Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of Finance and Public Accounts,
Having regard to the Constitution, including article 38;
Having regard to Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 concerning prudential requirements for credit institutions and investment companies and amending Regulation (EU) No. 648/2012;
In view of Council Regulation (EU) No. 1024/2013 of 15 October 2013 entrusting the European Central Bank with specific missions relating to prudential supervision policies of credit institutions;
Having regard to Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to the activity of credit institutions and prudential supervision of credit institutions and investment companies, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, including Article 47;
Vu le Trade code ;
Vu le monetary and financial code ;
Vu la Act No. 2014-1662 of 30 December 2014 bringing various provisions for adapting legislation to European Union economic and financial law, including Article 19;
Considering the advice of the Financial Legislation and Regulation Advisory Committee dated 15 April 2015;
Considering the opinion of the Autorité des normes comptables dated 7 May 2015;
Considering the seizure of the New Caledonia Congress of 1 April 2015;
Considering the referral of the Assembly of French Polynesia on 1 April 2015;
Considering the seizure of the territorial assembly of the Wallis and Futuna Islands on 2 April 2015;
Considering the referral of the territorial council of Saint-Barthélemy dated 16 April 2015;
Considering the referral of the territorial council of Saint-Pierre-et-Miquelon dated 16 April 2015;
The State Council (Finance Section) heard,
The Council of Ministers heard,
Order:
Chapter I of Book V title I of the monetary and financial code is thus amended:
1° In I of Article L. 511-1, the words "legal persons" are replaced by the word "businesses";
2° Article L. 511-8-1:
(a) The first paragraph is preceded by an I;
(b) It is added a II as follows:
“II. - Notwithstanding any provision to the contrary, a branch of credit establishment referred to in I of Article L. 511-10 may, for the exercise of its activity in France, use the same name as that of the credit institution it depends on.
"However, where this denomination is likely to suggest that this branch may provide other services than those for which it is authorized, or create confusion in this matter, it shall include an explanatory reference to its denomination.
"This mention specifies the type of approval received. It appears on any customer support or used for prospecting purposes. » ;
3° Article L. 511-10:
(a) The first paragraph is replaced by five subparagraphs:
"I. - Before exercising their activity, credit institutions must obtain approval. This approval is granted to legal persons with their seats in France or to branches established in the French territory of credit institutions having their head office in a State that is neither a member of the European Union nor a party to the agreement on the European Economic Area.
"In accordance with Articles 4 and 14 of Council Regulation (EU) No 1024/2013 of 15 October 2013, the approval of credit establishment is issued by the European Central Bank, on the proposal of the Autorité de contrôle prudentiel et de résolution.
"However, when it comes to branches referred to in the first paragraph, approval is granted by the Authority for prudential control and resolution. These branches are registered as a bank or specialized credit institution other than a land credit company or a housing financing company, within the limits of the transactions that the credit institutions they depend on are authorized to carry out.
"Unless otherwise provided, where the word person designates in this code a credit institution, this word also means a branch referred to in the first paragraph.
“II. - Before exercising their activity, the financing companies must obtain an approval issued by the Autorité de contrôle prudentiel et de résolution pursuant to the 1° of the II of Article L. 612-1. » ;
(b) The second paragraph is preceded by a III;
(c) After the sixth preambular paragraph, a new preambular paragraph reads as follows:
"The Prudential Control and Resolution Authority shall grant approval to a branch referred to in I only if the credit institution to which the branch relies undertakes to carry out, in respect of that branch, missions equivalent to those entrusted, by section 8 of this chapter, to the board of directors, to the supervisory board or to any other body exercising equivalent oversight functions, as well as to the general assembly. » ;
(d) The seventh paragraph is preceded by an IV;
(e) The last paragraph is preceded by a V;
4° In the last paragraph of Article L. 511-12-1, the words: "sixth paragraph" are replaced by the words: "fifth paragraph of Article III";
5° Section L. 511-13 is replaced by the following provisions:
"Art. L. 511-13. - The head office and the central administration of any credit or financing company approved in accordance with Article L. 511-10 are located in France. These provisions are not applicable to branches of credit institutions referred to in Article L. 511-10 I.
"The effective direction of the activity of credit institutions, including branches of credit institutions referred to in I of section L. 511-10, or financing companies is provided by at least two persons. » ;
6° Article L. 511-15:
(a) The first paragraph is preceded by an I;
(b) The third preambular paragraph is replaced by two sub-items:
“II. - By derogation from the provisions of I, the withdrawal of the approval of a branch of credit establishment referred to in I of Article L. 511-10 shall, under the same conditions, be pronounced by the Authority of prudential control and resolution.
"III. - The withdrawal of approval takes effect upon the expiry of a period of time determined, as the case may be, by the European Central Bank or the Authority for prudential and resolution control. » ;
7° In the first paragraph of Article L. 511-16, the words: "second paragraph of Article L. 511-15" are replaced by the words: "III of Article L. 511-15";
8° The second paragraph of Article L. 511-17 is replaced by the following provisions:
"In cases where, pursuant to sections L. 612-39 and L. 612-40, the Commission des sanctions de l'Administration de contrôle prudentiel et de résolution pronounces the total withdrawal of the approval of a branch of credit establishment referred to in I of Article L. 511-10, this decision entails the liquidation of the elements of the balance sheet and the out-of-balance of the branch. » ;
9° Article L. 511-21 is supplemented by a paragraph as follows:
"The provisions of this subsection are not applicable to branches of credit institutions referred to in section L. 511-10, I. » ;
10° At 2° of Article L. 511-24, the words: "Articles L. 511-8-1 and L. 511-8-2" are replaced by the words: "I of Article L. 511-8-1 and Article L. 511-8-2";
11° Article L. 511-35:
(a) The first paragraph is replaced by the following:
« Les provisions of Article L. 232-1 of the Commercial Code are applicable to credit institutions, finance companies and investment companies under conditions established by the Autorité des normes comptables after notice of the Financial Legislation and Regulation Advisory Committee. For the purposes of these provisions to the credit establishment branches referred to in Article L. 511-10, the obligations set out in theArticle L. 232-1 of the Commercial Code are filled by the persons referred to in the second paragraph of Article L. 511-13 of this Code. » ;
(b) The second paragraph is supplemented by a sentence as follows: "These provisions are not applicable to branch offices of credit institutions referred to in Article L. 511-10 I. » ;
12° Article L. 511-39:
(a) The first paragraph is preceded by an I;
(b) It is added a II as follows:
“II. - In the case of a credit establishment branch referred to in I of section L. 511-10, the persons referred to in the second paragraph of section L. 511-13 shall communicate to the credit institution's body that is dependent on that branch that has supervisory functions equivalent to that of a board of directors or supervisory board, prior to their conclusion:
« 1° Any agreement that intervenes directly or by person interposed between the credit facility under this branch and one of the persons referred to in the second paragraph of Article L. 511-13, as well as any agreement to which one of these persons is indirectly interested;
« 2° Any agreement between the branch-dependent credit institution and a company that has one of the persons referred to in the second paragraph of section L. 511-13 is the owner, partner indefinitely responsible, manager, administrator, member of the supervisory board or, in general, manager.
"The above provisions do not apply to routine and normal operations.
"The prohibition under theArticle L. 225-43 of the Commercial Code applies to persons referred to in the second paragraph of section L. 511-13, to spouses, ascendants and descendants of such persons and to any person in custody. » ;
13° Article L. 511-41 is amended as follows:
(a) After the I of the article L. 511-41, it is inserted a II as follows:
“II. - A branch of credit establishment referred to in I of Article L. 511-10 may request the Autorité de contrôle prudentiel et de résolution a total or partial exemption regarding the requirements of solvency, liquidity, levier and large risks if the following conditions are met:
« 1° The regulation and monitoring of the country of the credit institution that the branch relies on effectively take into account the risks assumed outside the branch in a manner equivalent to the provisions in force in France;
« 2° The credit institution that the branch relies on undertakes to monitor the branch's operations in France, in accordance with the regulations in force in France and under the control of the competent authority in that country;
« 3° The branch-dependent credit facility confirms that it will ensure that the branch has sufficient funds to cover its commitments in France, in particular to meet its short-term liquidity needs;
« 4° The credit institution that the branch relies on undertakes to inform the Authority of prudential control and resolution of any relevant developments to verify that the conditions under 1° to 3° continue to be met on a permanent basis;
« 5° The competent authority of the State of the credit institution to which the branch depends gives its agreement to the requested exemption; confirms the regularity of the position of the credit institution to which the branch depends; It undertakes to inform the Authority of prudential control and resolution of any significant changes to the above-mentioned conditions and to provide, at its request, any information relating to the credit establishment to which the branch is responsible for the control of the location of the branch.
"The Autorité de contrôle prudentiel et de résolution verifies that the above conditions are met and defines the exemption terms of the branch. It ensures, in particular in the light of an express certificate from the competent authority of the State of the credit institution to which the branch depends, that French credit institutions can receive equivalent treatment from that authority. To define these exemption modalities, the Autorité de contrôle prudentiel et de résolution takes into account the characteristics of the branch's activities in France and the characteristics of the regulation of the State of the credit institution to which the branch depends. The Autorité de contrôle prudentiel et de résolution may condition the exemption from the rules of liquidity to the nature and anticipated volume of the branch's activity program, in particular with respect to the reception operations of reimbursable funds of the public.
"The Autorité de contrôle prudentiel et de résolution may withdraw the benefit of this article to a branch when it considers that one of the conditions is no longer met.
"When a branch benefits from this Article, the Autorité de contrôle prudentiel et de résolution may also exempt this branch from the publication obligations set out in Part 8 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013.
"The branch informs the Authority of prudential control and resolution of any relevant developments to ensure that the above conditions continue to be met on a permanent basis. » ;
(b) II becomes the III;
14° After the first paragraph of Article L. 511-58, it is inserted a paragraph as follows:
"In the case of a credit establishment branch referred to in section L. 511-10, this prohibition shall mean the exercise of the effective management functions, within the meaning of the second paragraph of section L. 511-13, that branch and the chair of the credit establishment's organ that is dependent on that branch that has supervisory functions equivalent to that of a board of directors or a board of directors. » ;
15° Article L. 511-59 is supplemented by a paragraph as follows:
"In the case of a credit establishment branch referred to in Article L. 511-10, the persons referred to in the second paragraph of Article L. 511-13 shall transmit to the credit institution organ of which the branch is dependent, which exercises oversight functions equivalent to those of a board of directors or supervisory board, the information necessary for a review of the periodic governance arrangements provided for in section 55 » ;
16° Article L. 511-60 is supplemented by a paragraph as follows:
"In the case of a branch of credit establishment referred to in Article L. 511-10, the persons referred to in the second paragraph of Article L. 511-13 shall transmit to the organ of the credit institution that is dependent on that branch that has supervisory functions equivalent to those of a board of directors or supervisory board, information that allows the branch to be regularly approved and reviewed » ;
17° Article L. 511-62 is supplemented by a paragraph as follows:
"In the case of a branch of credit establishment referred to in Article L. 511-10, the persons referred to in the second paragraph of Article L. 511-13 shall transmit to the body of the credit institution that is dependent on that branch that exercises oversight functions equivalent to those of a board of directors or supervisory board, information on the whole of significant risks, and on the policies of » ;
18° Article L. 511-67 is supplemented by a paragraph as follows:
"In the case of a credit establishment branch referred to in I of Article L. 511-10, the persons referred to in the second paragraph of Article L. 511-13 shall implement monitoring mechanisms to ensure effective and prudent management of their branches, including separation of duties within the organization of that branch and prevention of conflicts of interest. » ;
19° Article L. 511-72 is supplemented by a paragraph as follows:
"In the case of a credit establishment branch referred to in Article L. 511-10, the persons referred to in the second paragraph of Article L. 511-13 shall transmit to the credit institution organ of which the branch is dependent, which performs supervisory functions equivalent to those of a board of directors or supervisory board, information that allows the branch to adopt and review regularly the applicable general principles » ;
20° Article L. 511-74 is supplemented by a paragraph as follows:
"In the branches of credit institutions referred to in Article L. 511-10, the implementation of the remuneration policy is subject, at least once a year, to a central and independent internal assessment to ensure compliance with the remuneration policy and procedures adopted by these branches. » ;
21° The second paragraph of Article L. 511-89 is replaced by two paragraphs as follows:
"The branches of credit institutions referred to in I of section L. 511-10, where they are of significant importance, are required to justify the existence of a risk committee and compensation committee, or a device to achieve the same purposes, competent for these branches.
"The criteria of significant importance that institutions are required to meet the obligations of this section are specified by order of the Minister responsible for the economy. » ;
22° Article L. 511-90 is amended as follows:
(a) After the first preambular paragraph, a sub-item reads as follows:
"In the case of a branch of credit establishment referred to in Article L. 511-10, the committees and devices provided for in the second paragraph of Article L. 511-89 are composed of persons independent of those who effectively direct the branch's activity within the meaning of the second paragraph of Article L. 511-13. This independence is guaranteed by the conditions of their appointment and remuneration. These persons are subject to professional secrecy under the conditions and penalties laid down in articles L. 511-33 and L. 571-4. » ;
(b) In the second paragraph, the words: "The members of these committees" are replaced by the words: "The members of the committees referred to in L. 511-89";
23° Article L. 511-93 is supplemented by a paragraph as follows:
"In the case of a credit establishment branch referred to in section L. 511-10, the risk committee or device referred to in section L. 511-89 shall communicate, to the credit institution's body that is dependent on that branch that has supervisory functions equivalent to that of a board of directors or supervisory board, the information necessary for the determination of the branch's strategy and The risk committee or device referred to in Article L. 511-89 controls the implementation of this strategy by the persons referred to in the second paragraph of Article L. 511-13 and by the person responsible for the risk management function. » ;
24° Article L. 511-94 is supplemented by a paragraph as follows:
"In the case of a credit establishment branch referred to in I of section L. 511-10, where the prices of the products and services referred to in Books II and III proposed to the customers do not correctly reflect the risks, the risk committee, or the device referred to in section L. 511-89, informs the credit institution's body of which the branch is responsible for performing supervisory functions equivalent to that of a board » ;
25° Article L. 511-102:
(a) The first paragraph is preceded by an I;
(b) It is added a II as follows:
“II. - In the case of a credit establishment branch referred to in I of section L. 511-10, the remuneration committee, or the device referred to in section L. 511-89, shall communicate to the organ of the credit facility that is dependent on that branch, which has supervisory functions equivalent to that of a board of directors or supervisory board, the necessary information relating to remuneration, in particular those related to that branch
"This committee or device conducts an annual review:
« 1° Principles of the branch's compensation policy;
« 2° From the compensation policy of the employees of the branch who manage collective investment organizations in securities, alternative investment funds under subsections 1, 2, 3, 5 and 6 of subsection 2, sub-sections 3, 4 and 5 of section 2 of chapter IV of title I of book II and categories of staff, including persons referred to in the second paragraph of article L. 511-13, the supervisors of risk,
"This committee or device directly controls the remuneration of the person responsible for the risk management function referred to in section L. 511-64 and, where applicable, the person responsible for compliance.
"This committee or device may be assisted by internal control or external experts. It regularly reports on its work to the credit institution's body that is dependent on the branch that performs supervisory functions equivalent to those of a board of directors or supervisory board.
"The persons referred to in the second paragraph of Article L. 511-13 shall prepare and transmit an annual report including information relating to the branch's compensation policy and practices to the credit institution's office of which the branch operates equivalent to that of the General Assembly. »
Book VI of the same code is amended as follows:
1° In 13 of Article L. 611-1, the words: "established in the territory of the French Republic by credit institutions having their head office in a State that is not a party to the European Economic Area Agreement" are replaced by the words: "credit institutions referred to in Article L. 511-10 I";
2° In the second paragraph of Article L. 613-31-1, the words: "at the branches of a credit institution having its seat outside the European Economic Area" are replaced by the words: "at the branches of a credit institution referred to in Article L. 511-10";
3° Section L. 613-31-3:
(a) At 1°, the words: "the branch of a credit institution with its head office outside the European Economic Area" are replaced by the words: "the branch of a credit institution referred to in I of Article L. 511-10";
(b) At 2°, the words: "credit institution approved in France or a branch in France of an establishment with its head office outside the European Economic Area" are replaced by the words: "credit institution approved in France, including a branch in France of a credit institution mentioned in the I of Article L. 511-10".
I. - Applicable in New Caledonia, French Polynesia and the Wallis and Futuna Islands L. 511-1, L. 511-8-1, L. 511-10, L. 511-13, L. 511-35, L. 511-39, L. 511-41, L. 511-58, L. 511-59, L. 511-60, L. 511-62, L. 511-67, L. 511-72, L. 511-74, L. 511-89, L. 511-90, L. 511-93, L. 511-94, L. 511-102 and L. 611-1 the monetary and financial code in their drafting from this order;
II. - The same code is changed:
1° Section L. 725-1 is supplemented by the following paragraphs:
"For the purposes of section L. 511-10:
“(a) In the first paragraph, the words: “not a member of the European Union or a party to the agreement on the European Economic Area” are replaced by the words: “other than France” ;
“(b) The second paragraph is replaced by the following:
"The credit establishment accreditation is issued by the Authority for prudential and resolution control."
2° Article L. 745-1-1:
(a) In the first paragraph, the words: "Articles L. 511-8-1," are replaced by the words: "From the I of Article L. 511-8-1, Articles" and after the words: "from the last paragraph" are inserted the words: "from the I";
(b) Before the tenth preambular paragraph, four sub-items are inserted:
"For the purposes of section L. 511-10:
“(a) In the first paragraph, the words: “not a member of the European Union or a party to the agreement on the European Economic Area” are replaced by the words: “other than France” ;
“(b) The second paragraph is replaced by the following:
"The credit establishment accreditation is issued by the Authority for prudential and resolution control."
(c) In the thirteenth paragraph, the words “of Article L. 511-52,” are replaced by the words: “articles L. 511-35, L. 511-39 and L. 511-52”;
3° Article L. 755-1-1:
(a) In the first paragraph, the words: "Articles L. 511-8-1," are replaced by the words: "From the I of Article L. 511-8-1, Articles" and after the words: "from the last paragraph" are added the words: "from the I";
(b) Before the thirteenth preambular paragraph, four sub-items are added:
"For the purposes of section L. 511-10:
“(a) In the first paragraph, the words: “not a member of the European Union or a party to the agreement on the European Economic Area” are replaced by the words: “other than France” ;
“(b) The second paragraph is replaced by the following:
"The credit establishment accreditation is issued by the Authority for prudential and resolution control."
4° Article L. 765-1-1:
(a) In the first paragraph, the words: "Articles L. 511-8-1," are replaced by the words: "From the I of Article L. 511-8-1, Articles" and after the words: "from the last paragraph" are added the words: "from the I";
(b) Before the tenth paragraph, four sub-items are added:
"For the purposes of section L. 511-10:
“(a) In the first paragraph, the words: “not a member of the European Union or a party to the agreement on the European Economic Area” are replaced by the words: “other than France” ;
“(b) The second paragraph is replaced by the following:
"The credit establishment accreditation is issued by the Authority for prudential and resolution control."
5° Section L. 772-1 is supplemented by the following paragraphs:
"For the purposes of section L. 511-10:
“(a) In the first paragraph, the words: “not a member of the European Union or a party to the agreement on the European Economic Area” are replaced by the words: “other than France” ;
“(b) The second paragraph is replaced by the following:
"The credit establishment approval is issued by the Authority for prudential and resolution control."
Credit establishment branches with their head office in a State that is neither a member of the European Union nor a party to the Agreement on the European Economic Area, which have been approved before the date of publication of this Order, shall have a period of eighteen months from that date to produce the commitment of the credit institution to which they depend on it as provided for in this Order. last paragraph of Article L. 511-10 of the Monetary and Financial Code in its writing from this order.
The Prime Minister, the Minister of Finance and Public Accounts and the Minister of Overseas are responsible, each with respect to the application of this Order, which will be published in the Official Journal of the French Republic.
Done on May 21, 2015.
François Hollande
By the President of the Republic:
The Prime Minister,
Manuel Valls
Minister of Finance and Public Accounts,
Michel Sapin
Minister of Overseas,
George Pau-Langevin
