Beschluss (EU) 2022/911 der Europäischen Zentralbank vom 19. April 2022 zu den TARGET-EZB-Bedingungen und zur Aufhebung des Beschlusses EZB/2007/7 (EZB/2022/22)

Durchsuchbarer Text in vereinfachter Darstellung. Tabellen, Abbildungen und verbindliche Gestaltung bitte anhand der Originaldateien prüfen.

ablished; hereinafter the ‘jurisdiction‘] in connection with the participation of [specify name of Participant] (hereinafter the ‘Participant‘) in TARGET-ECB (hereinafter the ‘System‘). This Opinion is confined to the laws of [jurisdiction] as they exist as on the date of this Opinion. We have made no investigation of the laws of any other jurisdiction as a basis for this Opinion, and do not express or imply any opinion in this regard. Each of the statements and opinions presented below applies with equal accuracy and validity under the laws of [jurisdiction], whether or not the Participant acts through its head office or one or more branches established inside or outside of [jurisdiction] in submitting Cash transfer orders and receiving Cash transfers. I. DOCUMENTS EXAMINED For the purposes of this Opinion, we have examined: (1) a certified copy of the [specify relevant constitutional documents] of the Participant such as is/ar in effect on the date hereof; (2) [if applicable] an extract from the [specify relevant company register] and [if applicable] [register of credit institutions or analogous register]; (3) [to the extent applicable] a copy of the Participant’s licence or other proof of authorisation to provide banking, investment, funds transfer or other financial services in line with the access criteria for participation in TARGET in [jurisdiction]; (4) [if applicable] a copy of a resolution adopted by the board of directors or the relevant governin body of the Participant on [insert date], [insert year], evidencing the Participant’s agreement to adhere to the System Documents, as defined below; and (5) [specify all powers of attorney and other documents constituting or evidencing the requisite power of the person or persons signing the relevant System Documents (as defined below) on behalf of the Participant]; and all other documents relating to the Participant’s constitution, powers, and authorisations necessary or appropriate for the provision of this Opinion (hereinafter the ‘Participant Documents‘). For the purposes of this Opinion, we have also examined: (1) Decision (EU) [YYYY/[XX]] of the European Central Bank of [date Month 2022] concerning the terms and conditions of TARGET-ECB ([ECB/2022/XX]) ( 5 ) for the System (hereinafter the ‘Rules‘); and (2) […]. The Rules and the […] shall be referred to hereinafter as the ‘System Documents‘ (and collectively with the Participant Documents as the ‘Documents‘). II. ASSUMPTIONS For the purposes of this Opinion we have assumed in relation to the Documents that: (1) the System Documents with which we have been provided are originals or true copies; (2) the terms of the System Documents and the rights and obligations created by them are valid and legally binding under the laws of the Federal Republic of Germany by which they are expressed to be governed, and the choice of the laws of the Federal Republic of Germany to govern the System Documents is recognised by the laws of the Federal Republic of Germany; (3) the Participant Documents are within the capacity and power of and have been validly authorised, adopted or executed and, where necessary, delivered by the relevant parties; and (4) the Participant Documents are binding on the parties to which they are addressed, and there has been no breach of any of their terms. III. OPINIONS REGARDING THE PARTICIPANT A. The Participant is a corporation duly established and registered or otherwise duly incorporated or organised under the laws of [jurisdiction]. B. The Participant has all the requisite corporate powers to execute and perform the rights and obligations under the System Documents to which it is party. C. The adoption or execution and the performance by the Participant of the rights and obligations under the System Documents to which the Participant is party do not in any way breach any provision of the laws or regulations of [jurisdiction] applicable to the Participant or the Participant Documents. D. No additional authorisations, approvals, consents, filings, registrations, notarisations or other certifications of or with any court or governmental, judicial or public authority that is competent in [jurisdiction] are required by the Participant in connection with the adoption, validity or enforceability of any of the System Documents or the execution or performance of the rights and obligations thereunder. E. The Participant has taken all necessary corporate action and other steps necessary under the law of [jurisdiction] to ensure that its obligations under the System Documents are legal, valid and binding. This Opinion is stated as of its date and is addressed solely to the ECB and the [Participant]. No other persons may rely on this Opinion, and the contents of this Opinion may not be disclosed to persons other than its intended recipients and their legal counsel without our prior written consent, with the exception of the national central banks of the European System of Central Banks and the relevant regulatory authorities of [jurisdiction]. Yours faithfully, [signature] Terms of reference for country opinions for non-EEA participants in TARGET European Central Bank Sonnemannstrasse 20 60314 Frankfurt am Main GERMANY Participation in TARGET-ECB [location], [date] Dear Sir or Madam, We have been asked as [external] legal advisers to [specify name of Participant or branch of Participant] (the ‘Participant‘) in respect of issues arising under the laws of [jurisdiction in which the Participant is established; hereinafter the ‘jurisdiction‘] to provide this Opinion under the laws of [jurisdiction] in connection with the participation of the Participant in TARGET-ECB which is a component system of TARGET (hereinafter the ‘System‘). References herein to the laws of [jurisdiction] include all applicable regulations of [jurisdiction]. We express an opinion herein under the law of [jurisdiction], with particular regard to the Participant established outside the Federal Republic of Germany in relation to rights and obligations arising from participation in the System, as presented in the System Documents defined below. This Opinion is confined to the laws of [jurisdiction] as they exist on the date of this Opinion. We have made no investigation of the laws of any other jurisdiction as a basis for this Opinion, and do not express or imply any opinion in this regard. We have assumed that there is nothing in the laws of another jurisdiction which affects this Opinion. 1. DOCUMENTS EXAMINED For the purposes of this Opinion, we have examined the documents listed below and such other documents as we have deemed necessary or appropriate: (1) Decision (EU) [YYYY/[XX]] of the European Central Bank of [date Month 2022] concerning the terms and conditions of TARGET-ECB ([ECB/2022/XX]) ( 6 ) for the System (hereinafter the ‘Rules‘); and (2) any other document governing the System and/or the relationship between the Participant and other participants in the System, and between the participants in the System and the ECB. The Rules and the […] shall be referred to hereinafter as the ‘System Documents‘. 2. ASSUMPTIONS For the purposes of this Opinion we have assumed in relation to the System Documents that: (1) the System Documents are within the capacity and power of and have been validly authorised, adopted or executed and, where necessary, delivered by the relevant parties; (2) the terms of the System Documents and the rights and obligations created by them are valid and legally binding under the laws of the Federal Republic of Germany, by which they are expressed to be governed, and the choice of the laws of the Federal Republic of Gernany to govern the System Documents is recognised by the laws of the Federal Republic of Gernany; (3) the participants in the System through which any Cash transfer orders are sent or Cash transfers are received, or through which any rights or obligations under the System Documents are executed or performed, are licensed to provide funds transfer services, in all relevant jurisdictions; and (4) the documents submitted to us in copy or as specimens conform to the originals. 3. OPINION Based on and subject to the foregoing, and subject in each case to the points set out below, we are of the opinion that: 3.1. Country-specific legal aspects [to the extent applicable] The following characteristics of the legislation of [jurisdiction] are consistent with and in no way set aside the obligations of the Participant arising out of the System Documents: [list of country-specific legal aspects]. 3.2. General insolvency issues 3.2.a. Types of insolvency proceedings The only types of insolvency proceedings (including composition or rehabilitation) which, for the purpose of this Opinion, shall include all proceedings in respect of the Participant’s assets or any branch it may have in [jurisdiction] to which the Participant may become subject in [jurisdiction], are the following: [list proceedings in original language and English translation] (together collectively referred to as ‘Insolvency Proceedings‘).In addition to Insolvency Proceedings, the Participant, any of its assets, or any branch it may have in [jurisdiction] may become subject in [jurisdiction] to [list any applicable moratorium, receivership, or any other proceedings as a result of which payments to and/or from the Participant may be suspended, or limitations can be imposed in relation to such payments, or similar proceedings in original language and English translation] (hereinafter collectively referred to as ‘Proceedings‘). 3.2.b. Insolvency treaties [jurisdiction] or certain political subdivisions within [jurisdiction], as specified, is/are party to the following insolvency treaties: [specify, if applicable which have or may have an impact on this Opinion]. 3.3. Enforceability of System Documents Subject to the points set out below, all provisions of the System Documents will be binding an enforceable in accordance with their terms under the laws of [jurisdiction], in particular in the event of the opening of any Insolvency Proceedings or Proceedings with respect to the Participant. In particular, we are of the opinion that: 3.3.a. Processing of Cash transfer orders The provisions on processing of Cash transfer orders of the Rules [add the relevant provisions implementing Articles 16 and 17 of Part I of Annex I, Articles 4 to 7 and 9 of Part II of Annex I, Articles 5 to 10 and 14 to 16 of Part III of Annex I, Articles 4 and 6 to 7 of Part IV of Annex I, Articles 6 and 10 of Part V of Annex I] are valid and enforceable. In particular, all Cash transfer orders processed pursuant to such sections will be valid, binding and will be enforceable under the laws of [jurisdiction]. The provision of the Rules which specifies the precise point in time at which Cash transfer orders submitted by the Participant to the System become enforceable and irrevocable [add the relevant provision implementing Article 17 of Annex 1, Part I] is valid, binding and enforceable under the laws of [jurisdiction]. 3.3.b. Authority of the ECB to perform its functions The opening of Insolvency Proceedings or Proceedings in respect of the Participant will not affect the authority and powers of the ECB arising out of the System Documents. [Specify [to the extent applicable] that: the same opinion is also applicable in respect of any other entity which provides the Participants with services directly and necessarily required for participation in the System, e.g. NSP]. 3.3.c. Remedies in the event of default [Where applicable to the Participant, the provisions contained in [list of sections] of the Rules regarding accelerated performance of claims which have not yet matured, the set-off of claims for using the deposits of the Participant, the enforcement of a pledge, suspension and termination of participation, claims for default interest, and termination of agreements and transactions ([insert other relevant clauses of the Rules or the System Documents]) are valid and enforceable under the laws of [jurisdiction].] 3.3.d. Suspension and termination Where applicable to the Participant, the provisions contained in [list of sections] of the Rules (in respect of suspension and termination of the Participant’s participation in the System on the opening of Insolvency Proceedings or Proceedings or other events of default, as defined in the System Documents, or if the Participant represents any kind of systemic risk or has serious operational problems) are valid and enforceable under the laws of [jurisdiction]. 3.3.e. Penalty regime Where applicable to the Participant, the provisions contained in [list of sections] of the Rules in respect of penalties imposed on a Participant which is unable to reimburse intraday credit or overnight credit, where applicable, on time are valid and enforceable under the laws of [jurisdiction]. 3.3.f. Assignment of rights and obligations The rights and obligations of the Participant cannot be assigned, altered or otherwise transferred by the Participant to third parties without the prior written consent of the ECB. 3.3.g. Choice of governing law and jurisdiction The provisions contained in [list of sections] of the Rules, and in particular in respect of the governing law, the resolution of a dispute, competent courts, and service of process are valid and enforceable under the laws of [jurisdiction]. 3.4. Voidable preferences We are of the opinion that no obligation arising out of the System Documents, the performance thereof, or compliance therewith prior to the opening of any Insolvency Proceedings or Proceedings in respect of the Participant may be set aside in any such proceedings as a preference, voidable transaction or otherwise under the laws of [jurisdiction]. In particular, and without limitation to the foregoing, we express this opinion in respect of any Cas transfer orders submitted by any participant in the System. In particular, we are of the opinion that the provisions of [list of sections] of the Rules establishing the enforceability and irrevocability of Cash transfer orders will be valid and enforceable and that a Cash transfer orders submitted by any participant and processed pursuant to [list of sections] of the Rules may not be set aside in any Insolvency Proceedings or Proceedings as a preference, voidable transaction or otherwise under the laws of [jurisdiction]. 3.5. Attachment If a creditor of the Participant seeks an attachment order (including any freezing order, order for seizure or any other public or private law procedure that is intended to protect the public interest or the rights of the Participant’s creditors) — hereinafter referred to as an ‘Attachment‘ — under the laws of [jurisdiction] from a court or governmental, judicial or public authority that is competent in [jurisdiction], we are of the opinion that [insert the analysis and discussion]. 3.6. Collateral [if applicable] 3.6.a. Assignment of rights or deposit of assets for collateral purposes, pledge and/or repo Assignments for collateral purposes will be valid and enforceable under the laws of [jurisdiction]. Specifically, the creation and enforcement of a pledge or repo under the [insert reference to the relevant arrangement with the CB] will be valid and enforceable under the laws of [jurisdiction]. 3.6.b. Priority of assignees‘, pledgees‘ or repo purchasers‘ interest over that of other claimants In the event of Insolvency Proceedings or Proceedings in respect of the Participant, the rights or assets assigned for collateral purposes, or pledged by the Participant in favour of the ECB or other participants in the System, will rank in priority of payment above the claims of all other creditors of the Participant and will not be subject to priority or preferential creditors. 3.6.c. Enforcing title to security Even in the event of Insolvency Proceedings or Proceedings in respect of the Participant, other participants in the System and the ECB as [assignees, pledgees or repo purchasers as applicable] will still be free to enforce and collect the Participant’s rights or assets through the action of the ECB pursuant to the Rules. 3.6.d. Form and registration requirements There are no form requirements for the assignment for collateral purposes of, or the creation and enforcement of a pledge or repo over the Participant’s rights or assets and it is not necessary for the [assignment for collateral purposes, pledge or repo, as applicable], or any particulars of such [assignment, pledge or repo, as applicable,] to be registered or filed with any court or governmental, judicial or public authority that is competent in [jurisdiction]. 3.7. Branches [to the extent applicable] 3.7.a. Opinion applies to action through branches Each of the statements and opinions presented above with regard to the Participant applies with equal accuracy and validity under the laws of [jurisdiction] in situations where the Participant acts through its one or more of its branches established outside [jurisdiction]. 3.7.b. Conformity with law Neither the execution and performance of the rights and obligations under the System Documents nor the submission, transmission or receipt of Cash transfer orders by a branch of the Participant will in any respect breach the laws of [jurisdiction]. 3.7.c. Required authorisations Neither the execution and performance of the rights and obligations under the System Documents nor the submission, transmission or receipt of Cash transfer orders by a branch of a Participant will require any additional authorisations, approvals, consents, filings, registrations, notarisations or other certifications of or with any court or governmental, judicial or public authority that is competent in [jurisdiction]. This Opinion is stated as of its date and is addressed solely to the ECB and the [Participant]. No other persons may rely on this Opinion, and the contents of this Opinion may not be disclosed to persons other than its intended recipients and their legal counsel without our prior written consent, with the exception of the European Central Bank and the national central banks of the European System of Central Banks [and [the national central bank/relevant regulatory authorities] of [jurisdiction]]. Yours faithfully, [signature] APPENDIX IV BUSINESS CONTINUITY AND CONTINGENCY PROCEDURES 1. GENERAL PROVISIONS This Appendix sets out the arrangements between the ECB and participants, if TARGET or one or more of the NSPs fail or are affected by an abnormal external event, or if the failure affects any participant. All references to specific times in this Appendix are to the local time at the seat of the ECB. Provisions set out in this section 1 shall apply to MCAs, RTGS DCAs and their sub-accounts, RTGS AS technical accounts, T2S DCAs, TIPS DCAs and TIPS AS technical accounts. 1.1. Measures of business continuity and contingency processing a) In the event that an abnormal external event occurs and/or there is a failure of TARGET and/or there is a failure of one or more NSPs which affects the normal operation of TARGET, the ECB shall be entitled to adopt business continuity and contingency processing measures. b) The following main business continuity and contingency processing measures shall be available in TARGET: i) relocating the operation of TARGET to an alternative site; ii) changing the TARGET operating schedule. c) In relation to business continuity and contingency processing measures, the ECB shall have full discretion regarding whether and which measures are adopted. 1.2. Incident communication If an event described under paragraph 1.1(a) occurs, this shall be communicated to participants via the ECB’s website, if available, through the GUI(s) and, if applicable via domestic communication channels. In particular, communications to participants shall include the following information: i) a description of the event and its impact on TARGET; ii) the time at which resolution of the event is expected (if known); iii) information on the measures already taken (if any); iv) the advice to participants (if any); v) the timestamp of the communication and indication of when an update will be provided. 1.3. Change of operating hours a) When changing the TARGET operating schedule as provided for in Part I, Article 18(2) of these Conditions, the ECB may delay the cut off times of TARGET for a given business day or delay the start of the following business day, or change the timing of any other event listed in Appendix V. b) The cut off times of TARGET for a given business day may be delayed if a TARGET failure has occurred during that day but has been resolved before 18:00. Such a closing time delay should not normally exceed two hours and shall be announced as early as possible to participants. c) Once a delay of the cut off times of TARGET is announced, it may be further delayed but may not be withdrawn. 1.4. Other provisions a) In the event of a failure of the ECB, some or all of its technical functions in relation to TARGET-[insert CB/country reference] may be performed by other Eurosystem CBs or by the Level 3 NCBs on its behalf. b) The ECB may require that the participants participate in regular or ad hoc testing of business continuity and contingency processing measures, training or any other preventative arrangements, as deemed necessary by the ECB. Any costs incurred by the participants as a result of such testing or other arrangements shall be borne solely by the participants. 2. BUSINESS CONTINUITY AND CONTINGENCY PROCEDURES (RTGS DCA AND RTGS AS SETTLEMENT PROCEDURES) In addition to the provisions set out in section 1, the provisions set out in this section 2 shall apply specifically to RTGS DCA holders and AS that make use of the RTGS AS settlement procedures. 2.1. Relocation of the operation of TARGET to an alternative site a) The relocation of the operation of TARGET to an alternative site, as referred to in paragraph 1.1(b)(i), may be to a place within the same region or in another region. b) In the event that the operation of TARGET is relocated to another region, the participants shall: (i) refrain from sending new cash transfer orders to TARGET; (ii) at the request of the ECB perform a reconciliation; (iii) resubmit any cash transfer orders identified as missing; and (iv) provide the ECB with all relevant information in this respect. c) The ECB may take any further actions including debiting and crediting participants‘ accounts in order to return those participants‘ accounts to their status prior to the relocation. 2.2. Change of operating hours a) If the ECB delays the closing of TARGET as provided for in paragraph 1.3 before 16:50, the minimum period