Distance financial services. Annual accounts, competent court.

Annual accounts, competent court.

Distance financial services.

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In the publication 2019-20,01 we will carry out a study with interest for distance financial services, supply which is possible today in the European market and not. We will analyze some management aspects and the technique regulatory evolution starting from the 70s, also considering the evolution of the regulation on the annual accounts of companies and jurisdiction in the field of distance services; in 1973 the Council of the European Community with the intention to abolish the restrictions related to the freedom of establishment of companies in the field of direct insurance other than life insurance, issues Directive 73/240/EEC currently in force.

1 - BRIEF HISTORY.
The Directive implements the abolition of restrictions on the opening of agencies or branches and subordinates it, with regard to direct insurance companies, to the coordination of access and operating conditions: the host Member State, for access to activities in the case of direct insurance other than life insurance, it requires proof of honorability from its own citizens, as well as evidence that the same have not in the past been declared bankrupt. Only one such test shall be recognized as sufficient proof, for nationals of other Member States: the presentation of an extract from the criminal record or, failing that, of an equivalent document issued by the competent judicial or administrative authority of the country concerned. origin or provenance, from which it is found that these requirements are met. If no certificates of bankruptcy or good repute are issued in the country of origin or provenance, the above document may be returned. be replaced by a declaration under oath or, in states where this is not provided, by a solemn declaration made by the interested party to a competent judicial or administrative authority, or if necessary to a notary of the country of origin or provenance , which will issue a statement of authenticity of this oath or of such a solemn declaration. The declaration of lack of bankruptcy can also be made to a qualified professional body of that country. The documents issued must, at the time of submission, be dated no more than three months.

In the year 1979 the European Commission issued the directive number 267/EEC, considering that the extension to the mode of distance supply of financial services will allow a greater simplicity of operational diffusion for companies in the internal market in the coming decades, (European Market), with the aim of facilitating this operational expansion and making controls easier by public authorities, common standards are defined that EU member states must adopt for the aforementioned objective. The purpose of Directive 79/267/EEC is to eliminate certain differences in control between the laws of the various countries of the European Community, with reference to life insurance (first financial products provided at a distance); aimed at guaranteeing the benefits of the insured introduces common rules on the financial guarantees that the exhibitors must possess. It defines the technical and mathematical reserves that a life insurance company must possess and must be sufficient for the contractual commitments, furthermore it defines the supplementary reserve called the solvency margin represented by the free assets. In order to ensure that the obligations imposed are determined on the basis of objective criteria, such as to enable companies with the same entity to compete on an equal footing, this margin should be commensurate with the undertaking's overall commitments and the nature and severity of the risks of the various activities falling within the scope of this Directive; that this margin must therefore be different depending on whether it involves investment risks, mortality risks or only management risks.

To pursue the above objectives, the European Commission sets standards aimed at harmonizing the accounts that companies will have to make public with the first directive of the year 1978 number 660/EEC. The coordination of national provisions concerning the structure and content of the annual accounts and the management report, the valuation methods, as well as the publicity of these documents, as regards in particular the public limited company and the limited liability company, is of importance particular to protect the interests of both members and third parties; with Directive 78/660/EEC the European Commission reveals the need to establish minimum equivalent legal conditions regarding the extension of financial information that must be provided to the public by competing companies. The requirements, in a Community market, to have publicity of certain acts for companies in order to facilitate controls, to protect consumers, was enshrined for the first time in the year 1968 by Directive 68/151/EEC (in anticipation of subsequent free stabilization of companies in the European Community market) with particular reference to Article 2, paragraph 1 (f): Member States shall take the necessary measures to ensure that the obligation of advertising for companies is at least following: the balance sheet and profit and loss account for each financial year. The document containing the financial statements must indicate the particulars of persons who, pursuant to the law, are required to certify the financial statements. However, for companies with limited liability under German, Belgian, French, Italian and Luxembourg law, listed in Article 1, as well as for closed anonymous companies of the Netherlands legal system, the mandatory application of this provision is deferred until the date of implementation of a directive on the coordination of the content of financial statements and profit and loss accounts and exempting from the obligation to publish, in whole or in part, these documents for companies of this type with a budgetary amount lower than the amount that will be set in the directive itself. The Council will adopt this directive in the two years following the adoption of this Directive.
The objective is to require that the annual accounts provide a true and fair view of the balance sheet, financial situation and economic performance of the company. For the purpose, it is necessary to provide binding schedules for the preparation of the balance sheet and the profit and loss account and establish the minimum content of the attachment and the management report; the directive states that it must also be possible to grant certain exemptions to certain companies in view of their scarce economic and social importance; establishes that the various evaluation methods should be coordinated so as to ensure the comparability and equivalence of the information contained in the annual accounts and that the annual accounts of all companies must be advertised in accordance with Directive 68/151/EEC, with the possibility of granting certain exemptions to small and medium-sized companies. It also stipulates that the annual accounts must be checked by qualified persons, whose minimum qualifications will be the subject of further coordination, and that only small companies can be exempt from this control obligation; if a company is part of a group, it is necessary that the group's accounts be published that give a true picture of the activities of the group as a whole.

Directive 78/660/EEC laying down rules for harmonizing the accounts, pursuant to the publicity obligation set out in Directive 68/151/EEC, in paragraph 1 of Article 1 indicates the different types of companies for each EU Member State for which it must be applied. Paragraph 2 of Article 1 states that until further coordination, Member States may not apply this Directive to banks and other financial institutions, as well as to insurance companies. Article 2 defines the general provisions set out below: 1) The annual accounts include the balance sheet, the profit and loss account and the annex. These documents form an inseparable whole. 2) The annual accounts must be drawn up clearly and comply with this Directive. 3) The annual accounts must give a true picture of the financial situation, the financial situation as well as the economic result of the company. 4) When the application of this Directive is not sufficient to provide the true framework referred to in paragraph 3, additional information must be provided. 5) If, in exceptional cases, the application of a provision of this Directive conflicts with the requirement set out in paragraph 3, it is appropriate to derogate from the provision in question in order to provide the true framework referred to in paragraph 3. This derogation must be mentioned in the annex and duly motivated with indication of its influence on the financial situation, on the financial situation as well as on the economic result. Member States may specify the exceptional cases and set the corresponding derogating regime. 6) Member States may authorize or require that other information be disclosed in the annual accounts in addition to those disclosure required by this Directive.

Subsequent articles of the directive define a standardized budget scheme that companies operating in the European market must respect when drawing up the financial statements. The directive is certainly the first form of international accounting principles defined at the beginning of the 21st century, IAS (International Accounting Standard)/IFRS (International Financial Reporting Standard), the accounting standards issued by the International Standard Accounting Board (ISAB) and approved by community regulation with the aim of making the comparison between financial statements and financial reporting of companies operating in different countries simpler and more transparent. This harmonization of accounting rules has therefore made it possible to overcome the obstacles of the old legislation which put a brake on market development and investor initiatives.

With Directive 77/780/EEC of interest to credit institutions and on the coordination of laws, regulations and administrative provisions concerning access to the business of credit institutions and its exercise is prohibited from 1977 any discrimination in respect of establishment and provision of services, based respectively on nationality or on the fact that the undertaking is not established in the Member State where the service is performed. In order to facilitate access to the business of credit institutions and its operation, it is necessary to eliminate the most sensitive differences between the laws of the Member States as regards the regime to which those institutions are subject; the same differences, cause the impossibility to put in place with a single directive the regulatory conditions required for a common market of credit institutions having to proceed in successive steps with the aim of obtaining, as a final result of this process, the facilitation of the overall control of a credit institution operating in several Member States by the competent authorities of the Member State in which the credit institution has its registered office, in consultation with the competent authorities of the other Member States concerned. Coordination of credit institutions must be applied both to protect savings and to create the conditions of equality in competition between such institutions, taking into account, where necessary, objective differences between their statutes and their specific tasks under national legislation; the scope of the coordination work, which is the objective of Directive 77/780/EEC, should be as broad as possible and include all the bodies whose activity consists in raising repayable funds from the public either in the form of deposits or in other forms , such as the continuous issuance of bonds and other comparable securities, and in granting loans on their own account.

2 - SERVICES AND DISTANCE PRODUCTS.
With the introduction of new technologies, the means made available to consumers to purchase services and products at a distance anywhere in the European market are multiplied, requiring standardized measures to protect consumers from unfair practices. Many Member States have already adopted different or diverging provisions for the protection of consumers in distance sales with negative effects on competition among companies in the single market that highlight the need to introduce a minimum of common rules at Community level in this area. Phenomena such as requests for payment of unordered goods and aggressive methods of sale require a policy of protection and information to the consumer by announcing the need. to protect buyers.

The European Parliament and the Council of the European Union with the directive 97/7/CEE reveals the importance of rules that prevent a reduction of the information given to the consumer with the use of remote communication techniques, which is therefore necessary to determine the information that must be obligatorily transmitted to the consumer irrespective of the communication technique used, furthermore, notes the need to align the information transmitted to the other relevant Community rules and in particular to Directive 84/450/EEC (as amended by Council Directive 2005/29/EC) of 10 September 1984 on the approximation of the laws, regulations and administrative provisions administrative provisions of the Member States concerning misleading advertising; only in the case of exceptions to the obligation to provide information, is left to the discretion of the consumer whether to ask for some basic information such as the identity of the supplier, the main characteristics of the goods or services and their price. With reference to telephone commercial communications, the consumer should obtain sufficient information at the beginning of the conversation to decide whether to continue or not.

Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 concerning the protection of consumers in respect of distance contracts excludes financial services, the marketing of which will be enshrined in Directive 2002/65/EC.

We see sanctioned the need for the right of withdrawal, with Directive 97/7/EEC, because the consumer does not actually have the opportunity to view the goods or to be aware of the nature of the service before the conclusion of the contract, dynamics that require the application of the right of withdrawal, unless the law provides otherwise, limiting shipping costs of the goods to the sender if any, and the charges deriving to the consumer from exercising the right of withdrawal. The right of withdrawal must be without prejudice to the rights of the consumer under national legislation, with particular reference to the receipt of impaired goods or altered services or services and goods that do not correspond to the description contained in the offer of such products or services; whereas it is up to the Member States to determine the other conditions and procedures for exercising the right of withdrawal. The directive prohibits the promotional technique of sending a product to a consumer or providing a service for consideration without prior request or explicit agreement on its part, can not be accepted unless it is a replacement supply. The right of withdrawal is enshrined again with the directive number 83/EU of 25 October 2011 with particular reference to the article from number 8 to number 16; this last directive amends and repeals Directive 97/7/EC, therefore no longer in force in 2018, no longer in force since 2011.

In the construction of a collective economic dynamic for the internal market, European, we see once again enshrined by the European Commission the need for rules for the protection of consumer privacy with the enactment of Directive 97/7/EC, this in consideration of the principles enshrined in Articles 8 and 10 of the European Convention of 4 November 1950, for the protection of human rights and fundamental freedoms, in view, that the consumer must be granted a right to the protection of privacy, in particular as regards peace of mind certain particularly intrusive communication techniques and the specific limits for the use of these techniques should therefore be specified, and Member States should take appropriate measures to effectively protect those consumers who have stated that they do not wish to be contacted by means of certain communication techniques , without prejudice to specific protection intended for consumers in accordance with the Community legislation on the protection of personal data and privacy, as established by the European Commission with Directive 95/46/EC, subsequently repealed by Regulation 2016/679/EU. Directive 97/7/EC establishes the possibility for public bodies, their representatives, consumer organizations which, according to national legislation, have a legitimate interest in protecting consumers, or for professional organizations with a legitimate interest, to act, Whereas failure to comply with the provisions of this Directive may be detrimental to consumers but also to competitors. In the same directive, the issue of consumer protection is addressed, highlighting the importance of cross-border complaints, taking into account that on 14 February 1996 the Commission published an action plan on consumer access to justice and the settlement of disputes in this area consumption within the internal market which includes specific initiatives for the promotion of out-of-court procedures; objective criteria are established to guarantee the reliability of the aforementioned procedures and the use of standardized complaint forms is envisaged. The Directive 97/7/EC is amended and repealed, as reported above, by Directive 83/2011/EU of 25 October 2011.

List of the Directives which establish Regulations on the Protection of Consumer Interests.
1) Council Directive 84/450/EEC of 10 September 1984 on the approximation of the laws, regulations and administrative provisions of the Member States Member States on misleading advertising (OJ L 250, 19. 9. 1984, page 17).
2) Council Directive 85/577/EEC of 20 December 1985 on the protection of consumers in the case of contracts negotiated away from business premises (OJ L 372, 31. 12. 1985, page 31).
3) Council Directive 87/102/EEC of 22 December 1986 on the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ L 42, 12. 2. 1987, p.48), as amended by Directive 98/7/EC (OJ L 101, 1. 4. 1998, p.17).
4) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain laws and regulations administrative provisions of the Member States concerning the pursuit of television activities: Articles 10 to 21 (OJ L 298, 17. 10. 1989, p. 23), as amended by Directive 97/36/EC (OJ L 202, 30. 7. 1997, pp. 60).
5) Council Directive 90/314/EEC of 13 June 1990 on travel, holidays and package tours (OJ L 158, 23. 6. 1990, page 59).
6) Council Directive 92/28/EEC of 31 March 1992 concerning the advertising of medicinal products for human use (OJ L 113, 30. 4. 1992, pp. 13).
7) Council Directive 93/13/EEC of 5 April 1993 concerning unfair terms in consumer contracts (OJ L 95, 21. 4. 1993, page 29).
8) Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the acquisition of a right to use immovable property on a temporary basis (OJ L 280, 29. 10. 1994, page 83).9) Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on consumer protection with regard to contracts negotiated procedure (OJ L 144, 4. 6. 1997, p. 19).

Subsequent updates
10) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/CE, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices).
11) Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Directive 93/13/EEC of the Council and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council.
12) Directive 2008/48 / EC of the European Parliament and of the Council of 23 April 2008 on consumer credit agreements and repealing Directive 87/102/EEC.
13) Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on tourist packages and related travel services, which amends regulation (EC) no. 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC.
14) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (replacing the repealed Directive 92/28/EEC).
15) Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers for with regard to certain aspects of timeshare contracts, contracts relating to long-term holiday products and resale and exchange contracts.

The existing mechanisms at both national and Community level to ensure compliance with the directives in the above list do not always make it possible to put an end to the violations that harm consumers' collective interests, where the sum of the collective interests is excluded from collective interests, interests of individuals injured by a violation, exclusion that must not prejudice appeals and individual actions proposed by individuals injured by an infringement; the regulations listed above may not be sufficient to stop unfair trade practices, when such practices produce effects in a member state different from the one in which they originate and for this reason it would be sufficient to transfer the starting point of an unlawful practice to protect it from any application of the law and damage the proper functioning of the internal market as well as distorting competition. The dynamics described are such as to undermine consumer confidence in the internal market and may limit the scope of action by organizations representing the collective interests of consumers or independent public bodies, specifically responsible for protecting the collective interests of consumers, who are injured from a practice that infringes Community law; relevant is the possibility for unfair commercial practices to often cross the borders between Member States. The European Commission deems it necessary and urgent to approximate to a certain extent the national provisions allowing the cessation of such illegal practices irrespective of the country in which the unlawful practice has produced effects, by adopting Directive 98/27/EC on 19 May 1998 on injunctions for the protection of consumers' interests.

3 - DISTANCE FINANCIAL SERVICES.
Directive 2002/65/EC introduces the possibility of distance marketing of financial services, constituting one of the main tangible results of the realization of the internal market (European market) both for consumers and for financial service providers; this establishes the possibility for consumers to negotiate and conclude contracts with a supplier established in other Member States, regardless of whether or not the supplier is legally established in the consumer's Member State of residence. The Directive, and in particular the provisions relating to information concerning contractual clauses on the legislation applicable to the contract and / or the competent forum, does not affect the possibility of applying to the distance marketing of financial services Regulation (EC) no. 44/2001 of the Council of 22nd December 2000 (subsequently recast in the regulation 1215/2012/EU in force in the year 2018), concerning the jurisdiction, the recognition and enforcement of judgments in civil and commercial matters, and the convention of Rome in 1980 (1°) on the law applicable to contractual obligations. Directive 2002/65/EC in Article 3 paragraph 1, point 4 letter a) and b) establishes provisions concerning the information to be communicated to the consumer about the appeal: the existence or absence of out-of-court complaint and redress procedures accessible to the consumer who is part of the distance contract and, where such procedures exist, the means by which the consumer can make use of them; (b) the existence of guarantee funds or other compensation schemes not covered by Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit guarantee schemes and of Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor compensation schemes.

(1°) NOTA: the signature on 29 November 1996 of the Convention concerning the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Rome Convention on the law applicable to contractual obligations and the two protocols relating to interpretation by of the Court of Justice has made it desirable to proceed to a codified version of the Rome Convention and the two protocols mentioned above. These texts are supplemented by three declarations, the first of which, of 1980, concerns the harmony to be foreseen between the rules on conflicts of laws to be adopted at Community level and those of the Convention, the second, likewise of 1980, concerns the interpretation of the convention by the Court of Justice and the third, of 1996, concerns compliance with the procedure provided for in Article 23 of the Rome Convention on the transport of goods by sea. The General Secretariat of the Council, in whose files the originals of the instruments in question are deposited, established the text contained in this file.

Article 1 of Directive 2002/65/EC defines the object and the scope of application; object: the approximation of the laws, regulations and administrative provisions of the Member States relating to the distance marketing of consumer financial services. Scope: for contracts concerning financial services consisting of an initial service agreement followed by successive operations or by a series of separate operations of the same nature spread over time, the provisions of this Directive apply exclusively to the initial agreement. Article 3 gives the following definitions of interest for Directive 2002/65/EEC: a) distance contract: any contract involving financial services, concluded between a supplier and a consumer in the the scope of a system of distance selling or provision of services organized by the supplier which, for this contract, uses only one or more remote communication techniques until the conclusion of the contract, including the conclusion of the contract itself; b)financial service: any service of a banking, credit, insurance, individual pension, investment or payment; c) provider: any natural or legal person, public or private, which, in the context of its commercial or professional activities, is the contractual supplier of the services covered by distance contracts; d) consumer: any natural person who, in distance contracts, acts for purposes which do not fall within the framework of his commercial or professional activity; e) distance communication technique: any means which, without the physical and simultaneous presence of the supplier and the consumer, can be used for the distance marketing of a service between the parties; f) durable medium: any instrument that allows the consumer to store information personally addressed to him so that it can be easily recovered during a period of time adequate for the purposes for which the information is intended, and which allows the unchanged reproduction of the stored information; g)operator or provider of distance communication technology: any natural or legal person, public or private, whose commercial or professional activity consists in making one or more remote communication techniques available to suppliers . Articles 3, 4 and 5 define the obligatory information that must be communicated to the consumer before the conclusion of the contract and implementation provisions are dictated with regard to the same communications.

Among the standards of interest for this publication we analyze the standards that establish and regulate the right of withdrawal. Article 6 of Directive 2002/65/EC as for non-financial products and services establishes and regulates the modalities application of the right of withdrawal as follows: paragraph 1: Member States shall ensure that the consumer has a period of fourteen calendar days to withdraw from the contract without penalty and without having to state the reason. However, this term is extended to thirty calendar days for distance contracts covering life assurance under Directive 79/267/EEC (as amended by Directive 90/619/EEC, no longer in force, subsequently amended by Directive 2002/83/EEC is no longer in force, repealed with Directive 2009/138/EEC in force in 2018) and operations concerning individual pension schemes. The period during which the right of withdrawal may be exercised begins: from the date of conclusion of the contract, except in the case of such life insurance, for which the term begins to run from the moment in which the consumer is informed that the contract is been concluded, or from the date on which the consumer receives notification of the contractual conditions and preliminary information (Article 5, paragraphs 1 or 2), if that date is later than that of conclusion of the contract. In addition to the right of withdrawal, Member States may provide that the applicability of contracts relating to investment services is suspended during the term of the period provided for in this paragraph.

In the same article under paragraph 2 it is established that the right of withdrawal does not apply: a) to financial services whose price depends on fluctuations in the financial market that the supplier is not able to control and which may take place during the period of withdrawal, such as for example services relating to: exchange transactions, money market instruments, transferable securities, units in a collective investment scheme, forward futures contracts (futures) on financial instruments, including cash equivalent instruments, forward interest rate contracts (FRA), interest rate swap contracts, currencies or exchange contracts related to equities or equity indices (equity swaps), options to buy or sell any instrument provided for in this letter, including equivalent instruments that are settled in cash. This category includes options on currencies and interest rates; b) travel and baggage insurance policies or similar short-term insurance policies with a duration of less than one month; c) contracts executed entirely by both parties at the explicit request of the consumer before the latter exercises his right of withdrawal.

Paragraph 3 of the same article states that Member States may provide that the right of withdrawal does not apply to: (a) loans primarily intended to enable the acquisition or maintenance of property rights on existing or planned land or buildings, or to renew or renovate buildings; or b) loans secured by mortgages on real estate or rights on real estate; or (c) consumer statements made before a public official provided that the public official confirms that the information rights are guaranteed to the consumer before the conclusion of the distance contract (Article 5 (1)), not that the additional requirements concerning information (Article 4 of the same Directive 2002/65/EC). This paragraph shall not affect the right to a period of reflection for the benefit of consumers residing in Member States where this right applies at the time of adoption of this Directive. Paragraph 4 of Article 6 establishes that Member States making use of the possibility referred to in paragraph 3 shall notify the Commission thereof. Paragraph 5 stipulates that the Commission shall make the information communicated by the Member States available to the European Parliament and the Council and ensure that it is also communicated to consumers and suppliers who request it. Paragraph 6 establishes that if the consumer makes use of the right of withdrawal, he sends, before the expiry of the deadline, according to the practical instructions that have been given to him (the practical instructions for the exercise of the right of withdrawal, to the address to the notice of withdrawal must be sent) in accordance with Article 3 (1) (3) (d), a communication which constitutes a means of proof in accordance with national law. The deadline is considered respected if the communication, provided that it is made in writing or through another durable medium available and accessible to the recipient, is sent before the deadline expires.

Paragraph 7 of Article 6 of Directive 2002/65/EC states that the right of withdrawal set out in the same Article 6 for distance financial services does not apply to the termination of credit agreements governed by Article 6 (4) of Directive 97/7/EC or Article 7 of Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of the purchaser for certain aspects of the controls related to the acquisition of a right to part-time enjoyment of real estate. Both paragraph 4 of Article 6 of Directive 97/7/EC repealed by Directive 2011/83/EU, which Article 7 of Directive 94/47/EC repealed and replaced by Directive 2008/122/EC states that Member States provide in their legislation that the credit agreement is terminated by right, without any penalty, if the buyer exercises the right of resolution or withdrawal if the price is fully or partially covered by a credit, granted by the seller, or if the price charged is fully or partially covered by a credit granted to the purchaser by third parties on the basis of an agreement between them and the seller. Member States shall establish the methods of resolution of the credit agreement. If a distance contract relating to a particular financial service is added to another distance contract concerning financial services provided by a supplier or a third party on the basis of an agreement between the third party and the supplier, this additional contract is terminated without any penalty fee if the consumer exercises his right of withdrawal in accordance with the procedures laid down in Article 6 (1). Finally Article 8 (6) states that the same Article is without prejudice to the laws and regulations of the Member States concerning dissolution, extinction or non-applicability of the distance contract or the consumer's right to comply with his contractual obligations before the deadline set by the distance contract. This applies irrespective of the conditions and legal effects of the termination of the distance contract.

In case of payment of the service provided before the right of withdrawal, Article 7 of Directive 2002/65/EC sets out the provisions for the consumer to exercise the right of withdrawal without compromising the interests of the supplier, in fact it establishes in paragraph 1 that the consumer when exercising the The right of withdrawal conferred on him by Article 6 (1) may be required to pay as soon as possible only the amount of the financial service actually provided by the supplier in accordance with the distance contract. The execution of the contract can only start with the consent of the consumer. This amount can not: exceed an amount proportional to the importance of the service already provided in relation to all the services provided by the distance contract, and can not be such as to constitute a penalty. By paragraph 2 of the same article the Commission states that Member States may provide that the consumer is not required to pay any amount when he withdraws from an insurance contract. Paragraph 3 establishes that the supplier can not demand payment of an amount from the consumer according to paragraph 1 of Article 7 if he is unable to prove that the consumer has been duly informed of the amount due, or of the information before the conclusion of the distance contract with particular reference to the information indicated below: the existence or absence of the right of withdrawal in accordance with Article 6 and, if this right exists, the duration and methods of exercise, including information relating to the amount that the consumer may be required to pay pursuant to paragraph 1 of that article, as well as to the consequences arising from the failure to exercise that right (information in accordance with Article 3 (1), point 3 (a). However, he can not in any case demand such payment if he has commenced the execution of the contract before the expiry of the period of exercise of the right of withdrawal referred to in Article 6 (1) above, without there being a prior request from the consumer. Paragraph 4 establishes the obligation of the supplier for which he is obliged to reimburse to the consumer, as soon as possible and at the latest within 30 calendar days, all sums paid by him in accordance with the distance contract, with the exception of the amount referred to in paragraph 1 of the same article 7. The period starts from the day on which the supplier receives the notice of withdrawal. Paragraph 5 establishes the same obligation for the consumer to return to the supplier as soon as possible, and at the latest within 30 calendar days, any amount and / or good received from the latter. The period starts from the day when the consumer sends the notice of withdrawal.

With the rule contained in Article 8 of Directive 2002/65/EC, the European Commission states that in the case of payment by payment card of financial services purchased remotely, Member States shall ensure that adequate measures exist for the consumer: can request the cancellation of a payment in case of fraudulent use of its payment card under distance contracts, in the event of such fraudulent use, the consumer is credited or reimbursed the amount paid. Article 9 of the same directive affects unsolicited services by stating that the provisions of the Member States relating to tacit renewal remain unchanged, but they must take the necessary measures to: prohibit the provision of financial services to a consumer without the latter having first requested it, if this supply involves an immediate or deferred payment request, to dispense the consumer from any obligation in case of unsolicited supply, it being understood that the absence of a response does not imply consent. With Article 10, paragraph 1, the European Commission defines provisions concerning unsolicited communications, establishing with the relative provision that the use by a supplier of the following distance communication techniques requires the prior consent of the consumer: automated call systems without the intervention of an operator (automatic call device); b) fax. In paragraph 2 of the same article, Member States shall take appropriate measures to ensure that distance communication techniques other than those referred to in paragraph 1, when allowing individual communication: (a) are not authorized if the consent of the affected consumer has not been obtained ; or b) may be used only in the absence of a clear consumer opposition. By Article 10 (3) thereof, the measures referred to in paragraphs 1 and 2 shall not entail costs for consumers.

4 - JURISDICTION.
The Community with the regulation 44/2001/CE, no longer in force and recast in the regulation 1215/2012/EU in force in the year 2018, aims to preserve and develop an area of freedom, security and justice in which free movement of persons is guaranteed. In order to achieve this space gradually, the Community should adopt, inter alia, measures in the field of judicial cooperation in civil matters which are necessary for the proper functioning of the internal market. Some divergences between national rules on jurisdiction and on the recognition of decisions make it more difficult the smooth functioning of the internal market is. It is therefore essential to adopt provisions to unify the rules on conflicts of jurisdiction in civil and commercial matters and to simplify the formalities so that the decisions issued by the Member States bound by this Regulation are recognized and executed quickly and easily; matters falling within the field of judicial cooperation in civil matters within the meaning of Article 65 of the Treaty. In order to achieve the objective of free movement of judgments in civil and commercial matters, it is necessary and appropriate that the rules concerning jurisdiction, recognition and enforcement of decisions are established by a binding and directly applicable Community legal act. The common rules on jurisdiction must therefore, in principle, be applied in cases where the defendant is domiciled in one of those States. Defendants not domiciled in a Member State are generally subject to the national jurisdiction rules in force in the territory of the Member State of the court seised and defendants domiciled in a Member State not bound by this Regulation must continue to be subject to the Brussels Convention. For the purposes of the free circulation of judgments, decisions issued in a Member State bound by this Regulation must be recognized and enforced in another Member State bound by the same even if the convicted debtor is domiciled in a third State.

The rules on jurisdiction must present a high degree of predictability and articulate around the principle of jurisdiction of the court of the domicile of the defendant, which must apply in every case except in some cases strictly determined, in which the matter of dispute or autonomy of parties justify a different connection criterion. For legal entities, the domicile must be defined autonomously, in order to increase the transparency of the common rules and avoid conflicts of jurisdiction. The criterion of the court of the defendant's domicile must be completed by providing alternative forums, admitted on the basis of the close connection between the court and the dispute, or in order to facilitate the proper administration of justice. In insurance, consumer and labor contracts, the weaker party should be protected by rules of jurisdiction that are more favorable to his interests than the general rules. Without prejudice to the criteria of exclusive competence provided for in this regulation, the autonomy of the parties with regard to the choice of the competent court for contracts not included in the category of insurance, consumer and labor contracts in which such autonomy is limited must be respected.

The harmonious functioning of justice presupposes that the possibility of a parallel procedure is reduced to a minimum and that two incompatible decisions are not issued in two Member States. It is necessary to establish a clear and effective mechanism for resolving cases of lis pendens and connection and, given the existing national differences in the matter, it is appropriate to define the moment in which a case is considered "pending". For the purposes of this Regulation, this moment should be defined independently. If, in the courts of different Member States and between the same parties, applications have been made with the same subject and the same title, the judge subsequently seised shall suspend the procedure ex officio until the jurisdiction of the court seised previously has been established. If the jurisdiction of the judge previously seised has been ascertained, the judge subsequently seised declares his incompetence in favor of the first.

Mutual trust in justice within the European Community means that decisions issued in another Member State are fully recognized, ie without the need for any procedure, unless there are disputes. Mutual trust also implies that the procedure for enforcing, in a particular Member State, a decision given in another Member State is to be carried out efficiently and rapidly. To this end, the declaration of enforceability of a decision should be issued almost automatically, following a purely formal check of the documents produced and without the court being able to detect ex officio the grounds for refusal of enforcement set out in this regulation. However, respect for the rights of the defense requires that, against the declaration of enforceability, the defendant may possibly appeal against the principles of the adversarial procedure, if he considers that one of the grounds for non-execution exists. The right to appeal must also be recognized to the applicant where the declaration of enforceability has been denied. It is appropriate to ensure continuity between the Brussels Convention and this Regulation and to this end appropriate transitional provisions should be laid down. The same continuity must also characterize the interpretation of the provisions of the Brussels Convention by the Court of Justice of the European Communities and the 1971 Protocol should continue to apply equally to proceedings pending on the date of entry into force of this Regulation. Annexes I to IV relating to national jurisdiction rules, judges or competent authorities and remedies must be amended by the Commission on the basis of the amendments transmitted by the Member State concerned. The amendments to Annexes V and VI should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.

Regulation (EC) of the Council of the European Union number 44/2001 of 22 December 2000 concerning jurisdiction and the recognition and enforcement of judgments in civil and commercial matters applies in civil and commercial matters, regardless of the nature of the jurisdictional body. It does not concern, in particular, the tax, customs and administrative matters. The following are excluded from the scope of this regulation: a) the status and capacity of natural persons, the property regime between spouses, wills and succession; b) bankruptcies, concordats and related procedures; c) social security; d) arbitration. In this regulation, "Member State" refers to all Member States except Denmark (until 2006 as noted below by the studies conducted). The Regulation 44/2001/EC no longer applies (in force) is was recast with the regulation 1215/2012/EU in force in the year 2018. On 22nd December 2000 the Council adopted the regulation (CE) n. 44/2001 which replaces between all the Member States, with the exception of Denmark, the 1968 Brussels Convention as regards the territories of the Member States covered by the TFEU. By Council Decision 2006/325 / EC, the Community concluded an agreement with Denmark to ensure the application of the provisions of Regulation (EC) No 44/2001 in Denmark. The 1988 Lugano Convention & egrave; revised by the Convention concerning jurisdiction, recognition and enforcement of judgments in civil and commercial matters signed in Lugano on 30 October 2007 by the Community, by Denmark, Iceland, Norway and Switzerland (the Lugano of 2007 "). Unless otherwise indicated in the provisions of the rules contained in Directive 44/2001/EC, persons domiciled in the territory of a given Member State shall be convened, irrespective of their nationality, before the courts of that Member State. For persons who do not hold the nationality of the Member State in which they are domiciled, the rules on jurisdiction in force for citizens apply. Persons domiciled in the territory of a Member State may be convened before the courts of another Member State only on the basis of the rules set out in Sections 2 to 7 of this Chapter. The national jurisdiction rules set out in Annex I can not be used against them. If the defendant is not; domiciled in the territory of a Member State, the competence is governed, in each Member State, by the law of that State, without prejudice to the application of Articles 22 and 23. Anyone domiciled in the territory of a given Member State may, irrespective of their nationality and, like the citizens of that State, referring to this defendant, is bound the rules of jurisdiction in force in that State, in particular those listed in Annex I to Directive 44/2001/EEC and annexed to this publication.

5 - ADVERTISING OF THE ANNUAL ACCOUNTS, ACCOUNTING AUDIT.
The requirements, in a Community market, to have publicity of certain acts for companies in order to facilitate controls, to protect consumers, was enshrined for the first time in the year 1968 by Directive 68/151/EEC (in anticipation of subsequent free stabilization of companies in the European Community market) with particular reference to Article 2 and to the relevant paragraph 1 (f): Member States shall take the necessary measures to ensure that the obligation of advertising for companies is at least following: the balance sheet and profit and loss account for each financial year. The document containing the financial statements must indicate the particulars of persons who, pursuant to the law, are required to certify the financial statements. However, for companies with limited liability under German, Belgian, French, Italian and Luxembourg law, listed in Article 1, as well as for closed anonymous companies of the Netherlands legal system, the mandatory application of this provision is deferred until the date of implementation of a directive on the coordination of the content of financial statements and profit and loss accounts and exempting from the obligation to publish, in whole or in part, these documents for companies of this type with a budgetary amount lower than the amount that will be set in the directive itself. The Council will adopt this directive within two years of the adoption of this Directive (by the year 1970).

In view of the need to establish minimum equivalent legal conditions regarding the extent of financial information to be provided to the public by competing companies, needs and the urgency of coordination have been recognized and reaffirmed by Article 2 (1), letter f) of Directive 68/151 / EEC; with the aim of creating legislative conditions that allow the annual accounts to provide a true picture of the financial situation, the financial situation as well as the economic result of the company, the Commission, with Directive 78/660 / EEC, considers it appropriate to provide binding schemes for the preparation of the balance sheet and the profit and loss account and establish the minimum content of the annex and the management report. The annual accounts of all companies to which Directive 78/660 / EEC applies shall be advertised in accordance with Directive 68/151 / EEC with the possibility of granting certain exemptions to small and medium-sized companies. The same directive establishes the need for the annual accounts to be checked by qualified persons, whose minimum qualifications will be the subject of further coordination (Directive 84/253 / EEC), and that only small companies can be exempt from this obligation to control; moreover, it is considered appropriate that the group's accounts be published with a faithful picture of the activities of the group as a whole, when a company is part of a filiation network. Later with Directive 83/349 / EEC, the Commission will establish the need to draw up consolidated accounts for parent companies of a group of companies.

In Article 51 of Directive 78/660/EEC, the statutory audit of the accounts is established; the article establishes in paragraph 1 that companies must have their annual accounts audited by one or more persons authorized under the national law for auditing. b) The person or persons responsible for auditing must also check that the management report agrees with the annual accounts for the financial year. In paragraph 2, it states that Member States may exempt from the obligation set out in paragraph 1 the companies referred to in Article 11, so that for two consecutive years they do not exceed the numerical limits of two of the following three criteria: balance sheet total: 1 000 000 of EUA (2°), net amount of turnover: 2 000 000 EUA, number of employees employed on average during the year: 50. With paragraph three, the Article 51 states that in the case referred to in paragraph 2 Member States shall introduce in their legislation appropriate sanctions in the event that the annual accounts or the management report of the companies concerned are not drawn up in accordance with this Directive.

(2°) NOTA: Fictitious money created following the establishment of the UEP and adopted in 1975 by the European Community. Originally, this coin had a specific gold content (0.88g.) Equal to that of the dollar: starting from 1975 it was calculated as a weighted average of the value of the various currencies of the member countries of the EEC. It was finally abandoned in 1979 when it was decided to set up the EMS and to adopt the ECU as a new unit of account. ECU is the acronym of European Currency Unit, or 'European unit of account'. It was a scriptural currency introduced by the European Council in 1978. The ECU was the second (virtual) currency of the European Union after the EUA (abandoned in 1975). Together with the ERM (Exchange Rate Mechanism), it gave life to the European Monetary System in 1979. The ECU is born as a unit of account for the drafting of the internal budget of the European Community. Later it became more like a real currency - for example it was used for bank deposits and for traveler's checks, even though it was never coined as a true currency, if not for collecting purposes. With the development of the Economic and Monetary Union the ECU laid the foundations for the development of the euro, the common European currency. Its value is the weighted average of the currencies that compose it, each related to the economic importance of the corresponding country.

On the basis of the provisions of Directive 78/660/EEC, with reference to the monitoring of the annual accounts to be carried out by one or more persons authorized for this control and that only the companies referred to in Article 11 of the aforementioned Directive may be exempted; Whereas the latter directive was supplemented by Directive 83/349/EEC on consolidated accounts, the European Commission defines the qualifications of persons qualified to audit accounts by Directive 84/253/EEC. With the directive 84/253/EEC it establishes the necessity of an examination of professional competence, which guarantees a high level of theoretical knowledge necessary for the legal control of accounting documents as well as the ability to apply them in the exercise of such control. With Directive 78/660/EEC, the Member States are empowered to enable persons who do not fulfill all the requirements in the field of theoretical training but who demonstrate a long professional activity demonstrating that they have sufficient experience in the financial, legal and accounting fields. and who have passed the professional qualification exam; furthermore, the member states may grant the authorization both to natural persons and to auditing firms constituted by legal entities or by other types of companies or associations. Directive 84/253/EEC defines the requirements for natural persons on their own behalf and on behalf of companies carrying out the accounting checks, that must satisfy and establish the possibility for a Member State to grant approval to persons who have obtained abroad qualifications equivalent to those required by this Directive; in addition, it provides for the possibility of a Member State in which, at the time of adoption of this Directive, categories of natural persons exist which meet the requirements laid down in this Directive and that the examination of professional competence for the assessment of the requirements is lower than that of an examination for the conclusion of university studies, may continue to grant a specific qualification, under certain conditions and until further coordination, to such persons for carrying out the statutory audit of the accounting records of companies and of sets of size companies reduced if this Member State did not make use of the exemption possibilities provided for in Directive 83/349/EEC for the preparation of consolidated accounts

Directives 78/660/EEC and 83/349/EEC on statutory audits of annual and consolidated accounts are amended by Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 and repealing Directive 84/253/EEC relative on qualification of the persons responsible for the legal control of accounting documents. Finally, Directive 2006/43/EC is amended by Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of companies and which repeals Directives 78/660/EEC and 83/349/EEC.

In considering that Council Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies, it is not mandatory to apply, to the banks and other financial institutions, until subsequent coordination (now called public interest entities), the Council of the European Community issues Directive 86/635/EEC on the annual and consolidated accounts of banks and other financial institutions.

ATTACHMENTS: The Treaty on European Union | Directive 73/240/CEE, freedom establishment |Directive 79/267/EEC, life assurance | Directive 78/660/EEC, annual accounts | Directive 68/151/ECC, safeguards for market EEC | Diective 77/780/EEC, credit institutions | Directive 97/7/EC, protection distance contracts | Directive 2005/29/EC, unfair commercial practices | Directive 84/450/CEE, misleading advertising | Directive 2002/65/EC, distance financial services | Directive 95/46/EC, protection of individuals with regard to personal data | REGULATION (EU) 2016/679, protection of persons with regard to the processing of personal data | Directive 94/47/EC, protection of the purchaser | REGULATION (EC) No 2006/2004, on consumer protection cooperation | Directive 2011/83/EU, Recess, amending directive 97/7/EC | Directive 2008/48/EC, on consumer credit agreements | Directive (EU) 2015/2302, relating to tourist packages and related travel services |Directive 2001/83/EC, on the Community code relating to medicinal products for human use |Directive 2008/122/EC, aspects of timeshare contracts and long-term holidays | Directive 98-27-EC, injunctions protection consumers | REGULATION (EC) No 44/2001, jurisdiction | REGULATION (EU) No 1215/2012,recast regulation 44/2001 | Directive 94/19/EC, deposit-guarantee | Directive 97/9/CE, on investor-compensation schemes | The Rome Convention of the 1980 | Directive 90/619/EEC, amending directive 79/267/ECC | Directive 2002/83/EC, amendment Directive 90/619/EEC | Directive 2009/138/CEE, replace directive 2002/83/CEE | Decision 1999/468/CE of the Council of the European Union | Regulation 182/2011/EU, repealing decision 1999/468/EC | Decision 2006/325/EC of the Council of the European Union | Directive 84/253/ECC, approval of persons responsible for carrying out the statutory audits of accounting documents | Directive 83/349/ECC, consolidated accounts |Directive 2006/43/EC, amending directives 78/660/ECC, 83/349/ECC, repealing directive 84/253/ECC |Directive 2013/34/UE, amending directive 2006/43/EC | Annex regulation 44/2001/CE |