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.

shall be taken into account immediately. 10. Connectivity Participants shall connect to TARGET using one of the following modes. a) The user to application (U2A) mode: in the U2A mode, participants connect via a GUI which allows users to perform business functions based on their respective access rights. It allows users to enter and maintain business data as well as to retrieve business information. The relevant User Handbook (UHB) provides exhaustive information on each of the business functions that the respective GUI provides. b) The application to application (A2A) mode: in A2A mode software applications communicate with TARGET by exchanging single messages and files based on their respective access rights and message subscription and routing configuration. The A2A communication relies on XML messages, using the ISO 20022 standard where applicable, for both inbound and outbound communication. The modes of connection are described in further detail in the ESMIG UDFS. 11. The UDFS and the User Handbook Further details and examples explaining the above rules are contained in the respective UDFS and the User Handbooks for each service, as amended from time to time and published on the ECB’s website in English. (1) For sub-accounts this section must start with the 3-character AS code as defined by the central bank. APPENDIX II TARGET COMPENSATION SCHEME 1. General principles a) If there is a technical malfunction of TARGET, participants may submit claims for compensation in accordance with the TARGET compensation scheme laid down in this Appendix. b) Unless otherwise decided by the ECB’s Governing Council, the TARGET compensation scheme shall not apply if the technical malfunction of TARGET arises out of external events beyond the reasonable control of the CBs concerned or as a result of acts or omissions by third parties. c) Compensation under the TARGET compensation scheme shall be the only compensation procedure offered in the event of a technical malfunction of TARGET. Participants may, however, use other legal means to claim for losses. If a participant accepts a compensation offer under the TARGET compensation scheme, this shall constitute the participant’s irrevocable agreement that it thereby waives all claims in relation to the cash transfer orders concerning which it accepts compensation (including any claims for consequential loss) it may have against any CB, and that the receipt by it of the corresponding compensation payment constitutes full and final settlement of all such claims. The participant shall indemnify the CBs concerned, up to a maximum of the amount received under the TARGET compensation scheme, in respect of any further claims which are raised by any other participant or any other third party in relation to the cash transfer order or cash transfer concerned. d) The making of a compensation offer shall not constitute an admission of liability by the ECB or any other CB in respect of a technical malfunction of TARGET. 2. Conditions for compensation offers a) A payer may submit a claim for an administration fee and interest compensation if, due to a technical malfunction of TARGET cash transfer order was not settled on the business day on which it was accepted. b) A payee may submit a claim for an administration fee if due to a technical malfunction of TARGET it did not receive a cash transfer that it was expecting to receive on a particular business day. The payee may also submit a claim for interest compensation if one or more of the following conditions are met: i) in the case of participants that have access to the marginal lending facility: due to a technical malfunction of TARGET, a payee had recourse to the marginal lending facility; and/or ii) in the case of all participants: it was technically impossible to have recourse to the money market or such refinancing was impossible on other, objectively reasonable grounds. 3. Calculation of compensation a) With respect to a compensation offer for a payer: i) the administration fee shall be EUR 50 for the first non-settled cash transfer order, EUR 25 for each of the next four such cash transfer orders and EU 12,50 for each further such cash transfer order. The administration fee shall be calculated separately in relation to each payee; ii) interest compensation shall be determined by applying a reference rate to be fixed from day to day. This reference rate shall be the lower of the euro short term reference rate (EURSTR) rate and the marginal lending facility rate. The reference rate shall be applied to the amount of the cash transfer order not settled as a result of the technical malfunction of TARGET for each day in the period from the date of the actual or, in relation to cash transfer orders referred to in paragraph 2(b)(ii), intended submission of the cash transfer order until the date on which the cash transfer order was or could have been successfully settled. Any interest or charges resulting from the placing of any nonsettled cash transfer orders on deposit with the Eurosystem shall be deducted from, or charged to, the amount of any compensation, as the case may be; iii) no interest compensation shall be payable if and in so far as funds resulting from nonsettled cash transfer orders were placed in the market or used to fulfil minimum reserve requirements. b) With respect to a compensation offer for a payee: i) the administration fee shall be EUR 50 for the first non-settled cash transfer order, EUR 25 for each of the next four such cash transfer orders and EUR 12,50 for each further such cash transfer order. The administration fee shall be calculated separately in relation to each payer; ii) the method set out in subparagraph (a)(ii) for calculating interest compensation shall apply except that interest compensation shall be payable at a rate equal to the difference between the marginal lending facility rate and the reference rate, and shall be calculated on the amount of any recourse to the marginal lending facility occurring as a result of the technical malfunction of TARGET. 4. Procedural rules a) A claim for compensation shall be submitted on the claim form available on the website of the ECB (see https://www.ecb.europa.eu). Payers shall submit a separate claim form in respect of each payee and payees shall submit a separate claim form in respect of each payer. Sufficient additional information and documents shall be provided to support the information indicated in the claim form. Only one claim may be submitted in relation to a specific payment or payment order. b) Within four weeks of a technical malfunction of TARGET, participants shall submit their claim forms to the ECB. Any additional information and evidence requested by the ECB shall be supplied within two weeks of such request being made. c) The ECB shall review the claims and forward them to the ECB. Unless otherwise decided by the ECB’s Governing Council and communicated to the participants, all received claims shall be assessed no later than 14 weeks after the technical malfunction of TARGET occurs. d) The ECB shall communicate the result of the assessment referred to in subparagraph (c) to the relevant participants. If the assessment entails a compensation offer, the participants concerned shall, within four weeks of the communication of such offer, either accept or reject it, in respect of each cash transfer order comprised within each claim, by signing a standard letter of acceptance (in the form available on the website of the ECB (see https://www.ecb.europa.eu). If such letter has not been received by the ECB within four weeks, the participants concerned shall be deemed to have rejected the compensation offer. e) The ECB shall make compensation payments on receipt of a participant’s letter of acceptance of compensation. No interest shall be payable on any compensation payment. APPENDIX III TERMS OF REFERENCE FOR CAPACITY AND COUNTRY OPINIONS Terms of reference for capacity opinions for 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 to provide this Opinion as [in-house or external] legal advisers to [specify name of Participant or branch of Participant] in respect of issues arising under the laws of [jurisdiction in which the Participant is established; 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]) (1) 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]) (2) 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 enforc