1973D0391 — EN — 01.01.1995 — 003.001 — 1
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►B COUNCILDECISION
of3December 1973
onconsultationandinformationprocedures inmatters ofcredit insurance,credit guaranteesand
financialcredits
(73/391/EEC)
(OJ L 346, 17.12.1973, p. 1)
Amended by:
Official Journal
No page date
►M1Council Decision 76/641/EEC of 27 July 1976 L 223 25 16.8.1976
Amended by:
►A1Act of Accession of Spain and Portugal L 302 23 15.11.1985
►A2Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
Corrected by:►
C1Corrigendum, OJ L 74, 19.3.1974, p. 31 (73/391/EEC)
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
▼B
COUNCILDECISION
of3December 1973
on consultation and information procedures in matters of credit
insurance,creditguaranteesandfinancialcredits
(73/391/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 113 thereof;
Having regard to the proposal from the Commission;Whereas, by a Decision of 27 September 1960(
1), the Council set up a
Policy Coordination Group for Credit Insurance, Credit Guarantees and
Financial Credits;
Whereas, by a Decision of 26 January 1965(2), the Council set up a
consultation procedure in matters of credit insurance, credit guaranteesand financial credits;
Whereas it is advisable that, on the basis of the experience acquired in
applying this consultation procedure, certain amendments be madethereto,
HAS DECIDED AS FOLLOWS:
Article 1
The provisions of the Annex shall apply as from 1 January 1974.These provisions shall be substituted for those formerly adopted by the
Council as regards the procedure for consultation in matters of credit
insurance, credit guarantees and financial credits.
Article 2
This Decision is addressed to the Member States.1973D0391 — EN — 01.01.1995 — 003.001 — 2
(1) OJ No 66, 27. 10. 1960, p. 1339/60.
(2) OJ No 19, 5. 2. 1965, p. 255/65.
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ANNEX
CONSULTATION ANDINFORMATION PROCED URES IN MATTERS
OF CREDIT INSURANCE, CREDIT GUARANTEES AND FINANCIAL
CREDITS
TITLE I
GENERALPROCEDURE
Section I
Scope
Article 1
Consultation in accordance with the procedure laid down in Section II shall take
place where it is proposed ►C1— by the State, any other State organization or
any State body for credit insurance or finance — ◄to grant or guarantee, fully
or partially, foreign credits:
— linked to exports of goods or services
— which depart from the norms listed in Annex I or from any other norm
adopted by the Member States.
Article 2
The consultation procedure shall be applicable:
— whether it concerns supplier credits or financial credits
— whether these credits form the subject-matter of individual contracts or
global credit arrangements as described in Article 3
— whether the credits are purely private or are sponsored fully or partially, out
of public funds.
Mixed credits combining public and private funds and global private credit
arrangements combined with public fund interest subsidies shall for the purpose
of this procedure be considered as public credits.
Article 3
1. ‘Global credit arrangement’ shall mean any understanding or statement, in
whatever form, whereby the intention to guarantee supplier or financial credits
or to open financial credits, up to a specified or ascertainable ceiling, and in
respect of a connected series of transactions, is made known to a third country
or to exporters or to financial institutions.
The consultation procedure shall be applicable to these global arrangements
even where the nature of the transactions has not been specified and no formal
commitment has been entered into, without prejudice to the right to decide on
eachparticular contract.
2. If, in the course of a consultation on the granting of a global arrangement
— whether public or private in nature — a Member State or the Commission
should request oral consultation and if in the course of this oral consultation
►A2seven◄Member States should request that all or some of the individual
contracts to be charged to this global arrangement constitute the subject of prior
consultations, consultation shall be applicable to such contracts.
3. Any Member State which has granted a global arrangement shall, at a date
subsequent thereto, and every six months thereafter, give notification of the use
made of that arrangement.
Section II
Procedure
Article 4
In the case of an individual contract, the Member State initiating consultation
shall supply the following information:
(a) country of destination;
(b) location of the transaction or, failing that, address of head office of the
contracting party in the country of destination;1973D0391 — EN — 01.01.1995 — 003.001 — 3
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(c) characteristics of the transaction:
— nature of transaction: type of material and approximate number of items
to be supplied,
— value rating according to the scale given in Annex 2,
— whether buyers and any guarantors are public or private,
— if transaction is to be put for international tender, closing date for
submission of tenders;
(d) principal credit terms applied for by proposed recipient;
(e) credit terms the authorities in the exporting country propose to offer:
— percentage payable on credit,
— duration of credit and starting-point thereof (e.g. each delivery, last
delivery, commissioning),
— repayment rate,
— where repayment is not to be effected by equal instalments at regular
intervals between the starting-point and termination of the credit, exact
details of how this is to be effected (percentage of each instalment and
exact date of payment),
— amount of effective interest subsidy, where it differs from that receivable
under the normal system; interest rate if the credit is to be granted out of
public funds,
— credit insurance charges, where these differ from those payable under
the normal system,
— scope and terms of any support for local expenditure;
(f) precise grounds cited for not applying, or departing from, the norms set out
in Article 1. Where they obtain, the following circumstances must be speci-
fied: aid credit; competition from a third country (with indication whether or
not supported); transaction to be charged to a global arrangement which has
been the subject of previous consultation.
Article 5
In the case of global credit arrangements, the Member State initiating consulta-
tion shall supply the following information:
(a) country of destination;
(b) ceiling of global credit arrangement;
(c) purpose of credit:
— if known, place where transaction is to be carried out,
— type of material, the supply of which is contemplated,
— whether borrowers and any guarantors are public or private;
(d) credit terms as under Article 4 (e) and eligibility requirements for individual
contracts (e.g. closing dates for charging to global credit arrangement,
minimum contract prices to be set, if any);
(e) precise grounds cited for not applying, or departing from, the norms set out
in Article 1. Where they obtain, the following circumstances must be speci-
fied: aid credit; competition from a third country (with indication whether or
not supported).
Article 6
The following numbering shall be observed when transmitting information:
— individual contracts: letter corresponding to the consulting Member State
followed by a serial number for each year; where a contract is charged to a
global arrangement, the numbering of such global arrangement shall also be
indicated;
— global private credit arrangements: letter ‘X’ followed by the letter corre-
sponding to the consulting Member State and a serial number for each year;
— public or mixed credits: letter ‘A’ followed by the letter corresponding to the
consulting Member State and a serial number for eachyear.
Article 7
In order to enable Member States to coordinate their attitudes in due and proper
time, the information prescribed under Articles 4 and 5 must be transmitted as
soon as possible after initiation of the study either of the guarantees and the
proposed credits proper, or of any other decision which, under the terms of
national regulations or national administrative practices, would constitute a
prerequisite for the subsequent examination of such guarantees or credits.1973D0391 — EN — 01.01.1995 — 003.001 — 4
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Article 8
Where there are changes in the factors justifying departure from the norms or if
new basic terms of the credit are proposed which differ from those initially
specified by the consulting Member Sate, renewed consultation shall take place
under a revised reference.
If, however, the new terms proposed are more restrictive, the Member State
concerned shall be committed only to direct information under the initial refer-
ence.
Article 9
The information specified in Articles 4 and 5, the replies specified in Article 10
and the notification referred to in Article 15 shall be transmitted by telex to reci-
pients designated by each Member State, the Commission and the Secretariat of
the Council respectively.
All correspondence relating to a consultation shall bear the latter's number and
an indication of the country of destination.
Article 10
1. Member States and the Commission may:
— indicate that the terms proposed by the consulting Member State do not call
for any comments;
— request the consulting Member State to provide additional details;— make comments and reservations or express an unfavourable opinion; only
an opinion expressly stated to be an ‘unfavourable opinion’ shall be consid-
ered to be such;
— request a consultative meeting.
2. Where transactions subject to consultation receive an unfavourable opinion
from►
A2seven◄Member States, consultative meetings shall take place
automatically.
3. Except where Article 13 applies, the consulting Member State shall
suspend its decision until the expiry of the periods prescribed in Article 11, or,
where a consultative meeting is due to take place automatically under paragraph
2, until such meeting has been held.
Article 11
The procedure prescribed in Article 10 (1) must be initiated within a period of 7
calendar days from the date of the introductory communication from the
consulting Member State.
Where requests for additional details are addressed to the consulting Member
State, by the date of expiry of the 7 calendar-day time limit at the latest, the
latter must reply within 5 calendar days at the latest.
Participants in the aforementioned procedure shall be allowed a maximum
period of three working days following receipt of such additional details within
which to express their opinion.
Article 12
Failure on the part of the Member States consulted or of the Commission to
reply within the periods prescribed in Article 11 shall be deemed an absence
of comments as defined in Article 10 (1) (1).
As soon as a Member State requesting additional details has notified the recipi-
ents referred to in Article 9 of failure to receive a reply by the date of expiry of
the period prescribed in Article 11 (2) a consultative meeting shall take place
automatically and Article 10 (3) shall apply.
Article 13
As an exceptional measure, the consulting Member State may take an immediate
decision on the transaction proposed if it considers that such decision can no
longer be delayed.
However, except in the case of public credits, this provision shall not apply:
— in the case of the decision to grant or guarantee the credit being based only
on intra-Community competition. However, the possibility of taking an
immediate decision on transactions shall be permitted on terms which
another Member State has already decided to support;1973D0391 — EN — 01.01.1995 — 003.001 — 5
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— to the extent that any procedure laid down in an international context and to
which all Member States are parties affords all participants, only the sole
alternative, in cases of urgency, of reducing the normal periods for reply.
Article 14
Consultative meetings shall be held on the occasion of any meeting of the
Policy Coordination Group for Credit Insurance, Credit Guarantees and Finan-
cial Credits set up by the Council Decision of 27 September 1960, or of its
subgroups. Further, if any Member State so requests, special meetings shall be
convened in between meetings of the Group or of its subgroups.
Member States and the Commission shall communicate to the recipients referred
to in Article 9, if possible four calendar days before the consultative meetings,
lists of the matters which they intend to submit for discussion.
Consultative meetings shall be held at the seat of the Secretariat of the Council.
Article 15
In all cases the final decision taken in respect of each transaction shall be made
known to the other Member States. The notification of such decision shall be
accompanied by a statement of the reasons for which the consulting Member
State was unable to take account of any comments, reservations or unfavourable
opinions expressed by the partners consulted.
TITLE II
SPECIALPROCEDURES
Article 16
Any Member State may ask any other Member State whether it has knowledge
of a transaction which until then has not been the subject of consultation and, in
particular, of the credit terms alleged by an exporter or a financial institution.
Should no reply to these requests for details be forthcoming within seven
calendar days, the enquiring Member State shall be entitled to consider that the
Member State consulted has knowledge of this matter and that the alleged credit
terms are deemed to have been established. In accordance with the procedure
prescribed under Title I, the enquiring Member State shall have the right to
institute a consultation while indicating expressly that it is motivated by a
competitive situation which is deemed to have been established.
If consultation has already been initiated by a Member State and another
Member State which is called upon to support the same transaction questions
the first-mentioned State as to its final position, failure to reply to such ques-
tioning on the expiry of a period of five working days shall authorize the
enquiring Member State to consider that the Member State thus questioned has
supported the matter on the terms indicated during consultation.
Article 17
Untied credits departing from the norms set out in Annex I or from any other
norm adopted by the Member States shall, within the framework of the Policy
Coordination Group for Insurance Credit, Credit Guarantees and Financial
Credits, entail notification:
— of the basic components of credits granted in the course of the preceding
quarter;
— of the use made of untied credits at the close of the preceding year.
Article 18
When a Member State concludes with a third country an agreement which refers
to the possible grant of credits without specifying the precise terms thereof:
— in the case of tied credits, it shall on conclusion of the agreement communi-
cate the main features thereof to the recipients referred to in Article 9;
— in the case of untied credits, the notifications provided for in Article 17 shall
equally apply to suchcredits.
Where grants of untied credits are concerned, these shall also be subject to noti-
fication as provided in Article 17.1973D0391 — EN — 01.01.1995 — 003.001 — 6
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TITLE III
PERIODICREPORTS
Article 19
The Policy Coordination Group for Credit Insurance, Credit Guarantees and
Financial Credits shall submit half-yearly reports on the application of the
procedure referred to in Titles I and II.
These periodic reports notwithstanding, supplementary reports shall also be
drawn up, if the nature and importance of the difficulties encountered in the
application of the relevant procedure so require.1973D0391 — EN — 01.01.1995 — 003.001 — 7
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ANNEX 1
COMMUNITY NORMS WHICH CANNOT BE DEPARTED FROM
WITHOUTCONSULTATION
A.Durationofcredits
The duration of any credit granted, whether supplier credit for financial
credit, must not exceed five years calculated from the following starting
points:
1.Capital goods consisting of individual items usable in themselves (for
example, locomotives):
— the mean date, or actual dates, on which the buyer is to take physical
possession of the goods in his own country.
2.Capital goods for complete plants or factories where the supplier has no
responsibility for commissioning:
— the date on which the buyer is to take physical possession of the
entire goods (excluding spare parts) supplied under the contract.
3.Construction contracts where the contractor has no responsibility for
commissioning:
— the date on which construction has been completed.
4.Installation (or construction) contracts where the supplier (or contractor)
has a contractual responsibility for commissioning:
— the date on which the supplier (or contractor) has completed installa-
tion (or construction) and preliminary tests to ensure that it is ready
for operation, whether or not the installation (or construction) ishanded over to the buyer at that time in accordance with the terms
of the contract and irrespective of any continuing commitment which
the supplier (or contractor) may have entered into, for example to
guarantee its effective functioning or to train local personnel.
5. In the case of points 2, 3 and 4, where the contract involves the separate
execution of individual parts of a project:
— the date of the starting-point for each separate part, or the mean date
of those starting-points or, where the supplier has entered into a
contract not for the whole project but for an essential part of it, the
starting-point appropriate to the project as a whole.
B.Percentage oflocalexpenditure
In the case of guaranteed private credits, the balance of the local portion
payable on credit must not exceed 5 % of the contract price:
— however, consultation shall not be instituted in the case of contracts
which provide for payment of the local portion to be made, at the latest,
upon the expiry of a period of three months calculated from the final
completion of the works or deliveries;
— for the proper interpretation of this rule:
— ‘balance payable on credit’ shall mean the balance outstanding after
charging against the local portion all payments made on account in
connection withth e contract;
— ‘local portion’ shall mean that portion of the contract price repre-
senting the expenditure the exporter expects to incur on the spot in
the way of payments to employees and others and payments forgoods and materials;
— ‘contract’ shall mean any type of contract for the supply of goods
and materials; for the carrying out of work; mixed (i.e., supply and
works) contracts;
— ‘payments on account’ shall mean all the sums payable between the
placing of the order and final completion of the works or deliveries.
C.Leasingcontracts
For the purposes of application of the rules, which are the subject of the
present Decision, leasing contracts shall be treated as credits. Where their
total duration is not expressly restricted, suchduration sh all be regarded as
being in excess of five years.1973D0391 — EN — 01.01.1995 — 003.001 — 8
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ANNEX 2
SCALEOFVALUESTOBEUSED
Category I: up to 750000 special drawing rights.
Category II: from 600000 to 1200 000 special drawing rights.
Category III: from 1 000000 to 2 200000 special drawing rights.Category IV: from 2 000000 to 3 200000 special drawing rights.
Category V: from 3 000000 to 5 000000 special drawing rights.
Category VI: from 4 800000 to 7 600000 special drawing rights.Category VII: from 7 400000 to 11200 000 special drawing rights.Category VIII: from 10000000 to 22000000 special drawing rights.
Category IX: from 20000000 to 44000000 special drawing rights.
Category X: over 40000000 special drawing rights.1973D0391 — EN — 01.01.1995 — 003.001 — 9
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