Opinion of the Commission pursuant to Article 189B(2)(d) of the EC Treaty on the European Parliament's amendments to the Council's common position regarding the proposal for a European Parliament and Council Directive amending Directives 77/780/EEC and 89/646/EEC in the field of credit institutions, Directives 73/239/EEC and 92/49/EEC in the field of non-life insurance, Directives 79/267/EEC and 92/96/EEC in the field of life assurance, Directive 93/22/EEC in the field of investment firms and Directive 85/611/EEC in the field of undertakings for collective investment in transferable securities (Ucits), with a view to reinforcing prudential supervision (amending the proposal of the Commission pursuant to Article 189A(2) of the EC Treaty)
Date: 1994-11-29
Institutions: European Commission
Subjects: banking supervision, credit institution, insurance, investment company

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

COM(94) 549  final - COD 468 

Brussels, 29.11.1994 

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pursuant to Article 189b(2) (d) of the EC Treaty 
on the European Parliament's amendments 
to the Council common position regarding the 
proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING 

DIRECTIVES 77/780/EEC AND 89/646/EEC IN THE FIELD OF 
CREDIT INSTITUTIONS, DIRECTIVES 73/239/EEC AND 92/49/EEC 
IN THE FIELD OF NON-LIFE INSURANCE, DIRECTIVES 79/267/EEC 
AND 92/96/EEC IN THE FIELD OF LIFE ASSURANCE, DIRECTIVE 
93/22/EEC IN THE FIELD OF INVESTMENT FIRMS AND DIRECTIVE 
85/611/EEC IN THE FIELD OF UNDERTAKINGS FOR COLLECTIVE 
INVESTMENT IN TRANSFERABLE SECURITIES (UCITS), WITH 
A VIEW TO REINFORCING PRUDENTIAL SUPERVISION 

AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article  189 a (2) of the EC Treaty 

OPINION OF THE COMMISSION 
pursuant to Article 189b(2) (d) of the EC Treaty 
on the European Parliament's amendments 
to the Council common position regarding the 
proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING 
DIRECTIVES 77/780/EEC AND 89/646/EEC IN THE FIELD OF 
CREDIT INSTITUTIONS, DIRECTIVES 73/239/EEC AND 92/49/EEC 
IN THE FIELD OF NON-LIFE INSURANCE, DIRECTIVES 79/267/EEC 
AND 92/96/EEC IN THE FIELD OF LIFE ASSURANCE, DIRECTIVE 
93/22/EEC IN THE FIELD OF INVESTMENT FIRMS AND DIRECTIVE 
85/611/EEC IN THE FIELD OF UNDERTAKINGS FOR COLLECTIVE 
INVESTMENT IN TRANSFERABLE SECURITIES (UCITS), WITH 
A VIEW TO REINFORCING PRUDENTIAL  SUPERVISION 

1. 

STAGE REACHED IN THE PROCEDURE 

(a)  On 28 July  1993 the  Commission  adopted  a proposal  for  a  Directive*  amending 
Directives 77/780/EEC and  89/646/EEC (on credit  institutions),  73/239/EEC and 
92/49/EEC  (on  non-life 
life 
assurance)  and  93/22/EEC  (on  investment  firms).  The  proposal  was  sent to  the 
Council by letter of the same date. 

insurance),  79/267/EEC  and  92/96/EEC  (on 

The  Council  immediately  sent  copies  of  the  proposal  to  Parliament  and  the 
Economic  and  Social  Committee. 
It  began  consideration  of  the  proposal  on 
9 September. 

(b)  At its 311th plenary  session in Brussels on 21 December  1993, the Economic and 
Social  Committee  unanimously  adopted  an  opinion  on  the  proposal  for  a 
Directive,^ approving the principle but requesting certain amendments. 

(c)  Parliament  adopted  a  legislative  resolution  embodying  its  opinion  on  the 

Commission proposal for a Directive at its sitting on 9 March 1994.3 

1  OJ No C 229,25.8.1993, p. 10. 
2  OJNoC52,  19.2.1994, p. 15. 
3  EP 180.578 - Record of the sitting on 9 March 1994 

(d)  On  2 May 1994  the  Commission  adopted  and  transmitted  to  the  Council  an 
amended proposal^ worded in such a way as to take account of the consultations 
with Parliament and the Economic and Social Committee. 

(e)  On 6 June  1994 the  Council  adopted  a  common  position^  which  also  concerns 
Directive 85/611/EEC  on  undertakings  for  collective  investment  in  transferable 
securities (UCITS). 

(f)  On  26  October  1994  the  European  Parliament  has  adopted  unanimously  two 

amendments to the common position. 

In  accordance  with  the  procedure  described  in  Article  189b(2)(d)  of  the  Treaty,  the 
Commission has to deliver an opinion on these amendments. 

2. 

POSITION  TAKEN  BY  THE  COMMISSION  REPRESENTATIVE  AT 
THE PLENARY SITTING 

The European Parliament proposes two amendments to the text of the common position 
of  the  Council.  The  Commission's  representative  rejected  one  of  these  in  the  plenary 
session  because  it  threatened  a  question  of  principle  and  risked  reopening  the 
compromise which constituted  the common position. According to the terms of Article 
189b, 3rd paragraph  of the Treaty, the Council  cannot  approve this amendment  except 
unanimously. 

3. 

THE  COMMISSION'S  OPINION  ON  THE  AMENDMENTS  VOTED  BY 
THE EUROPEAN PARLIAMENT 

A.  Amendment accepted by the Commission 

Amendment n° 1 

This  amendment  aims  to  classify  Article  3  in  respect  of  the  place  of 
establishment  of  the  central  administration  and  the  registered  office  of  a 
financial institution  in  the  same  Member  State,  by  adding  "offices  of  the 
principal  organs  of  the  company"  each  time  the  expression  "central 
administration" is used. 

The Commission  accepts this  addition 

4  Document COM(94) 170 final - COD 468. 
5  Document 6497/97 EF 18 SURE 2 CODEC 19. 

B.  Amendment receiving the Commission's negative opinion 

Amendment n° 2 

This  amendment,  relating  to  Article  5  which  deals  with  informing  the 
competent authorities by the external auditors to the financial institution, has 
two paragraphs. The first aims to include the text of the Commission's initial 
proposal, whilst the  second adds a clause aiming to  avoid  that  the  external 
auditors responsibility is compromised, for violation of professional  secrecy, 
which they have informed the competent authorities in good faith. 
The  Commission  believes,  on  the  one  hand,  that  the  text  of  the  common 
position  is more precise than this first paragraph  and  therefore  enables  the 
direct insertion of new provisions into the key directives to be modified  and 
on  the  other  hand,  the  clause  excluding  responsibility  is  inappropriate 
because  the  investigation  of  such  facts  descends  from  normal  function  of 
external auditors. 

The  Commission  therefore  submits  a  negative  opinion  on  this 
amendment. 

- 4-

Amended proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING 
DIRECTIVES 77/780/EEC AND 89/646/EEC IN THE FIELD OF 
CREDIT INSTITUTIONS, DIRECTIVES 73/239/EEC AND 92/49/EEC 
IN THE FIELD OF NON-LIFE INSURANCE, DIRECTIVES 79/267/EEC 
AND 92/96/EEC IN THE FIELD OF LIFE ASSURANCE, DIRECTIVE 
93/22/EEC IN THE FIELD OF INVESTMENT FIRMS AND DIRECTIVE 
85/611/EEC IN THE FIELD OF UNDERTAKINGS FOR COLLECTIVE 
INVESTMENT IN TRANSFERABLE SECURITIES (UCITS), WITH 
A VIEW TO REINFORCING PRUDENTIAL SUPERVISION 

(presented by the Commission pursuant to Article 189 

(2) of the EC-Treaty) 

Common ^position of the Council 

s 

Amendments 

(Amendment 1) 
ARTICLE 3 

1.  The following paragraph shall be 
inserted  in  Article  8  of  Directive 
73/239/EEC  and  in  Article  8  of 
Directive 79/267/EEC: 

1.  The following  paragraph shall be 
inserted  in  Article  8*^>f  Directive 
73/239/EEC  and  in  Article  8  of 
Directive 79/267/EEC: 

"1a. 
Member  States  shall  require 
that  the  head  offices  of  insurance 
undertakings be situated in the same 
Member  State  as  their  registered 
offices." 

"1a. 
Member  States  shall  require 
that  the  head  offices  of  insurance 
undertakings  (where the undertaking's 
governing bodies are established) be 
situated in the same Member State as 
their registered offices." 

2.  The following paragraph shall be 
inserted  in  Article  3  of  Directive 
77/780/EEC: 

2.  The following  paragraph shall be 
inserted  in  Article  3  of  Directive 
77/780/EEC: 

"2a. Each Member State shall require 
that: 

"2a. Each Member  State shall require 
that : 

any credit institution which is a 
legal person and which, under its 
national  law,  has  a  registered 
office  have  its  head  office  in 
the  same  Member  State  as  its 
registered office; 

any credit institution which is a 
legal person and which, under its 
national  law,  has  a  registered 
office  have  its  head  office 
(where 
undertaking's 
governing bodies are established) 
in  the same  Member  State as  its 
registered office; 

the 

any other credit institution have 
its  head  office  in  the  Member 
State 
its 
authorization  and  in  which  it 
actually 
its 
carries 
business." 

issued 

which 

on 

any other credit institution have 
its  head  office  (where  the 
undertaking's  governing  bodies 
are  established)  in  the  Member 
State 
its 
authorization  and  in  which  it 
actually 
its 
carries 
business." 

issued 

which 

on 

Q 

BSN 0254-1475 

COM(94) 549 final 

DOCUMENTS 

EN 

10 

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