CELEX: 51988PC0118
Language: en
Date: 1988-03-07
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON THE OBLIGATIONS OF BRANCHES ESTABLISHED IN A MEMBER STATE BY CREDIT INSTITUTIONS AND FINANCIAL INSTITUTIONS HAVING THEIR HEAD OFFICES OUTSIDE THAT MEMBER STATE REGARDING THE PUBLICATION OF ANNUAL ACCOUNTING DOCUMENTS

1. 6. 88                               Official Journal of the European Communities                               N o C 143/9
                                                               II
                                                        (Preparatory Acts)
                                                  COMMISSION
              Amended proposal for a Council Directive on the obligations of branches established in a
              Member State by credit institutions and financial institutions having their head offices outside
                     that Member State regarding the publication of annual accounting documents (')
                                                       COM(88) 118 Jiml
              (Submitted by the Commission to the Council pursuant to Article 149 (3) of the EEC Treaty on
                                                         11 March 1988)
                                                         (88/C 143/10)
              O OJ No C 230, 11. 9. 1986, p. 4.
                                                 II. TEXT OF THE PROPOSAL
                     ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                            Unchanged
Having regard to the Treaty establishing the European
Economic Community, and in particular Article 54 (3)
(g) thereof,
Having regard to the proposal from the Commission,
Having regard      to   the  opinion    of   the     European
Parliament,
Having regard to the opinion of the Economic and
Social Committee,
Whereas the establishment of a European internal
market presupposes that the branches of credit
institutions and financial institutions having their head
offices in other Member States should be treated in the
same way as branches of credit institutions and financial
institutions having their head offices in the same Member
State; whereas this means that, with regard to the publi-
cation of annual accounting documents, it is sufficient
for the branches of such institutions having their head
offices in other Member States to publish the annual
accounting documents of their institution as a whole;
Whereas the proposal for an Eleventh Council Directive              Whereas the proposal for an Eleventh Council Directive
concerning disclosure requirements in respect of                    concerning disclosure requirements in respect of
branches provides for rules of disclosure concerning                branches provides for rules of disclosure concerning
documents and particulars relating to branches opened in            documents and particulars relating to branches opened in
a Member State by certain types of companies governed               a Member State by certain types of companies governed
by the law of another State; whereas as regards                     by the law of another State; whereas as regards
disclosure of annual accounting documents, Article 11 of            disclosure of annual accounting documents, Article 11 of
that proposed Directive refers to specific provisions to be         that proposed Directive refers to specific provisions to be
laid down for banks and other financial institutions;               laid down for banks and other financial institutions,
                                                                    especially in respect of the matters covered by Articles 3
                                                                    and 7 of that proposed Directive;
 ---pagebreak--- No C 143/10                            Official Journal of the European Communities                                     1. 6. 88
                     ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
Whereas the present practice of some Member States of             Unchanged
requiring the branches of credit institutions and financial
institutions having their head offices outside the Member
State to publish annual accounts relating to the branch is
no longer justified following the adoption of the Council
Directive on the annual accounts of banks and other
financial institutions; whereas branch accounts cannot in
any case provide the public, and in particular creditors,
with an adequate view of the financial situation of the
undertaking, since part of a coherent whole cannot be
viewed in isolation;
Whereas, on the other hand, in view of the present level
of integration, the need for certain information on the
activities of branches of credit institutions and financial
institutions having their head offices outside the relevant
Member State cannot be disregarded; whereas, however,
the extent of such information must be limited so as to
prevent distortions of competition;
                                                                  5.    recital (inserted)
                                                                 Whereas, however, the provisions of this Directive do not
                                                                  in any way affect the obligations of branches of credit
                                                                  institutions and financial institutions to provide infor-
                                                                  mation pursuant to social legislation, especially with
                                                                  regard to employees' rights to information, pursuant
                                                                  to host countries' rights of supervision over credit
                                                                  institutions or financial institutions, and pursuant to fiscal
                                                                  legislation;
Whereas equality of competition means, with regard                Unchanged
to the branches of credit institutions and financial
institutions having their head offices in non-member
countries, that such branches must, on the other hand, in
publishing their annual accounting documents, adhere to
a standard which is the same as or equivalent to that of
the Community, but, on the other hand, that such
branches should not have to publish their own annual
accounts if they fulfil the abovementioned condition;
Whereas the equivalence of annual                accounting
documents of credit institutions and financial institutions
having their head offices in non-member countries
required under this Directive may lead to problems of
assessment; whereas it is therefore necessary for this and
other problems in the area covered by the Directive, and
in particular in its implementation, to be dealt with
by representatives of the Member States and the
Commission jointly in a Contact Committee; whereas, in
order to keep the number of such committees within
limits, such cooperation should be carried out within the
framework of the Committee set up under Article 52 of
Council Directive 78/660/EEC ('), with the Committee
meeting in an appropriate composition where problems
relating to credit institutions are to be dealt with,
0) OJ No L 222, 14. 8. 1978, p. 11.
 ---pagebreak--- 1. 6. 88                                   Official Journal of the European Communities                             No C 143/11
                         ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
HAS ADOPTED THIS DIRECTIVE:
                              Article 1                                                         Article 1
                               Scope                                                             Scope
(1)     The coordination measures prescribed by this                  (1)    The coordination measures prescribed by this
Directive shall apply to branches of credit institutions              Directive shall apply to branches of credit institutions
and financial institutions within the meaning of Article 2            and financial institutions within the meaning of Article 2
of Council Directive . . . / . . ./EEC (*) established in a           of Council Directive 86/635/EEC (*) established in a
Member State which have their head offices outside that               Member State which have their head offices outside that
Member State. Where a credit institution or financial                 Member State. Where a credit institution or financial
institution has its head office in a non-member country,              institution has its head office in a non-member country,
this Directive shall apply insofar as the credit institution          this Directive shall apply insofar as the credit institution
or financial institution has a legal form which is                    or financial institution has a legal form which is
comparable to the legal forms specified in Article 2 of               comparable to the legal forms specified in Article 2 of
Directive . . . / . . ./EEC.                                          Directive 86/635/EEC.
(2)     The third indent of Article 1 of Council Directive            (2)     Unchanged
77/780/EEC (2) shall apply mutatis mutandis to branches
of credit institutions and financial institutions within the
meaning of this Directive.
                              Article 2                                                         Article 2
Provisions relating to branches of credit institutions and            Unchanged
financial institutions having their head offices in other
                          Member States
(1)     Member States shall require branches of credit                (1)     Member States shall require branches of credit
institutions and financial institutions having their head             institutions and financial institutions having their head
offices in other Member States to publish the documents,              offices in other Member States to publish the documents,
specified in Article 42 of Directive . . . / . . ./EEC (annual        specified in Article 44, and in particular, in paragraphs 2
accounts, consolidated             accounts,   annual    report,      and 4, thereof, of Directive 86/635/EEC (annual
consolidated annual report, opinions of the person                    accounts, consolidated         accounts,   annual     report,
responsible for auditing the annual accounts and                      consolidated annual report, opinions of the person
consolidated accounts), of the credit institution or                  responsible for auditing the annual accounts and
financial institution in accordance with the provisions set           consolidated accounts), of the credit institution or
out therein.                                                          financial institution in accordance with the provisions set
                                                                      out therein.
 (2)    Such documents must be drawn up and audited in                 (2)    Such documents must be drawn up and audited in
 the manner required by the law of the Member State in                the manner required by the law of the Member State in
which the credit institution or financial institution has its         which the credit institution or financial institution has its
 head office in accordance with Directive . . . / . . ./EEC.           head office in accordance with Directive 86/635/EEC.
                                                                       (2a)    Articles 2 and 4 of the proposal for an eleventh
                                                                       Council Directive concerning disclosure requirements in
                                                                       respect of branches opened in a Member State by certain
                                                                       types of companies governed by the law of another State
                                                                       shall apply mutatis mutandis.
 (3)    Branches may not be required to publish annual                 (3)    Unchanged
 accounts relating to their own activities.
 (') Proposal for a Council Directive on the annual accounts of        (l) OJ No L 372, 31. 12. 1986, p. 1.
     banks and other financial institutions, OJ No C 130, 1. 6.
     1981 and amended proposals, OJ No C 83, 24. 3. 1984 and
     OJ No C 351, 31. 12. 1985.
 O OJ No L 322, 17. 12. 1977, p. 30.
 ---pagebreak---  No C 143/12                                   Official Journal of the European Communities                                 1. 6. 88
                            ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
 (4)         Member States may, pending further coordination,             (4)     Unchanged
 require branches to provide the following additional
 information:
 (a) details of:                                                          (a) details of:
         — the endowment capital of the branch,                               — unchanged
         — the profit or loss of the branch,                                  — unchanged
         — the income of the branch deriving from items 1                     — the income of the branch deriving from items 1,
              to 3 and 6 of Article 29 or from item B 1 to B 3                     3, 4, 6 and 7 of Article 27 or from items B 1 to
              and B 6 of Article 30 of Directive . . . / . . ./EEC,                B 4 and B 7 of Article 28 of Directive
                                                                                   86/635/EEC,
         — the total claims and liabilities attributable to the               — unchanged
              branch, broken down by those in respect of
              credit institutions and those in respect of
              customers,
         — the net sums of the total assets or liabilities of the             — unchanged
              balances of the branch in relation to the head
              office, the other branches and the undertakings
              included in the consolidated accounts of the
              credit institution or financial institution;
(b) the description of the activities of the branch,                     Unchanged
         showing the main categories of business during the
         financial year.
Where such information is required, it must be audited
by one or more persons authorized to audit accounts
under the law of the Member State in which the branch
is established.
                                 Article 3                                                         Article 3
Provisions relating to branches of credit institutions and               Unchanged
financial institutions having their head offices in non-
                            member countries
(1)         Member States shall require branches of credit               (1)     Unchanged
institutions and financial institutions having their head
offices in non-member countries to publish the
documents specified in Article 2 (1) drawn up and
audited in the manner required by the law of the non-
member country, in accordance with the provisions set
out therein.
(2)         Where such documents are in conformity with or               (2)     Where such documents are in conformity with or
equivalent to documents drawn up in accordance with                      equivalent to documents drawn up in accordance with
the provisions of Directive . . . / . . ./EEC, Article 2 (3)             the provisions of Directive 86/635/EEC, Article 2 (3)
shall apply,                                                             shall apply.
(3)         Where the documents specified in paragraph 1 are             (3)     Where the documents specified in paragraph 1 are
not in conformity with or equivalent to documents                        not in conformity with or equivalent to documents
drawn up in accordance with the provisions of Directive                  drawn up in accordance with the provisions of Directive
. . . / . . ./EEC, Member States may require the branches                86/635/EEC, Member States may require the branches
to publish annual accounts relating to their own                         to publish annual accounts relating to their own
activities.                                                              activities.
(4)         In the cases specified in paragraphs 2 and 3,                (4)     Unchanged
Article 2 (4) shall apply.
 ---pagebreak--- I. 6. 88                               Official Journal of the European Communities                            N o C 143/13
                     ORIGINAL PROPOSAL                                                 AMENDED PROPOSAL
(5)     Member States shall not apply to branches of              (5)    Unchanged
credit institutions and financial institutions having their
head offices in non-member countries provisions which
would place such branches in a more favourable position
than the branches of credit institutions or financial
institutions having their head offices in other Member
States.
                          Article 4                                                         Article 4
                  Language of publication                                           Language of publication
Member States may require that the documents provided             Unchanged
for in this Directive be published in their official
language and that the translation of such documents be
certified.
                          Article 5                                                         Article !>
                    Contact Committee                                                 Contact Committee
The Contact Committee set up pursuant to Article 52 of            The Contact Committee set up pursuant to Article 52 of
Directive 78/660/EEC shall, when constituted appro-               Directive 78/660/EEC shall, when constituted appro-
priately, also:                                                   priately, also:
(a) facilitate, without prejudice to Articles 169 and 170         (a) facilitate, without prejudice to Articles 169 and 170
     of the Treaty, harmonized application of this                    of the Treaty, harmonized application of this
     Directive through regular meetings dealing, in                   Directive through regular meetings dealing, in
     particular, with practical problems arising in                   particular, with practical problems arising in
     connection with its application, such as assessment of           connection with its application, such as assessment of
     equivalence;                                                     equivalence; facilitate decisions on the comparability
                                                                      and equivalence of the legal forms referred to in
                                                                      Article 1 (1);
(b) advise the Commission, if necessary, on additions or          (b) unchanged
     amendments to this Directive.
                          Article 6                                                         Article 6
                      Final provisions                                                  Final provisions
(1)     Member States shall bring into force the laws,            (1)    Member States shall bring into force the laws,
regulations and administrative provisions necessary to            regulations and administrative provisions necessary to
comply with this Directive not later than 1 January 1990.         comply with this Directive not later than 31 December
They shall forthwith inform the Commission thereof.                1990. They shall forthwith inform the Commission
                                                                  thereof.
 (2)    A Member State may provide that the provisions            (2)    A Member State may provide that the provisions
 referred to in paragraph 1 above shall first apply to            referred to in paragraph 1 above shall first apply to
annual accounts for the financial year beginning on 1             annual accounts for the financial year beginning on 1
January 1992 or during the calendar year 1992.                    January 1993 or during the calendar year 1993.
 (3)    Member States shall communicate to the                    (3)     unchanged
 Commission the texts of the main provisions of national
law which they adopt in the field covered by this
Directive.
                          Article 7                                                         Article 7
This Directive is addressed to the Member States.                 Unchanged