A4-0152/98

Resolution on the Commission's interpretative communication on freedom to provide services and the interest of the general good in the second banking directive (SEC(97)1193 - C4-0465/97)

The European Parliament,

- having regard to the Commission's interpretative communication (SEC(97)1193 - C4-0465/97),

- having regard to the second directive on banking services, 89/646/EEC ((OJ L 386, 30.12.1989, p. 1.)), as amended by Directive 92/30/EEC ((OJ L 110, 28.4.1992, p. 52.)),

- having regard to the views put forward by the Commission and experts at the hearing organized by the Committee on Legal Affairs and Citizens' Rights on 6 January 1998,

- having regard to the judgments of the Court of Justice of the European Communities which have direct implications for the working of the above-mentioned directive and which are broadly included in the communication, in particular the recent judgment in the Parodi case (Case C-222/95 of 9 July 1997),

- having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinion of the Committee on Economic and Monetary Affairs and Industrial Policy (A4-0152/98),

1. Welcomes the fact that the Commission has sought, through an interpretative communication, to dispel the uncertainties arising from the text of the second banking directive, in particular in the light of the forthcoming introduction of a common currency system; welcomes in particular the fact that in its introduction to its communication the Commission makes it clear that the interpretation submitted by it can in no circumstances be binding on either the Member States or the Court of Justice of the European Communities;

2. Considers this clarification to be all the more important in that the Commission elsewhere in its introduction recommends its communication as providing 'all the parties concerned - national administrations, traders and consumers - with a reference document defining the legal framework within which ... banking activities ... should be pursued'.

3. Points, however, to the risk of this approach in that it does not follow the formal route of the Community legislative process and that while Parliament may be able to express an opinion, neither it nor the Council can exercise their formal powers of codecision;

4. Points also to the inconsistency of the Commission announcing a change to the second banking directive in the context of the SLIM project, in particular with regard to the notification procedure, while at the same time consulting Parliament;

5. Agrees with the Commission, however, that the notification procedure - in particular where it relates to a possible refusal in the interest of the general good by the authorities of the host Member State to grant authorization, after notification, to perform cross-border banking services - should be done away because the authorities of the home Member State can be assumed to have exercised proper supervision;

6. Notes that doing away with this notification procedure makes it less imperative to establish in what precise Member State the service has been performed, and also enables both parties to a transaction to choose where to seek legal redress in the event of a dispute;

7. Feels that the place where the service is performed is another source of confusion, not least because with modern means of communications such as the Internet it is much more difficult to determine that place; believes, however, that the consumer - who is already in a weaker financial position in legal proceedings - benefits in that he has greater choice of where to seek legal redress;

8. Emphasizes to the Commission that because of the notification procedure Community banking institutions wishing to perform services in other Member States could be placed at a disadvantage compared with banking institutions from third countries;

9. Points out furthermore that the notification procedure should be abolished because any refusal to grant authorization is based on an interpretation by the authorities of the host Member State of the concept of 'general good' which the Commission itself has been unable to define satisfactorily in this interpretative communication;

10. Supports, however, the Commission's view that Community law takes precedence over international private law, because Community legislation not only affords the consumer more protection in this respect, but is also more specific;

11. Notes, despite the objections inherent in this informal interpretative communication, the possible positive effect which this method of closer interpretation might have on considerations of the judicial authorities of the Member States in the event of arbitration of a conflict between a bank institution performing a service in another Member State and the authorities in the recipient state and/or the consumer;

12. Regrets that the Commission cites no practical examples of provisions that are seen by Member States as being justified in the general interest but which the Commission considers to be inadmissible; takes the view that the substance of any such abstract mater as that set out in the Commission communication can only be conveyed effectively and comprehensibly by citing practical examples, and that failure to do so cannot be justified out of consideration for the Member States concerned;

13. Hopes and expects that as a result of this communication cross-border banking services for the benefit of consumers and businesses within the Union will increase;

14. Considers it as a serious omission that the Commission indicates only incidentally that it would be prepared, were it to be informed of restrictive provisions, to initiate proceedings against the Member State concerned in accordance with Article 169 of the EC Treaty, without stating clearly and unambiguously how it would proceed to discharge its responsibilities as guardian of the Treaties in such cases;

15. Instructs its President to forward this resolution to the Commission, the Council and the supervisory bodies of the Member States.