Article 8 · ECB/2022/31

Contents

Article 8Infringement 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 10000 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 20000 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.