Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions
Date: 2001-04-04
Institutions: Council of the European Union, European Parliament
Subjects: EU Member State, branch, credit institution, liquidation, third country

5.5.2001

EN

Official Journal of the European Communities

L 125/15

DIRECTIVE 2001/24/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the reorganisation and winding up of credit institutions

of 4 April 2001

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(5)

Having regard to the Treaty establishing the European
Community, and in particular Article 47(2) thereof,

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

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

Having regard to the opinion of
Institute (3),

the European Monetary

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1)

(2)

(3)

(4)

In accordance with the objectives of the Treaty, the
harmonious and balanced development of economic
activities
be
promoted through the elimination of any obstacles to
the freedom of establishment and the freedom to
provide services within the Community.

the Community

throughout

should

At the same time as those obstacles are eliminated,
consideration should be given to the situation which
might arise if a credit institution runs into difficulties,
particularly where that institution has branches in other
Member States.

This Directive forms part of the Community legislative
framework set up by Directive 2000/12/EC of the Euro-
pean Parliament and of the Council of 20 March 2000
relating to the taking up and pursuit of the business of
credit institutions (5).
It follows therefrom that, while
institution and its
they are in operation, a credit
branches form a single entity subject to the supervision
of the competent authorities of the State where author-
isation valid throughout the Community was granted.

It would be particularly undesirable to relinquish such
unity between an institution and its branches where it is
necessary to adopt reorganisation measures or open
winding-up proceedings.

(1) OJ C 356, 31.12.1985, p. 55 and

(6)

(7)

(8)

(9)

The adoption of Directive 94/19/EC of the European
Parliament and of the Council of 30 May 1994 on
deposit-guarantee schemes (6), which introduced the
principle of compulsory membership by credit institu-
tions of a guarantee scheme in their home Member
State, brings out even more clearly the need for mutual
recognition of reorganisation measures and winding-up
proceedings.

The administrative or judicial authorities of the home
Member State must have sole power to decide upon and
to implement the reorganisation measures provided for
in the law and practices in force in that Member State.
Owing to the difficulty of harmonising Member States'
laws and practices, it is necessary to establish mutual
recognition by the Member States of the measures taken
by each of them to restore to viability the credit institu-
tions which it has authorised.

It is essential to guarantee that the reorganisation meas-
ures adopted by the administrative or judicial authorities
of the home Member State and the measures adopted by
persons or bodies appointed by those authorities to
administer
including
those reorganisation measures,
measures involving the possibility of a suspension of
payments,
suspension of enforcement measures or
reduction of claims and any other measure which could
affect third parties' existing rights, are effective in all
Member States.

Certain measures, in particular those affecting the func-
tioning of the internal structure of credit institutions or
managers' or shareholders' rights, need not be covered
by this Directive to be effective in Member States insofar
as, pursuant to the rules of private international law, the
applicable law is that of the home State.

Certain measures, in particular those connected with the
continued fulfilment of conditions of authorisation, are
already the subject of mutual recognition pursuant to
Directive 2000/12/EC insofar as they do not affect the
rights of third parties existing before their adoption.

OJ C 36, 8.2.1988, p. 1.
(2) OJ C 263, 20.10.1986, p. 13.
(3) OJ C 332, 30.10.1998, p. 13.
(4) Opinion of the European Parliament of 13 March 1987 (OJ C 99,
13.4.1987, p. 211), confirmed on 2 December 1993 (OJ C 342,
20.12.1993, p. 30), Council Common Position of 17 July 2000 (OJ
C 300, 20.10.2000, p. 13) and Decision of the European Parlia-
ment of 16 January 2001 (not yet published in the Official Journal).
Council Decision of 12 March 2001.

(5) OJ L 126, 26.5.2000, p. 1. Directive as amended by Directive

2000/28/EC (OJ L 275, 27.10.2000, p. 37).

(10)

Persons participating in the operation of the internal
structures of credit institutions as well as managers and
shareholders of such institutions, considered in those
capacities, are not to be regarded as third parties for the
purposes of this Directive.

(6) OJ L 135, 31.5.1994, p. 5.

L 125/16

EN

Official Journal of the European Communities

5.5.2001

(11)

(12)

(13)

(14)

(15)

(16)

(17)

It is necessary to notify third parties of the implementa-
tion of reorganisation measures in Member States where
branches are situated when such measures could hinder
the exercise of some of their rights.

The principle of equal treatment between creditors, as
regards the opportunities open to them to take action,
requires the administrative or judicial authorities of the
home Member State to adopt such measures as are
necessary for the creditors in the host Member State to
be able to exercise their rights to take action within the
time limit laid down.

There must be some coordination of the role of the
administrative or judicial authorities in reorganisation
measures and winding-up proceedings for branches of
institutions having head offices outside the
credit
Community and situated in different Member States.

In the absence of reorganisation measures, or in the
event of such measures failing, the credit institutions in
difficulty must be wound up. Provision should be made
in such cases for mutual recognition of winding-up
proceedings and of their effects in the Community.

The important role played by the competent authorities
of the home Member State before winding-up proceed-
ings are opened may continue during the process of
winding up so that these proceedings can be properly
carried out.

Equal treatment of creditors requires that the credit insti-
tution is wound up according to the principles of unity
and universality, which require the administrative or
judicial authorities of the home Member State to have
sole jurisdiction and their decisions to be recognised and
to be capable of producing in all the other Member
States, without any formality, the effects ascribed to
them by the law of the home Member State, except
where this Directive provides otherwise.

The exemption concerning the effects of reorganisation
measures
and winding-up proceedings on certain
contracts and rights is limited to those effects and does
not cover other questions concerning reorganisation
measures and winding-up proceedings
the
lodging, verification, admission and ranking of claims
concerning those contracts and rights and the rules
governing the distribution of the proceeds of the realisa-
tion of the assets, which are governed by the law of the
home Member State.

such as

(19) Withdrawal of authorisation to pursue the business of
banking is one of the consequences which winding up a
credit institution necessarily entails. Withdrawal should
not, however, prevent certain activities of the institution
from continuing insofar as is necessary or appropriate
for the purposes of winding up. Such a continuation of
activity may nonetheless be made subject by the home
Member State to the consent of, and supervision by, its
competent authorities.

(20)

(21)

Provision of information to known creditors on an indi-
vidual basis is as essential as publication to enable them,
where necessary, to lodge their claims or submit obser-
vations relating to their claims within the prescribed
time limits. This should take place without discrim-
ination against creditors domiciled in a Member State
other than the home Member State, based on their place
of residence or the nature of their claims. Creditors must
be kept regularly informed in an appropriate manner
throughout winding-up proceedings.

involving

For the sole purpose of applying the provisions of this
Directive to reorganisation measures and winding-up
proceedings
the
Community of a credit institution of which the head
office is situated in a third country, the definitions of
‘home Member State’,
and
‘administrative or judicial authorities’ should be those of
the Member State in which the branch is located.

‘competent

authorities’

branches

located

in

(22) Where a credit institution which has its head office
outside the Community possesses branches in more than
one Member State, each branch should receive individual
treatment in regard to the application of this Directive.
In such a case, the administrative or judicial authorities
and the competent authorities as well as the administra-
tors and liquidators should endeavour to coordinate
their activities.

(23) Although it is important to follow the principle that the
law of the home Member State determines all the effects
of reorganisation measures or winding-up proceedings,
both procedural and substantive, it is also necessary to
bear in mind that those effects may conflict with the
rules normally applicable in the context of the economic
and financial activity of the credit institution in question
and its branches in other Member States. In some cases
reference to the law of another Member State represents
an unavoidable qualification of the principle that the law
of the home Member State is to apply.

(18)

Voluntary winding up is possible when a credit institu-
tion is solvent. The administrative or judicial authorities
of the home Member State may nevertheless, where
appropriate, decide on a reorganisation measure or
winding-up proceedings, even after voluntary winding
up has commenced.

(24)

That qualification is especially necessary to protect
employees having a contract of employment with a
credit institution, ensure the security of transactions in
respect of certain types of property and protect the
integrity of regulated markets functioning in accordance
with the law of a Member State on which financial
instruments are traded.

5.5.2001

EN

Official Journal of the European Communities

L 125/17

(25)

(26)

(27)

(28)

(29)

(30)

(31)

Transactions carried out in the framework of a payment
and settlement system are covered by Directive 98/
26/EC of the European Parliament and of the Council of
19 May 1998 on settlement finality in payment and
securities settlement systems (1).

The adoption of this Directive does not call into ques-
tion the provisions of Directive 98/26/EC according to
which insolvency proceedings must not have any effect
on the enforceability of orders validly entered into a
system, or on collateral provided for a system.

Some reorganisation measures or winding-up proceed-
ings involve the appointment of a person to administer
them. The recognition of his appointment and his
powers in all other Member States is therefore an essen-
tial factor in the implementation of decisions taken in
the home Member State. However, the limits within
which he may exercise his powers when he acts outside
the home Member State should be specified.

Creditors who have entered into contracts with a credit
institution before a reorganisation measure is adopted or
winding-up proceedings are opened should be protected
against provisions relating to voidness, voidability or
unenforceability laid down in the law of
the home
Member State, where the beneficiary of the transaction
produces evidence that in the law applicable to that
transaction there is no available means of contesting the
act concerned in the case in point.

the purchasers of

The confidence of third-party purchasers in the content
of
the registers or accounts regarding certain assets
entered in those registers or accounts and by extension
of
immovable property should be
safeguarded, even after winding-up proceedings have
been opened or a reorganisation measure adopted. The
only means of safeguarding that confidence is to make
the validity of the purchase subject to the law of the
place where the immovable asset is situated or of the
State under whose authority the register or account is
kept.

The effects of reorganisation measures or winding-up
proceedings on a lawsuit pending are governed by the
law of the Member State in which the lawsuit is pending,
by way of exception to the application of
the lex
concursus. The effects of those measures and procedures
on individual enforcement actions arising from such
lawsuits are governed by the legislation of the home
Member State, in accordance with the general rule estab-
lished by this Directive.

Provision should be made for the administrative or judi-
cial authorities in the home Member State to notify
immediately the competent authorities of
the host
Member State of the adoption of any reorganisation
measure or the opening of any winding-up proceedings,
if possible before the adoption of the measure or the
opening of the proceedings, or, if not, immediately after-
wards.

(1) OJ L 166, 11.6.1998, p. 45.

(32)

Professional secrecy as defined in Article 30 of Directive
2000/12/EC is an essential factor in all information or
consultation procedures. For that reason it should be
respected by all the administrative authorities taking part
in such procedures, whereas the judicial authorities
remain, in this respect, subject to the national provisions
relating to them,

HAVE ADOPTED THIS DIRECTIVE:

TITLE I

SCOPE AND DEFINITIONS

Article 1

Scope

1.
This Directive shall apply to credit institutions and their
branches set up in Member States other than those in which
they have their head offices, as defined in points (1) and (3) of
Article 1 of Directive 2000/12/EC, subject to the conditions
and exemptions laid down in Article 2(3) of that Directive.

The provisions of this Directive concerning the branches
2.
institution having a head office outside the
of a credit
Community shall apply only where that
institution has
branches in at least two Member States of the Community.

Article 2

Definitions

For the purposes of this Directive:

— ‘home Member State’ shall mean the Member State of origin
within the meaning of Article 1, point (6) of Directive
2000/12/EC;

— ‘host Member State’ shall mean the host Member State
within the meaning of Article 1, point (7) of Directive
2000/12/EC;

— ‘branch’ shall mean a branch within the meaning of Article

1, point (3) of Directive 2000/12/EC;

— ‘competent authorities’ shall mean the competent authori-
ties within the meaning of Article 1, point (4) of Directive
2000/12/EC;

— ‘administrator’ shall mean any person or body appointed by
the administrative or judicial authorities whose task is to
administer reorganisation measures;

— ‘administrative or

judicial authorities’ shall mean such
administrative or judicial authorities of the Member States
as are competent for the purposes of reorganisation meas-
ures or winding-up proceedings;

— ‘reorganisation measures’ shall mean measures which are
intended to preserve or restore the financial situation of a
credit institution and which could affect third parties' pre-
existing rights, including measures involving the possibility
of a suspension of payments, suspension of enforcement
measures or reduction of claims;

L 125/18

EN

Official Journal of the European Communities

5.5.2001

— ‘liquidator’ shall mean any person or body appointed by the
judicial authorities whose task is to

administrative or
administer winding-up proceedings;

— ‘winding-up proceedings’ shall mean collective proceedings
opened and monitored by the administrative or judicial
authorities of a Member State with the aim of realising
assets under the supervision of those authorities, including
where the proceedings are terminated by a composition or
other, similar measure;

— ‘regulated market’ shall mean a regulated market within the
meaning of Article 1, point (13) of Directive 93/22/EEC;

— ‘instruments’ shall mean all the instruments referred to in

Section B of the Annex to Directive 93/22/EEC.

mation shall be communicated by the competent authorities of
the home Member State.

Article 5

Information for the supervisory authorities of the home
Member State

Where the administrative or judicial authorities of the host
Member State deem it necessary to implement within their
territory one or more reorganisation measures,
they shall
inform the competent authorities of the home Member State
accordingly. Information shall be communicated by the host
Member State's competent authorities.

TITLE II

REORGANISATION MEASURES

A. Credit institutions having their head offices within the

Community

Article 3

Adoption of reorganisation measures — applicable law

1.
The administrative or judicial authorities of the home
Member State shall alone be empowered to decide on the
implementation of one or more reorganisation measures in a
credit
including branches established in other
Member States.

institution,

2.
The reorganisation measures shall be applied in accord-
ance with the laws, regulations and procedures applicable in
the home Member State, unless otherwise provided in this
Directive.

Article 6

Publication

1. Where implementation of the reorganisation measures
decided on pursuant to Article 3(1) and (2) is likely to affect
the rights of third parties in a host Member State and where an
appeal may be brought in the home Member State against the
decision ordering the measure, the administrative or judicial
authorities of the home Member State, the administrator or any
person empowered to do so in the home Member State shall
publish an extract from the decision in the Official Journal of the
European Communities and in two national newspapers in each
host Member State,
in order in particular to facilitate the
exercise of the right of appeal

in good time.

The extract from the decision provided for in paragraph
2.
1 shall be forwarded at the earliest opportunity, by the most
appropriate route, to the Office for Official Publications of the
European Communities and to the two national newspapers in
each host Member State.

The Office for Official Publications of

3.
Communities shall publish the extract at
twelve days of its dispatch.

the European
the latest within

They shall be fully effective in accordance with the legislation
of that Member State throughout the Community without any
further formalities, including as against third parties in other
Member States, even where the rules of the host Member State
applicable to them do not provide for such measures or make
their implementation subject
to conditions which are not
fulfilled.

The extract

4.
from the decision to be published shall
specify, in the official language or languages of the Member
States concerned, in particular the purpose and legal basis of
the decision taken, the time limits for lodging appeals, specifi-
cally a clearly understandable indication of the date of expiry of
the time limits, and the full address of the authorities or court
competent to hear an appeal.

The reorganisation measures shall be effective throughout the
Community once they become effective in the Member State
where they have been taken.

Article 4

Information for the competent authorities of the host
Member State

The administrative or judicial authorities of the home Member
State shall without delay inform, by any available means, the
competent authorities of
their
decision to adopt any reorganisation measure,
including the
practical effects which such a measure may have, if possible
before it is adopted or otherwise immediately thereafter. Infor-

the host Member State of

5.
The reorganisation measures shall apply irrespective of
the measures prescribed in paragraphs 1 to 3 and shall be fully
effective as against creditors, unless the administrative or judi-
cial authorities of the home Member State or the law of that
State governing such measures provide otherwise.

Article 7

Duty to inform known creditors and right to lodge claims

1. Where the legislation of the home Member State requires
lodgement of a claim with a view to its recognition or provides
for compulsory notification of the measure to creditors who
have their domiciles, normal places of residence or head offices
in that State, the administrative or judicial authorities of the

5.5.2001

EN

Official Journal of the European Communities

L 125/19

home Member State or the administrator shall also inform
known creditors who have their domiciles, normal places of
residence or head offices in other Member States, in accordance
with the procedures laid down in Articles 14 and 17(1).

2. Where the legislation of the home Member State provides
for the right of creditors who have their domiciles, normal
places of residence or head offices in that State to lodge claims
or to submit observations concerning their claims, creditors
who have their domiciles, normal places of residence or head
offices in other Member States shall also have that right in
accordance with the procedures laid down in Article 16 and
Article 17(2).

B. Credit institutions having their head offices outside the

Community

Article 8

Branches of third-country credit institutions

The administrative or judicial authorities of

1.
the host
Member State of a branch of a credit institution having its head
office outside the Community shall without delay inform, by
any available means, the competent authorities of the other
host Member States in which the institution has set up
branches which are included on the list referred to in Article
11 of Directive 2000/12/EC and published each year in the
Official Journal of the European Communities, of their decision to
adopt any reorganisation measure,
including the practical
effects which that measure may have, if possible before it is
adopted or otherwise immediately thereafter. Information shall
be communicated by the competent authorities of the host
Member State whose administrative or
judicial authorities
decide to apply the measure.

The administrative or judicial authorities referred to in

2.
paragraph 1 shall endeavour to coordinate their actions.

TITLE III

WINDING-UP PROCEEDINGS

A. Credit institutions having their head offices within the

Community

Article 9

Opening of winding-up proceedings — Information to be
communicated to other competent authorities

1.
The administrative or judicial authorities of the home
Member State which are responsible for winding up shall alone
be empowered to decide on the opening of winding-up
proceedings concerning a credit institution, including branches
established in other Member States.

A decision to open winding-up proceedings taken by the
administrative or judicial authority of the home Member State
shall be recognised, without further formality, within the terri-
tory of all other Member States and shall be effective there
when the decision is effective in the Member State in which the
proceedings are opened.

The administrative or judicial authorities of the home
2.
Member State shall without delay inform, by any available
means, the competent authorities of the host Member State of
their decision to open winding-up proceedings, including the
practical effects which such proceedings may have, if possible
before they open or otherwise immediately thereafter. Informa-
tion shall be communicated by the competent authorities of
the home Member State.

Article 10

Law applicable

1.
A credit institution shall be wound up in accordance with
the laws, regulations and procedures applicable in its home
Member State insofar as this Directive does not provide other-
wise.

The law of the home Member State shall determine in

2.
particular:

(a) the goods subject to administration and the treatment of
goods acquired by the credit institution after the opening of
winding-up proceedings;

(b) the respective powers of

the credit

institution and the

liquidator;

(c) the conditions under which set-offs may be invoked;

(d) the effects of winding-up proceedings on current contracts

to which the credit institution is party;

(e) the effects of winding-up proceedings on proceedings
brought by individual creditors, with the exception of
lawsuits pending, as provided for in Article 32;

(f) the claims which are to be lodged against the credit institu-
tion and the treatment of claims arising after the opening
of winding-up proceedings;

(g) the rules governing the lodging, verification and admission

of claims;

(h) the rules governing the distribution of the proceeds of the
realisation of assets, the ranking of claims and the rights of
creditors who have obtained partial satisfaction after the
opening of insolvency proceedings by virtue of a right in re
or through a set-off;

(i) the conditions for, and the effects of, the closure of insol-

vency proceedings,

in particular by composition;

(j) creditors' rights after the closure of winding-up proceed-

ings;

(k) who is to bear the costs and expenses incurred in the

winding-up proceedings;

(l) the rules relating to the voidness, voidability or unenforce-
ability of legal acts detrimental to all the creditors.

Article 11

Consultation of competent authorities before voluntary
winding up

1.
The competent authorities of the home Member State
shall be consulted in the most appropriate form before any
voluntary winding-up decision is taken by the governing bodies
of a credit institution.

L 125/20

EN

Official Journal of the European Communities

5.5.2001

The voluntary winding up of a credit institution shall not
2.
preclude the adoption of a reorganisation measure or the
opening of winding-up proceedings.

Article 12

Withdrawal of a credit institution's authorisation

1. Where the opening of winding-up proceedings is decided
on in respect of a credit institution in the absence, or following
the failure, of reorganisation measures, the authorisation of the
institution shall be withdrawn in accordance with, in particular,
the procedure laid down in Article 22(9) of Directive 2000/
12/EC.

2.
The withdrawal of authorisation provided for in para-
graph 1 shall not prevent the person or persons entrusted with
the winding up from carrying on some of the credit institu-
tion's activities insofar as that is necessary or appropriate for
the purposes of winding up.

The home Member State may provide that such activities shall
be carried on with the consent, and under the supervision, of
the competent authorities of that Member State.

Article 13

Publication

The liquidators or any administrative or judicial authority shall
announce the decision to open winding-up proceedings
through publication of an extract from the winding-up decision
in the Official Journal of the European Communities and at least
two national newspapers in each of the host Member States.

Article 14

Provision of information to known creditors

1. When winding-up proceedings are opened, the adminis-
trative or judicial authority of the home Member State or the
liquidator shall without delay individually inform known cred-
itors who have their domiciles, normal places of residence or
head offices in other Member States, except in cases where the
legislation of the home State does not require lodgement of the
claim with a view to its recognition.

2.
That information, provided by the dispatch of a notice,
shall in particular deal with time limits, the penalties laid down
in regard to those time limits, the body or authority empow-
ered to accept the lodgement of claims or observations relating
to claims and the other measures laid down. Such a notice shall
also indicate whether creditors whose claims are preferential or
secured in re need lodge their claims.

Article 15

Honouring of obligations

Where an obligation has been honoured for the benefit of a
credit institution which is not a legal person and which is the
subject of winding-up proceedings opened in another Member
State, when it should have been honoured for the benefit of the
liquidator in those proceedings, the person honouring the obli-
gation shall be deemed to have discharged it if he was unaware
of the opening of proceedings. Where such an obligation is
honoured before the publication provided for in Article 13 has
been effected, the person honouring the obligation shall be

presumed, in the absence of proof to the contrary, to have
been unaware of
the opening of winding-up proceedings;
where the obligation is honoured after the publication provided
for in Article 13 has been effected, the person honouring the
obligation shall be presumed, in the absence of proof to the
contrary, to have been aware of the opening of proceedings.

Article 16

Right to lodge claims

1.
Any creditor who has his domicile, normal place of resi-
dence or head office in a Member State other than the home
Member State,
including Member States' public authorities,
shall have the right to lodge claims or to submit written
observations relating to claims.

2.
The claims of all creditors whose domiciles, normal
places of residence or head offices are in Member States other
than the home Member State shall be treated in the same way
and accorded the same ranking as claims of an equivalent
nature which may be lodged by creditors having their domi-
ciles, normal places of residence, or head offices in the home
Member State

3.
Except in cases where the law of the home Member State
provides for the submission of observations relating to claims,
a creditor shall send copies of supporting documents, if any,
and shall indicate the nature of the claim, the date on which it
arose and its amount, as well as whether he alleges preference,
security in re or reservation of title in respect of the claim and
what assets are covered by his security.

Article 17

Languages

1.
The information provided for in Articles 13 and 14 shall
language or one of the official
be provided in the official
languages of the home Member State. For that purpose a form
shall be used bearing, in all the official languages of the Euro-
pean Union, the heading ‘Invitation to lodge a claim. Time
limits to be observed’ or, where the law of the home Member
State provides for the submission of observations relating to
claims, the heading ‘Invitation to submit observations relating
to a claim. Time limits to be observed’.

Any creditor who has his domicile, normal place of resi-
2.
dence or head office in a Member State other than the home
Member State may lodge his claim or submit observations
relating to his claim in the official
language or one of the
official languages of that other Member State. In that event,
however, the lodgement of his claim or the submission of
observations on his claim shall bear the heading ‘Lodgement of
claim’ or ‘Submission of observations relating to claims’ in the
official language or one of the official languages of the home
Member State. In addition, he may be required to provide a
translation into that language of the lodgement of claim or
submission of observations relating to claims.

Article 18

Regular provision of information to creditors

Liquidators shall keep creditors regularly informed,
in an
appropriate manner, particularly with regard to progress in the
winding up.

5.5.2001

EN

Official Journal of the European Communities

L 125/21

B. Credit institutions the head offices of which are outside

Article 21

the Community

Article 19

Branches of third-country credit institutions

The administrative or judicial authorities of

1.
the host
Member State of the branch of a credit institution the head
office of which is outside the Community shall without delay
inform, by any available means, the competent authorities of
the other host Member States in which the credit institution
has set up branches on the list referred to in Article 11 of
Directive 2000/12/EC and published each year in the Official
Journal of the European Communities, of their decision to open
winding-up proceedings, including the practical effects which
these proceedings may have, if possible before they open or
otherwise immediately thereafter. Information shall be commu-
nicated by the competent authorities of the first abovemen-
tioned host Member State.

2.
Administrative or judicial authorities which decide to
open proceedings to wind up a branch of a credit institution
the head office of which is outside the Community shall inform
the competent authorities of the other host Member States that
winding-up proceedings have been opened and authorisation
withdrawn.

Information shall be communicated by the competent authori-
ties in the host Member State which has decided to open the
proceedings.

The administrative or judicial authorities referred to in

3.
paragraph 1 shall endeavour to coordinate their actions.

Any liquidators shall
actions.

likewise endeavour to coordinate their

TITLE IV

PROVISIONS COMMON TO REORGANISATION MEASURES
AND WINDING-UP PROCEEDINGS

Article 20

Effects on certain contracts and rights

The effects of a reorganisation measure or the opening of
winding-up proceedings on:

(a) employment contracts and relationships shall be governed
solely by the law of the Member State applicable to the
employment contract;

(b) a contract conferring the right to make use of or acquire
immovable property shall be governed solely by the law of
the Member State within the territory of which the immov-
able property is situated. That law shall determine whether
property is movable or immovable;

(c) rights in respect of

immovable property, a ship or an
aircraft subject to registration in a public register shall be
governed solely by the law of the Member State under the
authority of which the register is kept.

Third parties' rights in re

The adoption of reorganisation measures or the opening
1.
of winding-up proceedings shall not affect the rights in re of
creditors or third parties in respect of tangible or intangible,
movable or immovable assets — both specific assets and
collections of indefinite assets as a whole which change from
time to time — belonging to the credit institution which are
situated within the territory of another Member State at the
time of the adoption of such measures or the opening of such
proceedings.

The rights referred to in paragraph 1 shall in particular

2.
mean:

(a) the right to dispose of assets or have them disposed of and
to obtain satisfaction from the proceeds of or income from
those assets, in particular by virtue of a lien or a mortgage;

(b) the exclusive right to have a claim met, in particular a right
guaranteed by a lien in respect of the claim or by assign-
ment of the claim by way of a guarantee;

(c) the right to demand the assets from, and/or to require
restitution by, anyone having possession or use of them
contrary to the wishes of the party so entitled;

(d) a right in re to the beneficial use of assets.

3.
The right, recorded in a public register and enforceable
against third parties, under which a right in re within the
meaning of paragraph 1 may be obtained, shall be considered a
right in re.

4.
Paragraph 1 shall not preclude the actions for voidness,
voidability or unenforceability laid down in Article 10(2)(l).

Article 22

Reservation of title

The adoption of reorganisation measures or the opening
1.
of winding-up proceedings concerning a credit
institution
purchasing an asset shall not affect the seller's rights based on a
reservation of title where at the time of the adoption of such
measures or opening of such proceedings the asset is situated
within the territory of a Member State other than the State in
which the said measures were adopted or the said proceedings
were opened.

The adoption of reorganisation measures or the opening
2.
of winding-up proceedings concerning a credit
institution
selling an asset, after delivery of the asset, shall not constitute
grounds for rescinding or terminating the sale and shall not
prevent the purchaser from acquiring title where at the time of
the adoption of such measures or the opening of such proceed-
ings the asset sold is situated within the territory of a Member
State other than the State in which such measures were
adopted or such proceedings were opened.

3.
Paragraphs 1 and 2 shall not preclude the actions for
voidness, voidability or unenforceability laid down in Article
10(2)(l).

L 125/22

EN

Official Journal of the European Communities

5.5.2001

Article 23

Set-off

1.
The adoption of reorganisation measures or the opening
of winding-up proceedings shall not affect the right of creditors
to demand the set-off of their claims against the claims of the
credit institution, where such a set-off is permitted by the law
applicable to the credit institution's claim.

2.
Paragraph 1 shall not preclude the actions for voidness,
voidability or unenforceability laid down in Article 10(2)(l).

Article 24

Lex rei sitae

The enforcement of proprietary rights in instruments or other
rights in such instruments the existence or transfer of which
presupposes their recording in a register, an account or a
centralised deposit system held or located in a Member State
shall be governed by the law of the Member State where the
register, account, or centralised deposit system in which those
rights are recorded is held or located.

Article 25

Netting agreements

Netting agreements shall be governed solely by the law of the
contract which governs such agreements.

Article 26

Repurchase agreements

Without prejudice to Article 24, repurchase agreements shall
be governed solely by the law of the contract which governs
such agreements.

Article 27

Regulated markets

Administrators and liquidators shall be entitled to exer-
2.
cise within the territory of all the Member States all the powers
which they are entitled to exercise within the territory of the
home Member State. They may also appoint persons to assist
or, where appropriate, represent them in the course of the
reorganisation measure or winding-up proceedings, in partic-
ular in host Member States and, specifically, in order to help
overcome any difficulties encountered by creditors in the host
Member State.

3.
In exercising his powers, an administrator or liquidator
shall comply with the law of the Member States within the
territory of which he wishes to take action, in particular with
regard to procedures for the realisation of assets and the provi-
information to employees. Those powers may not
sion of
include the use of force or the right to rule on legal proceed-
ings or disputes.

Article 29

Registration in a public register

The administrator,

1.
liquidator or any administrative or
judicial authority of the home Member State may request that a
reorganisation measure or the decision to open winding-up
proceedings be registered in the land register, the trade register
and any other public register kept in the other Member States.

A Member State may, however, prescribe mandatory registra-
tion. In that event, the person or authority referred to in the
preceding subparagraph shall take all the measures necessary to
ensure such registration.

The costs of registration shall be regarded as costs and

2.
expenses incurred in the proceedings.

Article 30

Detrimental acts

Without prejudice to Article 24, transactions carried out in the
context of a regulated market shall be governed solely by the
law of the contract which governs such transactions.

Article 28

Proof of liquidators' appointment

The administrator or liquidator's appointment shall be
1.
evidenced by a certified copy of
the original decision
appointing him or by any other certificate issued by the
administrative or judicial authority of the home Member State.

A translation into the official language or one of the official
languages of the Member State within the territory of which
the administrator or liquidator wishes to act may be required.
No legalisation or other similar formality shall be required.

1.
Article 10 shall not apply as regards the rules relating to
the voidness, voidability or unenforceability of legal acts detri-
mental to the creditors as a whole, where the beneficiary of
these acts provides proof that:

— the act detrimental to the creditors as a whole is subject to
the law of a Member State other than the home Member
State, and

— that law does not allow any means of challenging that act

in the case in point.

2. Where a reorganisation measure decided on by a judicial
authority provides for rules relating to the voidness, voidability
or unenforceability of legal acts detrimental to the creditors as
a whole performed before adoption of the measure, Article 3(2)
shall not apply in the cases provided for in paragraph 1 of this
Article.

5.5.2001

EN

Official Journal of the European Communities

L 125/23

Article 31

Protection of third parties

Where, by an act concluded after the adoption of a reorganisa-
tion measure or the opening of winding-up proceedings, a
credit institution disposes, for consideration, of:

— an immovable asset,

— a ship or an aircraft subject to registration in a public

register, or

— instruments or rights in such instruments the existence or
transfer of which presupposes their being recorded in a
register, an account or a centralised deposit system held or
located in a Member State,

the validity of that act shall be governed by the law of the
Member State within the territory of which the immovable
asset is situated or under the authority of which that register,
account or deposit system is kept.

Article 32

Lawsuits pending

The effects of reorganisation measures or winding-up proceed-
ings on a pending lawsuit concerning an asset or a right of
which the credit institution has been divested shall be governed
solely by the law of the Member State in which the lawsuit is
pending.

Article 33

Professional secrecy

TITLE V

FINAL PROVISIONS

Article 34

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive on 5 May 2004. They shall forthwith inform the
Commission thereof.

National provisions adopted in application of this Directive
shall apply only to reorganisation measures or winding-up
proceedings adopted or opened after the date referred to in the
first subparagraph. Measures adopted or proceedings opened
before that date shall continue to be governed by the law that
was applicable to them at the time of adoption or opening.

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

3. 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 35

Entry into force

This Directive shall enter
publication.

into force on the date of

its

Article 36

Addressees

This Directive is addressed to the Member States.

All persons required to receive or divulge information in
connection with the information or consultation procedures
laid down in Articles 4, 5, 8, 9, 11 and 19 shall be bound by
professional secrecy, in accordance with the rules and condi-
tions laid down in Article 30 of Directive 2000/12/EC, with
the exception of any judicial authorities to which existing
national provisions apply.

Done at Luxembourg, 4 April 2001.

For the European Parliament

For the Council

The President

N. FONTAINE

The President

B. ROSENGREN