Regulation (EU) No 795/2014 (ECB/2014/28) is amended as follows:
Article 1 is amended as follows:
paragraph 2 is replaced by the following:
‘2. The Governing Council shall adopt a reasoned decision identifying the payment systems that are subject to this Regulation, their respective operators and competent authorities. This list shall be maintained on the ECB's website and updated after each change.’;
the following paragraph 3-a is inserted:
‘3-a. Nothwithstanding paragraph 3, the Governing Council, exercising sound and reasoned judgement, may also decide under paragraph 2 that a payment system shall be identified as a SIPS in either of the following cases:
where such a decision would be appropriate taking into account the nature, size and complexity of the payment system; the nature and importance of its participants; the substitutability of the payment system and the availability of alternatives to it; and the relationship, interdependencies, and other interactions the system has with the wider financial system;
where a payment system does not meet the criteria set out in paragraph 3 solely because the criteriaestablished in point (b) of paragraph 3 occur over a period of less than a calendar year and it is plausible that the payment system will continue to meet the criteria when assessed in the next verification review.’;
paragraph 3a is replaced by the following:
‘3a. A decision adopted under paragraph 2 shall remain in force until it has been repealed. Verification reviews of payment systems that have been identified as SIPS shall be carried out on an annual basis to verify that the payment systems continue to meet the criteria for being identified as SIPS. A decision adopted pursuant to paragraph 2 shall be repealed if:
in two consecutive verification reviews it is verified that a SIPS has not met the criteria set out in paragraph 3 and/or paragraph 3-a; or
in one verification review it is verified that a SIPS has not met the criteria set out in paragraph 3 and/or paragraph 3-a and the SIPS operator demonstrates, to the satisfaction of the Governing Council, that the SIPS is unlikely to meet those criteria prior to the next verification review.’;
the following paragraph 3b is inserted:
‘3b. The payment system operator shall have the right to request a review by the Governing Council of the decision identifying the payment system concerned as a SIPS within 30 days of receipt of that decision. The request shall include all supporting information and shall be addressed in writing to the Governing Council. A reasoned decision by the Governing Council in response to such request shall be notified in writing to the payment system operator. The written notice shall inform that operator of its right of judicial review in accordance with the Treaty. If no decision has been taken by the Governing Council within two months of the request, the review shall be deemed rejected.’
Article 2 is amended as follows:
point (5) is replaced by the following:
“competent authority” means:
the Eurosystem national central bank with primary oversight responsibility identified as such pursuant to Article 1(2); or
in relation to a payment system which is a SIPS that meets the criteria in Article 1(3)(iii) ‘competent authority’ means either:
the ECB; or
where a Eurosystem national central bank was entrusted with primary oversight responsibility for a period of five or more years immediately before the decision referred to in Article 1(2) was taken, both the ECB and that national central bank;’;
The following Articles 2a to 2d are inserted:
‘Article 2a
Written notice of the initiation of the process to identify a payment system as a SIPS
The ECB shall notify the payment system operator of its intention to initiate a process under Article 1 in view of the identification of that payment system as a SIPS. The written notice shall state all material facts and legal grounds regarding a possible identification of the payment system concerned as a SIPS.
Article 2b
Right of access to files during the process to identify a payment system as a SIPS
Upon receipt of the written notice referred to in Article 2a, the payment system operator shall be entitled to access the ECB’s files, documents or other material that serve as a basis for the identification of that payment system as a SIPS. This right shall not extend to information deemed to be confidential in relation to the ECB, a national central bank, or other third parties, including other Union institutions or bodies.
Article 2c
Right to be heard during the process to identify a payment system as a SIPS
1. In the written notice sent by the ECB in accordance with Article 2a, the payment system operator shall be given a fixed time limit within which it may express in writing any objections, views and comments regarding the facts and legal grounds presented in the written notice. This time limit shall be no less than 30 working days starting from the receipt of the written notice by the payment system operator.
2. The ECB may give the opportunity to the payment system operator, upon its request, to express its views in an oral meeting. Written minutes of the meeting shall be prepared and signed by all parties. A copy of the minutes shall be provided to all parties.
3. Notwithstanding paragraph 2, the ECB may issue a decision identifying a payment system as a SIPS without giving the payment system operator the opportunity to express its views, objections or comments on the facts and legal grounds presented in the written notice sent by the ECB, provided this is considered necessary to prevent significant damage to the financial system.
Article 2d
Motivation of the decision identifying a payment system as a SIPS
1. The ECB decision that identifies a payment system as a SIPS shall be accompanied by a statement of the reasons for that decision. The statement of reasons shall contain the material facts and legal grounds on which the ECB’s decision is based.
2. Subject to Article 2c, paragraph 3, the ECB shall base the decision referred to in paragraph 1 of this Article only on facts and legal grounds on which the payment system operator has been able to comment.’;
in Article 21, paragraph 2 is replaced by the following:
‘2. The ECB shall adopt a decision on the procedure and conditions for exercising the powers referred to in paragraph 1. The decision shall clearly state how these powers are to be exercised and the procedural aspects that are to be complied with where the competent authority is both the ECB and a national central bank pursuant to Article 2(5)(b)(ii).’;
in Article 22, paragraph 6 is replaced by the following:
‘6. The ECB shall adopt a decision on the procedure to be followed if corrective measures are to be imposed. The decision shall clearly state how this procedure is to be complied with where the competent authority is both the ECB and a national central bank pursuant to Article 2(5)(b)(ii).’.