,  for  the  fulfilment  of  its  tasks,  of  a  single  General

Regulation  which  will  combine  the  COB  Regulations  and  the  CMF  General  Regulation  and

complement the provisions of the Monetary and Financial Code (legislative and regulatory parts).

This General Regulation will be adopted by the College of the AMF and endorsed by the Minister

of the Economy. It will govern the functioning of the markets under the control of the AMF as well

as  the  persons  making  public  offerings,  take-over  bids,  business  conduct  rules  and  other

professional obligations. It will also incorporate rules applicable to investment services providers,

market undertakings, clearing houses and their members, and the management activities performed

on behalf of third parties and collective investments. The General Regulation will also establish the

legal  framework  applicable  to  custody  account  keeping  services  of  financial  instruments  (see

below), central depositories and settlement systems of financial instruments (without prejudice to

the powers of the Banque de France in this area under Article L.141-4 of the Code).

8. 

The  General  Regulation  of  the  AMF  will  govern  regulated  markets  of  financial  instruments  and

financial instruments  markets,  other than  regulated  markets. The  draft law  introduces  therefore  a

legal  basis  for  the  regulation  of  the  Alternative  Trading  System,  the  current  CMF  General

Regulation  being  silent  on  the  possibility  to  “regulate”  non-regulated  markets.  The  ECB

understands  that  this  provision  anticipates  to  a  certain  extent  the  proposal  for  a  directive  of  the

European Parliament and of the Council on investment services and regulated markets adopted by

the  European  Commission  on  19  November  20022  which  “recognises  the  emergence  of  a  new

generation of organised trading systems alongside regulated markets which should be subjected to

obligations designed to preserve the efficient and orderly functioning of financial markets”.

9. 

The  ECB  notes  that  the  prior  consultation  of  the  Banque  de  France  will  not  be  required  for  the

AMF  General  Regulation  since  a  representative  of  the  Banque  de  France  appointed  by  the

Governor  will  be  a  full  member  of  the  college  of  the  AMF.  However,  the  ECB  recommends

retaining, as is currently the case, the possibility for the Banque de France to adopt opinions and

recommendations on the General Regulation where the Banque de France is specifically concerned.

10. 

In respect of investigation powers, the AMF, in line with the current CMF powers, as provided in

Article L.622-9 of the Code, will ensure, by carrying out on the spot inspections of documents, that

clearing  houses  for  financial  instruments  inter  alia  comply  with  applicable  legislative  and

regulatory provisions. This applies also, under the draft law, to the operators of settlement systems

for  financial  instruments.  The  ECB  observes  that  Article  10  of  the  draft  law  (amending

Article L.621-9  of  the  Code)  specifies  that  these  two  provisions  apply  without  prejudice  to  the

powers conferred upon the Banque de France under Article L.141-4 of the Code.

2 

amending Council Directives 85/611/EEC and  93/6/EEC  and  European Parliament  and  Council  Directive  2000/12/EC,
COM(2002) 625 final

3

                                                     
11.  The  statement  of  reasons  notes  that  cooperation  and  understanding  between  the  banking  and

financial authorities constitute a prerequisite for an efficient regulation of the financial sector. To

this end, the French authorities point out that the AMF and the banking authorities (including the

Banque de France and the Banking Commission) will have to conclude a protocol to establishing

the cooperation and information exchange mechanisms in the areas where legally conferred powers

are  shared  by  these  authorities  or  where  they  share  an  interest.  This  concerns  for  instance  the

supervision of custody account keepers for financial instrument and of members of clearing houses,

the  activity  programmes  of  investment  services  providers  and  the  surveillance  of  the  negotiable

debt  securities  market  (see  below).  The  ECB  welcomes  the  fact  that  the  reform  of  financial

authorities foreseen by the draft law provides the opportunity to clarify the powers of the different

financial authorities. To the extent this Protocol will affect some Banque de France and Eurosystem

functions (for instance, in respect of clearing and settlement systems of financial instruments), the

ECB would appreciate having the possibility to provide comments before the Protocol is formally

adopted.

12.  Article 2 of the draft law amending Article L.621.1 of the Code provides that one of the tasks of the

AMF will be to contribute to establishing European and international regulation of these markets.

According to the statement of reasons, the purpose of this provision is to recall that the AMF acts

in  an  international  context  and  that  this  authority  will  actively  participate  in  European  or

international fora such as the CESR, IOSCO or the Financial Stability Forum. The ECB welcomes

this provision in so far as it legally acknowledges the European and international role to be played

by the AMF. More generally, in line with the recommendations of the Report of the Committee of

Wise Men on the regulation of the European securities markets of 15 February 2001, the creation

of  a  single  authority  for  financial  markets,  such  as  the  AMF,  contributes  to  the  convergence  of

regulatory and supervisory structures identified by the Committee of Wise Men as a key condition

for the success of the Lamfalussy approach to integrated EU financial markets.

13.  Lastly, the ECB proposes that the draft law provide for information sharing between the AMF and

central banks, including the national central banks of the ESCB and the ECB, for the purpose of the

performance of their respective tasks. First, the exchange of information with the central banks of

the  Eurosystem  involves  a  cross-border  dimension  that  is  not  yet  acknowledged  in  the  relevant

provisions of the Code. Second, information conveyed to a central bank of the Eurosystem may be

shared among the central banks of the Eurosystem. Therefore, a provision could be included in the

draft law allowing the AMF to share information with central banks, including the national central

banks of the ESCBand the ECB for the purpose of the performance of their respective tasks. This

proposal  is  consistent  with  Article  12(1)  of  the  Directive  on  the  supplementary  supervision  of

financial  conglomerates3  and  with  Article  54(6)  of  the  proposal  for  a  directive  of  the  European

3 

See Common Position (EC) No 52/2002 of 12 September 2002 adopted by the Council […] with a view to adopting a
directive of the European Parliament and of the Council on the supplementary supervision of credit institutions, insurance
undertakings and investment firms in a financial conglomerate, OJ C 253 E, 22.10.2002, p. 1. The Directive was adopted
at second reading by the European Parliament on 20 November 2002.

4

                                                     
Parliament and of the Council on investment services and regulated markets (ISD) adopted by the

European Commission on 19 November 20024.

B.

Reinforcement  of  the  cooperation  between  the  Banking  Commission  and  the  Insurance

Commission and other institutional changes

14.  The ECB welcomes the reinforcement, within the draft law, of the existing cooperation between the

Banking  Commission  and  the  Insurance  Commission.  In  particular,  Article  L.613-3  of  the  Code

will  be  amended  to  include  the  Chairman  of  the  Insurance  Commission  as  a  member  of  the

Banking  Commission.  In  addition,  the  Code  will  provide  that  the  Banking  Commission  and  the

Insurance Commission will meet at least twice a year, and, to the extent necessary, discuss topics

of common interest. The ECB understands that a Charter of Cooperation was concluded between

the two authorities on 24 October 2001 which notably allows their respective experts to take joint

supervisory initiatives, in particular as regards on-site inspections. It also provides  them  with  the

possibility  of  sharing  staff  and  information.  For  instance,  a  joint  working  group  was  recently

established  to  study  in  particular  the  impact  of  credit  derivatives  on  financial  stability.  This

reinforced cooperation is also in line with the recent legislative and institutional developments at

EU  level,  such  as  the  abovementioned  Directive  on  the  supplementary  supervision  of  financial

conglomerates and the recent final Report of the Economic and Financial Committee on financial

regulation,  supervision  and  stability  of  28  November  20025  which  recommends  a  strengthened

cross-sectoral  activity  amongst  competent  authorities,  as  a  prerequisite  for  the  preservation  of

financial stability.

15.  As regards the CECEI6, a Committee chaired by the Governor of the Banque de France, Chairman

of  the  Banking  Commission  (and  including  in  particular  the  Director  of  the  Treasury  and  the

Chairman  of  the  AMF),  the  ECB  understands  that  its  composition  and  core  functions  are  not

substantially  affected  by  the  draft  law.  The  CECEI  will  continue  to  grant  (and  withdraw  when

necessary) licenses to credit institutions and investment firms (including custody-account keepers

of financial instruments). In addition, some amendments are introduced concerning the role of this

Committee in relation to certain types of companies providing e-money services (see H below) and

to the activity programmes of investment services providers.

C.

Simplification of the banking, insurance and financial regulation advisory procedures

16.  The ECB welcomes the provisions of the draft  law  that  will  simplify  the  banking,  insurance  and

financial  regulation  advisory  procedures.  It  welcomes  in  particular  the  creation  of  two  advisory

4 
5 
6 

COM(2002) 625 final.
EFC/ECFIN/598/02.
Comité des établissements de crédit et des entreprises d'investissement.

5

                                                     
Committees,  i.e.  the  Advisory  Committee  on  the  Financial  Sector  (CCSF)  and  the  Advisory

Committee  on  Financial  Legislation  and  Regulation  (CCLRF),  since  they  will  contribute  to

clarifying the French institutional framework in the financial sector for market operators in France

and abroad. They will also increase the functional convergence between the different areas of the

financial sector (banking, insurance and investment services sectors).

17.  First,  the  Advisory  Committee  of  the  Financial  Sector  (CCSF)  will  be  common  to  the  banking,

insurance and investment services sectors, taking into account the increasing convergence of issues

in  these  sectors.  This  Committee  composed  of  industry  and  consumer  representatives  will  study

relationships  between  companies  and  users  and  perform  the  functions  currently  exercised  by  the

Conseil national du crédit et du titre (CNCT), the Comité consultatif (Advisory Committee) and the

Commission consultative de l’assurance (Advisory Insurance Commission). It will adopt opinions

and recommendations of a general nature.

Second,  the  Advisory  Committee  of  Financial  Legislation  and  Regulation  (CCLRF)  will  replace

the  Comité  de  la  réglementation  bancaire  et  financière  (CRBF)  and  the  Conseil  national  des

assurances (CNA). According to Article 22 of the draft law, this Committee will be consulted by

the Minister of Economy and Finance on any draft law or ordinance as well on any every proposal

for  a  Community  directive  dealing  with  issues  related  to  banking,  insurance  and  investment

services. In addition, draft decrees and ministerial orders in these areas will only be adopted after

consultation of the CCLRF. The Minister of the Economy and Finance, the Banque de France, the

CECEI, the Banking Commission, the Advisory Committee of the Financial Sector, the AMF and

some insurance authorities may make referrals to the CCLRF for this purpose. In case of a negative

opinion, draft decrees or ministerial orders can only be adopted once a second deliberation of the

Committee has taken place at the request of the Minister. The draft law provides that a decree will

establish  the  composition,  the  conditions  of  appointment  of  the  CCLRF  members  and  the

Committee’s rules.

18. 

In  the  statement  of  reasons,  the  French  authorities  provide  some  additional  information  on  the

possible  content  of  the  decree  envisaged  in  respect  of  the  CCLRF.  This  Committee  would  be

composed  in  a  similar  manner  to  the  CRBF  (including  a  representative  of  the  Governor  of  the

Banque  de  France,  Chairman  of  the  Banking  Commission),  except  that  it  would  include

representatives  from  the  insurance  and  investment  services  sectors,  depending  on  the  matters

examined by the Committee. As for the CRBF, the Chairman will be the Minister of Economy, or

his representative, with a casting vote.

19.  The scope of intervention of the CCLRF will be wider since it will cover banking, insurance and

investment services sectors. Moreover, as mentioned above, the Committee will not only examine

ministerial orders and decrees but also regulations, draft laws and proposed Community directives.

However, unlike the CRBF, the new Committee does not have regulatory powers and its  powers

are only of an advisory nature. The Minister of Economy will be directly in charge of banking and

financial regulation in the areas mentioned in Article L.611-2 of the Code, without prejudice to the

6

missions  conferred  upon  the  ESCB  in  accordance  with  Article  105(2)  of  the  Treaty  (and  not

Article 106(2) of the Treaty, as mentioned in the Code). Since the CCLRF (in which the Banque de

France should participate) will be consulted on any draft provisions related to the financial sector,

the  consulting  authority  might  wish  to  consider  involving  this  Committee  in  contributing  to

ensuring the implementation of the abovementioned Council Decision 98/415/EC.

D.

Emergency measures relating to financial markets

20.  Article  L.621-7-1  of  the  Code,  once  amended  by  the  draft  law,  will  provide  that,  in  case  of  the

AMF’s  incapacity  to  act,  emergency  measures  required  by  circumstances  will  be  adopted  by  a

decree. This provision mirrors an existing similar provision of the Code regarding the CMF. The

ECB  understands  that  this  provision  aims  to  provide  the  French  authorities  with  the  powers  to

adopt emergency measures in relation to financial markets should the AMF be unable to act. Since

the proposed provision is included in the Section of the Code on the powers of the AMF, some of

which,  as  mentioned  above,  are  shared  with  the  Banque  de  France  in  relation  to  Eurosystem

activities  (for  instance,  regarding  clearing  and  settlement  systems  of  financial  instruments)7,  the

attention of the French authorities is drawn to the recommendations contained in the ECB Opinion

of 31 October  20028  concerning  the  possibility  for  Member  States to adopt  emergency  measures

for the financial markets. In the interests of clarification, the abovementioned draft provision could

be  amended  as  follows:  “In  case  of  (…)  and  without  prejudice  to  the  powers  of  the  Banque  de

France in particular in the context of ESCB activities (…)”.

E.

Rules on money market instruments

21.  A  reform  of  the  French  rules  applying  to  negotiable  debt  securities  (TCN),  as  last  amended  in

19989, is under way, comprising in particular the amendment by the draft law of certain provisions

of the Code concerning TCN and aiming to further increase the competitiveness of the TCN market

and facilitate conditions of issuance.

22.  As regards the rules on the organisation and supervision of the TCN market, the ECB notes that the

French authorities intend to clarify within the Code the respective roles and functions of the AMF

and of the Banque de France. For instance, Article L.213-4 of the Code, as amended, will provide

that the financial documentation is to be submitted to the Banque de France which is in charge of

ensuring that issuers comply with the conditions of issuance provided for in Article L.213-3 of the

Code. Although there is no express provision in the draft law, the ECB understands that, under the

7 

8 
9 

See  in  this  respect  Article  L.141-4  of  the  Code,  as  amended  by  MURCEF  law  nº2001-1168  of  11  December  2001
regarding urgent measures of an economic and financial nature.
ECB Opinion CON/2002/27 regarding a draft Finnish Act on emergency powers.
See  in  this  respect  the  ECB  opinion  of  4  September  1998,  CON/98/40  on  a  draft  decree  on  the  modernisation  of  the
regulation of negotiable certificates of deposit, commercial paper and medium-term notes

7

                                                     
new provisions on negotiable debt securities envisaged by the French authorities, the AMF, as for

the debt securities markets, will be empowered in particular to ensure the surveillance of financial

information continuously without having to deliver any visa, and the compliance of operators with

business conduct rules. Moreover, as mentioned above, the surveillance of the TCN market should

be part of the joint exercise to be undertaken respectively by the AMF and the Banque de France in

the context of the  adoption  of the  protocol  between the  two  authorities. The  ECB  welcomes  this

clarification which should ultimately benefit TCN issuers, investors and other market participants.

23.  Under  the  draft  law,  the  applicable  provisions  contained  in  the  Code  (and  in  particular

Articles L.213-2 and L.213-4 of the Code) will also be amended to relax the applicable language

regime and to provide the possibility for issuers, under certain circumstances, to submit financial

documentation in a language customary in the sphere of finance other than French. Moreover, the

current obligation imposed on TCN issuers to prove two years of existence will be repealed. The

ECB welcomes these amendments since they should open the market to a wider range of issuers

and contribute to a further integration of short-term securities markets in Europe.

24.  The ECB understands that some amendments to Decree nº92-137 of 13 February 1992 (which are

not part of the present consultation) are envisaged by the French authorities. If the amendments to

the  Decree  and  any  related  regulation  fall  within  the  scope  of  the  abovementioned  Council

Decision, the ECB would be available to provide its comments on the matter.

F.

Rules relating to custody account keeping of financial instruments

25.  At  present,  the  French  legislation  refers  to  custody  account  keeping  services  of  financial

instruments in Article L.622-7 of the Code which provides that the CMF General Regulation deals

with the conditions for the authorisation of custody account keepers of financial instruments. The

French authorities clarify in the draft law, within a specific and autonomous chapter of the Code

(Article  33  of  the  draft  law),  the  nature  of  the  persons  likely  to  be  authorised  to  exercise  such

activity,  i.e.  corporate  issuers  making  public  offerings,  French  financial  institutions  subject  to

prudential supervision (credit institutions, investment firms  or institutions  such  as  La  Poste),  and

“pure” custody account keepers of financial instruments, assimilated to investment firms, licensed

by the CECEI, respectively supervised by the AMF for business conduct rules and by the Banking

Commission for their management standards. Foreign legal persons (credit institutions, investment

firms and custody account keepers) would be authorised to provide such services provided that the

provisions  applicable  to  them  in  their  home  country  in  terms  of  exercise  of  the  activity  and  of

supervision are equivalent to the rules applicable in France. The conditions will be specified in the

AMF General Regulation. The statement of reasons indicates  that this  differentiated treatment  of

EEA providers compared to French providers is justified by the absence of harmonisation of such

services in Europe.

8

26.  Under Directives 2000/12/EC and 93/22/EEC, EEA credit institutions and investment firms which

were granted a licence in their home country and are entitled to provide custody account keeping

financial instrument services are not subject to any additional licensing requirements under the law

of the host country. It is noted, however, that the abovementioned proposal for a directive of the

European  Parliament  and  of  the  Council  on  investment  services  and  regulated  markets  (ISD)

adopted  by  the  European  Commission  on  19  November  2002  considers  safekeeping  and

administration  of  financial  instruments  for  the  account  of  clients  (including  custodianship  and

related  services  such  as  cash/collateral  management)  as  “ancillary/non-core”  services.  Moreover,

according to Article 5 of the proposal (“Scope of authorisation”), the “European passport”  is  not

granted solely for the provision  of  ancillary  services. The  ECB  notes that  this  situation  currently

prevails in the context of the existing ISD10.

27.  The  ECB  acknowledges  that  the  legal  framework  for  the  provision  of  custody  account  keeping

services  of  financial  instruments  is  not  harmonised  at  European  level.  In  France,  the  rules  are

detailed  and  binding,  thus  providing  market  participants  with  a  high  level  of  security.  The  ECB

shares the view that, from a systemic perspective, custodians are a key component of the securities

settlement chain and that the financial soundness stemming from a set of detailed rules may also

play  an  important  role  in  respect  of  the  constitution  and  realisation  of  collateral.  Therefore,  the

ECB believes that efforts for further harmonisation, possibly with a view to establishing minimum

common  standards  (for  instance  in  terms  of  business  practices,  capital  adequacy,  performance

requirements) and an adequate legal framework should be pursued by the relevant fora to ensure a

level  playing  field  throughout  Europe  while  further  increasing  confidence  in  the  securities

settlement chain.

G.

Issue of electronic money, payment systems and money laundering

28.  The  draft  law  introduces  some  amendments  to  the  Code  in  respect  of  e-money  institutions.  The

ECB understands in this respect that most of the provisions of the Directives on electronic money11

were recently implemented by a Regulation of the CRBF nº2002-13 of 21 November 2002 relating

to electronic money and electronic money institutions12.

29.  The  provisions  of  the  draft  law  amending  Article  L.511-7  II  of  the  Code  intend  to  implement

Article  8(1)(b)  and  (c)  of  Directive  2000/46/EC  (the  Directive)  which  allows  Member  States  to

waive the application of the Directive in certain defined cases. The waiver contained in Article 8 of

10 

11 

12 

Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field, OJ L 141, 11.6.1993, p. 27,
Annex, Section C.
Directive  2000/28/EC  of  the  European  Parliament  and  of  the  Council  of  18  September  2000  amending  Directive
2000/12/EC  relating  to  the  taking  up  and  pursuit  of  the  business  of  credit  institutions,  OJ  L  275,  27.10.2000,  p.  37;
Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of
and prudential supervision of the business of electronic money institutions, OJ L 275, 27.10. 2000, p. 39.
The  CRBF  Regulation  has  not  yet  been  endorsed  by  a  formal  approval  of  the  Ministry  of  the  Economy,  which  will
determine its entry into force and its publication.

9

                                                     
Directive  provides a  derogation  from  the  main  provisions  of the  Directive  which  are  intended  to

ensure sound and prudent  operations  and  in particular the financial  integrity  of  electronic  money

institutions. In this respect, the ECB had the opportunity to indicate, in a recent opinion on a draft

Finnish Act13, that, in the interest of the smooth functioning of the payments systems as well as for

monetary policy reasons in general, it would favour a more restrictive use of the waiver.

30.  First,  the  ECB  observes  that  the  CECEI  will  be  empowered  to  grant  exemptions  from  credit

institution  licensing  to  those  institutions  fulfilling  the  conditions  of  Article  8(1)(b)  and  (c),  as

implemented  under  French  law.  According  to  the  draft  law,  companies  issuing  electronic  money

who benefit from the waiver would as a consequence not be regarded as credit institutions. In this

respect, the ECB would like to recall that Article 1(4) of the Directive provides that Member States

must prohibit persons or undertakings that are not credit institutions from issuing electronic money.

Furthermore, the Council’s common position concerning the Directive14 stated that even though the

Member  States  have  the  option  to  waive  the  application  of  some  or  all  of  the  provisions  of  the

Directive  and  the  application  of  Directive 2000/12/EC,  this  does  not  affect  the  nature  of  the

institutions  concerned;  they  remain  credit  institutions,  as  defined  in  Article  1,  point  1,  first

subparagraph  of  Directive  2000/12/EC15.  In  addition,  the  entitlement  of  monetary  authorities  to

impose minimum reserve requirements is not affected. The question of which types of institution

are  regarded  as  credit  institutions  is  important  in  the  context  of  the  ESCB’s  operations  and  for

credit institutions’ access to central banks’ payments systems as well as to the standing facilities, as

they are instruments of Community monetary policy.

31.  Second, the draft law authorises the CECEI to grant the above exemption “unless it considers this

to be incompatible with the payment systems”. The reference to payment systems in this provision

of the draft law is, in the view of the ECB, relatively unclear. The ECB understands, however, that

this  provision intends  to specify  that the  CECEI  would  grant  such  exemption  unless  it  considers

this to be incompatible with the security of means of payment. In addition, this provision is to be

assessed  in  the  context  of  the  protection  granted  by  the  Settlement  Finality  Directive16  to  credit

institutions as participants in a system.

32.  Third,  and  subject  to  the  above  reservation,  the  ECB  notes  that  these  “exempted”  institutions

(which  do  not  have  the  status  of  credit  institutions)  will  however  be  subject  to  obligations  to

declare any suspicion under Article L.562-1 of the Code.

13 

14 

15 

16 

See ECB Opinion CON/2002/1 of 4 January 2002 at the request of the Finnish Ministry of Finance on a draft proposal
concerning the revision of the Credit Institution Act.
Common  Position  (EC)  No  8/2000  adopted  by  the  Council  on  29  November  1999  with  a  view  to  the  adoption  of
Directive 2000/46/EC of the European Parliament and of the Council on the taking up, pursuit and prudential supervision
of the business of electronic money institutions (including the statement of Council's reasons), OJ C 26, 28.1.2000, p. 1.
Directive  2000/12/EC  of  the  European Parliament  and  of  the  Council  of  20  March  2000  relating  to  the  taking  up  and
pursuit of the business of credit institutions, OJ L 126, 26.5.2000, p. 1.
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment ad
securities settlement systems, EC OJ l166 of 11 June 1998, p. 45.

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H.

Discontinuation of the publication by the Banque de France of its weekly balance sheets and

amendment to the Statute of the Banque de France

33.  Article  L.144-5  of  the  Code,  which  is  part  of  the  Statute  of  the  Banque  de  France,  requires  the

balance  sheets  of  the  Banque  de  France  to  be  published  weekly.  The  draft  law  provides  for  the

repeal  of 

this  requirement.  According 

to  Article  2(1)  of  Decision  ECB/2001/16  of

6 December 200117, the intra-Eurosystem balances on euro banknotes in circulation, as defined in

Article  1(e)  of  that  Decision,  which  result  from  the  allocation  of  the  euro  banknote  issued,  are

calculated on a monthly basis and are recorded in the books of the ECB and the NCBs on the first

business day of the month with a value date of the last business day of the preceding month. By

extension,  the  recording  of  the  allocation to  NCBs  of  their  share  of the liability  arising  from  the

total  value  of  euro  banknotes  in  circulation,  as  a  result  of  the  application  of  Article  4  of

Decision ECB/2001/15 of 6 December 200118 on the issue of euro banknotes, occurs with the same

frequency. The  publication  by  an  NCB  of its  balance  sheet  more  frequently  than  at  the  end  of  a

month would disclose liabilities for euro banknotes in circulation that reflect day-to-day accounting

transactions occurring between the periodic allocations recorded in its books. This would therefore

conflict  with  Article  4  of  Decision  ECB/2001/15.  Accordingly,  on  4  July  2002  the  Governing

Council  of  the  ECB  recommended  that  those  euro  area  NCBs  which  currently  publish  weekly

balance sheets discontinue their publication. The ECB therefore welcomes this repeal.

34.  This opinion will be published on the ECB’s website.

Done at Frankfurt am Main on 18 December 2002.

The President of the ECB

[signed]

Willem F. DUISENBERG

17 

18 

Decision  ECB/2001/16  of  6  December  2001  on  the  allocation  of  monetary  income  of  the  national  central  banks  of
participating Member States from the financial year 2002, OJ L 337, 20.12.2001, p. 55.
Decision ECB/2001/15 of 6 December 2001 on the issue of euro banknotes, OJ L 337, 20.12.2001, p. 52.

11