Regulation (EU) 2022/1917 of the European Central Bank of 29 September 2022 on infringement procedures in cases of non-compliance with statistical reporting requirements and repealing Decision ECB/2010/10 (ECB/2022/31)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 132(3) thereof,

Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular Articles 5 and 34 thereof,

Having regard to Council Regulation (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions (1), and in particular Article 6(2) thereof,

Having regard to Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the European Central Bank (2), and in particular Article 7 thereof,

Whereas:

(1) The European Central Bank (ECB) may impose sanctions on reporting agents pursuant to Article 7(1) of Regulation (EC) No 2533/98 and should establish a framework to further specify the arrangements for the imposition of such sanctions in accordance with Article 6(2) of Regulation (EC) No 2532/98. It is therefore appropriate to determine the procedures according to which such sanctions should be applied.

(2) In order to reduce the administrative burden, such procedures should be harmonised as far as possible with existing procedural rules. The infringement and enforcement procedures in this Regulation should therefore take into account European Central Bank Regulation (EC) No 2157/1999 (ECB/1999/4) (3) and Articles 3 and 4 of Council Regulation (EC) No 2532/98. Article 3 of Regulation (EC) No 2532/98 provides that the ECB, or the national central bank (NCB) of the Member State in whose jurisdiction the alleged infringement has occurred, may initiate an infringement procedure, acting on their own initiative or on the basis of a motion to that effect addressed to the ECB by the relevant NCB, or, addressed to the relevant NCB by the ECB, respectively.

(3) Regulation (EC) No 2157/1999 (ECB/1999/4) ensures that the principle of ne bis in idem is respected with regard to infringement procedures and provides that no more than one infringement procedure may be initiated against the same undertaking based on the same facts. For this purpose, no decision on whether to initiate an infringement procedure should be taken by the ECB or by the competent NCB until they have informed and consulted with one another. Likewise no decision on whether to initiate an infringement procedure should be taken by the ECB or by the competent NCB until the competent NCB has informed the national competent authority (NCA), which collects statistical information and transmits such information to the competent NCB on the basis of local cooperation arrangements. Similarly, in cases where supervisory information is used to meet statistical reporting requirements, coordination with the Single Supervisory Mechanism (SSM) may be necessary prior to initiating an infringement procedure or imposing a sanction.

(4) Regulation (EC) No 2157/1999 (ECB/1999/4) also sets out the procedure for the submission of a proposal by the independent investigating unit of the ECB or by the competent NCB to the Executive Board of the ECB for the purposes of determining whether the reporting agent concerned has committed an infringement and specifying the amount of the sanction to be imposed, and allows for a simplified infringement procedure for the sanctioning of minor infringements.

(5) It is necessary to ensure a consistent approach towards the imposition of sanctions in the various statistical fields, to clearly define the roles of the ECB and NCBs in infringement procedures, and to ensure that all procedural provisions concerning the initiation of an infringement procedure and the imposition of a sanction in the area of statistics are clearly defined, in the interests of ensuring due process and protecting the rights of the reporting agents concerned.

(6) To ensure equal treatment of reporting agents, the European System of Central Banks (ESCB) should adopt a harmonised approach to the elements to be taken into account when monitoring compliance with statistical reporting requirements and assessing alleged infringements, to the infringement procedure itself, and to the calculation and imposition of sanctions for infringements of the reporting requirements. For this reason, it is also important to ensure that repeated cases of alleged infringements of any of the reporting requirements of the same ECB regulation or decision should be monitored and reported to the ECB or the competent NCB, as the case may be.

(7) It is also necessary to establish harmonised rules for the application of local cooperation arrangements where the competent NCB transmits statistical information to the ECB which it has collected from an NCA, rather than directly from the reporting agent. Local cooperation arrangements should not, in any way, operate to alter or limit the duty of the reporting agent to comply with its statistical reporting requirements under ECB regulations or decisions. The legal framework on the sanctioning of infringements of the statistical reporting requirements is fully applicable in such cases. There should, however, be sufficient communication between the competent NCB and the relevant NCA regarding the measures that need to be taken in accordance with this framework, in order to ensure compliance with the principle of ne bis in idem.

(8) With the exception of cases of infringements of the statistical reporting requirements of Regulation (EU) No 1333/2014 of the European Central Bank (ECB/2014/48) (4), for which remedial plans are considered not to be suitable to remedy alleged infringements in a timely manner due to the high frequency of reporting of the relevant statistical information, and cases of serious misconduct, it may be possible and appropriate to resolve alleged infringements through cooperation with the reporting agent. Accordingly, the possibility of agreeing on a remedial plan, between the competent NCB or the ECB and the reporting agent, should be facilitated. That remedial plan could also specify, inter alia, the methodologies, processes, resources, and personnel by which the reporting agent proposes to remediate each alleged infringement, the review and oversight processes that the reporting agent will employ for the remediation and the procedural improvements to reduce the likelihood of the recurrence of infringements by the reporting agent.

(9) At the same time, in order to reduce the administrative burden and take account of the practical application of an infringement procedure, infringement procedures in cases of alleged infringements not considered as cumulative alleged infringements should be initiated as considered appropriate, taking into account the relevant circumstances of the specific case.

(10) As the ESCB is guided by the principle of proportionality, it is appropriate to take into account the potential circumstances which may be considered to be beyond the reporting agent’s control and to provide for an exemption to the initiation of the infringement procedure in such circumstances. Such an exemption should only apply to those reporting agents that have taken all reasonable efforts to avert any infringement of the reporting requirements. In addition, outsourcing by reporting agents of certain activities relevant for the fulfilment of their reporting obligations or difficulties with maintaining or upgrading their IT infrastructure should not, in itself, be considered to amount to circumstances beyond the reporting agent’s control. Equally, the competent Eurosystem central bank should not consider circumstances beyond the reporting agent’s control in cases of serious misconduct.

(11) For reasons of cost-efficiency and in order to reduce the administrative burden, an infringement procedure should not be initiated below the potential minimum fine amounts indicated in this Regulation. Nonetheless, once initiated, fine amounts below those indicated in this Regulation may be imposed.

(12) A harmonised approach should apply to all statistical reporting requirements laid down in ECB regulations or decisions. In order to allow sufficient time for reporting agents to adapt to the new reporting requirements, the power to impose sanctions should not be exercised by the ECB for a period of 12 months after the reporting obligation first arises pursuant to an applicable ECB regulation or decision. It is also necessary to provide that amendments to the reporting requirements which change the underlying conceptual framework or affect the reporting burden should be considered substantive for the purposes of transitional arrangements. No transitional period should apply to cases of serious misconduct.

(13) In order to harmonise infringement procedures for statistical reporting requirements, and ensure transparency, it is appropriate to adopt a Regulation establishing a harmonised framework in which sanctions may be imposed on reporting agents in cases of non-compliance with statistical reporting requirements. It is therefore necessary to repeal Decision ECB/2010/10 (5). However, in order to ensure continuity and clarity, Decision ECB/2010/10 should continue to apply to alleged infringements which occur prior to the relevant date of application of this Regulation.

(14) For the same reasons, it is appropriate to provide that the competent NCBs and the ECB should continue to comply with the requirements of Decision ECB/2010/10 in cases of alleged infringements which occur prior to the relevant date of application of this Regulation, including in cases of repeated non-compliance where one or more instances of non-compliance occur before and after the relevant date of application of this Regulation.

(15) In order to allow NCBs sufficient time to adjust to the procedural and technical changes to be introduced by the new harmonised framework set out in this Regulation, it should not apply for a period of 18 months from the date of its entry into force. However, it is suitable and appropriate to apply this Regulation more promptly for non-compliance with the statistical reporting requirements under Regulation (EU) No 1333/2014 (ECB/2014/48) because it is critical to receive timely, accurate and complete statistical information for the performance of the ECB’s tasks in the field of monetary policy, and failure to comply with these statistical reporting requirements can significantly hinder the performance of such tasks. This Regulation should therefore apply three months following the date of its entry into force in cases of non-compliance with the statistical reporting requirements under Regulation (EU) No 1333/2014 (ECB/2014/48),

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

This Regulation establishes a harmonised framework in which sanctions may be imposed on reporting agents for non-compliance with statistical reporting requirements laid down by ECB regulations and decisions. In particular, it establishes the scope of monitoring of compliance by the reporting agents with those requirements and defines the following procedures to be applied by the competent Eurosystem central bank:

(1) monitoring and recording procedure;

(2) reporting procedure;

(3) notification procedure;

(4) endorsement and implementation of a remedial plan;

(5) infringement procedure.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘competent Eurosystem central bank’ means the competent NCB or, in the case of direct reporting, the ECB;

(2) ‘competent NCB’ means the NCB of the euro area Member State in whose jurisdiction the alleged infringement occurred;

(3) ‘cumulative alleged infringement’ means a series of alleged infringements listed under any of points (a) to (e) of Article 8(2) of this Regulation which occur in respect of one or more statistical reporting requirements under the same ECB regulation or decision;

(4) ‘direct reporting’ means reporting by reporting agents of statistical information directly to the ECB in accordance with the decision of a competent NCB pursuant to a regulation or decision of the ECB;

(5) ‘beyond the reporting agent’s control’ means an unforeseeable external event beyond a reporting agent’s reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts to the contrary;

(6) ‘reporting agents’ means ‘reporting agents’ as defined in Article 1(2) of Regulation (EC) No 2533/98;

(7) ‘infringement’ means ‘infringement’ as defined in Article 1(4) of Regulation (EC) No 2532/98;

(8) ‘sanctions’ means ‘sanctions’ as defined in Article 1(7) of Regulation (EC) No 2532/98;

(9) ‘statistical reporting requirements’ means ‘the ECB’s statistical reporting requirements’ as defined in Article 1(1) of Regulation (EC) No 2533/98;

Article 3

Monitoring and recording

Article 4

Local cooperation arrangements

Article 5

Reporting

(a) any alleged infringement by a reporting agent of daily reporting requirements;

(b) three or more alleged infringements by a reporting agent of monthly reporting requirements within six consecutive months;

(c) three or more alleged infringements by a reporting agent of quarterly reporting requirements within four consecutive quarters;

(d) two or more consecutive alleged infringements by a reporting agent of semi-annual reporting requirements;

(e) any alleged infringement by a reporting agent of annual reporting requirements.

For the purposes of reporting alleged infringements pursuant to this paragraph, competent NCBs shall record those alleged infringements in the same dedicated system as referred to in Article 3(1).

(a) any systematic or intentional failure to report statistical information to the competent NCB within the prescribed deadline;

(b) any systematic or intentional failure to report correct or complete statistical information;

(c) any systematic or intentional failure to comply with the prescribed form of the statistical reporting requirements;

(d) any failure to cooperate effectively with the competent NCB or to apply a reasonable degree of diligence.

For the purposes of identifying serious misconduct, the competent NCB may request additional information from the reporting agent.

For the purposes of reporting serious misconduct pursuant to this paragraph, competent NCBs shall record the serious misconduct in the same dedicated system as referred to in Article 3(1).

Article 6

Notification

(a) the nature of the alleged infringements;

(b) the possibility that an infringement procedure may be initiated and the possibility, in such case, that a sanction may be imposed on the reporting agent;

(c) that the reporting agent has an opportunity to provide reasons, including that the alleged infringements were due to circumstances beyond the reporting agent’s control;