title: Council Directive 2006/98/EC of 20 November 2006 adapting certain Directives in the field of taxation, by reason of the accession of Bulgaria and Romania

text:
               20.12.2006

               EN

               Official Journal of the European Union

               L 363/129

      COUNCIL DIRECTIVE 2006/98/EC
   of 20 November 2006
   adapting certain Directives in the field of taxation, by reason of the accession of Bulgaria and Romania
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community,
   Having regard to the Treaty of Accession of Bulgaria and Romania (1), and in particular Article 4(3) thereof,
   Having regard to the Act of Accession of Bulgaria and Romania, and in particular Article 56 thereof,
   Having regard to the proposal from the Commission,
   Whereas:

               (1)

               Pursuant to Article 56 of the Act of Accession, where acts of the institutions remain valid beyond 1 January 2007, and require adaptation by reason of accession, and the necessary adaptations have not been provided for in the Act of Accession or its Annexes, the necessary acts are to be adopted by the Council, unless the Commission adopted the original act.

               (2)

               The Final Act of the Conference which drew up the Treaty of Accession indicated that the High Contracting Parties had reached political agreement on a set of adaptations to acts adopted by the institutions required by reason of accession and invited the Council and the Commission to adopt these adaptations before accession, completed and updated where necessary to take account of the evolution of the law of the Union.

               (3)

               Directives 69/335/EEC (2), 77/388/EEC (3), 77/799/EEC (4), 79/1072/EEC (5), 83/182/EEC (6), 90/434/EEC (7), 90/435/EEC (8), 2003/48/EC (9) and 2003/49/EC (10) should therefore be amended accordingly,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Directives 69/335/EEC, 77/388/EEC, 77/799/EEC, 79/1072/EEC, 83/182/EEC, 90/434/EEC, 90/435/EEC, 2003/48/EC and 2003/49/EC shall be amended as set out in the Annex.
   Article 2
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by the date of accession of Bulgaria and Romania to the European Union at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   When Member States adopt those provisions, 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.
   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 subject to and on the date of the entry into force of the Treaty of Accession of Bulgaria and Romania.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 20 November 2006

            For the Council

            The President

         J. KORKEAOJA

      (1)  OJ L 157, 21.6.2005, p.11.

      (2)  OJ L 249, 3.10.1969, p. 25.

      (3)  OJ L 145, 13.6.1977, p. 1.

      (4)  OJ L 336, 27.12.1977, p. 15.

      (5)  OJ L 331, 27.12.1979, p. 11.

      (6)  OJ L 105, 23.4.1983, p. 59.

      (7)  OJ L 225, 20.8.1990, p. 1.

      (8)  OJ L 225, 20.8.1990, p. 6.

      (9)  OJ L 157, 26.6.2003, p. 38.

      (10)  OJ L 157, 26.6.2003, p. 49.

      ANNEX
      TAXATION

                  1.

                  31969 L 0335: Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ L 249, 3.10.1969, p. 25), as amended by:

                              —

                              11972 B: Act concerning the conditions of accession and the adjustments to the Treaties- Accession of the Kingdom of Denmark, Ireland and the United Kingdom (OJ L 73, 27.3.1972, p. 14),

                              —

                              31973 L 0079: Council Directive 73/79/EEC of 9.4.1973 (OJ L 103, 18.4.1973, p. 13),

                              —

                              31974 L 0553: Council Directive 74/553/EEC of 7.11.1974 (OJ L 303, 13.11.1974, p. 9),

                              —

                              11979 H: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Hellenic Republic (OJ L 291, 19.11.1979, p. 17),

                              —

                              31985 L 0303: Council Directive 85/303/EEC of 10.6.1985 (OJ L 156, 15.6.1985, p. 23),

                              —

                              11985 I: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Kingdom of Spain and the Portuguese Republic (OJ L 302, 15.11.1985, p. 23),

                              —

                              11994 N: Act concerning the conditions of accession and the adjustments to the Treaties –Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ C 241, 29.8.1994, p. 21),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33).

                        The following is added to Article 3(1)(a):
                  ‘Companies under Bulgarian law known as:

                              —

                              “Акционерно дружество”

                              —

                              “Командитно дружество с акции”

                              —

                              “Дружество с ограничена отговорност”;

                        Companies under Romanian law known as:

                              —

                              “societăţi în nume colectiv”

                              —

                              “societăţi în comandită simplă”

                              —

                              “societăţi pe acţiuni”

                              —

                              “societăţi în comandită pe acţiuni”

                              —

                              “societăţi cu răspundere limitată”.’

                  2.

                  31977 L 0388: Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, 13.6.1977, p. 1), as amended by:

                              —

                              11979 H: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Hellenic Republic (OJ L 291, 19.11.1979, p. 95),

                              —

                              31980 L 0368: Council Directive 80/368/EEC of 26.3.1980 (OJ L 90, 3.4.1980, p. 41),

                              —

                              31984 L 0386: Council Directive 84/386/EEC of 31.7.1984 (OJ L 208, 3.8.1984, p. 58),

                              —

                              11985 I: Act concerning the conditions of accession and the adjustments of the Treaties — Accession of the Kingdom of Spain and the Portuguese Republic (OJ L 302, 15.11.1985, p. 167),

                              —

                              31989 L 0465: Council Directive 89/465/EEC of 18.7.1989 (OJ L 226, 3.8.1989, p. 21),

                              —

                              31991 L 0680: Council Directive 91/680/EEC of 16.12.1991 (OJ L 376, 31.12.1991, p. 1),

                              —

                              31992 L 0077: Council Directive 92/77/EEC of 19.10.1992 (OJ L 316, 31.10.1992, p. 1),

                              —

                              31992 L 0111: Council Directive 92/111/EEC of 14.12.1992 (OJ L 384, 30.12.1992, p. 47),

                              —

                              31994 L 0004: Council Directive 94/4/EC of 14.2.1994 (OJ L 60, 3.3.1994, p. 14),

                              —

                              31994 L 0005: Council Directive 94/5/EC of 14.2.1994 (OJ L 60, 3.3.1994, p. 16),

                              —

                              31994 L 0076: Council Directive 94/76/EC of 22.12.1994 (OJ L 365, 31.12.1994, p. 53),

                              —

                              31995 L 0007: Council Directive 95/7/EC of 10.4.1995 (OJ L 102, 5.5.1995, p. 18),

                              —

                              31996 L 0042: Council Directive 96/42/EC of 25.6. 1996 (OJ L 170, 9.7.1996, p. 34),

                              —

                              31996 L 0095: Council Directive 96/95/EC of 20.12.1996 (OJ L 338, 28.12.1996, p. 89),

                              —

                              31998 L 0080: Council Directive 98/80/EC of 12.10.1998 (OJ L 281, 17.10.1998, p. 31),

                              —

                              31999 L 0049: Council Directive 1999/49/EC of 25.5.1999 (OJ L 139, 2.6.1999, p. 27),

                              —

                              31999 L 0059: Council Directive 1999/59/EC of 17.6.1999 (OJ L 162, 26.6.1999, p. 63),

                              —

                              31999 L 0085: Council Directive 1999/85/EC of 22.10.1999 (OJ L 277, 28.10.1999, p. 34),

                              —

                              32000 L 0017: Council Directive 2000/17/EC of 30.3.2000 (OJ L 84, 5.4.2000, p. 24),

                              —

                              32000 L 0065: Council Directive 2000/65/EC of 17.10.2000 (OJ L 269, 21.10.2000, p. 44),

                              —

                              32001 L 0004: Council Directive 2001/4/EC of 19.1.2001 (OJ L 22, 24.1.2001, p. 17),

                              —

                              32001 L 0115: Council Directive 2001/115/EC of 20.12. 2001 (OJ L 15, 17.1.2002, p. 24),

                              —

                              32002 L 0038: Council Directive 2002/38/EC of 7.5.2002 (OJ L 128, 15.5.2002, p. 41),

                              —

                              32002 L 0093: Council Directive 2002/93/EC of 3.12.2002 (OJ L 331, 7.12.2002, p. 27),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33),

                              —

                              32003 L 0092: Council Directive 2003/92/EC of 7.10.2003 (OJ L 260, 11.10.2003, p. 8),

                              —

                              32004 L 0007: Council Directive 2004/7/EC of 20.1.2004 (OJ L 27, 30.1.2004, p. 44),

                              —

                              32004 L 0015: Council Directive 2004/15/EC of 10.2.2004 (OJ L 52, 21.2.2004, p. 61),

                              —

                              32004 L 0066: Council Directive 2004/66/EC of 26.4.2004 (OJ L 168, 1.5.2004, p. 35),

                              —

                              32005 L 0092: Council Directive 2005/92/EC of 12.12.2005 (OJ L 345, 28.12.2005, p. 19),

                              —

                              32006 L 0018: Council Directive 2006/18/EC of 14.2.2006 (OJ L 51, 22.2.2006, p. 12).

                              (a)

                              Article 28m is replaced by the following:
                              ‘Article 28m
                              Rate of conversion
                              To determine the equivalents in their national currencies of amounts expressed in ecus in this Title Member States shall use the rate of exchange applicable on 16 December 1991. However, Bulgaria, the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania, Slovenia and Slovakia shall use the rate of exchange applicable on the date of their accession.’.

                              (b)

                              The title of TITLE XVIc is replaced by the following:
                              Transitional measures applicable in the context of the accession to the European Union of Austria, Finland and Sweden on 1 January 1995, of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia on 1 May 2004, and of Bulgaria and Romania on 1 January 2007’.

                              (c)

                              In TITLE XVIc, the second indent of Article 28p(1) is replaced by the following:

                                          ‘—

                                          “new Member States” shall mean the territory of the Member States acceding to the European Union on 1 January 1995, on 1 May 2004 and on 1 January 2007, as defined for each of those Member States in Article 3 of this Directive,’.

                              (d)

                              In TITLE XVIc, the last subparagraph of Article 28p(7) is replaced by the following:
                              ‘This condition shall be deemed to be fulfilled in the following cases:

                                          —

                                          when, in respect of Austria, Finland and Sweden, the date of the first use of the means of transport was before 1 January 1987;

                                          —

                                          when, in respect of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, the date of the first use of the means of transport was before 1 May 1996;

                                          —

                                          when in respect of Bulgaria and Romania, the date of the first use of the means of transport was before 1 January 1999;

                                          —

                                          when the amount of tax due by reason of the importation is insignificant.’.

                  3.

                  31977 L 0799: Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, and taxation of insurance premiums (OJ L 336, 27.12.1977, p. 15), as amended by:

                              —

                              11979 H: Act concerning the conditions of accession and the adjustments to the Treaties –Accession of the Hellenic Republic (OJ L 291, 19.11.1979, p. 17),

                              —

                              31979 L 1070: Council Directive 79/1070/EEC of 6.12.1979 (OJ L 331, 27.12.1979, p. 8),

                              —

                              11985 I: Act concerning the conditions of accession and the adjustments to the Treaties –Accession of the Kingdom of Spain and the Portuguese Republic (OJ L 302, 15.11.1985, p. 23),

                              —

                              31992 L 0012: Council Directive 92/12/EEC of 25.2.1992 (OJ L 76, 23.3.1992, p. 1),

                              —

                              11994 N: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ C 241, 29.8.1994, p. 21),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33),

                              —

                              32003 L 0093: Council Directive 2003/93/EC of 7.10.2003 (OJ L 264, 15.10.2003, p. 23),

                              —

                              32004 L 0056: Council Directive 2004/56/EC of 21.4.2004 (OJ L 127, 29.4.2004, p. 70),

                              —

                              32004 L 0106: Council Directive 2004/106/EC of 16.11.2004 (OJ L 359, 4.12.2004, p. 30).

                              (a)

                              The following is added to Article 1(3):
                              ‘in Bulgaria:
                              данък върху доходите на физическите лица
                              корпоративен данък
                              данъци, удържани при източника
                              алтернативни данъци на корпоративния данък
                              окончателен годишен (патентен) данък
                              in Romania:
                              impozitul pe venit
                              impozitul pe profit
                              impozitul pe veniturile obţinute din România de nerezidenţi
                              impozitul pe veniturile microîntreprinderilor
                              impozitul pe clădiri
                              impozitul pe teren’.

                              (b)

                              The following is added to Article 1(5):
                              ‘in Bulgaria:
                              Изпълнителният директор на Националната агенция за приходите
                              in Romania:
                              Ministerul Finanţelor Publice or an authorised representative’.

                  4.

                  31979 L 1072: Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ L 331, 27.12.1979, p. 11), as amended by:

                              —

                              11985 I: Act concerning the conditions of accession and the adjustments to the Treaties –Accession of the Kingdom of Spain and the Portuguese Republic (OJ L 302, 15.11.1985, p. 23),

                              —

                              31986 L 0560: Thirteenth Council Directive 86/560/EEC of 17.11.1986 (OJ L 326, 21.11.1986, p. 40),

                              —

                              11994 N: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ C 241, 29.8.1994, p. 21),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33).

                              (a)

                              The following is added to Point D of Annex C:

                                          ‘—

                                          Bulgaria: …………;

                                          —

                                          Romania: …………’.

                              (b)

                              The following is added to the first paragraph of point I of Annex C:
                              ‘BGN …
                              RON …’.

                              (c)

                              The following is added to the second paragraph of point I of Annex C:
                              ‘BGN …
                              RON …’.

                  5.

                  31983 L 0182: Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (OJ L 105, 23.4.1983, p. 59), as amended by:

                              —

                              11985 I: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Kingdom of Spain and the Portuguese Republic (OJ L 302, 15.11.1985, p. 23),

                              —

                              31991 L 0680: Council Directive 91/680/EEC of 16.12.1991 (OJ L 376, 31.12.1991, p. 1),

                              —

                              11994 N: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ C 241, 29.8.1994, p. 21),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33).

                        The following is added to the Annex:
                  ‘BULGARIA

                              —

                              данък върху превозните средства

                        ROMANIA

                              —

                              taxa asupra mijloacelor de transport (Codul Fiscal — art. 261- 265)

                              —

                              accize pentru autoturisme şi autoturisme de teren inclusive rulate (Codul Fiscal — art. 208, alin. 5 şi art. 210, alin. 1(b))’.

                  6.

                  31990 L 0434: Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ L 225, 20.8.1990, p. 1), as amended by:

                              —

                              11994 N: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ C 241, 29.8.1994, p. 21),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33),

                              —

                              32005 L 0019: Council Directive 2005/19/EC of 17.2.2005 (OJ L 58, 4.3.2005, p. 19).

                              (a)

                              The following is added to Article 3(c):

                                          ‘—

                                          корпоративен данък in Bulgaria,

                                          —

                                          impozit pe profit in Romania,’.

                              (b)

                              The following is added to the Annex:

                                          ‘(aa)

                                          companies under Bulgarian law known as: “събирателното дружество”, “командитното дружество”, “дружеството с ограничена отговорност”, “акционерното дружество”, “командитното дружество с акции”, “кооперации”, “кооперативни съюзи”, “държавни предприятия” constituted under Bulgarian law and carrying on commercial activities;

                                          (ab)

                                          companies under Romanian law known as: “societăţi pe acţiuni”, “societăţi în comandită pe acţiuni”, “societăţi cu răspundere limitată.”’

                  7.

                  31990 L 0435: Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ L 225, 20.8.1990, p. 6), as amended by:

                              —

                              11994 N: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ C 241, 29.8.1994, p. 21),

                              —

                              12003 T: Act concerning the conditions of accession and the adjustments to the Treaties — Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236, 23.9.2003, p. 33),

                              —

                              32003 L 0123: Council Directive 2003/123/EC of 22.12.2003 (OJ L 7, 13.1.2004, p. 41).

                              (a)

                              The following is added to Article 2(1)(c):

                                          ‘—

                                          корпоративен данък in Bulgaria,

                                          —

                                          impozit pe profit in Romania,’.

                              (b)

                              The Annex is replaced by the following:

                                 ‘ANNEX
                                 LIST OF COMPANIES REFERRED TO IN ARTICLE 2(1)(A)

                                             (a)

                                             companies incorporated under Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) and Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees and cooperative societies incorporated under Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) and Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees;

                                             (b)

                                             companies under Belgian law known as “société anonyme”/“naamloze vennootschap”,“société en commandite par actions”/“commanditaire vennootschap op aandelen”, “société privée à responsabilité limitée”/“besloten vennootschap met beperkte aansprakelijkheid”, “société coopérative à responsabilité limitée”/“coöperatieve vennootschap met beperkte aansprakelijkheid”, “société coopérative à responsabilité illimitée”/“coöperatieve vennootschap met onbeperkte aansprakelijkheid”, “société en nom collectif”/“vennootschap onder firma”, “société en commandite simple”/“gewone commanditaire vennootschap”, public undertakings which have adopted one of the abovementioned legal forms, and other companies constituted under Belgian law subject to Belgian corporate tax;

                                             (c)

                                             companies under Bulgarian law known as: “събирателното дружество”, “командитното дружество”, “дружеството с ограничена отговорност”, “акционерното дружество”, “командитното дружество с акции”, “неперсонифицирано дружество”, “кооперации”, “кооперативни съюзи”“държавни предприятия” constituted under Bulgarian law and carrying on commercial activities;

                                             (d)

                                             companies under Czech law known as: “akciová společnost”, “společnost s ručením omezeným”;

                                             (e)

                                             companies under Danish law known as “aktieselskab” and “anpartsselskab”. Other companies subject to tax under the Corporation Tax Act, insofar as their taxable income is calculated and taxed in accordance with the general tax legislation rules applicable to “aktieselskaber”;

                                             (f)

                                             companies under German law known as “Aktiengesellschaft”, “Kommanditgesellschaft auf Aktien”, “Gesellschaft mit beschränkter Haftung”, “Versicherungsverein auf Gegenseitigkeit”, “Erwerbs- und Wirtschaftsgenossenschaft”, “Betriebe gewerblicher Art von juristischen Personen des öffentlichen Rechts”, and other companies constituted under German law subject to German corporate tax;

                                             (g)

                                             companies under Estonian law known as: “täisühing”, “usaldusühing”, “osaühing”, “aktsiaselts”, “tulundusühistu”;

                                             (h)

                                             companies under Greek law known as “ανώνυμη εταιρεία”,·“εταιρεία περιορισμένης ευθύνης (Ε.Π.Ε.)”·and other companies constituted under Greek law subject to Greek corporate tax;

                                             (i)

                                             companies under Spanish law known as: “sociedad anónima”, “sociedad comanditaria por acciones”, “sociedad de responsabilidad limitada”, public law bodies which operate under private law. Other entities constituted under Spanish law subject to Spanish corporate tax (“Impuesto sobre Sociedades”);

                                             (j)

                                             companies under French law known as “société anonyme”, “société en commandite par actions”, “société à responsabilité limitée”, “sociétés par actions simplifiées”, “sociétés d'assurances mutuelles”, “caisses d'épargne et de prévoyance”, “sociétés civiles” which are automatically subject to corporation tax, “coopératives”, “unions de coopératives”, industrial and commercial public establishments and undertakings, and other companies constituted under French law subject to French corporate tax;

                                             (k)

                                             companies incorporated or existing under Irish law, bodies registered under the Industrial and Provident Societies Act, building societies incorporated under the Building Societies Acts and trustee savings banks within the meaning of the Trustee Savings Banks Act, 1989;

                                             (l)

                                             companies under Italian law known as “società per azioni”, “società in accomandita per azioni”, “società a responsibilità limitata”, “società cooperative”, “società di mutua assicurazione”, and private and public entities whose activity is wholly or principally commercial;

                                             (m)

                                             under Cypriot law: “εταιρείες” as defined in the Income Tax laws;

                                             (n)

                                             companies under Latvian law known as: “akciju sabiedrība”, “sabiedrība ar ierobežotu atbildību”;

                                             (o)

                                             companies incorporated under the law of Lithuania;

                                             (p)

                                             companies under Luxembourg law known as “société anonyme”, “société en commandite par actions”, “société à responsabilité limitée”, “société coopérative”, “société coopérative organisée comme une société anonyme”, “association d'assurances mutuelles”, “association d'épargne-pension”, “entreprise de nature commerciale, industrielle ou minière de l'Etat, des communes, des syndicats de communes, des établissements publics et des autres personnes morales de droit public”, and other companies constituted under Luxembourg law subject to Luxembourg corporate tax;

                                             (q)

                                             companies under Hungarian law known as: “közkereseti társaság”, “betéti társaság”, “közös vállalat”, “korlátolt felelősségű társaság”, “részvénytársaság”, “egyesülés”, “szövetkezet”;

                                             (r)

                                             companies under Maltese law known as: “Kumpaniji ta' Responsabilita' Limitata”, “Soċjetajiet en commandite li l-kapital tagħhom maqsum f'azzjonijiet”;

                                             (s)

                                             companies under Dutch law known as “naamloze vennnootschap”, “besloten vennootschap met beperkte aansprakelijkheid”, “Open commanditaire vennootschap”, “Coöperatie”, “onderlinge waarborgmaatschappij”, “Fonds voor gemene rekening”, “vereniging op coöperatieve grondslag”, “vereniging welke op onderlinge grondslag als verzekeraar of kredietinstelling optreedt”, and other companies constituted under Dutch law subject to Dutch corporate tax;

                                             (t)

                                             companies under Austrian law known as “Aktiengesellschaft”, “Gesellschaft mit beschränkter Haftung”, “Versicherungsvereine auf Gegenseitigkeit”, “Erwerbs- und Wirtschaftsgenossenschaften”, “Betriebe gewerblicher Art von Körperschaften des öffentlichen Rechts”, “Sparkassen”, and other companies constituted under Austrian law subject to Austrian corporate tax;

                                             (u)

                                             companies under Polish law known as: “spółka akcyjna”, “spółka z ograniczoną odpowiedzialnością”;

                                             (v)

                                             commercial companies or civil law companies having a commercial form and cooperatives and public undertakings incorporated in accordance with Portuguese law;

                                             (w)

                                             companies under Romanian law known as: “societăţi pe acţiuni”, “societăţi în comandită pe acţiuni”, “societăţi cu răspundere limitată”;

                                             (x)

                                             companies under Slovenian law known as: “delniška družba”, “komanditna družba”, “družba z omejeno odgovornostjo”;

                                             (y)

                                             companies under Slovak law known as: “akciová spoločnosť”, “spoločnosť s ručením obmedzeným”, “komanditná spoločnosť”;

                                             (z)

                                             companies under Finnish law known as “osakeyhtiö”/“aktiebolag”, “osuuskunta”/“andelslag”,“säästöpankki”/“sparbank”and “vakuutusyhtiö”/“försäkringsbolag”;

                                             (aa)

                                             companies under Swedish law known as “aktiebolag”, “försäkringsaktiebolag”, “ekonomiska föreningar”, “sparbanker”, “ömsesidiga försäkringsbolag”;

                                             (ab)

                                             companies incorporated under the law of the United Kingdom.’.

                  8.

                  32003 L 0048: Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments (OJ L 157, 26.6.2003, p. 38), as amended by:

                              —

                              32004 L 0066: Council Directive 2004/66/EC of 26.4.2004 (OJ L 168, 1.5.2004, p. 35),

                              —

                              32004 D 0587: Council Decision 2004/587/EC of 19.7.2004 (OJ L 257, 4.8.2004, p. 7).

                        In the Annex, the following is inserted between the entries for Belgium and Spain:

                              ‘Bulgaria

                              Общините (municipalities)
                              Социалноосигурителни фондове (Social Security Funds)’

                        and, between the entries for Portugal and Slovakia:

                              ‘Romania

                              autorităţile administraţiei publice locale (local public administration authorities)’.

                  9.

                  32003 L 0049: Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States (OJ L 157, 26.6.2003, p. 49), as amended by:

                              —

                              32004 L 0066: Council Directive 2004/66/EC of 26.4.2004 (OJ L 168, 1.5.2004, p. 35),

                              —

                              32004 L 0076: Council Directive 2004/76/EC of 29.4.2004 (OJ L 157, 30.4.2004, p. 106).

                              (a)

                              The following is added to Article 3(a)(iii):

                                          ‘—

                                          корпоративен данък in Bulgaria,

                                          —

                                          impozit pe profit, impozitul pe veniturile obţinute din România de nerezidenţi in Romania,’.

                              (b)

                              The following is added to the Annex:

                                          ‘(aa)

                                          companies under Bulgarian law known as: “събирателното дружество”, “командитното дружество”, “дружеството с ограничена отговорност”, “акционерното дружество”, “командитното дружество с акции”, “кооперации”, “кооперативни съюзи”, “държавни предприятия” constituted under Bulgarian law and carrying on commercial activities;

                                          (ab)

                                          companies under Romanian law known as: “societăţi pe acţiuni”, “societăţi în comandită pe acţiuni”, “societăţi cu răspundere limitată”.’


Avis juridique important

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32001L0024

Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions

Official Journal L 125 , 05/05/2001 P. 0015 - 0023

Directive 2001/24/EC of the European Parliament and of the Councilof 4 April 2001on the reorganisation and winding up of credit institutionsTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 47(2) thereof,Having regard to the proposal from the Commission(1),Having regard to the opinion of the Economic and Social Committee(2),Having regard to the opinion of the European Monetary Institute(3),Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),Whereas:(1) In accordance with the objectives of the Treaty, the harmonious and balanced development of economic activities throughout the Community should be promoted through the elimination of any obstacles to the freedom of establishment and the freedom to provide services within the Community.(2) At the same time as those obstacles are eliminated, consideration should be given to the situation which might arise if a credit institution runs into difficulties, particularly where that institution has branches in other Member States.(3) This Directive forms part of the Community legislative framework set up by Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions(5). It follows therefrom that, while they are in operation, a credit institution and its branches form a single entity subject to the supervision of the competent authorities of the State where authorisation valid throughout the Community was granted.(4) It would be particularly undesirable to relinquish such unity between an institution and its branches where it is necessary to adopt reorganisation measures or open winding-up proceedings.(5) The adoption of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes(6), which introduced the principle of compulsory membership by credit institutions of a guarantee scheme in their home Member State, brings out even more clearly the need for mutual recognition of reorganisation measures and winding-up proceedings.(6) The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that Member State. Owing to the difficulty of harmonising Member States' laws and practices, it is necessary to establish mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised.(7) It is essential to guarantee that the reorganisation measures adopted by the administrative or judicial authorities of the home Member State and the measures adopted by persons or bodies appointed by those authorities to administer those reorganisation measures, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims and any other measure which could affect third parties' existing rights, are effective in all Member States.(8) Certain measures, in particular those affecting the functioning of the internal structure of credit institutions or managers' or shareholders' rights, need not be covered by this Directive to be effective in Member States insofar as, pursuant to the rules of private international law, the applicable law is that of the home State.(9) Certain measures, in particular those connected with the continued fulfilment of conditions of authorisation, are already the subject of mutual recognition pursuant to Directive 2000/12/EC insofar as they do not affect the rights of third parties existing before their adoption.(10) Persons participating in the operation of the internal structures of credit institutions as well as managers and shareholders of such institutions, considered in those capacities, are not to be regarded as third parties for the purposes of this Directive.(11) It is necessary to notify third parties of the implementation of reorganisation measures in Member States where branches are situated when such measures could hinder the exercise of some of their rights.(12) The principle of equal treatment between creditors, as regards the opportunities open to them to take action, requires the administrative or judicial authorities of the home Member State to adopt such measures as are necessary for the creditors in the host Member State to be able to exercise their rights to take action within the time limit laid down.(13) There must be some coordination of the role of the administrative or judicial authorities in reorganisation measures and winding-up proceedings for branches of credit institutions having head offices outside the Community and situated in different Member States.(14) In the absence of reorganisation measures, or in the event of such measures failing, the credit institutions in difficulty must be wound up. Provision should be made in such cases for mutual recognition of winding-up proceedings and of their effects in the Community.(15) The important role played by the competent authorities of the home Member State before winding-up proceedings are opened may continue during the process of winding up so that these proceedings can be properly carried out.(16) Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home Member State to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other Member States, without any formality, the effects ascribed to them by the law of the home Member State, except where this Directive provides otherwise.(17) The exemption concerning the effects of reorganisation measures and winding-up proceedings on certain contracts and rights is limited to those effects and does not cover other questions concerning reorganisation measures and winding-up proceedings such as the lodging, verification, admission and ranking of claims concerning those contracts and rights and the rules governing the distribution of the proceeds of the realisation of the assets, which are governed by the law of the home Member State.(18) Voluntary winding up is possible when a credit institution is solvent. The administrative or judicial authorities of the home Member State may nevertheless, where appropriate, decide on a reorganisation measure or winding-up proceedings, even after voluntary winding up has commenced.(19) Withdrawal of authorisation to pursue the business of banking is one of the consequences which winding up a credit institution necessarily entails. Withdrawal should not, however, prevent certain activities of the institution from continuing insofar as is necessary or appropriate for the purposes of winding up. Such a continuation of activity may nonetheless be made subject by the home Member State to the consent of, and supervision by, its competent authorities.(20) Provision of information to known creditors on an individual basis is as essential as publication to enable them, where necessary, to lodge their claims or submit observations relating to their claims within the prescribed time limits. This should take place without discrimination against creditors domiciled in a Member State other than the home Member State, based on their place of residence or the nature of their claims. Creditors must be kept regularly informed in an appropriate manner throughout winding-up proceedings.(21) For the sole purpose of applying the provisions of this Directive to reorganisation measures and winding-up proceedings involving branches located in the Community of a credit institution of which the head office is situated in a third country, the definitions of "home Member State", "competent authorities" and "administrative or judicial authorities" should be those of the Member State in which the branch is located.(22) Where a credit institution which has its head office outside the Community possesses branches in more than one Member State, each branch should receive individual treatment in regard to the application of this Directive. In such a case, the administrative or judicial authorities and the competent authorities as well as the administrators and liquidators should endeavour to coordinate their activities.(23) Although it is important to follow the principle that the law of the home Member State determines all the effects of reorganisation measures or winding-up proceedings, both procedural and substantive, it is also necessary to bear in mind that those effects may conflict with the rules normally applicable in the context of the economic and financial activity of the credit institution in question and its branches in other Member States. In some cases reference to the law of another Member State represents an unavoidable qualification of the principle that the law of the home Member State is to apply.(24) That qualification is especially necessary to protect employees having a contract of employment with a credit institution, ensure the security of transactions in respect of certain types of property and protect the integrity of regulated markets functioning in accordance with the law of a Member State on which financial instruments are traded.(25) Transactions carried out in the framework of a payment and settlement system are covered by Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems(7).(26) The adoption of this Directive does not call into question the provisions of Directive 98/26/EC according to which insolvency proceedings must not have any effect on the enforceability of orders validly entered into a system, or on collateral provided for a system.(27) Some reorganisation measures or winding-up proceedings involve the appointment of a person to administer them. The recognition of his appointment and his powers in all other Member States is therefore an essential factor in the implementation of decisions taken in the home Member State. However, the limits within which he may exercise his powers when he acts outside the home Member State should be specified.(28) Creditors who have entered into contracts with a credit institution before a reorganisation measure is adopted or winding-up proceedings are opened should be protected against provisions relating to voidness, voidability or unenforceability laid down in the law of the home Member State, where the beneficiary of the transaction produces evidence that in the law applicable to that transaction there is no available means of contesting the act concerned in the case in point.(29) The confidence of third-party purchasers in the content of the registers or accounts regarding certain assets entered in those registers or accounts and by extension of the purchasers of immovable property should be safeguarded, even after winding-up proceedings have been opened or a reorganisation measure adopted. The only means of safeguarding that confidence is to make the validity of the purchase subject to the law of the place where the immovable asset is situated or of the State under whose authority the register or account is kept.(30) The effects of reorganisation measures or winding-up proceedings on a lawsuit pending are governed by the law of the Member State in which the lawsuit is pending, by way of exception to the application of the lex concursus. The effects of those measures and procedures on individual enforcement actions arising from such lawsuits are governed by the legislation of the home Member State, in accordance with the general rule established by this Directive.(31) Provision should be made for the administrative or judicial authorities in the home Member State to notify immediately the competent authorities of the host Member State of the adoption of any reorganisation measure or the opening of any winding-up proceedings, if possible before the adoption of the measure or the opening of the proceedings, or, if not, immediately afterwards.(32) Professional secrecy as defined in Article 30 of Directive 2000/12/EC is an essential factor in all information or consultation procedures. For that reason it should be respected by all the administrative authorities taking part in such procedures, whereas the judicial authorities remain, in this respect, subject to the national provisions relating to them,HAVE ADOPTED THIS DIRECTIVE:TITLE ISCOPE AND DEFINITIONSArticle 1Scope1. This Directive shall apply to credit institutions and their branches set up in Member States other than those in which they have their head offices, as defined in points (1) and (3) of Article 1 of Directive 2000/12/EC, subject to the conditions and exemptions laid down in Article 2(3) of that Directive.2. The provisions of this Directive concerning the branches of a credit institution having a head office outside the Community shall apply only where that institution has branches in at least two Member States of the Community.Article 2DefinitionsFor the purposes of this Directive:- "home Member State" shall mean the Member State of origin within the meaning of Article 1, point (6) of Directive 2000/12/EC;- "host Member State" shall mean the host Member State within the meaning of Article 1, point (7) of Directive 2000/12/EC;- "branch" shall mean a branch within the meaning of Article 1, point (3) of Directive 2000/12/EC;- "competent authorities" shall mean the competent authorities within the meaning of Article 1, point (4) of Directive 2000/12/EC;- "administrator" shall mean any person or body appointed by the administrative or judicial authorities whose task is to administer reorganisation measures;- "administrative or judicial authorities" shall mean such administrative or judicial authorities of the Member States as are competent for the purposes of reorganisation measures or winding-up proceedings;- "reorganisation measures" shall mean measures which are intended to preserve or restore the financial situation of a credit institution and which could affect third parties' pre-existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims;- "liquidator" shall mean any person or body appointed by the administrative or judicial authorities whose task is to administer winding-up proceedings;- "winding-up proceedings" shall mean collective proceedings opened and monitored by the administrative or judicial authorities of a Member State with the aim of realising assets under the supervision of those authorities, including where the proceedings are terminated by a composition or other, similar measure;- "regulated market" shall mean a regulated market within the meaning of Article 1, point (13) of Directive 93/22/EEC;- "instruments" shall mean all the instruments referred to in Section B of the Annex to Directive 93/22/EEC.TITLE IIREORGANISATION MEASURESA. Credit institutions having their head offices within the CommunityArticle 3Adoption of reorganisation measures - applicable law1. The administrative or judicial authorities of the home Member State shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other Member States.2. The reorganisation measures shall be applied in accordance with the laws, regulations and procedures applicable in the home Member State, unless otherwise provided in this Directive.They shall be fully effective in accordance with the legislation of that Member State throughout the Community without any further formalities, including as against third parties in other Member States, even where the rules of the host Member State applicable to them do not provide for such measures or make their implementation subject to conditions which are not fulfilled.The reorganisation measures shall be effective throughout the Community once they become effective in the Member State where they have been taken.Article 4Information for the competent authorities of the host Member StateThe administrative or judicial authorities of the home Member State shall without delay inform, by any available means, the competent authorities of the host Member State of their decision to adopt any reorganisation measure, including the practical effects which such a measure may have, if possible before it is adopted or otherwise immediately thereafter. Information shall be communicated by the competent authorities of the home Member State.Article 5Information for the supervisory authorities of the home Member StateWhere the administrative or judicial authorities of the host Member State deem it necessary to implement within their territory one or more reorganisation measures, they shall inform the competent authorities of the home Member State accordingly. Information shall be communicated by the host Member State's competent authorities.Article 6Publication1. Where implementation of the reorganisation measures decided on pursuant to Article 3(1) and (2) is likely to affect the rights of third parties in a host Member State and where an appeal may be brought in the home Member State against the decision ordering the measure, the administrative or judicial authorities of the home Member State, the administrator or any person empowered to do so in the home Member State shall publish an extract from the decision in the Official Journal of the European Communities and in two national newspapers in each host Member State, in order in particular to facilitate the exercise of the right of appeal in good time.2. The extract from the decision provided for in paragraph 1 shall be forwarded at the earliest opportunity, by the most appropriate route, to the Office for Official Publications of the European Communities and to the two national newspapers in each host Member State.3. The Office for Official Publications of the European Communities shall publish the extract at the latest within twelve days of its dispatch.4. The extract from the decision to be published shall specify, in the official language or languages of the Member States concerned, in particular the purpose and legal basis of the decision taken, the time limits for lodging appeals, specifically a clearly understandable indication of the date of expiry of the time limits, and the full address of the authorities or court competent to hear an appeal.5. The reorganisation measures shall apply irrespective of the measures prescribed in paragraphs 1 to 3 and shall be fully effective as against creditors, unless the administrative or judicial authorities of the home Member State or the law of that State governing such measures provide otherwise.Article 7Duty to inform known creditors and right to lodge claims1. Where the legislation of the home Member State requires lodgement of a claim with a view to its recognition or provides for compulsory notification of the measure to creditors who have their domiciles, normal places of residence or head offices in that State, the administrative or judicial authorities of the home Member State or the administrator shall also inform known creditors who have their domiciles, normal places of residence or head offices in other Member States, in accordance with the procedures laid down in Articles 14 and 17(1).2. Where the legislation of the home Member State provides for the right of creditors who have their domiciles, normal places of residence or head offices in that State to lodge claims or to submit observations concerning their claims, creditors who have their domiciles, normal places of residence or head offices in other Member States shall also have that right in accordance with the procedures laid down in Article 16 and Article 17(2).B. Credit institutions having their head offices outside the CommunityArticle 8Branches of third-country credit institutions1. The administrative or judicial authorities of the host Member State of a branch of a credit institution having its head office outside the Community shall without delay inform, by any available means, the competent authorities of the other host Member States in which the institution has set up branches which are included on the list referred to in Article 11 of Directive 2000/12/EC and published each year in the Official Journal of the European Communities, of their decision to adopt any reorganisation measure, including the practical effects which that measure may have, if possible before it is adopted or otherwise immediately thereafter. Information shall be communicated by the competent authorities of the host Member State whose administrative or judicial authorities decide to apply the measure.2. The administrative or judicial authorities referred to in paragraph 1 shall endeavour to coordinate their actions.TITLE IIIWINDING-UP PROCEEDINGSA. Credit institutions having their head offices within the CommunityArticle 9Opening of winding-up proceedings - Information to be communicated to other competent authorities1. The administrative or judicial authorities of the home Member State which are responsible for winding up shall alone be empowered to decide on the opening of winding-up proceedings concerning a credit institution, including branches established in other Member States.A decision to open winding-up proceedings taken by the administrative or judicial authority of the home Member State shall be recognised, without further formality, within the territory of all other Member States and shall be effective there when the decision is effective in the Member State in which the proceedings are opened.2. The administrative or judicial authorities of the home Member State shall without delay inform, by any available means, the competent authorities of the host Member State of their decision to open winding-up proceedings, including the practical effects which such proceedings may have, if possible before they open or otherwise immediately thereafter. Information shall be communicated by the competent authorities of the home Member State.Article 10Law applicable1. A credit institution shall be wound up in accordance with the laws, regulations and procedures applicable in its home Member State insofar as this Directive does not provide otherwise.2. The law of the home Member State shall determine in particular:(a) the goods subject to administration and the treatment of goods acquired by the credit institution after the opening of winding-up proceedings;(b) the respective powers of the credit institution and the liquidator;(c) the conditions under which set-offs may be invoked;(d) the effects of winding-up proceedings on current contracts to which the credit institution is party;(e) the effects of winding-up proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending, as provided for in Article 32;(f) the claims which are to be lodged against the credit institution and the treatment of claims arising after the opening of winding-up proceedings;(g) the rules governing the lodging, verification and admission of claims;(h) the rules governing the distribution of the proceeds of the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings by virtue of a right in re or through a set-off;(i) the conditions for, and the effects of, the closure of insolvency proceedings, in particular by composition;(j) creditors' rights after the closure of winding-up proceedings;(k) who is to bear the costs and expenses incurred in the winding-up proceedings;(l) the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.Article 11Consultation of competent authorities before voluntary winding up1. The competent authorities of the home Member State shall be consulted in the most appropriate form before any voluntary winding-up decision is taken by the governing bodies of a credit institution.2. The voluntary winding up of a credit institution shall not preclude the adoption of a reorganisation measure or the opening of winding-up proceedings.Article 12Withdrawal of a credit institution's authorisation1. Where the opening of winding-up proceedings is decided on in respect of a credit institution in the absence, or following the failure, of reorganisation measures, the authorisation of the institution shall be withdrawn in accordance with, in particular, the procedure laid down in Article 22(9) of Directive 2000/12/EC.2. The withdrawal of authorisation provided for in paragraph 1 shall not prevent the person or persons entrusted with the winding up from carrying on some of the credit institution's activities insofar as that is necessary or appropriate for the purposes of winding up.The home Member State may provide that such activities shall be carried on with the consent, and under the supervision, of the competent authorities of that Member State.Article 13PublicationThe liquidators or any administrative or judicial authority shall announce the decision to open winding-up proceedings through publication of an extract from the winding-up decision in the Official Journal of the European Communities and at least two national newspapers in each of the host Member States.Article 14Provision of information to known creditors1. When winding-up proceedings are opened, the administrative or judicial authority of the home Member State or the liquidator shall without delay individually inform known creditors who have their domiciles, normal places of residence or head offices in other Member States, except in cases where the legislation of the home State does not require lodgement of the claim with a view to its recognition.2. That information, provided by the dispatch of a notice, shall in particular deal with time limits, the penalties laid down in regard to those time limits, the body or authority empowered to accept the lodgement of claims or observations relating to claims and the other measures laid down. Such a notice shall also indicate whether creditors whose claims are preferential or secured in re need lodge their claims.Article 15Honouring of obligationsWhere an obligation has been honoured for the benefit of a credit institution which is not a legal person and which is the subject of winding-up proceedings opened in another Member State, when it should have been honoured for the benefit of the liquidator in those proceedings, the person honouring the obligation shall be deemed to have discharged it if he was unaware of the opening of proceedings. Where such an obligation is honoured before the publication provided for in Article 13 has been effected, the person honouring the obligation shall be presumed, in the absence of proof to the contrary, to have been unaware of the opening of winding-up proceedings; where the obligation is honoured after the publication provided for in Article 13 has been effected, the person honouring the obligation shall be presumed, in the absence of proof to the contrary, to have been aware of the opening of proceedings.Article 16Right to lodge claims1. Any creditor who has his domicile, normal place of residence or head office in a Member State other than the home Member State, including Member States' public authorities, shall have the right to lodge claims or to submit written observations relating to claims.2. The claims of all creditors whose domiciles, normal places of residence or head offices are in Member States other than the home Member State shall be treated in the same way and accorded the same ranking as claims of an equivalent nature which may be lodged by creditors having their domiciles, normal places of residence, or head offices in the home Member State3. Except in cases where the law of the home Member State provides for the submission of observations relating to claims, a creditor shall send copies of supporting documents, if any, and shall indicate the nature of the claim, the date on which it arose and its amount, as well as whether he alleges preference, security in re or reservation of title in respect of the claim and what assets are covered by his security.Article 17Languages1. The information provided for in Articles 13 and 14 shall be provided in the official language or one of the official languages of the home Member State. For that purpose a form shall be used bearing, in all the official languages of the European Union, the heading "Invitation to lodge a claim. Time limits to be observed" or, where the law of the home Member State provides for the submission of observations relating to claims, the heading "Invitation to submit observations relating to a claim. Time limits to be observed".2. Any creditor who has his domicile, normal place of residence or head office in a Member State other than the home Member State may lodge his claim or submit observations relating to his claim in the official language or one of the official languages of that other Member State. In that event, however, the lodgement of his claim or the submission of observations on his claim shall bear the heading "Lodgement of claim" or "Submission of observations relating to claims" in the official language or one of the official languages of the home Member State. In addition, he may be required to provide a translation into that language of the lodgement of claim or submission of observations relating to claims.Article 18Regular provision of information to creditorsLiquidators shall keep creditors regularly informed, in an appropriate manner, particularly with regard to progress in the winding up.B. Credit institutions the head offices of which are outside the CommunityArticle 19Branches of third-country credit institutions1. The administrative or judicial authorities of the host Member State of the branch of a credit institution the head office of which is outside the Community shall without delay inform, by any available means, the competent authorities of the other host Member States in which the credit institution has set up branches on the list referred to in Article 11 of Directive 2000/12/EC and published each year in the Official Journal of the European Communities, of their decision to open winding-up proceedings, including the practical effects which these proceedings may have, if possible before they open or otherwise immediately thereafter. Information shall be communicated by the competent authorities of the first abovementioned host Member State.2. Administrative or judicial authorities which decide to open proceedings to wind up a branch of a credit institution the head office of which is outside the Community shall inform the competent authorities of the other host Member States that winding-up proceedings have been opened and authorisation withdrawn.Information shall be communicated by the competent authorities in the host Member State which has decided to open the proceedings.3. The administrative or judicial authorities referred to in paragraph 1 shall endeavour to coordinate their actions.Any liquidators shall likewise endeavour to coordinate their actions.TITLE IVPROVISIONS COMMON TO REORGANISATION MEASURES AND WINDING-UP PROCEEDINGSArticle 20Effects on certain contracts and rightsThe effects of a reorganisation measure or the opening of winding-up proceedings on:(a) employment contracts and relationships shall be governed solely by the law of the Member State applicable to the employment contract;(b) a contract conferring the right to make use of or acquire immovable property shall be governed solely by the law of the Member State within the territory of which the immovable property is situated. That law shall determine whether property is movable or immovable;(c) rights in respect of immovable property, a ship or an aircraft subject to registration in a public register shall be governed solely by the law of the Member State under the authority of which the register is kept.Article 21Third parties' rights in re1. The adoption of reorganisation measures or the opening of winding-up proceedings shall not affect the rights in re of creditors or third parties in respect of tangible or intangible, movable or immovable assets - both specific assets and collections of indefinite assets as a whole which change from time to time - belonging to the credit institution which are situated within the territory of another Member State at the time of the adoption of such measures or the opening of such proceedings.2. The rights referred to in paragraph 1 shall in particular mean:(a) the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds of or income from those assets, in particular by virtue of a lien or a mortgage;(b) the exclusive right to have a claim met, in particular a right guaranteed by a lien in respect of the claim or by assignment of the claim by way of a guarantee;(c) the right to demand the assets from, and/or to require restitution by, anyone having possession or use of them contrary to the wishes of the party so entitled;(d) a right in re to the beneficial use of assets.3. The right, recorded in a public register and enforceable against third parties, under which a right in re within the meaning of paragraph 1 may be obtained, shall be considered a right in re.4. Paragraph 1 shall not preclude the actions for voidness, voidability or unenforceability laid down in Article 10(2)(l).Article 22Reservation of title1. The adoption of reorganisation measures or the opening of winding-up proceedings concerning a credit institution purchasing an asset shall not affect the seller's rights based on a reservation of title where at the time of the adoption of such measures or opening of such proceedings the asset is situated within the territory of a Member State other than the State in which the said measures were adopted or the said proceedings were opened.2. The adoption of reorganisation measures or the opening of winding-up proceedings concerning a credit institution selling an asset, after delivery of the asset, shall not constitute grounds for rescinding or terminating the sale and shall not prevent the purchaser from acquiring title where at the time of the adoption of such measures or the opening of such proceedings the asset sold is situated within the territory of a Member State other than the State in which such measures were adopted or such proceedings were opened.3. Paragraphs 1 and 2 shall not preclude the actions for voidness, voidability or unenforceability laid down in Article 10(2)(l).Article 23Set-off1. The adoption of reorganisation measures or the opening of winding-up proceedings shall not affect the right of creditors to demand the set-off of their claims against the claims of the credit institution, where such a set-off is permitted by the law applicable to the credit institution's claim.2. Paragraph 1 shall not preclude the actions for voidness, voidability or unenforceability laid down in Article 10(2)(l).Article 24Lex rei sitaeThe enforcement of proprietary rights in instruments or other rights in such instruments the existence or transfer of which presupposes their recording in a register, an account or a centralised deposit system held or located in a Member State shall be governed by the law of the Member State where the register, account, or centralised deposit system in which those rights are recorded is held or located.Article 25Netting agreementsNetting agreements shall be governed solely by the law of the contract which governs such agreements.Article 26Repurchase agreementsWithout prejudice to Article 24, repurchase agreements shall be governed solely by the law of the contract which governs such agreements.Article 27Regulated marketsWithout prejudice to Article 24, transactions carried out in the context of a regulated market shall be governed solely by the law of the contract which governs such transactions.Article 28Proof of liquidators' appointment1. The administrator or liquidator's appointment shall be evidenced by a certified copy of the original decision appointing him or by any other certificate issued by the administrative or judicial authority of the home Member State.A translation into the official language or one of the official languages of the Member State within the territory of which the administrator or liquidator wishes to act may be required. No legalisation or other similar formality shall be required.2. Administrators and liquidators shall be entitled to exercise within the territory of all the Member States all the powers which they are entitled to exercise within the territory of the home Member State. They may also appoint persons to assist or, where appropriate, represent them in the course of the reorganisation measure or winding-up proceedings, in particular in host Member States and, specifically, in order to help overcome any difficulties encountered by creditors in the host Member State.3. In exercising his powers, an administrator or liquidator shall comply with the law of the Member States within the territory of which he wishes to take action, in particular with regard to procedures for the realisation of assets and the provision of information to employees. Those powers may not include the use of force or the right to rule on legal proceedings or disputes.Article 29Registration in a public register1. The administrator, liquidator or any administrative or judicial authority of the home Member State may request that a reorganisation measure or the decision to open winding-up proceedings be registered in the land register, the trade register and any other public register kept in the other Member States.A Member State may, however, prescribe mandatory registration. In that event, the person or authority referred to in the preceding subparagraph shall take all the measures necessary to ensure such registration.2. The costs of registration shall be regarded as costs and expenses incurred in the proceedings.Article 30Detrimental acts1. Article 10 shall not apply as regards the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to the creditors as a whole, where the beneficiary of these acts provides proof that:- the act detrimental to the creditors as a whole is subject to the law of a Member State other than the home Member State, and- that law does not allow any means of challenging that act in the case in point.2. Where a reorganisation measure decided on by a judicial authority provides for rules relating to the voidness, voidability or unenforceability of legal acts detrimental to the creditors as a whole performed before adoption of the measure, Article 3(2) shall not apply in the cases provided for in paragraph 1 of this Article.Article 31Protection of third partiesWhere, by an act concluded after the adoption of a reorganisation measure or the opening of winding-up proceedings, a credit institution disposes, for consideration, of:- an immovable asset,- a ship or an aircraft subject to registration in a public register, or- instruments or rights in such instruments the existence or transfer of which presupposes their being recorded in a register, an account or a centralised deposit system held or located in a Member State,the validity of that act shall be governed by the law of the Member State within the territory of which the immovable asset is situated or under the authority of which that register, account or deposit system is kept.Article 32Lawsuits pendingThe effects of reorganisation measures or winding-up proceedings on a pending lawsuit concerning an asset or a right of which the credit institution has been divested shall be governed solely by the law of the Member State in which the lawsuit is pending.Article 33Professional secrecyAll persons required to receive or divulge information in connection with the information or consultation procedures laid down in Articles 4, 5, 8, 9, 11 and 19 shall be bound by professional secrecy, in accordance with the rules and conditions laid down in Article 30 of Directive 2000/12/EC, with the exception of any judicial authorities to which existing national provisions apply.TITLE VFINAL PROVISIONSArticle 34Implementation1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive on 5 May 2004. They shall forthwith inform the Commission thereof.National provisions adopted in application of this Directive shall apply only to reorganisation measures or winding-up proceedings adopted or opened after the date referred to in the first subparagraph. Measures adopted or proceedings opened before that date shall continue to be governed by the law that was applicable to them at the time of adoption or opening.2. 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.3. 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 35Entry into forceThis Directive shall enter into force on the date of its publication.Article 36AddresseesThis Directive is addressed to the Member States.Done at Luxembourg, 4 April 2001.For the European ParliamentThe PresidentN. FontaineFor the CouncilThe PresidentB. Rosengren(1) OJ C 356, 31.12.1985, p. 55 andOJ C 36, 8.2.1988, p. 1.(2) OJ C 263, 20.10.1986, p. 13.(3) OJ C 332, 30.10.1998, p. 13.(4) Opinion of the European Parliament of 13 March 1987 (OJ C 99, 13.4.1987, p. 211), confirmed on 2 December 1993 (OJ C 342, 20.12.1993, p. 30), Council Common Position of 17 July 2000 (OJ C 300, 20.10.2000, p. 13) and Decision of the European Parliament of 16 January 2001 (not yet published in the Official Journal). Council Decision of 12 March 2001.(5) OJ L 126, 26.5.2000, p. 1. Directive as amended by Directive 2000/28/EC (OJ L 275, 27.10.2000, p. 37).(6) OJ L 135, 31.5.1994, p. 5.(7) OJ L 166, 11.6.1998, p. 45.


Avis juridique important

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31991L0633

Council Directive 91/633/EEC of 3 December 1991 implementing Directive 89/299/EEC on the own funds of credit institutions

Official Journal L 339 , 11/12/1991 P. 0033 - 0034 Finnish special edition: Chapter 6 Volume 3 P. 0087  Swedish special edition: Chapter 6 Volume 3 P. 0087

COUNCIL DIRECTIVE  of 3 December 1991  implementing Directive 89/299/EEC on the own funds of credit institutions  (91/633/EEC)THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions (1) and in particular Article 6 (2) thereof,  Having regard to the proposal from the Commission,  Whereas Directive 89/229/EEC gives a definition of the own funds of credit institutions including the way by which total own funds are to be calculated;  Whereas since, with regard to the fund for general banking risks within the meaning of Article 38 of Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (2) there was  no final allocation, Article 6 (2) of Directive 89/299/EEC provides that within six months of the date of implementation the Commission shall propose the final treatment of this item either in original own funds or in additional own funds, in accordance  with the procedure provided for in Article 8;  Whereas the Banking Advisory Committee has expressed its opinion; whereas taking into account the results of discussions wider international fora and in accordance with the treatment of the fund for general banking risks at international level, these  are included within the category of original own funds;  Whereas Directive 89/299/EEC should therefore be amended accordingly,  HAS ADOPTED THIS DIRECTIVE:  Article 1  Directive 89/299/EEC is hereby amended as follows:  1. Article 6 (1) shall be replaced by the following:  '1. The items referred to in Article 2 (1), points 3 and 5 to 8 shall be subject to the following limits:  (a) the total of items 3 and 5 to 8 may not exceed a maximum of 100 % of items 1 plus 2 and 4 minus 9, 10 and 11;  (b) the total of items 7 and 8 may not exceed a maximum of 50 % of items 1 plus 2 and 4 minus 9, 10 and 11;  (c) the total of items 12 and 13 shall be deducted from the total of the items.'  2. Article 6 (2) shall be deleted.  Article 2  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1993. They shall forthwith inform the Commission thereof.  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 a reference shall be  laid down by the Member States.  3. Member States shall communicate to the Commission the text 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, 3 December 1991. For the Council  The President  B. de VRIES   (1) OJ No L 124, 5. 5. 1989, p. 16. (2) OJ No L 372, 31. 12. 1986, p. 1.


title: Commission Directive 2009/115/EC of 31 August 2009 amending Council Directive 91/414/EEC to include methomyl as active substance (Text with EEA relevance)

text:
               1.9.2009

               EN

               Official Journal of the European Union

               L 228/17

      COMMISSION DIRECTIVE 2009/115/EC
   of 31 August 2009
   amending Council Directive 91/414/EEC to include methomyl as active substance
   (Text with EEA relevance)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community,
   Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular Article 6(1) thereof,
   Whereas:

               (1)

               Commission Regulations (EC) No 451/2000 (2) and (EC) No 703/2001 (3) lay down the detailed rules for the implementation of the second stage of the programme of work referred to in Article 8(2) of Directive 91/414/EEC and establish a list of active substances to be assessed, with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list included methomyl. By Commission Decision 2007/628/EC (4) it was decided not to include methomyl in Annex I to Directive 91/414/EEC.

               (2)

               Pursuant to Article 6(2) of Directive 91/414/EEC the original notifier submitted a new application requesting the application of the accelerated procedure provided for in Article 14 to 19 of Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Council Directive 91/414/EEC as regards a regular and an accelerated procedure for the assessment of active substances which were part of the programme of work referred to in Article 8(2) of that Directive but have not been included into its Annex I (5).

               (3)

               The application was submitted to the United Kingdom, which had been designated rapporteur Member State by Regulation (EC) No 451/2000. The time period for the accelerated procedure was respected. The specification of the active substance and the supported uses are the same as were the subject of Decision 2007/628/EC. That application also complies with the remaining substantive and procedural requirements of Article 15 of Regulation (EC) No 33/2008.

               (4)

               The United Kingdom evaluated the new information and data submitted by the notifier and prepared an additional report on 15 May 2008.

               (5)

               The additional report was peer reviewed by the Member States and the EFSA and presented to the Commission on 19 December 2008 in the format of the EFSA Scientific Report for methomyl (6). This report was reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health and finalised on 12 June 2009 in the format of the Commission review report for methomyl.

               (6)

               The new assessment by the rapporteur Member State and the new conclusion by the EFSA concentrated on the concerns that lead to the non-inclusion. Those were the unacceptable operator exposure, the inconclusive nature of the exposure assessment for workers and bystanders and the high risk for birds, mammals, aquatic organisms, bees and other non-target arthropods.

               (7)

               New data and information were submitted by the notifier in the new dossier and a new assessment was performed, as included in the additional report and in the EFSA Scientific Report for methomyl. As a consequence, it was shown that acceptable levels of operator exposure can be achieved, if protective equipment, in addition to that referred to in the original dossier, is worn. As regards the risk to workers and bystanders, it has been clarified that no unacceptable risks are expected from the uses as supported in the resubmitted dossier. Finally, the risk to birds, mammals, aquatic organisms, bees and non-target arthropods may be considered as acceptable, provided that the lowest supported application rate is applied and that appropriate risk management measures are implemented.

               (8)

               Consequently, the additional data and information provided by the notifier permit to eliminate the specific concerns that led to the non-inclusion. No other open scientific questions have arisen.

               (9)

               It has appeared from the various examinations made that plant protection products containing methomyl may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, in particular with regard to the uses which were examined and detailed in the Commission review report. It is therefore appropriate to include methomyl in Annex I, in order to ensure that in all Member States the authorisations of plant protection products containing this active substance may be granted in accordance with the provisions of that Directive.

               (10)

               However, to exclude any risk of intentional or unintentional poisoning, it is appropriate to require repelling and/or emetic agents to be incorporated in plant protection products containing methomyl and to authorise use by professionals only.

               (11)

               It is therefore appropriate to amend Directive 91/414/EEC accordingly.

               (12)

               The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

         HAS ADOPTED THIS DIRECTIVE:
   Article 1
   Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive.
   Article 2
   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 January 2010 at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
   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.
   Article 3
   This Directive shall enter into force on 1 September 2009.
   Article 4
   This Directive is addressed to the Member States.

      Done at Brussels, 31 August 2009.

            For the Commission

         Androulla VASSILIOU

            Member of the Commission

      (1)  OJ L 230, 19.8.1991, p. 1.

      (2)  OJ L 55, 29.2.2000, p. 25.

      (3)  OJ L 98, 7.4.2001, p. 6.

      (4)  OJ L 255, 29.9.2007, p. 40.

      (5)  OJ L 15, 18.1.2008, p. 5.

      (6)  EFSA Scientific Report (2008) 222 — Conclusion regarding the peer review of the pesticide risk assessment of the active substance methomyl (re-issued on 19 December 2008).

      ANNEX
      The following entry shall be added at the end of the table in Annex I to Directive 91/414/EEC:

                     No

                     Common Name, Identification Numbers

                     IUPAC Name

                     Purity (1)

                     Entry into force

                     Expiration of inclusion

                     Specific provisions

                     ‘Methomyl
                     CAS No: 16752-77-50
                     CIPAC No: 264

                     S-methyl (EZ)-N-(methylcarbamoyloxy)thioacetimidate

                     ≥ 980 g/kg

                     1 September 2009

                     31 August 2019

                     PART A
                     Only uses as insecticide on vegetables may be authorised at rates not exceeding 0,25 kg active substance per hectare per application and for a maximum of 2 applications per season.
                     Authorisations shall be limited to professional users.
                     PART B
                     For the implementation of the uniform principles of Annex VI, the conclusions of the review report on methomyl, and in particular Appendices I and II thereof, as finalised in the Standing Committee on the Food Chain and Animal Health on 12 June 2009 shall be taken into account.
                     In this overall assessment Member States shall pay particular attention to:

                                 —

                                 the operator safety: conditions of use shall prescribe the use of adequate personal protective equipment. Special attention shall be paid to the exposure of operators using knapsacks or other hand-held application equipment,

                                 —

                                 the protection of birds,

                                 —

                                 the protection of aquatic organisms: conditions of authorisation shall include risk mitigation measures, where appropriate, such as buffer zones, reduction of run-off and drift reduction nozzles,

                                 —

                                 the protection of non-target arthropods, in particular bees: risk mitigation measures to avoid all contact with bees shall be applied,

                           Member States shall ensure that methomyl-based formulations contain effective repelling and/or emetic agents.
                     Where appropriate, conditions of authorisation shall include further risk mitigation measures.’

         (1)  Further details on identity and specification of active substance are provided in the review report.