EUROPEAN COMMISSION Brussels, 29.6.2016 COM(2016) 430 final REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the appropriateness of Article 3(1) of Directive 2002/47/EC

on financial collateral arrangements



1.Introduction Collateral is given by a borrower to a lender to minimise the risk of financial loss to the lender if the borrower defaults on its obligations. Since the financial crisis, collateral has become increasingly important, driven by a market need for more secured funding and regulatory requirements. Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements as amended by Directive 2009/44/EC (FCD) creates a harmonised EU legal framework for the creation and enforcement of collateral, i.e. ‘title transfer financial collateral arrangementsʼ (where the full title to the collateral is transferred to the collateral taker) or ‘security financial collateral arrangementsʼ (where the collateral taker receives a security right, e.g. a pledge or a charge). The FCD originally covered only cash and financial instruments used as collateral. It abolished formal requirements imposed by Member States on financial collateral arrangements or the provision of collateral, e.g. requirements on the form of the relevant contractual documentation, registration or other notification. Given that the consequence of failing to comply with such requirements was often the invalidity or unenforceability of the collateral against third parties, the removal of those obstacles facilitated the movement of cash and financial instruments across the EU. In 2009, the FCD was amended to introduce ‘credit claims’ as collateral. A ‘credit claim’ is defined in the FCD as a pecuniary claim arising from an agreement where a credit institution grants credit in the form of a loan. Figure 1 shows the mobilisation of a credit claim as collateral where the collateral provider (B) transfers his credit claim against its debtor (A) to the collateral taker (C). More complex scenarios involving a third party (D) arise when the same credit claim is mobilised multiple times (e.g. if C transfers the claim onwards) or when the insolvency administrator questions whether the claim has been validly transferred out of B’s estate. Figure 1: Legal relationships in the mobilisation of credit claims as collateral The 2009 revision of the FCD prevents Member States from requiring that the creation or validity of financial collateral arrangements relating to credit claims be dependent on the performance of a formal act, e.g. registration or the notification of the debtor. This aims to ensure that the financial collateral arrangement relating to a credit claim (relationship 2 in Figure 1) is not invalidated because the arrangement was not registered with a public authority or the debtor was not notified about the collateral arrangement. It also grants Member States an option to require formal acts, e.g. registration or notification, relating to credit claims used as collateral for purposes of perfection, priority, enforceability or admissibility in evidence against the debtor (relationship 3 in Figure 1) or third parties (relationship 4 in Figure 1). Under the 2009 revision, the Commission was asked to report to the European Parliament and the Council on the continuing appropriateness of the Member State option. This report assesses how Article 3(1) of the FCD was implemented, its results and whether amendments to the Directive are needed. 2.Objectives and Methodology The report focuses on the implementation of Article 3(1) of the revised FCD. Its scope is whether the Directive works effectively and efficiently as regards formal acts required to provide credit claims as collateral. To prepare this report, the Commission sent Member States, the ECB and European Economic Area States (EEA) a questionnaire on the implementation of Article 3(1) of the FCD. 25 Member States replied. This evaluation draws mainly from that material. The report also takes into account replies received to the public consultation on Building a Capital Markets Union. Some background information on Member States’ law is derived from an external study carried out for the European Commission on the effectiveness of an assignment of a claim against third parties and the priority of the assigned claim over a right of another person. 3.Implementation and results 3.1.Economic relevance of credit claims Figure 2 shows the rise in the use of credit claims in Eurosystem credit operations. In 2004, they represented 4% of total collateral. By the end of 2015, this had grown to 21%. The sharpest rise was between 2006 and 2007 which may be attributed to the Eurosystem decision to include credit claims in the list of collateral accepted for credit operations in the category of non-marketable assets from 1 January 2007. This created uniform conditions, including criteria determining the eligibility of credit claims being used as collateral, for such operations. The replies of Eurozone Member States confirm that credit claims are broadly accepted by their central banks or commonly used as collateral. Figure 2: ECB data on credit claims in Eurosystem credit operations EUR bn, after valuation and haircuts, averages of end of month data over each time period Year Use of Credit Claims: Total Collateral: Credit Claims

as % of total Collateral Used: 2004 33.5 817 4% 2005 35.4 900 4% 2006 36.3 959 4% 2007 109.3 1 148 10% 2008 190.1 1 579 12% 2009 294.8 2 035 14% 2010 358.5 2 010 18% 2011 418.7 1 824 23% 2012 633.4 2 457 26% 2013 439.4 2 348 19% 2014 372.8 1 949 19% 2015 368.2 1 737 21%

Source: https://www.ecb.europa.eu/paym/coll/charts/html/index.en.html Note: Credit claims figures from 2004-2011 are the aggregate data for ‘non-marketable assetsʼ (prior to 2012, credit claims were not recorded separately. They show the bulk of assets under the non-marketable assets category, the rest is fixed-term and cash deposits). Outside the euro area, the situation differs and data is scarce. The acceptance of credit claims as collateral outside the euro area seems low. The Czech Republic and Lithuania confirmed that they are used as collateral in their markets. Bulgaria and Hungary stated that they are not widely used. Only Denmark reported that their central bank accepts credit claims as collateral. Other reports suggest that the Bank of England also accepts them but in a limited way. Market conditions and global regulatory changes mean credit institutions are facing many demands for collateral. The EU has traditionally relied on bank financing. End-2013 data shows that non-financial corporations rely on bank loans for about 15% of their total financing needs (compared to 10% in the US). As such, EU credit institutions hold credit claims which, if appropriate, could be used as collateral. Estimates put credit claims in the euro area at almost EUR 4.4 trillion, i.e. one third of the total value of eligible marketable assets for the Eurosystem. This shows the relevance of the FCD in enhancing legal certainty where necessary and appropriate for credit claims to be used as collateral. 3.2.Implementation of Directive 2009/44/EC Directive 2009/44/EC revising the FCD was adopted on 6 May 2009. It was implemented in most Member States in 2011 and all had transposed it by 2012. The FCD is also subject to the EEA Agreement with Lichtenstein, Norway and Iceland all implementing it. 3.2.1.Implementation of the option in Article 3(1) To reduce administrative burden and increase market efficiency, Article 3(1) of the FCD, prevents Member States from imposing ‘formal requirementsʼ on collateral arrangements and making the provision of collateral dependant on the performance of a ‘formal act’. These notions are not defined but examples are given in recitals. Article 1(5) clarifies that the inclusion in a list of claims submitted to the collateral taker should be considered as evidence of the provision of collateral and not as a formal act. The replies of Member States to the questionnaire reveal four issues. First, as allowed by Article 1(5), some Member States require that the use of credit claims as collateral is evidenced by the inclusion in a list of claims submitted to the collateral taker. Second, Member States appear to have divergent interpretations on what is a ‘formal act’. Most seem to view physical acts required outside the book-entry system related to the provision of collateral as formal acts, but some exclude certain acts. It is difficult to conclude therefore which Member States have actually used the option to require formal acts for purposes of perfection, priority, enforceability or admissibility in evidence against the debtor (relationship 3 in Figure 1) or third parties (relationship 4 in Figure 1). Third, based on their own assessment, half of the Member States have not used the option. In these Member States there may be no formal requirement to notify the debtor, but debtor protection rules continue to apply. If the debtor is not aware of the financial collateral arrangement and pays off the credit claim, the debtor will be discharged. As such, those payments may be deducted from the value of the claim given as collateral posing a risk to the collateral taker that the collateral may disappear. Notification of the debtor may, thus, be seen as being required for the purpose of enforceability and/or evidence against the debtor, unless the debtor protection can be waived in the credit agreement. Fourth, half of the Member States used the option. All but one Member State require the notification of the debtor. But national laws differ on the nature of this condition. Bulgaria, Belgium, Estonia, Finland and Portugal require notification of the debtor as a single mandatory formal act. Hungary also requires the transfer of the supporting documentation to the collateral taker. Other Member States leave the choice between the notification of the debtor and another formal act to the counterparties. Austria requires the notification of the debtor or an entry in the books of the collateral provider. Lithuania and Malta require the notification of the debtor or a public notice in a newspaper. The Netherlands requires the notification of the debtor or registration in a non-public register held by tax authorities. There are also differences in the purpose of the notification requirement. In most Member States, the notification makes the collateral arrangement enforceable against the debtor of the credit claim (relationship 3 in Figure 1). In Austria, Bulgaria, Finland, Lithuania, Malta and the Netherlands the notification of the debtor makes the collateral arrangement enforceable against third parties (relationship 4 in Figure 1). Those Member States view the requirement as an act of publicity that ensures legal certainty, the protection of the rights of all parties and helps to combat fraud (i.e. collateral arrangements created after the opening of insolvency proceedings but are backdated to defraud other creditors). In some jurisdictions notification of the debtor is a factor determining which of a number of collateral takers may have priority. Under English, Dutch, Italian and Portuguese law, priority would be given to the title transfer collateral arrangement first notified to the debtor. 3.2.2.Other implementation issues Member States identified two situations where different formal acts may be required. Five Member States stated there are special rules on formal acts when credit claims are used as collateral to their central banks. In Belgium, registration instead of notification of the debtor is required if the collateral taker is the central bank. This enforces the claim towards third parties and gives the central bank priority. In Lithuania, when credit claims are used as collateral to EU central banks, a public notice on the website of the Bank of Lithuania is needed. Slovenia requires the notification of the debtor to restrict the debtor’s set-off rights if credit claims are given to EU central banks. In contrast, in Portugal and (temporarily) in Italy no registration or debtor notification is required if credit claims are given to the central bank. In both cases, the central bank's rights prevail over any other rights over the same claims, even if they are notified to the debtor after the collateral arrangement. Four Member States reported that special formal acts are required when credit claims secured by a mortgage are used as collateral. In Germany, in addition to a title transfer financial collateral arrangement relating to a credit claim secured by mortgage, the mortgage certificate needs to be given or the transfer of the claim registered in the land register. In Lithuania, the transfer of a claim secured by mortgage must be registered to be enforceable against third parties. In Portugal, pledges over mortgage credit claims need to be registered. With regard to credit claims in the form of residential mortgages backing (special) mortgage-backed promissory notes, the Irish central bank requires collateral arrangements to be the form of a deed and the details to be registered.

3.3.Effectiveness Directive 2009/44/EC aimed to facilitate the use of credit claims as collateral. This section examines if this objective was achieved and whether the option in Article 3(1) influenced the outcome. Any quantitative assessment of the impact of Directive 2009/44/EC on the mobilisation of credit claims is challenging. Eurosystem data (Figure 2) shows that between 2011–2012, i.e. when Directive 2009/44/EC was implemented in all Member States, the use of credit claims as collateral rose from 23% to 26% of total collateral used. However, it declined between 2012–2013 from 26% to 19%. A number of factors could have affected the use of credit claims as collateral in Eurosystem credit operations. The implementation of Directive 2009/44/EC coincided with the financial crisis and changes in the Eurosystem collateral framework. The increased use of credit claims as collateral with the Eurosystem may thus be explained by an increased demand for central bank credit and market participants' incentives to submit relatively illiquid assets, e.g. credit claims, while keeping more liquid assets for other transactions. There were also technical and operational adaptations at individual central banks, e.g. Deutsche Bundesbank and Banque de France (both with counterparties with large outstanding amount of credit claims) implemented automated communication interfaces, which enable the efficient mobilisation of credit claims. Five Member States indicated that the FCD aided the use of credit claims as collateral. Assessment differs though on whether the Article 3(1) option reduced or increased legal risk. One view is that the option is indispensable for legal certainty as the lack of any formal act made it costly and not always possible to ascertain if the credit claim was posted as collateral or not. A second view argues that the removal of divergent formal requirements between Member States would enhance legal certainty. The Green Paper on Building a Capital Markets Union asked what measures could improve the cross-border flow of collateral. Replying to the consultation one stakeholder argued that the removal of all formal requirements, e.g. notification and registration obligations, is needed to facilitate the use of credit claims as collateral. Two replies backed harmonisation of conflict of laws rules to enhance the protection of collateral takers by the ability to determine the law governing the formal requirements that need to be complied with to render the mobilisation of credit claims collateral effective against third parties. The ECB suggested excluding the debtor's right to set-off with respect to credit claims mobilised as collateral with central banks, but this is beyond the scope of this report. Overall, the objective of the FCD to facilitate the use of credit claims has been achieved. There is evidence that the inclusion of credit claims within the harmonised framework for collateral has facilitated their use in certain jurisdictions. For example, a title transfer financial collateral arrangement for credit claims used to be forbidden under Dutch law but the implementation of the FCD changed this, with the use of credit claims in the Netherlands growing. The FCD also removed formal requirements for the creation or validity of collateral arrangements. In effect, the risk of invalidation of such arrangements has been eliminated, aiding the mobilisation of credit claims. As the overview of implementation showed, differences in the formalities and techniques available to collateralise credit claims still persist between Member States. Nevertheless, even when credit claim collateral remains subjected to national formal requirements, once they are complied with, the collateral benefits from the ease of enforcement introduced by the FCD (e.g. credit claims collateral can be realised by sale or appropriation and set-off and no formalities as to prior notice or prescribed manner of realisation or the elapsing of a period of time will apply). In terms of the extent to which the objective has been achieved, it cannot be concluded that all legal obstacles to the use of credit claims as collateral within the EU have been removed. In particular, the cross-border use of credit claims collateral is still subject to legal uncertainty due to the effect of different national requirements and the incomplete harmonisation of conflict of laws rules at EU level. Although harmonised conflict of laws rules exist for the law applicable to the relationship between the debtor and the creditor of a credit claim (relationship 1 in Figure 1), the collateral provider and the collateral taker (relationship 2 in Figure 1) and the collateral taker and the debtor (relationship 3 in Figure 1), the law applicable to the effectiveness of the provision of a credit claim as collateral against third parties, e.g. which formal acts are required to ensure enforceability against other claimants and the order of priority between multiple transfers of the same credit claim (relationship 4 in Figure 1), is still determined by national conflict of laws rules in the Member States. As such, the collateral taker may assume he has priority because formal requirements of Member State A have been complied with, while the third party relies on formal requirements of Member State B and also believes that it has priority over the rights of the other. 3.4.Efficiency Balancing the challenges in using credit claims as collateral with the importance of bank loans in the real economy, the Commission considers that the objective of the FCD has been achieved at the least expense to all the parties involved. Persistent formal requirements place additional costs on the collateral provider. Even if compliance with the requirement to notify the debtor is not costly, from a credit institution's perspective, the requirement could indirectly adversely affect client relations. Some evidence suggests that the notification requirement may pose an obstacle to mobilising bank loans. This may affect the amount of capital on banks’ balance sheets that is not put to more efficient use in the economy. It should, however, be born in mind that there are alternative legal means that allow banks to put their dormant assets to better use, e.g. issuing securities backed by credit claims, and thus to obtain funds to use to create additional loans. From the collateral taker’s perspective, the observance of formal requirements may help reducing costs arising out of legal risk involved in accepting credit claims as collateral. Unlike marketable securities, credit claims are normally tailored to the debtor’s needs. Thus, in case the collateral needs to be realised, credit claims are usually not convertible into cash quickly but rather the debtor needs to be first addressed. A crucial factor determining the value of the collateral is therefore the enforceability of the credit claim against the debtor (relationship 3 in Figure 1). In order to ensure that the credit claim can be swiftly realised in the event of a counterparty default, the eligibility criteria of the Eurosystem require the notification of the debtor in any case. In addition to their limited liquidity, credit claims differ from marketable securities as they are not generally recorded in electronic accounts, but evidenced only by a credit agreement. As such, there is higher risk that the same credit claim may be posted as collateral to a third party. The idea behind the notification requirement is that if the debtor is required to know about the collateral arrangement, they can function as a possible information source regarding the existence of the credit claim collateral. As shown by stricter rules on formal requirements in some jurisdictions, if the central bank takes credit claims as collateral, formal acts protect the collateral taker from exposure to potential disputes with third parties on the enforceability and priority (relationship 4 in Figure 1). Thus, the option in the FCD that allowed Member States to keep formal requirements can be beneficial for collateral takers in the jurisdictions concerned. As far as the debtor is concerned, it is normally irrelevant whether they repay the loan to the bank or the collateral taker, so in principle his position is not adversely effected by a collateral arrangement. It is necessary though to protect the debtor against the risk of paying twice (to the original creditor and to the collateral taker as the new claim owner). There are various ways to do this, e.g. formal requirements for the creation or validity of the collateral agreement, or for the perfection, priority, enforceability or admissibility in evidence against the debtor or third parties. The options available are framed by the FCD. Given that bank loans are the most important source of financing for non-financial corporations in the EU, it has a positive social impact that the FCD has not affected the rules to discharge the debtor, if he pays off the loan to the original creditor not being aware of the collateral arrangement. In terms of Member States, the option reduced the implementation costs of the FCD. There are also no signs that Member States faced any costs arising from legal difficulties as no evidence was given, e.g. court decisions rendered in application of national legislation transposing Article 3(1). To conclude, the FCD works efficiently for formal acts required to mobilisecredit claims as collateral in a domestic environment. There seem to be valid reasons for certain formal requirements. Where all the elements relevant to the situation are located in one jurisdiction, compliance is not difficult. In cross-border settings, the problem is not so much the existence of different formal requirements, but the difficulty in establishing which national requirement applies. The costs of finding the law applicable to formal acts required for ensuring enforceability or priority against third parties (relationship 4 in Figure 1) and due diligence may be high. The lack of harmonised conflict of laws rules also increases the number of substantive laws potentially applicable to the mobilisation of credit claims as collateral which may make it more difficult to fulfil the eligibility criteria of the Eurosystem. 4.Appropriateness of Article 3(1) In relation to Article 3(1) of the FCD, several policy choices could be considered. First, the status quo could be kept. This is explicitly favoured by twelve Member States that argue the opt-out provision allows for a reasonable balance of the interests. They believe that national publicity requirements are needed to protect the debtor and third parties, to combat fraud, at least as long as there is no EU harmonisation of third party effect and priority. In their view, this option offers the chance to address, at national level, the legal risk that the market faces with verification of credit claims. It was understandable that one encourages the absence of any formal requirements to foster the mobilisation of credit claims. However, if the formal requirements are not weighty, it would be legally preferable to provide for them to ensure priority of the collateral taker. This may continue to create legal uncertainty where transfers of claims have a cross-border element. This could be mitigated by uniform conflict of laws rules on the effectiveness of a credit claim against third parties and the order of priority between multiple transfers of the same claim.