Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council amending Council Directives 85/611/EEC, 92/49/EEC, 92/96/EEC and 93/22/EEC as regards exchange of information with third countries"

(2000/C 168/01)

On 10 April 2000 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 5 April 2000. The rapporteur was Mr Burani.

At its 372nd plenary session (meeting of 27 April 2000) the Economic and Social Committee adopted the following opinion by 103 votes to one.

1. Introduction

1.1. Directive 98/33/EC of 22 June 1998(1) amends Article 12 of Directive 77/780/EEC(2) (first banking directive), Articles 2, 5, 6, 7 and 8 and Annexes II and III of Directive 89/647/EEC(3) on a solvency ratio for credit institutions, and Article 2 and Annex II of Directive 93/6/EEC(4) on the capital adequacy of investments firms and credit institutions. The amendments referred to here concern the rules on the exchange of confidential information, in the context of cooperation agreements with the bodies or authorities of third countries which help in any way to strengthen the stability of the financial sector.

1.2. The said rules are intended to widen the scope of information exchange: whereas hitherto such exchange had been allowed only between supervisory authorities (in some cases confined to the countries of the European Union), the aforementioned Directive extends this capability in the sense set out in the last paragraph of point 1.1 above. The aim is clearly to contribute to the formation of a corpus of overall information likely to improve supervision of the activities of firms falling within the scope of the Second Banking Directive.

1.3. The Commission points out (recital (2) of the draft directive under consideration) that on grounds of consistency the same rules should also apply to bodies which are not subject to the Second Banking Directive, but which in various ways perform financial activities regulated by other directives: the collective investment undertakings (UCITS) covered by Directives 85/611/EEC(5) and 93/22/EEC(6) and non-life insurance and life assurance companies (Directives 92/49/EEC(7) and 92/96/EEC(8)).

1.4. The draft directive therefore authorises Member States to conclude cooperation agreements with any authority in a third country likely to possess and exchange information on the bodies mentioned in point 1.3 above, provided that the information disclosed is subject to appropriate guarantees of professional secrecy.

2. Comments

2.1. As the Commission says, the draft directive is consistent with an approach which seeks to make the supervision and control of financial activities more effective, in whatever form and by whomsoever they are exercised. The Economic and Social Committee can therefore only give its own agreement and support to the Commission's initiative.

2.2. However, the ESC wishes to express some concern about the list of entities in third countries authorised to exchange information: alongside those indicated (supervisory authorities, bodies involved in liquidation or bankruptcy proceedings and relevant monitoring bodies, auditors etc.), it would not be inappropriate to include bodies responsible for preventing money-laundering and fraud. It is clear that the rules covering the activities of such bodies - and their very nature, different from that of control authorities - can make the exchange of information difficult. However, in some cases goodwill and the supremacy of the public interest could prevail over purely formal considerations or restrictive interpretations of legal provisions.

2.3. Inclusion of the bodies mentioned in point 2.2 above would have two advantages: one the one hand, it would provide timely information to the supervisory bodies on facts which, if discovered in time, could avert disastrous consequences (cf. the notorious BCCI case): while on the other, it would in some cases assist the fight against organised crime - a subject covered in a separate opinion which the Committee is in the process of drafting.

Brussels, 27 April 2000.

The President

of the Economic and Social Committee

Beatrice Rangoni Machiavelli

(1) OJ L 204, 21.7.1998.

(2) OJ L 322, 17.12.1977.

(3) OJ L 386, 30.12.1989.

(4) OJ L 141, 11.6.1993.

(5) OJ L 375, 31.12.1985.

(6) OJ L 141, 11.6.1993.

(7) OJ L 228, 11.8.1992.

(8) OJ L 360, 9.12.1992.