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January 21, 2019

ECB published its opinion (CON/2019/2) on CBM’s supervision of credit reference agencies and its oversight of payment services. The opinion was issued in response to a request from CBM for an opinion on a draft law amending the CBM Act and on a draft Directive No 15 on the supervision of credit reference agencies. CBM also informed ECB that it intends to amend Directive No 14 on the Central Credit Register, along with the draft law amending the CBM Act and the draft directive on credit reference agencies, collectively referred to as the “draft law.”

The ECB opinion focuses on certain areas of the draft law of interest to ECB, including CBM's oversight of payment services (Section 3), its new supervisory powers with respect to credit reference agencies (Section 4), and its access to the Central Credit Register (Section 5). Finally, the opinion examines the new tasks conferred on CBM against the prohibition of monetary financing (Section 6). The definition of credit reference agencies pursuant to the draft law falls outside the scope of Credit Rating Agencies Regulation (Regulation No 1060/2009) because this regulation does not apply to credit scores, credit scoring systems, or similar assessments related to obligations arising from consumer, commercial, or industrial relationships. As credit reference agencies fall outside the scope of this regulation, ESMA would not have supervisory powers over such entities. In the vast majority of member states, credit reference agencies remain unregulated, except for data protection aspects. 

ECB welcomes the provisions of the draft law extending access to the Central Credit Register to Union institutions, which create databases comparable to the Register and conclude reciprocity arrangements with CBM, and any other institution as CBM may consider necessary. ECB welcomes that the draft law provides that CBM may provide access to the information held in the Central Credit Register to any other institution that CBM may consider necessary. ECB considers that, if necessary for the fulfillment of its tasks, this provision could give ECB an additional legal basis for accessing the Register.

ECB notes that the draft law does not confer genuinely new tasks on CBM, but rather extends CBM’s powers to facilitate the exercise of a task already assigned to it. ECB underlines that a proposed conferral of new tasks on a national central bank of the European System of Central Banks (ESCB) must be assessed against the criteria for determining what constitutes a government task from the perspective of the monetary financing prohibition laid down in Article 123 of the Treaty. While the new task conferred on CBM regarding the supervision of credit reference agencies is not among the tasks conferred on ECB and national central banks by the Treaty and the Statute of ESCB, this task is not atypical of the national central bank tasks in those member states that have chosen to regulate and supervise credit reference agencies with respect to their credit scoring. Moreover, it is common for national central banks to be involved in activities related to the management of credit risk. As CBM’s new task is furthermore not discharged on behalf of, and in the exclusive interest of, the government, CBM’s new supervisory task in relation to credit reference agencies does not constitute a government task.

 

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Keywords: Europe, Malta, Banking, Securities, Credit Reference Agencies, Opinion, Central Credit Register, CBM Act, CON/2019/2, CBM, ECB

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