CELEX: 51987PC0255
Language: en
Date: 1987-05-22
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON THE FREEDOM OF ESTABLISHMENT AND THE FREE SUPPLY OF SERVICES IN THE FIELD OF MORTGAGE CREDIT

No C 161/4                               Official Journal of the European Communities                                  19.6.87
                                                                    II
                                                            (Preparatory Acts)
                                                    COMMISSION
              Amended proposal for a Council Directive on the freedom of establishment and the free supply
                                          of services in the field of mortgage credit (')
                                                           COM(87) 255 final
              (Submitted by the Commission to the Council pursuant to the second paragraph of Article 149 of
                                                  the EEC Treaty on 27 May 198 7)
                                                              (87/C 161/04)
              O OJ No C 42, 14. 2. 1985, p. 4.
                     ORIGINAL PROPOSAL                                                               AMENDED PROPOSAL
                            Title                                                                            Title
Proposal for a Council Directive on the freedom of                      Proposal for a Council Directive on the freedom of
establishment and the free supply of services in the field              establishment and the freedom to supply services in the
of mortgage credit                                                      field of mortgage credit
                                   T h e p r e a m b l e a n d first five r e c i t a l s u n c h a n g e d
                        Sixth recital                                                                    Sixth recital
Whereas the elimination of such obstacles can be                        Whereas the elimination of such obstacles can be
achieved by making it possible to grant mortgage credit                 achieved by making it possible to grant mortgage credit
secured on real property situated in a Member State                     secured on real property situated in a Member State
other than the home Member State and by making it                       other than the home Member State and by making it
possible to operate mortgage credit in a host Member                    possible to operate mortgage credit in a host Member
State in accordance with the specific lending and funding               State in accordance with the financial techniques
techniques authorized in the home Member State;                         permitted by the law of the home Member State;
                                         Seventh and eighth recitals u n c h a n g e d
                        Ninth recital                                                                   Ninth recital
Whereas, pending the achievement of complete freedom                    Whereas, during a transition period, Member States may
of capital movements, Member States may require                         require matching between assets and liabilities of the
matching between assets and liabilities of the currencies               currencies related to mortgage credit operations;
related to mortgage credit operations; whereas they must                whereas they must at all events allow the possibility of
at all events allow the possibility of conducting such                  conducting such operations in ECU;
operations in ECU;
                        Tenth recital                                                                   Tenth recital
Whereas, at all events the effective exercise of the                    Deleted
activities mentioned in the Directive requires the removal
of some of the existing restrictions on capital
movements; whereas a specific directive will deal with
such restrictions:
                                        Eleventh to fifteenthrecitals                 unchanged
 ---pagebreak---  19.6. 87                               Official Journal of the European Communities                               No C 161/5
                    ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
                      Sixteenth recital                                                   Sixteenth recital
                                                                   Whereas the provisions in the Directive apply without
                                                                   prejudice to the provisions relating to capital movements;
                                                                   whereas the effective exercise of certain activities
                                                                   mentioned in the Directive awaits the removal of existing
                                                                   restrictions on capital movements; whereas a directive
                                                                   based on Article 69 of the Treaty will deal with these
                                                                   restrictions.
                          TITLE I                                                             TITLE I
                   Definitions and scope                                               Definitions and scope
                          Article 1                                                           Article 1
This Directive applies to the credit institutions falling          This Directive applies to the credit institutions falling
within the ambit of Directive 77/780/EEC, the activities           within the ambit of Directive 77/780/EEC all or part of
of which consist in receiving funds from the public                whose activities consist of receiving funds from the public
collected in the form of deposits or the proceeds from             collected in the form of deposits or the proceeds from
mortgage bonds or reimbursable shares and in granting              the issuing of mortgage bonds or other bonds or
loans to the public secured by mortgage on real property           securities or reimbursable shares and in granting loans to
for the purpose of acquiring or retaining property rights          the public secured by mortgage on real property for the
in building land or in existing or projected buildings or          purpose of acquiring or retaining property rights in
for renovating or improving buildings.                             building land or in existing or projected buildings or for
                                                                   renovating or improving buildings.
                          Article 2                                                           Article 2
For the purposes of this Directive:                                For the purpose of this Directive:
— 'home Member State' shall mean the Member State                  — 'home Member State' shall mean the Member State
    where a credit institution as referred to in Article 1             where a credit institution as referred to in Article 1
    has its head office,                                               has its head office,
— 'host Member States' shall mean the Member State                 — 'host Member States' shall mean the Member State
    where a credit institution as referred to in Article 1             where a credit institution as referred to in Article 1
    has a branch or into which it supplies services.                   has a branch or into which it supplies services,
                                                                   — 'designated credit institutions' shall mean the credit
                                                                       institutions referred to in Article 1,
                                                                   — 'mortgage credit activities' shall mean the activities
                                                                       referred to in Article 1,
                                                                   — 'mortgage' shall mean a mortgage or other legal
                                                                       instrument having equivalent legal effect.
                                                                                             Article 2a
                                                                   Nothing in this Directive shall reduce any existing rights
                                                                   of designated credit institutions to undertake mortgage
                                                                   credit activities in their home Member State or in any
                                                                   other Member State.
 ---pagebreak--- No C 161/6                              Official Journal of the European Communities                                   19.6.87
                      ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
                           TITLE II                                                          TITLE II
General provisions to facilitate exercise of the right of          General provisions to facilitate exercise of the right of
       establishment and the right to supply services                      establishment and the right to supply services
                           Article 3                                                         Article 3
Member States shall authorize credit institutions as               Home Member States shall authorize designated credit
referred to in Article 1 to grant mortgage credit secured          institutions to undertake mortgage credit activities in any
by mortgages on real property situated in another                  other Member State in respect of real property situated
Member State.                                                      anywhere in the Community.
                                                                   Furthermore, they shall not restrict the use in another
                                                                   Member State of any financial technique permitted for
                                                                   mortgage credit activities in the home Member State.
                           Article 4                                                         Article 4
Member States shall repeal all legal or administrative             1.     Host Member States, subject to the exception
provisions preventing or obstructing a credit institution,         contained in paragraph 3, shall repeal all legal or
as referred to in Article 1, having its head office in their       administrative provisions preventing or obstructing a
territory, from operating mortgage credit in another               designated credit institution having its head office in
Member State in accordance with techniques specifically            another Member State, from undertaking mortgage
authorized within its home Member State, or shall so               credit activities in their territory in accordance with
amend such provisions as to make the operation of such             financial techniques permitted under the law of its home
techniques possible.                                               Member State, or shall so amend such provisions as to
                                                                   make the operation of such techniques possible.
                           Article 5                                                         Article 5
1.    Each Member State shall allow within its territory a         (delete Article number and first subparagraph)
credit institution, as referred to in Article 1, having its
head office in another Member State, to fund and, in
particular, refinance itself subject to the provisions of
paragraph 2, according to the techniques of financing
which are authorized in its home Member State, in order
to grant loans secured by mortgage for the purposes
referred to in Article 1.
Where the introduction of such new techniques in a                 2.    Where the introduction of new financial techniques
Member State gives rise to distortion of the conditions of         alters the conditions of competition in a Member State,
competition in that Member State, that Member State                that Member State shall authorize all designated credit
shall authorize all credit institutions established in its         institutions established in its territory who are adversely
territory to adopt similar techniques or take equivalent           affected by the change to adopt similar techniques or
measures.                                                          take equivalent measures.
2.    Pending coordination relating to bonds secured by            3.     unchanged
mortgage, the host Member State may require that issues
of such bonds on its territory shall be in conformity with
the relevant provisions in force in that Member State.
                           Article 6                                                         Article 6
The host Member State may require that both funding                1.     For a maximum period of seven years after the
and lending transactions be in its currency; the                   adoption of this Directive, the host Member State may
institution in question may however always use the ECU             require that both funding and lending transactions be in
as an alternative. The home Member State may require               its currency, or, where it allows transactions to be in
matching between assets and liabilities in each national           another national currency, that assets and liabilities in
currency; the institution in question may however always           each national currency be matched; the institution in
choose to meet the matching requirement in ECU.                    question may however always use the ECU as an alter-
                                                                   native.
 ---pagebreak--- 19.6.87                                 Official Journal of the European Communities                               No C 161/7
                      ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
                                                                   2.     Paragraph 1 shall not apply to mortgage credit
                                                                   activities between a designated credit institution and a
                                                                   national of its home Member State.
                                                                   3.     For a maximum period of seven years after the
                                                                   adoption of this Directive, the home Member State may
                                                                   require matching between assets and liabilities in each
                                                                   national currency; the institution in question may
                                                                   however always choose to meet the matching
                                                                   requirement in ECU.
                           Article 7                                                          Article 7
In cases of State intervention or other public assistance          State or other public assistance measures of any type,
of any type in the field of mortgage credit related                including tax benefits, in the field of mortgage credit
activities, including the saving of funds with and the             activities undertaken by designated credit institutions
granting of mortgage credits by credit institutions as             shall apply to transactions undertaken within the scope
referred to in Article 1, similar measures shall apply to          of this Directive. There shall be no discriminatory or
transactions undertaken within the scope of this                   restrictive treatment based either on nationality or on the
Directive. Such measures shall be non-discriminatory as            fact that a designated credit institution is not established
between nationals of Member States.                                in the Member State where the services are provided.
                           TITLE III                                                          TITLE III
    Provisions relating to the freedom of establishment                 Provisions relating to the freedom of establishment
                           Article 8                                                          Article 8
Until the conditions for home country control are                   Until other appropriate provisions for control are made
fulfilled, supervision of any form of establishment in              by a further directive, supervision of any form of
another Member State of a credit institution, as referred           establishment in another Member State of a designated
to in Article 1, shall be exercised by the supervisory              credit institution shall be exercised by the supervisory
authority of that host Member State in close cooperation            authority of that host Member State in close cooperation
with the supervisory authority of the home Member                   with the supervisory authority of the home Member
State.                                                              State and according to the legal provisions in the host
                                                                    Member State which are not inconsistent with this
                                                                    Directive.
                           TITLE IV                                                           TITLE IV
       Provisions relating to freedom to supply services                Provisions relating to the freedom to supply services
                            Article 9                                                          Article 9
 1.    A credit institution, as referred to in Article 1,            1.   A designated credit institution wishing to exercise
 wishing to extend its activities by way of the exercise of         the freedom to supply services in the field of mortgage
 freedom to supply services in the field of mortgage credit         credit activities into the territory of another Member
 into the territory of another Member State, shall give             State for the first time shall give notification thereof to
 notification thereof to the supervisory authority of the           the supervisory authority of the home Member State
 home Member State which has granted the authorization              which has granted the authorization pursuant to Article
 pursuant to Article 3 of Directive 77/780/EEC.                     3 of Directive 77/780/EEC.
 2.     Member States shall require the notification to be          2.     Member States shall require the notification to be
 accompanied by the following information from the                  accompanied by the following information from the
 credit institution concerned:                                      designated credit institution concerned:
 ---pagebreak---  No C 161/8                              Official Journal of the European Communities                                    19.6.87
                       ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
 (a) the Member State into whose territory it intends to             (a) the Member State into whose territory it intends to
     supply services;                                                    supply services;
 (b) the types of business it intends to carry out on the            (b) the types of business it intends to carry out on the
     territory of that host Member State;                                territory of that host Member State;
 (c) the general and specific conditions under which                (c) the general and specific conditions under which
     funds will be received and loans granted.                           funds will be received and loans granted;
                                                                     (d) the address in the host Member           State    where
                                                                         documents may be served upon it.
3.    Where the supervisory authority of the home                   3.     Unless the supervisory authority of the home
Member State confirms the financial soundness of the                Member State has reason to doubt the financial
credit institution concerned, it shall, within three months         soundness of the designated institution concerned on the
of the notification referred to in paragraph 1, send the            basis of the information already in its possession and/or
information mentioned in paragraph 2 to the supervisory             any further information which it reasonably requires from
authority of the host country together with a declaration           the institution, or which it obtains from other sources, it
assessing the financial situation of the credit institution.        shall within three months of the notification referred to
                                                                    in paragraph 1, send the information mentioned in
                                                                    paragraph 2 to the supervisory authority of the host
                                                                    Member State.
4.    Where the supervisory authority of the home                   4.    Where the supervisory authority of the home
Member State refuses to confirm the financial soundness             Member State decides that there is reason to doubt the
of a credit institution reasons shall be given to the               financial soundness of a designated credit institution it
institution concerned within three months of receipt of             shall refuse to send the information mentioned in
the information mentioned in paragraph 2.                           paragraph 2 to the supervisory authority of the host
                                                                    Member State and shall give reasons to the institution
                                                                    concerned within three months of receipt of the infor-
                                                                    mation mentioned in paragraph 2. Such refusal shall have
                                                                    the effect of suspending the right of the institution to
                                                                    supply services in the field of mortgage credit activities
                                                                    into the Member State named in the notification.
5.    Before the credit institution commences its activities        5.    Before the designated credit institution commences
the supervisory authority of the host country shall,                its activities the supervisory authority of the host
within a period of three months following receipt of the            Member State shall, within a period of three months
information and of the declaration mentioned in                     following receipt of the information mentioned in
paragraph 3, prepare for the constant supervision of the            paragraph 2, prepare for the supervision of the institution
credit institution pursuant to Article 10.                          pursuant to Article 10.
                                                                    6.    A designated credit institution wishing to change
                                                                    any of the matters notified pursuant to paragraph 2 shall
                                                                    give written notice of the proposed change to the
                                                                    supervisory authorities in the relevant home and host
                                                                    Member States at least one month before making the
                                                                    change.
                           Article 10                                                         Article 10
 1.   A credit institution exercising freedom to supply             1.    A designated credit institution exercising    freedom
services into the territory of another Member State shall           to supply services into the territory of another   Member
report quarterly on its operation in the host Member                State shall report quarterly on its operations in  the host
State to the supervisory authority of that Member State.            Member State to the supervisory authority           of that
                                                                    Member State.
2.    If the supervisory authority of a host Member State           2.     unchanged
ascertains that an institution providing services into its
territory is not complying with the legal provisions in
force in that Member State which are justified on the
grounds of the general good, that authority shall request
the institution concerned to put an end to the irregular
situation.
 ---pagebreak--- 19.6.87                                  Official Journal of the European Communities                                No C 161/9
                      ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
3.    If the institution concerned fails to take the                      unchanged
necessary steps, the supervisory authority of the host
Member State shall inform the home Member State
accordingly. The authority of the home Member State
shall take all appropriate measures to ensure that the
institution concerned puts an end to the irregular
situation. .The nature of those measures shall be
communicated to the authority of the host Member
State.
4.    If, despite the measures taken by the home Member             4.    If, despite the measures taken by the home Member
State pursuant to paragraph 3, or because such measures             State pursuant to paragraph 3 or because such measures
prove inadequate or are lacking in the Member State in              prove inadequate or are lacking in the Member State in
question, the institution persists in violating the legal           question, the institution persists in violating the legal
rules referred to in paragraph 2 in force in the host               provisions referred to in paragraph 2 in force in the host
Member State, the latter State may, after informing the             Member State, the latter State may, after informing the
supervisory authority of the home Member State, take                supervisory authority of the home Member State, take
appropriate measures to prevent further irregularities              appropriate measures to prevent further irregularities
including, in so far as it is strictly necessary, the               including, in so far as it is necessary, the prevention of
prevention of the further conclusion of mortgage                    the further conclusion of mortgage contracts by that
contracts by that institution by way of provision of                institution by way of provision of services within its
services within its territory. The Member States shall              territory. The Member States shall ensure that within
ensure that within their territory it is possible to serve the      their territory it is possible to serve the legal documents
legal documents necessary for these measures.                       necessary for these measures.
5.    Any measure adopted pursuant to paragraphs 2, 3               5.     unchanged
and 4 involving penalties or restrictions on the provision
of services must be properly justified and communicated
to the institution concerned. Every such measure shall be
subject to the right to apply to the courts in the Member
State in which the authorities adopted it.
6.     In the event of withdrawal of authorization the              6.     In the event of withdrawal of authorization the
supervisory authority of the host Member State shall be             supervisory authority of the host Member State shall be
informed of such action and shall take appropriate                  informed of such action and shall take appropriate
measures to prevent the institution concerned from                  measures to prevent the institution concerned from
continuing to conclude mortgage contracts by way of                 continuing to conclude mortgage contracts by way of
provision of services within the territory of that State.           provision of services within the territory of the relevant
                                                                    host Member State.
7.     Every two years the Commission shall submit to the           7.     Every two years the Commission shall submit to the
Council a report summarizing the number and type of                  Council and to the European Parliament a report
cases in which in each Member State decisions recording             summarizing the number and type of cases in each
non-confirmation of financial soundness have been                   Member State in which there has been a refusal pursuant
communicated under Article 9 or measures have been                  to Article 9 or measures have been taken in accordance
 taken in accordance with the provisions of paragraph 4.            with the provisions of paragraph 4. Member States shall
 Member States shall cooperate with the Commission by                cooperate with the Commission by providing it with the
 providing it with the information required for this report.         information required for this report.
                           TITLE V                                                             TITLE V
               Transitional and final provisions                                   Transitional and final provisions
                           Article 11                                                          Article 11
 The home Member State may, for a maximum period of                  The home Member State may, for a maximum period of
 five years after notification of this Directive, limit the          seven years after the adoption of this Directive, limit the
 transactions of a credit institution in the field of                transactions of a designated credit institution in the field
 mortgage credit carried on either through branches in               of mortgage credit activities carried on either through
 other Member States or by way of the provision of                   branches in other Member States or by way of the
 services to 25 % of the total mortgage lending of the               provision of services to 25 % of the total domestic
 relevant credit institution.                                        mortgage lending of the relevant credit institution in the
                                                                     previous year.
 ---pagebreak---  N o C 161/10                              Official Journal of the European Communities                                   19.6.87
                       ORIGINAL PROPOSAL                                                     AMENDED PROPOSAL
                            Article 12                                                           Article 12
 1.    Member States shall bring into force the measures               1.    Member States shall bring into force the measures
 to comply with this Directive by                   They shall        to comply with this Directive within two years of its
 forthwith inform the Commission thereof.                             adoption. They shall forthwith inform the Commission
                                                                      thereof.
 2.    Member States shall communicate to the                         2.     unchanged
 Commission the texts of the main laws, regulations and
 administrative provisions which they adopt in the field
 covered by this Directive.
                            Article 13                                                           Article 13
This Directive is addressed to the Member States.                     unchanged
               Alteration of the proposal for a Council Directive amending Directive 77/62/EEC relating to
               the coordination of procedures on the award of public supply contracts and deleting certain
                                             provisions of Directive 80/767/EEC (')
                                                         COM(87) 233 final
               (Submitted by the Commission to the Council pursuant to the second paragraph of Article 149 of
                                                  the EEC Treaty on 1 June 1987)
                                                           (87/C 161/05)
A new recital is added between the fourth and fifth recitals:         Articles 2 and 3 become Articles 3 and 4.
'Whereas it is necessary to amend these Directives in
order to incorporate the changes in the GATT                          Alteration of Article 4
Government        Procurement       Agreement      agreed    in
December 1986.'
                                                                      Article 4 (2) (d) is replaced by the following:
 New Article 2
                                                                      '(d) The contracting authorities shall prepare a report in
                                                                           writing on each contract awarded under the
                                                                            restricted or the negotiated procedure. They shall
Article 1 (a) is replaced by the following text:
                                                                            ensure that each report contains the name of the
                                                                            contracting authority, the value and nature of goods
                                                                            purchased, the country of origin as indicated by the
'(a) "public supply contracts" shall be contracts for                       address of the supplier, and a statement of the
      pecuniary interest concluded in writing involving the                 conditions referred to in Article 6 (1) and (2) which
      purchase, lease, rental or hire purchase, with or                     prevailed at the time when the contract was
      without option to buy, of products between a                          awarded. The report shall remain with the
      supplier (a natural or legal person) and one of the                   contracting authority concerned. If needed, this
      contracting authorities defined in (b) below. The                     information shall be supplied to the authorities
      delivery of such products may in addition include                     responsible for the contracting authority in order
      siting and installation operations.'                                  that it may, if required, be used by the Commission
                                                                            and, through the Commission, by the Advisory
0) OJ No C 173, 11. 7. 1986, p. 4.                                          Committee for Public Contracts.'