Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 66

The study reported here also researched the features the Member States’ enforcement frameworks share. It shows that the Member States in fact share a significant number of legal features concerning the enforcement of bank loans. The convergence is much more manifest in the features that are present than in the characteristics that are absent.

Altogether, 17 features are present in the enforcement frameworks of the Member States at a rate between 92% and 100%. The commonalities in particular concern rules on the treatment of unsecured bank claims in the insolvency proceeding of all types of debtors. Noticeable themes are: the ease with which the bank can commence insolvency proceedings; the ability of the insolvency practitioner to recover assets the debtor has transferred to other persons; the preservation of the contractually agreed priority order in insolvency as regards security and the governance of insolvency proceedings. Interestingly, there are no positively shared features concerning individual enforcement. It is striking that there is impressive conformity amongst Member States as regards insolvency proceedings, even though at the relevant time there are hardly any mandatory EU (or other) harmonisation instruments in the area of substantive insolvency law31.

Convergence between the Member States is much less pronounced as regards absent features. 18 out of 20 features are absent only in 62% to 78% of 28 Member States. The absent features concern a mix of all enforcement issues researched. They concern all types of debtors, unsecured and secured claims as well as individual and collective enforcement proceedings. The only common theme among the absent features is the lack of private powers of banks to enforce loan contracts. This means that Member States predominantly require banks to apply to state institutions for relevant enforcement action.