Opinion of the European Central Bank of 9 January 2018 on markets in financial instruments (CON/2018/2)
Date: 2018-01-09
Institutions: European Central Bank
Subjects: Greece, central bank, directive (EU), financial instrument, investment company, national implementing measure, provision of services

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 January 2018 

on markets in financial instruments 

 (CON/2018/2) 

Introduction and legal basis 

On 3 November 2017 the  European Central Bank  (ECB) received a request from the Greek  Ministry of 

Finance for an opinion on a draft law on markets in financial instruments (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 indent of Article 2(1) of Council Decision 98/415/EC1, as 

the  draft  law  relates  to  the  Bank  of  Greece.  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  main  purpose  of  the  draft  law  is  to  implement  Directive  2014/65/EU  of  the  European 
Parliament  and  of  the  Council2  in  Greek  law.  To  this  end,  the  draft  law  also  takes  into  account 
Commission Delegated Directive (EU) 2017/5933. 

1.2  The draft law designates the Bank of Greece as one of the competent authorities responsible for 

carrying  out  certain  duties  provided  for  in  Directive  2014/65/EU  with  respect  to  credit  institutions 

that  provide  investment  and  ancillary  services  or  perform  investment  activities.  The  draft  law 

designates  the  Hellenic  Capital  Markets  Commission  as  the  competent  authority  responsible  for 

carrying  out  all  other  duties  provided  for  under  Directive  2014/65/EU  with  respect  to  both 

investment  firms  and  credit  institutions  that  provide  investment  and  ancillary  services  or  perform 

investment activities.  

1.3  Under  the  draft  law,  the  Bank  of  Greece  is  responsible  for  supervising  the  enforcement  of  the 

requirements  listed  in  Article  67  of  the  draft  law,  which  include:  (a)  governance  arrangements 

ensuring  effectiveness  and  prudent  management;  (b)  obligations  relating  to  membership  of  an 

authorised  investor  compensation  scheme;  (c)  organisational  requirements  ensuring  adequate 

policies  and  procedures;  (d)  obligations relating to the appointment of tied  agents;  (e) obligations 

1 

2  

3  

Council  Decision  98/415/EC  of  29 June  1998  on  the  consultation  of  the  European  Central  Bank  by  national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 

Directive  2014/65/EU  of  the  European  Parliament  and  of  the  Council  of  15  May  2014  on  markets  in  financial 
instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) (OJ L 173, 12.6.2014, p. 349). 

Commission  Delegated  Directive  (EU)  2017/593  of  7  April  2016  supplementing  Directive  2014/65/EU  of  the 
European Parliament and of the Council with regard to safeguarding of financial instruments and funds belonging to 
clients, product governance obligations and the rules applicable to the provision or reception of fees, commissions or 
any monetary or non-monetary benefits (OJ L 87, 31.3.2017, p. 500). 

 
 
 
 
                                                 
 
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relating  to  the  provision  of  investment  services  in  Member  States  other  than  the  home  Member 

State; (f) obligations relating to the provision of investment services through the establishment of a 

branch in a Member State other than the home Member State; and (g) obligations relating to the 

provision of investment services by credit institutions established in third countries.  

1.4  As the competent authority, powers to grant and withdraw authorisations have been conferred on 

the Bank of  Greece. These powers are in addition to those granted under Law No 4261/2014 on 

access  to  the  activity  of  credit  institutions  and  prudential  supervision  of  credit  institutions  and 
investment firms4, which implements Directive EU/2013/36 of the European Parliament and of the 
Council5,  and  the  Bank  of  Greece’s  supervisory  powers.  They  include  investigatory  powers  and 

powers  to  impose  remedies  and  administrative  sanctions  that  are  necessary  for  the  Bank  of 

Greece  to  fulfil  its  competencies  under  the  draft  law,  particularly  in  cases  where  there  are 

indications of infringement. The Bank of Greece’s investigatory powers include the power to access 

documents, carry out on-site inspections, conduct investigations and suspend the marketing or sale 

of structured deposits by credit institutions when certain conditions are met. The Bank of Greece is 

also  required  to  cooperate  and  exchange  information  with  the  Hellenic  Capital  Markets 

Commission, the European Securities and Markets Authority and with the competent authorities of 

third countries. 

1.5  Furthermore,  the  draft  law  confers  on  the  Bank  of  Greece  intervention  powers  with  respect  to 

structured  deposits 
to  Article  42  of  Regulation 
(EU) No 600/2014  of  the  European  Parliament  and  of  the  Council6  the  draft  law  designates  the 

institutions.  Pursuant 

issued  by  credit 

Bank of Greece as the competent authority responsible for prohibiting or restricting the marketing, 

distribution or sale of structured deposits by credit institutions when certain conditions are met, and 

notably where risks relating to investor protection, the orderly functioning of financial markets or the 
stability  of  the  financial  system  have  been  identified7.  Additionally,  the  draft  law  confers  on  the 

Bank  of  Greece  the  power  to  suspend  the  marketing  or  sale  of  structured  deposits  by  credit 

institutions  where  (a)  the  credit  institution  has  not  developed  or  applied  an  effective  product 

approval  process  or  otherwise  failed  to  comply  with  the  organisational  requirements  set  out  in 
Article  16(3)  of  the  draft  law8;  or  (b)  the  conditions  set  out  in  Articles  40,  41  or  42  of  Regulation 
(EU) No 600/2014 are met9. 

1.6  The  draft  law  also  designates  the  Bank  of  Greece  as  the  authority  responsible  for  granting 

certificates to persons providing investment services or performing investment activities on behalf 

of credit institutions or insurance companies to confirm that they possess the required knowledge 

and competence. The Bank of Greece is accordingly assigned a number of tasks in relation to the 

4  

5  

6  

7  
8  
9  

Νόμος  υπ’  αριθμ.  4261  «Πρόσβαση  στη  δραστηριότητα  των  πιστωτικών  ιδρυμάτων  και  προληπτική  εποπτεία 
πιστωτικών  ιδρυμάτων  και  επιχειρήσεων  επενδύσεων  (ενσωμάτωση  της  Οδηγίας  2013/36/ΕΕ),  κατάργηση  του  ν. 
3601/2007 και άλλες διατάξεις», ΦΕΚ Α 107/05.05.2014. 
Directive 2013/36/EU of  the  European  Parliament and of the Council of 26  June 2013 on access  to  the activity  of 
credit  institutions  and  the  prudential  supervision  of  credit  institutions  and  investment  firms,  amending  Directive 
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). 
Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial 
instruments and amending Regulation (EU) No 648/2012 (OJ L 173 12.6.2014, p. 84). 
See Article 67(1) of the draft law. 
See Article 67(3)(j) of the draft law. 
See Article 67(3)(k) of the draft law. 

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certification  procedure  which  include  assessing  the  eligibility  of  candidates  and  determining  the 

relevant  eligibility  criteria,  setting  out  the  examination  syllabus,  conducting  the  examinations  and 

renewing or withdrawing certification. 

1.7  The provisions of the draft law concerning the Bank of Greece enter into force on 3 January 2018. 

2. 

General observations 

2.1  This opinion does not address whether the draft law effectively implements Directive 2014/65/EU in 

Greek law. The ECB will only assess those provisions of the draft law that may impact on the role 

and tasks of the Bank of Greece as a central bank, national supervisory authority and member of 

the Eurosystem and the European System of Central Banks (ESCB). 

2.2  The  draft  law  amends  the  Bank  of  Greece’s  existing  tasks  in  respect  of  markets  in  financial 

instruments.  The  Bank  of  Greece  is  already  the  competent  authority  responsible  for  carrying  out 

certain  duties  with  regard  to  credit  institutions  that  provide  investment  and  ancillary  services  or 
perform investment activities pursuant to Law No 3606/2007 on markets for financial instruments10 

(hereinafter  ‘Law  No  3606/2007’),  which  transposed  Directive  2004/39/EC  of  the  European 
Parliament and of the Council11 into the Greek legal order. These duties are of a similar nature to 

those  conferred  upon  the  Bank  of  Greece  by  the  draft  law  and  include:  (a)  supervision  of  the 

enforcement  of  organisational  requirements  and  requirements  relating  to  the  prevention  and 

management  of  conflicts  of  interest,  the  membership  of  an  authorised  investor  compensation 

scheme, the trading process and the finalisation of transactions in a multilateral trading facility and 
the  appointment  of  tied  agents12;  (b)  the  duty  to  cooperate  with  the  Hellenic  Capital  Markets 
Commission,  as  the  competent  authority  for  the  supervision  of  investment  firms13;  and  (c)  the 

power to impose administrative sanctions for the violation of provisions falling within its supervisory 
competence14.  Thus,  the  conferral  upon  the  Bank  of  Greece  under  the  draft  law  of  the  power  of 

authorisation and supervisory powers does not amount to a conferral of genuinely new tasks in the 

area of markets in financial instruments.  

The ECB notes that the Bank of Greece’s existing tasks under Law No 3606/2007 also include the 

certification  of  the  financial  knowledge  of  persons  providing  investment  services  or  performing 
investment activities on behalf of credit institutions15  and that these tasks are specified in greater 

detail in the draft law. The draft law provides that the Bank of Greece is responsible for certifying 

the  financial  knowledge  of  persons  providing  investment  services  or  performing  investment 

activities  on  behalf  of  credit  institutions  or  insurance  companies  and  remains  responsible  for  the 

renewal of a certificate, irrespective of the kind of company where the person seeking renewal of 

that  certificate  was  last  employed.  The  draft  law  also  details  the  composition  of  the  Examination 

10  
11  

12  
13  
14  
15  

Νόμος υπ’ αριθμ. 3606 «Αγορές χρηματοπιστωτικών μέσων και άλλες διατάξεις», ΦΕΚ Α 195/17.08.2007. 
Directive  2004/39/EC  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  on  markets  in  financial 
instruments  amending  Council  Directives  85/611/EEC  and  93/6/EEC  and  Directive  2000/12/EC  of  the  European 
Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2004, p. 1). 
See Article 59 of Law No 3606/2007. 

See Article 60 of Law No 3606/2007. 
See Article 61 of Law No 3606/2007. 

See Article 14 of Law No 3606/2007. 

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Committee  responsible  for  conducting  the  relevant  examinations  and  outlines  the  duties  of  its 

members.  In  addition,  the  draft  law  provides  that  the  following  are  to  be  determined  by  a  joint 

decision of the Bank of Greece and the Hellenic Capital Markets Commission: (a) requirements for 

participating in the examinations for those persons providing investment services on behalf of credit 

institutions or insurance companies; and (b) the conditions governing the renewal or withdrawal of 

certifications and the conditions for outsourcing the conduct of examinations to third parties. Thus, 

the draft law does not confer on the Bank of Greece genuinely new tasks in this field. The draft law 

does  not  specify  the  resources  to  be  used  by  the  Bank  of  Greece  in  performing  its  financial 

education tasks, as amended by the draft law, nor does it provide an estimate of the direct costs 

likely to be incurred in the process. At the same time, the draft law provides that a joint decision of 

the Bank of Greece and the Hellenic Capital Markets Commission will determine the requirements 

for  participating  in  the  certification  examinations  and  set  the  fees  of  the  three  members  of  the 

Examination Committee, which will be borne by the budgets of the Bank of Greece and the Hellenic 

Capital  Markets  Commission.  In  this  respect,  the  ECB  notes  that  the  existing  financial  education 

tasks  of  the  Bank  of  Greece  under  Law  No  3606/2007  are  remunerated  by  means  of  a  fee  of 
EUR 100 per participant in the certification examinations. The payment of this fee forms part of the 

requirements  for  participating  in  the  certification  examinations  and  was  established  pursuant  to  a 

joint  decision  of  the  Bank  of  Greece  and  the  Hellenic  Capital  Markets  Commission  adopted  by 
virtue  of  Law  No  3606/2007  in  200916  and  replaced  in  201517.  The  ECB  understands  that  the 

remuneration of the financial education tasks of the Bank of Greece will continue to be governed by 

the existing joint decision of the Bank of Greece and the Hellenic Capital Markets Commission until 

a new joint decision is issued under the draft law. 

2.3  As  noted  in  paragraph  1.5  the  draft  law  confers  new  tasks  upon  the  Bank  of  Greece  which  are 

derived  from  its  new  product  intervention  powers  relating  to  the  marketing,  distribution  or  sale  of 

structured deposits by credit institutions. Where a new task is conferred on a national central bank 

(NCB)  of  the  ESCB  it  must  be  assessed  against  the  prohibition  of  monetary  financing  under 

Article 123  of  the  Treaty.  For  the  purposes  of  that  prohibition,  Article  1(1)(b)(ii)  of  Council 
Regulation  (EC)  No  3603/9318  defines  ‘other  type  of  credit  facility’  as,  inter  alia,  ‘any  financing  of 

the public sector’s obligations vis-à-vis third parties’.  

2.4  Ensuring that Member States implement a sound budgetary policy is one of the key objectives of 
the  monetary  financing  prohibition,  which  may  not  be  circumvented19.  In  view  of  this,  the  task  of 

financing measures, which are normally the responsibility of the Member States and funded from 

their budgetary sources rather than by the NCBs, must not be entrusted to NCBs. To decide what 

constitutes  financing  of  the  public  sector’s  obligations  vis-à-vis  third  parties,  which  can  be 

16  

17  

18  

19  

Kοινή  απόφαση  της  Εκτελεστικής  Επιτροπής  της  Τράπεζας  της  Ελλάδος  και  της  Επιτροπής  Κεφαλαιαγοράς 
Πιστοποίηση επαγγελματικής επάρκειας υπαλλήλων και στελεχών πιστωτικών ιδρυμάτων αναφορικά με την παροχή 
επενδυτικών υπηρεσιών (ΦΕΚ Β/1168/16.06.2009). 
Kοινή  απόφαση  της  Τράπεζας  της  Ελλάδος  και  της  Επιτροπής  Κεφαλαιαγοράς  υπ’  αριθ.  4/505/3.4.2009 
«Πιστοποίηση  καταλληλότητας  προσώπων  απασχολουμένων  σε  πιστωτικά  ιδρύματα  που  παρέχουν  υπηρεσίες 
σύμφωνα με το άρθρο 14 του ν.3606/2007» (ΦΕΚ Β/2452/13.11.2015). 

Council  Regulation  (EC)  No  3603/93  of  13  December  1993  specifying  definitions  for  the  application  of  the 
prohibitions referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). 
Article  123  of  the  Treaty  also  serves  the  objective  of  maintaining  price  stability  and  reinforces  central  bank 
independence. 

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translated as the  provision of central bank financing outside the scope of central bank tasks, it is 

necessary  to  carry  out  on  a  case-by-case  basis  an  assessment  of  whether  the  task  to  be 

undertaken  by  an  NCB  is  a  central  bank  task  or  a  government  task,  i.e.  a  task  within  the 

responsibility  of  the  Member  States.  In  other  words,  adequate  safeguards  must  be  in  place  to 

ensure that circumventions of the objective of the monetary financing  prohibition of maintaining a 

sound budgetary policy of Member States do not take place. 

2.5  As part of its discretion in the exercise of its duty, on the basis of Article 271(d) of the Treaty and 

Article 35.6 of the Statute of the European System of Central Banks and of the European Central 

Bank (hereinafter the ‘Statute of the ESCB’), to ensure that NCBs honour the obligations laid down 

by the Treaty, the Governing Council has endorsed safeguards of that kind in the form of criteria for 

determining what may be seen as falling within the scope of a public sector’s obligation within the 

meaning of Article 1(1)(b)(ii) of Regulation (EC) No 3603/93 or, in other words, what constitutes a 

government task as follows:  

First, central bank tasks are in particular those tasks that are  related to the tasks that have been 

conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks are 

mainly defined in Article 127(2), (5) and (6) and Article 128(1) of the Treaty, as well as Article 22 

and Article 25.1 of the Statute of the ESCB.  

Second, as Article 14.4 of the Statute of the ESCB allows NCBs to perform ‘other functions’, new 

tasks, i.e. tasks that are not related to tasks that have been conferred upon the ECB and the NCBs, 

are  not  precluded  per  se.  However,  new  tasks  that  are  undertaken  by  an  NCB  and  which  are 

atypical of NCB tasks or which are clearly discharged on behalf of and in the exclusive interest of 

the government or of other public sector entities should be considered government tasks.  

Third, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly 

on  behalf  of  and  in  the  exclusive  interest  of  the  government  or  other  public  sector  entities  is  the 

impact of the task on the institutional, financial and personal independence of that NCB.  

In particular, the following aspects should be taken into account:  

(a)  whether  the  performance  of  the  new  task  creates  conflicts  of  interest  with  existing  central 

bank tasks which are not adequately addressed and does not necessarily complement those 

existing  central  bank  tasks.  If  a  conflict  of  interest  arises  between  existing  and  new  tasks, 

sufficient  safeguards  to  mitigate  that  conflict  should  be  in  place.  The  complementarity 

between a new task and the existing central bank tasks should not be interpreted broadly, so 

as  to  lead  to  the  creation  of  an  indefinite  chain  of  ancillary  tasks.  Such  complementarity 

should also be examined in relation to the financing of those tasks; 

(b)  whether without new financial resources the performance of the new task is disproportionate 

to  the  NCB’s  financial  or  organisational  capacity  and  may  have  a  negative  impact  on  the 

capacity to perform properly the existing central bank tasks; 

(c)  whether the  performance  of the  new  task fits into  the institutional set-up  of the  NCB in  the 

light of central bank independence and accountability considerations;  

(d)  whether the performance of the new task harbours substantial financial risks; 

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(e)  whether the performance of the new task exposes the members of the NCB decision-making 

bodies  to  political  risks  which  are  disproportionate  and  may  also  have  an  impact  on  their 

personal  independence  and,  in  particular,  on  the  guarantee  of  term  of  office  set  out  in 

Article 14.2 of the Statute of the ESCB. 

3. 

Conferral of new tasks on the Bank of Greece 

3.1  On the basis of the criteria set out in paragraph 2.5, paragraphs 3.2 to 3.10 below assess whether 

the Bank of Greece’s new tasks deriving from its new product intervention powers are in line with 

the monetary financing prohibition. 

3.2  New  tasks  related  to  the  tasks  conferred  upon  the  ECB  and  the  NCBs  by  the  Treaty  and  the 

Statute of the ESCB 

Tasks deriving from the exercise of product intervention powers are not among the central banking 

tasks  listed  in  Article  127(2)  or  (5)  of  the  Treaty  or  otherwise  conferred  upon  the  NCBs  by  the 

Statute of the ESCB. In addition, the conferral on the Bank of Greece of product intervention tasks 

involving  assessments  relating  to  investor  protection,  the  orderly  functioning  of  financial  markets 

and  the  stability  of  the  financial  system  goes  beyond  the  scope  of  its  existing  tasks  both  in  its 

capacity as the national supervisory authority and macroprudential authority and as the competent 

authority in respect of credit institutions that provide investment and ancillary services pursuant to 

Law  No  3606/2007.  The  objectives  of  the  Bank  of  Greece’s  prudential  supervisory  tasks  are  to 

enhance the stability and effectiveness of the credit system and of the financial sector in general, 

and  in  this  context  the  Bank  of  Greece  carries  out  macroprudential  tasks  with  a  view  to 
strengthening the resilience of the financial system and decreasing the build-up of systemic risks20. 

Furthermore,  Law  No  3606/2007  currently  implements  a  supervisory  model  involving  a  functional 

division  of  responsibilities  between  the  Bank  of  Greece  and  the  Hellenic  Capital  Markets 

Commission  with  regard  to  supervision  of  the  financial  sector.  This  model  is  upheld  by  the  draft 

law,  which  confers  on  the  Bank  of  Greece  certain  duties  with  regard  to  credit  institutions  that 

provide  investment  and  ancillary  services  or  carry  out  investment  activities.  The  remaining  tasks 

are  assigned  to  the  Hellenic  Capital  Markets  Commission  and  include,  in  particular,  tasks 

concerning  investor  protection  and  the  transparency  and  integrity  of  the  market.  The  ECB  has 
positively assessed this supervisory model  in previous opinions21, taking into consideration that it 

acknowledges the distinct character of the goals of financial stability and investor protection, while 

recognising the complementarity of these goals and the need for the authorities to which they are 

entrusted  to  pursue  them  consistently  while  acting  in  close  cooperation  with  one  another.  In 

conclusion,  although  the  new  tasks  conferred  on  the  Bank  of  Greece  relate  to  credit  institutions, 

which are  entities supervised  by  the Bank  of Greece, they  do  not form part  of either the Bank  of 

Greece’s existing prudential supervisory tasks or macroprudential tasks. These new tasks include 

prohibiting  or  restricting  the  marketing,  distribution  or  sale  of  structured  deposits  by  credit 

institutions where the conditions set out in Article 42 of Regulation (EU) No 600/2014 are met and 

20  
21  

See Article 55A of the Statute of the Bank of Greece. 
See  paragraph  2.2  of  Opinion  CON/2007/17  and  paragraph  4  of  Opinion  CON/2004/21.  All  ECB  opinions  are 
published on the ECB’s website at www.ecb.europa.eu. 

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suspending  the  marketing  or  sale  of  structured  deposits  by  credit  institutions  where  the  credit 

institution has failed to comply with organisational requirements or where the conditions set out in 

Articles  40,  41  or  42  of  Regulation  (EU)  No  600/2014  are  met.  The  assessment  of  credit 

institutions’ compliance with organisational requirements and the imposition of sanctions in case of 

infringement of these requirements is a task related to the Bank of Greece’s prudential supervisory 

tasks.  However,  the  assessment  of  whether  the  conditions  set  out  in  Articles  40,  41  and  42  of 

Regulation (EU) No 600/2014 are met requires expertise relating to investor protection, the orderly 

functioning of financial markets and the stability of the financial system, which do not fall within the 

exclusive competence of the Bank of Greece. Consequently, a careful assessment of the conferral 

of these tasks on the Bank of Greece is required in  order to determine whether they constitute a 

government task and whether the related funding gives rise to monetary financing concerns. 

3.3  Tasks which are atypical of NCB tasks 

Directive  2014/65/EU  and  Regulation  (EU)  No  600/2014  grant  Member  States  wide  discretion  in 

determining  the  competent  authority  for  the  performance  of  the  product  intervention  tasks  which 

involve  an  assessment  of  whether  the  conditions  set  out  in  Articles  40,  41  and  42  of  Regulation 
(EU) No 600/2014 are met22. The ECB considers that the new product intervention tasks involving 

assessments  relating  to  investor  protection,  the  orderly  functioning  of  financial  markets  and  the 

stability  of  the  financial  system  conferred  on  the  Bank  of  Greece  correspond  more  closely  to 

investor  protection  tasks  than  to  the  prudential  supervisory  and  macroprudential  tasks  that  are 

currently carried out by the Bank of Greece. It is therefore necessary to analyse whether investor 

protection  tasks  are  typical  tasks  that  are  also  undertaken  by  other  NCBs  of  the  ESCB.  In  this 

respect,  the  ECB  notes  that  although  the  majority  of  NCBs  of  the  ESCB  have  thus  far  not  been 

assigned any tasks under Directive 2004/39/EC, including investor protection tasks, there are five 
Member  States23  in  which  the  NCBs  perform  all  tasks  under  Directive  2004/39/EC,  including 
investor protection tasks24. Consequently, the new tasks conferred on the Bank of Greece are not 

atypical for an NCB of the ESCB. 

3.4 

Impact of the tasks on the independence of the Bank of Greece 

The impact of the new tasks on the institutional, financial and personal independence of the Bank 

of Greece must also be taken into account. 

3.5  Extent to which  the performance  of the  new task creates conflicts of interest with  existing central 

bank tasks 

No  apparent  conflicts  of  interest  with  other  existing  central  bank  tasks  arise  from  the  Bank  of 

Greece’s product intervention tasks. 

3.6  Extent to which the performance of the new task places a disproportionate burden on the Bank of 

Greece’s financial or organisational capacity 

22  
23  
24  

See Articles 4(1)(26) and 67 of Directive EU/2014/65 and Article 2(1)(18) of Regulation (EU) No 600/2014. 
The Czech Republic, Hungary, Ireland, Lithuania and Slovakia. 

See  ‘List  of  competent  authorities  to  carry  out  the  duties  provided  for  by  the  Directive  2004/39/EC  on  Markets  in 
Financial Instruments (MiFID I) as required by Article 48(1) of MiFID I and delegation of part of those duties under 
Article 48(2) of MiFID’ (last update 3 February 2016), published by the European Securities and Markets Authority, 
available at www.esma.europa.eu. 

7 

                                                 
ECB-PUBLIC 

The  principle  of  financial  independence  requires  that  Member  States  do  not  put  their  NCBs  in  a 

position where they have insufficient financial resources to carry out both their ESCB-related tasks 

and  their  national  tasks,  from  an  operational  and  financial  perspective.  Furthermore,  when 

allocating specific new tasks to NCBs, each NCB concerned should have additional financial and 

human resources at its disposal to ensure that the tasks can be carried out  without impacting on 

the  NCB’s  operational  or  financial  capacity  (including  sufficient  human  resources)  to  perform  its 

ESCB  tasks.  In  order  to  ensure  that  the  Bank  of  Greece’s  capacity  to  perform  its  ESCB-related 

tasks  is  not  impacted,  the  Bank  of  Greece  must,  therefore,  be  in  a  position  to  avail  itself  of  the 

necessary  resources,  including  personnel,  for  assessing  whether  the  conditions  set  out  in 
Articles 40, 41 and 42 of Regulation (EU) No 600/2014 are met under the draft law25. The draft law 

does not specify the resources to be used by the Bank of Greece in performing its new tasks, nor 

does it provide an estimate of the direct costs likely to be incurred in the process. Thus, it cannot 

be excluded that the new tasks will impact on the Bank of Greece’s regular budget.  

3.7  Extent to which performance of the new task fits into the Bank of Greece’s institutional set-up, in 

the light of the principles of central bank independence and accountability 

Although the draft law deviates from the regime currently in force, under which investor protection 

tasks and tasks relating to the transparency and integrity of the market under Directive 2004/39/EC 

are conducted by the Hellenic Capital Markets Commission, given the complementarity of the new 

product  intervention  tasks  with  the  Bank  of  Greece’s  existing  prudential  supervisory  and 

macroprudential tasks, they appear to broadly fit into the Bank of Greece’s institutional set-up.  

3.8  Extent to which the performance of tasks harbours substantial financial risks 

The draft law does not directly address the Bank of Greece’s potential liability in the event of any 

legal  action,  application  or  other  legal  proceedings  for  damages  in  relation  to  the  exercise  of,  or 

failure  to  exercise,  its  product  intervention  powers  under  the  draft  law.  In  the  absence  of  any 

provision  in  the  draft  law  excluding  the  Bank  of  Greece’s  liability  in  performing  the  new  product 

intervention  tasks  under  the  draft  law,  the  Bank  of  Greece  could  potentially  be  held  liable  for 

damages in accordance with the Greek liability rules applicable to the Bank of Greece. 

3.9  Extent  to  which  the  performance  of  the  new  tasks  exposes  members  of  the  Bank  of  Greece’s 

decision-making  bodies  to  disproportionate  political  risks  and  has  an  impact  on  their  personal 

independence 

The  performance  of  the  new  product  intervention  tasks  does  not  appear  to  expose  the  Bank  of 

Greece’s decision-making bodies to any disproportionate political risk or to have an impact on their 

personal  independence.  The  new  task  appears  to  be  complementary  to  the  Bank  of  Greece’s 

existing macroprudential and prudential supervisory tasks, which aim at enhancing the stability and 

effectiveness of the credit system and of the financial sector in general, strengthen the resilience of 

the financial system and decrease the build-up of systemic risks. 

3.10  Conclusion regarding the compatibility of the draft law with the prohibition on monetary financing 

The new tasks relating to the assessment of whether the conditions set out in Articles 40, 41 and 

42 of Regulation (EU) No 600/2014 conferred on the Bank of Greece could in principle be regarded 

25  

See paragraph 4.7 of Opinion CON/2016/34. 

8 

                                                 
ECB-PUBLIC 

as  central  banking  tasks  based  on  the  understanding  that  they  complement  the  prudential 

supervisory and macroprudential tasks currently performed by Bank of Greece and are not atypical 

for NCBs of the ESCB. However, it is noted that the assessment of whether the conditions set out 

in  Articles  40,  41  and  42  of  Regulation  (EU)  No  600/2014  are  met  requires  expertise  in  investor 

protection, the orderly functioning of financial markets and the stability of the financial system, none 

of which fall within the exclusive competence of the Bank of Greece. Furthermore, the assignment 

of  these  tasks  to  the  Bank  of  Greece  deviates  from  the  regime  currently  in  force,  under  which 

investor  protection  tasks  and  tasks  relating  to  the  transparency  and  integrity  of  the  market  under 

Directive 2004/39/EC are conducted by the Hellenic Capital Markets Commission. Additionally, the 

conferral  of  new  tasks  is  not  accompanied  by  an  estimate  of  the  direct  costs  that  the  Bank  of 

Greece is likely to incur in the performance of these tasks, thereby creating uncertainty with regard 

to the additional financial burden imposed on the Bank of Greece in undertaking these tasks. The 

ECB therefore recommends that the consulting authority take these considerations into account in 

its  decision  on  whether  to  confer  the  new  product  intervention  tasks  on  the  Bank  of  Greece.  In 

particular the consulting authority should consider whether the new product intervention tasks could 

rather be allocated to the Hellenic Capital Markets Commission or whether it would be appropriate 

to introduce a consultation procedure between the two competent authorities.  

4. 

The Bank of Greece’s existing tasks relating to the certification of financial knowledge 

4.1  Regarding  the  Bank  of  Greece’s  tasks  relating  to  the  certification  of  the  financial  knowledge  of 

persons  providing  investment  services  or  performing  investment  activities  on  behalf  of  credit 

institutions or insurance companies, the ECB understands that under the draft law the certification 

of financial knowledge is a mandatory requirement for a large number of individuals employed by 

credit institutions providing investment services or performing investment activities.  

4.2  The ECB was not consulted on Law No 3606/2007, pursuant to which these tasks were originally 

conferred upon the Bank of Greece. As previously noted by the ECB, the supervision of financial 
education  is  not  among  the  central  banking  tasks  listed  in  the  Treaties26.  These  tasks  could  be 

regarded  as  complementary  to  the  prudential  supervisory  and  macroprudential  tasks  currently 

performed  by  the  Bank  of  Greece,  in  the  light  of  its  contribution  to  the  objective  of  ensuring  that 

individuals employed by credit institutions providing investment services or performing investment 

activities have adequate professional qualifications. Furthermore, they do not appear to be atypical 
for NCBs of the ESCB27. However, ensuring the sound provision of specialised financial education 

forms  part  of  the  educational  policies  of  the  State.  In  this  respect,  these  tasks  would  be 

administered  at  least  in  part  on  behalf  of  and  in  the  interest  of  the  government  which  requires 

taking into account the prohibition of monetary financing. Moreover, the draft law does not provide 

an  estimate  of  the  additional  financial  burden  that  is  expected  to  be  imposed  on  the  Bank  of 

Greece in  undertaking these tasks or specify the resources to be used by the  Bank of Greece in 

performing its new tasks, so as to ensure that these tasks can be carried out without impacting on 

26  
27  

See paragraph 3.4 of Opinion CON/2017/43.  
See paragraph 3.2 of Opinion CON/2017/43. 

9 

 
                                                 
ECB-PUBLIC 

the  Bank  of  Greece’s  operational  or  financial  capacity  (including  sufficient  human  resources)  to 
perform its ESCB tasks28. The ECB therefore recommends that the consulting authority take these 

considerations  into  account  when  reviewing  the  Bank  of  Greece’s  existing  tasks  relating  to  the 

certification of financial knowledge by means of the draft law, having due regard to the fact that the 

Bank of Greece should be able to avail itself of sufficient  resources  for the performance  of these 

tasks, including, in this context, being adequately remunerated for such tasks.  

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

Done at Frankfurt am Main, 9 January 2018. 

[signed] 

The President of the ECB 

Mario DRAGHI 

28  

See paragraphs 3.3.2 and 3.4 of Opinion CON/2017/43. 

10