Order Of 29 January 2004 On The Approval Of Regulations Of The Comité De La Réglementation Bancaire Et Financière

Original Language Title: Arrêté du 29 janvier 2004 portant homologation de règlements du Comité de la réglementation bancaire et financière

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JORF No. 48 of 26 February 2004 3859 page
Text No. 17



January 29, 2004 Order-in-Council Regulation of the Banking and Financial Regulation Committee

NOR: ECOT0414381A ELI: https://www.legifrance.gouv.fr/eli/arrete/2004/1/29/ECOT0414381A/jo/texte


The Minister of Economy, Finance and Industry,
Given the monetary and financial code, and in particular article L. 611-2;
Given the law N ° 2003-706 of 1 August 2003 on financial security, and in particular Article 49,
Arrête:

Item 1


Regulations n ° 2004-01, 2004-02, 2004-03 and 2004-04 of the Banking and Finance Committee Date of 15 January 2004, annexed to this Order, are approved.

Article 2


This Order and the regulations made to it Annexed will be published in the Official Journal of the French Republic.

Appendix


A N N E X E


Regulation No. 2004-01 amending Regulation No. 90-05 of April 11, 1990, as amended on the National Personal Credit Refund Incident File (FICP)
The Banking and Financial Regulation Committee,
Due to the code of the Consumption, in particular Title III of Book III;
Given the monetary and financial code, in particular Articles L. 313-1, L. 511-33, L. 611-2 and L. 613-21;
In view of the trade code, in particular Articles L. 628-1 and L. 628-6;
Given the law n ° 78-17 of 6 January 1978 relating to computers, files and freedoms;
In the light of Act No. 2003-710 of 1 August 2003 of orientation and programming for the city and urban renewal, in particular its articles 35 et seq
Amending Regulation No 90-05 of 11 April 1990 on the national incident file for the reimbursement of credit to individuals;
Having regard to the opinion dated 14 November 2003 of the Advisory Committee set up by Article L. 614-6 of the Monetary Code and Financial;
In view of the Opinion of 20 November 2003 of the National Commission on Informatics and Liberties,
Decides:


Sole Article


Regulation No 90-05 of 11 April 1990 is Wrote:

Regulation No. 90-05 of April 11, 1990, as amended on the National Credit Reimbursement Incident File (FICP)


Article 1


Establishments Shall be required to participate, under the conditions laid down in this Regulation, in the identification of information on incidents of payment characterised in connection with the reimbursement of appropriations for the financing of needs Non-professionals to natural persons domiciled in metropolitan France, in the overseas departments and in the territorial community of Saint-Pierre-et-Miquelon and to natural persons of French nationality domiciled Outside France.
The Banque de France provides for the centralisation of information on the incidents of payment characterised, as well as, on the one hand, information on the over-indebtedness situations mentioned in Title III of Book III of the Code of consumption, where they concern debtors domiciled in metropolitan France or in the overseas departments and the territorial community of Saint-Pierre-et-Miquelon or debtors of French nationality domiciled outside Of France and, on the other hand, judicial liquidation judgments delivered in the departments of the Haut-Rhin, the Bas-Rhin and the Moselle pursuant to Article L. 628-1 of the Commercial
. Excessive indebtedness referred to in Article L. 333-4 of the Consumer Code consists of:
-files currently under investigation, on the one hand, referrals by debtors of the over-indebtedness commission set up in Article L. 331-1 Of the said Code and, on the other hand, admissibility decisions handed down by the judges of the execution;
-conventional measures consisting of the conventional recovery plans established by the abovementioned Commission under Article L. 331-6 of the said code;
-judicial measures. The following shall be regarded as judicial measures for the application of this Regulation:
-the recommendations issued pursuant to Articles L. 331-7 and L. 331-7-1 of the said Code by the abovementioned Commission, to which the judge has conferred a binding force on Application of Article L. 332-1;
-the measures taken by the judge acting in accordance with the procedure laid down in Articles L. 332-2 and L. 332-3 of that code;
-the personal recovery procedures referred to in Articles L. 332-5 and
The Bank of France's centralized information under this section is the national data bank for credit refund incidents to individuals.


Article 2


For the purposes of this Regulation, credit any act by which a credit institution makes funds available to a natural person for the financing of its non-professional needs Or takes, in the interest of the latter, a commitment by signature, regardless of the qualification or technique used. Leases and leases with option to purchase are treated as credit transactions.
For example, they include:
-contests for the acquisition, construction, development or maintenance of a building;
-the Installment finance;
-purchase options and rentals-sales;
-personal loans and permanent credits;
-all kinds of overdrafts.


Article 3


Payment defects that are characterized for the purposes of this Regulation are:
a) For the same credit with staggered maturities, defaults to a cumulative amount of at least equal:
- For refundable credits on a monthly basis, double the last due date;
-in other cases, at the equivalent of a maturity, where that amount remains unpaid for more than 60 days;
(b) For the same credit that does not include Payment of amounts owing more than 60 days after the date of the debtor's formal notice that the amount of the outstanding amounts is at least equal to 500 EUR;
(c) For All types of credit, the defaults on which the credit institution initiates a judicial proceeding or declares the termination of the term after the debtor has remained without effect. Credit institutions may not record late payment of less than EUR 150 for which the loss of the term has not been pronounced.


Article 4


As soon as an incident of The credit institution shall inform the defaulting debtor that the incident will be reported to the Banque de France at the end of a period of one month from the date of the sending of this information.
At the end of that period, Unless the sums due have been settled or if a friendly solution has been found, the defaulting debtor is informed by the credit institution of the content of the information that the debtor transmits to the Banque de France.


Article 5


Credit institutions communicate to the Banque de France for each characterized payment incident that has become reportable within a month under the conditions set out in item 4 above:
-les Surname and marital names, given names, date of birth, geographical code of place of birth or, in ignorance thereof, place of birth of defaulting persons;
-the nature of the credit as defined in Article 2 above.


Article 6


When a characterized incident that affected the refund of a given credit is recorded in the file, no new declaration is made under the same credit in the case of Occurrence of other incidents or of forfeiture of the term or undertaking of judicial proceedings.


Article 7


For each payment incident previously reported, the institutions Credit report to the Banque de France the full payment of the sums due, whether it has been made by the principal debtor or by a guarantor other than a credit institution, on their initiative or after undertaking a procedure Judicial.


Article 8


The information referred to in Articles 5 and 7 above shall be the subject of statements adopted on the evening of the last day of each month and transmitted to the Banque de France in the 15 days after the date of the order.
These declarations shall be notified either by remitting or transmitting a secure computer file, either by secure exchange on the Internet or by the use of a printout.


Article 9


The information referred to in Article 5 above shall be kept in the file for five years from the date of registration by the Banque de France of the incident which resulted in the declaration. They shall be deleted from the date of registration in the file of the full payment of the sums due under Article 7.
Centralized information shall be immediately changed or deleted when The institution indicates to the Banque de France that the original declaration was incorrect.


Article 10


Information on situations of over-indebtedness and liquidation judgments In accordance with Article L. 628-1 of the Commercial Code, referred to in Article 1 of this Regulation, shall be communicated to the Banque de France and registered in the File under the following conditions:
1 ° Are registered as a file under investigation:
-the references of the commission set up in Article L. 331-1 of the code of consumption which are communicated by it to the Bank of France. This referral results from the debtor's signature on the statement of over-indebtedness bearing the following terms: surname and marital names, given names, date of birth, geographical code of the place of birth or, in the ignorance Of that person, place of birth of the debtors;
-the decisions on admissibility taken by the court of enforcement in the case of appeals which are communicated to the Banque de France by the Registry of the enforcement judge in accordance with the third paragraph of L. 333-4 of the said Code.
The registration of files under investigation is retained in the file for a period of thirty-six months and may be subject to extension by a one-year period decided by the Commission. This entry is written off:
-when the case is out of order for the handling of over-indebtedness. The Commission shall inform the Banque de France of this inadmissibility at the expiry of the time limit for the appeal of its decision. In the event of an appeal, the Registry of the execution judge shall communicate to the Banque de France the judgment confirming the inadmissibility;
-where the debtor has a measure taken under Articles L. 331-6, L. 331-7 or L. 331-7-1 above;
- In the case of the closure of a personal recovery procedure under Articles L. 332-5 et seq. Referred to above;
-in the case of closure of the overindebtedness file of the committee, in particular where the debtor reports its Determination not to continue the proceedings or where it does not provide the necessary elements for that purpose;
-in the event of the termination of the proceedings before the judge of the execution brought to the knowledge of the Banque de France by the Registry
Commission shall communicate to the Banque de France the information concerning the measures of the conventional recovery plan referred to in Article L. 331-6 above. The registration shall be kept in the file for the duration of the execution of the conventional plan, without being able to exceed ten years.
3 ° The Registry of the Execution Judge communicates to the Banque de France the information concerning the measures taken In accordance with Articles L. 331-7 and L. 331-7-1 above.
The registration of the measures defined in Article L. 331-7 shall be retained for the duration of the implementation of the measures, without exceeding ten years.
4. Suspend the liability for claims other than food, referred to in the first subparagraph of Article L. 331-7-1, shall be kept for the duration of such measures, which shall not exceed two years.
At the end of that period, the Bank shall Of France shall register a new entry in respect of the review, on the notification made to it by the committee responsible for reviewing the situation of the debtor in accordance with the provisions of the second subparagraph of Article L. 331-7-1 above. The duration of the registration shall be two years and may be extended by a period of one year decided by the committee. The cancellation of the registration shall take place as soon as the debtor has received a measure taken pursuant to the second paragraph of Articles L. 331-7 or L. 331-7-1 of the Consumer Code or in the case of closure of the debt file imposed by the Commission.
5 ° The duration of the registration of measures for the partial erasure of claims other than foodstuffs, defined in the second subparagraph of Article L. 331-7-1, shall be fixed at ten years.
6 ° The Registry of the execution judge shall communicate to the Banque de France the closing judgments of the personal recovery procedure for the purposes of registering the beneficiaries in the file for a period of eight years from the date of the judgment pursuant to Articles L. 332-11 and L. 333-4, third paragraph, of the code of consumption.
7 ° Judicial liquidation judgments delivered in the departments of the Haut-Rhin, the Bas-Rhin and the Moselle pursuant to Article L. 628-1 of the Commercial Code shall be transmitted by the The Registry of the Court of First Instance at the Banque de France for the purposes of registration in the file for a period of eight years from the date of the judgment pursuant to Article L. 628-6 of the Commercial
. Article, with the exception of those mentioned at 5 °, 6 ° and 7 °, shall be deleted as soon as the debtor has justified to the Banque de France the full settlement of its debts with all the creditors in the plan or judgment. To this end, the debtor issues a certificate of payment from each of the affected creditors.


Article 11


Credit institutions can obtain communication, for each individual The following items listed in the file:
-the information referred to in section 5 above;
-the number of incidents and the number of reporting institutions;
-the existence of conventional or judicial measures Referred to in Article 10 above;
-the existence of a judicial liquidation judgment referred to in Article 10 (7 °);
-the date on which the information will be deleted from the file.
Credit institutions may also To receive, for each person concerned, the information relating to the existence of a file under investigation or review referred to in Article 10 (1 ° and 4 °) above.


Article 12


Communication of information to credit institutions is carried out:
-either by submitting or transmitting a secure computer file, by means of a secure Internet consultation procedure or by Videotex, or by the use of a Printed;
-or by the monthly provision of a secure file containing all the information recorded as of the last day of the preceding month, excluding the name of the reporting institutions; this option is not However, it is open to the institutions approved by the Banque de France in accordance with criteria relating, in particular, to the appropriations granted.
In accordance with the provisions of Article L. 511-33 of the Monetary and Financial Code, the information provided Are reserved for the exclusive use of the recipient credit institutions. These may be used only in the context of operations related to the granting or management of a credit. Any other use of the data and any communication thereof to third parties may justify the penalties provided for in Article 17.
In addition, in accordance with the provisions of Article L. 333-4 of the Consumer Code, it is prohibited to Credit institutions to provide to anyone who copies, in any form, the information contained in the file.


Article 13


Any establishment that grants credit after the entry In force of this Regulation shall inform the borrower, at the time of the grant of the competition, that information concerning them may, in the event of a payment incident, be recorded in a file accessible to all Credit institutions.


Article 14


A customer of a credit institution may ask the credit institution to let it know if it has reported to the bank about the information. In accordance with the provisions of Article L. 333-4 of the Consumer Code, the institution interviewed shall orally inform the person concerned of the information he has provided to the Banque de France.


Article 15


When a person intends to exercise his or her right of access in accordance with sections 34 and 35 of the Act of January 6, 1978, he or she must contact the Bank of France. In accordance with the provisions of Article L. 333-4 of the Consumer Code, the latter shall communicate orally to the person concerned the relevant information.
The holder of the right of access may, where appropriate, obtain the modification of the Information concerning him, in accordance with the provisions of Article 36 of the aforementioned Law of 6 January 1978.


Article 16


The Banque de France calculates the annual costs resulting from the File management. Billing is supported by the institutions that query the file. It shall be based on the consultation procedures used as provided for in Article 12. It gives rise to the payment of a subscription when there is provision of files or a tax proportionate to the number of queries in the other cases.


Article 17


Infringement Provisions of this Regulation and any delay in declarations shall be subject to the penalties provided for in Article L. 613-21 of the Monetary and Financial Code.


Article 18


In the light of The examination which will be made of the application of this Regulation, a subsequent regulation will set out the conditions for the possible registration in the file of the defaulting legal provisions.
Done at Paris, 15 January 2004


For the Banking and Finance Committee

The President,
J.-P. Jouyet


Regulation n ° 2004-02 amending Regulation No 97-02 of 21 February 1997 on the internal control of Credit institutions and investment firms
The Banking and Financial Regulation Committee,
In view of the monetary and financial code, in particular Article L. 611-3;
Due to Act No. 2003-706 of 1 August 2003 on security Financial, and in particular Articles 46, 47 and 49;
Having regard to Regulation No 92-13 of 23 December 1992 on the supply of banking services in France by establishments having their registered office in the other Member States of the European Communities;
In view of the amended Regulation n ° 97-02 of 21 February 1997 on the internal control of credit institutions and investment firms;
In view of the opinion of the Autorité des marchés financiers on 8 January 2004,
Decides:


Article 1


Regulation No 97-02 is amended under the following conditions for the rules applicable to business continuity plans:
I.-Article 4 is Added a point n so written:
" (n) Business continuity plan: a set of measures to ensure, according to various crisis scenarios, including in the face of extreme shocks, the maintenance, if any, temporarily according to a mode Degraded, business essential services, and then scheduled business resumption; "
II. -Added a new article as follows:
" Art. 14-1. -In addition to the provisions set out in section 14 of these Regulations, the businesses subject to this regulation must:
a) Provide business continuity plans;
b) Ensure that their organization and the availability of their resources Staff, real estate, technical and financial institutions are regularly assessed against the risks associated with the continuity of the activity;
c) Ensure consistency and effectiveness of business continuity plans in the Framework of a comprehensive plan that incorporates the objectives defined by the executive body and, where appropriate, by the legislative body. "
III. -The first paragraph of Article 39 shall be replaced by the following:
" The executive body shall regularly inform, at least once a year, the deliberative body and, where appropriate, the audit committee:
a) Essential elements and Key learnings that can be identified from the risk measures to which the business subject and, where applicable, the group are exposed, including the allocations provided for in section 18 and the analysis of the profitability of operations Of the credit provided for in Article 20 of this Regulation;
(b) Measures taken to ensure the continuity of the activity and the assessment of the effectiveness of the arrangements in place. "
IV. -Point d of Article 40, after the words: Procedures relating to the security of information and communication systems' Are added the words: " And business continuity plans ".


Article 2


The above Regulation 97-02 is amended under the following conditions for the rules applicable to operational risk:
I.-Point j of Article 4 is replaced by the following:
" (j) Risk Operational: the risk resulting from maladjustment or failure due to internal procedures, personnel and systems or external events; "
II. -In Article 32, the words: Operational and legal risks " Are replaced by the words: " Operational risks including legal risks ".


Article 3


Regulation No 97-02 is amended Under the following conditions for the rules applicable to the means of payment:
I.-In Article 4, a point has been added as follows:
" (o) Means of payment: means of payment within the meaning of Article L. 311-3 of the Currency Code and Financial resources other than cash. "
II. -In Article 43, it is inserted between the first and second paragraph a paragraph worded as follows: '
' This report includes an annex on the security of the means of payment transmitted by the General Secretariat of the Banking Commission to the Bank of France in respect of its mission defined by Article L. 141-4 of the aforementioned monetary and financial code. The companies subject to the assessment, the measurement and the monitoring of the security of the means of payment that they issue or manage in the light of their possible internal standards and of the recommendations that the Banque de France or the The European System of Central Banks is to their knowledge. "


Article 4


Article 45 of Regulation 97-02 is supplemented by the following words:" With the exception of the provisions relating to the measurement of liquidity risk, Articles 31-1, 43, paragraph 3, and 44 ".
At the end of the first subparagraph of Article 5 of Regulation No 92-13 the following words are added:" And Articles 31-1, 43, paragraph 3, and 44 of Regulation No 97-02 as amended of 21 February 1997 relating to Internal control of credit institutions and investment firms'.


Article 5


Article 1, third indent, of Regulation No 97-02, the reference to Article L. 442-2, point 3, of the Monetary and financial code shall be replaced by the reference to Article L. 442-2, point 4.


Article 6


The provisions of Article 1 of this Regulation shall apply from 1 July 2004. The remaining provisions are effective immediately.
Done at Paris, January 15, 2004.


For the Banking and Finance

The President,
J.-P. Jouyet



Regulation n ° 2004-03 amending Regulation n ° 99-15
of 23 September 1999 as amended


Banking and Financial Regulation Committee,
Given the monetary and financial code, in particular its Article L. 322-3;
Having regard to Act No. 2003-706 of 1 August 2003 on financial security;
Having regard to Directive 97 /9/EC of the European Parliament and of the Council of 3 March 1997 on investor compensation schemes;
In view of Regulation No 99-15 of 23 September 1999 on the resources and operation of the securities guarantee mechanism;
On the assent of the Autorité des marchés financiers as of 8 January 2004,
Decides:


Article 1


At the end of the first paragraph of point 1.1 of the Annex to Regulation No 99-15 of 23 September 1999, is added the following sentence:
" In addition, membership fees that are not authorized for the purposes of The administration and conservation of financial instruments is equal to the minimum amount. These institutions subscribe to an association certificate of the same amount. "


Article 2


At the end of Article 5 of Regulation No 99-15 of 23 September 1999 is added the following paragraph:
" Acceding members who are not authorized for administration and Retention of financial instruments shall be exempt from the additional assessment referred to in the preceding paragraph. "


Article 3


Article 18 of Regulation No 99-15 of 23 September 1999 is supplemented by the following additional paragraph:
" For investment service providers with the exception Of portfolio management companies which, as of 3 August 2003, are not entitled to administer and retain financial instruments, the amount of the contribution in respect of 2003 shall be equal to half the amount of the Contribution due for the year 2004. The amount so calculated and the amount of the association certificate to be signed shall be notified by the Banking Committee to the members concerned by 15 October 2004 at the latest. "


Article 4


A new item 19 is created:
" By way of derogation from the third subparagraph of Article 13 of this Regulation, for the financial year 2004, the number of votes available to each Members with the quality of investment firms and who are not entitled to administer and retain financial instruments for the election of the two non-credit members' representatives to the board Of the deposit guarantee fund shall be deemed to be equal to 1,200. "
Done at Paris, January 15, 2004.


For the Banking and Finance

The President,
J.-P. Jouyet



Regulation n ° 2004-04 amending Regulation No 86-13 On May 14, 1986, as amended on the remuneration of funds received by credit institutions
The Committee on Banking and Financial Regulation,
In view of the monetary and financial code, in particular Article L. 611-2;
In view of Decree No. 76-79 of 26 January 1976, as amended laying down the conditions for the application of Article 9 of Law No 75-1242 of 27 December 1975, and in particular Article 3 thereof;
Having regard to Regulation No 86-13 of 14 May 1986 on the remuneration of funds received by Credit institutions;
Having regard to Regulation No 2003-03 of 24 July 2003 amending Regulation No 86-13 of 14 May 1986 on the remuneration of funds received by credit institutions,
Decides:


Article Single


On 1 January 2004, the 2 ° of Article 3 of Regulation No 86-13 of 14 May 1986 is amended as follows:
" 2 ° The rate of special accounts on the passbook of the mutual credit is equal to 2.46 % for persons Physical and 2.38 % for legal persons; "
Article 2 of Regulation No 2003-03 of 24 July 2003 shall remain in force.
Done at Paris, 15 January 2004.


For the Committee on Banking Regulation
And financial:
The President,
J.-P. Jouyet


Done at Paris, January 29, 2004.


Francis Mer


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