10.6.2009 Official Journal of the European Union L 146/37 DIRECTIVE 2009/44/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 May 2009 amending Directive 98/26/EC on settlement finality in payment and securities settlement systems and Directive 2002/47EC on financial collateral arrangements as regards linked systems and credit claims (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- PEAN UNION, Having regard to the Treaty establishing the European Commu- nity, and in particular Article 95 thereof, Having regard to the proposal from the Commission, Parliament and of the Council of 21 April 2004 on mar- kets in financial instruments (%), and the European Code of conduct for clearing and settlement. In order to adapt to those developments, the concept of an interoperable sys- tem and the responsibility of system operators should be clarified. (4)  Directive 2002/47[EC of the European Parliament and of the Council (%) created a uniform Community legal frame- Having regard to the opinion of the European Central Bank (1), work for.the cross-border use of fmagcwl collatera.l .and thus abolished most of the formal requirements tradition- ally imposed on collateral arrangements. Having regard to the opinion of the European Economic and Social Committee (2), (5)  The European Central Bank decided to introduce credit Acting in accordance with the procedure laid down in Article 251 claims o cligible type of collateral for Eurosystem credit R operations from 1 January 2007. In order to maximise the of the Treaty (), economic impact of the use of credit claims, the European Central Bank recommended an extension of the scope of Directive 200247 [EC. The Commission Evaluation Report Whereas: of 20 December 2006 on the Financial Collateral Arrange- ments Directive (2002/47/EC) addressed this issue and subscribed to the opinion of the European Central Bank. (1)  Directive 98/26/EC of the European Parliament and of the The use of credit claims will mcrease.the. poql of available Council (4) established a regime under which the finality of collateral. Moreovep.further harmonisation in the area of transfer orders and netting, as well as the enforceability of payment and securities s.ettle.ment systems v&.lo.uld.fur.ther collateral security, are ensured in respect of both domestic Fonmbute to a level playing field among cred.xt Institutions and foreign participants in the payment and securities in all Member States. If the use of credit claims as collat- settlement systems. eral were to be facilitated further, consumers and debtors would also benefit as the use of credit claims as collateral could ultimately lead to more intense competition and bet- ] o ) ter availability of credit. (2)  The Evaluation Report from the Commission of 7 April 2006 on the Settlement Finality Directive 98/26/EC con- cluded that Directive 98/26EC is functioning well in gen- eral. The report highlighted that some important changes o ) ) o may be underway in the area of payment and securities (6) In order tolfaahtate t}.IC. use of cre.d1.t clal.ms, it is impor- settlement systems and also concluded that there is some tant. t.0 abohsh or pr9h1b1F any admu}lStrathf: rules, such as need to clarify and simplify Directive 98/26/EC. notlﬁc.atxon and registration obl}gatlons., that Wf)u!d mal?e the assignments of credit claims impracticable. Similarly, in order not to compromise the position of collateral takers, ] ) ) ] debtors should be able validly to waive their set-off rights (3)  The main change, however, is the increasing number of vis-a-vis creditors. The same rationale should also apply to linkages between systems, which, at the time when Direc- tive 98/26/EC was drafted, used to operate almost exclu- sively on a national and independent basis. This change is one of the results of Directive 2004/39/EC of the European (1) O] C 216, 23.8.2008, p. 1. (%) Opinion of 3 December 2008 (not yet published in the Official Jour- the need to introduce the possibility for the debtor to waive bank secrecy rules, because otherwise the collateral taker may have insufficient information with which properly to assess the value of the underlying credit claims. Those pro- visions should be without prejudice to Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers (7). nal). (%) Opinion of the European Parliament of 18 December 2008 (not yet - published in the Official Journal) and Council Decision of 27 April (*) OJ L 145, 30.4.2004, p. 1. 2009. (6) OJ L 168, 27.6.2002, p. 43. ( OJL 166, 11.6.1998, p. 45. () OJ L 133, 22.5.2008, p. 66.