Opinion of the European Central Bank of 23 March 2011 on amendments to the legislation on settlement finality and on financial collateral arrangements (CON/2011/26)
Date: 2011-03-23
Institutions: European Central Bank
Subjects: EC Directive, Romania, national implementing measure, national law, payment system, securities

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 23 March 2011 

on amendments to the legislation on settlement finality and on financial collateral arrangements 

(CON/2011/26) 

Introduction and legal basis 

On  25  February  2011,  the  European  Central  Bank  (ECB)  received  a  request  from  Banca  Naţională  a 

României  (BNR)  for  an  opinion  on  a  draft  Government  Emergency  Ordinance  amending  and 

supplementing Law No 253 of 16 June 2004 on settlement finality in payment and securities settlement 
systems1 and Government Ordinance No 9/2004 on certain financial collateral arrangements2 (hereinafter 

the ‘draft emergency ordinance’).  

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning  of  the  European  Union  and  the  second,  fifth  and  sixth  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  provisions3,  as  the  draft  emergency  ordinance  relates  to  means  of 

payment, payment and settlement systems and rules applicable to the financial institutions insofar as they 

materially  influence  the  stability  of  financial  institutions  and  markets.  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 ordinance 

The  main  objective  of  the  draft  emergency  ordinance  is  to  transpose  Directive  2009/44/EC  of  the 

European  Parliament  and  of  the  Council  of  6  May  2009  amending  Directive  98/26/EC  on  settlement 

finality  in  payment  and  securities  settlement  systems  and  Directive  2002/47/EC  on  financial  collateral 
arrangements as regards linked systems and credit claims4. For this purpose, it amends the two legal acts 

through  which  Directive  98/26/EC  and  Directive  2002/47/EC  have  been  implemented  in  the  Romanian 

legal system. 

1 
2  
3  
4  

Published in Monitorul Oficial al României Part One, No 566 of 28 June 2004. 
Published in Monitorul Oficial al României  Part One, No 78 of 30 January 2004. 
OJ L 189, 3.7.1998, p. 42.  
OJ L 146, 10.6.2009, p. 37. 

 
 
 
 
 
                                                 
2. 

General observations  

2.1  The  deadline  for  the  transposition  of  Directive  2009/44/EC  by  the  Member  States  was 

30 December 2010. In view thereof, the consulting authority invokes reasons  of extreme urgency 

and  asks  the  ECB  to  deliver  its  opinion  by  22  March  2011.  The  ECB  would  like  to  draw  the 

consulting  authority’s  attention  to  the  fact  that  according  to  the  second  sentence  of  Article  4  of 

Decision 98/415/EC, the ECB must be consulted ‘at an appropriate stage’ in the legislative process. 

This implies that the consultation should take place at a point in the legislative process that affords 

the ECB sufficient time to examine the draft legislative provisions and to adopt its opinion in the 

required  language  versions  and  which  also  enables  the  relevant  national  authorities  to  take  the 

ECB’s opinion into consideration before the provisions are adopted.   

2.2  The  ECB  has  no  comments  on 

the  substance  of 

the  Romanian 

transposition  of 

Directive 2009/44/EC.  

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

Done at Frankfurt am Main, 23 March 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

2