Opinion of the European Central Bank of 15 February 2007 at the request of the Council of the European Union on eight proposals amending Directives 2006/49/EC, 2006/48/EC, 2005/60/EC, 2004/109/EC, 2004/39/EC, 2003/71/EC, 2003/6/EC and 2002/87/EC, as regards the implementing powers conferred on the Commission (CON/2007/4)
Date: 2007-02-15
Institutions: European Central Bank
Subjects: European Commission, capacity to exercise rights, comitology, interinstitutional relations (EU), powers of the institutions (EU)

23.2.2007

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Official Journal of the European Union

C 39/1

I

(Resolutions, recommendations, guidelines and opinions)

OPINIONS

EUROPEAN CENTRAL BANK

OPINION OF THE EUROPEAN CENTRAL BANK

of 15 February 2007

at the request of the Council of the European Union on eight proposals amending Directives
2006/49/EC, 2006/48/EC, 2005/60/EC, 2004/109/EC, 2004/39/EC, 2003/71/EC, 2003/6/EC and
2002/87/EC, as regards the implementing powers conferred on the Commission

(CON/2007/4)

(2007/C 39/01)

Introduction and legal basis

On 29 and 31 January 2007 the European Central Bank (ECB) received requests from the Council of the
European Union for an opinion on eight proposals for directives (1) in the financial field (hereinafter ‘the
proposals’) whose main objectives are to amend the comitology provisions of eight existing directives to
incorporate provisions on a new comitology procedure (the ‘regulatory procedure with scrutiny’), following
the adoption of Council Decision 2006/512/EC of 17 July 2006 amending Decision 1999/468/EC laying
down the procedures for the exercise of implementing powers conferred on the Commission (2), and to
repeal the provisions of the eight existing directives that provide for a time limit for the delegation of imple-
menting powers to the Commission (the so-called ‘sunset clauses’). The ECB's competence to deliver an
opinion is based on Article 105(4) of the Treaty establishing the European Community. 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. Observations

1.1 The ECB welcomes the new agreement on comitology reached between the European Parliament, the
Council and the Commission, which is of great importance for the continued functioning of the Lamfa-
lussy process.

(1) (1) Proposal for a Directive of the European Parliament and of the Council amending Directive 2006/49/EC on the capital
adequacy of investment firms and credit institutions, as regards the implementing powers conferred on the Commission
(COM(2006) 90l final); (2) Proposal for a Directive of the European Parliament and of the Council amending Directive
2006/48/EC relating to the taking up and pursuit of the business of credit institutions, as regards the implementing powers
conferred to the Commission (COM(2006) 902 final); (3) Proposal for a Directive of the European Parliament and of the
Council amending Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money
laundering and terrorist financing, as regards the implementing powers conferred on the Commission (COM(2006) 906
final); (4) Proposal for a Directive of the European Parliament and of the Council amending Directive 2004/109/EC relating
to the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted
to trading on a regulated market as regards the implementing powers conferred on the Commission (COM(2006) 909
final); (5) Proposal for a Directive of the European Parliament and of the Council amending Directive 2004/39/EC relating
to markets in financial instruments as regards the implementing powers conferred on the Commission (COM(2006) 910
final); (6) Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/71/EC relating
to the prospectus to be published when securities are offered to the public or admitted to trading, as regards the imple-
menting powers conferred on the Commission (COM(2006) 911 final); (7) Proposal for a Directive of the European Parlia-
ment and of the Council amending Directive 2003/6/EC on insider dealing and market manipulation (market abuse), as
regards the implementing powers conferred on the Commission (COM(2006) 913 final); (8) Proposal for a Directive of the
European Parliament and of the Council amending Directive 2002/87/EC relating to the supplementary supervision of
credit institutions, insurance undertakings and investment firms in a financial conglomerate as regards the implementing
powers conferred on the Commission (COM(2006) 916 final).

(2) OJ L 200, 22.7.2006, p. 11.

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1.2 The ECB has no specific comments on the proposals which are in line with the joint statement of the
European Parliament, the Council and the Commission on the introduction of the new ‘regulatory
procedure with scrutiny’ into the comitology framework (3).

1.3 Having regard to the importance of the role played by implementing measures in EU legislation in the
financial services field, the ECB takes this opportunity to underline the importance of its advisory role
under Article 105(4) of the Treaty, which requires the ECB to be consulted ‘on any proposed Com-
munity act in its fields of competence’. As recently noted (4), ‘the ECB considers that proposed Level 2
acts constitute “proposed Community acts” within the meaning of Article 105(4) of the Treaty’ (5).
Therefore the Treaty provision which requires the ECB to be consulted on any proposed Community act
in its field of competence includes an obligation for it to be consulted on these implementing acts (6).

Done at Frankfurt am Main, 15 February 2007.

The President of the ECB

Jean-Claude TRICHET

(3) Statement by the European Parliament, the Council and the Commission concerning the Council Decision of 17 July 2006
amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the
Commission (2006/512/EC), (OJ C 255, 21.10.2006, p. 1).

(4) ECB Opinion CON/2006/57 of 12 December 2006 on a draft Commission Directive implementing Council Directive
85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective
investment in transferable securities (UCITS) as regards the clarification of certain definitions.

(5) Under the Lamfalussy framework the implementing acts are referred as ‘Level 2 acts’.
(6) The lack of consultation between Community institutions has been the subject of several judgments by the Court of Justice.
On the obligation to consult the European Parliament, see Case 138/79 Roquette Frères [1980] ECR 3333 and Case C-21/94
Parliament v Council [1995] ECR I-1827, paragraph 17. On the obligation of the High Authority to consult the Council and
the Consultative Committee under the ECSC Treaty, see Case 1/54 France v High Authority [1954-56] ECR 1, at p 15 and
Case 2/54 Italy v High Authority [1954-56] ECR 37, at p 52, which was confirmed by Case 6/54 Netherlands v High Authority
[1954-56] ECR 103, at p 112. As far as Article 105(4) of the Treaty is concerned, in Case C-11/00 Commission v European
Central Bank [2003] ECR I-7147, Advocate General Jacobs emphasised that:
‘Consultation of the ECB on proposed
measures in its field of competence is a procedural step, required by a provision of the Treaty, which is clearly capable of
affecting the content of the measures adopted. Failure to comply with such requirement must, in my view, be capable of
leading to the annulment of the measures adopted’, Opinion of Advocate General Jacobs given on 3 October 2002, para-
graph 131.