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Order Of November 2, 2009, Amending Regulation No. 96-16 Of The Committee Of Banking And Financial Regulation Relative To Changes In Status Of Credit Institutions And Investment Firms Other Than Companies...

Original Language Title: Arrêté du 2 novembre 2009 modifiant le règlement n° 96-16 du Comité de la réglementation bancaire et financière relatif aux modifications de situation des établissements de crédit et des entreprises d'investissement autres que les sociétés...

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JORF n°0258 of 6 November 2009 page 19161
text No. 5



Order dated 2 November 2009 amending Regulation No. 96-16 of the Banking and Financial Regulatory Committee relating to changes in the status of credit institutions and investment companies other than portfolio management companies

NOR: ECET0925315A ELI: https://www.legifrance.gouv.fr/eli/arrete/2009/11/2/ECET0925315A/jo/texte


Minister of Economy, Industry and Employment,
Considering Directive 2007 / 44 / EC of Parliament and Council amending Council Directive 92 / 49 / EEC of the Council and Directives 2002 / 83 / EC, 2004 / 39 / EC, 2005 / 68 / EC and 2006 / 48 / EC with regard to the procedural rules and application criteria applicable to the prudential evaluation of acquisitions and increases of participation in entities of the financial sector;
Given the monetary and financial code, including its article L. 611-4 ;
Having regard to amended Regulation No. 96-16 of the Banking and Financial Regulatory Committee of 20 December 1996 on changes in the status of credit institutions and investment companies other than portfolio management companies;
In view of the Advisory Committee on Financial Legislation and Regulation dated 15 June 2009 and 7 October 2009,
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Article 1 Learn more about this article...


Regulation No. 96-16 of the above-mentioned Committee on Banking and Financial Regulation of 20 December 1996 is amended as follows:
1° Section 2 is replaced by the following:


“Article 2


" 2.1. Any operation allowing a person acting alone or in concert with others, within the meaning of provisions of Article L. 233-10 of the Commercial Code, to acquire, expand, decrease or cease to hold, directly or indirectly, in the sense of provisions of Article L. 233-4 of the Commercial Code, participation in a subject business must be notified by that person to the Committee on Credit Institutions and Investment Companies, prior to its completion, where one of these two conditions is met:
“—the fraction of the voting rights held by that person exceeds or below the tenth, fifth, third or half;
"– the subject company becomes, or ceases to be, the subsidiary of that or those persons.
"2.2. Taking or increasing participation operations are subject to the prior authorization of the Committee on Credit Institutions and Investment Companies under the following conditions:
« 1° Within two working days after receipt of the notification and all required documents, the Committee on Credit Institutions and Investment Companies shall acknowledge receipt in writing to the recipient candidate.
"The Committee on Credit Institutions and Investment Companies then has a maximum of sixty working days from the date of the written acknowledgement of receipt to conduct the evaluation of the transaction.
"The written acknowledgement of receipt specifies the expiry date of the assessment period.
« 2° The Credit and Investment Institutions Committee may, during the assessment period, if applicable, and no later than the fiftieth working day of the evaluation period, request additional information necessary to complete the evaluation. This request is made in writing and specifies the necessary additional information. Within two working days after receipt of this additional information, the Committee shall acknowledge receipt in writing to the applicant.
"During the period between the date of the request for information by the Committee on Credit Institutions and Investment Companies and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Committee on Credit Institutions and Investment Enterprises has the capacity to make other requests to collect additional information or clarifications, but these requests cannot result in a suspension of the evaluation period.
« 3° The Committee on Credit and Investment Institutions may extend the suspension referred to in the preceding paragraph to thirty business days:
“(a) If the recipient candidate is established outside the Community or is subject to non-community regulation;
“(b) Or if the candidate is a person who is not subject to monitoring under European directives 2006/48/CE, 85/611/EEC, 92/49/EEC, 2002/83/EEC, 2004/39/EC or 2005/68/EC.
« 4° If the Committee on Credit and Investment Institutions decides, at the end of the assessment, to oppose the proposed acquisition, the Committee shall notify, in writing, the applicant acquirer within two business days and without exceeding the assessment period, indicating the reasons for that decision. The subject company is also informed.
"At the request of the winning candidate, the committee publishes the reasons for its decision on the site referred to in theArticle R. 511-3-3 of the Monetary and Financial Code.
« 5° If, at the end of the assessment period, the Credit and Investment Institutions Committee did not object in writing to the proposed acquisition, the acquisition is deemed to be approved.
« 6° The Committee on Credit Institutions and Investment Enterprises may set a maximum time limit for the conclusion of the proposed acquisition and, where appropriate, extend it.
« 7° When the Committee on Credit Institutions and Investment Enterprises has received a number of notifications provided for in theArticle L. 511-12-1 of the Monetary and Financial Code in respect of the same credit institution or the same investment company, it conducts their joint examination under conditions ensuring equal treatment between candidates.
"By derogation from the above provisions, are only immediately brought to the attention of the Committee of Credit Institutions and Investment Companies the transactions carried out between companies placed, directly or indirectly, by capital bonds, under the effective control of the same company, unless these transactions have the effect of transferring the effective control power or the detention of any or part of the rights referred to above to a person or persons not falling within the right of a State Party to the Agreement
"When, under statutory or statutory provisions, the number or distribution of voting rights is limited to the number or distribution of shares or shares to which they are attached, the percentages provided for in this chapter and the provisions described in Article 4 below are, respectively, calculated and implemented in terms of shares or shares of society.
" 2.3. Within two business days after receiving notification of assignment, the Committee on Credit Institutions and Investment Companies shall acknowledge receipt in writing to the declarant.
"The committee has a period of sixty working days to let the declarant and the subject company know that, given the need to ensure sound and prudent management, this operation challenges the conditions under which the approval was conditioned.
" 2.4. In accordance withArticle L. 511-12 of the Monetary and Financial Codewhere a company under the law of a State that is neither a member of the European Community nor a party to the agreement on the European Economic Area, pursuant to this article, asks to take in a business subject to participation having the effect of making the latter its subsidiary and that the European Commission has found that the credit institutions or investment companies having their head office in a Member State do not have access to the market of that third State
" ― informs the European Commission of the draft participation which was submitted to it, if the Commission had asked to be of any project originating in that third State;
" — if any, suspend or limit its decision, upon request of the Council or the European Commission. The period provided for in Article 16 of these Regulations is also suspended. »
2° Article 3:
(a) The first paragraph is deleted;
(b) The second paragraph becomes the single paragraph. The words: ", in addition," are deleted and the words: "to 5%" are replaced by the words: "to the twentieth".
3° Section 4 is replaced by the following:


“Article 4


"For the purposes of this chapter, voting rights shall be calculated in accordance with the provisions of Article L. 233-7 and Article L. 233-7 andArticle L. 233-9 of the Commercial Code.
"It is not taken into account the voting rights that credit institutions or investment companies hold as a result of the firm taking or the guaranteed placement of financial instruments, within the meaning of 6-1 or 6-2 of theArticle D. 321-1 of the monetary and financial codeprovided that these rights are not exercised or otherwise used to intervene in the management of the issuer and provided that they are transferred within one year of the acquisition. »
4° The second to fifth paragraphs of Article 5 are replaced by the following:
"The above financial information includes, for each partner or shareholder:
“(a) If it is a legal entity whose shares are admitted to negotiations on a regulated market: all the documents it is required to bring to the public;
“(b) If this is a legal entity other than those mentioned in a: the social accounting documents, if any consolidated, certified in the last fiscal year and their accompanying notes, as well as any other information relating to facts that may significantly affect its financial situation;
"(c) If it is a natural person: any useful information about his or her financial situation. »
5° In the fifth out of section 7, the words: "for which an investment service provider has obtained approval from the Financial Markets Council and, where applicable, from the Exchange Operations Commission" are deleted.
6° The second paragraph of Article 9 is replaced by the following provisions:
"When the subject company is an investment service provider, the Committee on Credit Institutions and Investment Companies shall inform the Autorité des marchés financiers within five working days. The Autorité des marchés financiers has a period of one month from the date of this declaration to inform the Committee and the declarer that the designation referred to in the first paragraph of this article is not compatible with the approval of the previously issued activity program. »
7° Section 12 is replaced by the following:


“Article 12


"Financial institutions other than investment companies and that payment institutions, which have their head office in France and which directly or indirectly hold effective control over one or more of the subject credit institutions or investment companies, must immediately report to the Committee on Credit Institutions and Investment Companies the changes in their situation concerning:
“(a) The social name;
“(b) The composition of the college of associates, in a society in collective name;
"(c) The identity of the sponsorship(s) in a limited partnership;
"(d) The rules for calculating voting rights;
“e) Agreements between partners or shareholders relating to the elements referred to in Article 4 of these Regulations;
“(f) The stipulations taken under theArticle L. 233-7 of the Commercial Code ;
“(g) The address of the head office. »
8° Article 13:
(a) In the first sentence of a, the words: "who acquired, in the foreign establishment, the effective control power, i.e. the third, the fifth or the tenth of the total voting rights" are replaced by the words: "who, in the foreign establishment, acquired or lost the effective control power, is either crossed, up or down, the thresholds referred to in section 2.1 of these Regulations";
(b) In the second dash of b, the words "of the Financial Markets Council and, if applicable, of the Exchange Operations Commission" are replaced by the words "of the Financial Markets Authority," and the words "of the Financial Markets Authority".
9° In section 14, the words: "to these Regulations" are replaced by the words: "to chapters II and III of these Regulations" and the words: "the Financial Markets Council and the Exchange Operations Commission" are replaced by the words: "the Autorité des marchés financiers".
10° Article 16:
(a) In the first paragraph, after the words: "subject", the words are inserted: "the provisions of Article 2 of these Regulations and";
(b) The second paragraph shall be replaced by the following:
"The approval by the Committee on Credit Institutions and Investment Enterprises of an amendment to the situation of an investment service provider relating to the investment services or financial instruments that have been approved by the Autorité des marchés financiers is deemed to be granted two months after that authority, immediately seized by the Committee on Credit Institutions and Investment Enterprises, informed the Committee and the applicant that this amendment was previously approved by the Board and the applicant that the change was consistent with the authority Articles L. 532-1 and L. 532-4 of the Monetary and Financial Code. The silence kept by the Autorité des marchés financiers for more than two months is approved of this amendment. »

Article 2


Regulation No. 96-16 of the Committee on Banking and Financial Regulation of 20 December 1996 referred to in its drafting of this Order is applicable in New Caledonia, French Polynesia and the Wallis and Futuna Islands, with the exception of 5 of its Article 2.
For the purposes of this regulation in French Polynesia, references to the trade code are replaced by references to locally applicable provisions having the same object.

Article 3


The present order will be issued in the Official Journal of the French Republic.


Done in Paris, November 2, 2009.


Christine Lagarde


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