Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 63

The above analysis of the European Union as a group has shown that insolvency proceedings are favoured over individual enforcement. As a starting point, this analysis treats both types of proceedings as equal. In reality, of course, individual enforcement at a time when the debtor is not in financial distress, will usually lead to higher recovery rates compared to insolvency proceedings, in which the debtor is usually financially distressed. However, the position in individual enforcement and insolvency proceedings is not always that clear-cut. A bank may be in a position where the choice between individual enforcement and opening insolvency proceedings is not straightforward. Such situations arise when the borrower is close to financial distress or when a lighter form of financial distress is present, but no insolvency proceeding has been commenced yet. It will then matter for the bank’s choice whether the relevant legal framework promises higher recovery rates and shorter recovery times in individual or collective enforcement.

As a matter of principle, Member States should not prefer one type of enforcement to the other without good reason. Otherwise, lenders such as banks will impose a harmful risk premium at the time of lending. This is due to the fact that the lender cannot foresee with certainty at the time of lending whether individual or collective enforcement will become relevant. If the lender knows that one of these procedures is less attractive than the other, the lender will account for the lower enforcement outcome and demand a higher price for extending credit. The type of procedure is not under the lender’s exclusive control. Other creditors can commence insolvency proceedings, which will bind all creditors and keep them from enforcing individually. The risk premium a lender will impose to reflect the potential case of an unattractive enforcement proceeding is undesirable, as it will weigh on the debtors even if this unattractive type of enforcement proceeding never materialises. In short, all borrowers pay the price for suboptimal enforcement frameworks.

The following charts show the averages for each Member State distinguishing between types of proceedings, i.e. whether the bank enforces the loan by way of individual enforcement or insolvency proceeding. The charts do not distinguish the type of debtor.

Chart 6: Average value of “Yes”/“No” answers for individual enforcement:

As regards individual enforcement there are some very low and some high values. The lowest values are 0.08, 0.09, 0.17, 0.20 and 0.22. The highest values are 0.89, 0.86, 0.83, 0.81 and 0.80. As already noted for the European Union as a group, the Member States’ values for insolvency proceedings are much higher. In comparison, banks fare better in insolvency proceedings than in individual enforcement. The lowest values for insolvency proceedings are 0.38 and 0.39 compared to 0.08 and 0.09 for individual enforcement. Chart 7 shows further details for insolvency proceedings.

Chart 7: Average value of “Yes”/”No” answers for insolvency proceeding:

The spread of values is much higher for individual enforcement than for insolvency proceedings. This is revealed by a simple visual comparison of the above two charts. Banks face strongly differing levels of support and obstacles when individually enforcing loans in specific Member States. In contrast, enforcement is generally better in insolvency and there is less variation in the support level between Member States. As explained, differences between levels of support of the various types of proceedings within one Member State are undesirable.