HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 134/22
EN
Official Journal of the European Union
21.5.2011
DECISIONS
DECISION OF THE EUROPEAN CENTRAL BANK
of 20 April 2011
on the selection of TARGET2-Securities network service providers
(ECB/2011/5)
(2011/295/EU)
THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,
(5) On
13
August
2010,
the
T2S
Programme
Board
decided
that the Banca d’Italia’s liability should be specified more
precisely in a mandate from the Eurosystem central
Having regard to the Statute of the European System of Central
banks to the Banca d’Italia to carry out the selection
Banks and of the European Central Bank (hereinafter the ‘Statute
procedure.
of the ESCB’) and in particular Articles 3.1 and 12.1 and
Articles 17, 18 and 22 thereof,
(6)
The purpose of the selection procedure is to entrust
network service providers to provide a set of predefined
Whereas:
connectivity services, on the basis of which the T2S

network service providers design, implement, deliver
and operate connectivity solutions intended to securely
(1) TARGET2-Securities
(hereinafter
‘T2S’)
aims
to
facilitate
exchange business information between the directly
post-trading integration by offering core, neutral and
connected T2S actors and the T2S platform.
borderless pan-European cash and securities settlement
in central bank money so that central securities deposi
(7) Although
a
selection
procedure
for
T2S
network
service
tories (CSDs) can provide their customers with
providers falls outside the scope of Directive 2004/18/EC
harmonised and commoditised delivery-versus-payment
of the European Parliament and of the Council of
settlement services in an integrated technical
31 March 2004 on the coordination of procedures for
environment with cross-border capabilities.
the award of public works contracts, public supply
contracts and public service contracts ( 1 ), the rules laid
down in Directive 2004/18/EC, the procedures laid down
(2) In
the
context
of
the
Third
Interim
T2S
Progress
Report,
in Decision ECB/2008/17 of 17 November 2008 laying
in February 2010, the T2S Programme Board decided
down the framework for joint Eurosystem
that the Deutsche Bundesbank, the Banco de Espaa,
procurement ( 2 ) and the national law implementing
the Banque de France and the Banca d’Italia (hereinafter
Directive 2004/18/EC where applicable to the
the ‘4CB’) would make necessary preparations to have up
mandated central bank should be used as general
to three T2S network service providers to provide
guidelines.
connectivity services to the T2S platform and that the
Banca d’Italia would lead the selection procedure.
(8) Banca
d’Italia
has
been
appointed
by
the
Governing
Council to carry out the selection procedure for T2S
network service providers.
(3) In
the
context
of
the
Fourth
T2S
Progress
Report,
at
its
meeting of 21 April 2010, the Governing Council
decided that the network provision in T2S would be
(9) Banca
d’Italia
had
accepted
the
appointment
and
has
subject to a competition and that a maximum of three
confirmed its willingness to act in accordance with this
licences would be granted.
Decision,
HAS ADOPTED THIS DECISION:
(4)
In the context of the Fifth T2S Progress Report, in July
2010, the T2S Programme Board decided that the Banca
d’Italia would act as the operating arm of the Eurosystem
Article 1
for the selection procedure. It also decided that the T2S
Definitions
Programme Board would be responsible for designating
the selection panel members since the Eurosystem central
For the purposes of this Decision, the following definitions shall
banks would be responsible and liable for the selection
apply:
criteria and for the outcome of the selection panel’s
decision based on the selection criteria. The Banca
(a) ‘central bank’ means the European Central Bank (ECB) or a
d’Italia would be responsible for correctly conducting
euro area national central bank (NCB) or another central
the selection procedure and its specific liability related
bank that makes its currency available in T2S;
to the selection procedure would be separate from the
liability assumed by the 4CB under the Level 2-Level 3
( 1 ) OJ L 134, 30.4.2004, p. 114.
agreement.
( 2 ) OJ L 319, 29.11.2008, p. 76.

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EN
21.5.2011 Official
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European
Union L
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(b) ‘central securities depository’ (CSD) means an entity that: (a)
selection procedure for the T2S network service providers
enables securities transactions to be processed and settled
and vested by the Eurosystem central banks with the power
by book entry; (b) provides custodial services, e.g. the
to sign the licence agreements with the selected participants
administration of corporate actions and redemptions; and
in the name and interest of the Eurosystem central banks;
(c) plays an active role in ensuring the integrity of issues of
securities;
(m) ‘T2S services’ means the services to be provided by the
Eurosystem central banks to CSDs and central banks;
(c) ‘T2S Programme Board’ means the Eurosystem
management body established pursuant to Decision
ECB/2009/6 of 19 March 2009 on the establishment of
(n) ‘licence agreement’ means an agreement governed by
the TARGET2-Securities Programme Board (
German law, as proposed by the T2S Programme Board

1 ), which has
the task of developing proposals for the Governing
and approved by the Governing Council, setting out the
Council on key strategic issues and executing tasks of a
reciprocal rights and obligations of the Eurosystem central
purely technical nature in relation to T2S, or its successor;
banks and of the relevant T2S network service provider;
(d) ‘T2S network service provider’ means a network service
(o) ‘selected participant’ means a participant in the selection
provider that has signed a licence agreement to provide
procedure for the T2S network service providers that has
connectivity services;
been awarded a licence agreement;
(e) ‘connectivity services’ means the direct network connection
(p) ‘contract notice’ means the notice of the selection
to the T2S platform that a directly connected T2S actor
procedure to be published in the Official Journal of the
requires a T2S network service provider to provide in order
European Union and in the national official journal of the
to benefit from, or perform tasks and responsibilities
Member State where the mandated central bank is located;
related to, the T2S services;
(q) ‘awarding rules’ means the detailed rules governing the
(f) ‘licence’ means the act of conferring the right as granted by
selection procedure constituting part of the selection acts
the Eurosystem central banks to a T2S network service
to be published;
provider to provide to the directly connected T2S actors
a set of predefined connectivity services, on the basis of
which a T2S network service provider shall design,
(r) ‘selection acts’ means the award announcement, the
implement, deliver and operate solutions intended to
contract notice, as well as the awarding rules, and their
exchange securely electronic data between the directly
annexes and attachments;
connected T2S actors and the T2S platform;
(s) ‘euro area NCB’ means the NCB of a Member State whose
(g) ‘selection panel’ means a panel of five experts composed of
currency is the euro;
one representative from each of the mandated central bank
(acting as chairperson), the 4CB and EPCO, as well as two
(t) ‘proof
of
concept’
means
a
test
to
be
performed
by
a
T2S
representatives from the Eurosystem central banks, each of
network service provider after the signature of the licence
them designated by the T2S Programme Board and
agreement, aimed at verifying the compliance of its offered
formally appointed by the mandated central bank;
solution with basic functional, resilience and security
requirements;
(h) ‘Eurosystem Procurement Coordination Office’ (EPCO)
means the body created under Decision 2008/893/EC
(u) ‘go-live date’ means the date on which the first CSD starts
(ECB/2008/17) to coordinate joint Eurosystem
using the T2S services.
procurement;
(i) ‘Eurosystem central bank’ means either a euro area NCB or
Article 2
the ECB;
Mandated central bank
(j) ‘Level 2-Level 3 agreement’ means the supply and operation
The mandated central bank shall for the benefit of the Euro
agreement that is negotiated between the T2S Programme
system central banks:
Board and the 4CB, endorsed by the Governing Council
and subsequently signed by the Eurosystem central banks
(a) carry out the selection procedure for T2S network service
and the 4CB. It contains the additional details of the tasks
providers in full cooperation with the T2S Programme
and responsibilities of the 4CB, the T2S Programme Board
Board and the selection panel, in its own name and in
and the Eurosystem central banks;
the interest of the Eurosystem central banks, by providing
the material and human resources required to ensure that
(k) ‘directly connected T2S actor’ means any entity that is
the selection procedure complies with the law applicable in
authorised to exchange electronic data with the T2S
the Member State of the mandated central bank; and
platform;
(b) in line with the selection panel’s decision, sign the relevant
(l) ‘mandated central bank’ means the euro area NCB
licence agreement in the name and interest of the Euro
appointed by the Governing Council to conduct the
system central banks, with the total number of T2S
network service providers not exceeding two at any given
( 1 ) OJ L 102, 22.4.2009, p. 12.
time.

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L 134/24
EN
Official Journal of the European Union
21.5.2011
Article 3
mandated central bank immediately after the end of the
bidding period;
Selection and awarding conditions
1. The
mandated
central
bank
shall
carry
out
the
procedure
for the selection of T2S network service providers in
(i) selection panel members shall be obliged to sign the
compliance with the general principles laid down in the
declaration of absence of conflict of interest that has been
Treaty on the Functioning of the European Union, including
approved by the T2S Programme Board;
transparency, proportionality, equal treatment, equal access
and non-discrimination.
(j) the mandated central bank shall undertake the operational
aspects of the selection procedure;
2. The
total
number
of
T2S
network
service
providers
shall
not exceed two at any given time.
(k) the selection panel shall, inter alia, examine the adminis
trative and technical documentation, and decide on the
3. When
carrying
out
the
selection
procedure,
the
mandated
exclusion from the selection procedure of participants not
central bank shall in particular observe the following conditions:
fulfilling the participation requirements. The selection panel
shall evaluate abnormally low offers pursuant to the rules
laid down in the selection acts. The selection panel shall
(a) it shall carry out an open procedure for the award of the
rank the participants not excluded from the selection
licences whereby any interested economic operator may
procedure in increasing order of their economic offers;
submit an offer;
(l) The mandated central bank shall formally communicate all
(b) all selection acts shall be prepared jointly by the Eurosystem
of the selection panel’s decisions to the participants
central banks and the mandated central bank, and approved
concerned using a secure and prompt means of written
by the T2S Programme Board;
communication.
(c) the T2S network service providers shall be selected on the
basis of the lowest maximum price for a standard set of
4. Once the selection panel has ranked the participants in
services to be provided to the community of directly
accordance with paragraph 3(k) (preliminary awarding), the
connected T2S actors, according to the model approved
mandated central bank shall, under its responsibility,
by the T2S Programme Board;
undertake an internal legitimacy check to verify that the
selection procedure was carried out correctly. When this
check has been successfully completed, the mandated central
(d) all selection acts shall be published in English. The
bank shall issue the final award and shall verify that the
mandated central bank may also publish the contract
selected participants fulfil the participation requirements and
notice in its official language. The participants in the
that their self declarations are truthful. Should the legitimacy
selection procedure shall submit their offers and all supple
check be unsuccessful, the final award shall be deferred and the
mental documents in English;
mandated central bank shall seek guidance thereon from the
T2S Programme Board.
(e) the mandated central bank shall specify in the contract
notice that the selection procedure is carried out in its
5. The
mandated
central
bank
shall
act
in
its
name
and
name and interest as well as in the interest of the Euro
interest as well as in the interest of the Eurosystem central
system central banks;
banks as regards all rights and obligations stemming from the
selection procedure. It shall also report thereon to and comply
(f) the mandated central bank shall publish the contract notice
with decisions taken by the T2S Programme Board.
at a minimum in: (i) the Official Journal of the European
Union; (ii) the national official journal used for contract
6.
The mandated central bank shall bear its own costs related
notices by the mandated central bank; (iii) two national
to the tasks it carries out in the selection procedure.
newspapers; and (iv) the Financial Times and The Economist.
The selection acts shall be published on the mandated
central bank’s website. The contract notice shall also be
Article 4
published on the ECB’s website, with a link to the
mandated central bank’s website in order to enable access
Licence agreement
to all the selection acts;
1. Once
the
selection
and
awarding
procedure
have
been
concluded by the mandated central bank under the conditions
(g) the mandated central bank shall respond to requests for
mentioned above, the mandated central bank and the selection
clarification in the selection procedure sent to the e-mail
panel shall undertake all necessary preparatory measures to
address specified in the contract notice. Any such
enable the mandated central bank to enter into a licence
response shall be published by the mandated central bank
agreement with each of the selected participants in the name
and the ECB on their respective websites;
and interest of the Eurosystem central banks. To this end, the
Eurosystem central banks shall vest the mandated central bank
with the power to sign the licence agreements, by way of a
(h) selection panel members shall be designated by the T2S
separate power of attorney to act in the name and interest of
Programme Board and formally appointed by the
the Eurosystem central banks (disclosed agency).

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EN
21.5.2011 Official
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European
Union L
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2. Subsequent
to
signing
the
licence
agreement,
a
T2S reasonable expenses it incurs for the management and moni
network service provider shall perform a proof of concept. If
toring of the licence agreements pursuant to paragraphs 6 to 8.
the T2S network service provider fails to successfully perform
the proof of concept, the licence agreement shall be terminated.
Under such circumstance, the mandated central bank shall
award a licence to the participant in the selection procedure
Article 5
that ranked next highest in the ranking list after the selected
participants.
Compensation claims
1. The
mandated
central
bank
shall
be
liable
to
the
Euro
system central banks without limitation for any loss or damage
3. Without
prejudice
to
the
following
paragraphs,
a
licence resulting from fraud or wilful misconduct in the performance of
awarded in the initial selection procedure shall expire 7 years
its rights and obligations under this Decision. It shall be liable
following the go-live date.
to the Eurosystem central banks for any loss or damage
resulting from its gross negligence in performing its obligations
under this Decision, in which case its liability shall be limited to
4. Where a licence agreement with a T2S network service
a maximum total amount of EUR 2 000 000 per calendar year.
provider is terminated before the end of its duration, but after
the successful performance of the proof of concept, at the T2S
Programme Board’s discretion, a licence agreement may either
be offered to the participant in the selection procedure that
2. Where
losses
or
damages
are
suffered
by
a
third
party
ranked next highest in the ranking list after the selected
arising from fraud or wilful misconduct of the mandated
participants, or be awarded to another network service
central bank in performing its duties under this Decision, the
provider following a new selection procedure to be carried
mandated central bank shall be responsible for any compen
out by the mandated central bank or by another Eurosystem
sation to be paid to that third party.
central bank appointed by the Governing Council. The new
licence agreement shall have a duration of 7 years.
5. Upon the T2S Programme Board’s request, the mandated
3. Where
losses
or
damages
are
suffered
by
a
third
party
central bank shall extend the duration of all licence agreements
arising from the mandated central bank’s gross or ordinary
twice by 1 year.
negligence in performing its duties under this Decision, the
mandated central bank shall be responsible for any compen
sation to be paid to that third party. The Eurosystem central
banks shall reimburse the mandated central bank for any such
6.
The mandated central bank shall be mandated to represent
compensation that exceeds a maximum total amount of EUR
the Eurosystem central banks jointly vis-à-vis the T2S network
2 000 000 per calendar year, on the basis of a court statement
service providers and other third parties in relation to the
or of a settlement agreement between the mandated central
connectivity services as well as to manage the licence
bank and any such third party, provided that the settlement
agreements in the name and interest of the Eurosystem
agreement has been approved in advance by the T2S
central banks on an ongoing basis, both by, inter alia,
Programme Board.
enforcing the rights and obligations of the Eurosystem central
banks, including in court proceedings, including but not limited
to breach of contract, damages, termination, challenges or other
alterations of contract. The mandated central bank shall report
thereon to, and comply with the instructions issued by, the T2S
4. The
Eurosystem
central
banks
shall
fully
and
promptly
Programme Board.
reimburse the mandated central bank for any compensation
paid by it to third parties where this stems from: (a) the partici
pation requirements and award criteria; (b) a decision made by
the selection panel on the basis of the participation
7. The
mandated
central
bank
shall
take
all
measures requirements and award criteria; (c) the incorrect conduct of
necessary for the fulfilment of the Eurosystem central banks’
the selection panel, unless it acted in line with the written
and, if any, of the mandated central bank’s, duties and obli
advice of the mandated central bank or has not received appro
gations in relation to the licence agreements and shall report
priate written advice from the mandated central bank on the
thereon to, and respect any related instructions from the T2S
issue concerned in advance; (d) any decision or event beyond
Programme Board.
the control of the mandated central bank including those which
may affect the effectiveness of the licences granted.
8. The
mandated
central
bank
shall
receive
all
notices,
declar
ations and writs of claims, including the service of process, in
relation to a licence agreement to enable it to fulfil the Euro
5. The
mandated
central
bank
shall
not
be
reimbursed
by
the
system central banks’, and, if any, the mandated central bank’s,
Eurosystem central banks for compensation paid to third parties
rights and obligations in relation to a licence agreement.
resulting from operational activities and other procedural acts
which fall within its responsibility, unless the mandated central
bank has acted, contrary to its own advice, in line with
9. Without
prejudice
to
Article
5,
the
Eurosystem
central instructions from the T2S Programme Board pursuant to
banks shall reimburse the mandated central bank for all
Article 3(5).

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L 134/26
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Official Journal of the European Union
21.5.2011
6. Where
legal
actions
filed
by
third
parties
relate
to
acts
or suffered by a third party, each of them shall bear an equal
omissions with respect to the selection procedure for which the
share of the costs.
Eurosystem central banks have to assume exclusive liability, the
Eurosystem central banks, having consulted the mandated
central bank, shall instruct the mandated central bank on the
Article 6
measures it shall take, e.g. any representation by external
counsel or by in-house legal services of the mandated central
Final provisions
bank, in a timely manner. Once a decision as to the course of
action in any such proceeding has been taken, the litigation
1. A
mandate
shall
continue
to
be
in
force
for
7
years
from
costs and fees arising from any such action shall be borne by
the go-live date.
the Eurosystem central banks.
2. The
expiration
of
a
mandate
shall
not
affect
the
validity
of
7. The
Eurosystem
central
banks
shall
assume
liability
for the relevant licence agreements.
acts and omissions of individual selection panel members in
relation to the selection procedure.
Article 7
8. Where
legal
actions
are
filed
by
third
parties
for
acts
or
Entry into force
omissions connected to a selection procedure for which the
mandated central bank assumes exclusive liability, the
This Decision shall enter into force 2 days after its adoption.
mandated central bank shall fully cooperate with the Euro
system central banks on the measures it shall take, e.g. any
representation by external counsel or by its in-house legal
Done at Frankfurt am Main, 20 April 2011.
services, and shall bear the subsequent costs.
9. Where the Eurosystem central banks and the mandated
The President of the ECB
central bank are jointly responsible for losses or damages
Jean-Claude TRICHET

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