Avis juridique important

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31994L0019

Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes

Official Journal L 135 , 31/05/1994 P. 0005 - 0014 Finnish special edition: Chapter 6 Volume 4 P. 0227  Swedish special edition: Chapter 6 Volume 4 P. 0227

DIRECTIVE 94/19/EC OF THE EUROPEAN PARLIAMENT AND OF THE  COUNCIL of 30 May 1994 on deposit-guarantee schemesTHE EUROPEAN PARLIAMENT AND THE  COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular the first and  third sentences of Article 57 (2) thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion of the Economic and Social Committee (2), Acting in accordance with the procedure referred to in Article 189b of the Treaty (3), Whereas, in accordance with the objectives of the Treaty, the harmonious development of the  activities of credit institutions throughout the Community should be promoted through the  elimination of all restrictions on the right of establishment and the freedom to provide services,  while increasing the stability of the banking system and protection for savers; Whereas, when restrictions on the activities of credit institutions are eliminated, consideration  should be given to the situation which might arise if deposits in a credit institution that has  branches in other Member States become unavailable; whereas it is indispensable to ensure a  harmonized minimum level of deposit protection wherever deposits are located in the Community;  whereas such deposit protection is as essential as the prudential rules for the completion of the  single banking market; Whereas in the event of the closure of an insolvent credit institution the depositors at any  branches situated in a Member State other than that in which the credit institution has its head  office must be protected by the same guarantee scheme as the institution's other depositors; Whereas the cost to credit institutions of participating in a guarantee scheme bears no relation to  the cost that would result from a massive withdrawal of bank deposits not only from a credit  institution in difficulties but also from healthy institutions following a loss of depositor  confidence in the soundness of the banking system; Whereas the action the Member States have taken in response to Commission recommendation 87/63/EEC  of 22 December 1986 concerning the introduction of deposit-guarantee schemes in the Community (4)  has not fully achieved the desired result; whereas that situation may prove prejudicial to the  proper functioning of the internal market; Whereas the Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws,  regulations and administrative provisions relating to the taking up and pursuit of the business of  credit institutions and amending Directive 77/780/EEC (5), provides for a system for the single  authorization of each credit institution and its supervision by the authorities of its home Member  State, which entered into force on 1 January 1993; Whereas a branch no longer requires authorization in any host Member State, because the single  authorization is valid throughout the Community, and its solvency will be monitored by the  competent authorities of its home Member State; whereas that situation justifies covering all the  branches of the same credit institution set up in the Community by means of a single guarantee  scheme; whereas that scheme can only be that which exists for that category of institution in the  State in which that institution's head office is situated, in particular because of the link which  exists between the supervision of a branch's solvency and its membership of a deposit-guarantee  scheme; Whereas harmonization must be confined to the main elements of deposit-guarantee schemes and,  within a very short period, ensure payments under a guarantee calculated on the basis of a  harmonized minimum level; Whereas deposit-guarantee schemes must intervene as soon as deposits become unavailable; Whereas it is appropriate to exclude from cover, in particular, the deposits made by credit  institutions on their own behalf and for own account; whereas that should not prejudice the right  of a guarantee scheme to take any measures necessary for the rescue of a credit institution that  finds itself in difficulties, Whereas the harmonization of deposit-guarantee schemes within the Community does not of itself call  into question the existence of systems in operation designed to protect credit institutions, in  particular by ensuring their solvency and liquidity, so that deposits with such credit  institutions, including their branches established in other Member States, will not become  unavailable; whereas such alternative systems serving a different protective purpose may, subject  to certain conditions, be deemed by the competent authorities to satisfy the objectives of this  Directive; whereas it will be for those competent authorities to verify compliance with those  conditions; Whereas several Member States have deposit-protection schemes under the responsibility of  professional organizations, other Member States have schemes set up and regulated on a statutory  basis and some schemes, although set up on a contractual basis, are partly regulated by statute;  whereas that variety of status poses a problem only with regard to compulsory membership of and  exclusion from schemes; whereas it is therefore necessary to take steps to limit the powers of  schemes in this area; Whereas the retention in the Community of schemes providing cover for deposits which is higher than  the harmonized minimum may, within the same territory, lead to disparities in compensation and  unequal conditions of competition between national institutions and branches of institutions from  other Member States; whereas, in order to counteract those disadvantages, branches should be  authorized to join their host countries' schemes so that they can offer their depositors the same  guarantees as are offered by the schemes of the countries in which they are located; whereas it is  appropriate that after a number of years the Commission should report on the extent to which  branches have made use of this option and on the difficulties which they or the guarantee schemes  may have encountered in implementing these provisions; whereas it is not ruled out that home Member  State schemes should themselves offer such complementary cover, subject to the conditions such  schemes may lay down; Whereas market disturbances could be caused by branches of credit institutions which offer levels  of cover higher than those offered by credit institutions authorized in their host Member States;  whereas it is not appropriate that the level of scope of cover offered by guarantee schemes should  become an instrument of competition; whereas it is therefore necessary, at least during an initial  period, to stipulate that the level and scope of cover offered by a home Member State scheme to  depositors at branches located in another Member State should not exceed the maximum level and  scope offered by the corresponding scheme in the host Member State; whereas possible market  disturbances should be reviewed after a number of years, on the basis of the experience acquired  and in the light of developments in the banking sector; Whereas in principle this Directive requires every credit institution to join a deposit-guarantee  scheme; whereas the Directives governing the admission of any credit institution which has its head  office in a non-member country, and in particular the First Council Directive (77/780/EEC) of 12  December 1977 on the coordination of the laws, regulations and administrative provisions relating  to the taking up and pursuit of the business of credit institutions (1) allow Member States to  decide whether and subject to what conditions to permit the branches of such credit institutions to  operate within their territories; whereas such branches will not enjoy the freedom to provide  services under the second paragraph of Article 59 of the Treaty, nor the right of establishment in  Member States other than those in which they are established; whereas, accordingly, a Member State  admitting such branches should decide how to apply the principles of this Directive to such  branches in accordance with Article 9 (1) of Directive 77/780/EEC and with the need to protect  depositors and maintain the integrity of the financial system; whereas it is essential that  depositors at such branches should be fully aware of the guarantee arrangements which affect them; Whereas, on the one hand, the minimum guarantee level prescribed in this Directive should not leave  too great a proportion of deposits without protection in the interest both of consumer protection  and of the stability of the financial system; whereas, on the other hand, it would not be  appropriate to impose throughout the Community a level of protection which might in certain cases  have the effect of encouraging the unsound management of credit institutions; whereas the cost of  funding schemes should be taken into account; whereas it would appear reasonable to set the  harmonized minimum guarantee level at ECU 20 000; whereas limited transitional arrangements might  be necessary to enable schemes to comply with that figure; Whereas some Member States offer depositors cover for their deposits which is higher than the  harmonized minimum guarantee level provided for in this Directive; whereas it does not seem  appropriate to require that such schemes, certain of which have been introduced only recently  pursuant to recommendation 87/63/EEC, be amended on this point; Whereas a Member State must be able to exclude certain categories of specifically listed deposits  or depositors, if it does not consider that they need special protection, from the guarantee  afforded by deposit-guarantee schemes; Whereas in certain Member States, in order to encourage depositors to look carefully at the quality  of credit institutions, unavailable deposits are not fully reimbursed; whereas such practices  should be limited in respect of deposits falling below the minimum harmonized level; Whereas the principle of a harmonized minimum limit per depositor rather than per deposit has been  retained; whereas it is therefore appropriate to take into consideration the deposits made by  depositors who either are not mentioned as holders of an account or are not the sole holders;  whereas the limit must therefore be applied to each identifiable depositor; whereas that should not  apply to collective investment undertakings subject to special protection rules which do not apply  to the aforementioned deposits; Whereas information is an essential element in depositor protection and must therefore also be the  subject of a minimum number of binding provisions; whereas, however, the unregulated use in  advertising of references to the amount and scope of a deposit-guarantee scheme could affect the  stability of the banking system or depositor confidence; whereas Member States should therefore lay  down rules to limit such references; Whereas, in specific cases, in certain Member States in which there are no deposit-guarantee  schemes for certain classes of credit institutions which take only an extremely small proportion of  deposits, the introduction of such a system may in some cases take longer than the time laid down  for the transposition of this Directive; whereas in such cases a transitional derogation from the  requirement to belong to a deposit-guarantee scheme may be justified; whereas, however, should such  credit institutions operate abroad, a Member State would be entitled to require their participation  in a deposit-guarantee scheme which it had set up; Whereas it is not indispensable, in this Directive, to harmonize the methods of financing schemes  guaranteeing deposits or credit institutions themselves, given, on the one hand, that the cost of  financing such schemes must be borne, in principle, by credit institutions themselves and, on the  other hand, that the financing capacity of such schemes must be in proportion to their liabilities;  whereas this must not, however, jeopardize the stability of the banking system of the Member State  concerned; Whereas this Directive may not result in the Member States' or their competent authorities' being  made liable in respect of depositors if they have ensured that one or more schemes guaranteeing  deposits or credit institutions themselves and ensuring the compensation or protection of  depositors under the conditions prescribed in this Directive have been introduced and officially  recognized; Whereas deposit protection is an essential element in the completion of the internal market and an  indispensable supplement to the system of supervision of credit institutions on account of the  solidarity it creates amongst all the institutions in a given financial market in the event of the  failure of any of them, HAS ADOPTED THIS DIRECTIVE: Article 1 For the purposes of this Directive: 1. 'deposit' shall mean any credit balance which results from funds left in an account or from  temporary situations deriving from normal banking transactions and which a credit institution must  repay under the legal and contractual conditions applicable, and any debt evidenced by a  certificate issued by a credit institution. Shares in United Kingdom and Irish building societies apart from those of a capital nature covered  in Article 2 shall be treated as deposits. Bonds which satisfy the conditions prescribed in Article 22 (4) of Council Directive 85/611/EEC of  20 December 1985 on the coordination of laws, regulations and administrative provisions relating to  undertakings for collective investment in transferable securities (Ucits) (1) shall not be  considered deposits. For the purpose of calculating a credit balance, Member States shall apply the rules and  regulations relating to set-off and counterclaims according to the legal and contractual conditions  applicable to a deposit; 2. 'joint account' shall mean an account opened in the names of two or more persons or over which  two or more persons have rights that may operate against the signature of one or more of those  persons; 3. 'unavailable deposit' shall mean a deposit that is due and payable but has not been paid by a  credit institution under the legal and contractual conditions applicable thereto, where either: (i) the relevant competent authorities have determined that in their view the credit institution  concerned appears to be unable for the time being, for reasons which are directly related to its  financial circumstances, to repay the deposit and to have no current prospect of being able to do  so. The competent authorities shall make that determination as soon as possible and at the latest 21  days after first becoming satisfied that a credit institution has failed to repay deposits which  are due and payable; or (ii) a judicial authority has made a ruling for reasons which are directly related to the credit  institution's financial circumstances which has the effect of suspending depositors' ability to  make claims against it, should that occur before the aforementioned determination has been made; 4. 'credit institution' shall mean an undertaking the business of which is to receive deposits or  other repayable funds from the public and to grant credits for its own account; 5. 'branch' shall mean a place of business which forms a legally dependent part of a credit  institution and which conducts directly all or some of the operations inherent in the business of  credit institutions; any number of branches set up in the same Member State by a credit institution  which has its head office in another Member State shall be regarded as a single branch. Article 2 The following shall be excluded from any repayment by guarantee schemes: - subject to Article 8 (3), deposits made by other credit institutions on their own behalf and for  their own account, - all instruments which would fall within the definition of 'own funds' in Article 2 of Council  Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions (1), - deposits arising out of transactions in connection with which there has been a criminal  conviction for money laundering as defined in Article 1 of Council Directive 91/308/EEC of 10 June  1991 on prevention of the use of the financial system for the purpose of money laundering (2). Article 3 1. Each Member State shall ensure that within its territory one or more deposit-guarantee schemes  are introduced and officially recognized. Except in the circumstances envisaged in the second  subparagraph and in paragraph 4, no credit institution authorized in that Member State pursuant to  Article 3 of Directive 77/780/EEC may take deposits unless it is a member of such a scheme. A Member State may, however, exempt a credit institution from the obligation to belong to a  deposit-guarantee scheme where that credit institution belongs to a system which protects the  credit institution itself and in particular ensures its liquidity and solvency, thus guaranteeing  protection for depositors at least equivalent to that provided by a deposit-guarantee scheme, and  which, in the opinion of the competent authorities, fulfils the following conditions: - the system must be in existence and have been officially recognized when this Directive is  adopted, - the system must be designed to prevent deposits with credit institutions belonging to the system  from becoming unavailable and have the resources necessary for that purpose at its disposal, - the system must not consist of a guarantee granted to a credit institution by a Member State  itself or by any of its local or regional authorities, - the system must ensure that depositors are informed in accordance with the terms and conditions  laid down in Article 9. Those Member States which make use of this option shall inform the Commission accordingly; in  particular, they shall notify the Commission of the characteristics of any such protective systems  and the credit institutions covered by them and of any subsequent changes in the information  supplied. The Commission shall inform the Banking Advisory Committee thereof. 2. If a credit institution does not comply with the obligations incumbent on it as a member of a  deposit-guarantee scheme, the competent authorities which issued its authorization shall be  notified and, in collaboration with the guarantee scheme, shall take all appropriate measures  including the imposition of sanctions to ensure that the credit institution complies with its  obligations. 3. If those measures fail to secure compliance on the part of the credit institution, the scheme  may, where national law permits the exclusion of a member, with the express consent of the  competent authorities, give not less than 12 months' notice of its intention of excluding the  credit institution from membership of the scheme. Deposits made before the expiry of the notice  period shall continue to be fully covered by the scheme. If, on the expiry of the notice period,  the credit institution has not complied with its obligations, the guarantee scheme may, again  having obtained the express consent of the competent authorities, proceed to exclusion. 4. Where national law permits, and with the express consent of the competent authorities which  issued its authorization, a credit institution excluded from a deposit-guarantee scheme may  continue to take deposits if, before its exclusion, it has made alternative guarantee arrangements  which ensure that depositors will enjoy a level and scope of protection at least equivalent to that  offered by the officially recognized scheme. 5. If a credit institution the exclusion of which is proposed under paragraph 3 is unable to make  alternative arrangements which comply with the conditions prescribed in paragraph 4, then the  competent authorities which issued its authorization shall revoke it forthwith. Article 4 1. Deposit-guarantee schemes introduced and officially recognized in a Member State in accordance  with Article 3 (1) shall cover the depositors at branches set up by credit institutions in other  Member States. Until 31 December 1999 neither the level nor the scope, including the percentage, of cover provided  shall exceed the maximum level or scope of cover offered by the corresponding guarantee scheme  within the territory of the host Member State. Before that date, the Commission shall draw up a report on the basis of the experience acquired in  applying the second subparagraph and shall consider the need to continue those arrangements. If  appropriate, the Commission shall submit a proposal for a Directive to the European Parliament and  the Council, with a view to the extension of their validity. 2. Where the level and/or scope, including the percentage, of cover offered by the host Member  State guarantee scheme exceeds the level and/or scope of cover provided in the Member State in  which a credit institution is authorized, the host Member State shall ensure that there is an  officially recognized deposit-guarantee scheme within its territory which a branch may join  voluntarily in order to supplement the guarantee which its depositors already enjoy by virtue of  its membership of its home Member State scheme. The scheme to be joined by the branch shall cover the category of institution to which it belongs  or most closely corresponds in the host Member State. 3. Member States shall ensure that objective and generally applied conditions are established for  branches' membership of a host Member State's scheme in accordance with paragraph 2. Admission  shall be conditional on fulfilment of the relevant obligations of membership, including in  particular payment of any contributions and other charges. Member States shall follow the guiding  principles set out in Annex II in implementing this paragraph. 4. If a branch granted voluntary membership under paragraph 2 does not comply with the obligations  incumbent on it as a member of a deposit-guarantee scheme, the competent authorities which issued  the authorization shall be notified and, in collaboration with the guarantee scheme, shall take all  appropriate measures to ensure that the aforementioned obligations are complied with. If those measures fail to secure the branch's compliance with the aforementioned obligations, after  an appropriate period of notice of not less than 12 months the guarantee scheme may, with the  consent of the competent authorities which issued the authorization, exclude the branch. Deposits  made before the date of exclusion shall continue to be covered by the voluntary scheme until the  dates on which they fall due. Depositors shall be informed of the withdrawal of the supplementary  cover. 5. The Commission shall report on the operation of paragraphs 2, 3 and 4 no later than 31 December  1999 and shall, if appropriate, propose amendments thereto. Article 5 Deposits held when the authorization of a credit institution authorized pursuant to Article 3 of  Directive 77/780/EEC is withdrawn shall continue to be covered by the guarantee scheme. Article 6 1. Member States shall check that branches established by a credit institution which has its head  office outwith the Community have cover equivalent to that prescribed in this Directive. Failing that, Member States may, subject to Article 9 (1) of Directive 77/780/EEC, stipulate that  branches established by a credit institution which has its head office outwith the Community must  join deposit-guarantee schemes in operation within their territories. 2. Actual and intending depositors at branches established by a credit institution which has its  head office outwith the Community shall be provided by the credit institution with all relevant  information concerning the guarantee arrangements which cover their deposits. 3. The information referred to in paragraph 2 shall be made available in the official language or  languages of the Member State in which a branch is established in the manner prescribed by national  law and shall be drafted in a clear and comprehensible form. Article 7 1. Deposit-guarantee schemes shall stipulate that the aggregate deposits of each depositor must be  covered up to ECU 20 000 in the event of deposits' being unavailable. Until 31 December 1999 Member States in which, when this Directive is adopted, deposits are not  covered up to ECU 20 000 may retain the maximum amount laid down in their guarantee schemes,  provided that this amount is not less than ECU 15 000. 2. Member States may provide that certain depositors or deposits shall be excluded from guarantee  or shall be granted a lower level of guarantee. Those exclusions are listed in Annex I. 3. This Article shall not preclude the retention or adoption of provisions which offer a higher or  more comprehensive cover for deposits. In particular, deposit-guarantee schemes may, on social  considerations, cover certain kinds of deposits in full. 4. Member States may limit the guarantee provided for in paragraph 1 or that referred to in  paragraph 3 to a specified percentage of deposits. The percentage guaranteed must, however, be  equal to or exceed 90 % of aggregate deposits until the amount to be paid under the guarantee  reaches the amount referred to in paragraph 1. 5. The amount referred to in paragraph 1 shall be reviewed periodically by the Commission at least  once every five years. If appropriate, the Commission shall submit to the European Parliament and  to the Council a proposal for a Directive to adjust the amount referred to in paragraph 1, taking  account in particular of developments in the banking sector and the economic and monetary situation  in the Community. The first review shall not take place until five years after the end of the  period referred to in Article 7 (1), second subparagraph. 6. Member States shall ensure that the depositor's rights to compensation may be the subject of an  action by the depositor against the deposit-guarantee scheme. Article 8 1. The limits referred to in Article 7 (1), (3) and (4) shall apply to the aggregate deposits  placed with the same credit institution irrespective of the number of deposits, the currency and  the location within the Community. 2. The share of each depositor in a joint account shall be taken into account in calculating the  limits provided for in Article 7 (1), (3) and (4). In the absence of special provisions, such an account shall be divided equally amongst the  depositors. Member States may provide that deposits in an account to which two or more persons are entitled as  members of a business partnership, association or grouping of a similar nature, without legal  personality, may be aggregated and treated as if made by a single depositor for the purpose of  calculating the limits provided for in Article 7 (1), (3) and (4). 3. Where the depositor is not absolutely entitled to the sums held in an account, the person who is  absolutely entitled shall be covered by the guarantee, provided that that person has been  identified or is identifiable before the date on which the competent authorities make the  determination described in Article 1 (3) (i) or the judicial authority makes the ruling described  in Article 1 (3) (ii). If there are several persons who are absolutely entitled, the share of each  under the arrangements subject to which the sums are managed shall be taken into account when the  limits provided for in Article 7 (1), (3) and (4) are calculated. This provision shall not apply to collective investment undertakings. Article 9 1. Member States shall ensure that credit institutions make available to actual and intending  depositors the information necessary for the identification of the deposit-guarantee scheme of  which the institution and its branches are members within the Community or any alternative  arrangement provided for in Article 3 (1), second subparagraph, or Article 3 (4). The depositors  shall be informed of the provisions of the deposit-guarantee scheme or any alternative arrangement  applicable, including the amount and scope of the cover offered by the guarantee scheme. That  information shall be made available in a readily comprehensible manner. Information shall also be given on request on the conditions for compensation and the formalities  which must be completed to obtain compensation. 2. The information provided for in paragraph 1 shall be made available in the manner prescribed by  national law in the official language or languages of the Member State in which the branch is  established. 3. Member States shall establish rules limiting the use in advertising of the information referred  to in paragraph 1 in order to prevent such use from affecting the stability of the banking system  or depositor confidence. In particular, Member States may restrict such advertising to a factual  reference to the scheme to which a credit institution belongs. Article 10 1. Deposit-guarantee schemes shall be in a position to pay duly verified claims by depositors in  respect of unavailable deposits within three months of the date on which the competent authorities  make the determination described in Article 1 (3) (i) or the judicial authority makes the ruling  described in Article 1 (3) (ii). 2. In wholly exceptional circumstances and in special cases a guarantee scheme may apply to the  competent authorities for an extension of the time limit. No such extension shall exceed three  months. The competent authorities may, at the request of the guarantee scheme, grant no more than  two further extensions, neither of which shall exceed three months. 3. The time limit laid down in paragraphs 1 and 2 may not be invoked by a guarantee scheme in order  to deny the benefit of guarantee to any depositor who has been unable to assert his claim to  payment under a guarantee in time. 4. The documents relating to the conditions to be fulfilled and the formalities to be completed to  be eligible for a payment under the guarantee referred to in paragraph 1 shall be drawn up in  detail in the manner prescribed by national law in the official language or languages of the Member  State in which the guaranteed deposit is located. 5. Notwithstanding the time limit laid down in paragraphs 1 and 2, where a depositor or any person  entitled to or interested in sums held in an account has been charged with an offence arising out  of or in relation to money laundering as defined in Article 1 of Directive 91/308/EEC, the  guarantee scheme may suspend any payment pending the judgment of the court. Article 11 Without prejudice to any other rights which they may have under national law, schemes which make  payments under guarantee shall have the right of subrogation to the rights of depositors in  liquidation proceedings for an amount equal to their payments. Article 12 Notwithstanding Article 3, those institutions authorized in Spain or in Greece and listed in Annex  III shall be exempt from the requirement to belong to a deposit-guarantee scheme until 31 December  1999. Such credit institutions shall expressly alert their actual and intending depositors to the fact  that they are not members of any deposit-guarantee scheme. During that time, should any such credit institution establish or have established a branch in  another Member State, that Member State may require that branch to belong to a deposit-guarantee  scheme set up within its territory under conditions consonant with those prescribed in Article 4  (2), (3) and (4). Article 13 In the list of authorized credit institutions which it is required to draw up pursuant to Article 3  (7) of Directive 77/780/EEC the Commission shall indicate the status of each credit institution  with regard to this Directive. Article 14 1. The Member States shall bring into force the laws, regulations and administrative provisions  necessary for them to comply with this Directive by 1 July 1995. They shall forthwith inform the  Commission thereof. When the Member States adopt these measures they shall contain a reference to this Directive or  shall be accompanied by such reference on the occasion of their official publication. The methods  of making such reference shall be laid down by the Member States. 2. The 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 Directive. Article 15 This Directive shall enter into force on the day of its publication in the Official Journal of the  European Communities. Article 16 This Directive is addressed to the Member States. Done at Brussels, 30 May 1994. For the European Parliament The President E. KLEPSCH For the Council The President G. ROMEOS (1) OJ No C 163, 30. 6. 1992, p. 6 and OJ No C 178, 30. 6. 1993, p. 14. (2) OJ No C 332, 16. 12. 1992, p. 13. (3) OJ No C 115, 26. 4. 1993, p. 96 and Decision of the European Parliament of 9 March 1994 (OJ No  C 91, 28. 3. 1994). (4) OJ No L 33, 4. 2. 1987, p. 16. (5) OJ No L 386, 30. 12. 1989, p. 1. Directive as amended by Directive 92/30/EEC (OJ No L 110, 28.  4. 1992, p. 52). (1) OJ No L 322, 17. 12. 1977, p. 30. Directive as last amended by Directive 89/646/EEC (OJ No L  386, 30. 12. 1989, p. 1). (1) OJ No L 375, 31. 12. 1985, p. 3. Directive as last amended by Directive 88/220/EEC (OJ No L  100, 19. 4. 1988, p. 31.). (1) OJ No L 124, 5. 5. 1989, p. 16. Directive is last amended by Directive 92/16/EEC (OJ No L 75,  21. 3. 1992, p. 48). (2) OJ No L 166, 28. 6. 1991, p. 77.  ANNEX I List of exclusions referred to in Article 7 (2) 1. Deposits by financial  institutions as defined in Article 1 (6) of Directive 89/646/EEC. 2. Deposits by insurance undertakings. 3. Deposits by government and central administrative authorities. 4. Deposits by provincial, regional, local and municipal authorities. 5. Deposits by collective investment undertakings. 6. Deposits by pension and retirement funds. 7. Deposits by a credit institution's own directors, managers, members personally liable, holders  of at least 5 % of the credit institution's capital, persons responsible for carrying out the  statutory audits of the credit institution's accounting documents and depositors of similar status  in other companies in the same group. 8. Deposits by close relatives and third parties acting on behalf of the depositors referred to in  7. 9. Deposits by other companies in the same group. 10. Non-nominative deposits. 11. Deposits for which the depositor has, on an individual basis, obtained from the same credit  institution rates and financial concessions which have helped to aggravate its financial  situation. 12. Debt securities issued by the same institution and liabilities arising out of own acceptances  and promissory notes. 13. Deposits in currencies other than: - those of the Member States, - ecus. 14. Deposits by companies which are of such a size that they are not permitted to draw up abridged  balance sheets pursuant to Article 11 of the Fourth Council Directive (78/660/EEC) of 25 July 1978  based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies  (1). (1) OJ No L 222, 14. 8. 1978, p. 11. Directive as last amended by Directive 90/605/EEC  (OJ No L 317, 16. 11. 1990, p. 60).  ANNEX II Guiding principles Where a branch applies to join a host Member State scheme  for supplementary cover, the host Member State scheme will bilaterally establish with the home  Member State scheme appropriate rules and procedures for paying compensation to depositors at that  branch. The following principles shall apply both to the drawing up of those procedures and in the  framing of the membership conditions applicable to such a branch (as referred to in Article 4  (2)): (a) the host Member State scheme will retain full rights to impose its objective and generally  applied rules on participating credit institutions; it will be able to require the provision of  relevant information and have the right to verify such information with the home Member State's  competent authorities; (b) the host Member State scheme will meet claims for supplementary compensation upon a declaration  from the home Member State's competent authorities that deposits are unavailable. The host Member  State scheme will retain full rights to verify a depositor's entitlement according to its own  standards and procedures before paying supplementary compensation; (c) home Member State and host Member State schemes will cooperate fully with each other to ensure  that depositors receive compensation promptly and in the correct amounts. In particular, they will  agree on how the existence of a counterclaim which may give rise to set-off under either scheme  will affect the compensation paid to the depositor by each scheme; (d) host Member State schemes will be entitled to charge branches for supplementary cover on an  appropriate basis which takes into account the guarantee funded by the home Member State scheme. To  facilitate charging, the host Member State scheme will be entitled to assume that its liability  will in all circumstances be limited to the excess of the guarantee it has offered over the  guarantee offered by the home Member State regardless of whether the home Member State actually  pays any compensation in respect of deposits held within the host Member State's territory.  ANNEX III List of credit institutions mentioned in Article 12 (a) Specialized classes  of Spanish institutions, the legal status of which is currently undergoing reform, authorized as - Entidades de Financiación o Factoring, - Sociedades de Arrendamiento Financiero, - Sociedades de Crédito Hipotecario. (b) The following Spanish state institutions: - Banco de Crédito Agrícola, SA, - Banco Hipotecario de España, SA, - Banco de Crédito Local, SA. (c) The following Greek credit cooperatives: - Lamia Credit Cooperative, - Ioannina Credit Cooperative, - Xylocastron Credit Cooperative, as well as those of the credit cooperatives of a similar nature listed below which are authorized  or in the process of being authorized on the date of the adoption of this Directive: - Chania Credit Cooperative, - Iraklion Credit Cooperative, - Magnissia Credit Cooperative, - Larissa Credit Cooperative, - Patras Credit Cooperative, - Thessaloniki Credit Cooperative.


Avis juridique important

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31968L0363

Council Directive 68/363/EEC of 15 October 1968 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in retail trade (ISIC ex Group 612)

Official Journal L 260 , 22/10/1968 P. 0001 - 0005 Finnish special edition: Chapter 6 Volume 1 P. 0064  Danish special edition: Series I Chapter 1968(II) P. 0488  Swedish special edition: Chapter 6 Volume 1 P. 0064  English special edition: Series I Chapter 1968(II) P. 0496  Greek special edition: Chapter 06 Volume 1 P. 0087  Spanish special edition: Chapter 06 Volume 1 P. 0086  Portuguese special edition Chapter 06 Volume 1 P. 0086

COUNCIL DIRECTIVE  of 15 October 1968  concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in retail trade (ISIC ex Group 612)  (68/363/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 54 (2) and (3) and 63 (2) and (3) thereof;  Having regard to the General Programme for the abolition of restrictions on freedom of establishment 1, and in particular Title IV C thereof;  Having regard to the General Programme for the abolition of restrictions on freedom to provide services 2, and in particular Title V C thereof;  Having regard to the proposal from the Commission;  Having regard to the Opinion of the European Parliament 3;  Having regard to the Opinion of the Economic and Social Committee 4;  Whereas the General Programmes provide for the abolition, after the end of the second year of the second stage of the transitional period and before the end of the second stage, of all discriminatory treatment based on nationality with regard to establishment and the provision of services in retail trade;  Whereas, by reason of the differences existing between Member States in respect of retail trade, it is desirable to specify as exactly as possible the activities to which this Directive applies;  Whereas the commercial activities of itinerant traders and hawkers or pedlars, including the activities of persons who sell in open-air markets and of those who sell in covered markets but not from permanently fixed installations, will be liberalised by a further Directive;  Whereas activities in respect of the letting out of goods for hire which are not covered by other Directives fall within the scope of this Directive;  Whereas goods may be resold or let out for hire not only to individuals or households for their private use, but also to small-scale users for the purposes of their trade or profession where this resale or letting out for hire constitutes a secondary activity in relation to the overall activity of the retail trader;  Whereas this Directive also covers the resale or letting out for hire of goods after processing, treatment or preparation for sale, where such operations are customary in the branch of trade in question;  Whereas Article 2 (3) of the Council Directive of 7 July 1964 5 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in mining and quarrying (ISIC Major Groups 11-19) and Article 2 (2) of the Council Directive of 7 July 1964 6 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (Industry and small craft industries) restrict the rights of a producer who establishes himself as such in another Member State and sells his own products in that State to selling from a single establishment in the country of production, until such time as trade in the products in question has been liberalised by other Directives;  Whereas, as a result of the entry into force of this Directive, retail trade in a large number of products will be liberalised ; whereas, in respect of such products, the restriction to selling in a single establishment in the country of production will accordingly no longer apply ; whereas, therefore, a producer  1OJ No 2, 15.1.1962, p. 36/62. 2OJ No 2, 15.1.1962, p. 32/62. 3OJ No 187, 9.11.1965, P./2914/65. 4OJ No 199, 20.11.1965, p. 3009/65. 5OJ No 117, 23.7.1964, p. 1871/64. 6OJ No 117, 23.7.1964, p. 1880/64.   establishing himself in another Member State on the basis of the Council Directives of 7 July 1964 referred to above will, by virtue of those same Directives, be authorised, to the extent that trade in the products in question has been liberalised, to sell his own products from more than one establishment in that Member State;  Whereas the effect of this Directive must also be to allow industrial or small craft producers, following liberalisation hereunder of retail trade in the products in question, to establish themselves in another Member State, not as producers but in order to sell their own products directly to the ultimate consumer from one or more establishments;  Whereas activities in respect of retail selling of goods by auction must also be included in the scope of this Directive;  Whereas this Directive does not apply to retail trade in medicinal and pharmaceutical products ; whereas, in accordance with the General Programmes, those activities will be liberalised at a later date;  Whereas, having regard to the differences which exist between Member States with regard to the organisation of retail trade in tobacco and in salt, those activities should be excluded from the scope of this Directive;  Whereas this Directive does not apply to retail trade in toxic products or pathogens ; whereas it has become evident that, having regard to the provisions laid down by law, regulation or administrative action in force in the Member States, special problems arise in respect of these activities concerning the protection of public health;  Whereas the General Programme for the abolition of restrictions on freedom of establishment provides that restrictions on the right to join professional or trade organisations must be abolished where the professional activities of the person concerned necessarily involve the exercise of this right;  Whereas the position of paid employees accompanying a person providing services or acting on his behalf will be governed by the provisions laid down in pursuance of Articles 48 and 49 of the Treaty;  Whereas separate Directives, applicable to all activities of self-employed persons, concerning provisions relating to the movement and residence of workers, and where necessary Directives on the co-ordination of the safeguards required by Member States of companies or firms for the protection of the interests of members and of others, have been or will be adopted;  Whereas, moreover, in some Member States retail trade in certain products is governed by rules relating to the taking up of that trade, while other States will, where necessary, adopt such rules ; whereas, therefore, certain transitional measures, the purpose of which is to make it easier for nationals of other Member States to take up and pursue activities in retail trade, are the subject of a separate Directive;  HAS ADOPTED THIS DIRECTIVE:    Article 1 Member States shall abolish, in respect of the natural persons and companies or firms covered by Title I of the General Programmes for the abolition of restrictions on freedom of establishment and freedom to provide services (hereinafter called "beneficiaries"), the restrictions referred to in Title III of those General Programmes affecting the right to take up and pursue the activities specified in Articles 2 and 3.   Article 2 1. The provisions of this Directive shall apply to activities of self-employed persons in retail trade (ISIC ex Group 612) 1 with the exception of retail trade in medicinal and pharmaceutical products, in toxic products and pathogens, in tobacco and in salt.  The provisions of this Directive shall not apply to commercial activities of itinerant traders, hawkers or pedlars. Neither shall they apply to activities of persons who sell in open-air markets or who sell in covered markets but not from permanently fixed installations, even where such activities are not subject to provisions of national law regarding itinerant traders or hawkers or pedlars.  This Directive shall not apply to examination of the organs of sight or hearing, or of other organs or parts of the body, carried out with a view to the fitting, adjustment or sale of appliances for the correction of sight or hearing defects, or of orthopaedic appliances.  2. For the purposes of this Directive, "activities in retail trade" means activities pursued by any natural person, or company or firm, who habitually and by way of trade buys goods in his own name and on his own account and resells such goods directly to the final consumer.  The goods may be resold either in the unaltered state or after such processing, treatment or preparation for sale as is customary in retail trade.  3. The provisions of this Directive shall apply also to the retail sales activities of producers who,  1International Standard Industrial Classification of All Economic Activities (Statistical Office of the United Nations, Statistical Studies, Series M No 4, Rev. 1, New York 1958).   without being established as such in the host country, themselves sell their products in that country to the final consumer.  4. The provisions of this Directive shall, in like manner as for the sales activities referred to in paragraphs 1 to 3, apply also to activities in respect of the letting out of goods for hire, in so far as such activities do not fall within the scope of the other Directives. The activities excluded for that reason are set out in the Annex to this Directive.   Article 3 The provisions of this Directive shall apply also to activities of self-employed intermediaries who, habitually and by way of trade, carry out retail selling by auction on behalf of others.   Article 4 Activities connected with the exercise of official authority in a Member State shall in the Member State in question, be excluded from the provisions of this Directive. These activities are as follows:  in France:  the sale by auction of goods and other articles of moveable property by officiers publics or officiers ministériels;  in Italy:  the sale by auction of goods by mediatori in the exercise of their official duties;  in Germany, Belgium, Luxembourg and the Netherlands:  participation by court bailiffs and notaries in auction sales.   Article 5 1. Member States shall in particular abolish the following restrictions:    (a) those which prevent beneficiaries from establishing themselves or providing services in the host country under the same conditions and with the same rights as nationals of that country;       (b) those existing by reason of administrative practices which result in treatment being applied to beneficiaries that is discriminatory by comparison with that applied to nationals.         2. The restrictions to be abolished shall include in particular those arising out of measures which prevent or limit establishment or provision of services by beneficiaries by the following means:    (a) in Belgium:  - the obligation to hold a carte professionelle (Article 1 of the Law of 19 February 1965);       (b) in Germany:      - the fact that the granting of an authorisation for the retail selling of explosives is, in respect of foreign nationals, subject in certain Länder to a test of economic necessity (Bedürfnisprüfung) and in other Länder to the condition of at least three years' prior residence in the Federal Republic of Germany;           - the requirement that natural persons wishing to carry on the retail sale of arms and ammunition within the meaning of the Waffengesetz of 18 March 1938 must be of German nationality (Waffengesetz paragraph 7 (2) and paragraph 3 (2);           - the rule prohibiting the granting of an authorisation to carry on retail trade in arms and ammunition to any foreign legal person, or to any domestic legal person a majority of whose capital is held by foreign nationals (paragraph 10 of the Verordnung implementing the Waffengesetz of 19 March 1938);                  (c) in France:      - the obligation to hold a carte d'identité d'étranger commerçant (décret-loi of 12 November 1938, Law of 8 October 1940);           - exclusion from the right to renew commercial leases (décret of 30 September 1953, Article 38);           - the requirement as to reciprocity imposed on foreign nationals wishing to carry on trade in carrier pigeons (Law of 27 June 1957, décret of 22 April 1958);           - the rule that persons to whom authorisations to trade in firearms "for defensive purposes" and ammunition therefor may be issued shall be French citizens (or, in the case of companies and firms, that proof of French citizenship be furnished in respect of members (associés en nom), active and sleeping partners (commandités and commanditaires) and managers (gérants) of firms (sociétés de personnes) and directors (administrateurs) and general managers (directeurs centraux) of companies limited by shares (sociétés par - actions) Article 2 of the décret-loi of 18 April 1939, Article 1 of décret A of 14 August 1939, Articles 9 and 6 of décret B of 14 August 1939);           - the requirement, in the case of companies holding special authorisations to import petroleum products and marketing such  products, that the Chairman of the Board of Directors (conseil d'administration), the Chairman and chief executive (président-directeur général) and a majority of the members of the Board of Directors be of French nationality, and the requirement that the holder of such authorisation reserve a certain number of posts within the administrative, technical and commercial management of the undertaking for French staff (décret No 65-144 of 26 February 1965);                  (d) in Italy:  - the requirement that foreign nationals wishing to take up and pursue activities in respect of trade in carrier pigeons must obtain special authorisation (Law of 13 December 1928 No 3086);       (e) in Luxembourg:  - the limited period of validity of authorisations granted to foreign nationals (Article 21 of the Law of 2 June 1962).          Article 6 1. Member States shall ensure that beneficiaries have the right to join professional or trade organisations under the same conditions and with the same rights and obligations as their own nationals.  2. In the case of establishment, the right to join professional or trade organisations shall entail eligibility for election or appointment to high office in such organisations. However, such posts may be reserved for nationals where, in pursuance of any provision laid down by law or regulation, the organisation concerned is connected with the exercise of official authority.  3. In the Grand Duchy of Luxembourg, membership of the Chambre de commerce or of the Chambre des métiers shall not give beneficiaries the right to take part in the election of the administrative organs of those Chambers.   Article 7 No Member State shall grant to any of its nationals who go to another Member State for the purpose of pursuing any activity referred to in Articles 2 and 3 any aid liable to distort the conditions of establishment.   Article 8 1. Where a host Member State requires of its own nationals wishing to take up any activity referred to in Article 2 or in Article 3 proof of good repute and proof that they have not previously been declared bankrupt, or proof of either one of these, that State shall accept as sufficient evidence, in respect of nationals of other Member States, the production of an extract from the "judicial record" or, failing this, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or the country whence the foreign national comes showing that these requirements have been met.  Where the country of origin or the country whence the foreign national comes does not issue such documentary proof of no previous bankruptcy, such proof may be replaced by a declaration on oath made by the person concerned before a judicial or administrative authority, a notary, or a competent professional or trade body, in the country of origin or in the country whence that person comes.  2. Where a host Member State imposes on its own nationals wishing to take up activities in retail trade in arms, ammunition or explosives or activities in respect of the retail selling of alcoholic beverages or of milk in bulk certain requirements as to good character or good repute, and proof that such requirements are satisfied cannot be obtained from the document referred to in the first subparagraph of paragraph 1, that State shall accept as sufficient evidence in respect of nationals of other Member States a certificate issued by a competent judicial or administrative authority in the country of origin or in the country whence the foreign national comes indicating that the requirements in question have been met. Such certificate shall relate to the specific facts regarded as relevant by the host country.  3. Documents issued in accordance with paragraph 1 or with paragraph 2 may not be produced more than three months after their date of issue.  4. Member States shall, within the time limit laid down in Article 9, designate the authorities and bodies competent to issue these documents and shall forthwith inform the other Member States and the Commission thereof.  5. Where in the host Member State proof of financial standing is required, that State shall regard certificates issued by banks in the country of origin or in the country whence the foreign national comes as equivalent to certificates issued in its own territory.    Article 9 Member States shall adopt the measures necessary to comply with this Directive within six months of its notification and shall forthwith inform the Commission thereof.   Article 10 This Directive is addressed to the Member States.     Done at Luxembourg, 15 October 1968.  For the Council  The President  G. SEDATI    ANNEX Activities excluded from the scope of this Directive  (Article 2 (4), second sentence) >PIC FILE= "T0011335">


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31978L0206

Commission Directive 78/206/EEC of 7 February 1978 on the customs treatment of goods re-imported in the unaltered state under outward processing arrangements

Official Journal L 062 , 04/03/1978 P. 0040 - 0040 Greek special edition: Chapter 02 Volume 6 P. 0138  Spanish special edition: Chapter 02 Volume 4 P. 0250  Portuguese special edition Chapter 02 Volume 4 P. 0250

COMMISSION DIRECTIVE  of 7 February 1978  on the customs treatment of goods re-imported in the unaltered state under outward processing arrangements  (78/206/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 76/119/EEC of 18 December 1975 on the harmonization of provisions laid down by law, regulation or administrative action in respect of outward processing (1), and in particular Article 14 thereof,  Whereas it follows from Articles 10 and 11 of the above Directive that the partial or total relief from import duties is determined by deducting from the amount of import duties applicable to the re-imported products the amount of import duties that would be applicable to the temporarily exported goods if they were imported into the Community from the country where they underwent processing or the last processing operation;  Whereas the implementation of these provisions is not essential in cases where goods are re-imported in the unaltered state in accordance with an authorization granted by the competent authorities pursuant to Article 8 ; whereas the customs clearance of these goods can be simplified by assimilating them to returned goods ; whereas their customs treatment should therefore be determined on the same basis as that laid down for returned goods by Council Regulation (EEC) No 754/76 of 25 March 1976 on the customs treatment applicable to goods returned to the customs territory of the Community (2), and its implementing Regulations, notwithstanding the provisions of Article 2 (1) (a) of that Regulation;  Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee for Customs Processing Arrangements,  HAS ADOPTED THIS DIRECTIVE:    Article 1 The customs treatment applicable to goods in the unaltered state which are re-imported in accordance with an authorization granted by the competent authorities pursuant to Article 8 of Directive 76/119/EEC shall be determined on the same basis as for returned goods in accordance with the provisions of Regulation (EEC) No 754/76 and its implementing Regulations.   Article 2 1. Member States shall bring into force the measures necessary to comply with this Directive not later than 1 March 1978 and shall forthwith inform the Commission thereof.  2. The Commission shall forward this information to the other Member States.   Article 3 This Directive is addressed to the Member States.     Done at Brussels, 7 February 1978.  For the Commission  Étienne DAVIGNON  Member of the Commission  (1)OJ No L 24, 30.1.1976, p. 58. (2)OJ No L 89, 2.4.1976, p. 1.


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31999L0095

Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports

Official Journal L 014 , 20/01/2000 P. 0029 - 0035

DIRECTIVE 1999/95/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILof 13 December 1999concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community portsTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the Economic and Social Committee(2),Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),Whereas:(1) Community action in the field of social policy aims, inter alia, at improving the health and safety of workers in their working environment;(2) Community action in the field of maritime transport aims, inter alia, at improving shipboard living and working conditions of seafarers, safety at sea and the prevention of pollution caused by maritime accidents;(3) During its eighty-fourth session of 8 to 22 October 1996 the International Labour Organisation Conference (ILO) adopted ILO Convention No 180 concerning Seafarers' Hours of Work and the Manning of Ships, 1996 (hereinafter "ILO Convention No 180" and the Protocol to the Merchant Shipping (Minimum Standards) Convention, 1976 (hereinafter "the Protocol to ILO Convention No 147");(4) Council Directive 99/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST)(4) adopted under Article 139(2) of the Treaty, aims to put into effect the said Agreement concluded on 30 September 1998 (hereinafter the "Agreement"); the content of the Agreement reflects certain provisions of ILO Convention No 180; the Agreement applies to seafarers on board every seagoing ship, whether publicly or privately owned, which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations;(5) The purpose of this Directive is to apply the provisions of Directive 1999/63/EC which reflect the provisions of ILO Convention No 180, to any ship calling at a Community port, irrespective of the flag it flies in order to identify and remedy any situation which is manifestly hazardous for the safety or health of seafarers; however, Directive 1999/63/EC includes requirements which are not to be found in ILO Convention No 180 and which should not therefore be enforced on board ships not flying the flag of a Member State;(6) Directive 1999/63/EC applies to seafarers on board every seagoing ship registered in the territory of a Member State; Member States should monitor compliance with all the provisions of the said Directive by ships registered in their territory;(7) In order to protect safety and to avoid distortions of competition, Member States should be allowed to verify compliance with the relevant provisions of Directive 1999/63/EC by all sea-going vessels calling at their ports, irrespective of the State in which they are registered;(8) In particular, ships flying the flag of a State which is not a party to ILO Convention No 180 or the Protocol to ILO Convention No 147 should not receive more favourable treatment than those flying the flag of a State which is a party to either the Convention or Protocol or to both of them;(9) For the control of the effective enforcement of Directive 1999/63/EC, it is necessary that Member States carry out inspections on board ships, notably after having received a complaint by the master, a crew member, or any person or organisation with a legitimate interest in the safe operation of the ship, shipboard living and working conditions or the prevention of pollution;(10) For the purposes of this Directive Member States, on their own initiative, may designate, as appropriate, Port State Control inspectors to carry out inspections on board vessels calling at Community ports;(11) Evidence that a ship does not comply with the requirements of Directive 1999/63/EC may be obtained after verification of the shipboard working arrangements and seafarers' records of hours of work or hours of rest, or when the inspector has a reasonable belief that seafarers are excessively fatigued;(12) In order to rectify any conditions on board a ship which are clearly hazardous to safety or health, the competent authority of the Member State in whose port the ship has called may impose a prohibition on leaving the port until the deficiencies found have been rectified or the crew is sufficiently rested;(13) Since Directive 1999/63/EC reflects the provisions of ILO Convention No 180, verification of compliance with the provisions of that Directive by ships registered in the territory of a third State can take place only when this Convention has entered into force,HAVE ADOPTED THIS DIRECTIVE:Article 1Purpose and scope1. The purpose of this Directive is to provide a mechanism for the verification and enforcement of compliance by ships calling at ports of Member States with Directive 1999/63/EC in order to improve maritime safety, working conditions and the health and safety of seafarers on board ships.2. Member States shall take appropriate measures to ensure that ships which are not registered in their territory or not flying their flag comply with clauses 1 to 12 of the Agreement annexed to Directive 1999/63/EC.Article 2DefinitionsFor the purposes of this Directive,(a) "ship" means any seagoing vessel, whether publicly or privately owned, which is ordinarily engaged in commercial maritime operations. Fishing vessels are not included in this definition,(b) "competent authority" means the authorities designated by the Member States to perform functions under this Directive,(c) "inspector" means a public-sector employee or other person, duly authorised by the competent authority of a Member State to inspect the working conditions on board, and responsible to that competent authority,(d) "complaint" means any information or report submitted by a member of the crew, a professional body, an association, a trade union or, generally, any person with an interest in the safety of the ship, including an interest in safety or health hazards to its crew.Article 3Preparation of reportsWithout prejudice to Article 1 (2), if a Member State in whose port a ship calls voluntarily in the normal course of its business or for operational reasons receives a complaint which it does not consider manifestly unfounded or obtains evidence that the ship does not conform to the standards referred to in Directive 1999/63/EC, it shall prepare a report addressed to the government of the country in which the ship is registered and, when an inspection carried out pursuant to Article 4 provides relevant evidence, the Member State shall take the measures necessary to ensure that any conditions on board which are clearly hazardous to the safety or the health of the crew are rectified.The identity of the person lodging the report or the complaint must not be revealed to the master or the owner of the ship concerned.Article 4Inspection and more detailed inspection1. When carrying out an inspection, in order to obtain evidence that a ship does not conform to the requirements of Directive 1999/63/EC, the inspector shall determine whether:- a table with the shipboard working arrangements has been established in the working language or languages of the ship and in English according to the model format reproduced in Annex I, or in an alternative equivalent format, and is posted on board in an easily accessible place;- seafarers' records of hours of work or hours of rest have been established in the working language or languages of the ship and in English according to the model format reproduced in Annex II, or in an alternative equivalent format, and are kept on board and there is proof that the records have been endorsed by the competent authority of the State where the ship is registered.2. If a complaint has been received or the inspector from his own observations on board believes that the seafarers may be unduly fatigued, the inspector shall conduct a more detailed inspection, pursuant to paragraph 1, to determine whether the working hours or rest periods recorded conform to the standards laid down in Directive 1999/63/EC and that they have been duly observed, taking into account other records relating to the operation of the ship.Article 5The rectification of deficiencies1. If the inspection or the more detailed inspection reveals that the ship does not conform to the requirements of Directive 1999/63/EC, the Member State shall take the measures necessary to ensure that any conditions on board which are clearly hazardous to the safety or health of seafarers are rectified. Such measures may include a prohibition on leaving the port until deficiencies have been rectified or the seafarers have been sufficiently rested.2. If there is clear evidence that watchkeeping personnel for the first watch or subsequent relieving watches are unduly fatigued, the Member State shall ensure that the ship shall not leave port until the deficiencies found have been rectified or the seafarers in question have been sufficiently rested.Article 6Follow-up procedures1. In the event that a ship is prohibited from leaving the port pursuant to Article 5, the competent authority of the Member State shall inform the master, the owner or operator, the administration of the flag State or the State where the ship is registered or the Consul, or in his absence the nearest diplomatic representative of the State, of the results of the inspections referred to in Article 4, of any decisions taken by the inspector and of corrective actions required, if necessary.2. When carrying out an inspection under this Directive, all possible efforts should be made to avoid a ship being unduly delayed. If a ship is unduly delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue delay, the burden of proof shall lie with the owner or operator of the ship.Article 7Right of appeal1. The owner or the operator of the ship or his representative in the Member State shall have a right of appeal against a detention decision taken by the competent authority. An appeal shall not cause the detention to be suspended.2. Member States shall establish and maintain appropriate procedures for this purpose in accordance with their national legislation.3. The competent authority shall properly inform the master of a ship referred to in paragraph 1 of the right of appeal.Article 8Administrative cooperation1. Member States shall take the necessary steps to provide, in conditions compatible with those laid down in Article 14 of Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control)(5), for cooperation between their relevant authorities and the relevant competent authorities of other Member States to ensure the effective application of this Directive and shall notify the Commission of the provision made.2. Information on the measures taken pursuant to Articles 4 and 5 shall be published in accordance with procedures such as those set out in the first paragraph of Article 15 of Directive 95/21/EC.Article 9"No more favourable" treatment clauseWhen inspecting a ship registered in the territory of or flying the flag of a State which has not signed ILO Convention No 180 or the Protocol to ILO Convention No 147, Member States shall, once the Convention and the Protocol are in force, ensure that the treatment given to such ships and their crew is no more favourable than that given to a ship flying the flag of a State which is a party to either ILO Convention No 180 or the Protocol to ILO Convention No 147 or both of them.Article 10Final provisions1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 June 2002.2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.3. Member States shall immediately notify to the Commission all provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.Article 11Ships from non-Member StatesThis Directive shall apply to ships not registered in the territory of, or not flying the flag of, a Member State only on the date of entry into force of ILO Convention No 180 and the date of entry into force of the Protocol to ILO Convention No 147.Article 12Entry into forceThis Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.Article 13AddresseesThis Directive is addressed to the Member States.Done at Brussels, 13 December 1999.The European ParliamentThe PresidentN. FONTAINEFor the CouncilThe PresidentS. HASSI(1) OJ C 43, 17.2.1999, p. 16.(2) OJ C 138, 18.5.1999, p. 33.(3) Opinion of the European Parliament of 14 April 1999 (OJ C 219, 30.7.1999, p, 240), Council common position of 12 July 1999 (OJ C 249, 1.9.1999, p, 7) and Decision of the European Parliament of 4 November 1999 (not yet published in the Official Journal).(4) OJ L 167, 2.7.1999, p. 37.(5) OJ L 157, 7.7.1995, p. 1. Directive as last amended by Directive 98/42/EC (OJ L 184, 27.6.1998, p. 40).ANNEX I>PIC FILE= "L_2000014EN.003202.EPS">>PIC FILE= "L_2000014EN.003301.EPS">ANNEX II>PIC FILE= "L_2000014EN.003402.EPS">>PIC FILE= "L_2000014EN.003501.EPS">


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31990L0088

Council Directive 90/88/EEC of 22 February 1990 amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit

Official Journal L 061 , 10/03/1990 P. 0014 - 0018 Finnish special edition: Chapter 15 Volume 9 P. 0174  Swedish special edition: Chapter 15 Volume 9 P. 0174

*****COUNCIL  DIRECTIVE  of 22 February 1990  amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit  (90/88/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a thereof,  Having regard to the proposal from the Commission (1),  In cooperation with the European Parliament (2),  Having regard to the opinion of the Economic and Social Committee (3),  Whereas Article 5 of Council Directive 87/102/EEC (4) provides for the introduction of a Community method or methods of calculating the annual percentage rate of lcharge for consumer credit;  Whereas it is desirable, in order to promote the establishment and functioning the internal market and to ensure that consumers benefit from a high level of protection, that one method of calculating the said annual percentage rate of charge should be used throughout the Community;  Whereas it is desirable, with a view to introducing such a method and in accordance with the definition of the total cost of credit to the consumer, to draw up a single mathematical formula for calculating the annual percentage rate of charge and for determining credit cost items to be used in the calculation by indicating those costs which must not be taken into acount;  Whereas, during a trasitional period, Member States which prior to the date of notification of this Directive, apply laws which permit the use of another mathematical formula for calculating the annual percentage rate of charge may continue to apply such laws;  Whereas, before expiry of the transitional period and in the light of experience, the Council will, on the basis of a proposal from the Commission, take a decision which will make it possible to apply a single Community mathematical formula;  Whereas it is desirable, whenever necessary, to adopt certain hypotheses for calculating the annual percentage rate of charge;  Whereas by virtue of the special nature of loans guaranteed by a mortgage secured on immoveable property it is desirable that such credit should continue to be partially excluded from this Directive;  Whereas the information which must be communicated to the consumer in the written contract should be amplified,  HAS ADOPTED THIS DIRECTIVE:  Article 1  Directive 87/102/EEC is hereby amended as follows:  1. In Article 1 (2), points (d) and (e) shall be replaced by the following:  '(d) "total cost of the credit to the consumer" means all the costs, including interest and other charges, which the consumer has to pay for the credit.';  '(e) "annual percentage rate of charge" means the total cost of the credit to theconsumer, expressed as an annual percentage of the amount of the credit granted and calculated in accordance with Article 1a'.  2. The following Article shall be inserted:  'Article 1a  1. (a) The annual percentage rate of charge, which shall be that equivalent, on an annual basis, to the present value of all commitments (loans, repayments and charges), future or existing, agreed by the creditor and the borrower, shall be calculated in accordance with the mathematical formula set out in Annex II.  (b) Four examples of the method of calculation are given in Annex III, by way of illustration.  2. For the purpose of calculating the annual percentage rate of charge, the "total cost of the credit to the consumer" as defined in Article 1 (2) (d) shall be determined, with the exception of the following charges:  (i) charges payable by the borrower for non-compliance with any of his commitments laid down in the credit agreement;  (ii) charges other than the purchase price which, in purchases of goods or services, the consumer is obliged to pay whether the transaction is paid in cash or by credit;  (iii) charges for the transfer of funds and charges for keeping an account intended to receive payments towards the reimbursement of the credit the payment of interest and other charges except where the consumer doesn ot have reasonable freedom of choice in the matter and where such charges are abnormally high; this provision shall not, however, apply to charges for collection of such reimbursements or payments, whether made in cash or otherwise;  (iv) membership subscriptions to associations or groups and arising from agreements separate from the credit agreement, even though such subscriptions have an effect on the credit terms;  (v) charges for insurance or guarantees; included are, however, those designed to ensure payment to the creditor, in the event of the death, invalidity, illness or unemployment of the consumer, of a sum equal to or less than the total amount of the credit togehter with relevant interest and other charges which have to be imposed by the creditor as a condition for credit being granted.  3. (a) Where credit transactions referred to in this Directive are subject to the provisions of national laws in force on 1 March 1990 which impose maximum limits on the annual percentage rate of charge for such transactions and, where such provisions permit standard costs other than those described in paragraph 2 (i) to (v) not to be included in those maximum limits, Member States may, solely in respect of such transactions, not include the aforementioned costs when calculating the annual percentage rate of charge, as stipulated in this Directive, provided that there is a requirement, in the cases mentioned in Article 3 and in the credit agreement, that the consumer be informed of the amount and inclusion thereof in the payments to be made.  (b) Member States may no longer apply point (a) from the date of entry into force of the single mathematical formula for calculating the annual percentage rate of charge in the Community, pursuant to the provisions of paragraph 5 (c).  4. (a) The annual percentage rate of charge shall be calculated at the time the credit contract is concluded, without prejudice to the provisions of Article 3 concerning advertisements and special offers.  (b) The calculation shall be made on the assumption that the credit contract is valid for the period agreed and that the creditor and the consumer fulfil their obligations under the terms and by the dates agreed.  5. (a) As a transitional measure, notwithstanding the provisions of paragraph 1 (a), Member States which, prior to 1 March 1990, applied legal provisions whereby a mathematical formula different from that given in Annex II could be used for calculating the annual percentage rate of charge, may continue applying that formula within their territory for a period of three years starting from 1 January 1993.  Member States shall take the appropriate measures to ensure that only one mathematical formula for calculating the annual percentage rate of charge is used within their territory.  (b) Six months before the expiry of the time limit laid down in point (a) the Commission shall submit to the Council a report, accompanied by a proposal, which will make it possible in the light of experience, to apply a single Community mathematical formula for calculating the annual percentage rate of charge.  (c) The Council shall, acting by a qualified majority on the basis of the proposal from the Commission, take a decision before 1 January 1996.  6. In the case of credit contracts containing clauses allowing variations in the rate of interest and the amount or level of other charges contained in the annual percentage rate of charge but unquantifiable at the time when it is calculated, the annual percentage rate of charge shall be calculated on the assumption that interest and other charges remain fixed and will apply until the end of the credit contract. 7. Where necessary, the following assumptions may be made in calculating the annual percentage rate of charge:  - if the contract does not specify a credit limit, the amount of credit granted shall be equal to the amount fixed by the relevant Member State, without exceeding a figure equivalent to ECU 2 000;  - if there is no fixed timetable for repayment, and one cannot be deduced from the terms of the agreement and the means for repaying the credit granted, the duration of the credit shall be deemed to be one year;  - unless otherwise specified, where the contract provides for more than one repayment date, the credit will be made available and the repayments made at the earliest time provided for in the agreement'.  3. Article 2 (3) shall be replaced by the following:  '3. The provisions of Article 1a and of Articles 4 to 12 shall not apply to credit agreements or agreements promising to grant credit, secured by mortgage on immovable property, insofar as these are not already excluded from the Directive under paragraph 1 (a).'  4. The following subparagraph shall be added to Article 4 (2):  '(c) a statement of the amount, number and frequency or dates of the payments which the consumer must make to repay the credit, as well as of the payments for interest and other charges; the total amount of these payments should also be indicated where possible;  (d) a statement of the cost items referred to in Article 1a (2) with the exception of expenditure related to the breach of contractual obligations which were not included in the calculation of the annual percentage rate of charge but which have to be paid by the consumer in given circumstances, together with a statement indentifying such circumstances. Where the exact amount of those items is known, that sum is to be indicated; if that is not the case, either a method of calculation or as accurate an estimate as possibe is to be provided where possible'.  5. Article 5 shall be deleted.  6. The Annex shall become Annex I and the following point shall be added to paragraph 1:  '(ix) the obligation on the consumer to save a certain amount of money which must be placed in a special account'.  7. Annexes II and III attached hereto shall be added.  Article 2  1. Member States shall take the measures necessary to cumply with this Directive not later than 31 December 1992 and shall forthwith inform the Commission thereof.  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 Directive.  Article 3  This Directive is addressed to the Member States.  Done at Brussels, 22 February 1990.  For the Council  The President  D. J. O'MALLEY  (1) OJ No C 155, 14. 6. 1988, p. 10.  (2) OJ No C 96, 17. 4. 1989, p. 87 and  OJ No C 291, 20. 11. 1989, p. 50.  (3) OJ No C 337, 31. 12. 1988, p. 1.  (4) OJ No L 42, 12. 2. 1987, p. 48.  ANNEX  'ANNEX II  THE BASIC EQUATION EXPRESSING THE EQUIVALENCE OF LOANS ON THE ONE HAND, AND REPAYMENTS AND CHARGES ON THE OTHER:  1.2.3.4.5.6 //  // K = m K = 1   // AK (1 + i) tK  // =  // K' = m' K' = 1   // A'K' (1 + i) tK'  Meaning of letters and symbols:  1.2 // K   // is the number of a loan   // K'   // is the number of a repayment or a payment of charges   // AK   // is the amount of loan number K   // A'K'   // is the amount of repayment number K   //  // represents a sum   // m   // is the number of the last loan   // m'   // is the number of the last repayment or payment of charges   // tK   // is the interval, expressed in years and fractions of a year, between the date of loan No 1 and those of subsequent loans Nos 2 to m   // tK'  // is the interval expressed in years and fractions of a year between the date of loan No 1 and those of repayments or payments of charges Nos 1 to m   // i   // is the percentage rate that can be calculated (either by algebra, by successive approximations, or by a computer programme) where the other terms in the equation are known from the contract or otherwise.  Remarks  (a) The amounts paid by both parties at different times shall not necessarily be equal and shall not necessarily be paid at equal intervals.  (b) The starting date shall be that of the first loan.  (c) Intervals between dates used in the calculations shall be expressed in years or in fractions of a year.  ANNEX III  EXAMPLES OF CALCULATIONS  First example  Sum loaned S = ECU 1 000.  It is repaid in a single payment of ECU 1 200 made 18 months, i. e. 1,5 years, after the date of the loan.  1.2 // The equation becomes 1 000 =   // 1 200 (1+i) 1,5 1.2.3 // or   // (1+i) 1,5   // = 1,2   //   // 1+i   // = 1,129243 . . .   //   // i   // = 0,129243 . . .  This amount will be rounded down to 12,9 % or 12,92 % depending on whether the State or habitual practice allows the percentage to be rounded off to the first or second decimal.  Second example  The sum agreed is S = ECU 1 000 but the creditor retains ECU 50 for enquiry and administrative expenses, so that the loan is in fact ECU 950; the repayment of ECU 1 200, as in the first example, is made 18 months after the date of the loan.  1.2 // The equation becomes 950 =   // 1 200 (1+i) 1,5 1.2.3.4.5.6 //   // or   // (1+i) 1,5   // =   // 1 200 950  // = 1,263157 . . .  1.2.3.4.5,6 //   //   // 1+i   // =  // 1,16851 . . .   //   //   // i   // =   // 0,16851 . . . rounded off to 16,9 % or 16,85 %.  Third example  The sum lent is ECU 1 000, repayable in two amounts each of ECU 600, paid after one and two years respectively.  1.2.3.4 // The equation becomes 1 000 =   // 600 1+i   // +  // 600 (1+i) 2;  it is solved by algebra and produces i = 0,1306623, rounded off to 13,1 % or 13,07 %.  Fourth example  The sum lent is ECU 1 000 and the amounts to be paid by the borrower are:  1.2.3 // After three months   // (0,25 years)   // ECU 272  // After six months   // (0,50 years)   // ECU 272   // After twelve months   // (1 year)   // ECU 544  // Total   //  // ECU 1 088  The equation becomes:  1.2.3.4.5.6 // 1 000 =   // 272 (1+i) 0,25  // +   // 272 (1+o) 0,50  // +   // 544 1+i  This equation allows i to be calculated by successive approximations, which can be programmed on a ocket computer.  The result is:  i = 0,1321 rounded off 13,2 or 13,21 %.'