2018/0063(COD) Credit servicers, credit purchasers and the recovery of collateral
Lead committee dossier:
Progress: Awaiting committee decision
| Role | Committee | Rapporteur | Shadows |
|---|---|---|---|
| Lead | ECON | ||
| Former Responsible Committee | ECON |
DE LANGE Esther ( PPE),
GUALTIERI Roberto ( S&D)
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| Committee Opinion | IMCO | ||
| Committee Opinion | JURI | ||
| Former Committee Opinion | IMCO | ||
| Former Committee Opinion | JURI |
Lead committee dossier:
Legal Basis:
TFEU 053-p1, TFEU 114
Legal Basis:
TFEU 053-p1, TFEU 114Subjects
Events
2019/06/11
IT_SENATE - Contribution
Documents
2018/11/20
ECB - European Central Bank: opinion, guideline, report
Details
OPINION of the European Central Bank on a proposal for a directive on credit servicers, credit purchasers and the recovery of collateral.
The ECB recalls that it has been a strong proponent of the development of secondary markets for bank assets, particularly non-performing loans (NPLs). It believes that the development of secondary markets may contribute to reducing NPLs, and that, well-functioning secondary markets may also prevent stocks of NPLs from building up in the future. The ECB considers it essential that the legal framework applicable to secondary markets enables the efficient transfer of NPLs off the balance sheet of credit institutions.
It makes the following observations:
Reporting requirements
The proposed directive establishes a number of reporting requirements for credit servicers, credit purchasers and credit institutions. The Union legislators should carefully consider whether these reporting requirements would impede the efficient functioning of the secondary market for NPLs, since a significant reporting burden could deter new entrants to the market or result in duplication of data for competent authorities.
Technical standards for NPL data
The proposed directive gives the European Banking Authority (EBA) a mandate to develop draft implementing technical standards that specify the formats to be used by creditors that are credit institutions for the provision of detailed information on their credit exposures in the banking book to credit purchasers for the screening, financial due diligence and the valuation of the credit agreement.
In the light of the new regulatory developments flowing from Regulation (EU) 2016/867, it is important that any data templates developed by the EBA should take into account the collection of granular credit and credit risk data or any other relevant initiatives to ensure that there is no duplication of efforts and to minimise reporting requirements for credit institutions.
Data collection by competent authorities in the context of an accelerated extrajudicial collateral enforcement mechanism
Since the collection of this information relates to the efficacy of the accelerated extrajudicial collateral enforcement mechanism rather than the prudential supervision of credit institutions, the Union legislators would need to clarify that the task to collect such information should not be conferred on the ECB.
Documents
2018/06/21
RO_SENATE - Contribution
Documents
2018/05/31
EP - Former Responsible Committee
2018/05/23
PT_PARLIAMENT - Contribution
Documents
2018/04/19
EP - Committee referral announced in Parliament, 1st reading/single reading
2018/03/14
EC - Document attached to the procedure
Documents
2018/03/14
EC - Document attached to the procedure
Documents
2018/03/14
EC - Legislative proposal published
Details
PURPOSE: to strengthen the ability of credit institutions to cope with loans that have become non-performing or are at risk of becoming non-performing by establishing a Union-wide framework for servicers of credit agreements issued by credit institutions.
PROPOSED ACT: Directive of the European Parliament and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure on an equal footing with the Council.
BACKGROUND: non-performing loans (NPLs) are one of the main risks that still threaten the European banking system. Non-performing loans are loans where the borrower is unable to make the scheduled payments to cover interest or capital reimbursements.
The establishment of a comprehensive strategy to address the problem of non-performing loans (NPLs) is a priority for the Union.
The Commission proposed, in its communication of October 2017, to make NPL reduction measures an essential part of the process of completing Banking Union.
While the primary responsibility for tackling high levels of NPLs remains with banks and Member States, there is also a clear EU dimension to reduce current stocks of NPLs, as well as preventing any excessive build-up of NPLs in the future given the interconnectedness of the EU’s banking system and in particular that of the euro area.
This initiative follows the communication on the mid-term review of the action plan on building a capital markets union, which stressed that capital markets can also help European banks to overcome the challenges of NPLs. In order to help banks better manage the PNP, the Commission proposal aims to:
strengthen protection of secured creditors by giving them access to more efficient methods of recovering the amounts owed on secured loans they have granted to companies through an out-of-court procedure; remove undue impediments to credit servicing by third parties and to the transfer of credits in order to further develop secondary markets for NPLs.
IMPACT ASSESSMENT: a first impact assessment investigated the situation of credit purchasers and credit servicers. The preferred option to facilitate and harmonise market entry is the use of common binding standards allowing cross-border activity by means of a passport.
The second impact assessment dealt with the accelerated extrajudicial collateral enforcement.
The preferred option consists of establishing a minimum harmonisation of an extrajudicial collateral enforcement procedure across the EU so that banks in all Member States have at their disposal an efficient procedure for extrajudicial collateral enforcement.
CONTENT : the proposal for a directive aims at avoiding a new excessive accumulation of NPLs on banks' balance sheets by acting on two levels:
1) A distinct common accelerated extrajudicial collateral enforcement procedure for secured loans: the proposal provides banks and other entities approved for the granting of secured loans with more efficient methods of recovering, out of court, amounts owing on secured loans they have granted to businesses. This extrajudicial procedure would be applicable with the prior agreement of the lender and the borrower in the loan agreement. It would be limited to loans to businesses and would not apply to loans to consumers. It is designed so as to not affect preventive restructuring or insolvency proceedings and not to change the hierarchy of creditors in insolvency.
2) Encourage the development of secondary markets for NPLs : the current diverse legislative framework for NPLs in the Member States has hindered the emergence of an effective secondary market for NPLs. The proposal creates a common set of rules to ensure the proper conduct of the various actors and their appropriate oversight across the Union , while allowing greater competition among servicers in harmonising the market access across Member States.
The proposal provides that purchasers of bank loans are required to notify authorities when acquiring a loan. Third-country purchasers of consumer loans are required to use authorised EU credit servicers. Legal safeguards and transparency rules ensure consumer protection so that the transfer of a loan does not affect the rights and interest of the borrower.
In order to prevent the risk of underfunding of future NPLs, the Commission is also presenting a separate proposal amending the Capital Requirements Regulation (CRR) as regards the deductions to be made for insufficient provisioning of non-performing exposures.
Documents
Documents
- Contribution: COM(2018)0135
- European Central Bank: opinion, guideline, report: CON/2018/0054
- European Central Bank: opinion, guideline, report: OJ C 444 10.12.2018, p. 0015
- Contribution: COM(2018)0135
- Contribution: COM(2018)0135
- Document attached to the procedure: SWD(2018)0075
- Document attached to the procedure: SWD(2018)0076
- Legislative proposal published: COM(2018)0135
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: SWD(2018)0075
- Document attached to the procedure: SWD(2018)0076
- European Central Bank: opinion, guideline, report: CON/2018/0054 OJ C 444 10.12.2018, p. 0015
- Contribution: COM(2018)0135
- Contribution: COM(2018)0135
- Contribution: COM(2018)0135
| Amendments | Dossier |
| 278 |
2018/0063(COD)
2019/03/16
ECON
278 amendments...
Amendment 205 #
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.
Amendment 206 #
Proposal for a directive 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) (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 208 #
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.
Amendment 209 #
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.
Amendment 210 #
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.
Amendment 211 #
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.
Amendment 212 #
Proposal for a directive Recital 2 (2)
Amendment 213 #
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 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 (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 215 #
Proposal for a directive Recital 4 a (new) (4 a) In the process of developing macro-prudential approaches to prevent the emergence of system-wide risks associated with NPEs, the European Systemic Risk Board should develop appropriate macro-prudential standards and supervision of the other financial institutions involved in the secondary market for NPEs. These regulatory measures will ensure that such institutions are required to meet the same standards as banks, including in relation to prudential requirements, disclosure requirements and the fair treatment of borrowers. These institutions should also be bound by all relevant national and EU consumer protection requirements that may be applicable.
Amendment 216 #
Proposal for a directive 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 including legal protection against evictions from primary residences. 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
Amendment 217 #
Proposal for a directive 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
Amendment 218 #
Proposal for a directive 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 Council
Amendment 219 #
Proposal for a directive Recital 6 Amendment 220 #
Proposal for a directive Recital 6 Amendment 221 #
Proposal for a directive Recital 7 Amendment 222 #
Proposal for a directive 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) (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) (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 225 #
Proposal for a directive Recital 9 (9) This Directive should
Amendment 226 #
Proposal for a directive Recital 9 (9) This Directive
Amendment 227 #
Proposal for a directive Recital 9 (9) This Directive should foster the development of secondary markets for NPLs in the Union by removing impediments to the transfer of NPLs by credit institutions to non-credit institutions, while at the same time safeguarding consumers' rights, particularly legal protection for mortgage-holders against eviction from primary residences. 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.
Amendment 228 #
Proposal for a directive Recital 9 a (new) (9 a) Other financial institutions active in the secondary market should take into account the interests of consumers and comply with all relevant national and EU consumer protection requirements, including those set out in Article 28 of Directive 2014/17/EU, in the EBA Guidelines on arrears and foreclosure and in the EBA final Guidelines on the management of non-performing and forborne exposures.
Amendment 229 #
Proposal for a directive Recital 9 b (new) (9 b) Forbearance measures should aim to return the borrower to a sustainable performing repayment status, having regard to the fair treatment of the consumer and to all relevant national and EU consumer protection requirements that may be applicable. When deciding on which steps or forbearance measures to take, credit institutions should take into account the interests of consumers and comply with consumer protection requirements, including those set out in Article 28 of Directive 2014/17/EU, in the EBA Guidelines on arrears and foreclosure and in the EBA final Guidelines on the management of non- performing and forborne exposures;
Amendment 230 #
Proposal for a directive Recital 9 c (new) (9 c) Forbearance measures may include the following concessions to the consumer: a) a total or partial refinancing of a credit agreement; b) a modification of the previous terms and conditions of a credit agreement, which may include among others: i. extending the term of the mortgage; ii. changing the type of the mortgage (such as, changing the type of mortgage from a capital and interest mortgage to an interest only mortgage); 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.
Amendment 231 #
Proposal for a directive Recital 10 Amendment 232 #
Proposal for a directive Recital 12 a (new) (12 a) At present, there are no common European minimum standards to regulate credit servicers. In particular, no common standards have been laid out to regulate debt collection.
Amendment 233 #
Proposal for a directive Recital 15 Amendment 234 #
Proposal for a directive 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 235 #
Proposal for a directive Recital 16 (16) Therefore, action at Union level is necessary in order to address the protection of the borrowers as well as the sustainability of the banking system and 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.
Amendment 236 #
Proposal for a directive 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, a
Amendment 237 #
Proposal for a directive 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 238 #
Proposal for a directive Recital 16 a (new) (16 a) Entities engaging in credit servicing activities shall be subject to the same rules, be it specialised credit servicers, banking institutions or credit purchasers. This could be a direct consequence of subjecting credit servicing activities to the rules of Directive 2014/65/EU.
Amendment 239 #
Proposal for a directive Recital 17 (17) Although the purpose of this Directive is to protect consumers' rights and to strengthen the credit institutions' capacity to deal with credit that has become non-performing or risks becoming non-performing, the secondary market for credit covers both performing and non- performing credit. Actual market sales encompass credit portfolios, consisting of
Amendment 240 #
Proposal for a directive Recital 18 (18) The importance placed by the Union legislature on the protection provided for consumers in Directive 2014/17/EU of the European Parliament and of the Council29 , Directive 2008/48/EC of the European Parliament and of the Council30 and Council Directive 93/13/EEC31 means that the assignment of the credit
Amendment 241 #
Proposal for a directive Recital 18 (18) The importance placed by the Union legislature on the protection provided for consumers in Directive 2014/17/EU of the European Parliament and of the Council 29
Amendment 242 #
Proposal for a directive Recital 18 (18) The importance placed by the Union legislature on the protection provided for consumers in Directive 2014/17/EU of the European Parliament and of the Council29 , Directive 2008/48/EC of the European Parliament and of the Council30 and Council Directive 93/13/EEC31 means that the assignment of the creditor's rights under a credit agreement or of the agreement itself to a credit purchaser should not affect the level of protection granted by national and Union law to consumers in any way. Credit purchasers and credit servicers should therefore comply with national and Union law as applicable to the initial credit agreement and the consumer should retain the same level of protection as provided under Union law or as determined by Union or national conflict of law rules regardless of the law applicable to the credit purchaser or credit servicer. National competent authorities must ensure that no borrower is worse off following the transfer of their credit agreement from a credit institution to a credit purchaser or credit servicer. _________________ 29Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34). 30Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ L 60/34, 22.5.2008, p. 66). 31Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).
Amendment 243 #
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.
Amendment 244 #
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.
Amendment 245 #
Proposal for a directive Recital 20 (20) In order to ensure a high level of consumer protection, Union and national law provide for a number of rights and safeguards related to credit agreements
Amendment 246 #
Proposal for a directive Recital 20 a (new) (20 a) Residential mortgages for primary residences should be excluded from the scope of this Directive.
Amendment 247 #
Proposal for a directive Recital 20 b (new) (20 b) Under this Directive, a non- performing loan secured by the mortgage of a residential property should not be transferred without the written consent of the borrower.
Amendment 248 #
Proposal for a directive Recital 23 (23) In order to allow existing credit purchasers and credit servicers to adapt to the requirements of the national provisions implementing this Directive and, in particular, to allow credit servicers to be authorised, this Directive will only apply to transfers of credit agreements that take place six months after the transposition deadline has expired and only after the creditors have given to distressed borrowers the right to buy back their debt at the same price.
Amendment 249 #
Proposal for a directive 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 250 #
Proposal for a directive Recital 23 a (new) (23 a) Member States that have already in place equivalent or stricter regimes for credit servicing activities may provide the possibility for existing entities providing credit servicing activities to be automatically recognised as authorised credit servicers.
Amendment 251 #
Proposal for a directive 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 252 #
Proposal for a directive Recital 32 (32) As part of the Council's Action Plan, credit institutions' data infrastructure would be strengthened by having uniform and standardised data for non-performing credit agreements. The European Banking Authority has developed data templates that provide information about credit exposures in the banking book and allow potential buyers to evaluate the value of the credit agreements and carry out their due diligence.
Amendment 253 #
Proposal for a directive Recital 32 (32) As part of the Council's Action Plan, credit institutions' data infrastructure would be strengthened by having uniform and standardised data for non-performing credit agreements. The European Banking Authority has developed data templates that provide information about credit exposures in the banking book and allow potential buyers to evaluate the value of the credit agreements and carry out their due diligence. Applying such templates to credit agreements would reduce information asymmetries between potential buyers and sellers of credit agreements and, thus, contribute to the development of a functioning secondary market in the Union. The EBA should therefore develop the data templates into
Amendment 254 #
Proposal for a directive Recital 32 (32) As part of the Council's Action Plan, credit institutions' data infrastructure would be strengthened by having uniform and standardised data for non-performing credit agreements. The European Banking Authority has developed data templates that provide information about credit exposures in the banking book and allow potential buyers to evaluate the value of the credit agreements and carry out their due diligence. Applying such templates to credit agreements would reduce information asymmetries between potential buyers and sellers of credit agreements and, thus, contribute to the development of a functioning secondary market in the Union. The EBA should therefore develop the data templates into
Amendment 255 #
Proposal for a directive Recital 34 (34) Third-country credit purchasers may make it harder for the Union consumer to rely on their rights under Union law and for the national authorities to supervise the enforcement of the credit agreement. Credit institutions may also be discouraged from transferring such credit agreements to third-country credit purchasers because of the reputational risk involved.
Amendment 256 #
Proposal for a directive Recital 34 a (new) (34 a) Credit purchasers generally reply on a short-term business model that specialises in purchasing distressed debt at a large discount and attempting to procure the underlying asset as quickly as possible. As it is the credit purchaser that makes the key decisions regarding the distressed loan, including on the setting of interest rates, whether to restructure a loan, and the enforcement of the loan, it is crucial that the credit purchaser - and not only the credit servicer that acts as an intermediary - is authorised and regulated in the Union, and subject to supervision, investigation and sanctions by the national competent authorities in the Member State in which it operates.
Amendment 257 #
Proposal for a directive Recital 54 a (new) (54 a) Member States should ensure that behaviour or practices that may invade consumers' privacy, damage their dignity or mislead them, are prohibited.
Amendment 258 #
Proposal for a directive Recital 55 a (new) (55 a) This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the freedom to conduct a business, the right to property, the right to respect to private life and the protection of personal data and the right to a high level of consumer protection, in particular by establishing stringent conduct rules for credit services, excluding certain credit agreements from the scope and ensuring effective supervision. This Directive is to be implemented in accordance with those rights and principles.
Amendment 259 #
Proposal for a directive Article 1 – paragraph 1 – introductory part This Directive relates only to non- performing credit agreements. Creditors shall not be allowed to transfer to third parties performing credit agreements concluded with consumers. This Directive lays down a common framework and requirements for:
Amendment 260 #
Proposal for a directive Article 1 – paragraph 1 – point a (a) credit servicers
Amendment 261 #
Proposal for a directive Article 1 – paragraph 1 – point b (b) credit purchasers of a credit
Amendment 262 #
Proposal for a directive Article 1 – paragraph 1 – point c Amendment 263 #
Proposal for a directive Article 1 – paragraph 1 – point c Amendment 264 #
Proposal for a directive Article 1 – paragraph 1 – point c (c)
Amendment 265 #
Proposal for a directive Article 1 a (new) Article 1 a This directive relates to non-performing credit agreements. Creditors shall not be allowed to transfer to third parties performing credit agreements concluded with consumers. 1. Creditors shall make every effort to avoid transferring consumer non- performing loans to third parties. Notably, Member States shall ensure that creditors exercise reasonable forbearance towards the distressed borrowers, in accordance with Article 28 of Directive 2014/17/EU and the EBA Guidelines on arrears and foreclosure EBA/GL/2015/12. 2. Forbearance measures may include the following concessions to the consumer: a) a total or partial refinancing of a credit agreement; b) a modification of the previous terms and conditions of a credit agreement, which may include among others: i. extending the term of the mortgage; ii. changing the type of the mortgage (such as, changing the type of mortgage from a capital and interest mortgage to an interest only mortgage); 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. 3. Definition of non-performing loans adopted by the Commission Implementing Regulation (EU) 2015/227 shall be without prejudice to the creditors’ forbearance obligations. 4. 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 shall be sufficient to repay the credit. Article 28(4) of Directive 2014/17/EU shall be amended accordingly.
Amendment 266 #
Proposal for a directive Article 1 b (new) Article 1 b Rules of conduct for credit servicers and credit purchasers 1. Credit servicers and credit purchasers shall act in good faith, treat consumers fairly and respect their privacy. The following practices shall be forbidden: a. Provision of misleading information to consumers; b. Harassment of consumers, including communication of information about the consumers’ debt to their employer, family, friends and neighbours; c. Charging fees and penalties to consumers that exceed the costs directly related to the management of the debt. Member States shall place a cap on those fees and penalties according to principles of fairness, rationality and proportionality.
Amendment 267 #
Proposal for a directive Article 2 – paragraph 1 – point a (a) a credit servicer of a non- performing credit agreement issued by a credit institution established in the Union or by its subsidiaries established in the Union which acts on behalf of a creditor, in accordance with applicable Union or national law.
Amendment 268 #
Proposal for a directive Article 2 – paragraph 1 – point a (a)
Amendment 269 #
Proposal for a directive Article 2 – paragraph 1 – point b (b) a credit purchaser of a non- performing credit agreement issued by a credit institution established in the Union or by its subsidiaries established in the Union, whereby the credit purchaser assumes the creditor's obligations under the credit agreement, in accordance with applicable Union and national law;
Amendment 270 #
Proposal for a directive Article 2 – paragraph 1 – point b (b)
Amendment 271 #
Proposal for a directive Article 2 – paragraph 2 Amendment 272 #
Proposal for a directive Article 2 – paragraph 2 2.
Amendment 273 #
Proposal for a directive Article 2 – paragraph 3 3.
Amendment 274 #
Proposal for a directive Article 2 – paragraph 3 3. This Directive does not affect the protection granted to consumers
Amendment 275 #
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.
Amendment 276 #
Proposal for a directive Article 2 – paragraph 3 a (new) 3 a. This Directive shall not affect the restrictions in the Member States national laws regarding the transfer of creditor’s rights under a non-performing credit agreement that is not past due or is less than 90 days past due, or the transfer of such a non-performing credit agreement.
Amendment 277 #
Proposal for a directive Article 2 – paragraph 3 a (new) 3 a. This Directive shall not affect the restrictions in the Member States national laws regarding the transfer of creditor’s rights under a non-performing credit agreement that is not past due or is less than 90 days past due, or the transfer of such a non-performing credit agreement.
Amendment 278 #
Proposal for a directive Article 2 – paragraph 4 Amendment 279 #
Proposal for a directive Article 2 – paragraph 4 – introductory part 4.
Amendment 280 #
Proposal for a directive Article 2 – paragraph 4 – point c a (new) (c a) the purchase of a credit agreement by a credit institution or non credit institution which has been involved in a tax avoidance or tax evasion case in any Member State of the EU;
Amendment 281 #
Proposal for a directive Article 2 – paragraph 4 – point d a (new) (d a) credit agreements concluded prior to ... [the date of entry into force of this Directive].
Amendment 282 #
Proposal for a directive Article 2 – paragraph 5 Amendment 283 #
Proposal for a directive Article 2 – paragraph 5 Amendment 284 #
Proposal for a directive Article 3 – paragraph 1 – point 2 (2) 'creditor' means a credit institution or any legal person who has issued a credit in the course of his trade, business or profession
Amendment 285 #
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;
Amendment 286 #
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;
Amendment 287 #
Proposal for a directive Article 3 – paragraph 1 – point 5 a (new) (5 a) 'non-performing credit agreement' means a credit agreement whereby payments of interest and principal are more than 90 days past due, or 180 days past due, where applicable, in accordance with Article 178 of Regulation (EU) No 575/2013 (CRR);
Amendment 288 #
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.
Amendment 289 #
Proposal for a directive 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 290 #
Proposal for a directive Article 3 – paragraph 1 – point 7 (7) 'credit purchaser' means any natural or legal person
Amendment 291 #
Proposal for a directive Article 3 – paragraph 1 – point 7 (7) 'credit purchaser' means any natural or legal person
Amendment 292 #
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 and other than natural or legal persons that already have a licence to practice law in accordance with respective national provisions, which carries out one or more of the following activities on behalf of a creditor:
Amendment 293 #
Proposal for a directive Article 3 – paragraph 1 – point 8 – introductory part (8) 'credit servicer' means any natural or legal person
Amendment 294 #
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
Amendment 295 #
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
Amendment 296 #
Proposal for a directive 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) (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 298 #
Proposal for a directive Title 1 a (new) Title Ia Conditions for the sale of non-performing residential mortgages
Amendment 299 #
Proposal for a directive Article 3 a (new) Amendment 300 #
Proposal for a directive Article 3 b (new) Article 3 b Exclusion of primary residences Residential mortgages for primary residences are excluded from the scope of this Directive.
Amendment 301 #
Proposal for a directive Article 4 – paragraph 1 a (new) 1 a. Member States shall be able to maintain the existing national measures aimed at protecting distressed borrowers, as well to adopt stricter measures, such as personal insolvency measures, restriction of the activity of credit servicers and credit purchasers.
Amendment 302 #
Proposal for a directive Article 4 – paragraph 1 a (new) 1 a. Member States that have already in place equivalent or stricter regimes for credit servicing activities may provide the possibility for existing entities providing credit servicing activities to be automatically recognised as authorised credit servicers.
Amendment 303 #
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):
Amendment 304 #
Proposal for a directive Article 5 – paragraph 1 – introductory part 1. Member States shall lay down the following minimum requirements for the granting of an authorisation as referred to in Article 4(1):
Amendment 305 #
Proposal for a directive Article 5 – paragraph 1 – point a a (new) (a a) Credit servicers and credit purchasers shall act in good faith, treat consumers fairly and respect their privacy. The following practices shall be forbidden: a) Provision of misleading information to consumers; b) Harassment of consumers, including communication of information about the consumers’ debt to their employer, family, friends and neighbours; c) Charging fees and penalties to consumers that exceed the costs directly related to the management of the debt. Member States shall place a cap on those fees and penalties according to principles of fairness, rationality and proportionality.
Amendment 306 #
Proposal for a directive 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 307 #
Proposal for a directive Article 5 – paragraph 1 – point b – point i (i) are of sufficiently good repute on the basis of Article 5a;
Amendment 308 #
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, money laundering or to physical integrity;
Amendment 309 #
Proposal for a directive Article 5 – paragraph 1 – point b – point ii (ii)
Amendment 310 #
Proposal for a directive Article 5 – paragraph 1 – point b – point iii Amendment 311 #
Proposal for a directive 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 (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) (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 314 #
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;
Amendment 315 #
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;
Amendment 316 #
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;
Amendment 317 #
Proposal for a directive Article 5 – paragraph 1 – point e b (new) (e b) the applicant has adequate anti- money laundering and counter-terrorism procedures in place;
Amendment 318 #
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;
Amendment 319 #
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.
Amendment 320 #
Proposal for a directive Article 5 – paragraph 1 a (new) 1 a. The Commission, in cooperation with other relevant stakeholders, should issue guidelines that help Member States specify what behaviour should be considered as invasive to consumers' privacy, or could damage their dignity or mislead them.
Amendment 321 #
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.
Amendment 322 #
Proposal for a directive Article 5 – paragraph 1 a (new) 1 a. When a credit institution intends to transfer a credit agreement to a credit purchaser at a specified price, before the transfer the credit institution shall allow the debtors concerned who are consumers to buy back their debt at the same price or with a small mark-up, which would be specified by the relevant competent authorities. For that purpose, credit institutions shall be required to disclose to the relevant competent authorities the necessary details of expected deals with credit purchasers.
Amendment 323 #
Proposal for a directive Article 5 – paragraph 1 b (new) 1 b. Member States shall ensure that the buy-back option can be exercised in instalments.
Amendment 324 #
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.
Amendment 325 #
Proposal for a directive 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 326 #
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.
Amendment 327 #
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);
Amendment 328 #
Proposal for a directive Article 6 – paragraph 2 – point h a (new) (h a) evidence of the procedures referred to in Article 5(1)(f);
Amendment 329 #
Proposal for a directive Article 6 a (new) Amendment 330 #
Proposal for a directive 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 331 #
Proposal for a directive Article 6 a (new) Article 6 a Debt buy-back 1. When a credit institution intends to transfer a credit agreement to a credit purchaser at a specified price, before the transfer the credit institution shall allow the debtors concerned who are consumers to buy back their debt at the same price or with a small mark-up, which would be specified by the relevant competent authorities. For that purpose, credit institutions shall be required to disclose to the relevant competent authorities the necessary details of expected deals with credit purchasers. 2. Member States shall ensure that the buy-back option can be exercised in instalments.
Amendment 332 #
Proposal for a directive Article 7 – paragraph 1 – introductory part 1. Member States shall ensure that the competent authorities of the home Member State
Amendment 333 #
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.
Amendment 334 #
Proposal for a directive 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 335 #
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.
Amendment 336 #
Proposal for a directive Article 8 – title Register of authorised credit servicers and EBA Register of secondary markets on NPLs
Amendment 337 #
Proposal for a directive 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 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 339 #
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.
Amendment 340 #
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.
Amendment 341 #
Proposal for a directive Article 9 – paragraph 1 1. Member States shall ensure
Amendment 342 #
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.
Amendment 343 #
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;
Amendment 344 #
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:
Amendment 345 #
Proposal for a directive Article 10 Amendment 346 #
Proposal for a directive Article 10 – paragraph 1 – introductory part 1. Member States shall ensure that where a credit servicer uses a third party to perform activities that would normally be undertaken by that credit servicer ('credit service provider'), the credit servicer should be supervised by the same supervisory authorities the banking system of the Member State has and remains fully responsible for complying with all obligations under the national provisions transposing this Directive. The outsourcing of those credit servicing activities shall be subject to the following conditions:
Amendment 347 #
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.
Amendment 348 #
Proposal for a directive Article 10 a (new) Article 10 a Provisions to ensure consumer protection 1. Member States shall require that credit servicers and credit purchasers, in their relationship with the debtors, act in good faith, fairly, professionally and respect their privacy; 2. Member States shall ensure that credit services comply with the following requirements: a) the information provided shall not be misleading, unclear or false; b) credit servicers shall protect the personal information and privacy of the debtors and not communicate with persons other than the borrower, including family members or employers, unless under authorisation by the debtor; c) credit services shall not communicate to debtors in a way which constitutes harassment, coercion, or undue influence, including through: i) using intimidating, abusive or coercive language or behaviour; ii) using violence or physical force; iii) exerting undue, excessive or unreasonable pressure; iii) publishing or threatening to publish a debtor's failure to pay; iv) threatening to take any action that cannot legally be taken. 3. Member States shall ensure that fees and penalties charged on borrowers by credit servicers do not exceed the actual costs incurred for the servicing of the debt.
Amendment 349 #
Proposal for a directive Article 10 a (new) Article 10 a Right to legal representation 1. In any court hearing involving a distressed borrower there shall be consideration of the equality of representation status to ensure a full and fair hearing and full and complete understanding of all of the parameters and legal contentions being addressed. 2. This demands that there be an equivalent of legal representation provided and available to all distressed borrowers and, insufficient advance, to ensure comprehensive preparation of all relevant facts and detail for appropriate court representation of the case in dispute. 3. Where necessary, this service shall be provided at the cost of the Member State through free legal aid or its equivalent.
Amendment 350 #
Proposal for a directive Article 11 – paragraph 1 1. Member States shall ensure that a credit servicer having obtained an authorisation in accordance with Article 5 in a home Member State has the right to provide in the Union those services that are covered by that authorisation, provided that it does so in full compliance with the requirements and standards for consumer protection and borrower rights established under the national law of the host Member State.
Amendment 351 #
Proposal for a directive Article 11 – paragraph 1 1. Member States shall ensure that a credit servicer having obtained an authorisation in accordance with Article 5 in a home Member State has the right to provide in the Union those services that are covered by that authorisation, without prejudice to national laws for consumer protection and borrower rights.
Amendment 352 #
Proposal for a directive Article 11 – paragraph 1 a (new) 1 a. With regard to credit agreements concluded between creditors and consumers, as well as credit agreements concluded between creditors and business borrowers secured by the immovable residential property which is the primary residence of a business borrower, a credit servicer shall be required to obtain an authorisation and establish a branch or a subsidiary in the Member State where it intends to operate.
Amendment 353 #
Proposal for a directive Article 11 – paragraph 1 a (new) 1 a. As concerns credit agreements concluded between creditors and consumers, a credit servicer shall be required to obtain an authorisation and establish a branch or a subsidiary in the Member State where it intends to operate.
Amendment 354 #
Proposal for a directive Article 11 – paragraph 2 – point b (b)
Amendment 355 #
Proposal for a directive Article 11 – paragraph 2 – point d Amendment 356 #
Proposal for a directive Article 11 – paragraph 3 a (new) 3 a. Before the credit servicer starts to carry out a cross-border activity, the competent authority of the host Member State shall, within 30 working days of the receipt of the information referred to in paragraph 3, inform the competent authority of the home Member State, of the requirements and restrictions relating to consumer protection and borrowers rights under the national law of the host Member State which shall apply to the credit servicing activities. The competent authority of the home Member State shall communicate this information to the credit servicer.
Amendment 357 #
Proposal for a directive Article 11 a (new) Article 11 a Derogation from the freedom to provide credit servicing activities in a host Member State Article 11 shall not apply to credit agreements concluded between creditors and borrowers who are consumers as defined in point (a) of Article 3 of Directive 2008/48/EC and business borrowers secured by the immovable residential property which is the primary residence of a business borrower.
Amendment 358 #
Proposal for a directive Article 12 – paragraph 1 a (new) 1 a. Credit servicers shall not be allowed to provide cross-border services in respect of credit agreements concluded between creditors and consumers, as well as credit agreements concluded between creditors and business borrowers secured by the immovable residential property which is the primary residence of a business borrower. In that case, credit servicers shall be authorised and supervised by the competent authorities of the Member State where they effectively operate.
Amendment 359 #
Proposal for a directive Article 12 – paragraph 1 a (new) 1 a. Credit servicers shall not be allowed to provide cross-border services in respect of credit agreements concluded between creditors and consumers. In that case, credit servicers shall be authorised and supervised by the competent authorities of the Member State where they effectively operate.
Amendment 360 #
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
Amendment 361 #
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 a
Amendment 362 #
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 a
Amendment 363 #
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
Amendment 364 #
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
Amendment 365 #
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.
Amendment 366 #
Proposal for a directive Article 12 – paragraph 11 11. Member States shall ensure that where, after having informed the home Member State no adequate and effective measures were taken
Amendment 367 #
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
Amendment 368 #
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 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 applicable provisions of th
Amendment 369 #
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.
Amendment 370 #
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.
Amendment 372 #
Proposal for a directive Article -13 (new) Article -13 Right to buy-back Member States shall ensure that credit institutions or their subsidiaries, where they notify the intention to transfer a credit agreement to third parties, offer the borrower of that credit agreement the option to buy back its debt at a discounted price, within a reasonable timeframe and in instalments. Member States shall determine the practical arrangements and conditions under which such right can be exercised for the purpose of ensuring a fair and correct treatment of consumers, while limiting the risk of moral hazard.
Amendment 373 #
Proposal for a directive Article 13 – title Right to information regarding
Amendment 374 #
Proposal for a directive Article 13 – paragraph -1 (new) -1. Member States shall require credit institutions or their subsidiaries to notify the borrower of their intention to transfer to third parties a credit agreement concluded with that borrower and to provide the borrower the relevant information about the credit purchaser and its rights.
Amendment 375 #
Proposal for a directive Article 13 – paragraph 1 1. Member States shall ensure that a creditor
Amendment 376 #
Proposal for a directive Article 13 – paragraph 1 1. Member States shall ensure that a creditor
Amendment 377 #
Proposal for a directive Article 13 – paragraph 2 – introductory part Amendment 378 #
Proposal for a directive Article 13 – paragraph 2 – introductory part 2. Member States shall require a credit institution
Amendment 379 #
Proposal for a directive Article 13 – paragraph 2 – point a (a) the
Amendment 380 #
Proposal for a directive Article 13 – paragraph 2 – point b (b) the nominal value of the non- performing credit agreement;
Amendment 381 #
Proposal for a directive Article 13 – paragraph 2 – point c (c)
Amendment 382 #
Proposal for a directive Article 13 – paragraph 3 3. The competent authorities
Amendment 383 #
Proposal for a directive Article 13 a (new) Article 13 a Credit purchasers subject to national law A credit purchaser carrying out activities in a Member State is subject to the restrictions and requirements established in the national law of the Member State in accordance with this Directive.
Amendment 385 #
Proposal for a directive Article 14 – paragraph -1 (new) -1. EBA shall undergo, within twelve months from the entry into force of this Directive, a through review, including a public consultation, of the workings of its existing data templates.
Amendment 386 #
Proposal for a directive Article 14 – paragraph 1 1. EBA shall develop
Amendment 387 #
Proposal for a directive Article 14 – paragraph 1 1. EBA shall develop
Amendment 388 #
Proposal for a directive Article 14 – paragraph 1 1. EBA shall develop
Amendment 389 #
Proposal for a directive Article 14 – paragraph 1 1. Following the review conducted as per [paragraph -1] of this Article, EBA shall develop draft implementing technical standards that specify the formats to be 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 screening, financial due diligence and valuation of the credit
Amendment 390 #
Proposal for a directive 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
Amendment 391 #
Proposal for a directive Article 14 – paragraph 1 1. EBA shall develop draft implementing technical standards that specify the formats to be 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 screening, financial due diligence and valuation of the credit
Amendment 392 #
Proposal for a directive Article 14 – paragraph 2 Amendment 393 #
Proposal for a directive Article 14 – paragraph 2 2. EBA shall submit those draft implementing technical standards to the Commission by
Amendment 394 #
Proposal for a directive Article 14 – paragraph 2 2. EBA shall submit those draft implementing technical standards to the Commission by
Amendment 395 #
Proposal for a directive Article 14 – paragraph 3 Amendment 396 #
Proposal for a directive Article 15 – paragraph 1 Amendment 397 #
Proposal for a directive Article 15 – paragraph 1 1. Member States shall ensure th
Amendment 398 #
Proposal for a directive Article 15 – paragraph 1 1. Member States shall ensure that
Amendment 399 #
Proposal for a directive Article 15 – paragraph 1 a (new) 1 a. Credit servicers shall respect consumers’ privacy.
Amendment 400 #
Proposal for a directive Article 15 – paragraph 2 Amendment 401 #
Proposal for a directive Article 15 – paragraph 2 2. Member States shall ensure that a credit purchaser is
Amendment 402 #
Proposal for a directive Article 15 – paragraph 2 2. Member States shall ensure that
Amendment 403 #
Proposal for a directive Article 15 – paragraph 2 2. Member States shall ensure that a credit purchaser is not subject to any additional administrative requirements for the purchase of creditor’s rights under a non-performing credit agreement or the non-performing credit agreements itself other than as provided for by the national measures transposing this Directive, the consumer protection law or governing contract law. Member States shall ensure that 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.
Amendment 404 #
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.
Amendment 405 #
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.
Amendment 406 #
Proposal for a directive Article 15 – paragraph 2 a (new) 2 a. Member States shall ensure that, in the event of the purchase of creditors' rights under a non-performing credit agreement or of the credit agreement itself, only authorised credit purchasers be able to grant new finance to customers.
Amendment 407 #
Proposal for a directive 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 408 #
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 that do not hold a licence in accordance with Regulation No 575/2013 and Directive2013/36/EU.
Amendment 409 #
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.
Amendment 410 #
Proposal for a directive Article 15 – paragraph 2 c (new) 2 c. Member States may allow credit purchasers to engage natural persons to service the credits they acquired. Those natural persons should be subject to anational regulation and supervision regime and should not benefit from the freedom to provide services in another Member State in accordance with this Directive.
Amendment 411 #
Proposal for a directive Article 17 Amendment 412 #
Proposal for a directive Article 18 Amendment 413 #
Proposal for a directive Article 18 – paragraph 1 – introductory part 1. Member States shall ensure that a credit purchaser, entities or, where applicable, its representative designated in accordance with Article 17, shall be subject to the same rules, be it specialised credit servicers and banking institutions; moreover, it communicates to the competent authorities of the Member State where the credit purchaser or, where applicable its representative is domiciled or established that it intends to directly enforce a credit agreement by providing the following information:
Amendment 414 #
Proposal for a directive Article 18 – paragraph 1 – introductory part 1. Member States shall ensure that a credit purchaser
Amendment 415 #
Proposal for a directive Article 19 – title Transfer of a credit
Amendment 416 #
Proposal for a directive Article 19 – paragraph 1 1.
Amendment 417 #
Proposal for a directive Article 19 – paragraph 1 – point i (new) (i) the identity of the new credit purchaser or members of the new purchaser's management or administrative organ and the persons who hold qualifying holdings in the new purchaser within the meaning of point (36) of Article 4(1) of Regulation (EU) No 575/2013; and
Amendment 418 #
Proposal for a directive Article 19 – paragraph 1 – point ii (new) (ii) the address of the new purchaser.
Amendment 419 #
Proposal for a directive Article 19 – paragraph 1 – subparagraph 1 (new) Additionally, on an aggregated level, the credit purchaser shall inform at least the following:
Amendment 420 #
Proposal for a directive Article 19 – paragraph 1 – point iii (new) (iii) the aggregated outstanding balance of the creditor’s rights under the non-performing credit agreements or of the non-performing credit agreements transferred;
Amendment 421 #
Proposal for a directive Article 19 – paragraph 1 – point d (new) (d) the nominal value of the non- performing credit agreement;
Amendment 422 #
Proposal for a directive Article 19 – paragraph 1 – point e (new) (e) on whether the transfer includes creditor’s rights under non-performing credit agreements or non-performing credit agreements concluded with consumers and the types of assets securing them, when applicable.
Amendment 423 #
Proposal for a directive Article 19 – paragraph 1 a (new) 1 a. Member States shall require the national competent authorities to make publicly available information regarding the transfer of credit agreements from a credit institution to a credit purchaser, or from a one credit purchaser to another, including the identity and address of the new credit purchaser and, where applicable, its representative designated in accordance with Article 17.
Amendment 424 #
Proposal for a directive Article 19 – paragraph 2 2. Member States shall ensure that the competent authorities referred to in paragraph 1 shall transmit without undue delay the information received
Amendment 425 #
Proposal for a directive Title 3 a (new) Title IV - Rights and protection of distressed consumer borrowers
Amendment 426 #
Proposal for a directive Article 19 a (new) Article 19 a Forbearance measures and foreclosure 1. Creditors shall make every effort to avoid transferring consumer non- performing loans to third parties. Notably, Member States shall ensure that creditors exercise reasonable forbearance towards the distressed borrowers, in accordance with Article 28 of Directive 2014/17/EU and the EBA Guidelines on arrears and foreclosure EBA/GL/2015/12. 2. Forbearance measures may include the following concessions to the consumer: a) a total or partial refinancing of a credit agreement; b) a modification of the previous terms and conditions of a credit agreement. 3. Definition of non-performing loans adopted by the Commission Implementing Regulation (EU) 2015/227 shall be without prejudice to the creditors’ forbearance obligations. 4. 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 shall be sufficient to repay the credit. Article 28(4) of Directive 2014/17/EU shall be amended accordingly. (This article goes under the new title IV Rights and protection of distressed consumer borrowers)
Amendment 427 #
Proposal for a directive Article 19 b (new) Article 19 b Debt buy-back 1. When a credit institution intends to transfer a credit agreement to a credit purchaser at a specified price, before the transfer the credit institution shall allow the debtors concerned who are consumers, and prove that they are unable to meet their contractual obligations, to buy back their debt at the same price or with a small mark-up, specified by the relevant competent authorities. For that purpose, credit institutions shall be required to disclose to the relevant competent authorities the necessary details of expected deals with credit purchasers. 2. Member States shall ensure that the buy-back option can be exercised in instalments. (This article goes under the new title IV Rights and protection of distressed consumer borrowers)
Amendment 428 #
Proposal for a directive Article 19 c (new) Article 19 c Rules of conduct for credit servicers and credit purchasers ‘1. Credit servicers and credit purchasers shall act in good faith, treat consumers fairly and respect their privacy. The following practices shall be forbidden: a) Provision of misleading information to consumers; b) Harassment of consumers; c) Charging fees and penalties to consumers that exceed the costs directly related to the management of the debt. Members States shall fix the maximum amount of these fees and penalties. Paragraph 1 shall also apply to outsourcing service providers stipulated in Article 10 of this directive. 2. Member States shall be able to maintain the existing national measures aimed at protecting distressed borrowers, as well to adopt stricter measures, such as personal insolvency measures, restriction of the activity of credit servicers and credit purchasers. (This article goes under the new title IV Rights and protection of distressed consumer borrowers)
Amendment 429 #
Proposal for a directive Article 19 d (new) Article 19 d Right to legal representation 1. In any court hearing involving a distressed borrower there shall be consideration of the equality of representation status to ensure a full and fair hearing and full and complete understanding of all of the parameters and legal contentions being addressed. 2. This requires that there be an equivalent of legal representation provided and available to all distressed borrowers and, where necessary, this service shall be provided at the cost of the Member State through free legal aid or its equivalent. (This article goes under the new title IV Rights and protection of distressed consumer borrowers)
Amendment 430 #
Proposal for a directive Article 21 – paragraph 1 – introductory part 1. Member States shall ensure that competent authorities
Amendment 431 #
Proposal for a directive Article 21 – paragraph 1 – point b a (new) (b a) the power to prohibit certain activities;
Amendment 432 #
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);
Amendment 433 #
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;
Amendment 434 #
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;
Amendment 435 #
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.
Amendment 436 #
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.
Amendment 437 #
Proposal for a directive Article 22 – paragraph 1 – introductory part 1. Without prejudice to the supervisory powers of competent authorities and the right of Member States to provide for and impose criminal sanctions, Member States shall lay down rules establishing appropriate administrative penalties and remedial measures applicable in at least the following situations:
Amendment 438 #
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:
Amendment 439 #
Proposal for a directive Article 22 – paragraph 1 – point a (a) a credit servicer fails to
Amendment 440 #
Proposal for a directive Article 22 – paragraph 1 – point b (b) a credit purchaser or credit servicer's governance arrangements and internal control mechanisms fail to ensure respect for borrower rights and compliance with personal data protection rules;
Amendment 441 #
Proposal for a directive Article 22 – paragraph 1 – point c (c) a credit purchaser or credit servicer's policy is inadequate for the proper treatment of borrowers as set in Article 5(1)(d);
Amendment 442 #
Proposal for a directive Article 22 – paragraph 1 – point d (d) a credit purchaser or credit servicer's internal procedures fail to provide for the recording and handling of borrower complaints according to the obligations set in the national measures transposing this directive;
Amendment 443 #
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;
Amendment 444 #
Proposal for a directive Article 22 – paragraph 1 – point g a (new) (g a) the credit institution transferring creditor's rights under a non-performing credit agreement or the non-performing credit agreement itself fails, within three months of the transfer, to communicate the information set out in the national measures transposing Article 13 of this Directive;
Amendment 445 #
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;
Amendment 446 #
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;
Amendment 447 #
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;
Amendment 448 #
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;
Amendment 449 #
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.
Amendment 450 #
Proposal for a directive Article 22 – paragraph 2 – point a (a) a
Amendment 451 #
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
Amendment 452 #
Proposal for a directive Article 22 – paragraph 5 5.
Amendment 453 #
Proposal for a directive Article 22 – paragraph 7 a (new) 7 a. Member States and competent authorities shall ensure that information on administrative penalties and remedial measures imposed in accordance to paragraph 6 of this Article be available to creditors.
Amendment 454 #
Proposal for a directive Article 22 a (new) Article 22 a Forbearance measures and foreclosure 1. Creditors shall make every effort to avoid transferring consumer non- performing loans to third parties. Notably, Member States shall ensure that creditors exercise reasonable forbearance towards the distressed borrowers, in accordance with Article 28 of Directive 2014/17/EU and the EBA Guidelines on arrears and foreclosure EBA/GL/2015/12. 2. Forbearance measures may include the following concessions to the consumer: a) a total or partial refinancing of a credit agreement; b) a modification of the previous terms and conditions of a credit agreement, which may include among others: i. extending the term of the mortgage; ii. changing the type of the mortgage (such as, changing the type of mortgage from a capital and interest mortgage to an interest only mortgage); 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. 3. Definition of non-performing loans adopted by the Commission Implementing Regulation (EU) 2015/227 shall be without prejudice to the creditors’ forbearance obligations. 4. 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 shall be sufficient to repay the credit. Article 28(4) of Directive 2014/17/EU shall be amended accordingly.
Amendment 455 #
Proposal for a directive Article 22 b (new) Article 22 b Debt buy-back 1. When a credit institution intends to transfer a credit agreement to a credit purchaser at a specified price, before the transfer the credit institution shall allow the debtors concerned who are consumers to buy-back their debt at the same price or with a small mark-up, which would be specified by the relevant competent authorities. For that purpose, credit institutions shall be required to disclose to the relevant competent authorities the necessary details of expected deals with credit purchasers. 2. Member States shall ensure that the buy-back option can be exercised in instalments.
Amendment 456 #
Proposal for a directive Article 22 c (new) Article 22 c Right to legal representation 1. In any court hearing involving a distressed borrower there shall be consideration of the equality of representation status to ensure a full and fair hearing and full and complete understanding of all of the parameters and legal contentions being addressed. 2. This demands that there be an equivalent of legal representation provided and available to all distressed borrowers and, in sufficient advance, to ensure comprehensive preparation of all relevant facts and detail for appropriate court representation of the case in dispute. 3. Where necessary, this service shall be provided at the cost of the Member State through free legal aid or its equivalent.
Amendment 457 #
Proposal for a directive Article 22 d (new) Article 22 d Rules of conduct for credit servicers and credit purchasers 1. Credit servicers and credit purchasers shall act in good faith, treat consumers fairly and respect their privacy. The following practices shall be forbidden: a) Provision of misleading information to consumers; b) Harassment of consumers, including communication of information about the consumers’ debt to their employer, family, friends and neighbours; c) Charging fees and penalties to consumers that exceed the costs directly related to the management of the debt. Member States shall place a cap on those fees and penalties according to principles of fairness, rationality and proportionality. Paragraph 1 shall also apply to outsourcing service providers stipulated in Article 10 of this directive. 2. Member States shall be able to maintain the existing national measures aimed at protecting distressed borrowers, as well to adopt stricter measures, such as personal insolvency measures, restriction of the activity of credit servicers and credit purchasers.
Amendment 463 #
Proposal for a directive Article 24 Amendment 464 #
Proposal for a directive Article 25 Amendment 465 #
Proposal for a directive Article 26 Amendment 466 #
Proposal for a directive Article 27 Amendment 467 #
Proposal for a directive Article 28 Amendment 468 #
Proposal for a directive Article 29 Amendment 469 #
Proposal for a directive Article 30 Amendment 470 #
Proposal for a directive Article 31 Amendment 471 #
Proposal for a directive Article 32 Amendment 472 #
Proposal for a directive Article 33 Amendment 473 #
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
Amendment 474 #
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, Member States shall ensure that prior to substantially modifying the terms and conditions of a credit agreement either by consent or by operation of law, the creditor communicates the following information to the consumer:
Amendment 475 #
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;
Amendment 476 #
Proposal for a directive Article 35 – paragraph 1 – point a (a) the identity of the credit servicer and, where applicable, the credit purchaser it is providing a service to;
Amendment 477 #
Proposal for a directive 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).
Amendment 478 #
Proposal for a directive Article 37 a (new) Article 37 a State aid The Commission shall investigate whether the past sale of credit agreements by publicly owned, or partially publicly owned, credit institutions to credit purchasers which have received special tax advantages may have constituted illegal state aid.
Amendment 479 #
Proposal for a directive Article 40 – paragraph 1 1.
Amendment 480 #
Proposal for a directive Article 40 – paragraph 1 a (new) 1 a. The Commission's impact assessment carried out prior to the proposal for this Directive failed to take into account the impact of the Directive on EU citizens human rights under the Charter of Fundamental Rights. The transposition of this Directive must be delayed until the Commission produces a new assessment that takes into account the impact of this Directive on the Charter rights of EU citizens.
Amendment 481 #
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.
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