31 Amendments of Ramon TREMOSA i BALCELLS related to 2018/0063(COD)
Amendment 206 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) The financial crisis led to the build-up of NPEs in the banking sector. Consumers were significantly affected by the subsequent recession and the drop in housingprices. Safeguarding consumers’ rights is essential when tackling the issue of NPEs in line with relevant Union law such as Directive 2008/48/EC and Directive 2014/17/EU. Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (Late Payments Directive) fosters prompt payment by both enterprises and public authorities and would help prevent the kind of build-up of NPEs that occurred during the years of thefinancial crisis.
Amendment 207 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
(1 b) The concentration of NPLs was also due to an increase of the concentration of banks in some Member States’ banking systems. Noting that some banking systems are diversified and some are otherwise, the Union acknowledges that those Member States with lower levels of concentration and higher levels of small and medium-sized traditional banks and sustainable banks have been able to endure in better terms.
Amendment 213 #
Proposal for a directive
Recital 2
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 and strengthening the Banking Union as it is essential for ensuring competition in the banking sector, preserving financial stability and encouraging lending so as to create jobs and growth within the Union.
Amendment 214 #
Proposal for a directive
Recital 3
Recital 3
(3) In July 2017 the Council in its "Action Plan to Tackle Non-Performing Loans in Europe"25 called upon various institutions to take appropriate measures to further address the high number of NPLs in the Union, preventing their future accumulation. The Action Plan sets out a comprehensive approach that focuses on a mix of complementary policy actions in four areas: (i) bank supervision and regulation (ii) reform of restructuring, insolvency and debt recovery frameworks, (iii) developing secondary markets for distressed assets, and (iv) fostering restructuring of the banking system. Actions in these areas are to be taken at national level and at Union level where appropriate. The Commission announced a similar intention in its "Communication on completing the Banking Union" of 11 October 201726 , which called for a comprehensive package on tackling NPLs within the Union. _________________ 2511/07/2017, http://www.consilium.europa.eu/en/press/p ress-releases/2017/07/11/conclusions-non- performing-loans/pdf. 26Communication to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions on completing the Banking Union, COM(2017) 592 final, 11.10.2017.
Amendment 218 #
Proposal for a directive
Recital 5
Recital 5
(5) Credit institutions will be required to put aside sufficient resources when new loans become non- performing, which should create appropriate incentives to address NPLs at an early stage and should prevent an excessive accumulation of them. Where loans become non- performing, more efficient enforcement mechanisms for secured loans would allow credit institutions to enforce NPLs, subject to appropriate safeguards for borrowers. Nevertheless, should NPL stocks become too high – as it is currently the case for some credit institutions and some Member States – credit institutions should be able to sell them in efficient, competitive and transparent secondary markets to other operators. Competent authorities of credit institutions will guide them in this, as well as in the need to assess the possible protection of the consumer, based on their existing bank-specific, so-called Pillar 2, powers under Regulation (EU) No 575/2013 of the European Parliament and of the Council27 (CRR). Where NPLs become a significant and broad-based problem, Member States can set up national asset management companies or other alternative measures within the framework of current state aid and banks resolution rules. _________________ 27Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1)In addition, the European Banking Authority should provide for guidelines to better implement this alternative measures.
Amendment 222 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7 a) Credit institutions should make every effort to avoid transferring consumer non-performing loans and exposures to third parties. Member States should ensure that creditors exercise reasonable forbearance towards the distressed borrowers, as established in accordance with Article 28 of Directive 2014/17/EU and the EBA Guidelines on arrears and foreclosure EBA/GL/2015/12. Forbearance measures could include some concessions to the consumer, such as a total or partial refinancing of a credit agreement, a modification of the previous terms and conditions of a credit agreement. In case of foreclosure, when the credit is secured by the consumer’s primary residence, return or transfer to the creditor or a third-party of the security or proceeds from the sale of the security should be sufficient to repay the credit.
Amendment 223 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7 b) Credit servicers and credit purchasers should always act in good faith, treat consumers fairly and respect their privacy. They should not give misleading information to consumers, commit harassment on consumers, and they should not charge fees to consumers that exceed the costs directly related to the management of the debt. Member States could place a cap on those fees and penalties according to principles of fairness, rationality and proportionality, and their national competent authorities could rely on the assistance of EBA for this purpose. Furthermore, Member States should be able to maintain the existing national measures aimed at protecting distressed borrowers, as well as to adopt personal insolvency measures.
Amendment 224 #
Proposal for a directive
Recital 7 c (new)
Recital 7 c (new)
(7 c) In any court hearing involving a distressed borrower, there should be consideration of the equality of representation status to ensure a full and fair hearing and full and complete comprehension of all the parameters and legal contentions being addressed. There should be an equivalent of legal representation provided and available to all distressed borrowers and to ensure comprehensive preparation of all relevant facts and detail for appropriate court representation of the case in dispute. Where necessary, this service could be provided at the cost of the Member State through free legal aid or its equivalent and assistance, if needed, by EBA.
Amendment 234 #
Proposal for a directive
Recital 16
Recital 16
(16) Therefore, action at Union level is necessary in order to address the position of credit purchasers and credit servicers in relation to credit originally granted by credit institutions. It is not proposed to cover credit originally issued by non-credit institutions or debt collection in general at this stage, as there is no evidence of macroeconomic relevance, misaligned incentives or ill-functioning markets for such an extended scope. Action at Union level is also important when the EBA prepares guidelines and reports on best practices for both credit purchasers and credit servicers, and for national competent authorities.
Amendment 237 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16 a) It is open to Member States to regulate the credit servicing activities that do not fall within the scope of this Directive. EBA should help the national competent authorities where these deem it necessary for their proper work. Furthermore, EBA should prepare best- practices guidelines for Member States in order for them to regulate the off-scope credit servicing activities in order to achieve a level playing field across the Union.
Amendment 249 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23 a) Member States that have already in place rules equivalent or stricter than those established in this Directive for credit servicing activities may recognize in their national law implementing this Directive the possibility for existing entities providing credit servicing activities to be automatically recognized as authorized credit servicers. EBA and the Commission, where deemed appropriate and necessary by the national competent authority, may provide for assistance in order for Member States to properly implement the law and to maintain a level playing field across the Union.
Amendment 251 #
Proposal for a directive
Recital 24
Recital 24
(24) The authorisation of a credit servicer to provide credit servicing activities throughout the Union should be subject to a uniform and harmonised set of conditions that should be applied in a proportionate manner by the competent authorities. To avoid a reduction in debtor or borrower protection and in order to promote trust, the conditions for granting and maintaining an authorisation as a credit servicer should ensure that credit servicers, persons who hold a qualifying holding in the credit servicer or who are part of the management of the service provider have a clean police record in relation to serious criminal offences linked to crimes against property, to crimes related to financial activities, to money laudering, to fraud, or to crimes against the physical integrity and that they are of good repute. EBA and the national competent authorities should ensure that the members of the management or administrative body possess adequate knowledge and experience to conduct the business in a competent and responsible manner. Furthermore, national competent authorities should assess the adequate knowledge and experience conditions and should inform EBA. National competent authorities should not pose barriers to the free movement of authorised credit servicers within the Union. For this purpose, EBA should develop guidelines to reduce the risk of divergent interpretations of these requirements, as well as recommendations for further harmonisation. Similarly, these persons as well as the credit servicer should not be subject to an insolvency procedure or have not previously been declared bankrupt, unless they have been reinstated in accordance with national law. Finally, to ensure compliance with debtor protection as well as personal data protection rules, it is necessary to require that appropriate governance arrangements and internal control mechanisms and recording and handling of complaints, are established and subject to supervision. Moreover, credit servicers should be obliged to act fairly and with due consideration for the financial situation of the borrowers. Where debt advice services facilitating debt repayment are available at national level, the credit servicers should consider referring borrowers to such services.
Amendment 289 #
Proposal for a directive
Article 3 – paragraph 1 – point 5 a (new)
Article 3 – paragraph 1 – point 5 a (new)
(5 a) ‘non-performing loan or NPL’ means loans where the borrower is unable to make the scheduled payments to cover interest or capital reimbursements. When the payments are more than 90 days past due, or the loan is assessed as unlikely to be repaid by the borrower, it shall be classified as an NPL.
Amendment 296 #
Proposal for a directive
Article 3 – paragraph 1 – point 11 a (new)
Article 3 – paragraph 1 – point 11 a (new)
(11 a) ‘credit service provider’ means a third party used by a credit servicer to perform any of the activities stated in Article 3 (9).
Amendment 297 #
Proposal for a directive
Article 3 – paragraph 1 – point 11 b (new)
Article 3 – paragraph 1 – point 11 b (new)
(11 b) ‘Complaint’ means substantive and relevant remarks attributable to the credit servicers management of the credit agreement within the framework of its duties as credit servicer.
Amendment 306 #
Proposal for a directive
Article 5 – paragraph 1 – point b – point i
Article 5 – paragraph 1 – point b – point i
(i) are of sufficiently good repute and are expected to conduct the business in a competent and responsible manner;
Amendment 308 #
Proposal for a directive
Article 5 – paragraph 1 – point b – point ii
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, money laundering or to physical integrity;
Amendment 311 #
Proposal for a directive
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) the applicant has appropriate governance arrangements and internal control mechanisms in place which ensure respect for borrower rights and compliance with personal data protection rules in accordance with the laws governing the credit agreement, and Regulation (EU) 2016/679. For the lawfulness of processing personal data, it shall be noted that credit servicing is a task carried out in the public interest.
Amendment 312 #
Proposal for a directive
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) the applicant has adequate and specific internal procedures in place which ensure the recording and handling of borrower complaints, for a period no longer than is necessary for the purposes of the implementation of this Directive and in accordance with the relevant applicable national laws and in any event no longer than ten years.
Amendment 313 #
Proposal for a directive
Article 5 – paragraph 1 – point e a (new)
Article 5 – paragraph 1 – point e a (new)
(e a) the applicant has adequate anti- money laundering and counter-terrorism procedures in place in accordance with national laws transposing the Directive 2015/849/EU, it shall be noted that for the purpose of implementing Customer Due Diligence procedures, the customer in this respect is the creditor with whom the credit servicer has entered into the contractual relationship in accordance with Article 9 herein.
Amendment 317 #
Proposal for a directive
Article 5 – paragraph 1 – point e b (new)
Article 5 – paragraph 1 – point e b (new)
(e b) the applicant has adequate anti- money laundering and counter-terrorism procedures in place;
Amendment 325 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2 a. All obligations about consumers’ protection currently applicable to banks shall also be applicable to the credit servicers under this Directive.
Amendment 328 #
Proposal for a directive
Article 6 – paragraph 2 – point h a (new)
Article 6 – paragraph 2 – point h a (new)
(h a) evidence of the procedures referred to in Article 5(1)(f);
Amendment 330 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6 a Rules of conduct for credit servicers 1. Credit servicers shall respect consumers’ privacy. 2. The following practices shall be preempted from happening: a) Provision of misleading information; b) Harassment, including communication or information about the debt of the consumers to their employer or family; c) Charging fees and penalties to consumers that exceed the costs directly related to the management of the debt. EBA, together with the national competent authorities, shall place a cap on those fees and penalties according to principles of fairness, rationality and proportionality.
Amendment 334 #
Proposal for a directive
Article 7 – paragraph 1 – point f a (new)
Article 7 – paragraph 1 – point f a (new)
(f a) where a credit institution has been convicted judicially for repeated attacks on the privacy of and harassment on consumers.
Amendment 337 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall ensure that competent authorities establish and maintain a list or, when appropriate, a national register of all authorised credit servicers authorised to provide services within their territory, including credit servicers providing services under Article 11. Where applicable, and under the request of the national competent authority, EBA shall provide for best- practices guidelines in order to guarantee a level playing field across the Union.
Amendment 338 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The register shall be made publicly accessible online and shall be updated on a regular basis. Under the request of the national competent authority, EBA shall provide for best-practices guidelines in order to guarantee a level playing field on transparency across the Union.
Amendment 390 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. EBA shall develop draft implementing technical standards that specify the formats to be mandatorily used by creditors who are credit institutions for the provision of information as set out in Article 13(1), in order to provide detailed information on their credit exposures in the banking book to credit purchasers for the screeninganalysis, financial due diligence and valuation of the credit agreement.
Amendment 399 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1 a. Credit servicers shall respect consumers’ privacy.
Amendment 407 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
2 a. Credit purchasers shall not commit the following practices: a) Provision of misleading information; b) Harassment, including misleading communication or information about the debt of the consumers.
Amendment 477 #
Proposal for a directive
Article 36 – paragraph 1
Article 36 – paragraph 1
The provision of information to individuals about the processing of personal data and the processing of such personal data and any other processing of personal data for the purposes of this Directive shall be carried out in accordance with Regulation (EU) 2016/679 and with Regulation (EC) No 45/2001. For the lawfulness of processing personal data, it shall be noted that credit servicing is a task carried out in the public interest. The processing of personal data for the purposes of this Directive shall be carried out in accordance with Regulation (EU) 2016/679(on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) and Regulation (EU)2018/1725 (protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data).