Introductory text

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty establishing the European Community (hereinafter referred to as the Treaty) and in particular to Article 110(3) thereof, to the Statute of the European System of Central Banks and of the European Central Bank (hereinafter referred to as the Statute) and in particular to Articles 34.3 and 19.1 thereof, and to Council Regulation (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions^f1 (hereinafter referred to as the Council Regulation) and in particular to Article 6(2) thereof;

Whereas:

according to Article 34.3 of the Statute, in conjunction with Article 43.1 of the Statute, paragraph 8 of Protocol No 25 on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland and paragraph 2 of Protocol No 26 on certain provisions relating to Denmark, this Regulation shall not confer any rights or impose any obligations on a non-participating Member State;

the Council Regulation has established the limits and conditions under which the European Central Bank (ECB) is entitled to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions;

Article 6(2) of the Council Regulation provides the ECB with the regulatory power to specify the arrangements whereby sanctions may be imposed in accordance with the Council Regulation;

other Council or ECB Regulations may provide for specific sanctions in specific fields and may refer to this Regulation for the principles and procedures relating to the imposition of such sanctions;

when carrying out the procedure to determine the applicable sanction, the ECB must ensure the widest possible respect of the rights of defence of third parties, in accordance with the general principles of law and the case law of the Court of Justice of the European Communities on the matter, in particular existing case law concerning the inquiry powers of the European Commission in the field of competition;

there are no legal obstacles to the exchange of information within the European System of Central Banks (ESCB) relating to the detection of an infringement of ECB Regulations or Decisions;

the principle of ne bis in idem must be respected as regards the initiation of infringement procedures;

the rules governing the powers of the ECB and the competent national central bank in the framework of the infringement procedure must ensure the effective conduct of a thorough investigation of an alleged infringement, while at the same time providing for a high level of protection of the rights of defence of the undertaking concerned and the confidentiality of the infringement procedure;

assistance by the authorities of the Member States may be required to ensure the effective exercise of the powers of the ECB and of the competent national central bank to carry out the infringement procedure;

the undertaking concerned shall have the right to be heard once the inquiry stage, if any, of the infringement procedure has been completed and once it has received the factual results of the inquiry and the notice of objections;

an infringement procedure shall be carried out subject to the principles of confidentiality and of professional secrecy; confidentiality or professional secrecy shall not affect the rights of defence of the undertaking concerned;

a decision on an infringement may be subject to further review by the Governing Council of the ECB; the procedural conditions under which such further review shall take place must be established;

for the purposes of enhancing the transparency and the effectiveness of its powers to impose sanctions, the ECB may decide to publish its final decisions regarding sanctions or any information relating thereto; in view of the specific features of financial markets, publication of a decision to impose a sanction shall be an exceptional measure which shall only be taken by the ECB after due consideration of the circumstances of the specific case, the likely effects of such a decision on the reputation of the undertaking concerned and the legitimate business interests of the latter; such a decision to publish must respect the principle of non-discrimination and guarantee a level playing-field; in this context, consultation with the relevant supervisory authorities prior to taking a decision to publish is desirable; the publication of a decision to impose a sanction shall in any event not disclose any information of a confidential nature;

a decision to impose a pecuniary obligation is to be enforced in accordance with Article 256 of the Treaty; whereas national central banks may be delegated to adopt all measures which are necessary to that end;

for the sake of sound and efficient administration, it appears appropriate to provide for a simplified infringement procedure for the penalisation of minor infringements;

this Regulation shall apply to cases of non-compliance foreseen in Article 7(1) of Council Regulation (EC) No 2531/98 of 23 November 1998 concerning the application of minimum reserves by the European Central Bank^f2 (hereinafter referred to as the Council Regulation on minimum reserves) within the limits and conditions set out by the same Article 7(2); the particular features of cases of non-compliance with minimum reserve requirements as laid down in Article 7(1) of the Council Regulation on minimum reserves warrant the adoption of a specific legal regime which provides for an expeditious procedure for the imposition of sanctions while, at the same time, not violating the rights of defence of the undertaking concerned;

the ECB shall act in accordance with the Council Regulation and this Regulation in exercising the powers laid down in Article 7 of Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the European Central Bank^f3,

HAS ADOPTED THIS REGULATION: