CELEX: 51996PC0172
Language: en
Date: 1996-04-19
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE ON CROSS-BORDER CREDIT TRANSFERS

.**         COMMISSION OF THE EUROPEAN COMMUNITIES
*     -tfr
                                                Brussels, 19.04 19%
                                                COM(%) 172 linal-
                                                94/0242 (COD)
                      OPINION OF THE COMMISSION
              pursuant to Article 189 b (2) (d) of the EC Treaty,
                   on the European Parliament's amendments
               to the Council's common position regarding the
                                 proposal for a
           EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                   ON CROSS-BORDER CREDIT TRANSFERS
            AMENDING THE PROPOSAL OF THE COMMISSION
                pursuant to Article 189 a (2) of the EC Treaty
 ---pagebreak---  ---pagebreak---                                   OPINION OF THE COMMISSION
   pursuant to Article 189(b)(2)(d) of the EC Treaty, on the European Parliament's
               amendments to the Council's common position regarding the
                                              proposal for a
                   EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                           ON C R O S S - B O R D E R C R E D I T T R A N S F E R S
I.  STAGE REACHED IN THE PROCEDURE
    (a)     On 18 November 1994, the Commission adopted a proposal for a European
            Parliament and Council Directive1 on cross-border credit transfers. This was sent
            to the Council by letter dated 18 November 1994. The Council subsequently
            forwarded this text to the European Parliament, to the European Monetary
            Institute and the Economic and Social Committee. In January 1995, it began its
            own examination of the proposal.
    (b)     The European Monetary Institute (EMI) rendered its opinion on the Commission
            proposal on 20 March 1995.
            The Economic and Social Committee adopted its opinion at its sitting on 1st
            June 19952.
    (c)     The European Parliament adopted the legislative resolution embodying its
            opinion on the Commission proposal at its sitting on 19 May 19953.
    (d)     On 6 June 1995, the Commission adopted an amended proposal4 in the light of
            the consultations of Parliament, the European Monetary Institute and the
            Economic and Social Committee. It was sent to Council by letter of 7 June 1995.
    (e)     On 4 December 1995 the Council adopted the common position5. It introduced a
            number of amendments to the Commission's amended proposal; in particular it
            rejected 3 out of the 19 amendments inserted in the amended proposal.
    (f)     In the plenary session of 14 December 1995, the President of the Parliament
            announced receipt of the Common Position.
    (g)     On 13 March 1996, the European Parliament adopted unanimously                  14
            amendments to the Common Position6.
    In accordance with the procedure described in Article 189g(2)(d) of the EC Treaty, the
    Commission has to deliver an opinion on these amendments.
 1
   OJ No C 360, 17.12.1994, p. 13.
2
   OJ No C 236, 11.09.1995, p. 1.
3
   OJ No C 151, 19.06.1995, p. 370.
4
   OJ No C 199, 03.08.1995, p. 16.
5
   OJ No C 353, 30.12.1995, p. 52.
6
   Text not yet published in the Official Journal.
                                                                                              A
 ---pagebreak--- II.  POSITION TAKEN BY THE COMMISSION REPRESENTATIVE AT THE PLENARY SI TUNC.
      The European Parliament proposed 14 amendments to the text of the Common Position
     of the Council. The Commission representative accepted amendments 1, 2, 3, 4, 5, 6, 7,
     8, 9, 11 and 14 practically as they stand. Furthermore, the Commission accepted
     amendments 10 and 12 partially or subject to modifications. The Commission
     representative did not accept one amendment, i.e. amendment n° 13.
III.  T H E COMMISSION OPINION ON AMENDMENT N° 13                    VOTED BY THE       EUROPEAN
      PARLIAMENT
      Amendment n°13, introducing a new paragraph 2 to Article 10 of the Common
      Position of the Council
      The purpose of the amendment is twofold :
      •      to state that access to redress and complaints procedures shall occur where a
             complaint has not been remedied or a decision has not been taken on it by the
             institution concerned within four weeks after the first complaint:
      •      to ensure that a list of addresses be available at all institutions carrying out cross-
             border credit transfers.
      As to the first, the Commission considers that a harmonised maximum deadline would
      not suit customers' needs for rapid redress under the different articles and might also be
       in conflict with similar deadlines contained in other provisions of the Directive, e.g.
      that in Article 8. As to the second, it is already satisfied by a similar requirement under
      the penultimate indent of Article 3.
       For the reasons outlined* the Commission cannot accept this amendment
 ---pagebreak--- Common Position of the Council            Amendment by Parliament
                          (Amendment 13)
                         Article 10(2) (new)
                                  2*    If a complaint has not been remedied
                                        or a decision has not been taken on it
                                        within four weeks after the first
                                        complaint.      complainants      may
                                        approach one of the complaint and
                                        redress offices to be set up for this
                                        purpose, or may use existing
                                        procedures where available.
                                        A list of addresses of such offices
                                        shall be available at all institutions
                                        carrying out cross-border credit
                                        transfers under this Directive.
 ---pagebreak---                           Amended proposal for a
         EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
               ON CROSS-BORDER CREDIT TRANSFERS
(presented by the Commission pursuant to Article 189a(2) of the EC Treaty
 ---pagebreak---                                      Amended proposal for a
               EUROPEAN P A R L I A M E N T AND C O U N C I L DIKKCTIVI
                     ON C R O S S - B O R D E R C R E D I T T R A N S F E R S
   Amendment n°l concerning Recital n°2 of the Common Position
   The amendment aims to insert a spécifie reference to the definitive Commission
   Notice on the application of the HC competition rules to cross-border credit transfer
   systems7, a draft of which had been issued alongside the Commission's initial
   proposal for a European Parliament and Council Directive on cross-border credit
   transfers.
   The insertion aims to highlight the fact that, in conformity with the Commission's
   Notice, greater competition in the market for cross-border credit transfers should
   lead to improved services and reduced prices. Therefore, the Commission accepts
   this amendment.
    Common Position of the Council                          Amendment by Parliament
                                       (Amendment 1)
                                           Recital 2
(2) Whereas it is of paramount (2) Whereas it is essential for individuals
     importance for individuals and                       and businesses, especially small and
     businesses, especially small and                     medium-sized enterprises, to be able
     medium-sized enterprises, to be able                 to make credit transfers rapidly,
     to make credit transfers rapidly,                    reliably and cheaply from one part of
      reliably and cheaply from one part of               the Community to another; whereas,
      the Community to another; whereas                   in conformity with the Commission
      greater competition in the market for               Notice on the application of the EC
      cross-border credit transfers should                competition rules to cross-border
      lead to improved services and                       credit transfers, greater competition
      reduced prices;                                     in the market for cross-border credit
                                                          transfers should lead to improved
                                                          services and reduced prices;
  OJ No C 251, 27.09.1995, p. 3.
                                                                                                S
 ---pagebreak--- 2.    Amendment n°2 to Recital n° 7 of the Common Position of the Council
      Recital n°7 relates to the scope of application of the Directive. Therefore, this
     amendment needs to be considered in conjunction with amendment n°5 to Article 1
     of the Common Position.
     As such, it points to an enlargement of the Directive's application, by establishing
     that transfers of an amount less than ECU 50.000 are covered. This amendment is
     in keeping with the Commission's fundamental conviction that as high a threshold
     would better serve the objective of creating a fully functioning Internal Market for
     cross-border credit transfer services. Therefore, the Commission accepts this
     amendment.
      Common Position of the Council                 Amendment by Parliament
                                     (Amendment 2)
                                        Recital 7
  (7) Whereas, in line with the objectives (7)     Whereas, in line with the objectives
       set out in the second recital, this         set out in recital 2, this Directive
       Directive should apply to any credit        should apply to any credit transfer of
       transfer of an amount less than             an amount of less than ECU 50.000:
       ECU 25.000: whereas that amount             whereas institutions should be under
       should be increased to ECU 30.000           an obligation to refund in the case of
       two     years    after    the     final     a non-completed transfer;
       implementation      dale. for this
       Directive;
                                                                                        é
 ---pagebreak---     Amendment n ° 3 concerning Recital n° 11 of the Common Position of the
    Council
    This recital relates to Article 8 of the Common Position on the refund of non-
    completed cross-border credit transfers and must therefore be read in conjunction
    therewith (and amendments n" 8 and 9 thereto).
    It aims to increase the minimum level of the refund to the amount of ECU 20.000,
    thus improving the customer's situation; the increase is however deemed not to
    have a prejudicial effect on solvency requirements. Therefore the Commission
    accepts this amendment.
     Common Position of the Council                  Amendment by Parliament
                                     (Amendment 3)
                                       Recital 11
(11) Whereas there should be an (11) Whereas there should be an
     obligation upon institutions to refund       obligation upon institutions to refund
     in the event of non-execution of a           in the event of a failure to
     credit    transfer;    whereas      the      successfully    complete a credit
     obligation to refund imposes a               transfer; whereas the obligation to
     contingent liability on institutions         refund imposes a contingent liability
     which might, in the absence of a             on institutions which might, in the
     limit, have a prejudicial effect on the      absence of any limit, have a
     solvency requirement; whereas that           prejudicial   effect   on     solvency
     obligation to refund should therefore        requirements;        whereas       that
     be applicable to ECU 10.000:                 obligation to refund should therefore
                                                  be applicable to ECU 20.000;
                                                                                         ?
 ---pagebreak--- 4. Amendment n° 4 concerning Recital n° 14a (new) of the Common Position of
   the Council
   This new recital relates to Article 10 on the settlement of disputes and, being
   intended as a match to the proposed amendment n° 12 to that Article, should be
   read in conjunction therewith.
   It aims to clarify in more detail the scope of Member States' responsibility to ensure
   that adequate and appropriate procedures exist to deal with customer's complaints
   relating to areas covered by the Directive. Therefore, the Commission accepts this
   amendment.
   Common Position of the Council                   Amendment by Parliament
                                    (Amendment 4)
                                  Recital 14a (new)
                                              (Ha) Whereas adequate and appropriate
                                                    complaints and redress procedures
                                                    relating to the areas covered by
                                                    this Directive should be available
                                                    to afford the customer better
                                                    protection.      using       existing
                                                    procedures where available.
 ---pagebreak--- 5.    Amendment n° 5 to Article 1 of the Common Position of the Council
      Amendment n° 5 relates to the scope of application of the Directive. It points to an
      enlargement of the Directive's application, by establishing that transfers of an
      amount less than ECU 50.000 are covered.
      This amendment is in keeping with the Commission's fundamental conviction that
      as high a threshold would better serve the objective of creating a fully functioning
      Internal Market for cross-border credit transfer services. Therefore, the
      Commission accepts this amendment.
      Common Position of the Council                    Amendment by Parliament
                                       (Amendment 5)
                                          Article 1
   1.  The provisions of this Directive shall    1.   The provisions of this Directive shall
       apply to cross-border credit transfers         apply to cross-border credit transfers
       ordered by persons other than those            in the currencies of the Member
       covered by Article 2(a), (b) and (c)           States and the ECU up to the
       and executed by credit institutions           equivalent of ECU 50.000 ordered by
       and other institutions.                        persons other than those referred to
                                                      in Article 2(a), (b) and (c) and
                                                     executed by credit institutions and
                                                     other institutions.
       Until two years after the date of         Deleted.
       implementation of this Directive, this
       Directive shall apply to cross-border
       credit transfers in the currencies of
       the Member States and in ECUs of
       amounts less than ECU 25.000. After
       that date, this Directive shall apply to
       cross-border credit transfers in the
       currencies of the Member States and
       in ECUs of amounts less than
       ECU 30.000.
                                                                                          5
 ---pagebreak--- 6. Amendment n° 6 to Article 3 of the Common Position of the Council
   This amendment relates to Article 3 on prior information on conditions for cross-
   border credit transfers.
   While most articles of the Directive refer to obligations falling directly on
   institutions, Article 3 lays down obligations on Member States. Coherently with the
   Commission's initial and amended proposals, the amendment aims to streamline the
   text of the Common Position, by setting out that the transparency requirements of
   Article 3 fall directly on institutions. Therefore, the Commission accepts this
   amendment.
   Common Position of the Council                      Amendment by Parliament
                                    (Amendment 6)
                                 Article 3, introduction
    Member States shall ensure that                The institution shall make available
    institutions make available to their           to their actual and prospective
    actual and prospective customers in            customers in writing, including
    writing, including where appropriate           where appropriate by electronic
    by electronic means, and in a readily          means,      and    in   a    readily
    comprehensible form, information on            comprehensible form, information on
    conditions for cross-border credit             conditions for cross-border credit
    transfers. This information shall              transfers. This information shall
    include at least :                             include at least :
                                                                                     s*
 ---pagebreak--- 7. Amendment n° 7 to Article 4 of the Common Position of the Council
   This amendment relates to Article 4 on information subsequent to a cross-border
   credit transfer
   While most articles of the Directive refer to obligations falling directly on
   institutions, Article 4 lays down obligations on Member States. Coherently with the
   Commission's initial and amended proposals, the amendment aims to streamline the
   text of the Common Position, by setting out that the transparency requirements of
   Article 4 fall directly on institutions. Therefore, the Commission accepts this
   amendment.
    Common Position of the Council                     Amendment by Parliament
                                    (Amendment 7)
                                 Article 4, introduction
    Member States shall ensure that                The institution shall supply their
    institutions supply their customers,           customers, unless the latter expressly
    unless the latter expressly forgo this,        forgo this, subsequent to the execution
    subsequent to the execution or receipt         or receipt of a cross-border credit
    of a cross-border credit transfer, with        transfer, with clear information in
    clear     information     in    writing,       writing, including where appropriate
    including where appropriate by                 by electronic means, and in a readily
    electronic means, and in a readily             comprehensive         form.          This
    comprehensive          form.        This       information shall include at least :
    information shall include at least :
                                                                                          S*
 ---pagebreak--- 8.    Amendment n° 8 to Article 8(1), first sub-paragraph of the Common Position
      of the Council
      Amendment n° 8 relates to Article 8(1) of the Common Position on the refund of
      non-completed cross-border credit transfers.
      It aims to increase the minimum level of the refund to the amount of ECU 20.000,
      thus improving the customer's situation; the increase is however deemed not to
      have a prejudicial effect on solvency requirements. Therefore the Commission
      accepts this amendment.
       Common Position of the Council                      Amendment by Parliament
                                         (Amendment 8)
                         Article 8(1), first subparagraph, introduction
   1.   If, after a cross-border credit transfer 1      If, after a cross-border credit transfer
        order has been accepted by the                  order has been accepted by the
        originator's institution, the relevant          originator's institution, the relevant
        amounts are not credited to the                 amounts are not, for any reason,
        account       of    the    beneficiary's        credited to the account of the
        institution, without prejudice to any           beneficiary's institution, without
        other claim which may be made, the              prejudice to any other claim which
        originator's institution shall credit the       may be made, the originator's
        originator up to ECU 10.000. with               institution shall credit the originator
        the amount of the cross-border credit           up to ECU 20.000. with the amount
        transfer plus :                                 of the cross-border credit transfer
                                                        plus :
                                                                                              >**-
 ---pagebreak--- 9.   Amendment n° 9 to Article 8(2) of the Common Position of the Council
     Amendment n° 9 relates to Article 8(2) of the Common Position on the refund of
     non-completed cross-border credit transfers because of non-execution by an
     intermediary institution chosen by the beneficiary's institution.
     In coherence with amendment n° 8, its aim is to set the minimum level of the
     refund at ECU 20.000. In the absence of this amendment, Article 8(2) would not
     contemplate any explicit limitation on the level of the refund. Therefore, the
     Commission accepts this amendment.
      Common Position of the Council                     Amendment by Parliament
                                       (Amendment 9)
                                         Article 8(2)
  2.  By way of derogation from 2.                    By way of derogation from
      paragraph 1, if the cross-border                paragraph 1, if the cross-border
      credit transfer was not completed               credit transfer was not completed
      because of its non-execution by an              because of its non-execution by an
      intermediary institution chosen by              intermediary institution chosen by
      the beneficiary's institution, the latter       the beneficiary's institution, the latter
      institution shall be obliged to make            institution shall be obliged to make
      the funds corresponding to the                  available to the beneficiary the funds
      amount of the transfer available to             up to ECU 20.000.
      the beneficiary.
                                                                                                15
 ---pagebreak--- 10.  Amendment n° 10 to Article 8(3), second sub-paragraph of the Common
     Position of the Council
     Amendment n° 10 relates to Article 8(3) which deals with situations where the
     inability to successfully execute a transfer is attributable to defective customer
     information or to a mistake by an intermediary institution chosen explicitly by (he
     originator.
     The amendment aims to specify that when the institution succeeds in recovering the
     funds and thereby in refunding the originator, it is not obliged to refund the charges
    and interest accruing and may deduct the costs arising from the recovery if proved.
     Save for the terms "if proved", the amendment is in line with both the text of the
    Common Position and the Commission's thinking, according to which the
    originator's institution should not be held responsible for its customers' mistakes.
    On the other hand, the terms "if proved" would require the institution concerned to
    justify deducting costs for the recovery of funds.
    Therefore, except for and subject to the elimination of the terms "if proved".
    the Commission accepts this amendment.
     Common Position of the Council                     Amendment by Parliament
                                      (Amendment 10)
                             Article 8(3), second subparagraph
      Where the amount has been                      Where the amount has been
      recovered      by    the     originator's      recovered      by    the    originator's
      institution, it shall credit it to the         institution, it shall credit it to the
      originator subject to any deduction of         originator. The institutions are not
      costs arising from the recovery.               obliged in this ease to refund the
                                                     charges and interests accruing, and
                                                     can deduct the costs arising from the
                                                     recovery if proved.
                                                       Text of Parliament's amendment
                                                                   as modified
                                                     Where the amount has been
                                                     recovered      by    the    originator's
                                                     institution, it shall credit it to the
                                                     originator. The institutions are not
                                                     obliged in this case to refund the
                                                     charges and interests accruing, and
                                                     can deduct the costs arising from the
                                                     recovery.
                                                                                           yiH
 ---pagebreak--- 11. Amendment n° 11, introducing a new Article 8(3a) to the Common Position of
    the Council
    Amendment n° 11 aims to lay down explicitly an option for Member States and/or
    institutions to provide for a refund for amounts exceeding the minimum level set
    out in Article 8, paragraphs 1 and 2.
    The Commission is of the opinion that this amendment provides useful clarification
    as to the extent of Member States' and institutions' rights under the Directive.
    Therefore, the Commission accepts this amendment.
     Common Position of the Council                   Amendment by Parliament
                                   (Amendment 11)
                                  Article 8(3 a) (new)
                                               2& Without prejudice to paragraphs 1
                                                    and 2, Member States and/or
                                                    institutions which participate in the
                                                    execution of cross-border transfers
                                                    may provide that refunds be made of
                                                    a non-completed cross-border credit
                                                    transfer, where the amount exceeds
                                                    ECU 20.000.
                                                                                        JÎ
 ---pagebreak--- 12.   Amendment n° 12 to Article 10 of the Common Position of the Council
      This amendment aims to better qualify the scope of Member States' responsibility
      to ensure that adequate and appropriate procedures exist to deal with customers'
      complaints relating to the areas covered by the Directive. On the other hand, the
      Commission is of the opinion that drafting adjustments to the text of the
      amendment may be necessary, to ensure consistency with the terminology of the
      Common Position. The amendment may be redrafted as indicated below:
      Therefore, subject to such modification, the Commission accepts this amendment.
       Common Position of the Council                  Amendment by Parliament
                                     (Amendment 12)
                                        Article 10
 Member States shall ensure that there are      L   Member States shall ensure that there
 adequate and effective means for the               are adequate and appropriate
 settlement of possible disputes between an         complaints and redress procedures
 originator and his institution or between a        relating to the areas covered by this
 beneficiary and his institution.                   Directive available to afford the
                                                    customer better protection, using
                                                    existing procedures where available.
                                                      Text of Parliament's amendment
                                                                  as modified
                                                    "Member States shall ensure that
                                                    there are adequate and effective
                                                    means for the settlement of disputes
                                                    between a customer and ils
                                                    institution, using existing procedures
                                                    where appropriate."
                                                                                       yfé
 ---pagebreak--- 14. Amendment n° 14 relating to Article 11, first sub-paragraph of the Common
    Position of the Council
    Amendment n° 14 aims to reduce the deadline for implementation of the Directive
    to 18 months alter the date the Directive enters into force.
    This amendment is in keeping with the Commission's objective of ensuring that the
    Directive is implemented within a reasonably short time. Therefore, the
    Commission accepts this amendment.
     Common Position of the Council                    Amendment by Parliament
                                       (Amendment 14)
                               Article 11(1), first subparagraph
      Member States shall bring into force           Member States shall bring into force
      the     laws,     regulations      and         the      laws,     regulations      and
     administrative provisions necessary             administrative provisions necessary
      to comply with this Directive by ...*          to comply with this Directive by ...*
      at the latest. They shall forthwith            at the latest. They shall forthwith
      inform the Commission thereof.                 inform the Commission thereof.
      *   Thirty months after the date this          *   Eighteen months after the date
          Directive enters into force.                   this Directive enters into force.
                                                                                        ^
 ---pagebreak---                                                                     ISSN 0254-1475
                                                             COM(96) 172 final
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