ESCB/European banking supervision response to the European Commission’s public
consultation on a new digital finance strategy for Europe/FinTech action plan
Question 3.1
Please explain your answer to question 3 and specify if you see other areas that would
merit further attention from the Commission:
Subject to the following remarks, the ECB supports the European Commission’s
choice of priority areas, which appear to be broadly justified and consistent with the
legal framework related to EU financial services regulation.
Specifically, the EU financial services regulatory framework is already broadly
technology neutral. Looking at the legal framework governing the banking sector, the
Capital Requirements Regulation and Directive (CRR/CRD)
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package does not
include any provisions regarding preferential treatment in relation to banks using
innovative technologies. In addition, the revised Markets in Financial Instruments
Directive (MiFID II)
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speaks of a “system” in the context of defining regulated
markets, multilateral trading facilities (MTFs) or organised trading facilities (OTFs)
without distinguishing in terms of the technology they deploy. Equally, from a
payments and post-trading perspective, the revised Payment Services Directive
(PSD2)
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, the Settlement Finality Directive (SFD)
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, the Systemically Important
Payment Systems Regulation (SIPSR)
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, the European Market Infrastructure
Regulation (EMIR)
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and the Centralised Securities Depository Regulation (CSDR)
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describe a “system” in contractual rather than technological terms. As a regulatory
focus, technological neutrality – especially in an open market economy with free
competition, such as the Single Market – is conducive to innovation-friendly regulatory
outcomes.
However, in matters of regulation, technological neutrality should not be viewed in
isolation; instead, it needs to be balanced against the risks that the free use of
technological innovation may entail. There are several examples where the EU
legislator regulated technological developments differently due to their novel risks. For
instance, MiFID II seeks to ensure that algorithmic trading or high-frequency
algorithmic trading techniques do not create a disorderly market and cannot be used
for abusive purposes. Similarly, while the GDPR
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acknowledges that the increased
25
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on
prudential requirements for credit institutions and investment firms (OJ L 176, 27.6.2013, p. 1) and
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the
activity of credit institutions and the prudential supervision of credit institutions and investment firms
(OJ L 176, 27.6.2013, p. 338).
26
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in
financial instruments (OJ L 173, 12.6.2014, p. 349).
27
Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on
payment services in the internal market (OJ L 337, 23.12.2015, p. 35).
28
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality
in payment and securities settlement systems (OJ L 166, 11.6.1998, p. 45).
29
Regulation of the European Central Bank (EU) No 795/2014 of 3 July 2014 on oversight requirements for
systemically important payment systems (ECB/2014/28) (OJ L 217, 23.7.2014, p. 16).
30
Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC
derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).
31
Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on
improving securities settlement in the European Union and on central securities depositories (OJ L 257,
28.8.2014, p. 1).
32
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data (OJ L 119, 4.5.2016, p. 1).