Avis juridique important

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31998L0029

Council Directive 98/29/EC of 7 May 1998 on harmonisation of the main provisions concerning export credit insurance for transactions with medium and long-term cover

Official Journal L 148 , 19/05/1998 P. 0022 - 0032

COUNCIL DIRECTIVE 98/29/EC of 7 May 1998 on harmonisation of the main provisions concerning export credit insurance for transactions with medium and long-term coverTHE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof,Having regard to the proposal from the Commission,(1) Whereas medium and long-term export credit insurance plays a crucial role in international trade and constitutes a major commercial policy instrument;(2) Whereas medium and long-term export credit insurance plays an important part in trade with developing countries and thus fosters their integration into the world economy, which is an objective of Community development policy;(3) Whereas the differences between the official medium and long-term export credit insurance systems currently operating in the Member States with regard to the main constituents of cover, premiums and cover policy may result in distorsions of competition among enterprises within the Community;(4) Whereas it seems appropriate that the measures provided for in this Directive should not go beyond what is necessary to achieve the objective of the harmonisation necessary to ensure that export policy is based on uniform principles and that competition between enterprises in the Community is not distorted;(5) Whereas in order to lessen existing distorsions of competition, it is desirable that the different official export credit insurance systems be harmonised, as envisaged in Article 112 of the Treaty, on the basis of uniform principles and in such a way as to form an integral part of the common commercial policy;(6) Whereas the provision by governments (or special institutions controlled by governments) of export credit guarantee or insurance programmes at premium rates which are inadequate to cover the long-term operating costs and losses of the programmes are classified as prohibited export subsidies in the Agreement on Subsidies and Countervailing Measures concluded in the framework of the Uruguay Round of multilateral trade negotiations (1986 to 1994) (1), in particular under Article 3(1)(a) and paragraph (j) of Annex I thereto;(7) Whereas the premium charged by credit insurers should correspond to the risk insured;(8) Whereas harmonisation would foster cooperation among the credit insurers acting on behalf of the State or with State support, and enhance cooperation among enterprises within the Community as envisaged by Article 130 of the Treaty;(9) Whereas both harmonisation and cooperation are major and crucial factors in the competitiveness of Community exporters on non-Community markets;(10) Whereas the Commission White Paper on completing the internal market adopted by the European Council in June 1985 stresses the importance of an environment conducive to cooperation among enterprises in the Community;(11) Whereas, by a Decision (2) dated 27 September 1960, the Council set up a Policy Coordination Group for Credit Insurance, Credit Guarantees and Financial Credits;(12) Whereas on 15 May 1991 the said Policy Coordination Group mandated experts from each of the Member States at that time who, as the Single Market 1992 Experts' Group, submitted reports containing a set of proposals on 27 March 1992, 11 June 1993 and 9 February 1994;(13) Whereas by Decision 93/112/EEC (3), the Council implemented into Community law the OECD Arrangement on Guidelines for Officially Supported Export Credits;(14) Whereas Council Directive 70/509/EEC of 27 October 1970 on the adoption of a common credit insurance policy for medium- and long-term transactions with public buyers (4) and Council Directive 70/510/EEC of 27 October 1970 on the adoption of a common credit insurance policy for medium and long-term transactions with private buyers (5), should be replaced by this Directive;(15) Whereas this initial harmonisation of export credit insurance should be considered as a step towards convergence of the various systems of the Member States,HAS ADOPTED THIS DIRECTIVE:Article 1 Scope This Directive applies to cover for transactions related to the export of goods and/or services originating in a Member State, in so far as this support is provided directly or indirectly for the account of, or with the support of, one or more Member States, involving a total risk period of two years or more, that is to say, the repayment period including the manufacturing period.This Directive does not apply to cover for bid, advance payment, performance and retention bonds. Neither does it apply to cover for risks relating to construction equipment and material when locally used for the performance of the commercial contract.Article 2 Obligations of the Member States Member States shall ensure that any institution providing cover directly or indirectly in the form of export credit insurance, guarantees or refinancing for the account of the Member State or with the support of the Member State representing the government itself or controlled by and/or acting under the authority of the government providing cover, hereinafter referred to as 'insurers`, covers transactions related to the export of goods and/or service in accordance with the provisions set out in the Annex, when destined for countries outside the Community and financed by buyer credit or supplier credit or paid on cash terms.Article 3 Implementing decisions The decisions referred to in point 46 of the Annex shall be taken by the Commission, in accordance with the procedure laid down in Article 4.Article 4 Committee The Commission shall be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.The Commission shall adopt measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event:- the Commission shall defer application of the measures which it has decided for a period which may not exceed one month from the date of communication,- the Council, acting by a qualified majority, may take a different decision within the time limit referred to in the first indent.Article 5 Report and review The Commission shall submit a report to the Council by 31 December 2001 on the experience gained and the convergence achieved in applying the provisions laid down in this Directive.Article 6 Relationship to other procedures The procedures laid down by this Directive supplement those established by Decision 73/391/EEC (6).Article 7 Repeal Directive 70/509/EEC and Directive 70/510/EEC are hereby repealed.Article 8 Transposition Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 April 1999. They shall forthwith inform the Commission thereof.When 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 Member States.Article 9 Entry into force This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.Article 10 Addressees This Directive is addressed to the Member States.Done at Brussels, 7 May 1998.For the CouncilThe PresidentM. BECKETT(1) OJ L 336, 23. 12. 1994, p. 156.(2) OJ 66, 27. 10. 1960, p. 1339/60.(3) OJ L 44, 22. 2. 1993, p. 1. Decision as last amended by Decision 97/530/EC (OJ L 216, 8. 8. 1997, p. 77).(4) OJ L 254, 23. 11. 1970, p. 1. Directive as last amended by the 1994 Act of Accession.(5) OJ L 254, 23. 11. 1970, p. 26. Directive as last amended by the 1994 Act of Accession.(6) OJ L 346, 17. 12. 1973, p. 1. Decision as amended by Decision 76/641/EEC (OJ L 223, 16. 8. 1976, p. 25).ANNEX COMMON PRINCIPLES FOR EXPORT CREDIT INSURANCE CHAPTER I: CONSTITUENTS OF COVER Section 1: General principles and definitions 1. Scope of the common principles (a) The common principles laid down in this Annex shall apply to cover for supplier credit transactions with public or private buyers and to cover for buyer credit transactions with public or private borrowers.(b) The common principles shall apply to cover for all risks as defined in point 4. Nevertheless, the insurer may decide in each individual case to limit its cover to certain risks only.(c) When all the obligations of a private debtor are wholly and unconditionally guaranteed by an entity which is considered public in accordance with point 5 of this Annex, the common principles for public debtors shall apply.When used in this Annex, the term 'debtor` means either the buyer or borrower as referred to in point 1(a), or their guarantor with regard to the insured transaction.2. Characteristics of supplier credit (a) The term 'supplier credit` shall apply to a commercial contract providing for an export of goods and/or services originating in a Member State between one or more suppliers and one or more buyers, whereby the buyer(s) undertake to pay the supplier(s) on cash terms or on credit terms.(b) Cover provisions for supplier credit shall apply where cover is given to enterprises established in a Member State in accordance with Article 58 of the Treaty.(c) If a commercial contract is being financed by means of a buyer credit or any other financing arrangement, cover given to the exporter for the commercial contract itself shall follow the provisions for cover for supplier credits.3. Characteristics of buyer credit (a) The term 'buyer credit` shall apply to a loan agreement between one or more financial institutions and one or more borrowers financing a commercial contract providing for an export of goods and/or services originating in a Member State, whereby the lending institution(s) undertake to pay the supplier(s) under the underlying transaction on cash terms on behalf of the buyer(s)/borrower(s), while the buyer(s)/borrower(s) will reimburse the lending institution(s) on credit terms.(b) Cover provisions for buyer credit shall apply where cover is given to financial institutions, irrespective of their place of establishment or registration, provided that the buyer credit constitutes an unconditional obligation of the borrower to repay its debt, irrespective of the performance of the commercial contract to be financed.(c) Cover provisions for buyer credit shall apply to cover given to a financial institution in respect of negotiable instruments properly held by that financial institution and payable by a buyer pursuant to any arrangement for the financing of a commercial contract.4. Definition of the risks involved (a) The commercial risk for private debtors is determined by points 14, 15 and 16.(b) The political risk for private debtors is determined by points 17 to 22, and for public debtors by points 15 to 22.(c) The manufacturing risk is determined by point 6(b).(d) The credit risk is determined by point 6(c).5. Status of the debtor (a) Any entity which, in whatever form, represents the public authority itself and which cannot, either judicially or administratively, be declared insolvent, shall be considered as a public debtor. This may either be a sovereign debtor, i.e. an entity which represents the full faith and credit of the State, e.g. the Ministry of Finance or the Central Bank, or any other subordinate public entity, such as regional, municipal or parastatal authorities or other public institutions.(b) When assessing the status of a debtor, the insurer shall take into account:- the legal status of the debtor,- the real effectiveness of any legal action against the debtor,- the debtor's sources of finance and revenue; this shall take account of the fact that a public debtor may also discharge his debts by using sources which are not related to central government funds, for example through revenues raised by local taxation, or by providing public services,- the degree of influence or control over the debtor that can be exercised by the host country government.(c) Any debtor which is not public, according to the aforementioned criteria, shall be, in principle, considered as private.Section 2: Scope of cover 6. Covered risk (a) The covered risks shall be the risk of loss arising from the manufacturing and the credit risk.(b) Loss arising from manufacturing risk materialises when the performance of the contractual obligations of the policyholder, or the manufacture of the goods ordered, has been suspended for a period of six consecutive months, provided that such suspension is caused directly and exclusively by the occurrence of one or more of the covered causes of loss listed in points 14 to 22.(c) Loss arising from credit risk materialises when the policyholder has been unable to obtain payment of any amount due to it under the relevant commercial contract or loan agreement during a period of three months after the due date, provided that such non-payment is caused directly and exclusively by the occurrence of one or more of the covered causes of loss listed in points 14 to 22.(d) Where the risk related to a buyer credit is guaranteed unconditionally the insurer shall follow the principles and procedures laid down in points 32, 33, and 47(a).7. Extent of cover (a) Cover for manufacturing risk shall include, within the limit of the contract amount, the costs incurred by the policyholder either in performing its contractual obligations or in manufacturing the goods subject to the contract, provided that such costs are properly attributable to the performance of the contract.Cover for the manufacturing risk shall not include:- costs incurred in respect of goods and/or services for which cover of the credit risk has already taken effect,- amounts paid by the policyholder following the calling of a bond issued in respect of the covered contract; however, this does not prevent the insurer from covering such risks outside the scope of this Directive, and- amounts corresponding to penalties and damages paid by the policyholder to the debtor.(b) Cover for credit risk shall include the amount (principal and interest) owed by the buyer under the commercial contract or by the borrower under the loan agreement, including interest accruing after the due date (post-maturity interest).Cover for credit risk shall exclude amounts corresponding to penalties and damages paid by the policyholder to the debtor.8. Percentage of cover (a) The percentage of cover and the basis for determining the maximum amount of the indemnity for which the insurer may be liable shall be expressly laid down in the credit insurance policy issued by the insurer.(b) If an insurer gives a cover percentage higher than 95 %, it shall follow the principles and procedures laid down in points 32, 33 and 47(a).9. Uninsured percentage Without prejudice to the provisions of point 8(b), the policyholder shall retain for its own account any uninsured percentage. The insurer may decide to allow the policyholder to wholly or partially lay off such uninsured percentage.10. Cover for transactions in foreign currency If transactions provide for payment or financing in one or more foreign currencies, cover may be given in any such currency.11. Foreign supplies Subcontracts with parties in one or more Member States are automatically included in the cover in accordance with Council Decision 82/854/EEC of 10 December 1982 on the rules applicable, in the fields of export guarantees and finance for export, to certain subcontracts with parties in other Member States or in non-member countries (1).12. Effective date of cover (a) In case of a buyer credit, cover shall take effect on the date of entry into force of the loan agreement, provided that the conditions precedent stipulated in the credit insurance policy and the loan agreement have been met.(b) In case of a supplier credit, cover of the manufacturing risk shall take effect on the date of entry into force of the commercial contract, provided that the conditions precedent stipulated in the credit insurance policy and the commercial contract have been met.Cover of the credit risk shall take effect on the date on which full completion of the contractual obligations of the policyholder entitles the latter to payment, provided that the conditions precedent stipulated in the credit insurance policy and the commercial contract have been met. However, cover of the credit risk may take effect on the date of each partial delivery or partial dispatch, provided that the policyholder, under the terms of the contract, is entitled to payment of a fixed and definitive amount corresponding to the value of the goods and/or services delivered or dispatched.Section 3: Causes of loss and exclusions of liability 13. Liability of the insurer The insurer shall be liable if the loss is directly and exclusively attributable to one or more of the covered causes of loss laid down in points 14 to 22.14. Insolvency Insolvency of the private debtor and, if any, its guarantor, either de jure or de facto.15. Default Default of the debtor and, if any, its guarantor.16. Arbitrary repudiation or refusal Decision of the buyer under a supplier credit to interrupt or cancel the commercial contract, or to refuse to accept the goods and/or services, without being entitled to do so.17. Decision of a third country Any measure or decision of the government of a country other than the country of the insurer, or the country of the policyholder, including measures and decisions of public authorities which are deemed to constitute government interventions, which prevents performance of the loan agreement or the commercial contract, respectively.18. Moratorium General moratorium decreed either by the government of the country of the debtor, or by that of a third country through which payment in respect of the loan agreement or the commercial contract is to be effected.19. Prevention or delay in the transfer of funds Political events, economic difficulties, or legislative or administrative measures which occur or are taken outside the country of the insurer, and which prevent or delay the transfer of funds paid in respect of the loan agreement or the commercial contract.20. Legal provisions in the debtor's country Legal provisions adopted in the country of the debtor declaring payments made by the debtor in local currency to be valid discharge of the debt, notwithstanding that, as a result of fluctuations in exchange rates, such payments, when converted into the currency of the commercial contract or of the loan agreement, no longer cover the amount of the debt at the date of transfer of funds.21. Decision of the country of the insurer or of the policyholder Any measure or decision of the government of the country of the insurer or of the policyholder, including measures and decisions of the European Community, relating to trade between a Member State and third countries, such as a ban on exports, in so far as its effects are not covered otherwise by the government concerned.22. Force majeure Cases of force majeure occurring outside the country of the insurer, which could include war including civil war, revolution, riot, civil disturbance, cyclone, flood, earthquake, volcanic eruption, tidal wave, and nuclear accident, in so far as its effects are not insured otherwise.23. General exclusion from liability The insurer should be entitled to decline liability for any loss that is directly or indirectly attributable to the following:(a) any action or omission by the policyholder, or by any person acting on its behalf;(b) any provision restricting the policyholder's rights, which is included in the loan agreement, the commercial contract, or any associated document including any document relating to the guarantee or security arrangements involved;(c) any further agreement between the policyholder and the debtor after conclusion of the loan agreement or the commercial contract, which prevents or delays the payment of the debt;(d) in the case of a supplier credit, any failure of subcontractors, co-contractors, or other suppliers to perform their obligations, provided that such failure is not a consequence of political events as described in causes of loss listed in points 17 to 22.Section 4: Provisions for the indemnification of claims 24. Claim waiting period (a) The claim waiting period shall correspond to the period of time set for the covered risk to materialise, as laid down in point 6(b) and (c).(b) No claim waiting period need apply:- when, in the case of a private debtor, the non-payment is due to the debtor's insolvency, either de jure or de facto,- in case of a bilateral intergovernmental debt restructuring agreement.25. Indemnification and assignment (a) The policyholder is entitled to indemnification at the end of the claim waiting period as defined in point 24, provided that the conditions precedent to the insurance and the indemnification have been fulfilled, the claim is legally valid, and the policyholder has managed the risk with due diligence.(b) The insurer is entitled to assignment of the policyholder's rights under, respectively, the loan agreement or the commercial contract.26. Secured obligations If the debtor's obligations to the policyholder have been secured by means of a guarantee or other security, the policyholder must have taken all necessary measures as required in the policy to ensure not only that the guarantee or other security is valid and enforceable, but also to actually enforce the security.27. Calculation of the claim Without prejudice to the provisions of point 31, the insurer shall, in calculating the payment of a claim, not pay the policyholder an amount exceeding the actual amount of its total loss, and/or exceeding the amount which the policyholder was actually entitled to receive from the borrower under the loan agreement or from the buyer under the commercial contract, respectively.28. Payment of the claim The claim shall be paid without delay, at the latest, however, within one month of the end of the claim waiting period, provided that the insurer has been notified promptly of the occurrence of the claim and received all necessary information, documents, and evidence in order to establish the validity of the claim in good time.In the case of cover for manufacturing risk, the claim shall be paid within one month either of the end of the claim waiting period, or of the date of receipt of an expert's report, where relevant, or of the date of agreement by the policyholder and the insurer on the amount of the claim, whichever is later.29. Disputes relating to the claim If losses subject to an application for indemnification by the policyholder relate to rights which are in dispute, the insurer may defer the payment of the claim until the dispute is settled in favour of the policyholder by the court or arbitration body provided for in the loan agreement or the commercial contract, respectively.30. Bilateral intergovernmental debt restructuring agreement (a) If the covered loan agreement or commercial contract is subject to a bilateral intergovernmental debt restructuring agreement, the policyholder shall follow the conditions of the restructuring agreement in respect of both the insured and the uninsured portions of that loan agreement or commercial contract, respectively. The policyholder shall give any necessary assistance to the insurer for the performance of the restructuring agreement.(b) If the insured amount is included in a bilateral intergovernmental debt restructuring agreement, the insurer may waive the one-month period provided for in point 28, once the bilateral agreement is effective.31. Additional costs Additional costs resulting from action to minimise or avoid loss shall be covered proportionally to the percentage of cover under the credit insurance policy, provided that they have been approved by the insurer. Additional costs include costs of court action and other legal expenses to minimise or avoid loss but exclude costs of establishing the validity of a claim.However, if such costs also relate to amounts or maturities not covered by the insurer, they shall be attributed proportionally to the insured and uninsured amounts or maturities.CHAPTER II: PREMIUM 32. General principles for setting the premium Premiums shall converge. To this end the premium charged for export credit insurance shall:- correspond to the risk (country, sovereign, public and/or private risk) covered,- adequately reflect the scope and the quality of the cover granted,- not be inadequate to cover long-term operating costs and losses.33. Quality of cover When determining the quality of cover as mentioned in point 32, the insurer shall duly take into account the percentage of cover, the conditionality of cover, and any other condition affecting the quality of cover.34. Country risk assessment The level of premium charged for each country or each country category shall be based on an appropriate country risk assessment.35. Creditworthiness of the debtor When setting premium rates, the insurer shall appropriately take the creditworthiness of the debtor including its status as set out in point 5 into account.36. Risk period When calculating the premium, the insurer shall take account of the total risk period as well as the repayment profile and interest.37. Chargeable amount (a) Premium shall be paid on the chargeable amount and shall be based, as far as possible, on minimum premium benchmarks. The benchmarks shall be expressed in percentages of a reference value as if the premium were collected in full at the date of the insurance or guarantee; for credit risk this reference value shall at least be, respectively, the amount of the principal of the loan or the (re-)financed portion of the commercial contract, and for manufacturing risk the total contract value minus the downpayment.(b) In the case of manufacturing risk, the chargeable amount may be reduced to the expected maximum loss.38. Payment of premium (a) The total premium amount shall be due on the date of the credit insurance policy or guarantee or when the contract or loan agreement becomes fully effective.(b) The premium may be paid in instalments or by adding a spread to the interest rate, provided that this corresponds, in net present value terms, to the premium amount referred to in point 38(a) above.CHAPTER III: COUNTRY COVER POLICY 39. Determination of the country cover policy (a) The insurer shall, in the light of its size and the structural economic constraints, base its country cover policy on its assessment of the risk by country, its total outstanding exposure for each country, and the composition of its country risk portfolio.(b) In setting its country cover policy, the insurer shall take into account each debtor country's classification.(c) Nevertheless, the insurer shall be free to stop or limit insuring business for a particular country, regardless of the country classification.40. Definition of total outstanding exposure The total outstanding exposure shall, within the limits of the percentage of cover, be determined on the basis of the amounts for medium and long-term business, as defined in Article 1 of the Directive.41. Country risk (a) As regards the group of countries which constitute the best risk, the insurer shall, in principle, set no restrictions on its cover policy.(b) For other countries, the insurer may set restrictions on its cover policy.(c) An insurer which, in principle, does not offer cover for a country or a particular group of countries, may, however, exceptionally cover certain transactions for reasons of bilateral policy or national interest, or where sufficient freely convertible foreign exchange is available for the transaction in question.(d) Concerning the countries referred to in point (b) above, insurers may set risk limits, in cumulative or alternative manner, for example:- the total outstanding exposure for that country,- the total value of offers of cover,- the value of new contracts to be covered,- the maximum amount covered per transaction.Insurers may also increase the applicable premium.Below the risk limits for a particular country, there shall in principle be no limit on cover policy.42. Specific conditions for country cover In any case, the insurer may routinely apply to a particular country, irrespective of the corresponding country category, certain cover conditions such as:- payment and/or transfer guarantee by the Central Bank or the Finance Ministry of the relevant country,- irrevocable letter of credit or bank guarantee,- extension of the claim waiting period,- reduction in the cover percentage,- restriction of the cover for certain sectors of activity or for certain types of projects.CHAPTER IV: NOTIFICATION PROCEDURES 43. Scope of the notification procedures (a) Insurers shall apply the following procedures to the common principles set out in Chapters I, II and III.(b) These procedures shall supplement those established under Council Decision 73/391/EEC of 3 December 1973 on consultation and information procedures in matters of credit insurance, credit guarantees and financial credits (2).44. Types of notification procedures There shall be four types of notification procedures, destined to the Commission and the other insurers:- annual notification for information,- notification for decision,- ex-ante notification for information, and- ex-post notification for information.The data provided shall not be disclosed to third parties.45. Annual notification for information (a) At the end of each year, at the latest however by 30 April of the following year, each insurer shall report to the other insurers and to the Commission on its activity over the previous year on a retrospective basis. This report shall cover all debtor countries and shall contain, for each of these countries:- the total amount of cover the insurer has offered,- the total outstanding exposure as defined in point 40,- the premium earned,- the amount of recoveries made, and- the amount of claims paid.(b) At the beginning of each year, at the latest by 31 January, each insurer shall report to the other insurers and to the Commission on its cover policy, including the type and level of ceilings as well as the conditions the insurer intends to routinely impose on cover, as envisaged or applicable for the year to come.46. Notification for decision (a) In case of competing offers from Community exporters or banks, an insurer involved shall respond promptly to any request for information from another insurer involved on the status of the debtor of the transaction in question - as defined in point 5.(b) In case of disagreement on the status of the debtor, the insurers involved shall make the information available to the other insurers in a bid to settle on a mutually agreed status.(c) If insurers cannot agree on the status of the debtor within 10 working days from the request for information, the insurers involved shall bring the matter with the relevant information to the attention of the Commission, which shall take a decision in accordance with the procedure laid down in Article 4 of this Directive.47. Ex-ante notification for information (a) An insurer which intends to derogate from the provisions of this Annex by giving more favourable cover conditions either for a particular transaction or a set of transactions, or for a certain sector or sectors, or for a certain country or countries, or for its overall system, shall notify the other insurers and the Commission of its intention at least seven working days before its decision becomes effective, stating the reasons for the intended derogation, for example the need to match international competition, and the corresponding premium rate to be charged.(b) An insurer which intends to charge a lower premium than that set out in its annual notification in accordance with point 45(b), shall notify the other insurers and the Commission of its intention at least seven working days before its decision becomes effective.(c) An insurer which, following another insurer's notification in accordance with point (a) or (b) above, intends to give more favourable conditions than the initiating notifier, shall notify the other insurers and the Commission of its intention at least seven working days before its decision becomes effective, stating the premium rate it intends to charge.(d) An insurer which, in accordance with point 41(c), intends to cover transactions with debtors in countries, for which it normally does not offer cover, shall notify the other insurers and the Commission of its intention at least seven working days before its decision becomes effective, stating the premium rate it intends to charge.48. Ex-post notification for information (a) An insurer which decides to derogate from the provisions of this Annex by giving less favourable cover conditions either for a particular transaction or a set of transactions, or for a certain sector or sectors, or for a certain country or countries, or for its overall system, should at the latest by 31 January notify the other insurers and the Commission accordingly for the preceding calendar year.(b) An insurer which decides to adjust one or more elements of its country cover policy set out in its annual notification in accordance with point 45(b), shall promptly notify the other insurers and the Commission accordingly.(c) An insurer which, following a notification in accordance with points 47(a) and/or (b), decides to give the same conditions as the initiating notifier, shall promptly notify the other insurers and the Commission accordingly.(d) Each insurer shall promptly give detailed replies to any request from other insurers or the Commission for clarification or information on its activity.49. Use of an electronic mail system All notifications shall normally be made via an electronic mail system, or, if necessary, by other appropriate means of instant written communication.(1) OJ L 357, 18. 12. 1982, p. 20.(2) OJ L 346, 17. 12. 1973, p. 1. Decision as last amended by the 1994 Act of Accession.


Avis juridique important

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31984L0372

Commission Directive 84/372/EEC of 3 July 1984 adapting to technical progress Council Directive 70/157/EEC on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles

Official Journal L 196 , 26/07/1984 P. 0047 - 0049 Finnish special edition: Chapter 15 Volume 4 P. 0205  Spanish special edition: Chapter 13 Volume 16 P. 0032  Swedish special edition: Chapter 15 Volume 4 P. 0205  Portuguese special edition Chapter 13 Volume 16 P. 0032

*****COMMISSION  DIRECTIVE  of 3 July 1984  adapting to technical progress Council Directive 70/157/EEC on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles  (84/372/EEC)  THE COMMISSION OF THE EUROPEAN  COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (1), as last amended by Directive 80/1267/EEC (2), and in particular Article 11 thereof,  Having regard to Council Directive 70/157/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the permissible sound level and the exhaust system of motor vehicles (3), as last amended by Directive 81/334/EEC (4), and in particular Article 3 thereof,  Whereas, as a result of the experience gained in this field and in view of the present state of the art, it is now possible to modify certain requirements relating to the method of measuring the noise emitted by certain types of vehicle in order to bring them more into line with actual operating conditions; whereas the vehicles concerned are high-performance vehicles and vehicles with automatic transmission equipment with a manual override;  Whereas, in particular, this type of high-performance vehicle has the important characteristic of being built by the most-advanced techniques, which usually precede the methods subsequently used in series production, and with optimization of parts and characteristics as regards active and passive safety, air pollution, noise emissions and fuel consumption; whereas, as far as the operation of the vehicles is concerned, the present method of determining the permissible sound level, designed to reveal the amount of noise emitted by the vehicles when operated under urban traffic conditions, is not, according to the latest experiments, representative of the actual use of high-performance vehicles under urban traffic conditions; whereas the modifications necessary in order to obviate this disadvantage and to permit more accurate assessment of the noise emitted by this type of vehicle have already been adopted by the United Nations Economic Commission for Europe in its Regulation No 51, as recently amended;  Whereas the provisions of this Directive are in accordance with the opinion of the Committee on the Adaptation to Technical Progress of the Directives for the Removal of Technical Barriers to Trade in the Motor-Vehicle Sector,  HAS ADOPTED THIS DIRECTIVE:  Article 1  Annex I to Directive 70/157/EEC, as last amended by Directive 81/334/EEC, is hereby amended in accordance with the Annex to this Directive.  Article 2  1. With effect from 1 October 1984, Member States shall not, on grounds relating to the permissible sound level and the exhaust system:  - refuse, in respect of a type of motor vehicle, to grant EEC type-approval, to issue the document referred to in the last indent of Article 10 (1) of Directive 70/156/EEC, or to grant national type-approval, or  - prohibit the entry into service of such vehicles,  if the sound level and the exhaust system of this type of vehicle or of the vehicles concerned conform to the provisions of Directive 70/157/EEC, as amended by this Directive.  2. With effect from 1 October 1985, Member States:  - may no longer issue the document referred to in the last indent of Article 10 (1) of Directive 70/156/EEC in respect of a type of motor vehicle of which the sound level and exhaust system do not comply with the provisions of Directive 70/157/EEC, as amended by this Directive,  - may refuse to grant national type-approval in respect of a type of motor vehicle of which the sound level and exhaust system do not comply with the provisions of Directive 70/157/EEC, as amended by this Directive.  3. With effect from 1 October 1986, Member States may prohibit the entry into service of vehicles of which the sound level and exhaust system do not comply with the provisions of Directive 70/157/EEC, as amended by this Directive.  Article 3  Member States shall bring into force the provisions necessary to comply with this Directive before 1 October 1984. They shall forthwith inform the Commission thereof.  Article 4  This Directive is addressed to the Member States.  Done at Brussels, 3 July 1984.  For the Commission  Karl-Heinz NARJES  Member of the Commission  (1) OJ No L 42, 23. 2. 1970, p. 1.  (2) OJ No L 375, 31. 12. 1980, p. 34.  (3) OJ No L 42, 23. 2. 1970, p. 16.  (4) OJ No L 131, 18. 5. 1981, p. 6.  ANNEX  Amendments to Annex I to Directive 70/157/EEC  Point 5.2.2.4.3.2 is hereby replaced by the following:  '5.2.2.4.3.2. Approach speed  The vehicle must approach the line AA' at a steady speed corresponding to the lower of the following two speeds:  - the speed corresponding to an engine speed equal to three-quarters of the speed, S, at which the engine develops its rated maximum power,  - 50 km/h.  However, if in the case of vehicles equipped with an automatic transmission having more than two discrete ratios there is a change-down to first gear during the test, the manufacturer may select either of the following test procedures:  - the speed, V, of the vehicle shall be increased to a maximum of 60 km/h in order to avoid such a change-down, or  - the speed, V, shall remain at 50 km/h and the fuel supply to the engine shall be limited to 95 % of the supply necessary for full load. This condition is considered to be satisfied:  - in the case of a spark-ignition engine, when the angle of the throttle opening is 90 %, and  - in the case of a compression-ignition engine, when the movement of the central rack of the injection pump is limited to 90 % of its travel.  If the vehicle is equipped with an automatic transmission which has no manual override, it must be tested at different approach speeds, namely 30, 40 and 50 km/h, or at three-quarters of maximum road speed if this value is lower. The test result shall be that obtained at the speed which produces the maximum sound level.'  Point 5.2.2.4.3.3.1.1 is hereby replaced by the following:  '5.2.2.4.3.3.1.1. Vehicles in categories M1 and N1 equipped with a manually operated gearbox having not more than four forward gear ratios must be tested in second gear.  Vehicles in these categories equipped with a manually operated gearbox having more than four forward gear ratios must be tested in second and third gears successively. Only overall gear ratios intended for normal road use shall be considered. The arithmetic mean of the sound levels recorded for each of these two conditions shall be calculated.  However, the vehicles in category M1 having more than four forward gears and equipped with an engine developing a maximum power greater than 140 kW, and whose permissible maximum-power/maximum-mass ratio exceeds 75 kW/t, may be tested in third gear only, provided that the speed at which the rear of the vehicle passes the line BB' in third gear is greater than 61 km/h.'  Point 5.2.2.4.3.3.2 is hereby replaced by the following:  '5.2.2.4.3.3.2. Automatic transmission equipped with manual override.  The test shall be conducted with the selector in a position recommended by the manufacturer for "normal" driving.'


title: Commission Directive 2009/83/EC of 27 July 2009 amending certain Annexes to Directive 2006/48/EC of the European Parliament and of the Council as regards technical provisions concerning risk management (Text with EEA relevance )

text:
               28.7.2009

               EN

               Official Journal of the European Union

               L 196/14

      COMMISSION DIRECTIVE 2009/83/EC
   of 27 July 2009
   amending certain Annexes to Directive 2006/48/EC of the European Parliament and of the Council as regards technical provisions concerning risk management
   (Text with EEA relevance)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community,
   Having regard to Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (1), in particular Article 150(1)(l) thereof,
   Whereas:

               (1)

               In order to ensure a coherent implementation and application throughout the EU of Directive 2006/48/EC, the Commission and the Committee of European Banking Supervisors set up a working group (Capital Requirements Directive Transposition Group — CRDTG) in 2006, entrusted with the task of discussing and resolving issues related to the implementation and application of that Directive. According to the CRDTG, certain technical provisions included in Annexes V, VI, VII, VIII, IX, X and XII to Directive 2006/48/EC need to be further specified in order to ensure a convergent application. Moreover, certain provisions are not commensurate with sound risk management practices of credit institutions. It is therefore appropriate to adjust these provisions.

               (2)

               For the sake of achievement of the internal market, the ways in which a credit institution can demonstrate that there is significant transfer of risk off its balance sheet should be clarified. It is also appropriate to increase the credit conversion factor for liquidity facilities granted by credit institutions to off-balance sheet vehicles.

               (3)

               Directive 2006/48/EC should therefore be amended accordingly.

               (4)

               The measures provided for in this Directive are in accordance with the opinion of the European Banking Committee,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Directive 2006/48/EC is amended as follows:

               1.

               in Annex V, point 8 is replaced by the following:

                           ‘8.

                           The risks arising from securitisation transactions in relation to which the credit institutions are investor, originator or sponsor shall be evaluated and addressed through appropriate policies and procedures. These policies and procedures shall in particular ensure that the economic substance of the transaction is fully reflected in the risk assessment and management decisions.’;

               2.

               Annex VI, Part 1, is amended as follows:

                           (a)

                           in point 29, the introductory phrase is replaced by the following:

                                       ‘29.

                                       Exposures to institutions with a residual maturity of more than three months for which a credit assessment by a nominated ECAI is available shall be assigned a risk weight according to Table 4 in accordance with the assignment by the competent authorities of the credit assessments of eligible ECAIs to six steps in a credit quality assessment scale.’;

                           (b)

                           in point 31, the introductory phrase is replaced by the following:

                                       ‘31.

                                       Exposures to an institution of up to three months residual maturity for which a credit assessment by a nominated ECAI is available shall be assigned a risk-weight according to Table 5 in accordance with the assignment by the competent authorities of the credit assessments of eligible ECAIs to six steps in a credit quality assessment scale:’;

                           (c)

                           point 14 is replaced by the following:

                           (d)

                           in point 73, the introductory phrase is replaced by the following:

                                       ‘73.

                                       Exposures to institutions where points 29 to 32 apply, and exposures to corporates for which a short-term credit assessment by a nominated ECAI is available shall be assigned a risk weight according to Table 7, in accordance with the mapping by the competent authorities of the credit assessments of eligible ECAIs to six steps in a credit quality assessment scale:’;

                           (e)

                           the following point 90 is added:

                                       ‘90.

                                       The exposure value for leases shall be the discounted minimum lease payments. Minimum lease payments are the payments over the lease term that the lessee is or can be required to make and any bargain option (i.e. option the exercise of which is reasonably certain). Any guaranteed residual value fulfilling the set of conditions in Annex VIII, Part 1, points 26, 27 and 28 regarding the eligibility of protection providers as well as the minimum requirements for recognising other types of guarantees provided in Annex VIII, Part 2, points 14 to 19 shall also be included in the minimum lease payments. These exposures shall be assigned to the relevant exposure class in accordance with Article 79. When the exposure is a residual value of leased properties, the risk weighted exposure amounts shall be calculated as follows: 1/t * 100 % * exposure value, where t is the greater of 1 and the nearest number of whole years of the lease remaining.’;

               3.

               Annex VII, Part 1, is amended as follows:

                           (a)

                           point 25 is replaced by the following:

                                       ‘25.

                                       The risk weighted exposure amount shall be the potential loss on the credit institution’s equity exposures as derived using internal value-at-risk models subject to the 99th percentile, one-tailed confidence interval of the difference between quarterly returns and an appropriate risk-free rate computed over a long-term sample period, multiplied by 12.5. The risk weighted exposure amounts at the equity portfolio level shall not be less than the total of the sums of minimum risk weighted exposure amounts required under the PD/LGD Approach and the corresponding expected loss amounts multiplied by 12.5 and calculated on the basis of the PD values set out in Part 2, point 24 and the corresponding LGD values set out in Part 2, points 25 and 26.’;

                           (b)

                           point 27 is replaced by the following:

                                       ‘27.

                                       The risk weighted exposure amounts shall be calculated according to the following formula:

                                                   Risk-weighted exposure amount = 100 % * exposure value,

                                                   except for when the exposure is a residual value of leased properties in which case it shall be calculated as follows:

                                                               1/t * 100 % * exposure value,

                                                               where t is the greater of 1 and the nearest number of whole years of the lease remaining.’;

               4.

               Annex VII, Part 2, is amended as follows:

                           (a)

                           point 13(c) is replaced by the following:

                                       ‘(c)

                                       For exposures arising from fully or nearly-fully collateralised derivative instruments (listed in Annex IV) transactions and fully or nearly-fully collateralised margin lending transactions which are subject to a master netting agreement, M shall be the weighted average remaining maturity of the transactions where M shall be at least 10 days. For repurchase transactions or securities or commodities lending or borrowing transactions which are subject to a master netting agreement, M shall be the weighted average remaining maturity of the transactions where M shall be at least 5 days. The notional amount of each transaction shall be used for weighting the maturity;’;

                           (b)

                           in point 14, the introductory phrase is replaced by the following:

                                       ‘14.

                                       Notwithstanding point 13(a), (b), (c), (d) and (e), M shall be at least one-day for:’;

               5.

               in Annex VII, Part 4, point 96 is replaced by the following:

                           ‘96.

                           The requirements in points 97 to 104 shall not apply for guarantees provided by institutions, central governments and central banks, and corporate entities which meet the requirements laid down in Annex VIII, Part 1, point 26(g) if the credit institution has received approval to apply the rules of Articles 78 to 83 for exposures to such entities. In this case the requirements of Articles 90 to 93 shall apply.’;

               6.

               Annex VIII, Part 1 is amended as follows:

                           (a)

                           in point 9, the following paragraph is added:
                           ‘If the collective investment undertaking is not limited to investing in instruments that are eligible for recognition under points 7 and 8, units may be recognised with the value of the eligible assets as collateral under the assumption that the CIU has invested to the maximum extent allowed under its mandate in non-eligible assets. In cases where non-eligible assets can have a negative value due to liabilities or contingent liabilities resulting from ownership, the credit institution shall calculate the total value of the non-eligible assets and shall reduce the value of the eligible assets by that of the non-eligible assets in case the latter is negative in total.’;

                           (b)

                           in point 11, the following paragraph is added:
                           ‘If the collective investment undertaking is not limited to investing in instruments that are eligible for recognition under point 7 and 8 and the items mentioned in point (a) of this point, units may be recognised with the value of the eligible assets as collateral under the assumption that the CIU has invested to the maximum extent allowed under its mandate in non-eligible assets. In cases where non-eligible assets can have a negative value due to liabilities or contingent liabilities resulting from ownership, the credit institution shall calculate the total value of the non-eligible assets and shall reduce the value of the eligible assets by that of the non-eligible assets in case the latter is negative in total.’;

               7.

               Annex VIII, Part 2, is amended as follows:

                           (a)

                           point 13 is replaced by the following:

                                       ‘13.

                                       For life insurance policies pledged to the lending credit institution to be recognised, all the following conditions shall be met:

                                                   (a)

                                                   the life insurance policy is openly pledged or assigned to the lending credit institution;

                                                   (b)

                                                   the company providing the life insurance is notified of the pledge or assignment and as a result may not pay amounts payable under the contract without the consent of the lending credit institution;

                                                   (c)

                                                   the lending credit institution has the right to cancel the policy and receive the surrender value in the event of the default of the borrower;

                                                   (d)

                                                   the lending credit institution is informed of any non-payments under the policy by the policy-holder;

                                                   (e)

                                                   the credit protection is provided for the maturity of the loan. Where this is not possible because the insurance relationship ends before the loan relationship expires, the credit institution must ensure that the amount deriving from the insurance contract serves the credit institution as security until the end of the duration of the credit agreement;

                                                   (f)

                                                   the pledge or assignment is legally effective and enforceable in all jurisdictions which are relevant at the time of the conclusion of the credit agreement;

                                                   (g)

                                                   the surrender value is declared by the company providing the life insurance and is non-reducible;

                                                   (h)

                                                   the surrender value is to be paid in a timely manner upon request;

                                                   (i)

                                                   the surrender value cannot be requested without the consent of the credit institution;

                                                   (j)

                                                   the company providing the life insurance is subject to Directive 2002/83/EC and Directive 2001/17/EC of the European Parliament and of the Council (2) or is subject to supervision by a competent authority of a third country which applies supervisory and regulatory arrangements at least equivalent to those applied in the Community.

                           (b)

                           in point 16, the introductory phrase is replaced by the following:

                                       ‘16.

                                       Where an exposure is protected by a guarantee which is counter-guaranteed by a central government or central bank, a regional government or local authority, a public sector entity, claims on which are treated as claims on the central government in whose jurisdiction they are established under Articles 78 to 83, a multi-lateral development bank or an international organisation, to which a 0 % risk weight is assigned under or by virtue of Articles 78 to 83, or a public sector entity, claims on which are treated as claims on credit institutions under Articles 78 to 83, the exposure may be treated as protected by a guarantee provided by the entity in question, provided the following conditions are satisfied:’;

               8.

               Annex VIII, Part 3, is amended as follows:

                           (a)

                           point 24 is replaced by the following:

                                       ‘24.

                                       The Financial Collateral Simple Method shall be available only where risk-weighted exposure amounts are calculated under Articles 78 to 83. A credit institution shall not use both the Financial Collateral Simple Method and the Financial Collateral Comprehensive Method, unless for the purposes of Articles 85(1) and 89(1). Credit institutions shall demonstrate to the competent authorities that this exceptional application of both methods is not used selectively with the purpose of achieving reduced minimum capital requirements and does not lead to regulatory arbitrage.’;

                           (b)

                           point 26 is replaced by the following:

                                       ‘26.

                                       The risk weight that would be assigned under Articles 78 to 83 if the lender had a direct exposure to the collateral instrument shall be assigned to those portions of exposure values collateralised by the market value of recognised collateral. For this purpose, the exposure value of an off-balance sheet item listed in Annex II shall be 100 % of its value rather than the exposure value indicated in Article 78(1). The risk weight of the collateralised portion shall be a minimum of 20 % except as specified in points 27 to 29. The remainder of the exposure value shall receive the risk weight that would be assigned to an unsecured exposure to the counterparty under Articles 78 to 83.’;

                           (c)

                           in point 33, the definition of the variable ‘E’ is replaced by the following:
                           ‘E is the exposure value as would be determined under Articles 78 to 83 or Articles 84 to 89 as appropriate if the exposure was not collateralised. For this purpose, for credit institutions calculating risk-weighted exposure amounts under Articles 78 to 83, the exposure value of an off-balance sheet item listed in Annex II shall be 100 % of its value rather than the exposure value indicated in Article 78(1), and for credit institutions calculating risk-weighted exposure amounts under Articles 84 to 89, the exposure value of the items listed in Annex VII, Part 3, points 9 to 11 shall be calculated using a conversion factor of 100 % rather than the conversion factors or percentages indicated in those points.’;

                           (d)

                           in point 69, the following sentence is added:
                           ‘For this purpose, the exposure value of the items listed in Annex VII, Part 3, points 9, 10 and 11 shall be calculated using a conversion factor or percentage of 100 % rather than the conversion factors or percentages indicated in those points.’;

                           (e)

                           point 75 is replaced by the following:

                                       ‘75.

                                       Where the discretion provided for in point 73 is exercised by the competent authorities of a Member State, the competent authorities of another Member State may authorise their credit institutions to assign the risk weights permitted under the treatment of point 73 in respect of exposures collateralised by residential real estate property or commercial real estate property located in the territory of the former Member State subject to the same conditions as apply in the former Member State.’;

                           (f)

                           point 80 is replaced by the following:

                                       ‘80.

                                       Where the conditions set out in Part 2, point 13 are satisfied, the portion of the exposure collateralised by the current surrender value of credit protection falling within the terms of Part 1, point 24 shall be either of the following:

                                                   (a)

                                                   subject to the risk weights specified in point 80a where the exposure is subject to Articles 78 to 83;

                                                   (b)

                                                   assigned an LGD of 40 % where the exposure is subject to Articles 84 to 89 but not subject to the credit institution’s own estimates of LGD.

                                             In case of a currency mismatch, the current surrender value shall be reduced according to point 84, the value of the credit protection being the current surrender value of the life insurance policy.’;

                           (g)

                           the following new point 80a is inserted after point 80:

                                       ‘80a.

                                       For purposes of point 80(a), the following risk weights shall be assigned on the basis of the risk weight assigned to a senior unsecured exposure to the company providing the life insurance:

                                                   (a)

                                                   a risk weight of 20 %, where the senior unsecured exposure to the company providing the life insurance is assigned a risk weight of 20 %;

                                                   (b)

                                                   a risk weight of 35 %, where the senior unsecured exposure to the company providing the life insurance is assigned a risk weight or 50 %;

                                                   (c)

                                                   a risk weight of 70 %, where the senior unsecured exposure to the company providing the life insurance is assigned a risk weight of 100 %;

                                                   (d)

                                                   a risk weight of 150 %, where the senior unsecured exposure to the company providing the life insurance is assigned a risk weight of 150 %.’;

                           (h)

                           point 87 is replaced by the following:

                                       ‘87.

                                       For the purposes of Article 80, g shall be the risk weight to be assigned to an exposure, the exposure value (E) of which is fully protected by unfunded protection (GA), where:

                                                   E is the exposure value according to Article 78; for this purpose, the exposure value of an off-balance sheet item listed in Annex II shall be 100 % of its value rather than the exposure value indicated in Article 78(1);

                                                   g is the risk weight of exposures to the protection provider as specified under Articles 78 to 83; and

                                                   GA is the value of G* as calculated under point 84 further adjusted for any maturity mismatch as laid down in Part 4.’;

                           (i)

                           in point 88, the definition of the variable ‘E’ is replaced by the following:
                           ‘E is the exposure value according to Article 78. For this purpose, the exposure value of an off-balance sheet item listed in Annex II shall be 100 % of its value rather than the exposure value indicated in Article 78(1);’;

                           (j)

                           points 90, 91 and 92 are replaced by the following:

                                       ‘90.

                                       For the covered portion of the exposure value (E) (based on the adjusted value of the credit protection GA), the PD for the purposes of Annex VII, Part 2 may be the PD of the protection provider, or a PD between that of the borrower and that of the guarantor if a full substitution is deemed not to be warranted. In the case of subordinated exposures and non-subordinated unfunded protection, the LGD to be applied for the purposes of Annex VII, Part 2 may be that associated with senior claims.

                                       91.

                                       For any uncovered portion of the exposure value (E) the PD shall be that of the borrower and the LGD shall be that of the underlying exposure.

                                       92.

                                       GA is the value of G* as calculated under point 84 further adjusted for any maturity mismatch as laid down in Part 4. E is the exposure value according to Annex VII, Part 3. For this purpose, the exposure value of the items listed in Annex VII, Part 3, points 9 to 11 shall be calculated using a conversion factor or percentage of 100 % rather than the conversion factors or percentages indicated in those points.’;

               9.

               Annex IX, Part 2 is amended as follows:

                           (a)

                           point 1 is amended as follows:

                                       (i)

                                       the introductory phrase is replaced by the following:

                                                   ‘1.

                                                   The originator credit institution of a traditional securitisation may exclude securitised exposures from the calculation of risk-weighted exposure amounts and expected loss amounts if either of the following conditions is fulfilled:

                                                               (a)

                                                               significant credit risk associated with the securitised exposures is considered to have been transferred to third parties;

                                                               (b)

                                                               the originator credit institution applies a 1 250 % risk weight to all securitisation positions it holds in this securitisation or deducts these securitisation positions from own funds according to Article 57 (r).’;

                                       (ii)

                                       the following points 1a to 1d are inserted after the introductory phrase:

                                                   ‘1a.

                                                   Unless the competent authority decides in a specific instance that the possible reduction in risk weighted exposure amounts which the originator credit institution would achieve by this securitisation is not justified by a commensurate transfer of credit risk to third parties, significant credit risk shall be considered to have been transferred in the following cases:

                                                               (a)

                                                               the risk-weighted exposure amounts of the mezzanine securitisation positions held by the originator credit institution in this securitisation do not exceed 50 % of the risk weighted exposure amounts of all mezzanine securitisation positions existing in this securitisation;

                                                               (b)

                                                               where there are no mezzanine securitisation positions in a given securitisation and the originator can demonstrate that the exposure value of the securitisation positions that would be subject to deduction from own funds or a 1 250 % risk weight exceeds a reasoned estimate of the expected loss on the securitised exposures by a substantial margin, the originator credit institution does not hold more than 20 % of the exposure values of the securitisation positions that would be subject to deduction from own funds or a 1 250 % risk weight.

                                                   1b.

                                                   For the purposes of point 1a, mezzanine securitisation positions mean securitisation positions to which a risk weight lower than 1 250 % applies and that are more junior than the most senior position in this securitisation and more junior than any securitisation position in this securitisation to which:

                                                               (a)

                                                               in the case of a securitisation position subject to points 6 to 36 of part 4 a credit quality step 1; or

                                                               (b)

                                                               in the case of a securitisation position subject to points 37 to 76 of part 4 a credit quality step 1 or 2 is assigned under Part 3.

                                                   1c.

                                                   As an alternative to points 1a and 1b significant credit risk may be considered to have been transferred if the competent authority is satisfied that a credit institution has policies and methodologies in place, ensuring that the possible reduction of capital requirements which the originator achieves by the securitisation is justified by a commensurate transfer of credit risk to third parties. The competent authorities shall only be satisfied if the originator credit institution can demonstrate that such transfer of credit risk to third parties is also recognised for purposes of the credit institution’s internal risk management and its internal capital allocation.

                                                   1d.

                                                   In addition to points 1 to 1c, all the following conditions shall be met:’;

                           (b)

                           point 2 is amended as follows:

                                       (i)

                                       the introductory phrase is replaced by the following:

                                                   ‘2.

                                                   An originator credit institution of a synthetic securitisation may calculate risk-weighted exposure amounts, and, as relevant, expected loss amounts, for the securitised exposures in accordance with points 3 and 4, if either of the following is met:

                                                               (a)

                                                               significant credit risk is considered to have been transferred to third parties either through funded or unfunded credit protection;

                                                               (b)

                                                               the originator credit institution applies a 1 250 % risk weight to all securitisation positions he holds in this securitisation or deducts these securitisation positions from own funds according to Article 57 (r).’;

                                       (ii)

                                       the following points 2a to 2d are inserted after the introductory phrase:

                                                   ‘2a.

                                                   Unless the competent authority decides on a case- by-case basis that the possible reduction in risk weighted exposure amounts which the originator credit institution would achieve by this securitisation is not justified by a commensurate transfer of credit risk to third parties, significant credit risk shall be considered to have been transferred if either of the following conditions is met:

                                                               (a)

                                                               the risk-weighted exposure amounts of the mezzanine securitisation positions which are held by the originator credit institution in this securitisation do not exceed 50 % of the risk weighted exposure amounts of all mezzanine securitisation positions existing in this securitisation;

                                                               (b)

                                                               where there are no mezzanine securitisation positions in a given securitisation and the originator can demonstrate that the exposure value of the securitisation positions that would be subject to deduction from own funds or a 1 250 % risk weight exceeds a reasoned estimate of the expected loss on the securitised exposures by a substantial margin, the originator credit institution does not hold more than 20 % of the exposure values of the securitisation positions that would be subject to deduction from own funds or a 1 250 % risk weight.

                                                   2b.

                                                   For the purposes of point 2a, mezzanine securitisation positions means securitisation positions to which a risk weight lower than 1 250 % applies and that are more junior than the most senior position in this securitisation and more junior than any securitisation positions in this securitisation to which:

                                                               (a)

                                                               in the case of a securitisation position subject to points 6 to 36 of part 4 a credit quality step 1; or

                                                               (b)

                                                               in the case of a securitisation position subject to points 37 to 76 of part 4 a credit quality step 1 or 2 is assigned under Part 3.

                                                   2c.

                                                   As an alternative to points 2a and 2b, significant credit risk may be considered to have been transferred if the competent authority is satisfied that a credit institution has policies and methodologies in place to ensure that a possible reduction of capital requirements that the originator achieves by the securitisation is justified by a commensurate transfer of credit risk to third parties. The competent authorities shall only be satisfied if the originator credit institution can demonstrate that such transfer of credit risk to third parties is also recognised for purposes of the credit institutions internal risk management and its internal capital allocation.

                                                   2d.

                                                   In addition, the transfer shall comply with the following conditions:’;

               10.

               Annex IX, Part 4, is amended as follows:

                           (a)

                           in point 13 the introductory phrase is replaced by the following:
                           ‘When the following conditions are met, to determine its exposure value a conversion figure of 50 % may be applied to the nominal amount of a liquidity facility:’;

                           (b)

                           points 2.4.2 and 14 are deleted;

                           (c)

                           point 48 is deleted;

                           (d)

                           points 3.5.1 and 56 are deleted;

               11.

               in Annex X, Part 2, point 1 is replaced by the following:

                           ‘1.

                           The capital requirement for operational risk shall be calculated as the three-year average of the yearly summations of the capital requirements across business lines referred to in Table 2. In any given year, negative capital requirements (resulting from negative gross income) in any business line may offset positive capital requirements in other business lines without limit. However, where the aggregate capital requirements across all business lines within a given year are negative, the input to the numerator for that year shall be zero.’;

               12.

               Annex X, Part 3, is amended as follows:

                           (a)

                           point 14 is replaced by the following:

                                       ‘14.

                                       Credit institutions shall be able to map their historical internal loss data into the business lines defined in Part 2 and into the event types defined in Part 5, and to provide these data to competent authorities upon request. Loss events which affect the entire institution may be allocated to an additional business line “corporate items” due to exceptional circumstances. There must be documented, objective criteria for allocating losses to the specified business lines and event types. The operational risk losses that are related to credit risk and have historically been included in the internal credit risk databases must be recorded in the operational risk databases and be separately identified. Such losses shall not be subject to the operational risk charge, as long as they continue to be treated as credit risk for the purposes of calculating minimum capital requirements. Operational risk losses that are related to market risks shall be included in the scope of the capital requirement for operational risk.’;

                           (b)

                           point 29 is replaced by the following:

                                       ‘29.

                                       The capital alleviation from the recognition of insurances and other risk transfer mechanisms shall not exceed 20 % of the capital requirement for operational risk before the recognition of risk mitigation techniques.’;

               13.

               in Annex XII, Part 2, point 10 the following points (d) and (e) are added:

                           ‘(d)

                           the highest, the lowest and the mean of the daily value-at-risk measures over the reporting period and the value-at-risk measure as per the end of the period;

                           (e)

                           a comparison of the daily end-of-day value-at-risk measures to the one-day changes of the portfolio’s value by the end of the subsequent business day together with an analysis of any important overshootings during the reporting period.’;

               14.

               In Annex XII, Part 3, point 3 is replaced by the following:

                           ‘3.

                           The credit institutions using the approach set out in Article 105 for the calculation of their own funds requirements for operational risk shall disclose a description of the use of insurances and other risk transfer mechanisms for the purpose of mitigation of this risk.’

         Article 2
   1.   Member States shall adopt and publish, by 31 October 2010 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   They shall apply those provisions from 31 December 2010.
   When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   Article 3
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 27 July 2009.

            For the Commission

         Charlie McCREEVY

            Member of the Commission

      (1)  OJ L 177, 30.6.2006, p. 1.

      (2)  OJ L 110, 20.4.2001, p. 28.’