52000SC1517

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and the Council on the reorganisation and winding-up of credit institutions

1. BACKGROUND

1. On 19 December 1985, the Commission adopted a proposal for a Council Directive on the co-ordination of laws, regulations and administrative provisions relating to the reorganisation and the winding-up of credit institutions based on Article 47 (2) [1] of the EC Treaty (COM(1985)0788 - 1985/0046 (COD)).

[1] Then Article 57 (2).

2. The proposal was forwarded to the Council on 9 January 1986.

3. The Economic and Social Committee gave its opinion on 2 July 1986.

4. The European Parliament gave its opinion in first reading on the proposal on 13 March 1987.

5. Following these opinions the Commission presented an amended proposal on 11 January 1988.

6. The European Monetary Institute gave its opinion on 12 June 1996.

7. On 17 July 2000 the Council adopted the common position which is the subject of this communication.

2. PURPOSE OF THE COMMISSION PROPOSALS

The purpose of the Directive is to ensure that

- a credit institution and its branches in other Member States are reorganised or wound up according to the principles of unity and universality, meaning that, save where otherwise provided for by the Directive, the administrative or judicial authorities of the home Member State have sole jurisdiction, that their decisions are recognised and produce the effects provided for under the law of the home State in all other Member States, without any formality, and that the administrator or the liquidator are entitled to exercise within the territory of other Member States the powers which he is entitled to exercise within his own territory; only in this way can the equal treatment of creditors be guaranteed in winding-up proceedings and can a consistent approach be taken throughout the EU as regards the reorganisation of a credit institution and its branches and assets located in other Member States.

- home and host Member State administrative, judicial and supervisory authorities co-operate in the reorganisation or winding-up of a credit institution and its branches

- through a mechanism of publicity and individual notification, the rights of creditors in other Member States are as well safeguarded as the rights of the creditors residing in the Member State where the credit institution has its head office

3. COMMENTS ON THE COMMON POSITION

3.1. General considerations

The Council's common position is in line with amendments proposed by the European Parliament and with the Commission's proposal.

It also takes into account the fact that other initiatives have been adopted in the meanwhile, and notably:

- the Second Banking Directive [2], which has in the meanwhile itself been bundled, together with other Banking Directives, in the Codified Directive [3]

[2] Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC, OJ L 386 of 30 December 1989, p. 1.

[3] 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, OJ L 126 of 26 May 2000, p. 1.

- the Deposit Guarantee Scheme Directive [4]

[4] Directive 94/19/EC of the European Parliament and the Council of 30 May 1994 on deposit guarantee schemes, OJ L 135 of 31 May 1994, p. 5.

- the Settlement Finality Directive [5]

[5] 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, OJ L 166 of 11 June 1998, p. 45.

- Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings [6] (hereafter "Insolvency Regulation")

[6] OJ L 160 of 30 June 2000, p. 1.

Title IV of the Commission's amended proposal, which dealt with deposit-guarantee schemes, and other provisions on this matter, have been deleted following the adoption of Directive 94/19/EC of the European Parliament and the Council of 30 May 1994 on deposit guarantee schemes.

A number of articles have been added to take into account especially concerns which rose during the discussions on the Insolvency Regulation and which needed to be addresses also in the framework of this proposal. A number of clarifications have also been included in the Council's common position, which improve the text.

3.2. The common position in relation to the European Parliament's amendments in first reading and to the Commission's proposal for a directive on the reorganisation and winding-up of credit institutions.

3.2.1 Recitals

The European Parliament proposed to include two recitals in its first reading. Both recitals were included in the Commission's amended proposal. They do not appear in the common position. The reason therefor is that both recitals have become outdated.

The first recital referred to the pending conclusion of the Insolvency Convention. As stated above, an Insolvency Regulation has been adopted in the meanwhile.

The other recital referred to the future co-ordination of deposit compensation schemes in the EU. In 1994, a directive on deposit guarantee schemes was adopted.

As will be explained below, a number of articles were added in the common position in comparison with the Commission's amended proposal. As a consequence, corresponding recitals have been added. There is no need to go into any detail on their content, as recitals aim at clarifying articles. In the section below, however, these articles will be explained in detail.

3.2.2 Articles

Title I of the common position: Scope and Definitions

Article 1 of the common position replaces the reference to Directive 77/780/EEC, since this Directive was bundled into and repealed by the Codified Directive. It further includes the amendment proposed by the European Parliament that the branches must be set up in a Member State other than that in which the credit institution has its head office.

Article 2 of the common position defines the terms used throughout the text and includes the definitions contained in article 3 of the Commission's modified proposal. Given that a number of articles were added, it was also necessary to define some of the terms used therein. The total number of definitions therefore increased accordingly. In particular, definitions were added of what a "branch", an "administrator", "administrative or judicial authorities", a "liquidator", a "regulated market" and "instruments" are for the purposes of this Directive. Insofar as these terms have already been defined in other community instruments, the definitions have been aligned. Where necessary, the reference to repealed Directives has been replaced by references to the Codified Directive.

The Council was of the opinion that having annexes in this Directive listing the existing reorganisation measures and winding up proceedings in the different Member States was not, in the end, a workable solution. Any change brought by any Member State to its legislation on reorganisation measures or winding up proceedings would have required that the annexes of this Directive be amended, following a lengthy procedure. The Commission shares that point of view. The consequence thereof is that "reorganisation measures" or "winding up proceedings" could no longer be defined by simple reference to the annexes, as it was proposed by the European Parliament in first reading. The amendment to article 2 and the new articles 2a and 15a, proposed in first reading by the European Parliament, are therefore not included in the common position.

Given that following the adoption of the directive on deposit guarantee schemes, Title IV of the amended proposal (containing a single article 17) on deposit guarantee schemes was deleted, so was the definition, proposed by the European Parliament in first reading, of what a "deposit-guarantee scheme" is.

The definitions of "home country" and "host country" have been replaced by "home Member State" and "host Member State". Since these terms have, in the meanwhile, been defined in community law, this text refers to the existing definitions.

Title II of the common position: Reorganisation Measures

A. Credit Institutions having their head offices within the Community

Article 3 of the common position establishes the principle of unity and universality in reorganisation proceedings. It provides that the home Member State administrative or judicial authorities alone are empowered to decide on the implementation of reorganisation proceedings in a credit institution and its branches located in other Member States, that the applicable insolvency law is the law of the home Member State and that measures taken will be effective throughout the EU, without further formalities. Although slightly reworded, this article fully maintains the spirit of article 4 of the Commission's amended proposal. However, paragraph 3 of the Commission's amended proposal has been deleted from the common position. This paragraph left open the possibility for the host Member State administrative or judicial authorities to open reorganisation proceedings against a branch of a credit institution, without the need for reorganisation proceedings to be opened against the credit institution itself in the home Member State. The Council has chosen for a purer application of the principle of unity and universality, whereby reorganisation proceedings can only be opened by the home Member State administrative or judicial authorities against the credit institution and its branches. The Commission supports that approach.

Article 4 of the common position corresponds with article 5 of the Commission's amended proposal. Contrary to the latter, no obligation exists any longer in the common position for the home Member State administrative or judicial authorities to consult the host Member State authorities. The administrative or judicial authorities must simply inform the competent authorities of the host Member State when taking a reorganisation measure. Also, this information must not be given beforehand in all events. Given the urgency involved in taking reorganisation measures against a credit institution, the information might be given immediately thereafter. The new article 6a that the European Parliament proposed in first reading and that provided that the authorities could take minimum measures in cases of extreme urgency pending information of the other Member States involved, has therefore not been retained.

As underlined above, there is some urgency involved in passing on the information to the host Member State authority. For that reason, although the decision to take reorganistaion measures against a credit institution is taken by the administrative or judicial authority, the transfer of that information to the host Member State competent authority will be done by its counterpart in the home Member State. Unless the administrative or judicial authority taking the reorganisation measure is at the same time the competent authority, the first will thus pass on the information to the own competent authority, which in turn will transfer that information to the competent authorities in the host Member State. This is justified because the Member States' competent authorities maintain close links of co-operation on a daily basis, which guarantees a swift passing on of the information.

The Commission's amended proposal provided that this information had to be passed on, "unless the measure concerned is clearly not likely to have any significant effect on a branch situated in another Member State". The European Parliament had, in its first reading, requested that this be deleted. The common position follows that proposal.

Article 5 of the common position concerns the opposite situation than the one under articles 3 and 4 of the common position and corresponds with article 6 of the Commission's amended proposal. The situation described here is the one where the administrative or judicial authorities of the host Member State deem it necessary that reorganisation measures be opened against a branch established on their territory. Under the principle of unity and universality, only the home Member State administrative or judicial authorities can open reorganisation proceedings against a credit institution and its branches. The host Member State administrative or judicial authorities must thus inform the home Member State administrative or judicial authorities of the perceived need to open reorganisation proceedings. As it was stated above, the possibility that was left open in the Commission's amended proposal for the host Member State administrative or judicial authorities to open a reorganisation proceeding against the branch of a credit institution, without a proceeding being opened against the credit institution in the home Member State itself, has been deleted. If reorganisation proceedings are to be opened, they will concern the credit institution and its branches, and the decision to open these rests entirely with the home Member State administrative or judicial authorities.

Article 6 and 7 of the common position correspond with article 7 of the Commission's amended proposal.

Article 6 of the Council common position stipulates that the opening of reorganisation proceedings against a credit institution must be published in the Official Journal of the European Communities as well as in 2 national newspapers in each host Member State if the implementation thereof are likely to affect third parties' rights or if this decision is subject to appeal. It includes the amendments proposed by the European Parliament, even though slightly reworded ("third parties" instead of "creditors, including shareholders or employees of the credit institution concerned" for the reason set out in recital 8 and taking into account recital 10). The requirement is added in the common position for the Office for Official Publications of the European Communities to publish the extract within 12 days of dispatch. Instead of having the "time for lodging an appeal" starting on the day of publication in the Official Journal (par. 5 of article 7 of the Commission's amended proposal), this time limit must now be specified in the extract published in the OJ and the 2 national newspapers. Paragraph 5 of the Commission's amended proposal has therefore been deleted.

Article 7 of the common position provides for the obligation for the administrative or judicial authority or the administrator to notify known creditors individually, when the legislation of the home Member State provides for compulsory notification or when claims must be lodged in order for these to be recognised. Instead of a "possible" notification provided for in the Commission's amended proposal article 7, par. 2 ("should they deem it necessary"), the Council common position provides that known creditors must be notified in the above circumstances. A paragraph is added stating that where the legislation of the home Member State provides for the possibility for creditors in that state to lodge claims (as opposed to the obligation to do so in paragraph 1), then creditors in other Member States must have that same possibility.

B. Branches of Third-Country Institutions

Article 8 of the common position concerns the situation where a third country credit institution establishes branches in different Member States. The principle of unity and universality at the basis of this directive does not apply to branches from third country credit institutions. Nevertheless, it is desirable that the administrative and judicial authorities in Member States where a branch of the third country credit institution is established co-ordinate their actions when they decide to open reorganisation proceedings against that branch. The above article therefore stipulates that, if the administrative or judicial authorities of the Member State in which such branch is established decide to adopt a reorganisation measure against that branch, they should inform, via the own competent authorities, the competent authorities of other Member States in which the third country credit institution has established a branch in order to allow for a certain co-ordination of the actions within the EU. The duty of co-ordination between the administrative or judicial authorities concerned is expressly provided for. As explained above, the information should in principle be passed on before taking the measure, but in cases of urgency it can also be immediately thereafter. This article corresponds with paragraphs 2, 3 and 5 of article 8 of the Commission's amended proposal.

Paragraphs 1 and 4 of article 8 of the Commission's amended proposal provided for rules on reorganisation "pending subsequent coordination of laws, regulations and administrative provisions applying to the branches of credit institutions having their head offices outside of the Community". No such plans to coordinate this specific situation exist. These paragraphs have therefore been deleted from the common position.

Following the deletion of the annexes for the reasons set out above, article 9 of the Commission's amended proposal was deleted. It was also felt that article 10 of the Commission's amended proposal was superfluous in the light of what is provided in article 3 of the common position.

Title III of the common position: Winding-Up Proceedings

A. Credit Institutions having their head offices within the Community

Article 9 of the common position provides, in line with the principle of the unity and universality of winding up proceedings, that the administrative or judicial authorities of the home Member State are sole empowered to decide on the opening of winding up proceedings and to wind up the assets of the credit institution, including branches/assets located in other Member States. These proceedings will have effect throughout the EU without further formalities. The mechanism of information is the same as described above for reorganisation proceedings. This article corresponds with article 11.1 and 11.3 of the Commission's amended proposal. The amendment of article 11.3 proposed by the European Parliament was included in the Commission's amended proposal and in the common position.

Article 10 of the common position provides that the applicable insolvency law is the one of the home Member State of the credit institution, save where otherwise provided for by the directive. This paragraph corresponds with article 11.2 of the Commission's amended proposal and included the amendment proposed by the Parliament.

A second paragraph was added to article 10 in the common position. It sets out a non-exhaustive list of examples of matters which are governed by the home Member State insolvency law, in line with article 4.2 of the Insolvency Regulation.

Article 11 of the common position relates to voluntary winding up proceedings, where the initiative for winding up is taken by the credit institution's managers or shareholders. It provides that the competent authorities of the home Member State shall be consulted before the governing bodies of a credit institution take a decision to voluntarily wind up the institution. It also provides, in a second paragraph, that voluntary winding up proceedings shall not preclude the adoption of a reorganisation measure or the opening of winding up proceedings, thereby simplifying the wording of the corresponding article 12 of the Commission's amended proposal.

Article 12 of the common position provides for the withdrawal of the credit institution's authorisation in the same way as was provided for in article 13 of the Commission's amended proposal. Drafting changes cater for the adoption of the codified directive that replaces the First Banking Directive 77/780/EEC.

Given that article 11.2 of the common position makes it clear that in the event of voluntary winding up proceedings, the authorisation may be withdrawn, but must not necessarily be withdrawn, it was not necessary to maintain paragraph 3 of article 13 of the Commission's amended proposal.

Article 13 of the common position corresponds to article 14.3 of the Commission's amended proposal that, in turn, adopted the amendment proposed by the European Parliament. Paragraphs 1 and 2 of article 14 of the Commission's amended are expressed in article 21.2 and 21.3 of the common position (see below).

There is no corresponding article in the Commission's amended proposal for Articles 14, 15, 16 and 17 of the common position. All these provisions have been taken over from the Insolvency Regulation.

Article 14 of the common position provides that known creditors in other Member States must individually be informed of the opening of insolvency proceedings, as it is also provided for reorganisation measures (in article 7 of the common position). It also lays down the way in which this information must be provided and the content thereof. This article is aligned on article 40 of the Insolvency Regulation.

Article 15 of the common position deals with the specific situation where a debtor -not knowing yet that the credit institution which is not a legal person and which is located in another Member State is declared bankrupt- honours his debt to a that institution instead of honouring it to the institution's liquidator. If that debtor was unaware that winding up proceedings were opened against that institution, he shall be deemed to have discharged his obligation. According to whether publication of the opening of winding up proceedings has taken place or not, a presumption of (un)awareness will rest on the debtor. This article is aligned on article 24 of the Insolvency Regulation.

Article 16.1 of the common position is aligned on article 39 of the Insolvency Regulation. It provides that all creditors from the EU, including Member States' public authorities, shall have the right to lodge claims. Contrary to article 39 of the Insolvency Regulation, also the right to "submit written observations relating to claims" is provided for. This was done since some Member States do not allow for the lodging of claims by creditors, only for the lodging of observations relating to such claims.

Article 16.2 of the common position clarifies that, in line with the principle of unity and universality at the basis of this directive, the ranking of claims of creditors from other Member States than the home Member States shall be treated in the same way and according to the same ranking as the claims of home Member State creditors.

Article 16.3 of the common position is aligned on article 41 of the Insolvency Regulation and sets out the elements of his claim that a creditor should indicate when lodging (date on which it arose, amount, etc.).

The language regime for publication, notification and lodging of claims is stipulated in article 17 of the common position, which is aligned on article 42 of the Insolvency Regulation. The publication that winding up proceedings are opened must be done in the official language -or one of the official languages- of the home Member State. The same is true when known creditors of other Member States than the home Member State are individually notified. However, this must be done on the basis of a form bearing the heading "Invitation to lodge a claim. Time limits to be observed" in all EC official languages. Last, the creditor from another Member State than the home Member State who wants to lodge a claim/observations relating to his claim, can do so in the language of his own Member State, but the form with which he will lodge his claim must bear a 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. Moreover, he may be required to provide translation of his claim into the official language of that home Member State.

In order to safeguard the rights of the creditors, not only at the commencement of the winding up proceedings, but also during the winding up process, article 18 of the common position has been included. It stipulates that creditors have to be informed regularly of the progress made in the winding up proceedings.

B. Credit Institutions the head offices of which are outside the Community

Article 19 of the common position concerns the situation where a third country credit institution establishes branches in different Member States. Like for reorganisation measures article 8 of the common position) and given that third country credit institutions nor their branches established in a Member State are subject to the principles of unity and universality, it is desirable that co-ordination within the EU takes place between the administrative and judicial authorities of the Member States concerned when such a branch must be wound up. Article 19.1 of the common position therefore stipulates that, if the administrative or judicial authorities of the Member State in which such branch is established decide to open a winding up proceeding against such a branch, they should inform, via the own competent authorities, the competent authorities of other Member States in which the third country credit institution has established a branch. As explained above, the information should in principle be passed on before taking the measure, but in cases of urgency it can also be immediately thereafter. This paragraph corresponds with article 15.1 of the Commission's amended proposal. Article 19.2 of the common position provides for the same information procedure after the authorisation has been withdrawn and corresponds to article 15.2 and 15.3 of the Commission's amended proposal.

As for reorganisation proceedings (article 8.2 of the common position), article 19.3 of the common position also establishes that the administrative or judicial authorities concerned shall endeavour to co-ordinate their actions. It adds an obligation for liquidators to co-ordinate their actions. Contrary to branches of EU credit institutions which are subject to the principles of unity and universality established by this directive, branches of a third country institution established in different Member States can indeed be the subject of separate winding up proceedings lead by different liquidators. These liquidators must co-ordinate their actions.

Articles 15.4 and 15.5 of the Commission's amended proposal reflect the situation which existed before the entry into force of the Second Banking Directive. At that time, branches of credit institutions from other Member States needed a separate authorisation from the competent authorities of host Member State where they were established. Since the entry into force of the Second Banking Directive [7], EU credit institutions benefit from the single passport and are entitled to establish branches in other Member State on the basis of the authorisation delivered by their home Member State competent authorities. These articles of the Commission's amended proposal have therefore been deleted.

[7] As stated above, this directive has in the meanwhile been bundled into the codified directive and has thus been repealed as a separate directive.

Following the deletion of the annexes and the adoption of the Deposit Guarantee Scheme Directive respectively, article 16 and 17 of the Commission's amended proposal have been deleted.

Title IV of the common position: Provisions common to reorganisation measures and winding-up proceedings

Title IV of the common position is new compared to the Commission's amended proposal. It introduces a number of exceptions to the principle that home Member State insolvency law is applicable (article 20 of the common position) and it adds a number of provisions that are inspired on the Insolvency Regulation (articles 21 to 26).

Article 20 of the common position lists a number of exceptions to the rules contained in articles 3 and 10 of the common position that home Member State insolvency law should be applied.

A first exception (article 20 (a) of the common position) are employment contracts. This indent stipulates that the applicable insolvency law is the law of the Member State whose contract law is applicable to the employment contract. It is aligned on article 10 of the Insolvency Regulation and aims at avoiding that, in the event of reorganisation or winding up proceedings, a credit institution's employees would be treated differently than their colleagues working in the same sector according to whether they work for the branch of a credit institution incorporated under the law of a another Member State or of the own Member State.

Article 20 (b) and (e) of the common position relate to immovable property. Article 20 (b) concerns contracts which confer the right to buy immovable property or the right to make use of immovable property. The binding nature in insolvency of such contracts must be judged in the light of the insolvency law of the Member State where the immovable property is located. That is the aim of this article, which is aligned on article 8 of the Insolvency Regulation.

Article 20 (e) of the common position concerns rights in respect of immovable property, a ship or an aircraft, which are subject to registration in a public register. Here again, the binding nature against the bankrupt's credit institution's estate must be determined by the law of the Member State where the register is kept, as provided for in this article, which is based on article 11 of the Insolvency Regulation.

Contractual netting agreements and repurchase agreements are dealt with in article 20 (c) and (d) of the common position. Netting agreements are agreements whereby counterparties contractually agree to set-off the obligations they have towards one another at the occurrence of a certain event, so that only 1 net obligation be owed from one counterparty to the other. Repurchase agreements are a kind of collateral security, whereby a party transfers title on securities to cover a liability (in case of default, that party can sell the securities and pay itself for the amount of the liability) with a contractual arrangement that the transferor will repurchase the securities at a certain date in the future at a certain price. The found it appropriate to derogate from the principle of unity and universality and to submit these contracts to the insolvency law of the Member State whose law parties have chosen to govern this contract.

Article 20 (f) of the common position applies to securities book-entry systems where the existence or the transfer of financial instruments or rights therein depend on the registration thereof. The enforcement of the property rights in these instruments or rights in instruments shall be governed by the insolvency law of the Member State where the register, account or centralised deposit system in which those rights are recorded, is held or located.

Article 20 (g) of the common position provides that transactions on a regulated financial market and procedures applicable in that context shall be governed by the insolvency law of the Member State whose law applies to that market. This article is inspired on article 9 of the Insolvency Regulation.

Rights in rem, reservation of title and collateral are the subject of article 20 (h) of the common position. They shall be governed solely by the insolvency law applicable to the right in rem, reservation of title or collateral..

Article 20.2 of the common position deals with legal set-off, as opposed to contractual netting which is the subject of article 20 (c). Where a creditor of the insolvent credit institution has a claim against that institution, he will be permitted to set-off that claim against the claim from the credit institution against him, insofar as this is permitted by the law of the Member State applicable to the credit institution's claim. This is an exception to the rules contained in articles 3 and 10 of the common position that is aligned on article 6 of the Insolvency Regulation.

Article 21.1 of the common position takes over in so many words what is stipulated in article 19 of the Insolvency Regulation. It sets out the rules to be followed for the administator or liquidator to evidence their appointment.

The content of the powers of the administrator or liquidator are clarified in article 21.2 and 21.3 of the common position which correspond to article 14 of the Commission's amended proposal. The administrator or liquidator are entitled to exercise within the territory of the EU the powers that they have within the territory of the home Member State. They may also appoint a persons to assist or represent them, both in the home Member State and in the host Member State(s). In exercising their powers in other Member States, the administrator or liquidator must, at all times, comply with the local legal rules, in particular with regard to the realisation of assets or the provision of information to the employees of the insolvent credit institution. This is provided for in 21.3 of the common position that is aligned on article 18 of the Insolvency Regulation.

In line with articles 23 and 24 of the Insolvency Regulation, article 22 of the common position stipulates that registration in the land register, the trade register and any other public register may be requested of the fact that a reorganisation measure or a winding up proceeding is opened against a credit institution. This provision serves the same purpose as articles 6, 7 and 13, 14 of the common position, namely to inform all interested parties of the opening of these proceedings. In most Member States, legal consequences are attached to acts undertaken in good faith by third parties regarding assets or claims with the insolvent credit institution. It is therefore important that these parties be informed rapidly and by all possible means, including the above mentioned registers.

Article 10.2 (l) of the common position provides that the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors are determined by the law of the home Member State. Article 3.2 provides in general that in the event a reorganisation measure is adopted, the home Member State insolvency law applies. Article 23 of the common position provides for an exception to these rules, both when winding up proceedings are opened (paragraph 1) and when reorganisation measures are adopted (paragraph 2), where the person who has benefited from that act provides proof that the act in question is subject to the law of a Member State other than the home Member State and that that law does not allow for this act to be challenged by any means. It is taken over from article 13 of the Insolvency Regulation.

Article 24 of the common position aims at protecting third party purchasers. If the insolvent credit institution disposes -after the adoption of a reorganisation measure or the opening of winding up proceedings- against value (not for free) of an immovable asset or a ship, aircraft, instrument or right in an instrument that is subject to registration, the situation of the acquiring third parties must be judged in reference to the law of the Member State where the asset is situated or the register is kept. This corresponds with what is provided for in article 14 of the Insolvency Regulation.

Lawsuits which are pending at the time of opening of reorganisation or winding up proceedings are the subject of article 25 of the common position that corresponds with article 15 of the Insolvency Regulation. Where article 10.2 (e) stipulates that the effects of winding-up proceedings on actions of individual creditors are governed by the insolvency law of the home Member State, lawsuits that are pending at the moment of opening of reorganisation or winding up proceedings are governed by the law of the Member State where it is pending. That law will determine in particular whether or not the proceedings are to be suspended, how they are continued and whether procedural changes are required to reflect the fact that the debtor is subject to reorganisation or winding up proceedings.

Article 30 of the codified directive provides for a duty of professional secrecy by the competent authorities. Article 26 of the common position extends the duty of professional secrecy beyond the competent authorities to all the persons that are required to receive or divulge information (with the exception of any judicial authorities to which existing national provisions apply) and under the conditions provided for in article 30 of the codified directive.

4. CONCLUSION

The Commission is of the view that the vast majority of the amendments proposed by the European Parliament have been incorporated into the text of the common position. The fact that few amendments were not included either reflects the Council's decision to delete the annexes, which is supported by the Commission, or is a consequence of the adoption of the Deposit Guarantee Scheme Directive.

Additional articles have been included to address some of the concerns that surfaced during the work on the Insolvency Regulation. The solutions adopted in this proposal are in line with the solutions adopted in the Insolvency Regulation.

The Commission therefore takes the view that the common position is acceptable.