Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

The Second Banking Directive and the Case-law of the Court of Justice*

W. VAN GERVEN


I. Introduction

The Second Council Directive (89/646/EEC) of 15 December 1989 on the co-ordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (hereinafter referred to as 'the Second Directive')2 is, in many respects, a remarkable Community measure.3

The first remarkable, and even exemplary aspect of the Directive is the period of time within which it was adopted. In the White Paper it was envisaged that the Commission's proposal would be submitted in 1987 and adopted by the Council in 1989.4 In fact, the Commission's proposal was formally submitted to the Council in March 1988,5 and the Council approved the Directive in December 1989. This timetable shows that the Community institutions concerned (the Commission, European Parliament, Economic and Social Committee and Council) were fully conscious of the importance of the proposed reform. More generally, the procedure followed shows that these institutions are able to work quickly and in close collaboration where, as in this case, there is a real will to succeed.

The Second Directive is distinguished above all, however, by the strategy which it employs to achieve the aims in view. These are in line with the established policy of the Commission, which is to facilitate the creation of a common market for credit institutions by providing for centralized prudential supervision by the competent supervisory authorities in the home Member State. The purpose, as already defined in the First Directive,6 is to achieve a system whereby credit institutions authorized in one Member State are exempt from any authorization procedure when setting up branches in other Member States. The introduction of a single licence

____________________
*
© W. Van Gerven, 1990, Advocate General at the Court of Justice of the European Communities. This article is a talk given on 22 June 1990 to the General Meeting of the European Community Mortgage Federation. The text was prepared in collaboration with Luc Roeges, Legal Secretary at the Court of Justice.
2
OJ 1989 L 386/1.
3
For a general commentary on the Second Directive, see P. Clarotti, Un pas décisif vers le marché commun des banques, RMC ( 1989) 453et seq.
4
Commission White Paper submitted to the European Council, June 1985, 24 of the Annex.
5
OJ 1988 C 84/1.
6
First Council Directive 77/780/EEC of 12 Dec 1977 on the co-ordination of laws, regulations, and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322/30).

-57-

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