Opinion of the European Central Bank of 7 December 2009 on the general terms and conditions, and the operating and technical requirements, of clearing service providers for the payment system in Hungary (CON/2009/98)
Date: 2009-12-07
Institutions: European Central Bank
Subjects: Hungary, banking supervision, central bank, national law, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 7 December 2009 

on the general terms and conditions, and the operating and technical requirements, of clearing 

service providers for the payment system in Hungary 

(CON/2009/98) 

Introduction and legal basis 

On 16 November 2009, the European Central Bank (ECB) received a request from the Magyar Nemzeti 

Bank (MNB) for an opinion on two draft regulations: the first on the requirements for the general terms 

and  conditions  and  regulations  of  clearing  services  providers  for  the  payment  system  (hereinafter  the 

‘draft operational regulation’), and a second on the material, technical, security and business continuity 

requirements  of  clearing  service  providers  for  the  payment  system  (hereinafter  the  ‘draft  technical 

regulation’) (the draft operational regulation and the draft technical regulation are hereinafter referred to 

jointly as ‘the draft regulations’). 

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 concern 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 law 

1.1  According to Article 4(5) of Law LVIII of 2001 on the Magyar Nemzeti Bank2 (hereinafter the ‘the 

MNB  Law’),  one  of  the  basic  tasks  of  the  central  bank  is  to  develop  and  regulate  payment  and 

clearing systems, and to oversee and monitor these systems. Pursuant to Article 19/C of Law CXII 
of 1996 on credit and financial institutions3, in the process of applying for authorisation to carry out 

clearing operations, applicants inter alia have to submit the general terms and conditions, as well as 

the  internal  regulations  of  the  clearing  house  concerning  operational,  technical  and  security  rules 

1  
2  
3  

OJ L 189, 3.7.1998, p. 42. 
Published in Magyar Közlöny 2001/76 (VII. 5.), as amended. 
Published in Magyar Közlöny 1996/109 (XII. 12.), as amended. 

 
 
 
 
                                                 
and requirements, and business continuity plans. Pursuant to Article 27(1) of the MNB Law, such 

general terms and conditions and their amendments are subject to prior authorisation by the MNB. 

1.2  The  smooth  functioning  of  Hungarian  payment  and  settlement  systems  is  a  crucial  aspect  of  a 

sound  currency  and  essential  to  the  conduct  of  monetary  policy  at  national  level.  These  systems 

also have a significant bearing on the functioning of financial markets. Moreover, safe and efficient 

payment  systems  are  critical  to  the  maintenance  of  banking  and  financial  stability.  Therefore  the 

purpose of regulating uniform preconditions is to reinforce a consistent legal framework for entities 

providing clearing services in Hungary.  

1.3  The  draft  operational  regulation  lays  down  various  general  rules,  such  as  requirements  for  the 

contents  of  the  general  terms  and  conditions  and  the  regulations  for  clearing  houses.  The  draft 

technical regulation governs certain risk management measures, such as the material, technical and 

general security conditions for operating the payment system. Furthermore, it also sets the rules for 

business continuity planning and regular testing, as well as recovery and resumption objectives. 

2. 

General observations 

2.1  The  ECB  understands  that  the  draft  regulations  lay  down  preconditions  for  clearing  service 

providers  in  Hungary,  ensuring  that  they  are  subject  to  the  same  uniform  minimum  standards, 

thereby  taking  into  account  internationally  accepted  oversight  standards;  notably  the  Core 
Principles  for  Systemically  Important  Payment  Systems4  (Core  Principles),  and  the  Business 
Continuity  Oversight  Expectations  for  Systemically  Important  Payment  Systems5  (BCOE 

Principles),  while  also  making  it  possible  for  entities  providing  clearing  services  to  include 

additional  provisions  in  the  general  terms  and  conditions  and  to  introduce  further  or  stricter 

measures to ensure the safety of their operations. 

2.2  The ECB welcomes such preconditions as they are essential to the MNB’s oversight function. The 

draft  regulations  enhance  the  soundness  of  clearing  and  settlement  systems  as  the  uniform 

standards  clearly  define  the  responsibilities  and  legal  basis  of  organisations  providing  clearing 

services  in  Hungary,  thereby  greatly  improving  the  transparency  and  accountability  of  such 

organisations  and  their  operations.  The  ECB  considers  that  the  draft  regulations  follow  the  legal 

rules and standards established by the Eurosystem for payment and settlement systems, also taking 

account of recent developments in the financial markets.  

4  
5  

Available on the Bank for International Settlement’s website at www.bis.org.  
Available on the ECB’s website at www.ecb.europa.eu. 

2 

 
 
                                                 
3. 

Specific observations 

3.1  The ECB suggests that Article 11 of the draft operational regulation consider the whole life cycle 

of a payment and also cover the pre-settlement phase of the payment process. Besides the time of 

settlement  finality,  it  would  in  particular  be  advisable  to  require  the  system  to  clearly  define  the 

time of acceptance and irrevocability of payment orders in the system’s rules, in particular in the 

case of interconnections between systems, as it is one of the key requirements of Core Principle IV. 

3.2  The tools and measures used for liquidity provision are key components of a system’s overall risk 

management framework; the ECB therefore welcomes the requirements in Article 12 of the draft 

operational  regulation  in  this  respect.  The  ECB  recommends  that  the  terms  and  conditions  of 

granting  credit  specify  in  particular  whether  and  how  intraday  credit  provided  for  eligible 

participants may be converted to overnight credit. 

3.3  Article  15  of  the  draft  operational  regulation  addresses  rules  for  liability  sharing,  as  well  as  for 

mitigation  and  compensation  for  damages.  The  MNB  could  consider  extending  this  by  requiring 

the  clearing  house  to  define  evidence,  i.e.  that  electronic  or  written  records  of  the  payment 

messages will be accepted as means of evidence, because these conditions usually form an integral 

part of the liability regime. 

3.4  The ESCB has developed a glossary of main business continuity terms for market infrastructures 

with the aim of improving the consistency of the terminology used in business continuity planning 

and procedures. In order to take full advantage of these harmonisation efforts, it is recommended 

that the definitions listed in Article 2 of the draft technical regulation take these commonly agreed 

definitions into account. 

3.5  The ECB suggests clarifying ‘the great majority of the clearing days’ in Article 13(7) of the draft 

technical regulation, because it could give rise to different interpretations. The ECB also considers 

it  preferable  to  make  an  express  reference  in  Article  13(12)  to  the  different  risk  profiles,  i.e. 

geographical location, infrastructure, personnel, of the secondary site as compared to the primary 

site. 

3.6  As part of the overall business continuity framework, the BCOE Principles impose on the system 

operator  the  key  responsibility  for  identifying  critical  participants  and  for  assessing  the  potential 

risks  they  present  to  the  smooth  functioning  of  the  system.  Moreover,  critical  participants  must 

implement some BCOE Principles, under the control of the operator. The ECB is of the view that 

the  draft  technical  regulation  should  also  clarify  the  tasks  and  responsibilities  of  organisations 

providing clearing services in this respect. 

3 

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

Done at Frankfurt am Main, 7 December 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

4