CELEX: 51988PC0805
Language: en
Date: 1989-01-15
Title: Proposal for a COUNCIL REGULATION (EEC) on guarantees issued by credit institutions or insurance undertakings (presented by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (88) 805
Vol. 1988/0267
 ---pagebreak--- Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 concernant
l'ouverture au public des archives historiques de la Communauté économique européenne et de
la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983, p. 1) modifié en dernier
lieu par le règlement (UE) 2015/496 du Conseil du 17 mars 2015 (JO L79 du 25. 3.2015, p. 1), ce
dossier est ouvert au public. Le cas échéant, les documents classifiés présents dans ce dossier
ont été déclassifiés conformément à l'article 5 dudit règlement ou sont considérés déclassifiés
conformément aux articles 26(3) et 59(2) de la décision (UE, Euratom) 2015/444 de la
Commission du 13 mars 2015 concernant les règles de sécurité aux fins de la protection des
informations classifiées de l'Union européenne.
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning
the opening to the public of the historical archives of the European Economic Community and the
European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as last amended by Council
Regulation (EU) 2015/496 of 17 March 2015 (OJ L 79, 27.3.2015, p. 1), this file is open to the
public. Where necessary, classified documents in this file have been declassified in conformity
with Article 5 of the aforementioned regulation or are considered declassified in conformity with
Articles (26.3) and 59(2) of the Commission Decision (EU, Euratom) 2015/444 of 13 March 2015
on the security rules for protecting EU classified information.
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1. Februar
1983 über die Freigabe der historischen Archive der Europäischen Wirtschaftsgemeinschaft und
der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983, S. 1), zuletzt geändert durch die
Verordnung (EU) Nr. 2015/496 vom 17. März 2015 (ABI. L 79 vom 25.3.2015, S. 1), ist dieser Akt
der Öffentlichkeit zugänglich. Soweit erforderlich, wurden die Verschlusssachen in diesem Akt in
Übereinstimmung mit Artikel 5 der genannten Verordnung freigegeben; beziehungsweise werden
sie auf Grundlage von Artikel 26(3) und 59(2) der Entscheidung der Kommission (EU, Euratom)
2015/444    vom   13.   März   2015   über die   Sicherheitsvorschriften für den Schutz von  EU-
Verschlusssachen als herabgestuft angesehen.
 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                               COM(88 ) 805 final - SYN 180
                                               Brussels ,I 5 January 1989
                                    Proposal for a
                            COUNCIL REGULATION ( EEC )
  on guarantees issued by credit institutions or insurance undertakings
                            ( presented by the Commission )
                          \3    ÎJ
                     Ô?        J-Ü       'J
                 £            Δ
                S
                      n  n
               O
                         U               J  F:
                  k Sorti t!u SfcrilarUl
                           Général
                           7
                        &Ί/ г-г
                             ί !
 ---pagebreak---                               CXPLANATORY MEMORANDUM                 C    i'oS f
General  Remarks
It follows from the Treaty and does not therefore need to be confirmed by
secondary legislation that no discrimination according to the nationality or
the place of establishment in the Community may be made between providers of
services . The present regulation , however, goes beyond non-discrimination by
imposing upon public authorities the obligation to accept guarantees emanating
from credit institutions and insurance undertakings licensed under Community
law and thus intends to mark more clearly the Internal Market dimension of the
frjee provision of services .
In the context of the " White Paper on the Achievement of the Internal Market " a
number of legislative measures have been taken in order to achieve a single
European market for financial services , in the first place offered by credit
institutions and insurance undertakings .
The First Banking Law Coordination Directive of 1977 has provided for a
harmonised banking licence which will be switched to a single European licence
by the Second Coordination Directive , proposed early in 1988 . Already the
cooperation between banking supervisory authorities is so close that , although
different prudential standards are for the time being still applied
( harmonising legislation has been proposed for solvency - ratios , own funds ,
winding-up and liquidation ), one can no longer speak of separate national
markets . Although one is not similarly near to a European license in the
insurance field , the prudential requirements are even more extensively fixed
and the cooperation between supervisory authorities has become a normal event .
The process of integration is accelerating in both fields .       In the case of
 institutional guarantors the public authorities should           be obliged to
demonstrate their contribution to this integration process .
 The existing system of prudential control in all Member States , which is built
on a Community foundation and which , with harmonisation , is developing further ,
operates in a way which no longer leaves room for appreciation of the
creditworthiness of credit institutions or insurance undertakings by public
authorities other than those actually supervising them . It goes without saying
 that those qualified guarantors may only act within the limits drawn by their
                                                                                   2
 ---pagebreak---                                         - b -
supervisory rules . A credit institution or on insurance undertaking which has a
licence under the harmonised Community systems has all reason *, to inspect these
limits , because otherwise a withdrawal of the licence would appear necessary .
The proposed legislation takes the form of a Regulation , because it is
important to make available immediately to those who are asked to provide a
guarantee a reliable instrument , which a directive could not do . It is a
horizontal regulation for which Article 100 A provides a sufficient legal base ;
therefore there is no need to add further legal bases specific to certain
sectors such as agriculture ( Art . A3 ) or taxation ( Art . 99 ), even if acts
adopted on these bases are concerned .
Detailed explanations
Ad Article 1
This is the only operational article . It sets out the principle that a public
authority must accept a guarantee from any credit institution licensed
according to Directive 77 / 780/ EEC ( First Banking Law Coordination Directive ) or
from any insurance undertaking authorised for the class of suretyship insurance
according to Directive 73 / 239 / EEC . The guarantee will in the first place be
required to secure the payment of a debt but can of course also be applied for
the assurance to meet a particular obligation .
Public authority means any entity for which a Member State or the EC could be
held responsible , thus including e.g. local authorities , social security
institutions,     law courts ( including deposits to allow the temporary
non-execution of civil law judgments ), diplomatic representations of these
authorities in third countries or with international organisations . On the
other hand , representations of third countries or international organisations
established in the EC would not be subject to this obligation .
The applicability of the regulation is not limited to matters dealt with by
Community law ; it applies therefore e.g. to local taxes as well .
                                                                     • . ;• : .*.*>< ^v -*> * v
 ---pagebreak---                                           6
Ad Article 2
Article 27 paragraph 3 of Regulation ( EEC ) No . 222 / 77 on Community transit does
not conform with the principle laid down in Article 1          and should therefore be
brought into line with that principle . For the sake of clarity , it appears
desirable not to rely on the application of the rule " lex posterior derogat
legi priori ", which , of course , remains valid .
              Current provision                            Amended provision
    Subject to the provisions of Article         Subject to the provisions of Article
    33(2 ), the guarantee shall consist of       33(2 ), the guarantee shall consist of
    the joint and several guarantee of a         the joint and several guarantee of
    natural or legal third person                either
    established in the Member State in           - a credit institution licensed
    which the guarantee is provided who            according to Article 3 of Directive
    is approved as guarantor by that               77 / 780/ EEC ( OJ No . L 322,
    Member State .                                 17.12.1977), or
                                                 - an insurance undertaking authorised
                                                   for the class of suretyship
                                                   insurance according to Articles 6
                                                   and 7 of Directive 73 / 239 / EEC
                                                   ( OJ No . L 228, 16.08.1973, p. 3 ), or
                                                 - any other natural or legal third
                                                   person established in the Community
                                                   and approved as guarantor by the
                                                   Member State in which the guarantee
                                                   is provided .
    The original regulation, afhough adopted under a different legal base
    ( Article 235 ), may now be modified by a regulation adopted under Article
    100 A. This is a consequence the amendment of the Treaty by the Single
    European Act : rules in the customs field would now have to be adopted under
    this new article .
3 . There are other Community rules related to guarantees in which reference is
    made to a certain element of discretion on the part of the administrative
    authorities . It is felt that these rules need not to be modified , it being
    understood that the principle clearly stated in Article 1 partially limits ,
    in the specific case of guarantees emanating from credit institutions or
    insurance undertakings , that discretion . The following provisions can be
    mentioned in this context :
 ---pagebreak---                                               7
Régulation ( EEC ) No .          612 / 77   Cyoung   male   bovine   animais   -   import
arrangements ). Article 1
" 2 . The security shall be lodged , at the choice of the applicant , either in
      cash or in the form of a guarantee given by an institutions meeting the
      criteria laid down by the Member State on whose territory the
      importation was effected ."
Regulation ( EEC ) No .        1091 / 80 ( private storage aid for beef and veal ).
Article 4
" 2 . ...
      The security ...       shall be furnished in the form of a guarantee meeting
      the requirements laid down by the Member State concerned ."
Régulation      ( EEC ) No .    2220 / 85   ( securities  for   agricultural   products ).
Article 16
" 1 . The guarantor must have his normal residence or an establishment in the
      Community and , subject to the provisions of the Treaty concerning
      freedom to supply services , must be approved by the competent authority
      of the Member State in which the security is given ..."
Régulation ( EEC ) No . 3599 / 82 ( temporary importation ). Article 3
" 1 . ... the competent authorities ...              shall determine ...     the form of
      guarantee to be provided ."
Directive 85 / 362 / EEC ( 17th VAT Directive ), Article 3
" 2 . For goods imported temporarily from one Member State to another ,                    if
      security is required ,           the person to whom the benefit of temporary
      importation exemption has been granted may choose whether it shall be given
      by :
      ( a ) making a cash deposit in the currency of the Member State in which
            security is required ;
      ( b ) a guarantor who has his normal residence or an establishment in the
            Member State in which security is required and who is approved by the
            competent authorities of that Member State ; or
      ( c ) any other guarantee acceptable to the competent authorities of the
            Member State in which security is required ."
                                                                                              C
                                                                                              J
 ---pagebreak---                                      - 8 -
Ad Article 3
The regulation could be applied immediately after its adoption . For the sake of
clarity of the legal order in general , it is , however , proposed to fix the date
of application as the first day of the month following the date of adoption .
That date should be inserted immediately prior to the adoption of the text by
the Council ( e.g. if the Council were to adopt on 12 September 1989 , then the
date 1 October 1989 should be inserted in the text ).
                                                                                   to
 ---pagebreak---                                                                  COM ( 88)805 final
                                    Proposai for a
                         COUNCIL REGULATION ( EEC ) No _ /89
                                 of . 1989
       on guarantees issued by credit institutions or insurance undertakings
THE COUNCIL OF THE EUROPEAN COMMUNITIES
- Having regard to the Treaty establishing the European Economic Community ,
and in particular Article 100 a thereof ;
                                                          (1 )
- Having regard to the proposal from the Commission            ;
                                                    (2)
- In cooperation with the European Parliament           ;
- Having regard to the opinion of the Economic and Social Committee
- ( 1 ) Whereas the Treaty , in    Article 59,    enshrines the principle of freedom
         to provide services ;
- ( 2 ) Whereas many public authorities , when demanding guarantees , ask for
         guarantees issued by a resident of their national territory , which
         conflicts with that principle ;
- ( 3 ) Whereas    the   Treaty  principle     of  non-discrimination      is  directly
         applicable and does not require implementing législation ;
- ( 4 ) Whereas public authorities have a certain discretion in judging the
         acceptability of the guarantor ;
- ( 5 ) Whereas public authorities also have a particular responsibility for the
         establishment and functioning of the Internal Market ;
( 1 ) OJ N° C IIIIII
( 2 ) Legislative Resolution of .....      ( OJ N° C ■■■■■■) and Decision of
      ( OJ N° C IIIIII )
( 3 ) OJ N° C IIIIII
 ---pagebreak---                                                                  C0M(88)805 final
                                         - 2 -
- ( 6 ) Whereas this responsibi litv raiie
                         M            calls for a limitation of the discretion of
        public authorities in the case of a specific financial service provided
        by institutions supervised on the basis of Community rules;
    (7) Whereas the First Council Directive 77/780/EEC of 12 December 1977 on
        the coordination of the laws, regulations and administrative provisions
        relating to ^the taking up and pursuit of the business of credit
        institutions      as last amended by Directive 86/524 ( 5 ) , provides for
        a Community system for licensing and supervising credit institutions;
- (8) Whereas the First Council Directive 73/ 239/ EEC of 24 July 1973 on the
        coordination of laws, regulations and administrative provisions relating
        to the taking-up and pursuit of the business of direct insurance other
        than life insurance ^ as last amended by Directive 87/344/EEC
        provides for a Community system for licensing and supervising insurance
        undertakings ;
- ( 9 ) Whereas it appears inappropriate that authorities other than those in
        charge of prudential supervision of these institutions judge the
        creditworthiness of credit institutions or insurance companies acting as
        guarantors ;
HAS ADOPTED THIS REGULATION :
                                      Article 1
         Obligation to accept guarantees issued by credit institutions or
                               insurance undertakings
A public authority which requires to be secured for payment of an actual or
potential debt or for respect of any other obligation shall be bound to accept
a guarantee issued by any credit institution licensed according to Article 3
( 4 ) OJ N° L 322 , 17.12.1977, p. 30
( 5 ) OJ N° L 309, 04.11.1986 , p. 15
( 6) OJ N° L 228, 16.08.1973, p. 3
( 7) OJ N° L 185, 04.07.1987, p. 77
 ---pagebreak---                                                                        C0M(88)805 final
                                              - 3 -
of Directive 77 / 780 / EEC or by any insurance undertaking authorised for the
class of suretyship insurance according to Articles 6 and 7 of Directive
73 / 239 / EEC-
                                            Article 2
                             Amendment of existing legislation
Article      27(3) of^uncil
Community transit
                                 Regulation ( EEC ) N° 222 /77 of 13 December 1976 on
                           is hereby replaced by the following :
" 3 . Subject to Article 33(2 ),         the guarantee shall consist of the joint and
      several guarantee of either
      - a credit institution licensed according to Article 3 of Council
         Directive 77 / 780 / EEC ( 1 ), or
      - an insurance undertaking authorised for the class of suretyship
         insurance according to Articles 6 and 7 of Council Directive 73 / 239 / EEC
         ( 2 ), or
      - any other natural or legal third person established in the Community and
         approved as guarantor by the Member State in which the guarantee is
         provided .
         ( 1 ) OJ N° L 322 , 17.12.1977, p. 30
         ( 2 ) OJ N° L 228 , 16.8.1973, p. 23"
                                            Article 3
                                        Entry into force
This Regulation shall enter into force on .                      ( the first day of the
month following the adoption ).
                 This Regulation shall be binding in its entirety
                    and directly applicable in all Member States .
                 Done at
                                                         For the Council
 ( 8)0J N° L 38, 9.2.1977, p. 1