CELEX: 51988PC0004
Language: en
Date: 1988-01-04
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE concerning the reorganization and the winding-up of credit institutions and deposit-guarantee schemes presented by the Commission to the Council pursuant to the 3 paragraph of Article 149 of the Treaty

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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                   COM(88 ) 4 final
                                           Brussels , 4 january 1988
              AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE
          concerning the reorganization and the winding-up
        of credit institutions and deposit-guarantee schemes
             presented by the Commission to the Council
   pursuant to the   ^     paragraph of Article 149 of the Treaty
 ---pagebreak---                                               ■- 1
               Amended proposal for a Council Directive concerning the
              reorganization and the winding-up of credit institutions
                              and deposit-guarantee schemes
EXPLANATORY MEMORANDUM
I. PROCEDURAL BACKGROUND
1 . On 19 December 1985 , the Commission aopted a proposal for a Directive on
     the reorganization and the winding-up of credit institutions , ( 1 ) which
     included a Title IV relating to deposit-guarantee schemes . Those provisions
     were supplemented on 22 December 1986 by a Commission Recommendation
     concerning the        introduction of deposit-guarantee schemes          in the
     Community ( 2 ) . On 9 January 1986, the proposal for a Directive was
     transmitted to the Council , which decided on 24 January 1986 to consult
     Parliament and the Economic and Social Committee .
2 . The Economic and Social Committee unanimously adopted an opinion(3 ) on the
     Commission proposal at its 238th plenary session held in Brussels on 2 July
     1986 .
     Parliament adopted the resolution closing the procedure for consultation of
     the European Parliament at its plenary sitting on Friday 13 March 1987(4 ).
3 . The present amended proposal has been drawn up to take account of the
     results   of     the consultations      with  these two institutions and  of the
     accession of two new Member States .
( 1 ) OJ No C  356 , 31.12.1985 ,  P-   55 .
( 2 ) OJ No L  33 , 4.2.1987, p.   16 .
( 3 ) OJ No C  263 , 20.10.1986,   P·   13 .
( 4 ) OJ No C  99, 13.4.1987, p.. 211 .
                                                                                      1
 ---pagebreak---                                        - 2 -
In its resolution . Parliament recognized that "a directive of this nature
would certainly constitute progress , albeit modest , in the development of a
common market for credit within which there would be greater protection for
savers and they could have greater confidence in the banking system ".
The Economic and Social Committee ,     whose opinion was delivered before the
Commission Recommendation concerning deposit-guarantee schemes was adopted ,
mainly criticized the Article of the Directive which            dealt with that
question ; it requested the deletion of a paragraph ( Article 16(2 )). Parliament
commented on this matter by emphasizing that " such a Directive will not be
viable unless the Member States comply by 1 January 1990 with the Commission 's
recommendat i on " .
In order to underline the importance of this question , one proposed amendment
is that the very title of the proposal be supplemented by specific reference
to deposit-guarantee schemes .
The Commission ,     which is well aware of the link between reorganization or
winding-up procedures and schemes for protecting depositors , has therefore
incorporated a fuller title into its new proposal in accordance with
Parliament 's resolution .
II . COMMENTS ON THE AMENDMENTS
Parliament has suggested that two recitals be added :     the first referring to
the Convention on bankruptcy , winding-up , arrangements , compositions and
similar proceedings and the second to the Commission Recommendation of 22
December 1986 .      These two amendments proposed by Parliament have been
incorporated into the amended proposal in full ( tenth and eighteenth
recitals ) .
 ---pagebreak---                                           - 3 -
TITLE 1 - Article 1
The amended proposed by Parliament clearly states that the provisions of the
Directive are applicable to branches set up in Member States other than that
in which the credit institution has its head office . While this was already
covered in the Directive , it was not specifically stated in the previous
version .
Article 2
The first amendment to this Article proposed by Parliament echoes the Economic
and Social Committee 's comment that reference should be made in paragraph 1 to
the " competent authorities ", as defined in the Directive , responsible for
taking the measures set out in the annexed list . This addition has been
incorporated in the form proposed by the Economic and Social Committee .
In addition to this formal amendment . Parliament has proposed three amendments
to Article 2 which have been incorporated in full in the amended proposal :
(i )   the first amendment consists in deleting the positive criteria which the
       Commission    had  felt     it  should   include in  order   to  define  the
       reorganization measures .
       Parliament considers that these criteria duplicate the negative criteria
       in points ( a ) and ( b ) of paragraph 2 and are therefore superfluous .
       The nature of the measures listed in the annex ,     which in most cases are
       not specific to reorganization situations ,      required that the cases in
       which such measures could not be considered to be reorganization
       measures should at least be specified ( this has not been amended ); the
       details in paragrph 1 were useful but not essential and they can
       therefore easily be deleted from the earlier version .
                                                                                    S
 ---pagebreak---                                            - 5 -
Artide 9
Both Parliament and the Economic and Social Committee have pointed out that
paragraph 2 of this Article should specify that a Member State may request an
amendment or addition to the annexed list only in respect of measures enacted
in that Member State . In the Commission 's view, this amendment is of a purely
formal nature , since it is highly unlikely that a Member State would notify a
measure unrelated to its own legal system . Furthermore , a Council decision of
13 July 1987,        thus after the Parliament 's resolution , layed down "the
procedures for the exercise of implementing powers conferred on the
Commission"(5 ).
The text of the Council 's decision has been replaced by the text figuring in
the Commission 's proposal .
Article 11
The reference to the Convention in paragraph 2 has been switched to a new
" recital " ( amended tenth recital ).
Parliament and the Economic and Social Committee have rightly pointed out that
the exclusive competence of the administrative authorities or winding-up
agencies of the home country should be confirmed , because , if that stipulation
did not appear in this Article , some Member States might challenge the
principle of the unity of bankruptcy .
Article 14
In accordance with the amendment proposed by Parliament , a new paragraph 3
relating to the public announcement of the winding-up procedure has been
incorporated in Article 14, which already contains substantive legal rules
specifically applicable to credit institutions .
( 5 ) Decision 87 / 373 / EEC - OJ Nr L 197 of 18.7.1987, p. 33
 ---pagebreak--- ( ii )  The second amendment , which should be taken together with the amendments
        proposed for Articles 3, 11 and 14 , is intended to incorporate in this
        Directive certain winding-up procedures which would normally be covered
        by the bankruptcy Convention and therefore provided for an Annex II ,
        modelled on the protocol annexed to that Convention ,         listing the
        winding-up procedures applicable to credit institutions .
        This new provision is therefore justified by the addition of Annex II
        shown in the amended proposal .
( iii ) The purpose of the third amendment is to define what is meant by a
        deposit-guarantee scheme in the Directive .
        On   the  basis    of  the   definition  contained   in   the   Commission
        Recommendation , Parliament has suggested a broad definition which would
        enable certain systems which operate on a basis other than that of
        compensation to be regarded as deposit-guarantee schemes .
Article 3
As indicated above ,    this addition stems from the new approach adopted in this
Directive towards winding-up procedures .
TITLE II
Articles 4, 5 , 6 and 7, which lay down the main rules governing mutual
recognition of reorganization decisions and cooperation between competent
authorities , have been the subject of requests for amendments from the
Economic and Social Committee ( Article 4 ) and Parliament ( Articles 5 , 6 and
7 ). These amendments cannot be incorporated in the amended proposal without
upsetting the whole structure of the system chosen .
In Article 7, however , a drafting amendment has been made by including
reference to the rights of shareholders , since the question of whether they
are " creditors " may lead to controversy .
 ---pagebreak---                                       - 6 -
TITLE III . ADJUSTMENT OF THIS TITLE TO CHANGES IN NATIONAL LEGISLATION
Article 16
As the new point C added to Title III indicates , a new article has been added
at the end of this Title relating to winding-up to take account of the
insertion of an Annex II listing national winding-up procedures .
It was considered necessary to provide for the rapid amendment of this list of
procedures to take account of changes in national legislation . This updating
task has been entrusted to the Commission , which will be required to publish
the updated list in the Official Journal .
Annex I
The title of this Annex has been amended to bring it into line with that of
the amended proposal for a directive .
The Belgian measures relating to the Savings Banks of the General Savings and
Pensions Fund have been updated .
The reorganization measures in Spain and Portugal have been incorporated .
Annex II                                                ,
List of winding-up procedures provided for in Article 2(3 ) of the proposal for
a Directive on the coordination of laws , regulations and administrative
provisions relating to the reorganization and the winding-up of credit
institutions and deposit-guarantee schemes .
This Annex , which is fuller and more detailed that the list in the Protocol to
the draft Convention on bankruptcy , winding-up , arrangements , compositions and
similar proceedings , which Parliament suggested should be used as a basis , has
been drawn nn with the help of the Member States , which were requested to
reply to a questionnai ra sent out by tlie Commission .
                                                                              1-
 ---pagebreak---                        Modified proposal for a Council Directive on the
                   reorganization and winding-up of credit institutions and
                                   deposit guarantee schemes
          Original proposai                                     Modified proposai
Council Directive on the coordination               Council Directive on the coordination
of laws , regulations and administrative            of laws , regulations and administrative
provisions relating to the reorganization           provisions relating to the reorganization
and the winding-up of credit institutions           and the winding-up of credit institutions
                                                    and deposit-guarantee schemes
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing            Visas unchanged
the European Economic Community , and , in
particular Article 57 , paragraph 2 , third
sentence thereof ,
Having regard to the proposal from the
Commission ,
In cooperation with the European
Parliament ,
Having regard to the opinion of the
Economic and Social Committee ,
Whereas , in accordance with the                    First nine recitals unchanged
objectives of the Treaty , the harmonious
development of economic activities
throughout the Community should be
promoted through the elimination of
any restrictions on freedom of establish¬
ment and the freedom to provide services
within the Community ;
                                                                                          8
 ---pagebreak---                                             - 2 -
          Original proposai                       Modified proposai
Whereas , at the same time as those
restrictions are eliminated , consideration
should be given to the situation which
might arise if a credit institution runs
into difficulties , particularly where
that institution has branches in other
Member States ;
Whereas the existing structure of the
credit sector , where the taking up and
pursuit of business are subject to super¬
vision by the authorities in all the
Member States of the Community , justifies
the provision of specific measures in
respect of the reorganization and winding
up of credit institutions ;
Whereas there is a tendency in the laws
and practices in force in the Member
States to institute reorganization
procedures , aimed at preventing credit
institutions from becoming insolvent ,
as soon as financial difficulties become
apparent , so as to maintain savers'
confidence in the banking system;
Whereas it would be very difficult to
attempt to unify those laws and practices
without first securing mutual recognition
by the Member States of the achievements
of each in resolving the financial
difficulties of its own credit
institutions ;
 ---pagebreak---                                              - 3 -
          Original proposai                        Modified proposai
Whereas implementation of reorganization
measures in respect of a credit institution
operating in several Member States should
be entrusted to the competent authorities
of one Member State , namely that in which
the credit institution has its head office ;
whereas those authorities must be empowered
to enforce their own laws outside their
national territory in consultation , as
appropriate , with the competent authorities
of the other Member States concerned ;
Whereas reorganization cannot be achieved
unless all the legal obstacles which
might prevent the reorganization measures
taken by the authorities of the home
country from being effective against
branches are eliminated ;
Whereas it is desirable , and sometimes
necessary , to notify creditors and share¬
holders of the implementation of certain
reorganization measures in countries
where branches are situated , particular¬
ly when such measures could hinder them
from exercising certain of their rights ;
Whereas it is essential to provide for a
procedure to enable the Directive to be
swiftly adjusted to changes in national
rules on reorganization measures , which
must continue to evolve at national level
 ---pagebreak---                                                * 4 ®
           Original proposai                                     Modified proposai
in the light of experience ; whereas it is
desirable to extend the responsibilities
of the Advisory Committee set up under
Council Directive 77 / 780 / EEC ( 1 ) to this
end , by empowering it to give an opinion
on whether such changes should be adopted
or rejected at Community level ;
Whereas in the absence of reorganization             Whereas in the absence of reorganization
measures , or in the event of such measures          measures , or in the event of such measures
failing , the credit institutions in                 failing , the credit institutions in
difficulty must be wound up ; whereas                difficulty must be wound up ; whereas
certain provisions should be made in such            pending the conclusion , on the basis of
cases for coordinating the banking super¬            Article 220 of the EEC Treaty , of a
visory authorities' role in applying the             Convention on bankruptcy , winding-up
winding-up measures ;                                arrangements , compositions and similar
                                                     proceedings , it is necessary to coordinate
                                                     the main provisions applicable when a
                                                     credit institution is wound up ; whereas
                                                     certain provisions should be made in such
                                                     cases for coordinating the banking super ¬
                                                     visory authorities' role in applying the
                                                     winding-up measures ;
Whereas the important role played by the             11th to 17th récitals unchanged
competent authorities in implementing
reorganization measures before winding-
up commences must continue after
winding-up has commenced so that the
winding-up operations may be properly
carried out ;
( 1 ) 0J No L 322, 17.12.1977, p. 30 .
                                                                                           U
 ---pagebreak---                                          - 5 -
          Original proposai                    Modified proposai
Whereas withdrawal of authorization to
pursue the business of banking must be
one of the necessary effects of winding-
up credit institutions ; whereas the
competent authorities may, however ,
maintain such authorization in certain
exceptional cases in order to facilitate
the winding-up operations ;
Whereas it is acknowledged that , while
it is pursuing its business , a credit
institution and its branches form a
single entity whose liquidity position
and solvency are subject to supervision
by the competent authorities of the
home country ; whereas it would be
inexpedient to abandon this rule at
a time when a credit institution is
being wound up ;
Whereas equal treatment of creditors
can be guaranteed only in so far as
the credit institution is wound up
according to the principles of unity
and universality , which require that
the administrative authorities and
courts of a single State have juris¬
diction , that the home country 's law
on winding-up be applied and that
that law be effective outside the
territory of the State concerned ;
Whereas , however , winding-up must be
governed by particular rules when an
institution is solvent ; whereas
voluntary winding-up according to the
statutory provisions presupposes such
                                                                 n
 ---pagebreak---                                              - Ó "
          Original proposai                                   Modified proposai
solvency; whereas provision should be
made for the competent authorities to
be empowered to ensure that the institu¬
tion is solvent throughout the winding-
up period ;                                                                              j
Whereas it should be made possible , by
means of certain adjustments , for the
competent authorities' role to be co¬
ordinated also in respect of branches
of credit institutions whose head office
is outside the Community ;
Whereas depositors' interests in the
event of an insolvent credit institution
being wound up must be safeguarded by
the guarantee schemes existing in the                                                       '
European Community , without discrimina¬
tion in a given territory between branches
of national or Community credit institutions
and also without discrimination in a given
institution between deposits made in the
State where the head office is situated
and those made in branches set up in other
States , where no deposit-guarantee scheme
exists in those States ;
                                                   Whereas introduction of a deposit -
                                                   guarantee scheme should be coordinated at
                                                   a later stage , by means of a directive , in
                                                   the light of the experience gained during
                                                   implementation of the provisions contained
                                                   in the Commission 's recommendation of 22
                                                                                             O
 ---pagebreak---                                           - 7 -
          Original proposai                                  Modified proposai
                                                December 1986 concerning the introduction
                                                of deposit-guarantee schemes in the
                                                Community ( 87 / 63 / EEC ) published in OJ No
                                                L 33 , 4.2.1987 ;
HAS ADOPTED THIS DIRECTIVE :
                  TITLE I                                    TITLE I
          Scope and definitions                      Scope and definitions
                  Article 1                                  Article 1
1 . This Directive shall apply to credit        1 . This Directive shall apply to credit
institutions and their branches as              institutions and their branches set up in
defined in the first and third indents          in a Member State other than that in
of Article 1 of Directive 77/ 780 / EEC ,       which they have their head office , as
due regard being had to the conditions          defined in the first and third indents of
and exemptions laid down in Article 2 of        Article 1 of Directive 77 / 780 / EEC , due
that Directive .                                regard being had to the conditions and
                                                exemptions laid down in Article 2 of that
                                                Di rective .
2 . The provisions of this Directive            Unchanged
concerning the branches of a credit
institution whose head office is outside
the Community shall apply only where that
institution has branches in at least two
Member States of the Community .
                                                                                           44
 ---pagebreak---                                                 - 8 -
             Original proposai                                    Modified proposal
             Article 2                                            Article 2
1 . For the purposes of this Directive ,                      th purposes of this Directive ,
                                                      1 . For the
'reorganization measures' means measures              'reorgani
                                                      'reorganization  measures' means the
which are intended to safeguard or restore            measures included in the list set out
the financial situation of a credit                   in Annex I in so far as they a re intended
institution and which satisfy the following               safegu
                                                      to safeguard  or restore the financial
conditions :                                          situation of a credit institution .
( a ) they are included in the list set out
      in the Annex of this Directive ;
( b ) they are designed to avoid the opening
      of a winding-up procedure ;
( c ) they were decided on before any
      declaration that the credit institution
      was insolvent .
2 . The following shall not be considered             Unchanged
to be reorganization measures , even if they
are included in the list set out in the
Annex .
( a ) measures taken as part of the normal
      supervision of credit institution as
      defined in Article 7 of Directive
      77 / 780 / EEC , and measures intended to
      deal with infringements of laws or
      regulations ;
( b ) measures taken in connection with
      bankruptcy proceedings , an arrangement
      or any other winding-up procedure
      already initiated .
                                                     3 . For the purposes of this Directive ,
                                                      'winding-up procedures' means the pro-
                                                     cedures listed in Annex II .
                                                                                              Аь
 ---pagebreak---                                              - - 9 -
          Original proposai                                      Modified proposai
                                                     4 . For the purposes of this Directive ,
                                                     'deposit-guarantee schemes' means all
                                                     provisions designed to guarantee appro¬
                                                     priate compensation for depositors or to
                                                     protect them against any loss .
3 . The measures referred to in paragraph            5 . The measures referred to in paragraph
1 and the authorities responsible for                1 and the winding-up procedures referred
implementing them shall be determined                to in paragraph 3 as well as the auto-
by the laws and regulations set out in               rities responsible for implementing
the Annex .                                          them shall be determined by laws and
                                                     regulations set out in Annex I and II .
          Article 3                                              Article 3
For the purposes of this Directive :                 For the purposes of this Directive :
- ^'home country' means the Member State             - Unchanged
   in which a credit institution has its
   head office ,
- 'host country' means any Member State -            - Unchanged
   other than that defined as being the
   home country - in which a credit
   institution has set up a branch within
   the meaning of the third indent of
   Article 1 of Directive 77 / 780 / EEC ,
- 'competent authorities' means the                  - 'competent authorities' means the
   authorities empowered to grant and                   authorities empowered to grant and
   withdraw authorization and / or supervise            and withdraw authorization and / or super ¬
   the activities of credit institutions                vise the activities of credit
   pursuant to Articles 3, 4, 6, 7 and 8                institutions pursuant to Articles 3,
   of Directive 77 / 780 / EEC and any other            4, 6, 7 and 8 of Directive 77/ 780/ EEC
                                                                                            4L
 ---pagebreak---                                            10 -
          Original proposal                               Modified proposal
   authority listed in the Annex to this        and any other authority listed in the
   Directive as being responsible for           Annex to this Directive as being
   implementing the reorganization              responsible for implementing the
   measures .                                   reorganization measures or winding-up
                                                procedures .
          TITLE II                                        TITLE II
     Reorganization measures                        Reorganization measures
A. Credit institutions having their head      A. Credit institutions having their head
office within the Community                   office within the Community             '
          Article A                                       Article A
1 . The authorities or courts of the home     Unchanged
country shall be empowered to decide , in
accordance with the rules , procedures and
practices in force in their territory , on
the implementation of one or more re¬
organization measures in a credit institu-
tion and its branches .                                 *
2 . The reorganization measures decided on
by the competent authorities or court in
the home country shall be fully effective
as against the governing bodies and
creditors of branches situated in the
other Member States , even where the rules
of the host country applicable to them do
not make provision for such measures or
make their implementation subject to
conditions which are not fulfilled .
                                                                                   4?
 ---pagebreak---                                             irt 10 ~
           Original proposal                                  Modified proposal
    authority listed in the Annex to this            and any other authority listed In
    Directive as being responsible for               Annex I and II to this Directive as
• implementing the reorganization                    being responsible for implementing the ^
    measures .                                       reorganization measures or winding-up
                                                     procedures .
           TITLE II                                           TITLE II
      Reorganization measures                            Reorganization measures
 A. Credit institutions having their head          A. Credit institutions having their head
office within the Community                        office within the Community
           Article 4                                          Article 4
 1 . The authorities or courts of the home         Unchanged
country shall be empowered to decide , in
accordance with the rules , procedures and
practices in force in their territory , on
the implementation of one or more re¬
organization measures in a credit institu¬
tion and its branches .
 2 . The reorganization measures decided on
by the competent authorities or court in
 the home country shall be fully effective
 as against the governing bodies and
 creditors of branches situated in the
other Member States , even where the rules
of the host country applicable to them do
 not make provision for such measures or
 make their implementation subject to
 conditions which are not fulfilled .
 ---pagebreak---                                             11
          Original proposai                              Moditiod proposai
3 . Decisions taken by the competent           Unchanged
authorities or court in the home country
to apply one or more reorganization
measures shall preclude the application
or maintenance by the competent autho¬
rities or court in the host country of
any reorganization measure within the
meaning of Article 2 , unless a decision
to the contrary is taken by the competent
authorities of the home country .
          Article 5                                      Article 5
The competent authorities of the home          Unchanged
country shall , before adopting any
reorganization measure , inform , by any
available means , the competent authorities
of the host country , of their intention
and consult them on the effects of such a
measure in the host country , unless the
measure concerned is clearly not likely
to have any significant effect on a
branch situated in another Member State .
          Article 6                                      Article 6
Where the competent authorities of the host    Unchanged
country deem it necessary to implement in
their territory one or more reorganization
measures within the meaning of Article 2 ,
they shall inform the competent authorities
of the home country accordingly .
 ---pagebreak---                                               12
          Original proposai                                  Modified proposai
Where , upon receipt of such information ,
the competent authorities of the home
country consider that the difficulties
encountered by the branch are not such
as to justify the application of Article
4(1 ) and ( 2 ), they shall so inform the
authorities of the host country , which
may decide to apply one or more re¬
organization measures in their territory .
          Article 7                                          Article 7
1 . Where implementation of the reorganiza-      1 . Where implementation of the reorganiza
tion measures decided on pursuant to             tion measures decided on pursuant to
Article 4(1 ) and ( 2 ) directly affects the     Article 4(1 ) and ( 2 ) is likely directly
rights of creditors established in a host        to affect the rights of any creditors
country and where an appeal is possible in       including shareholders established in a
the home country against the decision            host country and where an appeal is
ordering the measure , the competent autho-      possible in the home country against the
rities of the home country may , should          decision ordering the measure , the compe-
they deem it necessary , publish at the          tent authorities of the home country may ,
expense of the credit institution an             should they deem it necessary , publish at
extract from their decision in the Offical       the expense of the credit institution an
Journal of the European Communities and          extract from their decision in the
in two nationally distributed newspapers         Official Journal of the European Commu-
in each host country .                           nities and in two nationally distributed
                                                 newspapers in each host country .
2 . The competent authorities of the home        Unchanged
country may , should they deem it expedient ,
notify the measure directly and individual ¬
ly to creditors resident in the Community
whose rights are affected .
                                                                                          O
                                                                                          Λ/0
 ---pagebreak---                                              - 13 -
          Original proposai                                  Modified proposai
3 . The extract from the decision to be           Unchanged
published or the notification shall
specify, in the national language or
languages of the States concerned , the
purpose and legal basis of the decision
taken , the time limits for lodging an
appeal and the full address of the
authorities or court competent to examine
an appeal .
A. The reorganization measures shall              Unchanged
apply irrespective of the publicity
measures prescribed in paragraphs 1 to 3
and shall be fully effective as against
creditors , unless the competent authorities
of the home country or the law of that
country governing the measures provide
otherwise .
5 . Except in the case of individual              Unchanged
notification , the time for lodging an
appeal shall run from publication in the
Official Journal of the European
Communities .
B. Credit institutions having their head          B. Credit institutions having their head
office outside the Community                      head office outside the Community
          ARTICLE 8                                          Article 8
1 . Pending subséquent coordination of            Unchanged
laws , regulations and administrative
provisions applying to the branches of
credit institutions having their head
office outside the Community, the
authorities and courts of the host country
 ---pagebreak---                                             14 -
          Original proposai                              Modified proposai
shall retain the right to implement re¬
organization measures in accordance with
the rules , procedures and practices in
force in their territory , unless provision
is made to the contrary in agreements
concluded with the home country , in
accordance with the Treaty , on the
basis of the principle of reciprocity .
2 . However , the competent authority of       Unchanged
the host country of a branch of a credit
institution having its head office out ¬
side the Community which deems it
necessary to implement one or more re ¬
organization measures within the meaning
of Article 2 shall , before adopting such
measures , so inform , by all available
means , the competent authorities of
the other host countries in which the
institution has set up branches included
in the list mentioned in Article 3(7 ) of
Directive 77 / 780 / EEC and published each
year in the Official Journal of the
European Communities .
3 . In cases of extreme urgency , the          Unchanged
information referred to in paragraph 2
may be replaced by notification of the
measure , which must be made without
delay to the competent authorities of
the host country .
4 . The competent authorities of another       Unchanged
host country may decide , save where the
agreements referred to in paragraph 1
 ---pagebreak---                                                     15 -
                     Original proposai                             Hodified proposai
I
J are applicable, that the reorganization
| measures of which they are informed,
j through the procedure referred to in
| paragraph 2 or the notification referred
j to in paragraph 3, shall take effect as
'( against the governing bodies and creditors
| of branches situated in that host country,
t          even if the rules applicable to them, by
1
! , virtue of paragraph 1 , do not provide for
I \ such measures or make their implementation
 ! subject to conditions which are not
           fulfilled .
 |
 J 5 . The publicity measures entrusted under          Unchanged
 ; Article 7(1 ) and ( 2 ) to the competent
 1 authorities of the home country shall ,
           in the event of application of the pro­
 \
           visions of paragraph 4 of this Article ,
  I
           be entrusted to the competent authority
          of the host country referred to in
  ! paragraph 2 .
   I
  |I i'
   j C. Adjustment of the Directive to changes         C. Adjustment of this Title to changes in
   I
          ;in national législation                     national legislation
   , I
    |               Article 9                                      Article 9
    j 1 . The list of reorganization measures          1 . The list of reorganization measures
           given in the Annex shall be amended or      given in Annex I shall be amended or
     | supplemented in accordance with the             supplemented in accordance with the
     • procedure laid down in this Article .           procedure laid down in this Article .
     i
      i
      1
      I
      !
                                                                                               B
        I
 ---pagebreak---                                               16 -
          Original proposai                                   Modified proposai
2 . If a Member State wishes to make             2 . If a Member State wishes to make
amendments or additions to the annexed           amendments or additions in annex I ,
list , it shall notify the proposed measure      in accordance with its own legislation ,
to the Commission , stating whether or not       it shall notify the draft of the proposed
it involves provisions that may affect the       measure to the Commission .
rights of creditors .
3 . A Commission representative shall ask        3 . The Commission shall be assisted by a
the Chairman of the Banking Advisory             committee composed of the representatives
Committee set up by Directive 77/ 780 / EEC ,    of the Member States and chaired by the
hereinafter referred to as the Committee ,       representatives of the Commission .
to refer the proposed measure to the             The representative of the Commission shall
Committee , asking the Committee to hold         submit to the committee a draft of the
an emergency meeting if he considers that        measures to be taken . The committee shall
the situation so requires .                      deliver its opinion on the draft within a
                                                 time limit which the chairman may lay down
                                                 according to the urgency of the matter .
4 . The Committee shall deliver its              4 . The opinion shall be delivered by the
opinion on the measure by a qualified            majority laid down in Article 148(2 ) of
majority of two-thirds of the votes ; if ,       the Treaty in the case of decisions which
however , the proposed amendment concerns        the Council is required to adopt on a pro¬
a measure that may affect the rights of          posal from the Commission . The votes of
creditors , the Committee shall deliver          the representatives of the Member States
its opinion unanimously .                        within the committee shall be weighted in
                                                 the manner set out in that article . The
                                                 Chairman shall not vote .
5 . Where the Committee delivers a favourable    5 . The Commission shall adopt the measures
opinion on the amendment to the list , the       envisaged if they are in accordance with
Commission shall adopt the measure proposed .    the opinion of the committee .
6 . Where the Committee does not deliver         6 . If the measures envisaged are not in
such an opinion , the Commission shall           accordance with the opinion of the
without delay present to the Council ,           committee , or if no opinion is delivered ,
which shall act by a qualified majority,         the Commission shall , without delay ,
» proposal on the measure to be adopted .        submit to the Council a proposal relating
                                                 to the measures to be taken . The Council
                                                 shall act by a qualified majority .
 ---pagebreak---                                                        - 17 -
                    Original proposai                                 . Modified proposai
         If the Council has not acted within six            If , on the expiry of a period to be laid
         months of such referral , the proposed             down in each act to be adopted by the
         measure shall be adopted by the                    Council under this paragraph but which in
         Commission .                                       no case may exceed three months from the
                                                            date of referral to the Council , the
                                                            Council has not acted , the proposed
                                                            measures shall be adopted by the Commis-
                                                            sion .
         This provision shall not apply where the
         measure may affect the rights of creditors ,
v
         In . that case , the Commission shall present
         to the Council a proposal for a Directive
         in the manner prescribed in Article 149 of             " ‘'
         the Treaty .
 v 7 . The Member States may adopt the proposed             Unchanged
 j measure without awaiting the decisions of
  j the Committee and of the Council ; however,
  1 decisions taken pursuant to the measure
  f shall not be covered by the provisions of
   j this Directive, and in particular Article
   • 4(2 ) and ( 3 ).
                    Article 10                                          Article 10
         Each Member State shall ensure that there          Unchanged
    j are no legal impediments preventing any
    j reorganization measures that may be
     I decided on , in accordance with Article 4,
      I by the competent authorities or court of
      j the home country from being rendered
      j applicable to branches which credit
         institutions , having their head office
         in another Member State , have set up in
         its territory; it shall consequently
       ■ adopt , with due regard to the general
         principles of its own system , the laws .
       ί
        'regulations and administrative provi ¬
         sions necessary to this effect .
                                                                                                   I
 ---pagebreak---                                              - 18 -
          Original proposai                                   Modified proposai
          TITLE III                                           TITLE III
          Winding-up                                          Winding-up
A. Credit institutions having their head          A. Credit institutions having their head
office within the Community                       office within the Community
          Article 11                                          Article 11
1 . The competent authorities of the home         Unchanged
country shall be consulted on any
application from creditors , the debtor or
the representative of the State for a
compulsory winding-up procedure to be
opened .
2 . The business of the credit institution        2 . The business of the credit institution
shall be wound up in accordance with the          shall be wound up in accordance with the
law of the home country in so far as this         law of the home country in so far as this
Directive and the Convention on bankruptcy ,      Directive does not provide otherwise .
winding-up , arrangements , compositions and
similar proceedings do not provide
otherwise .
3 . Decisions on the winding-up of a credit       3 . Decisions on the winding-up of a credit
institution taken by the administrative           institution taken by the administrative
authorities or courts , or winding-up             authorities or courts , or winding-up
agencies , shall also be fully effective          agencies of the home country shall also be
against the credit institution 's branches        fully effective against the credit insti ¬
situated in other Member States and shall         tution 's branches situated in other Member
preclude the opening of any other winding-        States and shall preclude the opening of
up procedure in respect of them , subject         any other winding-up procedure in respect
to the provisions of Article 12(2 ).              of them , subject to the provisions of
                                                  Article 12(2 ).
 ---pagebreak---                                            - 19 -
          Original proposai                               Modified proposai
          Article 12                                      Article 12
1 . The competent authorities of the home       Unchanged
country shall be consulted prior to any
voluntary winding-up decision taken by
the governing bodies of a credit
institution .
2 . The voluntary winding-up of a credit
institution shall not preclude the
opening , at the request of the competent
authorities of the home country , of a
procedure for administrative or compul ¬
sory winding-up , if the governing bodies
do not carry out such winding-up in a
satisfactory manner , or there is good
reason to believe that the institution
is not in a position to fulfil its
obligations to its creditors .
          Article 13                                      Article 13
1 . Where a winding-up procedure is             Unchanged
c-jened in respect of a credit institution
in the absence or following the failure
of reorganization measures , the competent
authorities of the home country shall
withdraw the authorization of the
institution in accordance with the
procedure provided for in Article 8 of
Directive 77 / 78780 / EEC .
2 . However , exceptionally, the with¬
drawal of authorization shall not prevent
the person or persons entrusted with
the winding-up from carrying on some
of the activities of the credit insti ¬
tution with the consent and under the
 ---pagebreak---                                            - 20 -
          Original proposai                               Modified proposai
supervision of the competent authorities
of the home country, in so far as this
is necessary for the purposes of the
winding-up . This provision shall be
applicable in the host country only
if the law on the withdrawal of banking
authorization does not provide
otherwise .
3 . In the event of voluntary winding-up ,
the authorization provided for in
Article 3 of Directive 77 / 780 / EEC may
be maintained until completion of the
winding-up operations provided the
institution continues to satisfy the
conditions of the authorization .
          Article 14                                      Article 14
1 . Winding-up shall be carried out under       Unchanged
the supervision of the competent
authorities of the home country in
collaboration with the competent
authorities of the host country .
2 . Liquidators shall be entitled to
exercise in the territory of all the
Member States all the powers which
they are entitled to exercise in the
territory of the Member State in which
the winding-up procedure is opened .
However , even if the law of the Member
State in which the winding-up procedure is
opened does not provide for the possibi ¬
lity of more than one liquidator being
appointed , the competent authorities
of a host country may, if they deem it
necessary , request the appointment of a
 liquidator from among the persons exerci-
                                                                            18
 ---pagebreak---                                             - 21
          Original proposai                                  Modified proposai
sing the functions of liquidator in their
territory ; similarly , where the law of
the Member State in which the winding-up
procedure is opened permits the delegation
of certain powers to other persons , such
persons shall , at the request of the
competent authorities of the host country
be chosen from among the persons able to
exercise the functions of liquidator in
that country .
                                                 3 . The winding-up procedure shall be
                                                 announced at the request of the liquidator
                                                 or liquidators , through publication of an
                                                 extract from the winding-up decision in
                                                 the Official Journal of the European
                                                 Communities and two national newspapers
                                                 in each of the host countries .
B. Credit institutions having their head         B. Credit institutions having their head
office outside the Community                     office outside the Community
          Article 15                                         Article 15
1 . Where the law of the host country            Unchanged
provides  for the possibility of winding-up
a branch  of a credit institution having
its head  office outside the Community ,
such winding-up shall be decided on by
the competent authorities of the host
country .
2 . The competent authorities of the host
country referred to in paragraph 1 shall
withdraw the authorization of the branch
if the branch was granted a separate
authorization in accordance with Article
4(4 ) of Directive 77 / 780 / EEC .
                                                                                       25
 ---pagebreak---             Original proposai                         Modi f ied proposai
3 . The competent authorities referred to
in paragraphs 1 and 2 shall inform the
competent authorities of the other host
countries that authorization has been
withdrawn and a winding-up procedure
opened .
4 . The competent authorities of the host
counties other than the host country
referred to in paragraphs 1 and 2 may
decide to withdraw any separate autho¬
rization granted to the branch set up
in their territory .
5 . Exceptionally , the withdrawal of
authorization shall not prevent the
person or persons entrusted with the
winding-up from carrying on certain of
the activities of the branch with the
consent of the competent authorities
and / or under the supervision of the
competent courts , in so far as the
law of the host country so permits .
6 . Withdrawal of authorization shall not
bring to an end the supervision of the
activities of a branch by the competent
authorities of the host country .
                                          C. Adjustment of this Title to changes in
                                          national legislation
                                                     Article 16
                                          Any amendments to the list of national
                                          procedures contained in Annex II shall be
                                          notified to the Commission . The latter
 ---pagebreak---                                           - 23 -
          Original proposal                               Modified proposal
                                               will ensure that Annex II is updated and
                                               published without delay in the Official
                                               Journal of the European Communities .
          TITLE IV                                        TITLE IV
     Deposit-guarantee schemes                      Deposit-guarantee schemes
          Article 16                                      Article 17
1 . Member States shall ensure that the        Unchanged
deposit-guarantee schemes that exist in
their territory cover the deposits of                                                  /
branches of institutions having their
head office in another Member State .
2 . As a transitional measure , pending
entry into force of a deposit-guarantee
scheme in all Member States , the latter
shall enture that the deposit-guarantee
schemes , in which the institutions that
have their head office in their territory             «
take part , extend cover to deposits
received by branches set up in host
countries within the Community which
have no deposit-guarantee scheme , under
the same conditions as those laid down
to guarantee deposits received in the
home country .
 ---pagebreak---                                            - 24 -
           Original proposai                               Modified proposai
           TITLE V                                         TITLE V
      Final provisions                               Final provisions
           Article 17                                      Article 18
1 . Member States shall adopt the laws ,        Unchanged
régulations and administrative provisions
necessary to comply with this Directive
not later than 1 January 1990 . They shall
forthwith inform the Commission thereof .
Member States may stipulate that such
provisions shall not apply until two
years after that date .
2 . Member States shall communicate to
the Commission the texts of the main
provisions of national law which they
adopt in the field governed by this
Di rective .
           Article 18                                      Article 19
This Directive is addressed to the              Unchanged
Member States .
 ---pagebreak---                                               25 -
          Original proposai                                 Modified proposal
          ANNEX                                             ANNEX I_
List of the reorganization measures              List of the reorganization measures
provided in Article 2(1 ) of the draft           provided in Article 2(1 ) in the draft
Directive on the coordination of laws ,          Directive on the coordination of laws ,
regulations and administrative provisions        regulations and administrative provisions
relating to the reorganization and the           relating to the reorganization and the
winding-up of credit institutions .              winding-up of credit institutions and
                                                 deposit-guarantee schemes .
BELGIUM                                          BELGIUM
Banks                                            Banks
- On-the-spot investigations and expert          Unchanged
  appraisals
  Article 19, paragraph 3 , 2° and
  paragraph 4 of Royal Decree No 185 of
  9 July 1935 on the supervision of banks
  and the rules on issues of stocks and
  securities ( penal sanction : Article 42
  9° of the Decree ).
  Competent authority responsible for
  deciding on the investigation or
  appraisal : Banking Commission
  ( 'Commission Bancaire' ).
  Competent authorities responsible for
  conducting the investigation or appraisal :
  Banking Commission and the Banque Nationale
  de Belgique , at the request of the Banking
  Commission .
- Appointment of a special auditor
  Article 25 , § 1 , paragraphs 1 and 2 , 1°
  and S 2 of Royal Decree n° 185 of 9 July
                                                                                      53
 ---pagebreak---                                              ГР 26 ”
          Original proposai                                   Modified proposai
  1935 ( penal sanction for persons carrying
  out acts without the authorization of the
  special auditor : Article 42, 2° bis of
  the Royal Decree ).
  Competent authority responsible for
  appointing the special auditor :
  Banking Commission .
- Suspension of all or part of a credit
  institution 's activities
  Article 25 , § 1 , paragraphs 1 and 2, 2°
  and § 3 of Royal Decree No 185 of 9 July
  1935 ( penal sanction for persons carry¬
  ing out acts in contravention of sus¬
  pension decision : Article 42 , 2° bis of
  the Royal Decree ).
  Competent authority responsible for
  suspending activities : Banking Commis¬
  sion ; an appeal may be made to the
  Ministry of Finance , which confirms
  or reverses the decision .
Private savings banks                              Private savings banks
- On-the-spot investigations and expert            Unchanged
  apraisals
  Article 16, paragraph 4, 2° and para¬
  graph 5 of the provisions concerning
  the supervision of private savings
  banks , coordinated by the Royal Decree
  of 23 June 1967 ( penal sanction : Article
  35 of the coordinated provisions ).
  Competent authority responsible for
  deciding on the investigation or
  expert appraisal : Banking Commission .
 ---pagebreak---                                            - 27 -
          Original proposai                       Modified proposai
  Competent authorities responsible for
  carrying out the investigation or
  expert appraisal : the Banking Commis¬
  sion and the Banque Nationale de
  Belgique , at the request of the
  Banking Commission .
- Appointment of a special auditor
  Article 17 bis , § 1 , paragraphs 1
  and 2 , 1° and § 2 of the coordinated
  provisions ( penal sanction : Article
  32 , 4° of the coordinated provisions ).
  Competent authority : Banking Commission
- Suspension of all or part of a credit
  institution 's activities
  Article 17 bis , § 1 , paragraphs 1
  and 2 , 2° and § 3 of the coordinated
  provisions ( penal sanction : Article
  32, 4° of the coordinated provisions ).
  Competent authority and appeal :
  Banking Commission ; an appeal may be
  made to the Ministry of Finance , which
  confirms or reverses the decision .
- The King has the power , in the Decree
  revoking a private savings bank 's
  authorization to operate , to take
  appropriate measures to safeguard the
  rights of depositors ( especially the
  transfer of privileged savings funds
  and encumbered assets ).
  Art . 23 of the coordinated provisions .
 ---pagebreak---                                                r - 28 -
          Original proposal                                      Modified proposal
Undertakings governed by Chapter 1 of                 Undertakings governed by Chapter 1 of
the Law of 10 June 1964                               the Law of 10 June 1964
- On-the-spot investigations and expert               Unchanged
  apraisals
  Article 6, § 1 , paragraph 3, 2° and
  paragraph 4 of the Law of 10 June 1964
  on the raising of funds from the public
  ( penal sanction : Article 13, 4° of the
  Law ) .
  Competent authority responsible for
  deciding on the investigation or
  expert appraisal : Banking Commission .
  Competent authorities responsible for
  carrying out the investigation or
  expert appraisal : Banking Commission
  and the Banque Nationale de Belgique at
  the request of the Banking Commission .
- Appointment of a special auditor
  Article 9 bis , § 1 , paragraphs 1 and
  2 , 2° and § 2 of the Law ( penal sanction :
  Article 13, 5° of the Law ).
  Competent authority : Banking Commission .
- Suspension of all or part of a credit
  institution's activities
  Article 9 bis , § 1 , paragraphs 1
  and 2 , 2° and § 3 of the Law ( penal
  sanction : Article 13, 4° of the Law ).
  Competent authority and appeal :
  Banking Commission ; an appeal may be
  made to the Ministry of Finance , which
  confirms or reverses the decision .
                                                                                            H
 ---pagebreak---                                           - 29 -
          Original proposai                                Modified proposai
Public crédit institutions                     Public crédit institutions
Savings Bank of the General Savings and        Savings Bank of the General Savings and
Pension Fund ( 'Caisse d' Epargne de la        Pension Fund ( 'Caisse d' Epargne de la
Caisse Générale d' Epargne et de               Caisse Générale d' Epargne et de
Retraite' )                                    Retraite' )
- On-the-spot investigations and expert        - On-the-spot investigations and expert
  apraisal                                       apraisal
  Article 1 , paragraph 2 of Royal Decree        Article 1 , paragraph 2 of Royal Decree
  N° 2 on the supervision of the Savings         N° 2 of 24 December 1980 on the super¬
  Banks of the General Savings and               vision of the Savings Bank of the
  Pensions Fund .                                General Savings and Pensions Fund , which
                                                 made applicable to it Article 19 , para¬
                                                 graphs 2 to 5 of Royal Decree N° 185 of
                                                 9 July 1935 .
  Competent authority responsible for            Unchanged
  deciding on the investigation or
  expert appraisal : Banking Commission .
  Competent authorities responsible for          Unchanged
  carrying out the investigation or
  expert appraisal : the Banking Commis¬
  sion and the Banque Nationale de
  Belgique , at the request of the
  Banking Commission .
- Other measures                               - Advice to managers of the Savings Bank
  No special measures ; responsibility of        of the General Savings and Pensions Fund
  Parliament and the government .                Article 3 of Royal Decree N° 2 of 24
                                                 December 1980 .
                                                 Competent authority : Banking Commission .
 ---pagebreak---                                          - 30 -
          Original proposai                             Modified proposai
DENMARK                                       DENMARK
Article 46 of Law n° 35 of 30 January         Unchanged
1981 .
The supervisory authorities for banks
and savings banks can declare cessation
of payments for banks or savings banks ,
when it is necessary in the interests of
the depositors . The declaration cannot
be revoked by the bank or savings bank
without the agreement of the supervisory
authorities .
The declaration should be sent to the
Court 'skifteretten' which is a part
of the Court system .
GERMANY                                       GERMANY
Measures taken pursuant to Section 46         Unchanged
of the Banking Act :
- instructions issued to directors ,
- prohibition or limitation of the
   right to make payments ,
- prohibition or limitation of the
   right to act as director or
  proprietor ,
- appointment of persons responsible
   for supervising the institution .
 ---pagebreak---   I
               Original proposai                           Modified proposai
  I
  I
  | Measures taken pursuant to Section
j 46a of the Barking Act ( 1 ):
  | - ban on making payments or disposing                                       ,
  i     of property,                                                          j
    - closure of a credit institution 's
        counters for business with customers ,
    - ban on acceptance of payments not
        intended for the discharge of debts
jS      to a crédit institution .
 I
 j Competent authority : Federal Banking
 J Supervisory Office (Bundesaufsichtsamt
    fur das Kreditwesen ) .
 I
                                               SPAIN
 |                                             - Temporary suspension of directors
                                                 Royal Decree 5 / 1978 of 6 March 1978
                                                 Royal Decree 18 / 1982 of 24 September
 !                                               1982
                                                 Extension to savings and Cooperative
 I                                               -
 1                                               Banks’ of this disposition :
 i                                               Royal Decrees 2575 and 2576/ 1982 of 1
                                                 October 1982
 i
                                               Competent authority : Bank of Spain
    ( 1 ) These measures are also listed in
    Article 1(b ) of the Protocol to the draft
    Convention on bankruptcy , winding-up ,
    arrangements , compositions and similar
    proceedings .
 ---pagebreak---                                           - 32 -
          Original proposai                              Modified proposai
FRANCE                                         FRANCE
Measures provided for by Law N° 84/ 46         Unchanged
of 24 January 1984 concerning the
activity and supervision of credit
institutions .
Measures to be taken by the Banking
Commission ( 'Commission Bancaire' ):
- injunctions ( Article 43 ),
- appointment of a temporary
  administrator ( Article 44 ),
- prohibition of certain operations
  and other limitations on activity
  ( Article 45 , § 3 ),
- temporary suspension or compulsory
  resignation of one or more of the
  persons responsible for actually
  determining the general patterns of
  the activity of credit institutions
  ( Article 45 ; § 4 and 5 ).
Measures to be taken by the Governor
of the Banque de France :
- organization of the assistance of
  all credit institutions with a view
  to taking the measures necessary for
  protecting the interests of depositors
  and third parties , for the functioning
  of the banking system and for pre¬
  serving the reputation of local
  banking ( Article 52 ).
 ---pagebreak---                                             - 33 -
            Oriainal proposai                              Modified proposai
GREECE                                           GREECE
Measures provided for by                         Unchanged
( a ) the Law 1665 / 1951 organizing the
      Banking Prudential Control , the
      administrative winding-up of banks ,
      the appointment of a Commissioner ,
      liquidation and revocation of
      licence ;
( b ) Law 236/75 organizing the appoint¬
      ment of a temporary Commissioner
      in cases of special urgency and
      importance ;
( c ) Law 431 / 76 providing for compul¬
      sory doubling of share capital of
      banks under certain conditions
      considered as constituting a state
      of insolvency ;
( d ) Law 2292 / 1953 ( especially Articles
      10 to 12 ) dealing with compulsory
      mergers of banking corporations .
A. Measures to be taken by the Bank of
Greece under the general law 1266 / 1982
(i )    Compulsory increase of capital
        ( Law 1665 / 1951 , Article 6 );
( ii ) Appointment of a Commissioner
        ( Law 1665 / 1951 , Article 8 );
( iii ) Appointment of a temporary
        Commissioner in cases of special
        importance and urgency ( Law
        236 / 75 );
( iv ) Obligatory increase ( doubling ) of
        share capital by banks who have
        been placed repeatedly under a
        Commissioner or temporary
        Commissioner and whose share
 ---pagebreak---                                               34 -
             Original proposai                             Modified proposai
        capital and surplus is less than
        1 / 70 of the total of their
        deposits ( Law 431 / 76 ).
B. Measures to be taken by the
Government ( Council of Ministers and
Minister of Commerce )
Compulsory merger of banks and compul¬
sory increase of initial share capital
by 1 / 3 at least ( Law 2292 / 1953, Articles
10 to 12 ).
IRELAND                                          IRELAND
Measures relating to licensed banks where        Unchanged
the legislative references are to the
Central Bank Act , 1971 and where the
competent authority is the Central
Bank of Ireland :
- suspension of the right to receive
  deposits and make payments
  ( Section 21 ),
- restriction of the scope of
  authorization ( Section 10 ),
- prohibition or restriction of
  advertising concerning deposits
  ( Section 22 ).
Measures relating to building societies
where the legislative references are to
the Building Societies Act , 1976 and
where the competent authority is the
Registrar of Friendly Societies :
- restriction on authorization
   ( Section 11 ),
- loans from one society to another
   ( Section 24 ),
                                                                             42.
 ---pagebreak---             Original proposai
- union of societies ( section 25 ),
- transfer of and undertaking to
    fulfil engagements ( Section 26),
- confirmation and registration of
    union under Section 25 or transfer of
    undertaking under Section 26
    ( Section 27 ),
- power of registrar to appoint an
    inspector or call a special meeting
    ( Section 29 ),
- power of registrar to suspend the
    raising of funds and making of
    payments ( Section 31 ),
- power of registrar to suspend and
    control advertising ( Section 32 ).
ITALY
( a ) Request for information of the
       economic situation of the credit
       institution or its branches ( Section
       31 of the Banking Act );
       Competent authority : Banca d' Italia
( b ) Investigations at the credit institu¬
       tion and its branches ( Section 31 of
       the Banking Act )
       Competent authority : Banca d' Italia
( c ) Convening of shareholders' meetings
       and governing bodies of the credit
       institutions with a view to taking
       special measures ( Section 35 of the
       Banking Act )
       Competent authority : Banca d' Italia
 ---pagebreak---                                              - 36 -
             Original proposai                      Modified proposai
( d ) Withdrawal of internal administra¬
      tive and supervisory bodies and
      appointment in their place of
      special bodies for the reorganiza¬
      tion of the credit institution
      ( Section 57 of the Banking Act )
      Competent authority : Ministry of
      the Treasury on a proposal from the
      Banca d' Italia ( for appointment of
      the special bodies , only the Banca
      d' Italia )
( e ) Temporary suspension of payments
      and of any executive procedure in
      respect of the credit institution
      during the special administration
      referred to at ( d ) ( Section 63 of
      the Banking Act )
      Competent authority : Banca d' Italia
( f ) Temporary suspension of the functions
      of the credit institution 's adminis¬
      trative and supervisory bodies and
      appointment of an official of the
      Banking Supervisory Authority to
      perform tasks in their place
      ( Section 66 of the Banking Act )
      Competent authority : Banca d' Italia
( g ) Withdrawal of the authorization to
      operate in respect of the credit
      institution 's individual branches
      on account of administrative short ¬
      comings ( Section 34 of the Banking
      Act )
      Competent authority : Interministerial
      Committee for Credit and Savings
       ( Comitato interministeriale per il
      credito ed i l risparmio )
 ---pagebreak---                                            - 37 -
           Original proposai                                Modified proposai
LUXEMBOURG                                      LUXEMBOURG
Measures provided for by the Law of             Unchanged
10 August 1982 organizing :
1 . the right of the Luxembourg
     Monetary Institute (" Institut
     Monetaire Luxembourgeois ") to
     suspend credit institutions ;
2 . suspension of payments ; supervised
     administration and the winding-up
     of credit institutions .
Measures to be taken by the Luxembourg
Monetary Institute :
- injunctions ( in the event of a crisis )
   ( Article 2 ),
- suspension of directors ( Article 3 )
   ( not applicable to institutions
   governed by Luxembourg public law ),
- total or partial suspension of
   activities ( Article 3 ).
                                                      «
Measures to be taken by the district
court ( 'Tribunal d' Arrondissement' )
sitting as a commercial court ( where
appropriate , at the request of the
Luxembourg Monetary Institute ):
- suspension of payments and super¬
   vised administration ( Articles 7
   to 10 ) ( not applicable to institu¬
   tions governed by Luxembourg
   public law ).
NETHERLANDS                                     NETHERLANDS
Measures provided by the law of 13 April        Unchanged
1978 concerning the supervision of
credit institutions :
 ---pagebreak---                                           - 38 -
           Original proposai                               Modified proposai
- injunctions /
- secret trusteeship ( Part III / section
   24 ),
- emergency régulations ( Part V,
   section 31 ),
Competent authority : Central Bank
( De Neder landsche Bank )
                                               PORTUGAL
                                               Measures available to the Ministry of
                                               Finance after consultation with the Bank
                                               of Portugal :
                                               - temporary exemption from certain legal
                                                 obligations and the granting of monetary
                                                 assistance for institutions in crisis
                                                 ( Decree Law 51 / 84 of 11 February 1984 ,
                                                 Article 34 )
                                               - power to grant a special 90-day rehabi ¬
                                                 litation period for credit institutions
                                                 which have suspended payments and to
                                                 appoint a government trustee
                                               - power to appoint an official responsible
                                                 for the normal operation of a " caixa
                                                 economica " ( Decree Law 136 / 79 of 18 May
                                                 1979, Article 23 relating to caixas
                                                 economi cas )
                                               Measures available to the Council of
                                               Ministers following proposals from the
                                                                                        44
 ---pagebreak---                                          - 39 -
          Original proposai                              Modified proposai
                                              Ministry of Finance relating to measures
                                              under Article 34 of the Decree Law of 11
                                              February 1984 ( see above ):
                                              - power to appoint delegates , administra ¬
                                                tors or an administrative Committee
                                                responsible for managing the institution
                                              - power to suspend existing directors from
                                                their duties
UNITED KINGDOM                                UNITED KINGDOM
Measures available to the Bank of             Unchanged
England :
- the power to appoint one or more
  competent persons to investigage
  and report on the state and conduct
  of the business of an authorized
  institution ( Banking Act 1979 ,
  Section 17 ),
- the power to revoke outright an
  institution 's authorization ( Banking
  Act 1979 , Section 7(1 ) ( a )),
- the power to revoke an institution 's
  authorization and to grant in its
  place a conditional licence ( Banking
  Act 1979 , Section 7(1 ) ( a ) and
  Section 10 ),
- the power , when revoking outright an
  institution 's authorization , to give
  directions as to conduct of the
  business ( Banking Act 1979, Sections
  8 and 9 ).
 ---pagebreak---                     40 -
Original proposai                  Modified proposai
                                   ANNEXE II ( new )
                  List of the winding-up procedures provided for
                  in Article 2(3 ) of the draft Directive on the
                  coordination of laws , regulations and
                  administrative provisions relating to the
                  reorganization and the winding-up of credit
                  institutions and deposit-guarantee schemes
                  BELGIUM
                  - faillite - fai llissement
                    Article 437 et seq . of Vol . Ill of the
                    Commercial Code
                  - Competent authority ; Commercial Court .
                  DENMARK
                  - konkurs
                    Law No 444 of 28 August 1984
                    Law No 374 of 15 August 1985 which provides
                    that the above Law is applicable to banks ,
                    savings banks and cooperatives
                  - Competent authority : Skifteretten .
                  GERMANY
                  - Konkurs
                    Section 46a of the Banking Act , as at 20
                    December 1984
                  - Competent authority : Federal Banking
                    Supervisory Office ( Bundesaufsichtsamt fur
                    das Kreditwesen )
 ---pagebreak---                   - 41 -
Original proposai                    Modified proposai
                  - freiwillige Liquidation
                      Section 38(2 ) of the Banking Act
                      Section 131 et seq ., Section 145 et seq .,
                      in the case of an offene Handelsgesellschaft
                      Section 262 et seq . in the case of an
                      Aktiengesellschaft
                      Section 60 and Section 78 et seq . in the
                      case of a Genossenschaft .
                  SPAIN
                  1 . Quiebra
                  Article 870 to 941 of the Commercial Code
                  2 . Suspension di pagos
                  Law of 26 July 1922
                  Competent authorities ; judicial authorities
                  3 . Liquidacion administrativa
                  ( following withdrawal of authorization )
                  Section 57a of the Banking Act of 31
                  December 1946
                  ( as supplemented by Article 4(3 ) of Royal
                  Decree-Law 1298 / 1986 of 28 June 1986 )
                  Competent authorities : Directorate-General for
                  the Treasury and Fiscal Policy of the Ministry
                  of Economic Affairs and Enterprises - Banco de
                  Espana
                  4 Liquidación
                  Savings banks : Articles 140 to 146 of Royal
                  Decree-Law 2532 / 1929 of 21 November 1929
                  Credit cooperatives : Articles 103 to 115 of Law
                  3 / 1987 of 2 April 1987
                  Other credit institutions : Articles 150 to 171
                  of the Law governing public limited liability
                  companies of 17 July 1981 .
                                                                ^3
 ---pagebreak---                   ' t - 42 -
Original proposai                         Modified proposai
                      FRANCE                                    ,
                      - redressement judiciaire and liquidation
                        judiciai re
                        Law No 85 / 98 of 25 January 1985 ( Title III )
                        Articles 119 et seq . of Decree No 85 / 1388 of
                        27 December 1985
                      - Competent authorities : Commercial Court
                      GREECE
                         Α.Ν . 1665 / 1951 “ περί λειτουργίας και
                         ελέγ)ρυ Τραπεζών ". Αρθρο 9 ( εκκαθάριση .
                         Αρμόδια αρχή:"Η νομισματική επιτροπή "
                      Law 1665 / 1951 of 27 January 1951 "on the
                      function ing and control of banks "
                      Article 9 ( liquidation )
                      Competent authority : the Monetary Commission
                      IRELAND
                      - Bankruptcy
                      - Compulsory winding-up
                      - Creditors 1 voluntary winding-up
                        ( Companies Act 1963, Section VI )
                      - Liquidation of banks
                        ( Central Bank Act 1971 , Sections 28 to 31 )
 ---pagebreak---                   - 43 -
Original proposai                   Modified proposai
                  For Building Societies
                  - compulsory winding-up
                  - Creditors' voluntary winding-up
                     ( Building Societies Act 1976 , Section 95 )
                  - Housing ( Miscellaneous Provisions ) Act 1979 ,
                     Section 20
                  - Land Act 1984 ( Section 4(2 ))
                  - Age of Majority Act 1985
                  Competent authority :
                  - competent authority responsible for granting
                     or withdrawing authorization and supervising
                     the activities of credit institutions
                  - the High Court , in cases of bankruptcy
                  For Building Societies : Registrar of Friendly
                  Societies who is also the Registrar of Building
                  Societies ( Building Societies Act 1976 , Section
                  85 )
                  ITALY
                  - concordato preventivo
                     Articles 160 to 186 of the Decree of 16
                     March 1942
                     Subparagraph 2(d ) of Article 35 of the
                     Decree-Law of 12 March 1936 , as amended
                     Competent authority : judicial authority
                  - liquidazione coatta amministrativa
                     Articles 67 to 86 of thè Decree-Lau of 12
                     March 1936
                     Articles 194 to 215 of the Decree of 16
                     March 1942 , as amended
                  - Competent authorities : Banca d'ltalia
                    Ministry of the Treasury and the Inter-
                    ministerial Committee for Credit and Savings
                  - liquidazione volontaria
                    Article 86a of the Decree of 12 March 1936 ,
                    as amended
 ---pagebreak---                   '■* 44 -
Original proposai                     Modified proposai
                    LUXEMBOURG
                    - dissolution and liquidation of crédit
                       institutions
                       Article 2 of the Law of 10 August 1982
                       Competent authorities : the district court
                       sitting as a commercial court at the request
                       of the Procureur d'Etat or the Commissaire au
                       contrSle des banques
                    - voluntary winding-up
                       Article 12 of the Law of 10 August 1982
                    NETHERLANDS
                    - vrijwillige solvente liquidatie ingevolge
                       statutaire ontbinding
                    en
                    - gedwongen solvente liquidatie na intrekking
                       van de vergunning
                       Articles 22 and 23 of Title 1 and Articles
                       166 to 173 of Title 3 of Vol . II of the Civil
                       Code , concerning the winding-up of ( solvent )
                       persons
                       Competent authority : the credit institution
                       itself
                    - solvente liquidatie tijdens de noodregeling
                       Paragraphs 1 and 6 of Article 36 of the Law
                       concerning the supervision of credit institu¬
                       tions which provides that the abovementioned
                       provisions of the Civil Code are applicable
                       Competent authority : the trustees
                    - insolvente liquidatie na faillietverklaring
                       van de kredietinstelling
                       Law on bankruptcy of 30 September 1893 and
                       amendments S 140 , Articles 1 to 212 of Title I
                       Competent authority : the Court
 ---pagebreak---                   - 45 -
Original proposai                    Modifiée) proposai
                  PORTUGAL
                  - rules governing the winding-up of banking
                     institutions
                     Article 11 et seq . of Decree-Law No 30-689 of
                     27 August 1940
                     Competent authority : Minister of Finance
                  - liquidação na sequência de revojaçao de
                     autorizaçao
                     Competent authority : Minister of Finance
                  - cooperative banks
                     Articles 75 and 77 of Decree-Law No 454 / 80 of
                     9 October 1980 which refer to the general
                     rules governing the bankruptcy procedure
                     Article 1245 et seq . of Chapter XV of Decree-
                     Law No 44 / 129 of 28 December 1961
                     Sale of property : Article 882 et seq .
                  UNITED KINGDOM
                  Compulsory winding-up ( Insolvency Act 1986 ,
                  Section 4 )
                  Creditors' voluntary winding-up
                  Corporate voluntary arrangements ( Insolvency
                  Act 1986 , Section 1 )
                  Corporate arrangements and reconstructions
                  ( Companies Act 1985 , Section 13 )
                  For Building Societies ( Building Societies Act
                  1986 , Section 10 )
                  Compulsory winding-up
                  Creditors' voluntary winding-up
                  Dissolution by consent of an appropriate
                  majority of the society 's members
                  Competent authority : judicial authority
                  Voluntary liquidation ( Insolvency Act 1986,
                  Section 4 )