Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 59

In the European Union as a region and on average, banks find a satisfactory legal framework to enforce loan contracts. At such EU-wide level, the differences between enforcing loan contracts against corporate debtors, partnerships, sole traders and consumers are minor. However, a closer look at different types of debt (secured, unsecured) and different ways of enforcement (collective, private) reveals major differences. It should be noted, though, that at this point of the analysis differences between Member States are not yet reflected.

Considering the European Union as a group, the legal frameworks are more advantageous for the enforcement of unsecured loans and less advantageous for the enforcement of secured loans25. A further strong difference concerns the type of enforcement proceeding. Banks are much more supported to enforce in insolvency proceedings than in private enforcement actions. This applies irrespective of whether the loan is secured. In fact, in the European Union, banks find the best enforcement environment for secured and unsecured claims in insolvency proceedings. From a bank perspective, the worst enforcement environment is offered for the individual enforcement of an unsecured loan.

Such differences in the relative support of the enforcement of bank loans are a cause for concern. They distort the loan bargain of the parties. Rational banks will react by imposing risk premiums for recovery risks in those cases where enforcement is less attractive. As a result, the costs of debt finance will increase, and bank stability will be negatively affected. Insofar as the European Union competes for debt finance, there is a risk of lower investment levels and higher bank instability in particular if other regions and states offer higher and more coherent levels of loan enforcement. Traders and consumers based in the European Union might look to other regions and countries in the search for more attractive conditions for debt finance.