Opinion of the European Central Bank of 5 December 2013 on means of payment and payment systems (CON/2013/84)
Date: 2013-12-05
Institutions: European Central Bank
Subjects: France, central bank, financial supervision, money, national law, payment system

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 5 December 2013 

on means of payment and payment systems 

(CON/2013/84) 

Introduction and legal basis 

On 24 October 2013, the European Central Bank (ECB) received a request from the  French Ministry of 

Economic Affairs and Finance for an opinion on draft amendments to the Monetary and Financial Code 

(COMOFI) regarding means of payment and payment systems (hereinafter the ‘draft provisions’). 

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,  third  and  fifth  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  provisions1,  as  the  draft  law  relates  to  means  of  payment,  the 

Banque de France and payment 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 provisions  

1.1  The  main  purpose of the  draft  provisions is  to  make  it  possible  for the  Banque de  France to  use 

third parties, e.g. auditing bodies, external auditors, experts registered on a list of judicial experts, 

or competent persons or authorities, to carry out the checks necessary for the performance of some 

of the Banque de France’s tasks, in accordance with the conditions laid down by a decree of the 

Conseil d’État. Such third parties may receive remuneration from the Banque de France. 

1.2  First,  one  provision  will  be  inserted  in  Article  L.141-4  of  COMOFI  relating  to  the  Banque  de 

France’s  task  pertaining  to  the  oversight  of  payment  systems,  and  its  task  of  maintaining  the 

security of clearing houses, the means of payment and the systems used to clear, settle and deliver 

financial  instruments.  These  tasks  are  referred  to  in  COMOFI  as  tasks  related  to  the  European 

System of Central Banks (ESCB). 

1  

OJ L 189, 3.7.1998, p. 42. 

 
 
 
 
                                                 
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1.3  Second, another similar provision will be inserted in Article L.525-4 of COMOFI, which relates to 

special electronic payment vouchers that are only to be used for purchasing a limited and defined 

number of categories of goods or services or to be used within a limited network of providers, and 

that  are  not  considered  electronic  money.  The  Banque  de  France  ensures  the  security  of  such 

special electronic payment vouchers. 

2. 

General observations 

2.1  Legal basis for the Eurosystem’s oversight function concerning clearing and payment systems 

2.1.1  Under  the  fourth  indent  of  Article  127(2)  of  the  Treaty  and  the  fourth  indent  of  Article  3.1  and 

Article  22  of  the  Statute  of  the  European  System  of  Central  Banks  and  of  the  European  Central 

Bank (hereinafter the ‘Statute of the ESCB’), the Eurosystem has the task of promoting the smooth 

operation of payment systems and is responsible for the oversight of clearing and payment systems. 

The aims of such oversight are to maintain systemic stability, promote efficiency and safeguard the 

transmission channel for monetary policy.  

2.1.2  In general, within the Eurosystem, oversight activities are performed by the national central banks 

(NCBs), in line with the Governing Council’s common oversight policy. This prohibits interference 

with the Eurosystem’s oversight role by any Union or national body other than central banks acting 

within the framework of the Eurosystem. 

2.2  Limits  on  and  conditions  for  entrusting  certain  activities  related  to  Eurosystem  tasks  to  third 

parties 

2.2.1  As  noted  in  previous  ECB  opinions2,  the  ECB  emphasises  the  general  principle  that  the  tasks 

assigned  to  the  Eurosystem  by  the  Treaty  and  the  Statute  of  the  ESCB  have  to  be  fulfilled 

exclusively  by  the  ECB  and  the  NCBs.  It  is  the  NCBs  that  are  responsible  for  fulfilling  the 

obligations arising from the Treaty and the Statute of the ESCB or from guidelines and instructions 

issued by the ECB. Member States cannot, therefore, entitle their NCBs to delegate competencies 

in  Eurosystem-related  tasks  to  third  parties.  An  entity  other  than  an  NCB,  even  if  entirely 

controlled  by  it,  could  only  be  entrusted  with  the  performance  of  ancillary  and  preparatory 

activities  related  to  Eurosystem  tasks  of  the  NCBs,  whilst  the  legal  responsibility  for  the 
implementation of ECB legal instruments should be retained at the NCB3. 

2.2.2  The tasks  that  have  been  assigned  by  the Treaty  and the  Statute of the  ESCB  to  the  Eurosystem 

central banks and require the exercise of discretionary powers, including taking Eurosystem policy 

decisions, and the exercise of public authority, cannot be delegated. Furthermore, activities that are 

directly  related  to  the  execution  of  core  tasks,  as  well  as  any  critical  functions  related  to 

Eurosystem tasks, must not be delegated. 

2  

3  

See  Opinions  CON/98/12,  CON/98/35  and  CON/99/20.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 
See footnote 1. 

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2.2.3  Third parties could be entrusted by an NCB with the conduct of activities that offer limited room 

for discretion, provided that the activities are of an ancillary and preparatory nature, the assessment 

of  any  discretionary  elements  remains  with  the  commissioning  NCB,  and  certain  additional 

conditions are fulfilled. 

2.2.4  The key criteria developed from the principles of Union law, the case-law of the European courts 

and previous ECB opinions in assessing whether activities of a ancillary and preparatory nature can 

be entrusted by an NCB to third parties are the following: (a) the activities entrusted to third parties 

must  relate  to  the  pure  implementation  of  public  tasks,  in  such  a  way  that  they  are  ancillary  or 

preparatory  in  nature,  and  must  not  confer  any  decision-making  power  (discretion)  to  the  third 

party/external  service  provider;  (b)  legal  responsibility  for  the  public  task  must  remain  with  the 

NCB; (c) the entrusting of activities to third parties by the NCB must not jeopardise the application 

of any relevant ECB legal instruments or policies and the third party/external service provider must 

implement  equivalent  legal  instruments  and  policies  to  those  the  NCB  must  fulfil;  (d)  the 

possibility of entrusting such activities to third parties must be provided for in law, or at least not 

specifically prohibited by the law; (e) the entrusting of activities to third parties must not prevent 

the exercise of supervisory and oversight functions by the NCB over those activities and must not 

result  in  depriving  the  NCB  of  the  necessary  systems  and  controls  to  manage  the  risks  it  faces; 

(f) the  NCB  must  have  direct  access  to  the  relevant  information  of  those  activities;  (g)  the  NCB 

must evaluate the quality of the services provided and retain the necessary expertise and resources 

to  do  so;  (h)  appropriate  measures  for  the  management  and  avoidance  of  conflicts  of  interest 

pertaining to the NCB and the third party to which the activity was entrusted must be put in place 

by  the  NCB;  (i)  the  NCB  must  take  appropriate  measures  to  ensure  that  the  third  party/external 

service  provider  complies  with  the  applicable  confidentiality  regime,  including  any  ESCB 

confidentiality  rules  and  minimum  standards,  and  the  service  provider  must  protect  any 

confidential information relating to the NCB. 

3. 

Specific observations 

3.1  The draft provisions refer to a decree of the Conseil d’État intended to lay down the conditions for 

recourse to third parties by the Banque de France. In this respect, the provision to be introduced in 

Article L.141-4 of COMOFI should be distinguished from the one to be inserted in Article L.525-4 

of COMOFI. 

3.2  As regards the provision to be introduced in Article L.141-4 of COMOFI, it is not clear what kinds 

of activities the Banque de France may entrust to third parties and whether the Banque de France 

remains responsible for the task in question. Since the tasks conferred upon the Banque de France 

in Article L.141-4 of COMOFI are Eurosystem tasks, if the Banque de France uses third parties in 

relation to them, this should only take place in relation to activities of an ancillary and preparatory 

nature that meet all of the conditions laid down above.  

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3.3  Special  electronic  payment  vouchers,  which  the  Banque  de  France  oversees  pursuant  to  Article 

L.525-4  of  COMOFI,  are  not  considered  to  be  part  of  the  Eurosystem’s  tasks.  Therefore,  the 

entrusting to third parties of activities related to special electronic payment vouchers is subject to 

the conditions stipulated under French law. 

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

Done at Frankfurt am Main, 5 December 2013. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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