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.

immediately inform the ECB in the event that a mismatch occurs in relation to any of their accounts. Article 14 Floor and ceiling amounts 1. The participant may set floor and ceiling amounts on its MCA or DCAs. 2. The participant may choose to receive a notification if the floor or ceiling amount is breached. In addition, for MCAs or RTGS DCAs the participant may opt for the breach to trigger a rule-based liquidity transfer order. 3. The settlement of a liquidity transfer order shall not trigger a check of whether the floor or ceiling amount has been breached. Article 15 Account monitoring group 1. An MCA holder may create one or more account monitoring groups for the purpose of monitoring liquidity on several MCAs or DCAs and will become the leader party for any account monitoring group that it creates. 2. A participant may add any of its MCAs or DCAs opened within TARGET-ECB or any other TARGET component system to one or more account monitoring groups and thereby become a member of that account monitoring group. A member of an account monitoring group may initiate the removal of its account from that account monitoring group at any time. A participant shall inform the leader party of an account monitoring group prior to adding an account to or removing an account from that account monitoring group. 3. Only the leader party for an account monitoring group shall be able to view the balances of all accounts included in that account monitoring group. 4. The leader party may delete the account monitoring group and shall inform the other members of the account monitoring group prior to such deletion. Article 16 Acceptance and rejection of cash transfer orders 1. Cash transfer orders submitted by participants shall be deemed accepted by the ECB if: a) the transfer message complies with the technical requirements of TARGET described in Appendix I; b) the message complies with the formatting rules and conditions described in Appendix I; c) the message passes the double-entry check described in Appendix I; d) in cases where a payer has been suspended with regard to debiting its account(s) or a payee has been suspended with regard to crediting its account(s), the suspended participant’s CB’s explicit consent has been obtained; e) in cases where the cash transfer order is made as part of an RTGS AS settlement procedure, the participant’s account is included in the settlement bank account group requested by that AS as set out in Part VI, Article 1(7); and f) in the case of cross-system settlement as part of RTGS AS settlement procedures, the AS concerned is part of a cross-system settlement arrangement as set out in Article 9 of Part VI. 2. The ECB shall immediately reject any cash transfer order that does not fulfil the conditions laid down in paragraph 1. The ECB shall inform the participant of any rejection of a cash transfer order, as specified in Appendix I. Article 17 Entry of cash transfer orders into the system and their irrevocability 1. For the purposes of the first sentence of Articles 3(1) and 5 of Directive 98/26/EC and the third sentence of § 116, § 96(2), § 82 and § 340(3) of the Insolvenzordnung (German Insolvency Code) and the sixth sentence of § 46a(1) of the KWG: a) all cash transfer orders, except as provided for in points b), c) and d) of this paragraph, shall be deemed entered into TARGET-ECB and irrevocable at the moment that the relevant participant’s TARGET account is debited; b) instant payment orders shall be deemed entered into TARGET-ECB and irrevocable at the moment that the relevant funds on the TIPS DCA of the participant or on its TIPS AS technical account are reserved; c) in the case of transactions that are settled on T2S DCAs and that are subject to matching of two separate transfer orders: i) such transfer orders, except as provided for in point (ii) of this subparagraph, shall be deemed entered into TARGET-ECB at the moment at which they have been declared compliant with the technical rules of T2S by the T2S Platform and irrevocable at the moment the transaction has been given the status ‘matched‘ on the T2S Platform; ii) in the case of transactions involving one participating CSD that has a separate matching component where transfer orders are sent directly to that participating CSD to be matched in its separate matching component, such transfer orders shall be deemed entered into TARGET-ECB at the moment at which they have been declared compliant with the technical rules of T2S by that participating CSD and irrevocable from the moment the transaction has been given the status ‘matched‘ on the T2S Platform. A list of participating CSDs referred to in this point (ii) is available on the ECB’s website; d) cash transfer orders in connection with RTGS AS settlement procedures shall be deemed entered in the TARGET component system of the account to be debited at the moment at which they are accepted by that TARGET component system and irrevocable at that moment. 2. The provisions of paragraph 1 shall not affect any rules of AS that stipulate a moment of entry into the AS and/or irrevocability of transfer orders submitted to it at a point in time earlier than the moment of entry of the respective AS transfer orders in the relevant TARGET component system. 3. Cash transfer orders included in an algorithm may not be revoked during the period that the algorithm is running. Article 18 Business continuity and contingency procedures 1. In the event of an abnormal external event or any other event which affects transactions on the TARGET accounts, the business continuity and contingency procedures described in Appendix IV shall apply. 2. In exceptional circumstances the TARGET operating schedule may be changed, in which case participants will be informed by the ECB. 3. In exceptional circumstances an AS may make a request to the ECB to modify the TARGET operating schedule. 4. The Eurosystem provides a Contingency Solution for use if the events described in paragraph 1 occur. Connection to and use of the Contingency Solution shall be mandatory for participants considered by the ECB] to be critical and for participants that settle very critical transactions as set out in Appendix IV. Other participants may, on request, connect to the Contingency Solution. Article 19 Security requirements 1. Participants shall implement adequate security controls to protect their systems from unauthorised access and use. Participants shall be exclusively responsible for the adequate protection of the confidentiality, integrity and availability of their systems. 2. Participants shall immediately inform the ECB of any security-related incidents in their technical infrastructure and, where appropriate, security-related incidents that occur in the technical infrastructure of the third-party providers. The ECB may request further information about the incident and, if necessary, request that the participant take appropriate measures to prevent a recurrence of such an event. 3. The ECB may impose additional security requirements, in particular with regard to cybersecurity or the prevention of fraud, on all participants and/or on participants that are considered critical by the ECB. 4. Participants shall provide the ECB with: (i) permanent access to their attestation of adherence to their chosen NSP’s endpoint security requirements; and (ii) on an annual basis the TARGET self-certification statement as required for the types of accounts that they hold and as published on the ECB’s website. 5. The ECB shall assess the participant’s self-certification statement(s) on the participant’s level of compliance with each of the requirements set out in the TARGET selfcertification requirements. These requirements are listed in Appendix VII. 6. The participant’s level of compliance with the requirements of the TARGET self-certification shall be categorised as follows, in increasing order of severity: ‘full compliance‘; ‘minor non-compliance‘; or, ‘major non-compliance‘. The following criteria apply: full compliance is reached where participants satisfy 100 % of the requirements; minor non-compliance is where a participant satisfies less than 100 % but at least 66 % of the requirements and major non-compliance where a participant satisfies less than 66 % of the requirements. If a participant demonstrates that a specific requirement is not applicable to it, it shall be considered as compliant with the respective requirement for the purposes of the categorisation. A participant which fails to reach ‘full compliance‘ shall submit an action plan demonstrating how it intends to reach full compliance. The ECB shall inform the relevant supervisory authorities of the status of such participant’s compliance. 7. If the participant refuses to grant permanent access to its attestation of adherence to its chosen NSPs endpoint security requirements or does not provide the TARGET self-certification, the participant’s level of compliance shall be categorised as ‘major non-compliance‘. 8. The ECB shall re-assess compliance of participants on an annual basis. 9. The ECB may impose the following measures of redress on participants whose level of compliance was assessed as minor or major non-compliance, in increasing order of severity: a) enhanced monitoring: the participant shall provide the ECB with a monthly report, signed by a senior executive, on its progress in addressing the non-compliance. The participant shall additionally incur a monthly penalty charge for each affected account of EUR 1 000. This measure of redress may be imposed in the event the participant receives a second consecutive assessment of minor non-compliance or an assessment of major noncompliance; b) suspension: participation in TARGET-ECB may be suspended in the circumstances described in Article 24(2), points (b) and/or (c). By way of derogation from Article 24, the participant shall be given three months‘ notice of such suspension. The participant shall incur a monthly penalty charge for each suspended account of EUR 2 000. This measure of redress may be imposed in the event the participant receives a second consecutive assessment of major non-compliance; c) termination: participation in TARGET-ECB may be terminated in the circumstances described in Article 24(2), points (b) and/or (c). By way of derogation from Article 24, the participant shall be given three months‘ notice. The participant shall incur an additional penalty charge of EUR 1 000 for each terminated account. This measure of redress may be imposed if the participant has not addressed the major non-compliance to the satisfaction of the ECB following three months of suspension. 10. Participants allowing access to their TARGET account by third parties as set out in Article 7 and participants having registered addressable BIC holders as set out in Part III, Article 2, shall address the risk stemming from allowing such access in accordance with the security requirements set out in paragraphs 1 to 9. Article 20 Compensation Scheme If a cash transfer order cannot be settled on the same business day on which it was accepted due to a technical malfunction of TARGET, the ECB shall offer to compensate the participant concerned in accordance with the special procedure laid down in Appendix II. Article 21 Liability regime 1. In performing their obligations pursuant to these Conditions, the ECB and the participants shall be bound by a general duty of reasonable care in relation to each other. 2. The ECB shall be liable to its participants in cases of fraud (including but not limited to wilful misconduct) or gross negligence, for any loss arising out of the operation of TARGET-ECB. In cases of ordinary negligence, the ECB’s liability shall be limited to the participant’s direct loss, i.e. the amount of the transaction in question and/or the loss of interest thereon, excluding any consequential loss. 3. The ECB shall not be liable for any loss that results from any malfunction or failure in the technical infrastructure (including but not limited to the ECB’s computer infrastructure, programmes, data, applications or networks), if such malfunction or failure arises in spite of the ECB having adopted those measures that are reasonably necessary to protect such infrastructure against malfunction or failure, and to resolve the consequences of such malfunction or failure (the latter including but not limited to initiating and completing the business continuity and contingency procedures referred to in Appendix IV). 4. The ECB shall not be liable: a) to the extent that the loss is caused by the participant; or b) if the loss arises out of external events beyond the ECB’s reasonable control (force majeure). 5. Notwithstanding § § 676a, 676b, 676c, 676e and 676g of the Bürgerliches Gesetzbuch (German Civil Code), paragraphs 1 to 4 shall apply to the extent that the ECB’s liability can be excluded. 6. The ECB and the participants shall take all reasonable and practicable steps to mitigate any damage or loss referred to in this Article. 7. In performing some or all of its obligations under these Conditions, the ECB may commission third parties in its own name, particularly telecommunications or other network providers or other entities, if this is necessary to meet the ECB’s obligations or is standard market practice. The ECB’s obligation shall be limited to the due selection and commissioning of any such third parties and the ECB’s liability shall be limited accordingly. For the purposes of this paragraph, the Level 3 NCBs shall not be considered as third parties. Article 22 Evidence 1. Unless otherwise provided in these Conditions, all cash transfer orders and related messages, such as confirmations of debits or credits, or statement messages, between the ECB and participants shall be made through the relevant NSP. 2. Electronic or written records of the messages retained by the ECB or by the relevant NSP shall be accepted as a means of evidence of the payments processed through the ECB. The saved or printed version of the original message of the relevant NSP shall be accepted as a means of evidence, regardless of the form of the original message. 3. If a participant’s connection to the NSP fails, the participant shall use the alternative means of transmission of messages as agreed with the ECB. In such cases, the saved or printed version of the message produced by the ECB shall have the same evidential value as the original message, regardless of its form. 4. The ECB shall keep complete records of cash transfer orders submitted and payments received by participants for a period of ten years from the time at which such cash transfer orders are submitted and payments are received. 5. The ECB’s own books and records shall be accepted as a means of evidence of any obligations of the participants and of any facts and events that the parties rely on. Article 23 Duration and ordinary termination of participation and closure of accounts 1. Without prejudice to Article 24, participation in TARGET-ECB shall be for an indefinite period of time. 2. A participant may terminate any of the following at any time giving 14 business days‘ notice thereof, unless it agrees a shorter notice period with the ECB: a) its entire participation in TARGET-ECB; b) one or more of its DCAs, RTGS AS technical accounts and/or TIPS AS technical accounts; c) one or more of its MCAs, provided that it continues to comply with Article 5. 3. The ECB may terminate any of the following at any time giving three months‘ notice thereof, unless it agrees a different notice period with the relevant participant: a) a participant’s entire participation in TARGET-ECB; b) one or more of a participant’s DCAs, RTGS AS technical accounts or TIPS AS technical accounts; c) one or more of a participant’s MCAs, provided that the participant continues to hold at least one MCA. 4. On termination of participation, the confidentiality duties laid down in Article 27 shall remain in force for a period of five years starting on the date of termination. 5. On termination of participation, the ECB shall close all TARGET accounts of the participant concerned in accordance with Article 25. Article 24 Suspension and extraordinary termination of participation 1. A participant’s participation in TARGET-ECB shall be immediately terminated without prior notice or suspended if one of the following events of default occurs: a) the opening of insolvency proceedings; and/or b) the participant no longer meets the access criteria laid down in Article 4. For the purposes of this paragraph, the taking of crisis prevention measures or crisis management measures within the meaning of Directive 2014/59/EU against a participant shall not automatically qualify as the opening of insolvency proceedings. 2. The ECB may terminate without prior notice or suspend the participant’s participation in TARGET-ECB if: a) one or more events of default (other than those referred to in paragraph 1) occur; b) the participant is in material breach of any of these Conditions; c) the participant fails to carry out any material obligation to the ECB; d) the participant ceases to have a valid agreement with an NSP to provide the necessary connection to TARGET; e) any other participant-related event occurs which, in the ECB’s assessment, would threaten the overall stability, soundness and safety of TARGET-ECB or of any other TARGET component system, or which would jeopardise the ECB’s performance of its tasks as described in the Statute of the European System of Central Banks and of the European Central Bank, or poses risks on the grounds of prudence; f) the ECB suspends or terminates the participant’s access to intraday credit, including auto-collateralisation, pursuant to Part II, Article 13 of Guideline (EU) 2022/912 (ECB/2022/8); and/or g) the participant is excluded from or otherwise ceases to be a member of one of the NSP Closed Group of Users. 3. In exercising its discretion under paragraph 2, the ECB shall take into account, inter alia, the seriousness of the event of default or events mentioned in points (a) to (c) of paragraph 2. 4. In the event that the ECB suspends or terminates a participant’s participation in TARGET-ECB under paragraphs 1 or 2, the ECB shall without undue delay inform — by means of a broadcast message or, if that is not available, by any other appropriate means of communication — the respective participant, other CBs and participants in all of the TARGET component systems of such suspension or termination. Such message shall be deemed to have been issued by the home CB of the respective participant. 5. Once a message issued under paragraph 4 has been received by the participants, they shall be deemed informed of the termination/suspension of a participant’s participation in TARGET-ECB or another TARGET component system. The participants shall bear any losses arising from the submission of a cash transfer order to participants whose participation has been suspended or terminated if such cash transfer order was entered into TARGET-ECB after receipt of the message. Article 25 Closure of TARGET accounts by the ECB on termination of participation On termination of a participant’s participation in TARGET-ECB pursuant to either Article 23 or 24, the ECB shall close the TARGET accounts of the participant concerned, after having settled or rejected any queued cash transfer orders, and made use of its rights of pledge and set-off under Article 26. Article 26 The ECB’s rights of pledge and set-off 1. The ECB shall have a pledge over the participant’s existing and future credit balances on its TARGET accounts, thereby collateralising any current and future claims arising out of the legal relationship between the parties. 2. On the occurrence of: a) an event of default, referred to in Article 24(1); or b) any other event of default or event referred to in Article 24(2) that has led to the termination or suspension of the participant’s participation, notwithstanding the commencement of any insolvency proceedings in respect of a participant and notwithstanding any assignment, judicial or other attachment or other disposition of or in respect of the participant’s rights, all obligations of the participant shall be automatically and immediately accelerated, without prior notice and without the need for any prior approval of any authority, so as to be immediately due. In addition, the mutual obligations of the participant and the ECB shall automatically be set off against each other, and the party owing the higher amount shall pay to the other the difference. 3. The ECB shall promptly give the participant notice of any set-off pursuant to paragraph 4 after such set-off has taken place. 4. The ECB may without prior notice debit any participant’s TARGET accounts by any amount which the participant owes the ECB resulting from the legal relationship between the participant and the ECB. 5. The provisions of this Article shall not create any right, pledge, charge or claim or set-off in respect of the following TARGET accounts used by AS: a) TARGET accounts used in accordance with the AS settlement procedures under Part VI or Part VII; b) TARGET accounts held by AS under Parts II to V, where funds held on such accounts do not belong to the AS but are held on behalf of their customers or are used to settle cash transfer orders on behalf of their customers. Article 27 Confidentiality 1. The ECB shall keep confidential all sensitive or secret information, including when such information relates to payment, technical or organisational information belonging to the participant, participants from the same group or the participant’s customers, unless the participant or its customer has given its written consent to disclose. 2. By derogation from paragraph 1, the participant agrees that information on any action taken under Article 24 shall not be considered as confidential. 3. By derogation from paragraph 1, the participant agrees that the ECB may disclose payment, technical or organisational information regarding the participant, participants from the same banking group or the participant’s customers, obtained in the course of the operation of TARGET-ECB to: a) other CBs or third parties that are involved in the operation of TARGET-ECB, to the extent that this is necessary for the efficient functioning of TARGET or the monitoring of the participant’s or its banking group’s exposure; b) other CBs in order to carry out the analyses necessary for market operations, monetary policy functions, financial stability or financial integration; or c) supervisory, resolution and oversight authorities of Member States and the Union, including CBs, to the extent that this is necessary for the performance of their public tasks, and provided that in all such cases the disclosure is not in conflict with applicable law. 4. The ECB shall not be liable for the financial and commercial consequences of disclosure made in accordance with paragraph 3. 5. By derogation from paragraph 1 and provided that this does not make it possible, whether directly or indirectly, to identify the participant or the participant’s customers, the ECB may use, disclose or publish payment information regarding the participant or the participant’s customers for statistical, historical, scientific or other purposes in the exercise of its public functions or of functions of other public entities to which the information is disclosed. 6. Information relating to the operation of TARGET-ECB to which participants have had access may only be used for the purposes laid down in these Conditions. Participants shall keep such information co