COMMON POSITION (EC) No 21/95 adopted by the Council on 5 September 1995 with a view to the adoption of Directive 95/. . ./EC of the European Parliament and of the Council of . . . amending Directive 89/647/EEC as regards recognition of contractual netting by the competent authorities (95/C 288/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 57 (2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

Having regard to the opinion of the European Monetary Institute (4),

Whereas Annex II to Council Directive 89/647/EEC of 18 December 1989 on a solvency ratio for credit institutions (5) lays down the treatment of off-balance-sheet items concerning interest and foreign-exchange rates in the context of the calculation of credit institutions' capital requirements;

Whereas with a view to the smooth functioning of the internal market and in particular with a view to ensuring a level playing field Member States are obliged to strive for uniform assessment of contractual netting agreements by their competent authorities;

Whereas this Directive is in accordance with the work of another international forum of banking supervisors on the supervisory recognition of bilateral netting, in particular the possibility of calculating the own-funds requirements for certain transactions on the basis of a net rather than a gross amount provided that there are legally binding agreements which ensure that the credit risk is confined to the net amount;

Whereas the rules contemplated for the supervisory recognition of netting at the wider international level will lead to the possibility of reducing the capital requirements for internationally active credit institutions and groups of credit institutions in a wide range of non-member countries whose credit institutions compete with Community credit institutions;

Whereas for credit institutions incorporated in the Member States, only an amendment of Directive 89/647/EEC can create a similar possibility for the recognition of bilateral netting by the competent authorities and thereby offer them equal conditions of competition; whereas the rules are both well balanced and suited to reinforce further the application of prudential supervisory measures to credit institutions;

Whereas the competent authorities in the Member States should ensure that the calculation of add-ons is based on effective rather than apparent national amounts;

Whereas, having regard to this situation, this Directive complies with the principle of subsidiarity, since the aim of this Directive can be achieved only by means of the harmonized amendment of existing Community legislation,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Annex II to Directive 89/647/EEC shall be replaced by the Annex hereto.

Article 2

Article 1 shall be without prejudice to the competent authorities' recognition of bilateral contracts for novation concluded before the entry into force of the laws, regulations and administrative provisions necessary for the implementation of this Directive.

Article 3

1. Those Member States which decide to exercise the option provided for in this Directive shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive after its entry into force. They shall forthwith inform the Commission thereof.

When the Member States adopt those measures they shall contain references to this Directive or shall be accompanied by such references on the occasion of their official publication. The methods of making such references shall be laid down by the Member States.

2. The Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.

Article 4

This Directive shall enter into force 20 days after its publication in the Official Journal of the European Communities.

Article 5

This Directive is addressed to the Member States.

Done at Brussels, . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No C 231, 20. 8. 1994, p. 20 and OJ No C 165, 1. 7. 1995, p. 1.

(2) OJ No C 393, 31. 12. 1994, p. 30.

(3) Opinion delivered on 16 January 1995 (not yet published in the Official Journal).

(4) Opinion of the European Parliament of 16 February 1995 (OJ No C 56, 6. 3. 1995, p. 79), Council Common Position of 5 September 1995 (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(5) OJ No L 386, 30. 12. 1989, p. 14. Directive as last amended by Commission Directive 95/15/EC (OJ No L 125, 8. 6. 1995, p. 23).

ANNEX

'ANNEX II

THE TREATMENT OF OFF-BALANCE-SHEET ITEMS CONCERNING INTEREST AND FOREIGN-EXCHANGE RATES

1. SCOPE AND CHOICE OF METHOD

Subject to the consent of their competent authorities, credit institutions may choose one of the methods set out below to measure the risk associated with the transactions listed in Annex III. Interest-rate and foreign-exchange contracts traded on recognized exchanges where they are subject to daily margin requirements and foreign-exchange contracts with an original maturity of 14 calendar days or less are excluded.

2. METHODS

Method 1: the "mark-to-market" approach

Step (a): by attaching current market values to contracts (mark to market) the current replacement cost of all contracts with positive values is obtained.

Step (b): to obtain a figure for the potential future credit exposure (1), the notional principal amounts or underlying values are multiplied by the following percentages:

>TABLE>

Step (c): the sum of the current replacement cost and the potential future credit exposure is multiplied by the risk weightings allocated to the relevant counterparties in Article 6.

Method 2: the "original exposure" approach

Step (a): the notional principal amount of each instrument is multiplied by the percentages given below:

>TABLE>

Step (b): the original exposure thus obtained is multiplied by the risk weightings allocated to the relevant counterparties in Article 6.

3. CONTRACTUAL NETTING (CONTRACTS FOR NOVATION AND OTHER NETTING AGREEMENTS)

(a) Types of netting that the competent authorities may recognize

For the purposes of this point 3 "counterparty" means any entity (including natural persons) that has the power to conclude a contractual netting agreement.

The competent authorities may recognize as risk-reducing the following types of contractual netting:

(i) bilateral contracts for novation between a credit institution and its counterparty under which mutual claims and obligations are automatically amalgamated in such a way that this novation fixes one single net amount each time novation applies and thus creates a legally binding, single new contract extinguishing former contracts;

(ii) other bilateral netting agreements between a credit institution and its counterparty.

(b) Conditions for recognition

The competent authorities may recognize contractual netting as risk-reducing only under the following conditions:

(i) a credit institution must have a contractual netting agreement with its counterparty which creates a single legal obligation, covering all included transactions, such that, in the event of a counterparty's failure to perform owing to default, bankruptcy, liquidation or any other similar circumstance, the credit institution would have a claim to receive or an obligation to pay only the net sum of the positive and negative mark-to-market values of included individual transactions;

(ii) a credit institution must have made available to the competent authorities written and reasoned legal opinions to the effect that, in the event of a legal challenge, the relevant Courts and administrative authorities would, in the cases described under (i), find that the credit institution's claims and obligations would be limited to the net sum, as described in (i), under:

- the law of the jurisdiction in which the counterparty is incorporated and, if a foreign branch of an undertaking is involved, also under the law of the jurisdiction in which the branch is located,

- the law that governs the individual transactions included, and

- the law that governs any contract or agreement necessary to effect the contractual netting;

(iii) a credit institution must have procedures in place to ensure that the legal validity of its contractual netting is kept under review in the light of possible changes in the relevant laws.

The competent authorities must be satisfied, if necessary after consulting the other competent authorities concerned, that the contractual netting is legally valid under the law of each of the relevant jurisdictions. If any of the competent authorities is not satisfied in that respect, the contractual netting agreement will not be recognized as risk-reducing for either of the counterparties.

The competent authorities may accept reasoned legal opinions drawn up by types of contractual netting.

No contract containing a provision which permits a non-defaulting counterparty to make limited payments only, or no payments at all, to the estate of the defaulter, even if the defaulter is a net creditor (a "walkaway" clause), shall be recognized as risk-reducing.

(c) Effects of recognition

(i) Contracts for novation

The single net amounts fixed by contracts for novation, rather than the gross amounts involved, may be weighted. Thus, in the application of Method 1, in:

- Step (a): the current replacement cost, and in

- Step (b): the notional principal amounts or underlying values

may be obtained taking account of the contract for novation. In the application of Method 2, in Step (a) the notional principal amount may be calculated taking account of the contract for novation; the percentages of Table 2 apply.

(ii) Other netting agreements

In the application of Method 1, in Step (a) the current replacement cost for the contracts included in a netting agreement may be obtained by taking account of the current hypothetical net replacement cost which results from the agreement. In Step (b) the single net amounts may be taken into account only for forward foreign-exchange contracts and other similar contracts, in which notional principal is equivalent to cash flows, in cases where the amounts to be claimed or delivered fall due on the same value date and in the same currency.

In the application of Method 2, in Step (a)

- for forward foreign-exchange contracts and other similar contracts, in which notional principal is equivalent to cash flows, in cases where the amounts to be claimed or delivered fall due on the same value date and in the same currency, the notional principal amount may be calculated taking account of the netting agreement; to all these contracts Table 2 applies,

- for all other contracts included in a netting agreement, the percentages applicable may be reduced as indicated in Table 3:

>TABLE>

'

(1) Except in the case of single-currency "floating/floating interest-rate swaps" in which only the current replacement cost will be calculated.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. The Commission proposal was submitted to the Council by the Commission on the basis of Article 57 (2) of the Treaty, on 28 April 1994. The European Parliament and the Economic and Social Committee delivered their opinions on 16 February 1995 and 14 September 1994 respectively. The European Monetary Institute delivered its opinion on 16 January 1995.

In the light of those opinions, the Commission submitted an amended proposal on 10 May 1995.

2. On 5 September 1995, the Council adopted its common position on the above proposal, in accordance with the second subparagraph of Article 189b (2) of the Treaty.

II. OBJECTIVE

The aim of this Directive is to amend Annex II of the Solvency Ratio Directive (89/647/EEC). This annex deals with the treatment of off-balance-sheet items connected with interest and foreign-exchange rates. The intention is to enable the risk-reducing effects of bilateral netting to be recognized more widely than at present for the purposes of supervision, provided that the legal validity of the contractual netting is proven.

The amendments take account of recent work in this area by the Basle Committee on Banking Supervision.

III. THE COMMON POSITION

The common position follows in the main the approach of the original proposal of the Commission, adding certain elements which are primarily intended to make the text more precise and transparent (1).

Regarding the preamble the Council has chosen to keep the text as originally proposed by the Commission with the addition of two further recitals which:

- indicate that Member States are obliged to strive for a uniform assessment by their competent authorities of agreements for contractual netting with a view to a smooth functioning of the single market and, in particular, to ensuring a level playing field. In doing so, the common position incorporates the sense of amendment 9 proposed by the European Parliament (second recital) (this element of the text was originally contained in Annex II point 3 (b) last subparagraph),

- indicate, for the sake of greater precision, the basis for the calculation of add-ons (sixth recital).

Regarding the enacting terms the common position takes account, in Article 3, of the optional nature for Member States of the possibility of recognizing netting agreements;

Regarding the Annex, which is to replace Annex II of Directive 89/647/EEC, the following modifications have been introduced into the common position with a view to making the text more precise:- the term 'competent authorities' has been employed in line with the European Parliament's proposal and with current community legislation. This term is not defined in the common position, however, since it is already defined in Article 2 (1) of Directive 89/647/EEC, as amended by Article 10 (3) of Directive 92/30/EEC, as 'the national authorities which are empowered by law or regulation to supervise credit institutions',

- the references in point 2, Method 1 Step (b) and point 3 (c) (i) Step (b) to 'an institution's aggregate books' have been deleted,

- in point 3 (a), a definition of the term 'counterparty' has been introduced. In doing so, the common position includes, albeit with slightly different wording, amendment 5 proposed by the European Parliament,

- in point 3 (a) (i), the terms 'each time novation applies', has been introduced, in order to make it clear that this provision also applies to those forms of contractual netting in which novation applies more than once, so as to produce a net amount for each currency and value date, provided that the net amounts result from an agreement that creates a single contractual obligation extinguishing the former contractual obligations,

- in order to complete the list of reasons for a counterparty's failure to perform, set out in point 3 (b) (i), an additional reference is now made to 'any other similar circumstance',

- in point 3 (b) (i), the terms 'the net value of the sum of unrealized gains and losses on included transactions' have been replaced by the terms 'the net sum of the positive and negative mark-to-market values of included individual transactions',

- it is made clear in point 3 (b) (ii) that the legal opinions must be made available to, but not necessarily furnished to the competent authorities. In doing so, the common position incorporates the sense of amendment 7 proposed by the European Parliament,

- it is stipulated that the reasoned legal opinions referred to in point 3 (b) can be drawn up according to types of contractual netting. In doing so the common position incorporates albeit with a slightly different wording amendment 8 proposed by the European Parliament,

- a definition of the term 'a walkaway clause' has been inserted in point 3 (b) last subparagraph,

- it is made clear that the provisions in point 3 (c) (ii) first subparagraph second sentence and second subparagraph first indent apply to forward foreign exchange contracts.

There are other minor changes of a purely technical/linguistic nature.

IV. CONCLUSION

The Council considers that the various minor amendments and clarifications made to the Commission proposals are in keeping with the aims of the Directive. The Directive will give Member States the possibility, in accordance with international developments in the area of banking supervision, of calculating the own-funds requirements for certain transactions in a balanced and flexible manner.

(1) In certain language versions the terms 'contracts for novation and other netting agreements' are referred to by the common term 'contractual netting'.