Opinion of the European Central Bank of 30 August 2006 at the request of Magyar Nemzeti Bank on a draft regulation on carrying out payment transactions and the Hungarian Ministry of Finance on a draft government regulation on payment services and electronic payment instruments (CON/2006/46)
Date: 2006-08-30
Institutions: European Central Bank
Subjects: Hungary, electronic banking, financial supervision, national law, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 30 August 2006 

at the request of Magyar Nemzeti Bank 

on a draft regulation on carrying out payment transactions 

and the Hungarian Ministry of Finance  

on a draft government regulation on payment services and electronic payment instruments 

(CON/2006/46) 

Introduction and legal basis 

On  27  July  2006  the  European  Central  Bank  (ECB)  received  a  request  from  Magyar  Nemzeti  Bank 

(MNB)  for  an  opinion  on  an  MNB  draft  regulation  on  carrying  out  payment  transactions  (hereinafter 

referred  to  as  the  ‘draft  MNB  regulation’).  On  3  August  2006,  the  ECB  received  a  request  from  the 

Hungarian Ministry of Finance for an opinion on a draft government regulation on payment services and 

electronic payment instruments (hereinafter referred to as the ‘draft government regulation’) (draft MNB 

regulation and draft government regulation are hereinafter referred to jointly as ‘draft regulations’). Since 

the  draft  regulations  cover  closely  related  subjects,  the  ECB  has  joined  both  consultations  above  in  a 

single consultation procedure. 

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

European Community and the fifth indent 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, as the draft regulations relate to payment and settlement 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 regulations 

According  to  their  statements  of  reasons,  the  draft  regulations  will  bring  Hungarian  law  into  line  with 

Directive  97/5/EC  of  the  European  Parliament  and  of  the  Council  of  27  January  1997  on  cross-border 
credit transfers2, Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the 
protection  of  consumers  in  respect  of  distance  contracts3,  Directive  2002/65/EC  of  the  European 

Parliament  and  of  the  Council  of  23  September  2002  concerning  the  distance  marketing  of  consumer 

1  
2  
3  

OJ L 189, 3.7.1998, p. 42. 
OJ L 43, 14.2.1997, p. 25. 
OJ L 144, 4.6.1997, p. 19. 

 
 
 
 
                                                 
financial  services  and  amending  Directive  90/619/EEC  and  Directives  97/7/EC  and  98/27/EC4  and 

Commission Recommendation 97/489/EC of 30 July 1997 concerning transactions by electronic payment 
instruments and in particular the relationship between issuer and holder5. In addition to the implementing 

provisions: 

(i) 

the  draft  MNB  regulation  provides  detailed  rules  for  identifying  bank  accounts,  execution  of 

payment orders and payment methods and standard forms for domestic payment instructions; and 

(ii) 

the draft government regulation regulates opening of the bank accounts, disposal over accounts and 

limitations on disposal over accounts (bankruptcy, winding-up and debt settlement procedures and 

the queuing of payment orders). 

In  light  of  the  above,  the  scope  of  the  draft  regulations  goes  beyond  the  mere  implementation  of  the 

relevant Community directives. 

2. 

General observations  

2.1  The ECB welcomes the draft regulations, as they will foster transparency and legal certainty for the 

execution of cross-border and domestic payments and help achieve a level playing field throughout 

the European Union. 

2.2  The ECB understands that the draft regulations prejudice neither (i) the application of the national 
law implementing the Settlement Finality Directive6; nor (ii) the powers of system operators to lay 

down  the  criteria  for  participants;  nor  (iii)  any  oversight  standards  applied  to  systems  by  the 

competent authorities. 

3. 

Specific observations on the draft MNB regulation 

3.1  The  draft  MNB  regulation  contains  an  exhaustive  list  of  domestic  payment  methods.  This  legal 

technique  of  exhaustive  listing  is  appropriate  when  the  legislator  intends  to  exclude  any  other 

possibilities. However, in light of rapid innovation and technological progress in payment methods, 

the ECB recommends listing the payment methods in an exemplificative way. 

3.2  Article  55(1)  of  the  draft  MNB  regulation  refers  to  credit  institutions  authorised  to  provide 

‘payment  services’.  In  the  interests  of  clarity  instead  a  reference  could  be  made  to  ‘direct 

participants in the domestic payment system’. 

4. 

Specific observations on the draft government regulation 

4.1  According to Article 6(5) of the draft government regulation, credit institutions may enforce their 

claims  ‘before  having  cognisance  as  defined  in  Article  7(12)  of  the  opening  of  liquidation 

4  
5  
6  

OJ L 271, 9.10.2002, p. 16. 
OJ L 208, 2.8.1997, p. 52. 
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and 
securities settlement systems (OJ L 166, 11.6.1998, p. 45). 

2 

 
 
 
                                                 
proceedings’.  The  ECB  is  of  the  view  that  instead  of  the  general  reference  to  Article  7(12), 

Article 6(5) could refer expressly to the receipt of notification under Article 29(g) of the Law XLIX 

of  1991  on  bankruptcy  proceeding,  liquidation  proceeding  and  voluntary  dissolution  and  the 

publication of the relevant court decision in the case of client account keepers not keeping a bank 

account for an account holder. 

4.2  The  ECB  notes  that  in  spelling  the  name  of  the  single  currency  as  ‘euró’,  Article  9  of  the  draft 

government regulation does not comply with the spelling rules for the word ‘euro’. To make the 
euro’s  singleness  apparent,  Community  law7  requires  a  single  spelling  of  the  word  ‘euro’  in  the 

nominative  singular  case  in  all  Community  and  national  legislative  provisions.  On  the  basis  of 

these considerations and in view of the Community’s exclusive competence to determine the name 

of the single currency, any deviations from this rule are incompatible with the Treaty and should be 

eliminated. 

4.3  Article 13 of the draft government regulation will exempt institutions from the legal consequences 

under  the  draft  government  regulation  of  late  execution  in  case  of  force  majeure.  According  to 

Law XV  of  2003  on  preventing  and  combating  money  laundering  (Money  Laundering  Law), 

service  providers  must  suspend  any  transactions  where  there  is  a  suspicion  of  money  laundering 

and police action should be taken. Such suspension required under national law may result in late 

execution. Therefore, for reasons of clarity the ECB recommends referring to the relevant national 

legal  provisions,  including  the  Money  Laundering  Law,  in  addition  to  the  exemptions  already 

provided for in the draft government regulation. 

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

Done at Frankfurt am Main, 30 August 2006. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

7  

See Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro 
(OJ  L  162,  19.6.1997,  p.  1),  Council  Regulation  (EC)  No  974/98  of  3  May  1998  on  the  introduction  of  the  euro 
(OJ L 139,  11.5.1998,  p.  1)  and  Council  Regulation  (EC)  No  2866/98  of  31  December  1998  on  the  conversion  rates 
between the  euro  and  the currencies  of  the  Member  States adopting  the euro  (OJ  L  359  31.12.1998,  p.  1),  all  three  of 
which  were  amended  in  2000  for  the  introduction  of  the  euro  in  Greece.  See  also  the  Community  legislation  on  euro 
coins  in  1998  and  1999,  as  well  as  Council  Regulation  (EC)  No  2169/2005  of  21  December  2005  amending 
Regulation (EC) No 974/98 on the introduction of the euro (OJ L 346, 29.12.2005, p. 1). 

3