Opinion of the Commission pursuant to Article 251 (2) (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council relating to the reorganisation and the winding-up of credit institutions amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2001-03-12
Institutions: European Commission
Subjects: approximation of laws, bankruptcy, credit institution, liquidation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 08.03.2001
COM(2001)120 final

1985/0046 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2) (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

relating to the reorganisation and the winding-up of credit institutions

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

1.

BACKGROUND

On 19 December 1985 the Commission sent to the Council a proposal for a Directive
(COM(1985)788 final) relating to the reorganisation and the winding-up of credit
institutions1.

On 3 July 1986 the Economic and Social Committee delivered its opinion2.

On 13 March 1987 Parliament delivered its opinion3, which was confirmed on
2 December4, on first reading.

On 30 October 1998 the European Monetary Institute delivered its opinion5.

On 17 July 2000 the Council adopted a common position6.

On 16 January 2001 Parliament adopted on second reading thirteen amendments to
the common position.

2.

PURPOSE OF THE PROPOSAL

The purpose of the proposal is to coordinate national legislation on the reorganisation
and the winding-up of credit institutions on the basis of the principle of the unity and
universality of the procedure throughout the Union by applying the law of the
institution's home country. Exceptions to the applicable law are provided for in the
case of certain operations in order to take account of the special features of the
banking sector.

3.

COMMISSION OPINION ON PARLIAMENT'S AMENDMENTS

As empowered by the Commission on 6 December 2000, the Member responsible
stated in plenary session that the Commission could accept all the amendments in
substance, subject to a check for overall clarity and consistency.

This check has been carried out, the texts have been found to be sufficiently clear
and the Commission is now able to accept them as they stand, although it would not
be opposed to any drafting improvements should the Council decide by qualified
majority that it was in favour of such improvements.

Amendments 1 and 12 retain in the context of the unity and universality of the
procedure the exception provided for in the common position from application of the
law of the home country to repurchase agreements but replace, when indicating the
applicable law, the law of the place of conclusion of the contract by the law of the
contract.

1

2

3

4

5

6

OJ C 356, 31.12.1985, p. 55; OJ C 36, 8.2.1988, p. 1.
OJ C 263, 20.10.1986, p. 13.
OJ C 99, 13.4. 1987, p. 211.
OJ C 342, 20.12.1993, p. 30.
OJ C 332, 30.10.1998, p. 13.
OJ C 300, 20.10.2000, p. 13.

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Amendments 9 and 11 follow and confirm the same principle for netting agreements.

Amendments 10 and 13 also follow and confirm the same principle for transactions
on regulated markets.

Amendments 2 and 8 marginally modify the common position but retain the
exception it contains for rights in respect of securities, whether or not dematerialised,
recorded in a register, an account or a centralised deposit system in a Member State
that remain governed by the law of the Member State where the register, account or
centralised deposit system is located.

Amendments 3, 5 and 6 stipulate in a more analytical manner than in the common
position that the rights in rem or reservation of title in respect of assets belonging to
the insolvent credit institution remain governed by the law applicable to them.

Amendments 4 and 7 stipulate more clearly than in the common position the principle
that the right of a creditor to set his claims off against the claims of the credit
institution remains governed by the law applicable to the credit institution's claim.

4.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission is modifying its
proposal as indicated above.

3