2007年-ECB欧洲央行_TARGET2-Securities_-_Legal_feasibility_7页_143kb

TARGET2-SECURITIES Legal Feasibility Summary

1. Introduction

On 6 July 2006, the ECB Governing Council decided to explore the establishment of TARGET2-Securities (T2S), a new securities settlement service in the euro area. The project must adhere to three key principles:

• Provide settlement for securities transactions in central bank money
• Be fully owned and operated by the Eurosystem
• Be an integrated platform for Delivery Versus Payment (DvP)

A legal feasibility study was conducted to assess the legal basis for T2S. The assessment concludes that there is an adequate legal foundation for the project, although further legal work may be required after approval.

2. Legal Basis

• T2S is a technical platform, not a new securities settlement system or legal entity.

• It operates under the same legal framework as TARGET2, relying on Articles 17, 18, and 22 of the Statute of the European System of Central Banks (ESCB):

  • Article 17 allows ECB and NCBs to open accounts for credit institutions, public entities, and market participants.
  • Article 18 grants the ESCB the competence to set conditions for conducting monetary policy operations and payment transactions, including collateralised credit operations.
  • Article 22 permits ECB and NCBs to provide facilities to ensure efficient clearing and payment systems.

• The Eurosystem will not create a new system but will support CSDs through a common technical infrastructure.

• The securities accounts will remain legally attributed to the CSDs, not to the Eurosystem.

3. Legal Assessment of the T2S Model

• T2S consists of two main components:

  • Settlement engine: Operated and owned by the Eurosystem, it processes transfer orders and provides IT infrastructure for settlement.
  • Securities accounts database: Maintained by CSDs, it stores and compiles account-related data.

• Legal location of accounts is determined by the jurisdiction of the CSD, not the technical location of the infrastructure.

• The technical infrastructure (settlement engine and database) does not affect the legal set-up, as CSDs retain legal responsibility for their accounts.

• The Eurosystem concludes that there are no major legal obstacles to the technical establishment of T2S and its operation in a database infrastructure not necessarily located in the same jurisdiction as the CSD.

4. Settlement Finality

• Settlement finality is a key legal principle ensuring that settlement activity is protected from revocation, insolvency, or unwinding risks.

• Two concepts are distinguished:

  • Finality of transfer orders: Transfer orders entered into T2S are protected under the Settlement Finality Directive (SFD), which ensures harmonised protection at the domestic level.
  • Finality of transfer: Entitlement to securities is legally transferred to the receiving entity, and this is determined by the legal location of the securities account, which is the same as the CSD's jurisdiction.

• The Eurosystem believes that the technical infrastructure location does not affect the legal location of the securities accounts.

5. Required Legal Arrangements

• Legal arrangements must clearly define the rights and obligations of CSDs and the Eurosystem.

• Two legal dimensions are considered:

  • Eurosystem-internal legal aspects: Should be governed by a Guideline or similar legal instrument to ensure a harmonised legal regime.
  • External legal relationships: Require contractual arrangements between the Eurosystem and CSDs, covering:
    • Scope of services
    • Governance and involvement in T2S
    • Access rights
    • Liability and confidentiality duties

• The Eurosystem anticipates no major legal impediments to setting up appropriate legal and contractual arrangements.

6. National Legislative Adaptations or EU Harmonisation

• The general legal feasibility suggests that T2S can be established without significant national adaptations.
• However, in some jurisdictions, minor regulatory adjustments may be necessary to align with T2S operations.
• The Settlement Finality Directive (SFD) already provides sufficient legal protection for settlement activity.
• Further EU harmonisation could enhance the legal soundness of T2S, especially regarding the transfer of proprietary rights via book entries through intermediaries.

7. Other Legal Issues

The Eurosystem has identified three additional legal issues that require attention:

1. Services to ancillary systems: T2S may offer different services to systems not using TARGET2 for cash payments. Any differences must be based on objective and transparent criteria and must not conflict with national or EU law.
2. Custodian banks connecting to T2S: Custodian banks may not receive the same level of settlement finality protection as CSDs. If they are allowed to connect, the SFD must be extended to cover them to ensure consistency.
3. Linking Eurosystem collateral to T2S: There are no legal obstacles to limiting the provision of Eurosystem collateral to T2S, provided that principles of proportionality and non-discrimination are respected.

Conclusion

The legal feasibility of T2S has been thoroughly assessed, and the Eurosystem concludes that there is an adequate legal basis for its development and operation. T2S will be a technical platform that supports DvP model 1 settlement and is integrated with TARGET2. The legal framework ensures settlement finality, non-discrimination, and compliance with free competition and open market principles. While no major legal impediments are anticipated, the Eurosystem will ensure that all legal arrangements are transparent, harmonised, and in line with the Statute and EU law.