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'
Date: 2000-04-27
Institutions: European Economic and Social Committee
Subjects: banking, credit institution, exchange of information, management audit, third country

16.6.2000

EN

Official Journal of the European Communities

C 168/1

II

(Preparatory Acts)

ECONOMIC AND SOCIAL COMMITTEE

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

Directive 98/33/EC of 22 June 1998 (1) amends Article
1.1.
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
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.

information,

The said rules are intended to widen the scope of
1.2.
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 (4) and non-life
insurance
(Directives
assurance
92/49/EEC (6) and 92/96/EEC (7)).

companies

and

life

(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 228, 11.8.1992.
(7) OJ L 360, 9.12.1992.

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EN

Official Journal of the European Communities

16.6.2000

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 consist-
ent 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 agree-
ment 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.

Inclusion of the bodies mentioned in point 2.2 above
2.3.
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