Regulation (EU) 2022/1917 of the European Central Bank of 29 September 2022 on infringement procedures in cases of non-compliance with statistical reporting requirements and repealing Decision ECB/2010/10 (ECB/2022/31)
Subject matter and scope
This Regulation establishes a harmonised framework in which sanctions may be imposed on reporting agents for non-compliance with statistical reporting requirements laid down by ECB regulations and decisions. In particular, it establishes the scope of monitoring of compliance by the reporting agents with those requirements and defines the following procedures to be applied by the competent Eurosystem central bank:
(1)
monitoring and recording procedure;
(2)
reporting procedure;
(3)
notification procedure;
(4)
endorsement and implementation of a remedial plan;
(5)
infringement procedure.
Definitions
For the purposes of this Regulation, the following definitions apply:
(1)
‘competent Eurosystem central bank’ means the competent NCB or, in the case of direct reporting, the ECB;
(2)
‘competent NCB’ means the NCB of the euro area Member State in whose jurisdiction the alleged infringement occurred;
(3)
‘cumulative alleged infringement’ means a series of alleged infringements listed under any of points (a) to (e) of Article 8(2) of this Regulation which occur in respect of one or more statistical reporting requirements under the same ECB regulation or decision;
(4)
‘direct reporting’ means reporting by reporting agents of statistical information directly to the ECB in accordance with the decision of a competent NCB pursuant to a regulation or decision of the ECB;
(5)
‘beyond the reporting agent’s control’ means an unforeseeable external event beyond a reporting agent’s reasonable control, the consequences of which would have been unavoidable despite all reasonable efforts to the contrary;
(6)
‘reporting agents’ means ‘reporting agents’ as defined in Article 1(2) of Regulation (EC) No 2533/98;
(7)
‘infringement’ means ‘infringement’ as defined in Article 1(4) of Regulation (EC) No 2532/98;
(8)
‘sanctions’ means ‘sanctions’ as defined in Article 1(7) of Regulation (EC) No 2532/98;
(9)
‘statistical reporting requirements’ means ‘the ECB’s statistical reporting requirements’ as defined in Article 1(1) of Regulation (EC) No 2533/98;
(10)
‘alleged infringement’ means non-compliance by a reporting agent with the statistical reporting requirements of an ECB regulation or decision which:
(a)
has been identified by the competent Eurosystem central bank; and
(b)
has not yet been confirmed to be an infringement in a reasoned decision adopted by the Executive Board of the ECB pursuant to Article 3(4) of Regulation (EC) No 2532/98.
Monitoring and recording
1. Competent NCBs shall monitor compliance with statistical reporting requirements by reporting agents on an ongoing basis and shall record alleged infringements of those requirements in a dedicated system. Each competent NCB shall maintain such a system for the purposes of this Regulation.
2. The ECB shall monitor compliance with statistical reporting requirements by reporting agents in cases of direct reporting on an ongoing basis, with the cooperation of the competent NCB upon request by the ECB and shall record alleged infringements of those requirements in a dedicated system. The ECB shall maintain that system for the purposes of this Regulation.
3. Where a reporting agent claims that an alleged infringement is due to circumstances beyond the reporting agent’s control, the competent Eurosystem central bank shall register the claim when recording the details of the alleged infringement.
4. Where a competent Eurosystem central bank identifies more than one alleged infringement of statistical reporting requirements by the same reporting agent, it shall record each alleged infringement separately.
Local cooperation arrangements
1. Where a competent NCB reports statistical information to the ECB which it has collected via a national competent authority (NCA) pursuant to local cooperation arrangements, that competent NCB shall ensure that information collected and transmitted via the respective NCA allows for the effective monitoring of compliance with statistical reporting requirements.
2. Where a reporting agent provides statistical information to the competent NCB via an NCA pursuant to local cooperation arrangements prior to the initiation of an infringement procedure, the competent NCB shall liaise with the relevant NCA to obtain information as to whether the alleged infringement occurred as a result of actions or inactions by the reporting agent and to ensure that no more than one infringement procedure based on the same facts is initiated against the same reporting agent at a time.
3. Where a reporting agent provides statistical information to the competent NCB via an NCA pursuant to local cooperation arrangements, the competent NCB shall inform the relevant NCA in cases where a remedial plan referred to in Article 7 has been submitted by the reporting agent and endorsed by the competent NCB, as well as whether or not it has been successfully implemented, and in cases where a sanction has been imposed on a reporting agent by the Executive Board of the ECB in accordance with Article 3 of Regulation (EC) No 2532/98 and Article 7 of Regulation (EC) No 2533/98.
Reporting
1. Competent NCBs shall promptly report to the ECB each of the following alleged infringements:
(a)
any alleged infringement by a reporting agent of daily reporting requirements;
(b)
three or more alleged infringements by a reporting agent of monthly reporting requirements within six consecutive months;
(c)
three or more alleged infringements by a reporting agent of quarterly reporting requirements within four consecutive quarters;
(d)
two or more consecutive alleged infringements by a reporting agent of semi-annual reporting requirements;
(e)
any alleged infringement by a reporting agent of annual reporting requirements.
For the purposes of reporting alleged infringements pursuant to this paragraph, competent NCBs shall record those alleged infringements in the same dedicated system as referred to in Article 3(1).
2. Competent NCBs shall report each of the following cases of serious misconduct to the ECB as soon as it is identified:
(a)
any systematic or intentional failure to report statistical information to the competent NCB within the prescribed deadline;
(b)
any systematic or intentional failure to report correct or complete statistical information;
(c)
any systematic or intentional failure to comply with the prescribed form of the statistical reporting requirements;
(d)
any failure to cooperate effectively with the competent NCB or to apply a reasonable degree of diligence.
For the purposes of identifying serious misconduct, the competent NCB may request additional information from the reporting agent.
For the purposes of reporting serious misconduct pursuant to this paragraph, competent NCBs shall record the serious misconduct in the same dedicated system as referred to in Article 3(1).
3. The ECB shall inform the competent NCB without delay of any alleged infringements or serious misconduct referred to in paragraphs 1 and 2 that it has identified in cases of direct reporting and shall record those alleged infringements or the serious misconduct in the same dedicated system as referred to in Article 3(2).
Notification
1. Prior to the initiation of an infringement procedure pursuant to Article 8, the competent Eurosystem central bank shall provide the reporting agent concerned with a warning by way of a written notification of at least the following:
(a)
the nature of the alleged infringements;
(b)
the possibility that an infringement procedure may be initiated and the possibility, in such case, that a sanction may be imposed on the reporting agent;
(c)
that the reporting agent has an opportunity to provide reasons, including that the alleged infringements were due to circumstances beyond the reporting agent’s control;
(d)
that the alleged infringements are to be corrected, if not already corrected, to ensure compliance with the statistical reporting requirements; and
(e)
where relevant, that the competent Eurosystem central bank may endorse a remedial plan, if submitted, to be implemented by the reporting agent.
2. Where a competent Eurosystem central bank has identified a case of serious misconduct pursuant to Article 5(2), it shall contact the reporting agent concerned, in writing, to notify that reporting agent of at least the following:
(a)
the nature of the serious misconduct;
(b)
that an infringement procedure is to be initiated and the possibility, in such case, that a sanction may be imposed on the reporting agent;
(c)
that the reporting agent has an opportunity to provide reasons; and
(d)
that the serious misconduct is to be corrected by the reporting agent to ensure compliance with the statistical reporting requirement and, where relevant, to ensure effective cooperation with the competent Eurosystem central bank, without delay.
3. The competent Eurosystem central bank shall provide to the reporting agent the written notification referred to in paragraphs 1 and 2 as soon as possible following the occurrence of the alleged infringement or after the serious misconduct first became known to that Eurosystem central bank. Where there is an alleged infringement of daily reporting requirements, the competent Eurosystem central bank shall provide such notice, wherever practical, before a cumulative alleged infringement occurs.
Remedial plan
1. Following the provision of a warning of an alleged infringement in accordance with Article 6(1), and once the threshold for a cumulative alleged infringement referred to in Article 8(2) has been reached, the competent Eurosystem central bank shall notify the reporting agent concerned that it may submit a remedial plan.
2. Within 60 calendar days of the notification referred to in paragraph 1, the competent Eurosystem central bank may endorse a remedial plan submitted by a reporting agent in accordance with this Article.
3. This Article shall not apply in either of the following cases:
(a)
serious misconduct referred to in Article 5(2); or
(b)
an alleged infringement of the statistical reporting requirements set out in Regulation (EU) No 1333/2014 (ECB/2014/48).
4. A remedial plan shall be prepared by the reporting agent and shall at least:
(a)
state the reasons for the alleged infringement;
(b)
set out the corrective measures to be taken by the reporting agent, including a provision to submit the correct or missing statistical information without delay;
(c)
include a timetable for the implementation of the measures referred to in point (b); and
(d)
include the details of the responsible contact person(s).
5. The competent Eurosystem central bank shall assess a remedial plan submitted pursuant to paragraph 4 without delay and in any case within 12 calendar days from the date of such submission, and, where applicable, having due regard to any comments provided by the ECB in accordance with paragraph 7, it shall either:
(a)
endorse the plan and set a final deadline of not more than 60 calendar days for the overall implementation of that plan from the date of its endorsement; or
(b)
where the plan is not sufficient to remedy the alleged infringement, request that the reporting agent prepares and submits a revised remedial plan within 10 calendar days from the date of such request.
6. Where a revised remedial plan is submitted within the deadline set out in paragraph 5, point (b), the competent Eurosystem central bank shall assess it without delay and in any case within 8 calendar days from the date of such submission, and, where applicable, having due regard to any comments provided by the ECB in accordance with paragraph 7, it shall either:
(a)
endorse the revised remedial plan and set a final deadline of not more than 42 calendar days for the overall implementation of that plan from the date of its endorsement; or
(b)
where the revised remedial plan is not sufficient to remedy the alleged infringement, reject it and initiate an infringement procedure in accordance with Article 8.
7. A competent NCB shall submit any remedial plan or any revised remedial plan it receives pursuant to this Article to the ECB without delay. Where the ECB considers that the plan is not sufficient to remedy the alleged infringement, the following shall apply:
(a)
in the case of a remedial plan as referred to in paragraph 5, the competent NCB shall request that the reporting agent prepare and submit a revised remedial plan within 10 calendar days from the date of such request; and
(b)
in the case of a revised remedial plan as referred to in paragraph 6, the competent NCB shall reject it and initiate an infringement procedure in accordance with Article 8.
8. Where a competent Eurosystem central bank endorses a remedial plan pursuant to paragraph 5 or 6, it shall monitor the implementation of that plan and verify whether the corrective measures therein have been applied effectively and without delay.
9. A competent Eurosystem central bank may extend the deadline for the implementation of a remedial plan endorsed pursuant to paragraph 5 or 6 once, in exceptional circumstances and provided that the reporting agent demonstrates that the remedial plan is being implemented effectively. Any extension shall be limited to the period that the competent Eurosystem central bank considers necessary for the reporting agent to implement the remedial plan, and in any event no longer than 30 calendar days from the expiry of the final deadline referred to in paragraph 5 or 6, as applicable.
10. Competent NCBs and the ECB shall notify each other of any remedial plan agreed with a reporting agent as soon as such a plan is endorsed and keep each other informed as to each plan’s implementation.
11. Where a remedial plan is endorsed and implemented pursuant to this Article, the competent Eurosystem central bank shall not initiate an infringement procedure pursuant to Article 8 in relation to the same alleged infringement by the same reporting agent before the final deadline referred to in paragraph 5 or 6, as applicable, has expired, subject to any extension granted pursuant to paragraph 9.
12. Where a reporting agent fails to comply with a deadline as referred to in paragraph 5 or 6, or any extended deadline granted under paragraph 9, or where the alleged infringement is not remedied by the final deadline referred to in paragraph 5 or 6 or any extended deadline granted under paragraph 9 as applicable, the competent Eurosystem central bank shall initiate an infringement procedure in accordance with Article 8.
13. Notwithstanding paragraphs 1 to 12, competent Eurosystem central banks shall continue to monitor the one or more alleged infringements which are the subject of a remedial plan and compliance by the reporting agents with statistical reporting requirements, and continue to record and report any alleged infringements in accordance with Articles 3 and 5.
Infringement procedure
1. Competent NCBs or the ECB shall initiate an infringement procedure against a reporting agent in each of the following cases:
(a)
serious misconduct as referred to in Article 5(2);
(b)
a cumulative alleged infringement of the statistical reporting requirements set out in Regulation (EU) No 1333/2014 (ECB/2014/48) as referred to in paragraph 2;
(c)
a cumulative alleged infringement as referred to in paragraph 2, where no remedial plan has been submitted in accordance with Article 7 or where the remedial or the revised remedial plan submitted by the reporting agent has not been endorsed by the competent Eurosystem central bank in accordance with Article 7(5) or 7(6); or
(d)
a cumulative alleged infringement as referred to in paragraph 2, where the final deadline for implementation of a remedial plan or a revised remedial plan as referred to in Article 7(5) or 7(6), as applicable, or its extension as referred to in Article 7(9), has expired before the non-compliance is remedied.
2. For the purposes of paragraph 1, points (b), (c) and (d), a cumulative alleged infringement shall include each of the following:
(a)
at least three alleged infringements by a reporting agent of daily reporting requirements within the same month or at least five alleged infringements within three consecutive calendar months;
(b)
at least three alleged infringements by a reporting agent of monthly reporting requirements within six consecutive months;
(c)
at least three alleged infringements by a reporting agent of quarterly reporting requirements within four consecutive quarters;
(d)
any two consecutive alleged infringements by a reporting agent of semi-annual reporting requirements;
(e)
any two consecutive alleged infringements by a reporting agent of annual reporting requirements.
3. Competent NCBs or the ECB may initiate an infringement procedure against a reporting agent in cases of alleged infringements not referred to in paragraph 1. In such cases, the competent NCB or ECB shall take the circumstances of the specific case into account when determining whether or not to initiate an infringement procedure, including the following where relevant:
(a)
whether the reporting agent has demonstrated good faith in the interpretation and fulfilment of the statistical reporting requirement;
(b)
whether the reporting agent has demonstrated diligence and cooperation in the interpretation and fulfilment of the statistical reporting requirement;
(c)
whether the reporting agent has demonstrated wilful deceit in the interpretation and fulfilment of the statistical reporting requirement;
(d)
the seriousness of the effects of the alleged infringement;
(e)
the repetition, frequency or duration of the alleged infringement;
(f)
any benefits to the reporting agent resulting from the alleged infringement;
(g)
the economic size of the reporting agent;
(h)
whether the reporting agent has been subject to prior sanctions for non-compliance with statistical reporting requirements.
4. For the purposes of paragraphs 1 and 3, competent NCBs or the ECB shall initiate an infringement procedure in accordance with the following:
(a)
Article 2 of Regulation (EC) No 2157/1999 (ECB/1999/4); and
(b)
Articles 3 and 4 of Regulation (EC) No 2532/98.
5. Competent NCBs or the ECB may initiate an infringement procedure even where the competent Eurosystem central bank has failed to record or report the alleged infringement pursuant to Articles 3 and 5.
6. Except in cases of serious misconduct, a competent NCB or the ECB shall not initiate an infringement procedure where it considers that the alleged infringement was committed due to circumstances beyond the reporting agent’s control. When determining whether an alleged infringement occurred due to circumstances beyond the reporting agent’s control, competent NCBs and the ECB shall take into account, in particular, whether the circumstances:
(a)
were sufficiently unusual;
(b)
were exceptional;
(c)
were unforeseeable;
(d)
can be attributed to any action or inaction of the reporting agent.
Technical difficulties or difficulties related to the maintenance and upgrading of IT infrastructure, including outsourced IT infrastructure, shall not be considered to be beyond the reporting agent’s control.
7. A competent NCB or the ECB shall not initiate an infringement procedure where either of the following apply:
(a)
the potential fine for the alleged infringement is not likely to exceed EUR 10 000 in the case of an alleged infringement relating to a failure to report any statistical information to the ECB or competent NCB by the applicable deadline; or
(b)
the potential fine for the alleged infringement is not likely to exceed EUR 20 000 in the case of alleged infringements relating to statistical information being incorrect, incomplete or in a form not complying with an applicable requirement.
Where an infringement procedure has been initiated, fine amounts below those indicated in the first subparagraph may be imposed.
8. A competent NCB or the ECB shall not initiate an infringement procedure against a reporting agent where another infringement procedure has been initiated or a sanction has been imposed against the same reporting agent on the basis of the same facts.
9. A competent NCB or the ECB shall retain electronic records of each infringement procedure it has initiated pursuant to this Regulation.
Sanctions methodology
The ECB shall adopt a decision on the methodology for the calculation of the proposed amount of sanctions.
Review
The Governing Council shall review the general application and implementation of this Regulation by no later than five years following the date on which it enters into force, and thereafter every three years, and assess whether it should be amended.
Transitional provisions
1. Article 8 shall not apply for a period of 12 months following the first reporting pursuant to an applicable ECB regulation or decision where any of the following applies:
(a)
the statistical information is reported for the first time pursuant to the ECB regulation or decision;
(b)
the statistical reporting requirements have been substantively amended by the ECB regulation or decision, such that the underlying conceptual framework is changed or the reporting burden affected, and the corresponding statistical information are reported for the first time since such amendment;
(c)
the statistical information is reported by new reporting agents or reporting agents of new undertakings which have not previously been subject to statistical reporting requirements under the same regulatory framework.
2. Paragraph 1 shall not apply in the cases of serious misconduct referred to in Article 5.
3. Where any alleged infringement occurs prior to the relevant date of application of this Regulation as specified in Article 14, the competent NCB or the ECB shall comply with the requirements of Decision ECB/2010/10 including in cases of repeated non-compliance referred to in Article 3(2), point (b), of that Decision, where one or more instances of non-compliance occur before and after the relevant date of application of this Regulation.
Specific application for infringements of money market statistical reporting
In cases of alleged infringements of Regulation (EU) No 1333/2014 (ECB/2014/48), competent NCBs and the ECB shall comply with the requirements laid out in this Regulation from 31 January 2023.
Repeal
Decision ECB/2010/10 is hereby repealed with effect from 31 January 2023. However, it shall continue to apply to alleged infringements which occur prior to the relevant date of application of this Regulation as specified in Article 14.
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
It shall apply from 30 April 2024, except for Article 12 which shall apply from 31 January 2023.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
