Opinion of the European Central Bank of 12 August 2013 on OTC derivatives, central counterparties and trade repositories (CON/2013/59)
Date: 2013-08-12
Institutions: European Central Bank
Subjects: Belgium, central bank, competence of the institution, financial stability, financial supervision, national law, payment system

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 12 August 2013 

on OTC derivatives, central counterparties and trade repositories  

(CON/2013/59) 

Introduction and legal basis 

On  5  July  2013,  the  European  Central  Bank  (ECB)  received  a  request  from  the  Nationale  Bank  van 

België/Banque Nationale de Belgique (NBB), acting on behalf of the Belgian Ministry of Finance, for an 

opinion on Articles 2 to 13 of a draft law implementing Regulation (EU) No 648/2012 of the European 

Parliament  and  of  the  Council  of  4  July  2012  on  OTC  derivatives,  central  counterparties  and  trade 
repositories1 (hereinafter the ‘draft law’). 

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  third,  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 provisions2, since Articles 2 to 13 of the draft law relate to the NBB, 

payment and settlement systems and the rules applicable to 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 law 

1.1   The purpose of Articles 2 to 13 of the draft law is to allocate responsibilities to the NBB and the 

Financial Services and Markets Authority (FSMA) with regard to the authorisation and supervision 

of central counterparties (CCPs) established in Belgium pursuant to Article 22 of Regulation (EU) 

No 648/2012. 

1   OJ  L  201,  27.7.2012,  p.  1.  The  full  title  of  the  draft  law  is  ‘Law  amending  the  law  of  22  February  1998  establishing  the 
organic statute of the National Bank of Belgium, the law of 2 August 2002 on the supervision of the financial sector and on 
financial services, the law of 22 March 1993 on the status and control of credit institutions, the law of 9 July 1975 on the 
control of insurance undertakings, the law of 21 December 2009 on the status of payment undertakings and electronic money 
undertakings, on the access to the activity of payment service providers, to the activity of issuance of electronic money and to 
the access to payment systems, the law of 28 April 1999 implementing the Directive 98/26/EC of 19 May 1998 on the finality 
of  settlement  in  payment  and  securities  settlement  systems  and  the  law  of  15  December  2004  on  financial  collateral  and 
providing for various tax provisions for arrangements establishing collateral arrangements and loans with respect to financial 
instruments’. 

2   OJ L 189, 3.7.1998, p. 42. 

 
 
 
 
                                                 
ECB-PUBLIC 

1.2  To this end, the draft law introduces the definition of ‘CCP’3 in the Organic Statute of the National 
Bank  of  Belgium  as  a  replacement  for  the  existing  concept  of  ‘clearing  institution’4.  With  this 

change, CCPs become subject to the NBB’s overall prudential supervision under Article 36/2 of the 
Organic Statute of the National Bank of Belgium. In parallel, the draft law5 designates the NBB as 

the  competent  authority  for  the  authorisation  and  supervision  of  CCPs  within  the  context  of 

Regulation (EU) No 648/2012. This designation is without prejudice to the powers conferred on the 

FSMA by Article 22 of the Law of 2 August 2002 on the supervision of the financial sector and on 

financial services, as amended by the draft law. 

1.3  As  the  responsible  authority  for  carrying  out  the  duties  for  the  authorisation  and  supervision  of 

CCPs  established  in  Belgium  pursuant  to  Regulation  (EU)  No  648/2012,  the  NBB  also  becomes 

responsible,  in  accordance  with  Article  22(2)  and  (3)  of  the  above-mentioned  Regulation  as 

implemented  in  the  draft  law,  for:  (a)  coordinating  cooperation  and  the  exchange  of  information 

with  the  European  Commission,  the  European  Securities  and  Market  Authority,  the  competent 

authorities of other Member States, the European Banking Authority, and the relevant members of 

the  European  System  of  Central  Banks;  and  (b)  taking  administrative  measures  and  imposing 

administrative  fines  and  penalties  where  CCPs  breach  their  obligation  under  Regulation  (EU) 

No 648/2012. On the other hand, FSMA’s responsibility is to: (a) issue recommendations to NBB 

as  regards  granting  authorisation  to  institutions  established  in  Belgium  that  plan  to  provide  CCP 

services;  (b)  deal  with  the  conflicts  of  interest  involving  CCPs;  (c)  be  consulted  by  NBB  when 

assessing the professional integrity of the directors and senior management. 

2.   General observations 

2.1 

In accordance with Decision 98/415/EC, this opinion is limited to those provisions of the draft law 

that  relate  to  the  NBB  and  that  go  beyond  harmonisation  of  national  law  with  Regulation  (EU) 

No 648/2012. 

2.2  The ECB notes that the allocation of responsibilities between the NBB and FSMA with respect to 

CCPs reflects the ‘twin-peaks’ type model of financial supervisory structures. The ECB commented 

on the allocation of responsibilities between the NBB and FSMA (including with respect to clearing 
institutions) in Opinion CON/2011/56. 

2.3  The  ECB  welcomes  the  draft  law,  as  the  NBB’s  new  tasks  complement  the  NBB’s  existing 

objective to promote the smooth operation of payment and securities settlement systems and ensure 

3  Article  2  of  the  Regulation  (EU)  No.  648/2012  defines  ‘CCP’  as  ‘a  legal  person  that  interposes  itself  between  the 
counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to 
every buyer’. 

4   Section  13  of  Article  36/1  of  the  Organic  Statute  of  the  National  Bank  of  Belgium  defines  ‘clearing  institution’  as  ‘any 
institution  that undertakes  conversion into net  debt by  means  of  novation  or  of  the  clearing  of  mutual  claims  arising  from 
transactions on financial instruments or forward exchange transactions’. 

5   As amended in paragraph 2 of Article 36/25 of the Organic Statute of the National Bank of Belgium. 
6   All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 

2 

 
                                                 
ECB-PUBLIC 

their  efficiency  and  soundness7,  in  accordance  with  Article  127(2)  of  the  Treaty  and  the  fourth 

indent of Article 3.1 and Article 22 of the Statute of the European Systems of Central Banks and 

the  European  Central  Bank  (hereinafter  ‘Statute  of  the  ESCB’),  as  well  as  the  NBB’s  tasks  of 
contributing  to  the  stability  of  the  financial  system8,  in  accordance  with  Article  127(5)  of  the 

Treaty, as mirrored in Article 3.3 of the Statute of the ESCB. 

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

Done at Frankfurt am Main, 12 August 2013. 

[signed] 

The Vice-President of the ECB 

Vítor CONSTÂNCIO 

7   Article 8 of the Organic Statute of the NBB. 
8   Article 12 of the Organic Statute of the NBB. 

3