Key Benefits:
The public concerned: banking, insurance and financial market institutions and supervisors.
Subject: decree adapting the monetary and financial code following the creation of the European supervisory authorities and which allows to complete the transposition of Directive 2010/78/EU of the European Parliament and the Council of 24 November 2010, with regard to the competences of the European Supervisory Authority (European Banking Authority), the European Supervisory Authority (European Insurance and Professional Pension Authority) and the European Supervisory Authority (European Financial Market Authority).
Entry into force: the text comes into force on the day after its publication.
Notice: the decree provides for various provisions aimed at:
(a) Inform the European supervisory authorities and, where appropriate, other national supervisory authorities within the framework of cross-border groups, with regard to the supervision of interbank regulations systems and systems for the regulation and delivery of financial instruments (I and VII of Article 1), credit institutions, investment companies, financial conglomerates, financial companies, insurance companies, insurance companies, mutual funds code of mutuality, institutions of foresight and legal persons administering a collective professional pension institution (III of Article 1st);
(b) Please specify the modalities for the implementation of the binding mediation of the European Banking Authority as part of the supervision of cross-border banking groups (IV, V, VI and IX of Article 1st);
(c) Please specify the modalities under which a disciplinary procedure may be opened by the Autorité de contrôle prudentiel against a group established in France and which would have its seat in another State Party to the agreement on the European Economic Area (II and VIII of Article 1st);
(d) Please specify the modalities for the supervision of financial conglomerates (Article 1) and extend the obligations of financial conglomerates to the definition of devices to participate in the realization and, where appropriate, the development of appropriate rescue mechanisms and plans (Articles 2 to 4).
References: the text amended by this decree can be consulted, in its drafting, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy and Finance,
Considering Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/CE, 2006/48/CE, 2006/49/CE and 2009/65/EC with regard to the competences of the European Supervisory Authority (European Banking Authority), the European Supervisory Authority and
Vu le insurance code ;
Vu le monetary and financial code ;
Vu le code of mutuality ;
Vu le Social Security Code ;
Vu la Act No. 2013-100 of 28 January 2013 bringing various provisions to adapt legislation to European Union economic and financial law;
See?Order No. 2006-344 of 23 March 2006 relating to additional occupational pensions;
Considering the advice of the Financial Legislation and Regulation Advisory Committee dated 5 April 2013;
The State Council (Finance Section) heard,
Decrete:
In article R. 330-1 of the monetary and financial code, the words "the European Commission" are replaced by the words "the European Financial Market Authority".
Article I R. 612-20 of the same code is amended as follows:
1° 1° :
(a) In the first paragraph, after the words "of Article L. 612-2", the words "and that of financial conglomerates" are inserted;
(b) The second paragraph is deleted;
2° The third is repealed.
After article R. 612-20 of the same code, an article R. 612-20-1 is inserted as follows:
"Art. R. 612-20-1. - I. ― The prudential control authority shall communicate the lists referred to in 1° and 2° of I of Article R. 612-20 to the Autorité des marchés financiers.
“II. ― The Autorité de contrôle prudentiel, if any after communication by the Autorité des marchés financiers of the approvals it has issued, shall, at least once a year, communicate to the European Commission and the European Banking Authority the list of credit institutions and investment companies for which approval has been granted and that of financial conglomerates.
"III. ― The Autorité de contrôle prudentiel shall, at least once a year, communicate to the competent authorities of the other Member States of the European Union and other States parties to the agreement on the European Economic Area, the European Commission and the European Banking Authority the list of the financial companies.
"IV. ― The Autorité de contrôle prudentiel shall, at least once a year, communicate to the European Commission and the European Banking Authority the number and nature of the cases in which it has refused that a credit institution with its head office in France may, in another Member State of the European Union or another State Party to the agreement on the European Economic Area, create a branch to provide banking services or continue its activity following a change.
"V. ― The Supervisory Authority shall, at least once a year, communicate to the European Commission and the European Banking Authority the number and nature of the cases in which it took the measures referred to in the second paragraph of Article R. 613-28.
"VI. ― The Autorité de contrôle prudentiel shall, at least once a year, communicate to the European Banking Authority and to the European Commission the approvals granted to the branches of credit institutions having their seat in a non-member State of the European Union or to the agreement on the European Economic Area.
« VII. ― The Supervisory Authority shall, at least once a year, communicate to the European Insurance and Professional Pension Authority the list of registered insurance companies under theArticle L. 143-1 of the Insurance Code, mutuals approved under thearticle L. 222-3 of the mutuality code, approved planning institutions under theArticle L. 932-40 of the Social Security Code as well as legal persons administering a collective occupational pension institution referred to in theArticle 8 of Order No. 2006-344 of 23 March 2006 relating to additional and authorized occupational pensions in accordance with the 5th of Article L. 542-1 and Article R. 542-1 of this Code.
"This list indicates, for each insurance company, mutual, insurance institution and legal entity administering a collective occupational pension institution referred to in the previous paragraph and approved in France, the other Member States of the European Union and the other States parties to the agreement on the European Economic Area in which these bodies operate. »
Section R. 613-1-6 of the same code is supplemented by a paragraph as follows:
"If, within two months of its application, the competent authority of the Member State concerned has seized the European Banking Authority, the Autorité de contrôle prudentiel suspends its decision pending a decision of the European Banking Authority. The Autorité de contrôle prudentiel takes its decision in accordance with the decision of the European Banking Authority. »
In the second paragraph of article R. 613-3-2 of the same code, the words "European Community" are replaced by the words "European Union".
Section R. 613-3-6 of the Code is replaced by the following provisions:
"Art. R. 613-3-6.-In accordance with Article L. 613-20-4, the Autorité de contrôle prudentiel, as the authority responsible for the monitoring on a consolidated basis, has a period of four months to reach agreement with the competent authorities of the other Member States of the European Union and other States parties to the agreement on the European Economic Area on the required level of competent funds concerned or to suspend its decision in the case of the European Union »
The first paragraph of section R. 613-4-1 of the same code is replaced by the following paragraph:
"When the Supervisory Authority, after reviewing the opinions and reservations expressed by the consolidated monitoring authority, does not wish to align itself with the common decision on the required level of equity referred to in the second paragraph of Article L. 613-20-4, it shall inform the supervisory authority on a consolidated basis and may refer to the European Banking Authority. If one of the competent authorities concerned has seized the European Banking Authority, the Autorité de contrôle prudentiel suspends its decision on the level of equity it considers necessary on an individual or sub-consolid basis, pursuant to the second paragraph of Article L. 511-41-3, until the intervention of the decision of the European Banking Authority. It makes its decision in accordance with the decision of the European Banking Authority. »
Section II R. 613-18 of the same code is amended as follows:
1° After the words: "the same conditions" are inserted the words: "the European Committee for Systemic Risk",
2° The words: "the European Community" are replaced by the words: "the European Union and the European Financial Market Authority".
In section 3 of chapter III of Book VI title I of the same code, the following articles are included in R. 613-28 and R. 613-29:
"Art. R. 613-28. - For the purposes of Article L. 613-33, where the Autorité de contrôle prudentiel finds that an establishment does not comply with the legislative or regulatory provisions applicable to it, it shall inform the competent authority of the Member State of origin so that it may take, without delay, any measures to ensure compliance with these provisions.
"If, despite these measures, the establishment continues to violate the legislative or regulatory provisions applicable to it, the Autorité de contrôle prudentiel informs the competent authority of the Member State of origin that it will implement the appropriate measures to prevent or suppress irregularities and, to the extent necessary, prevent this establishment from engaging in new operations in the territory of the French Republic.
"When the Prudential Supervisory Authority initiates a disciplinary procedure, it shall communicate to the competent authority of the Member State of origin of the establishment in question the letter referred to in Article R. 612-36.
"The sanctions commission of the prudential control authority shall also transmit to that authority the observations in response, if any, addressed by the establishment and inform of the summons provided for in Article R. 612-39.
"It provides the procedure with all the information provided by this authority on the measures it may have adopted.
"Unless an emergency occurs, a period of not less than thirty free days is respected between communication to the authority of the Member State of origin and the hearing provided for in Article R. 612-39.
"Before following the procedure set out in the preceding paragraphs, the Prudential Supervisory Authority may, in the event of an emergency, take any precautionary measures to ensure the protection of the interests of the applicants. In this case, it shall promptly inform the European Commission, the European Banking Authority and the competent authority concerned of the Member State of origin of the establishment.
"In the event of a breach of provisions of general interest within the meaning of Article L. 511-24, the Authority may, without following the procedure provided for in the preceding paragraphs, impose one of the disciplinary sanctions listed in Article L. 612-39.
"Art. R. 613-29. - Where an establishment, exercising its activity in another Member State of the European Union or in another State Party to the Agreement on the European Economic Area in accordance with Articles L. 511-27 and L. 511-28, contravenes a legislative or regulatory provision in force in the territory of that State and which is applicable to it, the Autorité de contrôle prudentiel, informed by the competent authority of that State, shall take such measures as to ensure compliance. These measures are brought to the attention of this authority. »
Section R. 633-3 of the same code is replaced by the following provisions:
"Art. R. 633-3.-When the Supervisory Authority is the verification authority referred to in Article L. 633-14, it consults with other relevant authorities and implements the guidelines developed through the joint committee of the European supervisory authorities. »
After the 3° of the II of Article R. 334-52 of the insurance code, it is inserted a 4° as follows:
« 4° Procedures to participate in the implementation and, where appropriate, the development of appropriate rescue mechanisms and plans. These procedures are updated at least once a year. »
After the 3rd of the II of the article R. 213-11 of the code of mutuality, it is inserted a 4th so written:
« 4° Procedures to participate in the implementation and, where appropriate, the development of appropriate rescue mechanisms and plans. These procedures are updated at least once a year. »
After the 3rd of the II of Article R. 933-11 of the Social Security Code, it is inserted a 4th so written:
« 4° Procedures to participate in the implementation and, where appropriate, the development of appropriate rescue mechanisms and plans. These procedures are updated at least once a year. »
Section R. 511-5 of the monetary and financial code is repealed.
The Minister of Economy and Finance is responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done on 10 May 2013.
Jean-Marc Ayrault
By the Prime Minister:
Minister of Economy and Finance,
Pierre Moscovici
