Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and credit purchasers and amending Directives 2008/48/EC and 2014/17/EU (Text with EEA relevance)
Date: 2021-11-24

num: Article 1
title: Subject matter
paragraphs: This Directive lays down a common framework and requirements for:
(a)
credit servicers of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, issued by a credit institution established in the Union, who act on behalf of a credit purchaser;
(b)
credit purchasers of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, issued by a credit institution established in the Union.
num: Article 2
title: Scope
paragraphs: 1. This Directive shall apply to:
(a)
credit servicers acting on behalf of a credit purchaser in respect of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, issued by a credit institution established in the Union in accordance with applicable Union and national law;
(b)
credit purchasers of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, issued by a credit institution established in the Union in accordance with applicable Union and national law.
2. With regard to credit agreements falling within its scope, this Directive shall not affect contract law principles nor civil law principles under national law with regard to the transfer of a creditor’s rights under a credit agreement, or of the credit agreement itself, nor the protection granted to consumers or borrowers pursuant in particular to Regulations (EC) No 593/2008 and (EU) No 1215/2012, and Directives 93/13/EEC, 2008/48/EC, 2014/17/EU and the national provisions transposing those Directives or other relevant provisions of Union and national law relating to consumer protection and borrowers’ rights.
3. This Directive shall not affect the restrictions imposed in Member States’ national laws regarding the transfer of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, that is not past due, or is less than 90 days past due, or is not terminated in accordance with national civil law.
4. This Directive shall not affect requirements in Member States’ national laws regarding the servicing of a creditor’s rights under a credit agreement, or of the credit agreement itself, when the credit purchaser is a securitisation special purpose entity as defined in Article 2, point (2), of Regulation (EU) 2017/2402 of the European Parliament and of the Council (20) as long as such national laws:
(a)
do not affect the level of consumer protection provided by this Directive;
(b)
ensure that competent authorities receive the necessary information from credit servicers.
5. This Directive shall not apply to the following:
(a)
the servicing of a creditor’s rights under a credit agreement, or of the credit agreement itself, carried out by:
(i)
a credit institution established in the Union;
(ii)
an alternative investment fund manager (AIFM) authorised or registered in accordance with Directive 2011/61/EU, or a management company, or an investment company authorised in accordance with Directive 2009/65/EC provided that the investment company has not designated a management company under that Directive, on behalf of the fund it manages;
(iii)
a non-credit institution subject to supervision by a competent authority of a Member State in accordance with Article 20 of Directive 2008/48/EC or Article 35 of Directive 2014/17/EU when performing activities in that Member State;
(b)
the servicing of a creditor’s rights under a credit agreement, or of the credit agreement itself, that was not issued by a credit institution established in the Union except where the creditor’s rights under the credit agreement, or the credit agreement itself, is replaced by a credit agreement issued by such credit institution;
(c)
the purchase of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, by a credit institution established in the Union;
(d)
the transfer of a creditor’s rights under a credit agreement, or of the credit agreement itself, transferred before the date referred to in Article 32(2), first subparagraph.
6. Member States may exempt from the application of this Directive the servicing of a creditor’s rights under a credit agreement, or of the credit agreement itself, carried out by public notaries and bailiffs as defined by national law or lawyers as defined in Article 1(2), point (a), of Directive 98/5/EC of the European Parliament and of the Council (21) when conducting credit servicing activities as part of their profession.
num: Article 3
title: Definitions
paragraphs: For the purposes of this Directive, the following definitions apply:
(1)
‘credit institution’ means a credit institution as defined in Article 4(1), point (1), of Regulation (EU) No 575/2013;
(2)
‘creditor’ means a credit institution that has issued a credit, or a credit purchaser;
(3)
‘borrower’ means a legal or natural person who has concluded a credit agreement with a credit institution, including its legal successor or assignee;
(4)
‘credit agreement’ means an agreement as originally issued, modified or replaced, whereby a credit institution grants a credit in the form of a deferred payment, a loan or other similar financial accommodation;
(5)
‘credit servicing agreement’ means a written contract concluded between a credit purchaser and a credit servicer concerning the services to be provided by the credit servicer on behalf of the credit purchaser;
(6)
‘credit purchaser’ means any natural or legal person, other than a credit institution, that purchases a creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself, in the course of its trade, business or profession, in accordance with applicable Union and national law;
(7)
‘credit service provider’ means a third party used by a credit servicer to perform any of the credit servicing activities;
(8)
‘credit servicer’ means a legal person that, in the course of its business, manages and enforces the rights and obligations related to a creditor’s rights under a non-performing credit agreement, or to the non-performing credit agreement itself, on behalf of a credit purchaser, and carries out at least one or more credit servicing activities;
(9)
‘credit servicing activities’ means one or more of the following activities:
(a)
collecting or recovering from the borrower, in accordance with national law, any payments due related to a creditor’s rights under a credit agreement or to the credit agreement itself;
(b)
renegotiating with the borrower, in accordance with national law, any terms and conditions related to a creditor’s rights under a credit agreement, or of the credit agreement itself, in line with the instructions given by the credit purchaser, where the credit servicer is not a credit intermediary as defined in Article 3, point (f), of Directive 2008/48/EC or in Article 4, point (5), of Directive 2014/17/EU;
(c)
administering any complaints relating to a creditor’s rights under a credit agreement or to the credit agreement itself;
(d)
informing the borrower of any changes in interest rates or charges or of any payments due related to a creditor’s rights under a credit agreement or to the credit agreement itself;
(10)
‘home Member State’ means, with respect to a credit servicer, the Member State in which its registered office is situated or, if under its national law it has no registered office, the Member State in which its head office is situated or, with respect to a credit purchaser, the Member State in which the credit purchaser or its representative is domiciled, or its registered office is situated or, if under its national law it has no registered office, the Member State in which its head office is situated;
(11)
‘host Member State’ means the Member State, other than the home Member State, in which a credit servicer has established a branch or where it provides credit servicing activities, and in any event where the borrower is domiciled, or its registered office is situated or, if under its national law it has no registered office, the Member State in which its head office is situated;
(12)
‘consumer’ means a natural person who, in credit agreements covered by this Directive, is acting for purposes which are outside his trade, business or profession;
(13)
‘non-performing credit agreement’ means a credit agreement that is classified as a non-performing exposure in accordance with Article 47a of Regulation (EU) No 575/2013.
num: Article 4
title: General requirements
paragraphs: 1. Member States shall require a credit servicer to obtain an authorisation in a home Member State before commencing its activities within its territory in accordance with the requirements set out in the national provisions transposing this Directive.
2. Member States shall confer the power to grant an authorisation referred to in paragraph 1 of this Article upon the competent authorities designated pursuant to Article 21(3).
num: Article 5
title: Requirements for granting an authorisation
paragraphs: 1. Without prejudice to Article 6, Member States shall lay down the following requirements for the granting of an authorisation referred to in Article 4(1):
(a)
the applicant is a legal person as referred to in Article 54 of the Treaty on the Functioning of the European Union and its registered office or, if under its national law it has no registered office, its head office, is in the Member State in which the applicant is seeking authorisation;
(b)
the members of the applicant’s management or administrative organ are of sufficiently good repute, which is demonstrated by proving that:
(i)
they have a clean police record or other national equivalent in relation to relevant criminal offences, in particular those relating to property, financial services and activities, money laundering, usury, fraud, tax crimes, violation of professional secrecy or to physical integrity, and also in relation to any other offences under laws relating to companies, bankruptcy, insolvency or consumer protection;
(ii)
the cumulative effects of minor incidents do not impinge on their good repute;
(iii)
they have always been transparent, open and cooperative in their past business dealings with supervisory and regulatory authorities;
(iv)
they are not subject to any ongoing insolvency procedure nor have previously been declared bankrupt unless reinstated in accordance with national law;
(c)
the applicant’s management or administrative organ, as a whole, has adequate knowledge and experience to conduct the business in a competent and responsible manner;
(d)
the persons who hold qualifying holdings in the applicant within the meaning of Article 4(1), point (36), of Regulation (EU) No 575/2013 are of sufficiently good repute, which is demonstrated by fulfilling the requirements set out in points (b)(i) and (iv) of this paragraph;
(e)
the applicant has in place robust governance arrangements and adequate internal control mechanisms, including risk management and accounting procedures, which ensure respect for borrower rights and compliance with the laws governing a creditor’s rights under a credit agreement, or the credit agreement itself, and with Regulation (EU) 2016/679;
(f)
the applicant applies an appropriate policy ensuring compliance with rules for the protection, and the fair and diligent treatment, of borrowers, including by taking into account their financial situation and, where available, the need for such borrowers to be referred to debt advice or social services;
(g)
the applicant has in place adequate and specific internal procedures that ensure the recording and handling of complaints from borrowers;
(h)
the applicant has in place adequate anti-money laundering and counter terrorist financing procedures where national provisions transposing Directive (EU) 2015/849 designate credit servicers as obliged entities for the purpose of preventing and combating money laundering and terrorist financing;
(i)
the applicant is subject by virtue of applicable national law to reporting and public disclosure requirements.
2. The EBA shall, after consulting all relevant stakeholders and reflecting all interests involved, issue guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 for the requirements set out in paragraph 1, point (c), of this Article.
3. The competent authorities of the home Member State shall refuse an authorisation referred to in Article 4(1) where the applicant does not comply with the requirements set out in paragraph 1 of this Article and, where relevant, in Article 6(2), point (a).
num: Article 6
title: Ability to hold funds
paragraphs: 1. Member States shall determine whether credit servicers, when performing credit servicing activities in their territory, are either:
(a)
allowed to receive and hold funds from borrowers in order to transfer those funds to credit purchasers; or
(b)
prohibited from receiving and holding funds from borrowers.
2. In cases where credit servicers are allowed to receive and hold funds from borrowers under paragraph 1, point (a), Member States shall:
(a)
lay down, in addition to the requirements for the granting of an authorisation set out in Article 5(1), a requirement that the applicant has a separate account in a credit institution into which all funds received from borrowers are to be credited and kept until their channelling to the respective credit purchaser, under the conditions agreed with the credit purchaser;
(b)
ensure that those funds are protected in accordance with national law in the interest of the credit purchasers against the claims of the other creditors of the credit servicers, in particular in the event of insolvency;
(c)
determine that, when a borrower makes a payment to a credit servicer in order to, partially or totally, reimburse the amounts due related to a creditor’s rights under a non-performing credit agreement, or to the non-performing credit agreement itself, that payment is treated as having been paid to the credit purchaser;
(d)
require a credit servicer to deliver a receipt or a letter of discharge to the borrower, on paper or another durable medium, whenever the credit servicer receives funds from the borrower, acknowledging the amounts received.
3. Where a credit servicer does not intend to receive and hold funds from borrowers as part of its business model, the credit servicer shall convey that intention in its application for the authorisation referred to in Article 4(1). In such cases, the requirements laid down in accordance with paragraph 2, point (a), of this Article shall not apply.
num: Article 7
title: Procedure for authorisation of credit servicers
paragraphs: 1. Member States shall establish a procedure for the authorisation of credit servicers that enables an applicant to submit an application and provide all the information necessary for the competent authority of the home Member State to verify that the applicant has satisfied all the conditions laid down in the national provisions transposing Article 5(1), and, where relevant, in Article 6(2), point (a).
2. The application for authorisation of credit servicers referred to in paragraph 1 shall be accompanied by the following:
(a)
evidence of the applicant’s legal status and a copy of its act of incorporation and of the company by-laws;
(b)
the address of the applicant’s head office or its registered office;
(c)
the identity of the members of the applicant’s management or administrative organ and the persons who hold qualifying holdings within the meaning of Article 4(1), point (36), of Regulation (EU) No 575/2013;
(d)
evidence that the applicant fulfils the conditions laid down in Article 5(1), points (b) and (c);
(e)
evidence that the persons who hold qualifying holdings within the meaning of Article 4(1), point (36), of Regulation (EU) No 575/2013 fulfil the conditions laid down in Article 5(1), point (d), of this Directive;
(f)
evidence of the governance arrangements and internal control mechanisms referred to in Article 5(1), point (e);
(g)
evidence of the policy referred to in Article 5(1), point (f);
(h)
evidence of the internal procedures referred to in Article 5(1), point (g);
(i)
evidence of the procedures referred to in Article 5(1), point (h);
(j)
where relevant, evidence of the existence of a separate account in a credit institution as provided for in Article 6(2), point (a);
(k)
any outsourcing agreement as referred to in Article 12(1).
3. Member States shall ensure that the competent authorities of a home Member State assess, within 45 days of receipt of the application for authorisation, whether that application is complete.
4. Member States shall ensure that, within 90 days of receipt of a complete application or, if the application is considered incomplete, of receipt of the required information, the competent authorities of the home Member State notify the applicant whether the authorisation is granted or refused and provide reasons for refusal.
5. Member States shall ensure that an applicant has the right of appeal before a tribunal in cases where the competent authorities of the home Member State decide to refuse an application for authorisation pursuant to Article 5(3) and also in cases where, within the time limit provided for in paragraph 4 of this Article, no decision is taken by the competent authorities in respect of the application.
num: Article 8
title: Withdrawal of authorisation
paragraphs: 1. Member States shall ensure that the competent authorities of the home Member State have the necessary supervisory and investigatory powers, and sanctioning powers, in accordance with Article 22 in order to withdraw the authorisation granted to a credit servicer, where any of the following applies to such a credit servicer:
(a)
does not make use of the authorisation within 12 months of its grant;
(b)
expressly renounces the authorisation;
(c)
has ceased to engage in the activities of a credit servicer for more than 12 months;
(d)
has acquired an authorisation through false statements or other irregular means;
(e)
no longer fulfils the requirements for the granting of an authorisation as a credit servicer set out in Article 5(1) and, where relevant, in Article 6(2) point (a);
(f)
commits a serious infringement of the applicable rules, including the national provisions transposing this Directive, or of other consumer protection rules, including applicable rules of the host Member State and of the Member State where the credit was granted.
2. Where an authorisation is withdrawn in accordance with paragraph 1 of this Article, Member States shall ensure that the competent authorities of the home Member State immediately inform the competent authorities of the host Member State in cases where the credit servicer provides services under Article 13, and also the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States.
num: Article 9
title: List or register of authorised credit servicers
paragraphs: 1. Member States shall ensure that the competent authorities establish and maintain at least a list or, where considered more appropriate, a national register, of all credit servicers authorised to provide services within their territory, including credit servicers providing services under Article 13 of this Directive.
The EBA shall develop guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 for establishing and maintaining such lists or registers and specifying the types of information included in them in order to guarantee a level playing field across the Union and transparency for credit purchasers and for borrowers.
2. The list or register referred to in paragraph 1 shall be made publicly accessible online on the website of the competent authorities and shall be updated on a regular basis.
3. Where an authorisation has been withdrawn pursuant to Article 8, the competent authorities shall update the list or register referred to in paragraph 1 of this Article without delay.
num: Article 10
title: Relationship with the borrower, communication of the transfer and subsequent communications
paragraphs: 1. Member States shall require that credit purchasers and credit servicers, in their relationships with borrowers:
(a)
act in good faith, fairly and professionally;
(b)
provide information to borrowers that is not misleading, unclear or false;
(c)
respect and protect the personal information and privacy of borrowers;
(d)
communicate with borrowers in a way that does not constitute harassment, coercion or undue influence.
2. Member States shall ensure that, after any transfer of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, to a credit purchaser, and always in advance of the first debt collection, but also whenever requested by the borrower, the credit purchaser or, when appointed to perform credit servicing activities, the entity referred to in Article 2(5), point (a)(i) or (iii), or the credit servicer, sends to the borrower a communication, on paper or on another durable medium, that includes at least the following:
(a)
information on the transfer that took place, including the date of transfer;
(b)
the identification and contact details of the credit purchaser;
(c)
when appointed, the identification and contact details of the credit servicer or of the entity referred to in Article 2(5), point (a)(i) or (iii);
(d)
when appointed, evidence regarding the authorisation of a credit servicer granted pursuant to Article 7;
(e)
where relevant, the identification and contact details of the credit service provider;
(f)
presented in a prominent way, a contact reference point at the credit purchaser or, when appointed to perform credit servicing activities, at the entity referred to in Article 2(5), point (a)(i) or (iii), or at the credit servicer and, where relevant, at the credit service provider, from which to receive information when needed;
(g)
information on the amounts due by the borrower at the time of the communication, detailing what is due as capital, interests, fees and other permitted charges;
(h)
a statement to the effect that all relevant Union and national law concerning in particular the enforcement of contracts, consumer protection, borrower’s rights and criminal law continues to apply;
(i)
the name, address and contact details of the competent authorities of the Member State in which the borrower is domiciled, or its registered office is situated or, if under its national law it has no registered office, the Member State in which its head office is situated and to which the borrower can submit a complaint.
The communication provided for in the first subparagraph shall be written in language which is clear and understandable for the general public.
3. Member States shall ensure that, in all subsequent communications with the borrower, the credit purchaser or, when appointed to perform credit servicing activities, the entity referred to in Article 2(5), point (a)(i) or (iii), or the credit servicer, includes the information set out in paragraph 2, point (f) of this Article, except where it is the first communication after the appointment of a new credit servicer, in which case the information set out in paragraph 2, points (c) and (d) of this Article, shall also be included.
4. Paragraphs 2 and 3 shall be without prejudice to any additional requirements regarding communications provided for in other applicable Union or national law.
num: Article 11
title: Contractual relationship between a credit servicer and a credit purchaser
paragraphs: 1. When a credit purchaser does not itself perform credit servicing activities, Member States shall ensure that the appointed credit servicer provides its services in respect of the management and enforcement of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, on the basis of a credit servicing agreement with the credit purchaser.
2. The credit servicing agreement referred to in paragraph 1 shall provide for the following:
(a)
a detailed description of credit servicing activities to be carried out by the credit servicer;
(b)
the level of remuneration of the credit servicer or how the remuneration is to be calculated;
(c)
the extent to which the credit servicer can represent the credit purchaser in relation to the borrower;
(d)
an undertaking by the parties to comply with the Union and national law applicable to a creditor’s rights under a credit agreement, or to the credit agreement itself, including in respect of consumer and data protection;
(e)
a clause requiring the fair and diligent treatment of the borrowers.
3. Member States shall ensure that the credit servicing agreement referred to in paragraph 1 contains a requirement pursuant to which the credit servicer notifies the credit purchaser prior to outsourcing any of its credit servicing activities.
4. Member States shall ensure that the credit servicer keeps and maintains the following records for at least 5 years from the date on which the credit servicing agreement referred to in paragraph 1 is terminated, or for the duration of the statutory limitation period applicable in the home Member State, but in either case for a period of no longer than 10 years:
(a)
relevant correspondence with both the credit purchaser and the borrower, under the conditions provided for under applicable national law;
(b)
relevant instructions received from the credit purchaser in respect of a creditor’s rights under each non-performing credit agreement, or the non-performing credit agreement itself, that it manages and enforces on behalf of that credit purchaser, under the conditions provided for under applicable national law;
(c)
the credit servicing agreement.
5. Member States shall ensure that the credit servicer makes the records referred to in paragraph 4 available to competent authorities upon request.
num: Article 12
title: Outsourcing by a credit servicer
paragraphs: 1. Member States shall ensure that where a credit servicer uses a credit service provider to perform any of the credit servicing activities, the credit servicer remains fully responsible for complying with all obligations under national provisions transposing this Directive. The outsourcing of those credit servicing activities shall be subject to the following conditions:
(a)
the conclusion of a written outsourcing agreement between the credit servicer and the credit service provider under which the credit service provider is required to comply with the applicable legal provisions, including national provisions transposing this Directive, and the relevant Union or national law applicable to a creditor’s rights under a credit agreement, or to the credit agreement itself;
(b)
the outsourcing to a credit service provider of all credit servicing activities at the same time is forbidden;
(c)
the contractual relationship between the credit servicer and the credit purchaser and the obligations of the credit servicer towards the credit purchaser or towards borrowers is not altered by the outsourcing agreement with the credit service provider;
(d)
the compliance of a credit servicer with the requirements of its authorisation as set out in Article 5(1) is not affected by the outsourcing of some of its credit servicing activities;
(e)
the outsourcing to the credit service provider does not prevent the supervision by competent authorities of a credit servicer in accordance with Articles 14 and 21;
(f)
the credit servicer has direct access to all relevant information concerning the credit servicing activities outsourced to the credit service provider;
(g)
after the outsourcing agreement is terminated, the credit servicer has the expertise and resources to be able to provide the outsourced credit servicing activities.
The outsourcing of credit servicing activities shall not be undertaken in such a way as to impair the quality of the credit servicer’s internal control, or the soundness or continuity of its credit servicing activities.
2. Member States shall ensure that the credit servicer informs the competent authorities of the home Member State and, where applicable, of the host Member State, prior to outsourcing its credit servicing activities in accordance with paragraph 1.
3. Member States shall ensure that the credit servicer keeps and maintains records of relevant instructions provided to the credit service provider, in accordance with the conditions provided for under applicable national law, and of the outsourcing agreement referred to in paragraph 1 for a period of at least 5 years from the date on which the outsourcing agreement is terminated, or for the duration of the statutory limitation period applicable in the Member State, but in either case up to a maximum period of 10 years.
4. Member States shall ensure that the credit servicer and the credit service provider make the information referred to in paragraph 3 available to competent authorities upon request.
5. Member States shall ensure that credit service providers are not permitted to receive and hold funds from borrowers.
num: Article 13
title: Freedom to provide credit servicing activities in a host Member State
paragraphs: 1. Member States shall ensure that a credit servicer having obtained an authorisation in accordance with Article 4(1) in a home Member State has the right to provide in the Union those services that are covered by that authorisation, without prejudice to any restrictions or requirements established in the national law of the host Member State in accordance with this Directive, including, where applicable, a prohibition on receiving and holding funds from borrowers, that are not related to other authorisation requirements of credit servicers, or to those established for the renegotiation of the terms and conditions related to a creditor’s rights under a credit agreement or of the credit agreement itself.
2. Member States shall ensure that where a credit servicer having obtained an authorisation in accordance with Article 4(1) in a home Member State intends to provide services in a host Member State, the credit servicer submits to the competent authority of the home Member State the following information:
(a)
the host Member State in which the credit servicer intends to provide services and, where that information is already known to the credit servicer, the Member State where the credit was granted, when different from the host and the home Member States;
(b)
where applicable, the address of the credit servicer’s branch established in the host Member State;
(c)
where applicable, the identity and address of the credit service provider in the host Member State;
(d)
the identity of the persons responsible for managing the provision of credit servicing activities in the host Member State;
(e)
where applicable, details of the measures taken to adapt the internal procedures, governance arrangements and internal control mechanisms of the credit servicer in order to ensure compliance with the laws applicable to a creditor’s rights under a credit agreement or to the credit agreement itself;
(f)
a description of the procedure established in order to comply with the anti-money laundering and counter terrorist financing rules, whereby the national law of the host Member State transposing Directive (EU) 2015/849 designates credit servicers as obliged entities for the purpose of preventing and combating money laundering and terrorist financing;
(g)
that the credit servicer has appropriate means to communicate in the language of the host Member State or in the language of the credit agreement;
(h)
whether or not the credit servicer is authorised in its home Member State to receive and hold funds from borrowers.
3. The competent authorities of the home Member State shall, within 45 days of receipt of all information referred to in paragraph 2, communicate that information to the competent authorities of the host Member State, which shall acknowledge receipt thereof without delay. The competent authorities of the home Member State shall thereafter inform the credit servicer of the date on which the information was communicated to the competent authorities of the host Member State and the date on which those competent authorities acknowledge receipt of the information. The competent authorities of the home Member State shall also communicate all information referred to in paragraph 2 to the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States.
4. Member States shall ensure that a credit servicer has the right of appeal before a tribunal where the competent authorities of the home Member State fail to communicate the information referred to in paragraph 2.
5. Member States shall ensure that the credit servicer is able to start providing services in the host Member State from the earlier of the following:
(a)
receipt of the communication from the competent authorities of the host Member State acknowledging receipt of the communication referred to in paragraph 3;
(b)
in the absence of any receipt of the communication referred to in point (a) of this paragraph, after the expiry of 2 months from the date of submission of all information referred to in paragraph 2 to the competent authorities of the host Member State.
6. Member States shall ensure that a credit servicer informs the competent authorities of the home Member State of any subsequent change to the information that is required to be communicated in accordance with paragraph 2. In such cases, Member States shall ensure compliance with the procedure set out in paragraphs 3, 4 and 5.
7. Member States shall ensure that the competent authorities of the host Member State record in the list or register referred to in Article 9 the credit servicers which are authorised to provide credit servicing activities in their territory and the details of the home Member State.
num: Article 14
title: Supervision of credit servicers which provide cross-border services
paragraphs: 1. Member States shall ensure that the competent authorities of the home Member State review and evaluate the ongoing compliance, by a credit servicer which performs credit servicing activities in a host Member State, with the requirements of this Directive.
2. Member States shall ensure that the competent authorities of the home Member State are empowered to supervise, investigate and impose administrative penalties and remedial measures on credit servicers in respect of the requirements of this Directive when performing their credit servicing activities in a host Member State.
3. Member States shall ensure that the competent authorities of the home Member State communicate the measures taken in respect of the credit servicer to the competent authorities of the host Member State and, where appropriate, of the Member State where the credit was granted, when different from the host and the home Member States.
4. Member States shall ensure that where a credit servicer performs credit servicing activities in a host Member State, the competent authorities of the home Member State and the competent authorities of the host Member State and, where appropriate, of the Member State where the credit was granted, when different from the host and the home Member States, shall cooperate closely in the performance of their functions and duties, in particular when carrying out checks, investigations and on-site inspections.
5. Member States shall ensure that the competent authorities of the home Member State, in the exercise of their functions and duties provided for in this Directive, ask the competent authorities of the host Member State for their assistance in carrying out an on-site inspection of a branch set up, or of a credit service provider appointed, in a host Member State. The on-site inspection of a branch or of a credit service provider shall be conducted in accordance with the law of the Member State where the inspection is carried out.
6. Member States shall further ensure that the competent authorities of the host Member State are entitled to decide on the most appropriate measures to be taken in each individual case in order to meet the request of assistance by the competent authorities of the home Member State.
7. Where the competent authorities of the host Member State decide to conduct on-site inspections on behalf of the competent authorities of the home Member State, they shall inform the competent authorities of the home Member State of the results thereof without delay.
8. On their own initiative, the competent authorities of the host Member State may conduct checks, inspections and investigations in respect of credit servicing activities provided within their territory by a credit servicer authorised in a home Member State. The competent authorities of the host Member State shall provide the results of those checks, inspections and investigations to the competent authorities of the home Member State without delay.
9. Member States shall ensure that where the competent authorities of the host Member State have evidence that a credit servicer performing credit servicing activities within its territory, as provided for in Article 13, infringes the applicable rules, including obligations arising from the national provisions transposing this Directive, they transmit that evidence to the competent authorities of the home Member State and request that they take appropriate measures, without prejudice to the supervisory, investigatory and sanctioning powers of the competent authorities of the host Member State regarding the credit servicer under national law, namely those applicable to the credit or the credit agreement.
10. Member States shall ensure that where the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States, have evidence that a credit servicer infringes the obligations provided for in this Directive, or in the national rules applicable to the credit or the credit agreement, they transmit that evidence to the competent authorities of the home Member State and request that they take appropriate measures, without prejudice to the supervisory, investigatory and sanctioning powers of the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States.
11. Member States shall ensure that the competent authorities of the home Member State communicate details of any administrative or other procedure initiated in respect of the evidence provided by the host Member State, or of any administrative penalties and remedial measures taken against the credit servicer, or of a reasoned decision why no measures were taken, to the competent authorities of the host Member State that referred the evidence no later than 2 months from the date of the request referred to in paragraph 9. Where a procedure has been initiated, the competent authorities of the home Member State shall regularly inform the competent authorities of the host Member State about its status.
12. Where a credit servicer continues to infringe the applicable rules, including its obligations under this Directive, and after the competent authorities of the host Member State have informed the home Member State thereof, Member States shall ensure that the competent authorities of the host Member State are entitled to impose appropriate administrative penalties and remedial measures in order to ensure compliance with this Directive when either of the following apply:
(a)
no adequate and effective steps were taken by the credit servicer to rectify the infringement in a reasonable time; or
(b)
in an urgent case, where immediate action is necessary in order to address a serious threat to the collective interests of the borrowers.
The competent authorities of the host Member State may impose the administrative penalties and remedial measures referred to in the first subparagraph notwithstanding any administrative penalties and remedial measures already imposed by the competent authorities of the home Member State.
In addition, the competent authorities of the host Member State may prohibit further activities of a credit servicer that infringes the applicable rules, including its obligations under this Directive, until such time as an adequate decision is taken by the competent authority of the home Member State or the credit servicer takes steps to remedy the infringement.
num: Article 15
title: Right to information regarding a creditor’s rights under a non-performing credit agreement or the non-performing credit agreement itself
paragraphs: 1. Member States shall ensure that a credit institution provides a prospective credit purchaser with necessary information regarding a creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself, and, if applicable, the collateral, so as to enable the prospective credit purchaser to conduct its own assessment of the value of the creditor’s rights under the non-performing credit agreement, or of the non-performing credit agreement itself, and the likelihood of recovery of the value of that agreement prior to entering into a contract for the transfer of that creditor’s rights under the non-performing credit agreement, or of the non-performing credit agreement itself, while ensuring the protection of information made available by the credit institution and of the confidentiality of business data.
2. On a biannual basis, Member States shall require credit institutions that transfer to a credit purchaser a creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself, to inform the competent authorities of the host Member State designated in accordance with Article 21(3) of this Directive, and the competent authorities referred to in Article 4(5) of Directive 2013/36/EU of the European Parliament and of the Council (22), of at least the following:
(a)
the legal entity identifier (LEI) of the credit purchaser or, where applicable, of its representative designated in accordance with Article 19, or where such identifier does not exist, of:
(i)
the identity of the credit purchaser or of the members of the credit purchaser’s management or administrative organ and the persons who hold qualifying holdings in the credit purchaser within the meaning of Article 4(1), point (36), of Regulation (EU) No 575/2013; and
(ii)
the address of the credit purchaser or, where applicable, its representative designated in accordance with Article 19;
(b)
the aggregate outstanding balance of the creditor’s rights under the non-performing credit agreements or of the non-performing credit agreements transferred;
(c)
the number and size of the creditor’s rights under the non-performing credit agreements or of the non-performing credit agreements transferred;
(d)
whether the transfer includes the creditor’s rights under the non-performing credit agreements, or the non-performing credit agreements themselves, concluded with consumers and the types of assets securing the non-performing credit agreements, when applicable.
3. The competent authorities referred to in paragraph 2 may require credit institutions to provide the information referred to in that paragraph on a quarterly basis whenever they deem necessary, including in order to better monitor a high number of transfers that might occur during a crisis period.
4. Member States shall ensure that the competent authorities of the host Member State communicate without delay the information referred to in paragraphs 2 and 3, and any other information that they might consider to be necessary for carrying out their functions and duties in accordance with this Directive, to the competent authorities of the home Member State of the credit purchaser.
5. Paragraphs 1 to 4 shall be applied in accordance with Regulations (EU) 2016/679 and (EU) 2018/1725.
num: Article 16
title: Implementing technical standards for data templates
paragraphs: 1. The EBA shall develop draft implementing technical standards to specify the templates to be used by credit institutions for the provision of information referred to in Article 15(1), in order to provide detailed information on their credit exposures in the banking book to credit purchasers for the analysis, financial due diligence and valuation of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself.
2. The EBA shall specify in the draft implementing technical standards referred to in paragraph 1 of this Article the data fields, including which data fields are mandatory, and the data treatment for confidential information as set out in Article 15(1).
3. The draft implementing technical standards shall be proportionate to the nature and size of credits and credit portfolios.
4. When preparing the draft implementing technical standards referred to in paragraph 1, the EBA shall take into consideration all of the following:
(a)
existing market practices in data sharing between buyers and sellers;
(b)
the feedback received from users of their experience of using existing EBA non-performing loans transaction templates;
(c)
existing similar requirements at Member State level;
(d)
the importance of minimising processing costs for credit institutions and credit purchasers.
5. The EBA shall submit the draft implementing technical standards referred to in paragraph 1 to the Commission by 29 September 2022.
6. Power is conferred on the Commission to adopt the implementing technical standards referred to in paragraph 1, in accordance with Article 15 of Regulation (EU) No 1093/2010.
7. The data templates shall be used for transactions relating to credits issued on or after 1 July 2018 that become non-performing after 28 December 2021. For credits that originate between 1 July 2018 and the date of entry into force of the implementing technical standards referred to in paragraph 1, credit institutions shall complete the data template with the information already available to them.
8. Member States shall ensure that credit institutions also apply the implementing technical standards referred to in paragraph 6 to the transfer of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, to other credit institutions. The data templates shall be used by credit institutions for the provision of information between credit institutions in cases where there is only a transfer of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself.
num: Article 17
title: Obligations of credit purchasers
paragraphs: 1. Member States shall ensure that:
(a)
a credit purchaser domiciled in the Union, or that has its registered office or, if under its national law it has no registered office, its head office in the Union appoints an entity referred to in Article 2(5), point (a)(i) or (iii), or a credit servicer, to perform credit servicing activities in respect of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, concluded with consumers;
(b)
where a credit purchaser is not domiciled in the Union, or does not have its registered office or, if under its national law it has no registered office, its head office in the Union, its representative designated in accordance with Article 19(1) appoints an entity referred to in Article 2(5), point (a)(i) or (iii), or a credit servicer, except in cases where the representative is itself an entity referred to in Article 2(5), point (a)(i) or (iii), or a credit servicer, to perform credit servicing activities in respect of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, concluded with:
(i)
natural persons, including consumers and independent workers;
(ii)
micro, small and medium-sized enterprises (SMEs), as defined in Article 2 of the Annex to Commission Recommendation 2003/361/EC (23).
Host Member States may extend the requirement provided for in the first subparagraph to other credit agreements.
2. Member States shall ensure that a credit purchaser is not subject to any additional requirements for the purchase of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, other than as provided for by the national provisions transposing this Directive, or by provisions of applicable consumer protection law, contract law, civil law or criminal law. Member States shall ensure that relevant Union and national law concerning in particular the enforcement of contracts, consumer protection, borrowers’ rights, credit origination, bank secrecy rules and criminal law continues to apply to the credit purchaser upon the transfer of the creditor’s rights under the credit agreement, or of the credit agreement itself, to the credit purchaser. The level of protection provided under Union and national law to consumers and other borrowers, as well as insolvency rules, shall not be affected by the transfer of the creditor’s rights under the credit agreement, or of the credit agreement itself, to the credit purchaser, without prejudice to national and international rules on promissory notes and bills of exchange.
3. This Directive is without prejudice to national powers regarding credit registers, including the power to require information from credit purchasers regarding a creditor’s rights under a credit agreement, or the credit agreement itself, and its performance.
4. Member States may allow credit purchasers to engage natural persons to service the credit agreements that they have acquired. Those natural persons shall be subject to a national regulation and supervision regime and shall not benefit from the freedom provided for in this Directive to perform credit servicing activities in another Member State.
5. Member States shall ensure that the appointed credit servicer, or entity referred to in Article 2(5), point (a)(i) or (iii), complies, on behalf of the credit purchaser, with the obligations imposed on the credit purchaser pursuant to paragraph 2 of this Article and Articles 18 and 20. In cases where no credit servicer or entity referred to in Article 2(5), point (a)(i) or (iii), is appointed, the credit purchaser or its representative shall remain subject to those obligations.
Member States may require that the appointed credit servicer, or entity referred to in Article 2(5), point (a)(i) or (iii), complies, on behalf of the credit purchaser, with the obligations imposed on the credit purchaser in accordance with national law including in relation to paragraph 3 of this Article.
num: Article 18
title: Use of credit servicers or other entities
paragraphs: 1. Where the credit purchaser or, where applicable, its representative designated in accordance with Article 19 appoints an entity referred to in Article 2(5), point (a)(i) or (iii), or a credit servicer, to perform credit servicing activities in relation to the transferred creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself, Member States shall require that credit purchaser or its representative to inform the competent authorities of its home Member State of the identity and address of the entity referred to in Article 2(5), point (a)(i) or (iii), or of the credit servicer, at the latest on the date on which the credit servicing activities start.
2. Where the credit purchaser or, where applicable, its representative designated in accordance with Article 19 appoints an entity other than the one notified under paragraph 1 of this Article, it shall notify the competent authorities of its home Member State thereof at the latest on the date of that change and shall indicate the identity and address of the new entity that it has appointed to perform credit servicing activities in relation to the transferred creditor’s rights under a non-performing credit agreement or the non-performing credit agreement itself.
3. Member States shall require the competent authorities of the home Member State of the credit purchaser to transmit without undue delay to the competent authorities of the host Member State, to the competent authorities of the Member State in which the credit was granted, and to the competent authorities of the home Member State of the new credit servicer, the information received in accordance with paragraphs 1 and 2.
num: Article 19
title: Representative of a third-country credit purchaser
paragraphs: 1. Member States shall provide that where a transfer of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, is concluded, a credit purchaser that is not domiciled in the Union, or that does not have its registered office or, if under its national law it has no registered office, its head office in the Union designates in writing a representative that is domiciled in the Union or that does have its registered office or, if under its national law it has no registered office, its head office in the Union.
2. The representative referred to in paragraph 1 shall be addressed in addition to, or instead of, the credit purchaser by competent authorities on all issues related to the ongoing compliance with this Directive and be fully responsible for compliance with the obligations imposed on the credit purchaser under the national provisions transposing this Directive.
num: Article 20
title: Transfer of a creditor’s rights under a non-performing credit agreement, or of the non-performing credit agreement itself, by a credit purchaser and communication to the competent authorities
paragraphs: 1. Member States shall require a credit purchaser or, where applicable, its representative designated in accordance with Article 19, that transfers a creditor’s rights under a non-performing credit agreement, or the non-performing credit agreement itself, to inform the competent authorities of its home Member State on a biannual basis of the legal entity identifier (LEI) of the new credit purchaser and, where applicable, of its representative designated in accordance with Article 19 or, where such identifier does not exist, of:
(a)
the identity of the new credit purchaser or, where applicable, its representative designated in accordance with Article 19, or of the members of the new credit purchaser’s or its representative’s management or administrative organ and the persons who hold qualifying holdings in the new credit purchaser or its representative within the meaning of Article 4(1), point (36), of Regulation (EU) No 575/2013; and
(b)
the address of the new credit purchaser or, where applicable, of its representative designated in accordance with Article 19.
Additionally, the credit purchaser or its representative shall inform the competent authorities of its home Member State of at least the following:
(a)
the aggregate outstanding balance of the creditor’s rights under the non-performing credit agreements, or of the non-performing credit agreements transferred;
(b)
the number and size of the creditor’s rights under the non-performing credit agreements or of the non-performing credit agreements transferred;
(c)
whether the transfer includes a creditor’s rights under a non-performing credit agreement, or a non-performing credit agreement itself, concluded with consumers and the types of assets securing the non-performing credit agreement, when applicable.
2. The competent authorities referred to in paragraph 1 may require credit purchasers or, where applicable, their representatives designated in accordance with Article 19, to provide the information referred to in that paragraph on a quarterly basis whenever those competent authorities deem necessary, including in order to better monitor a high number of transfers that might occur during a crisis period.
3. Member States shall ensure that the competent authorities referred to in paragraphs 1 and 2 transmit without undue delay the information received in accordance with those paragraphs to the competent authorities of the host Member State and to the competent authorities of the home Member State of the new credit purchaser.
num: Article 21
title: Supervision by competent authorities
paragraphs: 1. Member States shall ensure that credit servicers and, where applicable, credit service providers to whom credit servicing activities have been outsourced in accordance with Article 12, comply with the national provisions transposing this Directive on an ongoing basis and shall ensure that those activities are subject to adequate supervision by the competent authorities of the home Member State in order to assess such compliance.
2. The home Member State of a credit purchaser or, where applicable, its representative designated in accordance with Article 19, shall ensure that the competent authorities referred to in paragraph 1 of this Article are responsible for the supervision of the obligations set out in Article 10 and in Articles 17 to 20 in respect of the credit purchaser or, where applicable its representative designated in accordance to Article 19.
3. Member States shall designate the competent authorities responsible for carrying out the functions and duties under the national provisions transposing this Directive.
4. Where Member States designate more than one competent authority pursuant to paragraph 3, they shall determine their respective tasks and designate one of them to be a single point of entry for all necessary exchanges and interactions with competent authorities of home or host Member States.
5. Member States shall ensure that appropriate measures are in place to enable the competent authorities designated pursuant to paragraph 3 of this Article to obtain from credit purchasers or their representatives designated in accordance with Article 19, credit servicers, credit service providers to whom a credit servicer outsources credit servicing activities under Article 12, borrowers and any other persons or public authority, the information necessary to carry out the following:
(a)
assess ongoing compliance with the requirements laid down in the national provisions transposing this Directive;
(b)
investigate possible infringements of those requirements;
(c)
impose administrative penalties and remedial measures in accordance with the national provisions transposing Article 23.
6. Member States shall ensure that the competent authorities designated pursuant to paragraph 3 have the expertise, resources, operational capacity and powers necessary for the exercise of their functions and duties laid down in this Directive.
num: Article 22
title: Supervisory role and powers of competent authorities
paragraphs: 1. Member States shall ensure that the competent authorities of the home Member State designated pursuant to Article 21(3) are given all supervisory, investigatory and sanctioning powers, necessary for the exercise of their functions and duties laid down in this Directive, including at least the following:
(a)
the power to grant or refuse an authorisation pursuant to Articles 5 and 6;
(b)
the power to withdraw an authorisation pursuant to Article 8;
(c)
the power to prohibit any of the credit servicing activities;
(d)
the power to conduct on-site and off-site inspections;
(e)
the power to impose administrative penalties and remedial measures in accordance with the national provisions transposing Article 23;
(f)
the power to review outsourcing agreements concluded between credit servicers and credit service providers in accordance with Article 12(1);
(g)
the power to require credit servicers to remove members of their management or administrative organ when they fail to comply with the requirements set out in Article 5(1), point (b);
(h)
the power to require credit servicers to modify or update their internal governance arrangements and internal control mechanisms in order to effectively ensure respect for borrowers’ rights in accordance with the laws governing the credit agreement;
(i)
the power to require credit servicers to modify or update their policies adopted to ensure the fair and diligent treatment of borrowers, and the recording and handling of complaints from borrowers;
(j)
the power to request further information pertaining to the transfer of a creditor’s rights under the non-performing credit agreement, or of the non-performing credit agreement itself.
2. Member States shall ensure that the competent authorities of the host Member State designated pursuant to Article 21(3) and of the Member State where the credit was granted, when different from the host and the home Member States, are given all necessary powers for the exercise of their functions and duties laid down in this Directive.
3. Member States shall ensure that the competent authorities of the home Member State evaluate, by applying a risk-based approach, the implementation by a credit servicer of the requirements set out in Article 5(1), points (e) to (h).
4. Member States shall determine the extent of the evaluation referred to in paragraph 3, having regard to the size, nature, scale and complexity of the activities of the credit servicer concerned.
5. The competent authorities of the home Member State shall inform the competent authorities of the host Member State, or of the Member State where the credit was granted, when different from the host and the home Member States, of the results of the evaluation referred to in paragraph 3 upon request of one of those competent authorities, or where the competent authorities of the home Member State consider it appropriate. The details of any administrative penalties or remedial measures imposed shall be transmitted by the competent authorities of the home Member State to the competent authorities of the host Member State and, where appropriate, of the Member State where the credit was granted, when different from the host and the home Member States.
6. Member States shall ensure that when carrying out the evaluation referred to in paragraph 3, the competent authorities of the home and of the host Member States, and of the Member State where the credit was granted, when different from the host and the home Member States, exchange all information necessary to enable them to carry out their respective functions and duties laid down in this Directive.
7. Member States shall ensure that the competent authorities of the home Member State are able to require a credit servicer, credit service provider or credit purchaser or its representative designated in accordance with Article 19 that does not meet the requirements of the national provisions transposing this Directive to take, at an early stage, all necessary actions or steps in order to comply with those provisions.
num: Article 23
title: Administrative penalties and remedial measures
paragraphs: 1. Without prejudice to the right of Member States to lay down criminal penalties, Member States shall lay down rules establishing appropriate administrative penalties and remedial measures applicable in at least the following situations:
(a)
a credit servicer fails to comply with the requirement set out in the national provisions transposing Article 11 or enters into an outsourcing agreement infringing the national provisions transposing Article 12 or the credit service provider to whom the credit servicing activities were outsourced commits a serious infringement of the applicable legal provisions, including the national provisions transposing this Directive;
(b)
a credit servicer’s governance arrangements and internal control mechanisms as set out in Article 5(1), point (e), fail to ensure respect for borrower rights and compliance with personal data protection rules;
(c)
a credit servicer’s policy is inadequate for the proper treatment of borrowers as set out in Article 5(1), point (f);
(d)
a credit servicer’s internal procedures as set out in Article 5(1), point (g), fail to provide for the recording and handling of complaints from borrowers according to the obligations set out in the national provisions transposing this Directive;
(e)
a credit purchaser or, where applicable, its representative designated in accordance with Article 19 fails to communicate the information provided for by national provisions transposing Articles 18 and 20;
(f)
a credit purchaser or, where applicable, its representative designated in accordance with Article 19 fails to comply with the requirement of the national provisions transposing Article 17;
(g)
a credit purchaser fails to comply with the requirement of the national provisions transposing Article 19;
(h)
a credit institution fails to communicate the information set out in the national provisions transposing Article 15;
(i)
a credit servicer allows one or more persons not complying with the requirements set out in Article 5(1), point (b), to become or remain a member of its management or administrative organ;
(j)
a credit servicer fails to comply with the requirements set out in the national provisions transposing Article 24;
(k)
a credit purchaser or, where applicable, credit servicers or any entity mentioned under Article 2(5), point (a)(i) or (iii), fails to comply with national provisions transposing Article 10;
(l)
a credit servicer receives and holds funds from borrowers when this is not permitted in a Member State in accordance with Article 6(1), point (b);
(m)
a credit servicer fails to comply with the requirements set out in the national provisions transposing Article 6(2).
2. The administrative penalties and remedial measures referred to in paragraph 1 shall be effective, proportionate and dissuasive and shall include at least the following:
(a)
a withdrawal of an authorisation to carry out activities as a credit servicer;
(b)
an order requiring the credit servicer or credit purchaser or, where applicable, its representative designated in accordance with Article 19 to remedy the infringement, and to cease the conduct and to desist from a repetition of that conduct;
(c)
administrative pecuniary penalties.
3. Member States shall ensure that administrative penalties and remedial measures are effectively implemented.
4. Member States shall ensure that, when determining the type of administrative penalties or remedial measures and the amount of the administrative pecuniary penalties, the competent authorities take into account relevant circumstances, including the following:
(a)
the gravity and the duration of the infringement;
(b)
the degree of responsibility of the credit servicer or credit purchaser or, where applicable, its representative designated in accordance with Article 19, responsible for the infringement;
(c)
the financial strength of the credit servicer or credit purchaser responsible for the infringement, including by reference to the total turnover of a legal person or the annual income of a natural person;
(d)
the importance of profits gained or losses avoided because of the infringement by the credit servicer or credit purchaser or, where applicable, its representative designated in accordance with Article 19, responsible for the infringement, insofar as those profits or losses can be determined;
(e)
the losses caused to third parties by the infringement, insofar as those losses can be determined;
(f)
the level of cooperation by the credit servicer or credit purchaser responsible for the infringement with the competent authorities;
(g)
previous infringements by the credit servicer or credit purchaser or, where applicable, its representative designated in accordance with Article 19, responsible for the infringement;
(h)
any actual or potential systemic consequences of the infringement.
5. Member States shall ensure that the competent authorities can apply the administrative penalties and remedial measures set out in paragraph 2 to members of the management or administrative organ, and to other individuals who under national law are responsible for the infringement.
6. Member States shall ensure that before taking any decision imposing the administrative penalties or remedial measures set out in paragraph 2 of this Article, the competent authorities give the concerned credit servicer, credit purchaser or where applicable, its representative designated in accordance with Article 19, the opportunity to be heard.
7. Member States shall ensure that any decision imposing the administrative penalties or remedial measures set out in paragraph 2 is properly reasoned and is subject to the right of appeal.
8. Member States may decide not to lay down rules for administrative penalties for infringements that are subject to criminal penalties under their national law. In that case, Member States shall communicate to the Commission the relevant criminal law provisions.
num: Article 24
title: Complaints
paragraphs: 1. Member States shall ensure that credit servicers establish and maintain effective and transparent procedures for the handling of complaints from borrowers.
2. Member States shall ensure that the treatment by credit servicers of complaints from borrowers is free of charge and that credit servicers record the complaints and the measures taken to address them.
3. Member States shall ensure that the competent authorities establish and publish a procedure for the handling of complaints from borrowers concerning credit purchasers, credit servicers and credit service providers, and shall ensure that they are treated promptly when received.
num: Article 25
title: Personal data protection
paragraphs: The processing of personal data for the purposes of this Directive shall be carried out in accordance with Regulations (EU) 2016/679 and (EU) 2018/1725.
num: Article 26
title: Cooperation between competent authorities
paragraphs: 1. Member States shall ensure that the competent authorities referred to in Articles 8, 13, 14, 15, 18, 20 and 22 cooperate with each other whenever necessary for the purpose of carrying out their functions and duties or of exercising their powers under the national provisions transposing this Directive. Those competent authorities shall also coordinate their actions in order to avoid possible duplication and overlap when applying supervisory powers and administrative penalties and remedial measures to cross-border cases.
2. Member States shall ensure that competent authorities, on request and without undue delay, provide each other with the information required for the purpose of carrying out their functions and duties under the national provisions transposing this Directive.
3. Member States shall ensure that competent authorities receiving confidential information in the exercise of their functions and duties under this Directive use that information only in the course of their functions and duties under the national provisions transposing this Directive. The exchange of information between competent authorities shall be subject to the obligation of professional secrecy referred to in Article 76 of Directive 2014/65/EU of the European Parliament and of the Council (24).
4. Member States shall provide that all persons working, or who have worked, for the competent authorities and auditors or experts acting on behalf of the competent authorities are bound by the obligation of professional secrecy.
5. Member States shall take the necessary administrative and organisational measures to facilitate the cooperation provided for in this Article.
6. The EBA shall facilitate the exchange of information between competent authorities in the Member States and promote their cooperation.
num: Article 27
title: Amendments to Directive 2008/48/EC
paragraphs: Directive 2008/48/EC is amended as follows:
(1)
the following article is inserted:
Without prejudice to other obligations provided for in this Directive, Member States shall ensure that prior to modifying the terms and conditions of the credit agreement, the creditor communicates the following information to the consumer:
(a)
a clear description of the proposed changes and, where applicable, of the need for consumer consent or of the changes introduced by operation of law;
(b)
the timescale for the implementation of the changes referred to in point (a);
(c)
the means for complaint available to the consumer regarding the changes referred to in point (a);
(d)
the time period available for lodging any such complaint;
(e)
the name and address of the competent authority to which the consumer can submit that complaint.’;
(2)
the following article is inserted:
1. Member States shall require creditors to have adequate policies and procedures so that they make efforts to exercise, where appropriate, reasonable forbearance before enforcement proceedings are initiated. Such forbearance measures shall take into account, among other elements, the consumer’s circumstances and may consist of, among other possibilities:
(a)
a total or partial refinancing of a credit agreement;
(b)
a modification of the existing terms and conditions of a credit agreement, which may include among others:
(i)
extending the term of the credit agreement;
(ii)
changing the type of credit agreement;
(iii)
deferring payment of all or part of the instalment repayment for a period;
(iv)
changing the interest rate;
(v)
offering a payment holiday;
(vi)
partial repayments;
(vii)
currency conversions;
(viii)
partial forgiveness and debt consolidation.
2. The list of potential forbearance measures set out in point (b) of paragraph 1 is without prejudice to rules set out in national law and does not require Member States to provide for all of those measures in their national law.
3. Member States may require that, where the creditor is permitted to define and impose charges on the consumer arising from the default, those charges are no greater than is necessary to compensate the creditor for costs it has incurred as a result of the default.
4. Member States may allow creditors to impose additional charges on the consumer in the event of default. In that case, Member States shall place a cap on those charges.’;
(3)
Article 22(1) is replaced by the following:
‘1. Insofar as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive. However, Article 16a(3) and (4) shall not preclude Member States from maintaining or introducing more stringent provisions in order to protect consumers.’.
num: Article 28
title: Amendments to Directive 2014/17/EU
paragraphs: Directive 2014/17/EU is amended as follows:
(1)
the following article is inserted:
Without prejudice to other obligations provided for in this Directive, Member States shall ensure that, prior to modifying the terms and conditions of the credit agreement, the creditor communicates the following information to the consumer:
(a)
a clear description of the proposed changes and, where applicable, of the need for consumer consent or of the changes introduced by operation of law;
(b)
the timescale for the implementation of the changes referred to in point (a);
(c)
the means for complaint available to the consumer regarding the changes referred to in point (a);
(d)
the time period available for lodging any such complaint;
(e)
the name and address of the competent authority to which the consumer can submit that complaint.’;
(2)
Article 28 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. Member States shall require creditors to have adequate policies and procedures so that they make efforts to exercise, where appropriate, reasonable forbearance before foreclosure proceedings are initiated. Such forbearance measures shall take into account, among other elements, the consumer’s circumstances and may consist of, among other possibilities:
(a)
a total or partial refinancing of a credit agreement;
(b)
a modification of the existing terms and conditions of a credit agreement, which may include among others:
(i)
extending the term of the credit agreement;
(ii)
changing the type of credit agreement;
(iii)
deferring payment of all or part of the instalment repayment for a period;
(iv)
changing the interest rate;
(v)
offering a payment holiday;
(vi)
partial repayments;
(vii)
currency conversions;
(viii)
partial forgiveness and debt consolidation.’;
(b)
the following paragraph is inserted:
‘1a. The list of potential forbearance measures set out in point (b) of paragraph 1 is without prejudice to rules set out in national law and does not require Member States to provide for all of those measures in their national law.’;
(3)
the following article is inserted:
1. In the event of an assignment to a third party of the creditor’s rights under a credit agreement, or of the credit agreement itself, the consumer shall be entitled to plead against the assignee any defence which was available to the consumer as against the original creditor, including set-off where the latter is permitted in the Member State concerned.
2. The consumer shall be informed of an assignment referred to in paragraph 1, except where the original creditor, by agreement with the assignee, continues to service the credit vis-à-vis the consumer.’.
num: Article 29
title: Committee
paragraphs: 1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council (25).
2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
num: Article 30
title: Evaluation
paragraphs: 1. By 29 December 2026, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. The evaluation shall consist of at least the following:
(a)
the number of authorised credit servicers in the Union and the number of credit servicers providing their services in a host Member State;
(b)
the number of creditors’ rights under non-performing credit agreements or of non-performing credit agreements purchased from credit institutions by credit purchasers domiciled or having their registered office or, if under their national law they have no registered office, their head office, in the same Member State as the credit institution, or in a different Member State than the credit institution, or outside of the Union;
(c)
an assessment of the existing money laundering and terrorist financing risk associated with the activities performed by credit servicers and credit purchasers;
(d)
an assessment of the cooperation between competent authorities under Article 26.
2. Where the evaluation identifies significant problems with the functioning of this Directive, the report shall outline how the Commission intends to address the identified problems, including steps and timings of the potential revision.
num: Article 31
title: Review clause
paragraphs: Without prejudice to the legislative prerogatives of the European Parliament and the Council, by 29 December 2023, the Commission shall submit to the European Parliament and to the Council a report on:
(a)
the adequacy of the regulatory framework regarding a potential introduction of caps on charges arising from the event of default applicable to credit agreements concluded with:
(i)
natural persons for purposes related to the trade, business or profession of those natural persons;
(ii)
SMEs, as defined in Article 2 of the Annex to Recommendation 2003/361/EC;
(iii)
any borrower, provided that the credit is guaranteed by a natural person or is secured by assets or property belonging to that natural person;
(b)
relevant aspects, including potential forbearance measures, of credit agreements concluded with:
(i)
natural persons for purposes related to the trade, business or profession of those natural persons;
(ii)
SMEs, as defined in Article 2 of the Annex to Recommendation 2003/361/EC;
(iii)
any borrower, provided that the credit is guaranteed by a natural person or is secured by assets or property belonging to that natural person;
(c)
the need for, and feasibility of, developing implementing or regulatory technical standards or other appropriate means to introduce common reporting formats for communications to borrowers under Article 10(2) and on forbearance measures.
Where appropriate, the report referred to in the first paragraph shall be accompanied by a legislative proposal.
num: Article 32
title: Transposition
paragraphs: 1. Member States shall adopt and publish, by 29 December 2023, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.
2. They shall apply the measures referred to in paragraph 1 from 30 December 2023.
By way of derogation from the first subparagraph, entities already carrying out in accordance with national law credit servicing activities on 30 December 2023 shall be allowed to continue carrying out those credit servicing activities in their home Member State until 29 June 2024 or until the date on which they obtain an authorisation in accordance with this Directive, whichever is the earlier.
Member States that already have in place regimes that are equivalent to, or stricter than, those established in this Directive for credit servicing activities may allow entities already carrying out credit servicing activities under those regimes on 30 December 2023 to be automatically recognised as authorised credit servicers by the national provisions transposing this Directive.
3. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
4. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
num: Article 33
title: Entry into force
paragraphs: This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
num: Article 34
title: Addressees
paragraphs: This Directive is addressed to the Member States.