Freedom to provide credit servicing activities in a host Member State
1. Member States shall ensure that a credit servicer having obtained an authorisation in accordance with Article 4(1) in a home Member State has the right to provide in the Union those services that are covered by that authorisation, without prejudice to any restrictions or requirements established in the national law of the host Member State in accordance with this Directive, including, where applicable, a prohibition on receiving and holding funds from borrowers, that are not related to other authorisation requirements of credit servicers, or to those established for the renegotiation of the terms and conditions related to a creditor’s rights under a credit agreement or of the credit agreement itself.
2. Member States shall ensure that where a credit servicer having obtained an authorisation in accordance with Article 4(1) in a home Member State intends to provide services in a host Member State, the credit servicer submits to the competent authority of the home Member State the following information:
(a)
the host Member State in which the credit servicer intends to provide services and, where that information is already known to the credit servicer, the Member State where the credit was granted, when different from the host and the home Member States;
(b)
where applicable, the address of the credit servicer’s branch established in the host Member State;
(c)
where applicable, the identity and address of the credit service provider in the host Member State;
(d)
the identity of the persons responsible for managing the provision of credit servicing activities in the host Member State;
(e)
where applicable, details of the measures taken to adapt the internal procedures, governance arrangements and internal control mechanisms of the credit servicer in order to ensure compliance with the laws applicable to a creditor’s rights under a credit agreement or to the credit agreement itself;
(f)
a description of the procedure established in order to comply with the anti-money laundering and counter terrorist financing rules, whereby the national law of the host Member State transposing Directive (EU) 2015/849 designates credit servicers as obliged entities for the purpose of preventing and combating money laundering and terrorist financing;
(g)
that the credit servicer has appropriate means to communicate in the language of the host Member State or in the language of the credit agreement;
(h)
whether or not the credit servicer is authorised in its home Member State to receive and hold funds from borrowers.
3. The competent authorities of the home Member State shall, within 45 days of receipt of all information referred to in paragraph 2, communicate that information to the competent authorities of the host Member State, which shall acknowledge receipt thereof without delay. The competent authorities of the home Member State shall thereafter inform the credit servicer of the date on which the information was communicated to the competent authorities of the host Member State and the date on which those competent authorities acknowledge receipt of the information. The competent authorities of the home Member State shall also communicate all information referred to in paragraph 2 to the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States.
4. Member States shall ensure that a credit servicer has the right of appeal before a tribunal where the competent authorities of the home Member State fail to communicate the information referred to in paragraph 2.
5. Member States shall ensure that the credit servicer is able to start providing services in the host Member State from the earlier of the following:
(a)
receipt of the communication from the competent authorities of the host Member State acknowledging receipt of the communication referred to in paragraph 3;
(b)
in the absence of any receipt of the communication referred to in point (a) of this paragraph, after the expiry of 2 months from the date of submission of all information referred to in paragraph 2 to the competent authorities of the host Member State.
6. Member States shall ensure that a credit servicer informs the competent authorities of the home Member State of any subsequent change to the information that is required to be communicated in accordance with paragraph 2. In such cases, Member States shall ensure compliance with the procedure set out in paragraphs 3, 4 and 5.
7. Member States shall ensure that the competent authorities of the host Member State record in the list or register referred to in Article 9 the credit servicers which are authorised to provide credit servicing activities in their territory and the details of the home Member State.
Supervision of credit servicers which provide cross-border services
1. Member States shall ensure that the competent authorities of the home Member State review and evaluate the ongoing compliance, by a credit servicer which performs credit servicing activities in a host Member State, with the requirements of this Directive.
2. Member States shall ensure that the competent authorities of the home Member State are empowered to supervise, investigate and impose administrative penalties and remedial measures on credit servicers in respect of the requirements of this Directive when performing their credit servicing activities in a host Member State.
3. Member States shall ensure that the competent authorities of the home Member State communicate the measures taken in respect of the credit servicer to the competent authorities of the host Member State and, where appropriate, of the Member State where the credit was granted, when different from the host and the home Member States.
4. Member States shall ensure that where a credit servicer performs credit servicing activities in a host Member State, the competent authorities of the home Member State and the competent authorities of the host Member State and, where appropriate, of the Member State where the credit was granted, when different from the host and the home Member States, shall cooperate closely in the performance of their functions and duties, in particular when carrying out checks, investigations and on-site inspections.
5. Member States shall ensure that the competent authorities of the home Member State, in the exercise of their functions and duties provided for in this Directive, ask the competent authorities of the host Member State for their assistance in carrying out an on-site inspection of a branch set up, or of a credit service provider appointed, in a host Member State. The on-site inspection of a branch or of a credit service provider shall be conducted in accordance with the law of the Member State where the inspection is carried out.
6. Member States shall further ensure that the competent authorities of the host Member State are entitled to decide on the most appropriate measures to be taken in each individual case in order to meet the request of assistance by the competent authorities of the home Member State.
7. Where the competent authorities of the host Member State decide to conduct on-site inspections on behalf of the competent authorities of the home Member State, they shall inform the competent authorities of the home Member State of the results thereof without delay.
8. On their own initiative, the competent authorities of the host Member State may conduct checks, inspections and investigations in respect of credit servicing activities provided within their territory by a credit servicer authorised in a home Member State. The competent authorities of the host Member State shall provide the results of those checks, inspections and investigations to the competent authorities of the home Member State without delay.
9. Member States shall ensure that where the competent authorities of the host Member State have evidence that a credit servicer performing credit servicing activities within its territory, as provided for in Article 13, infringes the applicable rules, including obligations arising from the national provisions transposing this Directive, they transmit that evidence to the competent authorities of the home Member State and request that they take appropriate measures, without prejudice to the supervisory, investigatory and sanctioning powers of the competent authorities of the host Member State regarding the credit servicer under national law, namely those applicable to the credit or the credit agreement.
10. Member States shall ensure that where the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States, have evidence that a credit servicer infringes the obligations provided for in this Directive, or in the national rules applicable to the credit or the credit agreement, they transmit that evidence to the competent authorities of the home Member State and request that they take appropriate measures, without prejudice to the supervisory, investigatory and sanctioning powers of the competent authorities of the Member State where the credit was granted, when different from the host and the home Member States.
11. Member States shall ensure that the competent authorities of the home Member State communicate details of any administrative or other procedure initiated in respect of the evidence provided by the host Member State, or of any administrative penalties and remedial measures taken against the credit servicer, or of a reasoned decision why no measures were taken, to the competent authorities of the host Member State that referred the evidence no later than 2 months from the date of the request referred to in paragraph 9. Where a procedure has been initiated, the competent authorities of the home Member State shall regularly inform the competent authorities of the host Member State about its status.
12. Where a credit servicer continues to infringe the applicable rules, including its obligations under this Directive, and after the competent authorities of the host Member State have informed the home Member State thereof, Member States shall ensure that the competent authorities of the host Member State are entitled to impose appropriate administrative penalties and remedial measures in order to ensure compliance with this Directive when either of the following apply:
(a)
no adequate and effective steps were taken by the credit servicer to rectify the infringement in a reasonable time; or
(b)
in an urgent case, where immediate action is necessary in order to address a serious threat to the collective interests of the borrowers.
The competent authorities of the host Member State may impose the administrative penalties and remedial measures referred to in the first subparagraph notwithstanding any administrative penalties and remedial measures already imposed by the competent authorities of the home Member State.
In addition, the competent authorities of the host Member State may prohibit further activities of a credit servicer that infringes the applicable rules, including its obligations under this Directive, until such time as an adequate decision is taken by the competent authority of the home Member State or the credit servicer takes steps to remedy the infringement.
