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The study results reported focus on the enforcement of bank loans. The study does not cover other stakeholders such as debtors or equity investors. Consequently, while the study aims to contribute to a better understanding of debt finance in the European Union, it does not make comprehensive normative claims as regards the efficiency of finance law. Nevertheless, even based on the narrower focus of this study, a number of normative evaluations and reform considerations can be made.

The study reveals certain areas of individual and collective enforcement law, where enforcement support is suboptimal. These findings are, to a certain degree, independent from more comprehensive efficiency considerations. Examples are low scores for individual enforcement, the enforcement of secured loans and court capacity. Another striking cause for concern is incoherent enforcement frameworks that treat certain types of loans differently without good reason. Improving such deficiencies promises better access to debt finance, improved bank stability and a level playing field for all types of lenders and borrowers. Action could be taken with a view to the relationship between the European Union and other regions and countries, the cross-border relationships between EU Member States and the situation within Member States.

Depending on the appetite for change, at least four approaches to reform can be envisaged at the level of the European Union in addition to mere cross-border or national initiatives:

▪ Horizontal reform covering larger areas of law: examples are harmonisation efforts concerning insolvency law, credit security law and/or private enforcement law.

▪ Vertical instruments with a more limited focus: they could target areas where the study finds particular convergence (for example avoidance actions) or divergence (for example enforcement of security without the involvement of state authorities) between Member States.

▪ Framework directive offering modules and options to choose from: this could improve consistency in the European Union while at the same time leaving Member States options to choose from. For example, a framework directive could harmonise the elements of avoidance actions, such as grounds for avoiding transactions and the relevant retrospective time periods.

▪ European rules to opt-in: this would create a genuinely European regime, which would be offered to citizens in addition to Member States’ frameworks. For example, borrowers such as companies could voluntarily opt into a European insolvency law if they wished. The applicable insolvency law would be identifiable for creditors through an open register (in the case of companies, the enterprise register).

(1) For the entire study see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States, November 2019, available at ec.europa.eu/info/publications/191203-study-loan-enforcement-laws_en. This paper is a reprint from Festschrift für Klaus Hopt zum 80. Geburtstag, edited by Stefan Grundmann et al, Berlin, 2020. The author thanks the publisher De Gruyter for the permission to reprint.

(2) The author gratefully acknowledges the following contributions to the report. The Capital Markets Union Unit (B1) has designed the questionnaire. The answers to the questions have been provided by the Member States. Raluca Maran, Economic Analysis and Evaluation Unit (E4) of the European Commission, has coded the Member States’ answers, contributed to the statistical analysis and designed the charts. Narine Lalafaryan has also coded the Member States’ answers and provided research assistance. Simon Deakin, Mathias Siems and Walter Doralt were available to discuss methodological approaches. Reinhard Greger and Christian Koller offered advice on selected content.

(3) See, for example, S. A. Davydenko and J. R. Franks, Do Bankruptcy Codes Matter? A Study of Defaults in France, Germany and the U.K., Journal of Finance, Vol. 63, 2008, 565, 601 et seq.

(4) See, for example, the reconceptualisation of the law of loans in K J Hopt Kreditrecht – Bankkredit und Darlehen im deutschen Recht, Berlin, 1989, together with P. O. Mülbert.

(5) See, for example, K. J. Hopt, Rechtspflichten der Kreditinstitute zur Kreditversorgung, Kreditbelassung und Sanierung von Unternehmen –Wirtschafts– und bankrechtliche Überlegungen zum deutschen und französischen Recht, Zeitschrift für das gesamte Handelsrecht, Vol. 143, 1979, 139.

(6) See, for example, K. J. Hopt (ed), Vertrags- und Formularbuch zum Handels-, Gesellschafts- und Bankrecht, 4th edn, München, 2013.

(7) For the entire questionnaire see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), Annexe 1, p. 88.

(8) In parallel, the European Banking Authority (EBA) has started research on recovery rates and speed as regards the enforcement of non-performing bank loans. The final report is scheduled for July 2020. For details see eba.europa.eu/about-us/missions-and-tasks/calls-for-advice.

(9) See doingbusiness.org/en/data/exploretopics/resolving-insolvency.

(10) On the methodology of the World Bank project see doingbusiness.org/en/methodology/resolving-insolvency.

(11) S. A. Davydenko and J. R. Franks, Do Bankruptcy Codes Matter? A Study of Defaults in France, Germany and the U.K., Journal of Finance, Vol. 63, 2008, 565.

(12) See cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/research-projects-output/creditor-protection-index-references-25-countries.pdf.

(13) S. Deakin et al, Varieties of Creditor Protection: Insolvency Law Reform and Credit Expansion in Developed Market Economies, Socio-Economic Review, Vol. 15, 2017, 359.

(14) Action Plan on Building a Capital Markets Union, COM(2015) 468 final of 30 September 2015.

(15) For further limitations of scope see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), p. 10 et seq.

(16) The study also undertakes a cluster network analysis. This is omitted in this paper due to space limitations. For details see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), pp. 20 et seqq. and Chapter 6 (pp. 64 et seqq.).

(17) R. La Porta et al, Law and Finance, Journal of Political Economy, Vol. 106, 1998, 1113.

(18) See www.cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/research-projects-output/creditor-protection-index-references-25-countries.pdf.

(19) For the methodology see oecd.org/els/emp/EPL-Methodology.pdf.

(20) For further details see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), pp. 18 et seqq.

(21) For details see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), Annexe 3 (Coding principles).

(22) For all values see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), Annexe 4 (Coding results).

(23) CF. A. Schwartz, A Contract Theory Approach to Business Bankruptcy, Yale Law Journal, Vol. 107, 1998, 1807, 1813.

(24) If the deciding factor is the capability of the borrower to fully adjust the contract to the borrower’s preferences, the dividing line may not run between traders and consumers. Instead, some traders, for example micro and small companies, may also fall into the category of those who are not fully adjusting. This is ultimately an empirical question; see, e.g., E Warren and J. L. Westbrook, Contracting out of Bankruptcy: An Empirical Intervention, Harvard Law Review, Vol. 118, 2005, 1197.

(25) As mentioned above, the intrinsic differences between secured and unsecured loans need to be considered.

(26) For further details and charts see F. Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), p. 33 et seqq.

(27) As explained above, the intrinsic difference between secured and unsecured loans should be reflected in the price of credit.

(28) The questionnaire defines clearance rates as incoming/resolved cases. Where Member States only gave a figure, this was understood as incoming/resolved cases and recalculated to reflect the resolved/incoming cases format. For more details on the calculation see the specific coding guidance for Question 1.28 in Annexe 3 of F Steffek, Analysis of Individual and Collective Loan Enforcement Laws in the EU Member States (fn. 1), p. 118.

(29) Chart 8 caps results at 100%.

(30) Average value of answers by Member State; normalised across {0,1}, with 1 = 1 (or 100%) and higher numbers; applied the following priority to the available data: (1) corporate debtor/legal person insolvency proceedings clearance rate, (2) entrepreneurs insolvency proceedings clearance rate, (3) general insolvency proceedings clearance rate, (4) general court clearance rate; most recent year.

(31) The Regulation on Insolvency Proceedings, Regulation (EU) 2015/848 of 20 May 2015, OJ L 141/19, mainly concerns cross-border aspects and none of the issues relevant here.