BETA

95 Amendments of Ernest URTASUN related to 2018/0063(COD)

Proposal for a directive
Recital 1 a (new)

(1 a) Vast amounts of NPLs are the consequence of millions of EU citizens under financial difficulties and over- indebted households. The core causes of this private over-indebtedness are the irresponsible lending activities, bubbles in the real estate market, and the lack of measures for the early identification of households at risk. The financial difficulties of indebted households are not only threatening the stability of the financial system but are, above all, individual human tragedies which need to be avoided by all means. There is evidence of poor credit servicers’ practices, harassment and intimidation practices, including from debtors who report pressure to make unaffordable repayments. The sector is not adequately regulated in all Member States and regulation has frequently proven inadequate.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 1 b (new)

(1 b) Debtors who are unable to service their outstanding debts are disproportionately female and belong to lower-income groups. Moreover, a fundamental asymmetry exists between, on the one hand, natural persons who owe a mortgage or consumer debt and owners of very small business, and, on the other, the creditors and credit servicers, which are always legal persons of comparatively large size.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 1 c (new)

(1 c) The recovery of the collateral in the case of mortgage loans affects the right of housing assistance and a decent existence for all those who lack sufficient resources, enshrined in the EU Charter on fundamental rights, as well as Constitutional Rights related with housing in many Member States.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 1 d (new)

(1 d) Abuses in certain markets make necessary to establish a code of conduct with strict rules for credit servicers and credit purchasers to avoid misleading practices, harassment or the violation of consumer’s rights.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 1 e (new)

(1 e) Further transparency is needed in order to monitor the market reaction to the new framework. EBA should establish and maintain a public register, with available data about the actors operating and the number and amount of the operations.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 2

(2) An integrated financial system will enhance the resilience of the Economic and Monetary Union to adverse shocks by facilitating private cross-border risk- sharing, while at the same time reducing the need for public risk-sharing. In order to achieve these objectives, the Union should complete the Banking Union and further develop a Capital Markets Union (CMU). Addressing high stocks of NPLs and their possible future accumulation is essential to completing the Banking Union as it is ~~essent~~crucial for ensuring competition in the banking sector, and preserving financial stability ~~and encouraging lending so as to create jobs and growth within the Union~~.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 6

(6) This Directive should enable credit institutions to better deal with loans once these become non-performing by improving conditions to either enforce the collateral used to secure the credit or to sell the credit to third parties. The introduction of accelerated collateral enforcement as a swift mechanism for the recovery of collateral value would reduce the costs for resolving NPLs and would hence support both credit institutions and purchasers of NPLs in recovering value. Moreover, when credit institutions face a large build-up of NPLs and lack the staff or expertise to properly service them, one viable solution would be to either outsource the servicing of these loans to a specialised credit servicer or to transfer the credit agreement to a credit purchaser that has the necessary risk appetite and expertise to manage it.deleted

2019/03/16
Committee: ECON

Proposal for a directive
Recital 7

(7) The two solutions for credit institutions to deal with NPLs provided for by this Directive are mutually reinforcing. The shorter time for enforcement and the increased recovery rates, as expected with accelerated extrajudicial collateral enforcement increases the value of an NPL. In turn, this would raise bid prices in NPL transactions. A further effect is that selling NPLs will be less complicated if the loan is collateralised. The reason for this is that price determination is simpler for a collateralised NPL than an unsecured one in a secondary market transaction because the value of the collateral sets a minimum value of a NPL. With a more liquid and better functioning secondary market for NPLs where investors would show greater interest for NPLs incorporating the accelerated enforcement feature, there would be additional incentives for credit institutions to use accelerated extrajudicial collateral enforcement at the time of issue of the new loans. Moreover, the harmonisation achieved by this Directive would foster development of pan-Union NPL investors, thus further improving market liquidity.deleted

2019/03/16
Committee: ECON

Proposal for a directive
Recital 9

(9) This Directive ~~should foster the development of~~aims to regulating existing secondary markets for NPLs in th~~e Union by removing impediments to the transfer of NPLs by credit institutions to non-credit institutions, while at the same time~~at safeguard~~ing~~s consumers' rights. Any proposed measure should also simplify and harmonise the authorisation requirements for credit servicers. This Directive should therefore establish a Union-wide framework for both purchasers and servicers of credit agreements issued by credit institutions.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 18 a (new)

(18 a) To ensure a well functioning internal market of non-performing loans and a high level of consumer protection Member States shall ensure a good reputation of credit purchasers. This is important to avoid consumer harm on this market, for instance the use of threatening or abusive language or behaviour or of threats to consumers and their families.

2019/03/16
Committee: ECON

Proposal for a directive
Recital 18 b (new)

(18 b) This Directive is without prejudice to the protection of consumers guaranteed by Directive2005/27/EC of the European Parliament and of the Council that prohibits unfair practices including those during enforcement of a contract whereby the consumer is misled as to his or her rights or obligations; or is subject to harassment or coercion for instance in terms of the timing, location, nature or persistence of enforcement actions or contacts, the use of threatening or abusive language or behaviour or of threats to take any action that cannot legally be taken.

2019/03/16
Committee: ECON

Proposal for a directive
Article 1 – paragraph 1 – point a

(a) credit servicers ~~acting on behalf of a credit institution or a credit purchaser in respect~~of creditor's rights under a credit agreement or of athe credit agreement itself, issued by a credit institution ~~or by~~, its subsidiaries established in the Union or other creditors, who are creditors or act on behalf of a credit purchaser or a credit institution;

2019/03/16
Committee: ECON

Proposal for a directive
Article 1 – paragraph 1 – point b

(b) credit purchasers of a credit ~~agreement~~or's rights under a credit agreement or of the credit agreement itself issued by a credit institution ~~or by~~, its subsidiaries established in the Union or other creditors;

2019/03/16
Committee: ECON

Proposal for a directive
Article 1 – paragraph 1 – point c

(c) a supplementary common accelerated extrajudicial collateral enforcement mechanism in respect of secured credit agreements concluded between creditors and business borrowers which are secured by collateralcreditors prior to the transfer of creditor’s rights under a credit agreement or the credit agreement.

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point a

(a) a credit servicers of a credit ~~agreement issued by a credit institution established in the Union or by its subsidiaries established in the Union~~or's rights under a credit agreement or of the credit agreement itself, which acts on behalf of a creditor, in accordance with applicable Union or national law.

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point b

(b) a credit purchasers of a credit ~~agreement issued by a credit institution established in the Union or by its subsidiaries established in the Union,~~or's rights under a credit agreement or of the credit agreement itself whereby the credit purchaser assumes the creditor's obligations under the credit agreement, in accordance with applicable Union and national law;

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 2

2. ~~Articles 3, 23 to 33 and 39 to 43 of this Directive shall apply to secured credit agreements concluded between~~With regard to credit agreements falling within its scope, this Directive shall not affect neither contract law principles or civil law principles under national law with regard to the transfer of creditor’s ~~and business borrowers which~~rights under a credit agre secured by any movable and immovable assets owned by the business borrower and which have been posed as collateral to a creditor in order to secure repayment of claims arising from the secured credit agreementement or of the credit agreement itself, nor the protection granted to consumers or borrowers pursuant in particular, to Regulation No 1215/2012, Regulation No 593/2008, Directive 2014/17/EU, Directive 2008/48/EC, Council Directive 93/13/EEC and the national provisions transposing them or other relevant Union law and national consumer protection laws.

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 3

3. This Directive does not affect the protection granted to consumers, pursuant to Directive 2014/17/EU, Directive 2008/48/EC, Council Directive 93/13/EEC and the national provisions transposing them, with regard to credit agreements falling within its scopeArticle 5 of this Directive shall not apply to credit institutions or their subsidiaries established in the Union.

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 3 a (new)

3 a. When transposing the provisions of this Directive, Member States shall avoid any duplications of requirements for credit institutions under Directive 2014/17/EU, Directive 2008/48/EC, and Directive 2013/36/EC.

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 4

4. Articles 3 to 22 and 34 to 43 of this Directive shall not apply to the following: (a) the servicing of a credit agreement carried out by a credit institution established in the Union or its subsidiaries established in the Union; (b) the servicing of a credit agreement that was not issued by a credit institution established in the Union or its subsidiaries established in the Union, except where the credit agreement issued is replaced by a credit agreement issued by such an institution or its subsidiaries; (c) the purchase of a credit agreement by a credit institution established in the Union or its subsidiaries established in the Union; (d) the transfer of credit agreements transferred before the date referred to in the second subparagraph of Article 41(2).deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 2 – paragraph 5

5. Articles 3, 23 to 33 and 34 to 43 of this Directive shall not apply to: (a) secured credit agreements concluded between creditors and borrowers who are consumers as defined in point (a) of Article 3 of Directive 2008/48/EC; (b) secured credit agreements concluded between creditors and business borrowers who are non-profit making companies; (c) secured credit agreements concluded between creditors and business borrowers which are secured by the following categories of collateral: (i) financial collateral arrangements as defined in Article 2(1)(a) of Directive 2002/47/EC37 ; (ii) immovable residential property which is the primary residence of a business borrower. _________________ 37Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (OJ L 168 , 27.6.2002, p. 43).deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point 3 a (new)

(3 a) “borrower under payment difficulties” means a natural or legal person who has concluded a credit agreement that has been qualified or is likely to be qualified as “non-performing” in the meaning of point 11a;

2019/03/16
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point 5

(5) 'credit agreement' means an agreement by a credit institution or any other creditor as originally issued, modified or replaced, whereby a credit or grants or promises to grant a credit in the form of a deferred payment, a loan or other similar financial accommodation;

2019/03/16
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point 5 a (new)

(5 a) A ‘non-performing credit agreement’ means a credit claim that satisfy any of the following criteria: (a) material exposures which are more than 90 days past due; (b) the borrower is assessed as unlikely to pay its credit obligations in full without realisation of collateral, regardless of the existence of any past due amount or of the number of days past due.

2019/03/16
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point 7

(7) 'credit purchaser' means any natural or legal person ~~other than a credit institution or a subsidiary of a credit institution~~ which purchases a credit agreement in the course of his trade, business or profession;

2019/03/16
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point 8 – introductory part

(8) 'credit servicer' means any natural or legal person~~, other than a credit institution or its subsidiaries,~~ which carries out one or more of the following activities on behalf of a creditor:

2019/03/16
Committee: ECON

Proposal for a directive
Article 3 – paragraph 1 – point 10

(10) ‘host Member State’ means a Member State, other than the home Member State, in which a credit servicer has established a branch~~, has appointed an agent or~~ and where a credit servicer provides services.

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – introductory part

1. Member States shall lay down, as a minimum, the following requirements for the granting of an authorisation as referred to in Article 4(1):

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point b – point i

(i) are of sufficiently good repute on the basis of Article 5a;

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point b – point ii

(ii) ~~have a clean police record or other national equivalent in relation to serious criminal offences relating to property, to financial activities or to physical integrity;~~the management, taken as a whole, has adequate knowledge and experience to conduct the business in a competent and responsible manner.

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point b – point iii

~~(iii) are not currently subject to any insolvency procedure or have previously been declared bankrupt unless reinstated in accordance with national law;~~deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point e a (new)

(e a) the applicant has sufficient initial capital and adequate own funds and liquidity requirements;

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point e b (new)

(e b) the applicant has sufficient suitable employees who speak the language of the Member State where the borrower resides at the time of concluding the credit agreement;

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point e c (new)

(e c) the applicant has adequate anti- money laundering and counter-terrorism procedures in place, where the home or host Member State national legislation transposing Directive 2015/849/EU designates credit servicers as obliged entities for the purposes of preventing and combating money laundering and terrorist financing;

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point e d (new)

(e d) there are no obstacles to the effective supervision of the applicant stemming from the structure of its group;

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 – point e e (new)

(e e) the applicant is subject by virtue of applicable national law to: a) robust governance arrangements, which include adequate internal control mechanisms and sound administration and accounting procedures; b) appropriate measures for taking up, managing, monitoring and mitigating the risks it is or might be exposed to; c) reporting and public disclosure requirements.

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 a (new)

1 a. EBA shall issue draft regulatory technical standards to specify the conditions referred to in paragraph 1, points (c),(d), (ec) and (ed) and the minimum requirements referred to in paragraph 1, point (ee) of this Article. EBA shall submit those draft regulatory technical standards to the Commission by [1 year after the entry into force of the Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 – paragraph 2 a (new)

2 a. Member States shall ensure that where competent authorities of the host Member State have determined that the applicant does not fulfil the conditions under points e) and f) of the first subparagraph, they shall send a reasoned request to the competent authorities of the home Member State asking the refusal of the authorisation referred to in Article 4(1). In case of disagreement between the competent authorities Article 12 paragraph 11a shall apply.

2019/03/16
Committee: ECON

Proposal for a directive
Article 5 a (new)

Article 5 a Reputation criteria 1. The applicants under Article 5 or where the applicant is a legal person, the members of its management or administrative organ and the persons who hold qualifying holdings in the applicant should be considered to be of good repute if their personal or business conduct does not give rise to any material doubt about their ability to ensure sound and prudent management. All relevant information available for the assessment should be taken into account, without prejudice to any limitations imposed by national law and regardless of the state where any relevant events occurred. 2. Member States shall ensure that competent authorities take into account any administrative or criminal records, considering the type of conviction or indictment, the level of appeal, the punishment received, the phase of the judicial process reached and the effect of any rehabilitation measures. 3. Member States shall ensure that competent authorities consider the surrounding, including mitigating, circumstances and the seriousness of any relevant offence or administrative or supervisory action, the time period and the applicant’s conduct since the offence and the relevance of the offence or administrative or supervisory action to the proposed role. Account should be taken of the following factors, which may cast doubt on an applicant’s good repute: a. conviction or indictment of a relevant criminal offence, in particular: b. any offence under the laws governing banking, financial, securities, insurance activity, or concerning securities markets or securities or payment instruments, including laws on money laundering, market manipulation, or insider dealing and usury; c. any offences of dishonesty, fraud, or financial crime; d. any tax offences; e. any other offences under legislation relating to companies, bankruptcy, insolvency, or consumer protection; f. relevant current or past investigations and/or enforcement actions or the imposition of administrative sanctions for non-compliance with provisions governing banking, financial, securities, or insurance activities or those concerning securities markets, securities or payment instruments, or any financial services legislation; g. relevant current or past investigations and/or enforcement actions by any other regulatory or professional bodies for non- compliance with any relevant provisions; h. the cumulative effects of more minor incidents, which individually do not impinge on an applicant’s reputation but may in sum have a material impact. 5. Attention should be paid to the following factors regarding the propriety of an applicant in past business dealings: a. any evidence that the applicant has not been transparent, open, and cooperative in its dealings with supervisory or regulatory authorities; b. refusal of any registration, authorisation, membership, or license to carry out a trade, business, or profession, or revocation, withdrawal, or termination of such registration, authorisation, membership, or license c. expulsion by a regulatory or government body; d. dismissal from employment or any position of trust, fiduciary relationship, or similar situation, or having been asked to resign from employment in such a position; and e. disqualification by competent authority from acting as a person who directs the business. 6. Member States shall ensure that competent authorities take into consideration the following situations regarding past and present business performance and financial soundness: a. inclusion on the list of unreliable debtors or any negative records on this kind of list conducted by recognised credit bureau; b. financial and business performance of the entities owned or directed by the applicant or in which the applicant had or has significant share with special consideration to any rehabilitation, bankruptcy and winding- up proceedings; c. declaration of personal bankruptcy; and d. civil lawsuits, administrative or criminal proceedings, large investments or exposures and loans taken out, in so far they can have a significant impact on the financial soundness.

2019/03/16
Committee: ECON

Proposal for a directive
Article 6 – paragraph 2 – point g a (new)

(g a) evidence that the persons referred to in point (c) of this paragraph, comply with the conditions laid down in Article 5(1) (ea) to (ee);

2019/03/16
Committee: ECON

Proposal for a directive
Article 6 a (new)

Article 6 a Requirements for credit servicers and creditors on conduct of business and debt collection 1. Member States shall ensure that creditors or credit servicers send the borrower before any debt collection a mandatory notification that provides without any ambivalence evidence of its debt, relied on a credit agreement. The debt notification must be exclusively made by a letter to the borrower in a white envelope without any specific writing and with acknowledgment of receipt. The notification shall not exceed 3 pages and include in clear and understandable for the general public language at least the following: a. the evidence of the debt, relied on a credit contract; b. the identification of the creditor including its contact details; c. where relevant, the identification of the credit servicer and its rights; d. the legal base of the debts, the detailed amounts requested, and their source (capital, interest, penalties, procedural costs); e. a key selection of borrowers’ rights description, including necessarily the protection against harassment and misleading behaviours; f. a contact reference where to receive information and advice for borrowers under payment difficulties; 2. Member States shall ensure that no behaviour or practice causes damage to borrowers’ privacy. 3. Member States shall ensure that creditors or credit servicer refrain from: a. omitting to deduct previous payments from the requested amount; b. sending stigmatising, intimidating or misleading communications, including improper legal threats or information that may be misleading for the borrower; c. contacting other persons than the borrower including borrowers’ relatives. 4. The European Banking Authority shall, develop regulatory technical standards specifying the under paragraph 2 and 3. EBA shall submit those draft regulatory technical standards to the Commission by [PO: Please insert date 12 months after the date of entry into force]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010. 5. EBA shall develop draft implementing technical standards specifying the mandatory format of the notification under paragraph 1. EBA shall submit those draft implementing technical standards to the Commission by 12 months from the entry into force of the Directive.

2019/03/16
Committee: ECON

Proposal for a directive
Article 7 – paragraph 1 – introductory part

1. Member States shall ensure that the competent authorities of the home Member State ~~may~~have the necessary supervisory, investigatory and sanctioning powers in accordance with Article 21 in order to withdraw the authorisation granted to a credit servicer, where such a credit servicer either:

2019/03/16
Committee: ECON

Proposal for a directive
Article 7 – paragraph 1 – point f

(f) commits a serious breach of the applicable rules, including the national law provisions transposing this Directive or other consumer protection rules or the specific requirements for credit servicers conduct of business referred to in Article 6a.

2019/03/16
Committee: ECON

Proposal for a directive
Article 7 – paragraph 1 a (new)

1 a. Member States shall ensure that where competent authorities of the host Member State have determined that accredit servicer acts in a way that falls under points e) and f) of the first subparagraph, they shall send a reasoned request to the competent authorities of the home Member State asking for the withdrawal of its authorisation. In case of disagreement between the competent authorities, paragraph 11a of Article 12 shall apply.

2019/03/16
Committee: ECON

Proposal for a directive
Article 8 – title

Register of authorised credit servicers and EBA Register of secondary markets on NPLs

2019/03/16
Committee: ECON

Proposal for a directive
Article 8 – paragraph 3 a (new)

3 a. The European Banking Authority in cooperation with National Competent Authorities shall establish and maintain a register of all transactions of Non- Performing Loans in secondary market in the Union. The information registered for each transaction shall include the identity of creditor, the credit purchaser, the credit servicer, the amount of the purchase denominated in euros, the original amount of the loan, and the number of loans included in each transaction.

2019/03/16
Committee: ECON

Proposal for a directive
Article 8 – paragraph 3 b (new)

3 b. A summarized version of the register shall be made available online and shall be updated on a yearly basis.

2019/03/16
Committee: ECON

Proposal for a directive
Article 9 – paragraph 2 – point d a (new)

(d a) a clause requiring the fair and diligent treatment of the borrowers.

2019/03/16
Committee: ECON

Proposal for a directive
Article 9 – paragraph 2 a (new)

2 a. Member States shall require that the credit servicing agreement provides requirements according to which: (a) the credit servicer shall notify the creditor prior to outsourcing any of its activity as credit servicer; (b) the borrower shall be informed of the credit servicing agreement as well as of any further outsourcing of credit servicing activities; (c) the costs and remuneration of the credit servicer may not be charged to the borrower; (d) the borrower shall be entitled to plead against the credit servicer any relevant defence which was available to him as against the original creditor;

2019/03/16
Committee: ECON

Proposal for a directive
Article 9 – paragraph 3 – introductory part

3. Member States shall ensure that the credit servicer keeps and maintains the following records for at least 10 years from the date of the contract referred to in paragraph 1 and for at least 5 years from the date the contract is terminated:

2019/03/16
Committee: ECON

Proposal for a directive
Article 10 – paragraph 2

2. Member States shall ensure that the credit servicer keeps and maintains records of all instructions provided to the credit service provider for at least 10 years from the date of the contract referred to in paragraph 1 and for at least 5 years from the date the contract is terminated.

2019/03/16
Committee: ECON

Proposal for a directive
Article 11 – paragraph 2 – point b

(b) ~~where applicable,~~ the address of the branch established in the host Member State;

2019/03/16
Committee: ECON

Proposal for a directive
Article 11 – paragraph 2 – point d

~~(d) the identity of the persons responsible for managing the provision of credit servicing activities in the host Member State;~~deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 12 – paragraph 4

4. Member States shall ensure that where a credit servicer which is domiciled or established in a home Member State, has ~~set up a branch or appointed an agent~~appointed a credit service provider in a host Member State, the competent authorities of the home Member State and the competent authorities of the host Member State shall cooperate closely in the performance of their functions and duties provided for in this Directive, in particular when carrying out checks, investigations and on-site inspections in ~~that branch or in respect of that agent~~respect of that a credit service provider.

2019/03/16
Committee: ECON

Proposal for a directive
Article 12 – paragraph 5

5. Member States shall ensure that the competent authorities of the home Member State in the exercise of their functions and duties provided for in this Directive shall ask the competent authorities of the host Member State for their assistance in carrying out an on-site inspection of a ~~branch set up in or of an agent appointed in a host Member State~~credit service provider in a host Member State. The on-site inspection of a credit service provider shall be conducted in accordance with the law of the Member State where the inspection is carried out.

2019/03/16
Committee: ECON

Proposal for a directive
Article 12 – paragraph 9

9. Member States shall ensure that where the competent authorities of the host Member State have evidence that a credit servicer providing services within its territory, in accordance with Article 11, is in breach of the applicable rules, including obligations arising from the national provisions transposing this Directive, it shall transmit that evidence to the competent authorities of the home Member State and request that they take appropriate measures.

2019/03/16
Committee: ECON

Proposal for a directive
Article 12 – paragraph 11

11. Member States shall ensure that where, after having informed the home Member State no adequate measures were taken in a reasonable time or despite measures taken by the competent authorities of the home Member State or in an urgent case, the credit servicer continues to be in breach of ~~the~~applicable rules, including its obligations under this Directive, the competent authorities of the host Member State are entitled to take appropriate administrative sanctions or penalties and remedial measures in order to ensure compliance with the provisions of this Directive within its territory after informing ~~without dela~~the competent authorities of the home Member State. In particular, the competent authorities of the host Member states can prohibit the activities of such credit servicers in its Member State until an adequate decision is taken by the competent authorit~~ies~~y of the home Member State.

2019/03/16
Committee: ECON

Proposal for a directive
Article 12 – paragraph 11 a (new)

11 a. Where a competent authority of a Member State considers that, in a particular matter, cooperation with competent authorities of another Member State does not comply with the relevant requirements set out in this Directive, it shall refer the matter to EBA. In case of disagreement between the home and host authorities that last longer than 4 months , the authorities concerned shall defer their decision to EBA and await any decision that the Authority may take in accordance with Article 19(3) of that Regulation (EU) No 1093/2010 and shall take their decision in accordance with the decision of EBA. The four-month period shall be deemed to be the conciliation period within the meaning of that Regulation. EBA may also assist the competent authorities in reaching an agreement on its own initiative in accordance with the second subparagraph of Article 19(1) of that Regulation.

2019/03/16
Committee: ECON

Proposal for a directive
Article 12 a (new)

Article 12 a Requirements for creditors prior to transferring creditor’s rights under a credit agreement or the credit agreement and sound forbearance measures 1. Member State shall require that creditors may not transfer a performing credit agreement without the agreement of the borrower having concluded the credit agreement. 2. Member States shall require that creditors shall, with due diligence, undertake best efforts to exercise, as appropriate, reasonable and viable forbearance measures in addition to the measures provided for in Article 28 of Directive 2014/17/EU prior to transferring creditor’s rights under a credit agreement or the credit agreement if the borrower that has concluded a credit agreement is under payment difficulties. 3. Forbearance measures shall prioritize consumers and at least include the following potential measures that shall be communicated in standardized formats to borrowers going into payment difficulties on the basis of an affordability assessment: a) options regarding partial refinancing of a credit agreement; b) options regarding potential modification for the benefit of the consumer of the previous terms and conditions of a credit agreement including, inter alia: i. extending the term of the loan; ii. changing the type of the loan; iii. deferring payment of all or part of the instalment repayment for a period; iv. changing the interest rate up to a certain cap; v. offering a payment holiday and grace periods; vi. partial repayments and debt buy-backs; vii. currency conversions; viii. partial forgiveness and debt consolidation. 4. The qualification of credit agreements as non-performing shall be made without prejudice to the creditor’s forbearance requirements. 5. Credit institutions and other creditors shall submit a report to competent authorities on a yearly basis summarizing their sound forbearance policies and processes including procedures to detect, as early as possible, borrowers under payment difficulties. The report shall include a summary of the number of borrowers having benefited from forbearance measures and the modalities of forbearance measures that were effective during the previous year. The management body should approve this information prior to submission to competent authorities. 6. EBA shall develop draft regulatory technical standards for specifying: a. the forbearance measures and the affordability assessment referred to in paragraphs 3; b. the definition of a borrower under payment difficulties referred to in paragraph 1and in Article 3 of this Directive; c. the content of the report referred to in paragraph 5. EBA shall submit those draft regulatory technical standards to the Commission by [1 year after the entry into force of the Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010. 7. EBA shall develop draft implementing technical standards that specify the format of the forbearance measures to be communicated to borrowers under payment difficulties. EBA shall submit those draft implementing technical standards to the Commission by 12 months from the entry into force of the Directive.

2019/03/16
Committee: ECON

Proposal for a directive
Title 3

Credit purchasers and other creditors

2019/03/16
Committee: ECON

Proposal for a directive
Article 15 – paragraph 2

2. Member States shall ensure that ~~a credit purchaser is not subject to any additional requirements for the purchase of credit agreements other than as provided for by the national measures transposing this Directive~~relevant Union and national law concerning in particular the enforcement of contracts, consumer protection, borrower's rights and criminal law continues to apply to the credit purchaser upon the transfer of the creditor’s rights under a credit agreement or the credit agreement itself to the credit purchaser. The level of protection provided under Union and national law to consumers and other borrowers shall not be affected by the transfer of the creditor’s rights under a credit agreement or the credit agreement itself to the credit purchaser.

2019/03/16
Committee: ECON

Proposal for a directive
Article 15 – paragraph 2 a (new)

2 a. This Directive is without prejudice to national powers regarding credit registers, including the power to require information to credit purchasers regarding the creditor’s rights under a credit agreement or the credit agreement itself and its performance.

2019/03/16
Committee: ECON

Proposal for a directive
Article 15 – paragraph 2 b (new)

2 b. This Directive does not affect Member States’ laws extending the scope of the Directive or imposing additional requirements to credit purchasers.

2019/03/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 1 – point b a (new)

(b a) the power to prohibit certain activities;

2019/03/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 1 – point e a (new)

(e a) the power to require a credit servicer to remove members of its management or administrative organ when they fail to comply with the requirements set out in Article 5(1)(b);

2019/03/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 1 – point e b (new)

(e b) the power to require credit servicers to modify or update the internal governance arrangements and internal control mechanisms of a credit servicer in order to effectively ensure respect for borrower rights in accordance with the laws governing the credit agreement;

2019/03/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 1 – point e c (new)

(e c) the power to require credit servicers to modify or update the policies adopted by credit servicers to ensure the fair and diligent treatment of the borrowers, and the recording and handling of borrower complaints;

2019/03/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 1 – point e d (new)

(e d) the power to request further information pertaining to the transfer of the creditor’s rights under the credit agreements or of the credit agreements themselves.

2019/03/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 1 – point e e (new)

(e e) the power to review sound forbearance policies and processes referred to in Article 12a.

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – introductory part

1. Without prejudice to the right of Member States to lay down criminal penalties, Member States shall lay down rules establishing appropriate administrative penalties and remedial measures applicable in at least the following situations:

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point a

(a) a credit servicer fails to ~~enter~~comply with the requirement set out in the national measures transposing Article 9 of this Directive or enters into an outsourcing agreement in breach of the provisions transposing Article 10 or the credit service provider to whom the functions were outsourced commits a serious breach of the applicable legal rules, including the national law transposing this Directive;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point d a (new)

(d a) a credit servicer fails to comply with the national measures transposing Article 6a of this directive;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point g a (new)

(g a) a credit purchaser fails to comply with the national measures transposing Article 12a of this Directive;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point g b (new)

(g b) a credit institution fails to communicate information set out in the national measures transposing Article 13 of this Directive;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point g c (new)

(g c) a credit servicer allows one or more persons not complying with the requirements as set in Article 5(1)(b) to become or remain a member of its management or administrative organ;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point g d (new)

(g d) a credit institution fails to comply with the national measures transposing Article 12a of this Directive;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point g e (new)

(g e) a credit servicer fails to comply with the requirement set out in the national measures transposing Article 35 of this Directive.

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 2 – point a

(a) a ~~cancellation~~withdrawal of an authorisation to carry out activities as a credit servicer;

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 4 – introductory part

4. Member States shall ensure that when determining the type of administrative penalties or other remedial measures and the amount of those administrative pecuniary penalties that competent authorities take into account ~~all the following circumstances, where relevant~~relevant circumstances, including the following:

2019/03/16
Committee: ECON

Proposal for a directive
Article 22 – paragraph 5

5. ~~Where the situations referred to in paragraph 1 apply to legal persons,~~ Member States shall also ensure that competent authorities apply the administrative penalties and remedial measures set out in paragraph 2 to members of the management or administrative organ, and to other individuals who under national law are responsible for the breach.

2019/03/16
Committee: ECON

Proposal for a directive
Title 5

~~[...]~~deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 23

~~[...]~~deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 24

Enforcement 1. Member States shall ensure that collateral may be realised pursuant to this accelerated extrajudicial collateral enforcement mechanism. 2. Member States shall provide for at least one or both of the following means to realise the collateral as referred to in paragraph 1 for each type of security right and collateral: (a) public auction; (b) private sale. For each of these means, Member States may provide that a notary, bailiff or other public official is appointed where appropriate to ensure an efficient and expedited distribution of sale proceeds and transfer of the collateral to an acquirer, or safeguard the borrower's rights. 3. Where Member States establish the extrajudicial enforcement procedure by means of appropriation, the right of the creditor to retain the asset in or towards satisfaction of business borrower's liability shall be governed by the applicable laws in each Member State. Member States shall ensure that in the case of appropriation the positive difference to be paid out to the business borrower shall be the difference between sum outstanding of the secured credit agreement and the valuation of the asset. 4. For the purposes of the realisation referred to in paragraph 2, Member States shall ensure that the creditor organises a valuation of the assets, in order to determine the reserve price in cases of public auction and private sale, and that the following conditions are met: (a) the creditor and the business borrower agree on the valuer to be appointed; (b) the valuation is conducted by an independent valuer; (c) the valuation is fair and realistic; (d) the valuation is conducted specifically for the purposes of the realisation of the collateral after the enforcement event; (e) the business borrower has the right to challenge the valuation before a court in accordance with Article 29. 5. For the purposes of point (a), where the parties cannot agree upon the appointment of a valuer for the purposes of realising the collateral referred to in paragraph 2, a valuer shall be appointed by a decision of a judicial court, in accordance with the national law of the Member State in which the business borrower is established or is domiciled.Article 24 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 25

Public auction 1. Member States shall ensure that the realisation of collateral by means of public auction is conducted in accordance with the following elements: (a) the creditor has publicly communicated the time and place of the public auction at least 10 days prior to that auction; (b) the creditor has made reasonable efforts to attract the highest number of potential buyers; (c) the creditor has notified the business borrower, and any third party with an interest in or right to the asset, of the public auction, including its time and place, at least 10 days prior to that auction; (d) a valuation of the asset has been conducted prior to the public auction; (e) the reserve price of the asset is at least equal to the valuation amount determined prior to the public auction; (f) the asset may be sold at a reduction of no more than 20% of the valuation amount where both of the following apply: (i) no buyer has made an offer in line with the requirements referred to in points (e) and (f) at the public auction; (ii) there is a threat of imminent deterioration of the asset. 2. Where the asset has not been sold by public auction, Member States may provide for the realisation of the collateral by private sale. 3. Where a Member State provides for a second public auction, points (a) to (e) of paragraph 1 shall apply but the asset may be sold at a further reduction, as determined by Member States.Article 25 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 26

Private sale 1. Member States shall ensure that the realisation of collateral by means of private sale is conducted in accordance with the following elements: (a) the creditor has made reasonable efforts, including adequate public advertising, to attract potential buyers; (b) the creditor has notified the business borrower, and any relevant third party with an interest in or right to the asset, of its intention to sell the asset at least 10 days prior to offering the asset for sale; (c) a valuation of the asset has been conducted prior to the private sale, and or a public auction in accordance with point (c) of Article 25(1); (d) the guide price of the asset is at least equal to the amount established in the valuation referred to in point (c), at the time of offering the asset for private sale; (e) the asset may be sold at a reduction of no more than 20% of value where both of the following apply: (i) no buyer has made an offer in line with the requirements referred to in points (d) and (e) within 30 days; (ii) there is a threat of imminent deterioration of the asset. 2. Where the asset has not been sold by private sale within 30 days of offering the asset for sale, Member States shall ensure that the creditor publicly advertises the sale for an additional period of at least 30 days before concluding any sale. 3. Where a Member State provides for a second attempt at private sale, points (a) to (d) of paragraph 1 shall apply but the asset may be sold at a further reduction, as determined by Member States.Article 26 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 27

Competing security rights Member States shall provide that the priority attached to competing security rights in the same collateral is not affected by the enforcement of one of those rights by means of the national provisions transposing this Directive.Article 27 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 28

Right to challenge the enforcement Member States shall ensure that the business borrower has the right to challenge the use of this accelerated extrajudicial collateral enforcement mechanism before a national court where the sale of the assets provided as collateral has not been conducted in accordance with the national provisions transposing Articles 2~~4(3), 25 and 26, or the valuation of the assets has not been conducted in accordance with the national provisions transposing Article 24(4).~~8 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 29

Restitution of the exceeding amount Member States shall ensure that the creditor is required to pay the business borrower any positive difference between the sum outstanding of the secured credit agreement and the proceeds of the sale of the asset.Article 29 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 30

Settlement of the outstanding amount Without prejudice to articles 19 to 23 of the Directive (EU) 20XX/XX of the European Parliament and of the Council41 , in cases where the amount realised after the use of this accelerated extrajudicial collateral enforcement mechanism is an amount lower than the sum outstanding of the secured credit agreement, Member States may provide for the settlement of all liabilities under that agreement, in accordance with applicable national laws. _________________ 41Directive (EU) …/…. of the European Parliament and of the Council of […] on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU (OJ L […], […], p. […]).Article 30 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 31

Transfer of secured credit agreements to third parties Member States shall ensure that where a secured credit agreement which provides for the right to use accelerated extrajudicial collateral enforcement is transferred by the credit institution or its subsidiary to any third party, that third party shall acquire the right to use this accelerated extrajudicial collateral enforcement mechanism in case of the business borrower's default under the same terms and conditions as the credit institution.Article 31 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 32

Restructuring and insolvency proceedings 1. This Directive shall be without prejudice to the Directive (EU) 20XX/XX of the European Parliament and of the Council42 . 2. Member States shall ensure that where insolvency proceedings are initiated in respect of a business borrower, the realisation of collateral pursuant to national laws transposing this Directive is subject to a stay of individual enforcement actions in accordance with applicable national laws. _________________ 42Directive (EU) …/…. of the European Parliament and of the Council of […] on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU (OJ L […], […], p. […]).Article 32 deleted

2019/03/16
Committee: ECON

Proposal for a directive
Article 33

Data collection 1. Member States and, in the case of credit institutions competent authorities which supervise credit institutions, shall, on an annual basis, collect information from creditors on the number of secured credit agreements which are enforced through this accelerated extrajudicial collateral enforcement and the timeframes for such enforcement. 2. Member States and, in the case of credit institutions, competent authorities which supervise credit institutions, shall, on an annual basis, collect the following information from creditors: (a) the number of proceedings pursuant to the national provisions transposing this Directive initiated, pending and realised, including: (i) the number of proceedings in respect of movable assets, (ii) the number of proceedings in respect of immovable assets. (b) the length of the proceedings from notification to settlement, arranged by means of realisation (public sale, private sale, or appropriation); (c) the average costs of each proceedings, in EUR; (d) the settlement rates. 3. Member States shall aggregate the data referred to in paragraph 2 and compile statistics from that aggregate data for the full calendar year beginning DATE [OP: Please insert a date of the January 1 following adoption of this act]. 4. The statistics referred to in the first subparagraph shall be communicated to the Commission on annual basis and by 31 March of the calendar year following the year for which data is collecArticle 33 deleted.

2019/03/16
Committee: ECON

Proposal for a directive
Article 34 – paragraph 1 – introductory part

Without prejudice to the obligations to inform the consumer pursuant to Directive 2014/17/EU, Directive 2008/48/EC ~~and~~ Directive 93/13/EEC and of the obligations of Article 2a of this Directive, Member States shall ensure that prior to modifying the terms and conditions of ~~a credit agreement~~the creditor’s rights under of a credit agreement or of the credit agreement itself either by consent or by operation of law, the creditor communicates the following information to the consumer:

2019/03/16
Committee: ECON

Proposal for a directive
Article 34 – paragraph 1 – point a

(a) a clear and comprehensive description of the proposed changes and the need for debtor consent or, where applicable, of the changes introduced by operation of law;

2019/03/16
Committee: ECON

Proposal for a directive
Article 40 – paragraph 1 a (new)

1 a. The evaluation shall assess, inter alia, unprudent lending practices by creditors, the implementation of forbearance measures under Article 12 a deprivation of consumers’ rights through the sale of credit agreements to the secondary market.

2019/03/16
Committee: ECON