CELEX: 51990PC0567
Language: en
Date: 1991-01-25
Title: AMENDED PROPOSAL FOR A COUNCIL REGULATION ( EEC ) TO THE AMENDED PROPOSAL FOR A REGULATION ( EEC ) ON SECURITIES GIVEN BY CREDIT INSTITUTIONS OR INSURANCE UNDERTAKINGS

N o C 53/74                                   Official Journal of the European Communities                                     28. 2 . 9 1
              Amended proposal f o r a Council Regulation (EEC) o n securities given by credit institutions o r
                                                          insurance undertakings
                                                     COM(90) 567 final — SYN 180
              (Submitted        by    the   Commission   pursuant to Article        149  (3)    of    the   EEC      Treaty on
                                                             31 January 1991)
                                                               (91/C 53/11)
                           Initial proposal                                                          Amended  proposal
T H E COUNCIL OF T H E EUROPEAN COMMUNITIES,                             THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard t o the Treaty establishing the European                   Having regard t o the Treaty establishing the European
Economic Community, and in particular Article 100a                       Economic Community, and in particular Article 100a
thereof,                                                                 thereof,
Having regard t o the proposal f r o m the Commission,                   Having regard t o the proposal f r o m the Commission (*),
In cooperation with the European Parliament,                             In cooperation with the European Parliament ( 2 ),
Having regard t o the opinion of the Economic and Social                Having regard t o the opinion of the Economic and Social
Committee,                                                               Committee ( 3 ),
Whereas the Treaty, in Article 5 9 , enshrines the principle of          Whereas the Treaty, in Article 5 9 , enshrines the principle of
freedom t o provide services;                                            freedom t o provide services;
Whereas many public authorities, when demanding                          Whereas many public authorities, when demanding a
guarantees, ask f o r guarantees issued by a resident of their           security, ask for a security given by a resident of their
national territory, which conflicts with that principle;                 national territory, which conflicts with that principle;
Whereas the Treaty principle of non-discrimination is                    Whereas the Treaty principle of non-discrimination is
directly applicable and does n o t require implementing                  directly applicable and does n o t require implementing
legislation;                                                             legislation;
Whereas public authorities have a certain discretion in                  Whereas public authorities have a certain discretion in
judging the acceptability of the guarantor;                              judging the acceptability of the guarantor;
Whereas public authorities also have a particular                        Whereas public authorities also have a particular
responsibility f o r the establishment and functioning of the            responsibility for the establishment and functioning of the
internal market;                                                         internal market;
Whereas this responsibility calls for a limitation of the                Whereas, in the case of a specific financial service provided
discretion of public authorities in the case of a specific               by institutions already supervised o n the basis of Community
financial service provided by institutions supervised o n the            rules, a positive measure is needed t o limit the discretion of
basis of Community rules;                                                public authorities which accept a security;
                                                                         Whereas it does n o t appear reasonable f o r an authority t o be
                                                                         subject without its consent t o the law and jurisdiction of
                                                                         another Member State;
                                                                         (») OJ N o C 5 1 , 28. 2. 1989, p. 6.
                                                                         ( 2 ) OJ N o C 159, 2 6 . 6. 1989, p. 4 .
 ---pagebreak--- 28. 2. 91                                     Official Journal of the European Communities                                    No C 53/75
                             Initial proposal                                                        Amended proposal
Whereas the First Council Directive 7 7 / 7 8 0 / E E C of 12            Whereas the First Council Directive 7 7 / 7 8 0 / E E C of 12
December 1977 on the coordination of the laws, regulations               December 1977 on the coordination of the laws, regulations
and administrative provisions relating to the taking-up and              and administrative provisions relating to the taking-up and
pursuit of the business of credit institutions ( 1 ), as last            pursuit of the business of credit institutions (*.), as last
amended by Directive 86/524/EEC ( 2 ), provides for a                    amended by Directive 8 6 / 6 4 6 / E E C ( 2 ), provides for a
Community system for licensing and supervising credit                    Community system for licensing and supervising credit
institutions;                                                            institutions;
Whereas the First Council Directive 7 3 / 2 3 9 / E E C of 24 July       Whereas the First Council Directive 7 3 / 2 3 9 / E E C of 24 July
1973 on the coordination of laws, regulations and                        1973 on the coordination of laws, regulations and
administrative provisions relating to the taking-up and                  administrative provisions relating to the taking-up and
pursuit of the business of direct insurance other than life              pursuit of the business of direct insurance other than life
insurance ( 3 ), as last amended by Directive 87/344/EEC ( 4 ),          insurance ( 3 ), as last amended by Directive 8 7 / 3 5 7 / E E C ( 4 ),
provides for a Community system for licensing and                        provides for a Community system for licensing and
supervising insurance undertakings;                                      supervising insurance undertakings;
                                                                         Whereas branches of credit institutions from non-Member
                                                                         States are authorized in the Community only in respect of
                                                                         national territories and therefore have no right to
                                                                         cross-border acceptance of their security;
Whereas it appears inappropriate that authorities other than             Whereas it appears inappropriate that authorities other than
those in charge of prudential supervision of these institutions          those in charge of prudential supervision of credit institutions
judge the credit-worthiness of credit institutions or insurance          or insurance companies judge the credit-worthness of such
companies acting as guarantors,                                          institutions when the latter are acting as guarantors;
                                                                         Whereas, given the operational requirements of the Single
                                                                         Market, this should apply to security from both the domestic
                                                                         Member State and other Member States,
HAS ADOPTED THIS REGULATION:                                             HAS ADOPTED THIS REGULATION:
                               Article 1                                                                Article 1
Obligation to accept guarantees issued by credit institutions            Obligation to accept security given by credit institutions or
                    or insurance undertakings                                                   insurance undertakings
1.     A public authority which requires to be secured for               1.      A public authority which requires to be secured for
payment of an actual or potential debt or for respect of any             payment of an actual or potential debt or for respect of any
other obligation shall be bound to accept a guarantee issued             other obligation shall be bound to accept security given by
by any credit institution licensed according to Article 3 of             any credit institution licensed according to Article 3 of
Directive 7 7 / 7 8 0 / E E C or by any insurance undertaking            Directive 7 7 / 7 8 0 / E E C or by any insurance undertaking
authorized for the class of suretyship insurance according to            authorized for the class of suretyship insurance according to
Articles 6 and 7 of Directive 7 3 /2 3 9 /E E C .                        Articles 6 and 7 of Directive 7 3 / 2 3 9 / E E C unless
                                                                         — the public authority has reason to doubt the soundness of
                                                                               the guarantor, notably if facts are known that cast doubt
                                                                             1
                                                                               on his continued solvency,
                                                                         — the offer does not meet the conditions normally required
                                                                               by that public authority;
(>) OJ N o L 322, 17. 12. 1977, p. 30.                                   (*)   OJ N o 322, 17. 12. 1977, p. 30.
(2) OJ N o L 309, 4. 11. 1986, p. 15.                                    (2)   OJ N o L 386, 30. 12. 1989, p. 1
(3) OJ N o L 228, 16. 8. 1973, p. 3.                                     (3)   OJ N o L 228, 16. 8. 1973, p. 3.
(4) OJ N o L 185, 4. 7. 1987, p. 77.                                     (4)   OJ N o L 172, 4. 7. 1988, p. 1.
 ---pagebreak---           I
 No C 53/76                                      Official Journal of the European Communities                                    28. 2. 91
                           Initial proposal                                                           Amended proposal
                                                                            2.    Paragraph 1 shall not abbly to central banks in the
                                                                            context 6f their operations in the implementation of
                                                                            monetary policy.
                                                                                                         Article 2
                                                                                       Applicable law and court of jurisdiction
                                                                            The legislation applicable to the security and the court of
                                                                            jurisdiction shall be determined by the debt secured unless the
                                                                            authority accepts another arrangement.
                             Article 2                                      Suppressed because modified by Article 24 of Council
                                                                            Regulation (EEC) N o 2726/90 of 17 September 1990 on
              Amendment of existing legislation                             Community transit
Article 27 (3) of Council Regulation (EEC) N o 222/77 of 13
 December 1976 on Community transit (1) is hereby replaced
 by the following:                                                                                   '
'3.     Subject to Article 33 (2), the guarantee shall consist of
the joint and several guarantee of either
— a credit institution licensed according to Article 3 of
     Council Directive 7 7 / 7 8 0 / E E C ( 2 ), or
— an insurance undertaking authorized for the class of
     suretyship insurance according to Articles 6 and 7 of
     Council Directive 7 3 / 2 3 9 / E E C ( 3 ), or
— any other natural or legal third person established in the
    Community and approved as guarantor by the Member
    State in which the guarantee is provided.'
                             Article 3                                                                  Article 3
                        Entry into force                                   Unchanged
This Regulation shall enter into force on the first day of the
month following the adoption.
This Regulation shall be binding in its entirety and directly              Unchanged
applicable in all Member States.
(') OJ N o L 38, 9. 2. 1977, p. 1.
(2) OJ N o L 322, 17. 12. 1977, p. 30.
(3) OJ N o L 228, 16. 8. 1973, p. 3.