Directive 2008/23/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 2006/49/EC on the capital adequacy of investment firms and credit institutions, as regards the implementing powers conferred on the Commission
Date: 2008-03-11
Institutions: Council of the European Union, European Parliament
Subjects: European Commission, credit institution, financial instrument, investment company, management audit, powers of the institutions (EU)

L 76/54

EN

Official Journal of the European Union

19.3.2008

DIRECTIVE 2008/23/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 March 2008

amending Directive 2006/49/EC on the capital adequacy of investment firms and credit institutions,
as regards the implementing powers conferred on the Commission

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of the European Central Bank (2),

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

(2)

(3)

Directive 2006/49/EC (4) of the European Parliament and
of the Council provides that certain measures are to be
adopted
Council Decision
1999/468/EC of 28 June 1999 laying down the
procedures for
implementing powers
the exercise of
conferred on the Commission (5).

accordance with

in

the

introduced

Decision 1999/468/EC has been amended by Decision
2006/512/EC, which
regulatory
procedure with scrutiny for the adoption of measures
of general scope and designed to amend non-essential
elements of a basic instrument adopted in accordance
with the procedure referred to in Article 251 of the
Treaty,
inter alia, by deleting some of those elements
or by supplementing the instrument with new non-
essential elements.

In accordance with the statement by the European
the Commission (6)
Parliament,
for the regulatory
concerning Decision 2006/512/EC,
procedure with scrutiny to be applicable to instruments

the Council

and

(1) OJ C 161, 13.7.2007, p. 45.
(2) OJ C 39, 23.2.2007, p. 1.
(3) Opinion of the European Parliament of 14 November 2007 (not yet
published in the Official Journal) and Council Decision of 3 March
2008.

(4) OJ L 177, 30.6.2006, p. 201.
(5) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(6) OJ C 255, 21.10.2006, p. 1.

(4)

(5)

(6)

adopted in accordance with the procedure referred to in
Article 251 of the Treaty which are already in force,
those instruments must be adjusted in accordance with
the applicable procedures.

The Commission should be empowered to adopt the
measures necessary for the implementation of Directive
2006/49/EC in order to take account,
inter alia, of
technical developments of
financial markets and to
ensure the uniform application of that Directive. Those
measures are designed to clarify definitions, to adjust the
provisions of that Directive through technical adaptations
related to the determination of own funds, the organ-
and
isation,
evaluation
exposures, and to the categories of
firms
those
which are
measures are of general scope and are designed to
amend non-essential elements of Directive 2006/49/EC,
they must be adopted in accordance with the regulatory
procedure with scrutiny provided for in Article 5a of
Decision 1999/468/EC.

risks
investment
to that Directive. Since

calculation

subject

and

of

instruments adopted under

Directive 2006/49/EC provides for a time restriction
concerning the implementing powers conferred on the
statement concerning Decision
In their
Commission.
2006/512/EC,
the Council
the European Parliament,
and the Commission stated that Decision 2006/512/EC
provides a horizontal and satisfactory solution to the
European Parliament’s wish to scrutinise the implemen-
the co-decision
tation of
procedure and that, accordingly,
implementing powers
should be conferred on the Commission without time
limit. The European Parliament and the Council also
declared that
the proposals
they would ensure that
aimed at repealing the provisions in the instruments
that provide for a time limit on the delegation of im-
plementing powers to the Commission are adopted as
rapidly as possible. Following the introduction of the
regulatory procedure with scrutiny, the provision estab-
lishing that
time restriction in Directive 2006/49/EC
should be deleted.

the provisions

concerning the

The Commission should, at regular intervals, evaluate the
functioning of
im-
plementing powers conferred on it in order to allow
the European Parliament and the Council to determine
whether the extent of those powers and the procedural
requirements imposed on the Commission are appro-
priate
and democratic
accountability.

and ensure both efficiency

(7)

Directive 2006/49/EC should therefore be amended
accordingly.

19.3.2008

EN

Official Journal of the European Union

L 76/55

(8)

Since the amendments made to Directive 2006/49/EC by
in nature and concern
this Directive are technical
they do not need to be
committee procedure only,
transposed by the Member States.
is therefore not
necessary to lay down provisions to that effect,

It

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments

Directive 2006/49/EC is hereby amended as follows:

1. Article 41 shall be amended as follows:

(a)

in paragraph 1 the words ‘in accordance with the
procedure referred to in Article 42(2)’ shall be deleted;

(b) paragraph 2 shall be replaced by the following:

‘2.
The measures referred to in paragraph 1, designed
to amend non-essential elements of this Directive, shall
be adopted in accordance with the regulatory procedure
with scrutiny referred to in Article 42(2).’;

(b) paragraphs 3 and 4 shall be replaced by the following:

‘3.
By 31 December 2010, and, thereafter, at least
review the
the Commission shall
every three years,
provisions concerning its
implementing powers and
present a report to the European Parliament and to the
Council on the functioning of those powers. The report
shall examine, in particular, the need for the Commission
to propose amendments to this Directive in order to
ensure the appropriate scope of
the implementing
powers conferred on the Commission. The conclusion
as to whether or not amendment is necessary shall be
accompanied by a detailed statement of
If
necessary, the report shall be accompanied by a legis-
lative proposal
to amend the provisions conferring
implementing powers on the Commission’.

reasons.

Article 2

Entry into force

This Directive shall enter into force on the day following its
publication in the Official Journal of the European Union.

Article 3

Addressees

2. Article 42 shall be amended as follows:

This Directive is addressed to the Member States.

(a) paragraph 2 shall be replaced by the following:

Done at Strasbourg, 11 March 2008.

reference
to (4)

‘2. Where
Article 5a(1)
1999/468/EC shall
provisions of Article 8 thereof.’;

is made
to this paragraph,
and Article 7 of Decision
to the

apply, having

regard

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President
J. LENARČIČ