Forslag til europaparlaments- og rådsforordning om gjeldende lov om tredjepartvirkninger ved overdragelse av krav
Proposal for Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims
Forslag til europaparlaments- og rådsforordning lagt fram av Kommisjonen 12.3.2018
BAKGRUNN (fra kommisjonsforslaget, engelsk utgave)
Reasons for and objectives of the proposal
The Commission's priority is to further strengthen Europe's economy and stimulate investment to create jobs and sustain growth. In order to reach this objective, there is a need for stronger, deeper and more integrated capital markets. Efficient and safe post-trade infrastructures are key elements of such well-functioning capital markets. Following on from the 2015 Action Plan on Capital Markets Union (CMU), in May 2017 the Commission's Mid-term Review set out the remaining actions which will be taken to put in place the building blocks of the CMU by 2019, with the objective of removing barriers to cross-border investment and lowering the costs of funding. Completing the CMU is an urgent priority.
As part of the CMU Action Plan and the Mid-Term Review, the Commission announced targeted action on rules on the ownership of securities and the third-party effects of assignments of claims to reduce legal uncertainty for cross-border transactions in securities and claims. This proposal and the Communication on the law applicable to the proprietary effects of transactions in securities, presented in parallel, implement this commitment. The Communication clarifies the Commission's views on important aspects of the existing Union acquis with regard to the law applicable to the proprietary effects of transactions in securities and accompanies this legislative proposal on the third-party effects of assignments of claims. Matters governed by the Financial Collateral Directive, the Settlement Finality Directive, the Winding-up Directive and the Registry Regulation are not affected by this legislative proposal.
The general objective of this proposal is, in line with the objectives of the CMU Action Plan, to foster cross-border investment in the EU and, thereby, facilitate access to finance for firms, including SMEs, and consumers. The specific objective of this proposal is to help to increase cross-border transactions in claims by providing legal certainty through the adoption of uniform conflict of laws rules at Union level.
Indeed, in order to increase cross-border transactions in claims and securities, clarity and predictability as to which country's law applies to determine who owns a claim or a security after a cross-border transaction are essential. Legal uncertainty as to which national law determines who owns an asset further to a cross-border transaction means that, depending on which Member State's courts or authorities assess a dispute concerning the ownership of a claim or a security, the cross-border transaction may or may not confer the expected legal title. In case of insolvency, when the questions of ownership and enforceability of rights resulting from cross-border transactions are put under judicial scrutiny, legal risks stemming from legal uncertainty may result in unexpected losses.
The uniform rules laid down in this proposal will designate which national law should determine the ownership of a claim after it has been assigned on a cross-border basis and, thereby, eliminate legal risk and potential systemic consequences. The introduction of legal certainty will promote cross-border investment, access to cheaper credit and market integration.
The assignment of claims is a mechanism used by companies to obtain liquidity and have access to credit, as in factoring and collateralisation, and by banks and companies to optimise the use of their capital, as in securitisation.
Factoring is a crucial source of liquidity for many firms. In factoring, a company (the assignor, most often an SME) assigns (sells) its receivables to a factor (the assignee, often a bank) at a discount price as a means for the assignor to obtain immediate cash. The factor will collect the money owed for the invoices and accept the risk of bad debts. The majority of users of factoring are SMEs: Small represent 76%, Medium 11% and Large 13%. Factoring for SMEs is thus regarded by the industry as a basis for economic growth, as SMEs may find sourcing traditional lending more challenging. Europe as a region is the largest factoring market world-wide and represents 66% of the world market.