opinion parliamentary committee draft, 21 November 2016
On the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 806/2014 in order to establish a European Deposit Insurance Scheme
Document AFCO-PA-592152 · (COM(2015)0586 – C80371/2015 – 2015/0270(COD))
Committee on Constitutional Affairs · Rapporteur: Danuta Maria Hübner
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The Committee on Constitutional Affairs gives its draft opinion on the proposed regulation amending Regulation (EU) 806/2014 to set up a European Deposit Insurance Scheme.
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Committee on Constitutional Affairs
2015/0270(COD)
21.11.2016
DRAFT OPINION
Amendments 152 paragraphs
The Committee on Constitutional Affairs calls on the Committee on Economic and Monetary Affairs, as the committee responsible, to take into account the following amendments:
Amendment 1
Proposal for a regulation
Recital 14
| Text proposed by the Commission | Amendment |
|---|---|
| (14) In order to ensure parallelism with the SSM and the SRM, EDIS should apply to participating Member States. Banks established in the Member States not participating in the SSM should not be subject to EDIS. As long as supervision in a Member State remains outside the SSM, that Member State should remain responsible for ensuring the protection of depositors against the consequences of the insolvency of a credit institution. As Member States join the SSM, they should also automatically become subject to the EDIS. Ultimately, the EDIS could potentially extend to the entire internal market. | (14) In order to ensure parallelism with the SSM and the SRM, EDIS should apply to participating Member States. Banks established in the Member States not participating in the SSM should not be subject to EDIS. As long as supervision in a Member State remains outside the SSM, that Member State should remain responsible for ensuring the protection of depositors against the consequences of the insolvency of a credit institution. As Member States join the SSM, they are automatically required to join the third pillar of the Banking Union. However, in order to ensure a smooth transition and avoid any undue burden on the financing arrangements underpinning EDIS, it is appropriate to establish transitional arrangements concerning the financial participation of countries joining the EDIS after the entry into force of this Regulation. Such arrangements should be designed taking into account the situation in the Member State concerned, having due regard to business cycle and recent payout events or resolution financing actions, as well as the stage of EDIS at which it joins. Ultimately, the EDIS could potentially extend to the entire internal market. |
Or. en
Justification
It is important to consider the stage at which countries would join in order to consider transitional measures to be set in place concerning their financial participation in EDIS with due regard to the conditions such as business cycle as well as recent pay-out events or resolution financing actions.
Amendment 2
Proposal for a regulation
Article 1 – point 5
Regulation No 806/2014
Article 4 – paragraph 2 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2a. In the event that close cooperation with the ECB of a Member State whose currency is not the euro is established in accordance with Article 7 of Regulation (EU) No 1024/2013, the Board shall decide within three months of the date of adoption of the decision to establish close cooperation, in agreement with that Member State, on the detailed arrangements for, and any conditions applicable to, the transfer to the DIF of contributions that were paid into the DGSs officially recognised in the Member State concerned by the credit institutions affiliated to those DGSs and that were accumulated by those DGSs from the moment of entry into force of this Regulation, in accordance with the funding path laid down in Article 41j, or of a predefined part thereof; | |
| In establishing the detailed arrangements for the calculation of the amounts to be transferred and the calendar for their transfer, due consideration shall be given to ensuring a smooth transition of DGSs recognised in the Member State concerned to the EDIS, taking into account also the stage of EDIS at which the Member State joins the system, as well as circumstances such its current business cycle as well as recent payout events or resolution financing actions. |
Or. en
Justification
In case a close cooperation is established between the ECB and a Member State, the latter will become subject to all pillars of Banking Union, including EDIS. In order to ensure a smooth transition of DGS to the EDIS, a gradual approach should be established, taking into account the economic characteristics of the country, of its system of DGSs and the stage of EDIS at which close cooperation is established. The provisions of this article broadly mirror these applying in case of termination of the close cooperation.
Amendment 3
Proposal for a regulation
Article 1 – point 9 a (new)
Regulation No 806/2014
Article 34 – paragraph 5
| Present text | Amendment |
|---|---|
| (9a) in Article 34, paragraph 5 is replaced by the following: | |
| ‘5. The Board, the ECB, the national competent authorities and the national resolution authorities may draw up memoranda of understanding with a procedure concerning the exchange of information. The exchange of information between the Board, the ECB, the national competent authorities and the national resolution authorities shall not be deemed to infringe the requirements of professional secrecy.’ | ‘5. The Board, the ECB, the national competent authorities, the national resolution authorities and the national designated authorities under Directive 2014/59/EU may draw up memoranda of understanding with a procedure concerning the exchange of information. The exchange of information between the Board, the ECB, the national competent authorities, the national resolution authorities and the national designated authorities under Directive 2014/59/EU shall not be deemed to infringe the requirements of professional secrecy.’ |
Or. en
Justification
This clause is intended to amend Article 34 of Regulation (EU) No 806/2014 in order to include the national designated authorities under Directive 2014/49/EU among the authorities expressly authorised to draw up memoranda of understanding concerning the exchange of information to ensure that any such exchange of information has a proper legal basis and cannot be considered an infringement of professional secrecy requirements.
Amendment 4
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – title
| Text proposed by the Commission | Amendment |
|---|---|
| Disqualification from coverage by EDIS | Procedure for disqualification from coverage by EDIS |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 5
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| 1. A participating DGS shall not be covered by EDIS in the reinsurance, co-insurance or full insurance phase, if the Commission, acting on its own initiative or upon a request of the Board or a participating Member State, decides and informs the Board accordingly that at least one of the following disqualifying conditions is met: (a) the participating DGS has failed to comply with the obligations under this Regulation or Articles 4, 6, 7 or 10 of Directive 2014/49/EU; (b) the participating DGS, the relevant administrative authority within the meaning of Article 3 of Directive 2014/49/EU, or any other relevant authority of the respective Member State have, in relation to a particular request for coverage by EDIS, acted in a way that runs counter to the principle of sincere cooperation as laid down in Article 4(3) of the Treaty on European Union. | 1. A participating DGS shall not be covered by EDIS in the reinsurance, co-insurance or full insurance phase, if the Commission, acting on its own initiative or upon a request of the Board or a participating Member State, triggers and concludes a disqualification procedure. Such a procedure may be triggered if the Commission considers that either of the following cases apply: (a) the participating DGS has failed to comply with its obligations under this Regulation or under Articles 4, 6, 7 or 10 of Directive 2014/49/EU; (b) the participating DGS, the relevant administrative authority within the meaning of Article 3 of Directive 2014/49/EU, or any other relevant authority of the respective Member State have, in relation to a particular request for coverage by EDIS, acted in a way that runs counter to the principle of sincere cooperation as laid down in Article 4(3) of the Treaty on European Union. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 6
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. When funding has already been obtained by a participating DGS and at least one of the disqualifying conditions referred to in paragraph 1 is met in relation to a payout event or a use in resolution, the Commission may order full or partial repayment of the funding to the DIF. | 2. If the Commission considers that at least one of the disqualifying conditions is met, it shall deliver a letter of formal notice to the DGS and to the designated authority of the participating Member State within the meaning of point 18 of Article 2 of Directive 2014/49/EU, as well as to the national competent authority or authorities. It shall also inform the Member State or Member States concerned. That letter shall set out the Commission’s reasons for considering that a disqualification procedure, as referred to in paragraph1, may be triggered. Within two months of receipt of such formal notice, the designated authority, in close cooperation with the DGS concerned and the national competent authority, shall submit its observations to the Commission. It shall take prompt corrective action to address the shortcomings identified and ensure that the grounds for triggering a disqualification procedure as referred to in paragraph 1 no longer apply. It shall set out in detail in its reply the steps that it intends to take in order to attain that objective. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 7
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2a. Where the Commission, having assessed the reply and consulted with the Board, considers that it has not received sufficient guarantees to address the concerns stated in the letter of formal notice, it may apply financial penalties in accordance with paragraph 7. It may also send the DGS, the designated authority of the participating Member State and the national competent authority a reasoned opinion requiring them to ensure, within a reasonable time-frame, that the grounds for triggering a disqualification procedure as referred to in paragraph 1 no longer apply. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 8
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2 b (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2b. Financial penalties as referred to in paragraph 3 shall not be imposed when the failure to comply with the obligations results from the sole action of the relevant administrative authority or of any other relevant authority of the respective Member States as referred to in paragraph 1(b) |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 9
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2 c (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2c. If, within the time limit set in the reasoned opinion, the DGS or the designated national authority remains non-compliant, the Commission may conclude the disqualification procedure by taking the final decision on disqualification from coverage by EDIS. It shall immediately inform the Board, the Member State or Member States concerned and the European Parliament of that decision. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 10
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2 d (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2d. The Commission may, at any stage, formally decide to end the disqualification procedure if it concludes that the DGS or the designated national authority has satisfactorily corrected the non-compliance and no longer meets any of the conditions for disqualification. It shall inform the Board, the Member State or Member States concerned and the European Parliament of that decision. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 11
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2 e (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2e. After the Commission has concluded the disqualification procedure and when funding has already been obtained by a participating DGS and at least one of the disqualifying conditions referred to in paragraph 2 is met in relation to a payout event or a use in resolution, the Commission may order full or partial repayment of the funding to the DIF. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 12
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41i – paragraph 2 f (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2f. The Commission, after consulting EBA, shall adopt delegated acts in accordance with Article 93 to supplement this Regulation by laying down detailed rules for methodology, procedure and conditions in respect of: | |
| (a) the application of financial penalties referred in paragraph 4, in conformity with the relevant provisions of the Treaty on the Functioning of the European Union; and | |
| (b) the reimbursement of the resources collected from credit institutions affiliated to the disqualified DGS to that DGS upon the conclusion of the disqualification procedure. |
Or. en
Justification
In order to ensure legal certainty, given the magnitude of impact of disqualification on the banking sector in the MS, the procedure for disqualification needs to be set in more detail. This includes assessment of the infringement by the Commission and possibility for DGS and national authorities to take corrective action. Full disqualification should only be considered where proportionate to the infringement and imposed after a failure to comply with interim enforcement actions within pre-set deadlines. For lesser infringements, a financial penalty might be imposed.
Amendment 13
Proposal for a regulation
Article 1 – point 10
Regulation No 806/2014
Article 41j – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| (2) The Commission, after consulting the Board, may approve a derogation from the requirements set out in paragraph 1 for duly justified reasons linked to the business cycle in the respective Member State, the impact pro-cyclical contributions may have, or to a payout event which occurred at national level. Those derogations must be temporary and may be subject to the fulfilment of certain conditions. | (2) The Commission, after consulting the Board may approve a derogation from the requirements set out in paragraph 1 for duly justified reasons linked to the business cycle in the respective Member State, the impact pro-cyclical contributions may have, or to a payout event or resolution financing action which occurred at national level. It should inform the European Parliament about its intention to grant a derogation and, where relevant, provide it with the opinion of the Board. Those derogations must be temporary and may be subject to the fulfilment of certain conditions. They should be designed taking into account the economic and financial situation of the Member State, the financial strength of its system of DGSs and the stage of EDIS at which it joins. |
Or. en
Justification
It is important to consider the stage at which countries would join in order to consider transitional measures to be set in place concerning their financial participation in EDIS, including when a derogation from the financing path is granted with due regard to the conditions such as business cycle as well as recent pay-out events or resolution financing actions. EP should be informed in case such derogation is to be granted and have access to the opinion of the Board where the latter delivered one.
Amendment 14
Proposal for a regulation
Article 1 – point 21
Regulation No 806/2014
Article 51 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. The Board, in its joint plenary session, shall hold at least two ordinary meetings per year. In addition, it shall meet on the initiative of the Chair, or at the request of at least one third of its members. The representative of the Commission may request the Chair to convene a meeting of the Board in its joint plenary or respectively SRM or EDIS plenary session. The Chair shall provide reasons in writing if he or she does not convene a meeting in due time. | 2. The Board, in its joint plenary session, shall hold at least two ordinary meetings per year. In addition, it shall meet on the initiative of the Chair, or at the request of at least one third of its members. The representative of the Commission or the representative of the ECB may request the Chair to convene a meeting of the Board in its joint plenary or respectively SRM or EDIS plenary session. The Chair shall provide reasons in writing if he or she does not convene a meeting in due time. |
Or. en
Justification
Given the expertise of the ECB and the presence of a representative of the ECB as permanent observer to the executive sessions and plenary sessions of the Board alongside a representative of the Commission and with the same rights of participation in the debates and access to documents as this representative, it seems justified to provide the representative of the ECB with a right to request the convention of extraordinary sessions of the Board which would mirror the right of the representative of the Commission.
Amendment 15
Proposal for a regulation
Article 1 – point 39 – point a
Regulation No 806/2014
Article 93 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. The delegation of power referred to in Article 19(8), Article 65(5), Article 69(5), Article 71(3), Article 74b (5), Article 74c (5), Article 74d(4) and Article 75(4) shall be conferred for an indeterminate period of time from the relevant dates referred to in Article 99; | 2. The delegation of power referred to in Article 19(8), Article 41i(2f), Article 65(5), Article 69(5), Article 71(3), Article 74b (5), Article 74c (5), Article 74d(4) and Article 75(4) shall be conferred for an indeterminate period of time from the relevant dates referred to in Article 99; |
Or. en
Justification
Amendment linked to provisions of Amendment 4, paragraph 8.
Amendment 16
Proposal for a regulation
Article 1 – point 39 – point b
Regulation No 806/2014
Article 93
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The delegation of power referred to in Article 19(8), Article 65(5), Article 69(5), Article 71(3), Article 74b (5), Article 74c (5), Article 74d(4) and Article 75(4) may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force; | 4. The delegation of power referred to in Article 19(8), Article 41i(2f), Article 65(5), Article 69(5), Article 71(3), Article 74b (5), Article 74c (5), Article 74d(4) and Article 75(4) may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force; |
Or. en
Justification
Amendment linked to provisions of Amendment 4, paragraph 8.
Amendment 17
Proposal for a regulation
Article 1 – point 39 – point c
Regulation No 806/2014
Article 93 – paragraph 6
| Text proposed by the Commission | Amendment |
|---|---|
| 6. A delegated act adopted pursuant to Article 19(8), Article 65(5), Article 69(5), Article 71(3), Article 74b (5), Article 74c (5), Article 74d(4) and Article 75(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or the Council; | 6. A delegated act adopted pursuant to Article 19(8), Article 41i(2f), Article 65(5), Article 69(5), Article 71(3), Article 74b (5), Article 74c (5), Article 74d(4) and Article 75(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or the Council; |
Or. en
Justification
Amendment linked to provisions of Amendment 4, paragraph 8