Juristica International

1. Introduction: Some problems and developments

Proprietary security rights in movable assets are an issue of significant practical importance in all European countries. Accordingly, it may be appropriate to start this article with a statement of reassurance: If you are a practitioner—an attorney, a judge or notary, or a lawyer in the banking business—you have no need to be afraid. There is no forthcoming European legislation turning your well-known national system upside down within the next couple of years. In fact, for the time being, there is no European legislation in sight in this area at all.

However, if you are a practitioner, you may wish certain issues to be resolved in a suitable and efficient way, within a framework providing legal certainty. Depending on the jurisdiction you practise in, the particular problems in that respect may differ. I may start a short list of examples by referring to my own country, Austria. Under the Austrian regime for proprietary security rights, many goods are, from a practical point of view, completely precluded from being used as collateral for credit. Because of a strict understanding of the principle of publicity, which applies both to pledge rights and to transfers of ownership for security purposes, the security provider must actually be dispossessed of the encumbered assets.  *1 Consequently, it will not be possible to use the encumbered asset (machine, motor vehicle, or other asset) for the debtor’s business. A narrow exception, allowing ‘symbolic’ delivery, applies in cases where handing over the collateral goods would, on account of their physical character, be ‘impossible or unreasonable’;  *2 but the scope of this rule is very uncertain in practice (which, for example, makes it extremely difficult to pledge inventory).

Matters are certainly easier under German and Estonian law, wherein a transfer of ownership for security purposes is possible by way of constitutum possessorium—i.e., on the basis of a mere agreement, without physical delivery.  *3 However, such a security interest is generally lost once the encumbered asset (e.g., a truck) crosses national borders. In fact, the differences between the legal regimes concerning proprietary security rights adopted in the various European countries cause a lot of practical problems, and, on account of the mandatory lex rei sitae rule in private international law, these problems can hardly be overcome by contractual regulation.

If you are advising a large firm producing raw materials or goods that are sold under retention of title, you may want your client’s security interest to be ‘durable’—i.e., to persist upon resale of these goods by your client’s customer, or when the material is used in a further production process by the buyer. Both will be impossible in, for instance, the Netherlands.  *4

If you are a judge in Estonia or Germany, you may—perhaps—feel somewhat uncomfortable when ruling (in accordance with the prevailing opinion) that a transfer of ownership for security purposes is valid without delivery  *5 whereas the creation of a pledge, which is functionally equivalent, would not.  *6 Or you may wish to find clear guidance in the law on how to integrate ‘new’ or ‘modern’ forms of proprietary security, such as financial leasing or sale and lease-back transactions, into the legal framework in an adequate way.

I have not spoken of academics so far, nor did I speak of the people preparing legislative drafts for the Ministry of Justice. You may want your legal system to be both adequate and dogmatically consistent. And you may long for some inspiration.

At this point, I should draw your attention to a set of model rules published as Book IX of the Draft Common Frame of Reference (DCFR) in 2009.  *7 This set of rules is influenced mainly by the ‘functional’ approach and the ‘notice filing’ concept adopted in Article 9 of the American Uniform Commercial Code (UCC). However, the working group responsible for Book IX DCFR, headed by Professor Ulrich Drobnig, managed to ‘Europeanise’ the American archetype in several instances and to present the rules in a much clearer and more stringent way than in Article 9 UCC. This set of rules, although originating from a private academic initiative, could actually operate as a motor for future law-reform projects in Europe in a medium-term or long-term perspective. Such reform could be implemented as an EU regulation (either replacing or—perhaps more likely—amending the existing national systems, as in the case of an optional instrument). Alternatively, if there is not sufficient political will at the pan-European level, individual states could harmonise their laws in accordance with a common model regulation, which would still make it possible to draw up a common registration system for proprietary security rights (facilitating cross-border transfers of goods and cross-border lending).  *8

So far, to my knowledge, only one—or, probably more correctly, already one—European country has followed the DCFR in adopting a notice-filing system; that is Belgium, with an act of law dated 11 July 2013 that amends the Belgian Civil Code.  *9 To the best of my knowledge, the DCFR had a strong influence on the drafters, although Belgian law did not adopt all choices made in the DCFR  *10 and there are differences in terms of structure. In Scotland, the Law Commission is currently investigating the issue with a view to reporting on it before the end of 2014.  *11

As to content and scope, Book IX DCFR covers all classic types of proprietary security rights as well as all ‘modern’ devices providing some means of proprietary security on a contractual basis (financial leasing, hire purchase, etc.).  *12 It applies to collateral of all types of movable assets, tangible and intangible (goods, receivables, patent rights, etc.), present and future. Also, the rights secured may be present or future. Furthermore, there are no limits as to the persons covered: The security-provider may be a business or a consumer (with some specific provisions applying in the latter case).  *13 No distinction is made between ‘domestic’ and ‘international’ cases.

Book IX DCFR is a complex set of rules, extending to 131 articles spread over seven chapters. Certainly, the articles are anything but easy to read when one encounters the text for the first time. Since space is limited, I will not even try to provide a systematic overview of Book IX. Instead, I will apply a ‘spotlight approach’, pointing at only a few selected central features. The focus will be not on the draft rules themselves but, rather, on the way they operate.

2. A ‘functional approach’: One type of ‘security right’ (plus ‘retention of ownership devices’)

I have mentioned the problem of completely divergent publicity regimes for pledges and transfers of ownership for security purposes, along with the difficulty of adequately integrating ‘new’ forms of security into a legal framework. This may be supplemented by the fact that different European legal systems recognise different types of security rights. My first ‘spotlight’ is related to these issues.

The solution adopted by the DCFR is a ‘functional approach’ as promoted by Article 9 UCC, meaning that Book IX DCFR converts all limited proprietary rights functioning as security and all transfers of ‘full’ rights for security purposes—such as the transfer of ownership for security purposes (Sicherungsübereignung) and the assignment of claims for security purposes (Sicherungsabtretung)—into one single type of ‘security right’ (IX.–1:102 DCFR). This single type of ‘security right’ is subject to a uniform regime governing, in particular, all aspects of creation, priorities, and enforcement (where the secured creditor will generally have ‘only’ a right to preferential satisfaction from the collateral; not a right to separate the goods).  *14 This, evidently, solves the problems of consistency and legal certainty related to ‘new’ forms of security addressed above, and it facilitates international co-operation with respect to trade, financing, and drawing up of a common registration system (or, at least: compatible national registration systems) for collateral. Apart from that, this ‘functional’ approach taken by Book IX DCFR has some further practical implications. For instance, ‘security assignments’ of claims (and security transfers of goods) no longer prevent multiple collateralisation of the same assets: the second creditor intending to create a security right will not be left unsecured on account of the nemo dat principle; he will be secured with second priority, and so on. Thereby, the ‘security right’ approach also aids in mitigating the problem of ‘over-collateralisation’, or Übersicherung—i.e., that the value of the collateral assets far exceeds the secured claims (in Germany, where this problem plays a prominent role, courts found themselves forced to counter-act by adopting, among other approaches, application of the principle that contracts contra bonos mores are void  *15 and by acknowledging a personal claim against the secured creditor to release collateral assets that are no longer necessary for covering the secured right  *16 ).

There is one exception to this ‘functional approach’ in Book IX: So-called retention of ownership devices (including retention of title, hire purchase, financial leasing, and comparable devices)  *17 are treated as a separate constructive category throughout Book IX. In practical terms, however, the differences are not very striking.  *18 The most important aspect is that the holder of a retention of ownership device is, in fact, entitled to separate (recover) the sold goods from the buyer’s estate; i.e., the owner’s right is not limited to a right to preferential payment.

3. Creation, effectiveness, and priority

My second ‘spotlight’ addresses some major conceptual characteristics of Book IX DCFR, which, as becomes apparent in the discussion that follows, generate certain practical effects. To see the difference, let us first consider how, traditionally, proprietary security rights come into existence in continental European legal systems. Such legal systems usually define certain requirements that must be met for a security right to be created (e.g., conclusion of a security agreement and/or a ‘real agreement’, plus delivery or registration), and once these requirements are cumulatively fulfilled, the security right comes into existence and is effective against everyone.  *19 The DCFR parts with this—as one might call it—‘all or nothing’ principle and draws a clear distinction among three individual elements on the level of property law: creation, effectiveness against (certain) third persons, and priority.  *20 Each of these has its own functions, and a separate chapter in Book IX is devoted to each (chapters 2– 4).

3.1. Creation (Chapter 2)

The first of these three elements is ‘creation’, which means that the security right comes into existence as a (limited) proprietary right. In consequence, the secured creditor is entitled to enforcement and satisfaction from the encumbered asset. Also, some third-party effects set in, however limited. In particular, a subsequent acquirer of the encumbered asset can acquire it free of these encumbrances only under rules on good-faith acquisition.  *21

There are different modes of creating a security right  *22 or a retention of ownership device,  *23 which I will not explore in more detail here. The basic modes of creating a security right are ‘granting’ by the security provider (comparable to creating a pledge)  *24 and ‘retention’ by the secured creditor upon transferring of the asset (comparable to the traditional retention of title).  *25 It is worth noting what creation requires and what it does not require. If we take the creation of a security right by ‘granting’ as an example, it is required that the parties have concluded a valid ‘contract for proprietary security’ and a ‘real agreement’ (Verfügungsgeschäft ) and that both the asset (collateral) and the secured right exist. In addition, the asset(s) must be identified by the parties.  *26 It is, however, not required for the element of ‘creation’ that possession be transferred or any kind of registration be performed.

3.2. Effectiveness against (certain) third parties (Chapter 3)

Such additional prerequisites must, however, be fulfilled by the security right in order for it to become ‘effective’ against certain important types of third parties. The three categories of third parties for which this is required are:  *27

a)   other holders of proprietary rights, including effective security rights, in the encumbered asset;

b)   a creditor who has started the process of execution against those assets and has already obtained a position providing protection against a subsequent execution; and

c)  the insolvency administrator of the security provider (who, so to say, represents all unsecured creditors)—it is, therefore, necessary to have an ‘effective’ security right in order to be protected in the matter of the security provider’s insolvency.

‘Effectiveness’ against these third parties can be achieved via three distinct methods. The general method, which is applicable to all types of assets, is registration (in an online, publicly accessible ‘European register of proprietary security’).  *28 It is noteworthy that registration does not include any strict identification of the encumbered assets; nor does it presuppose that the security right has already been ‘created’. Alternatively, a security right in corporeal movable assets can be made effective by one’s holding possession of the encumbered asset,  *29 and a security right over ‘financial assets’ and ‘financial instruments’ can be made effective through exercise of ‘control’ over the encumbered assets.  *30

3.3. Priority (Chapter 4)

Chapter 4, finally, regulates the regime of priorities between different rights in rem in one and the same asset. According to the basic rule,  *31 priority is determined in accordance with the order of the relevant times (prior tempore potior iure). With regard to the relation between competing security rights—which is of the primary interest here—the relevant time is the time of registration, or the point in time when the security right otherwise becomes effective (whichever is earlier).  *32

The basic prior tempore principle is, however, subject to one important exception: IX.–4:102 DCFR provides ‘superpriority’, which means that certain rights are granted priority over certain other rights even if effectiveness was achieved later. The most important example is that (effective) ‘acquisition finance devices’ (i.e., retention of title and functionally equivalent devices) take priority over any security right (or other limited proprietary right) ‘created by the security provider’. Accordingly, for instance, where a buyer under retention of title has previously ‘pledged’ all future inventory, the acquisition finance device will take priority over earlier security right in inventory.  *33

3.4. Practical effects of splitting up creation, effectiveness, and priority

Apart from providing a technical framework for implementing the policy choice of granting privilege to acquisition financing, the splitting up of creation, effectiveness, and priority into three independent categories produces a number of remarkable practical effects. For example, it is possible to perform a registration even before a security right is ‘created’ in the sense of Chapter 2 and even before the contract for proprietary security is concluded.  *34 Via such ‘advance filing’, effectiveness as well as priority can be ‘reserved’ for a creditor at a fairly early stage. Accordingly—and this will certainly be interesting for banks—a ‘secured’ rank can be guaranteed to the future lender already at the time of negotiation of the credit, and an attractive rank can be reserved for possible future extensions of credit. Secondly, collateralisation of ‘global units’, such as ‘all goods held as inventory’, is facilitated. In contrast to other registration systems, here precise ‘identification’ of the encumbered assets does not have to be achieved in the register—i.e., it need not exist for effectiveness and priority, only for creation. Accordingly, mistakes related to identification can be corrected later also, while the effectiveness and priority resulting from a registration already carried out can be maintained.  *35 Thirdly, also securing future debts, even ‘all debts’ resulting from a business relation, is facilitated by allowing of filing before creation (which alone requires that the secured right already exist).

4. Notice-filing

My third ‘spotlight’ is on the functioning of the electronic register. In this respect, the DCFR applies a ‘notice filing’ system, following the example of Article 9 of the UCC. I confine myself to three characteristic features, which have the effects detailed below.  *36

Firstly, entries in the register have no ‘constitutive effect’ on the creation (or termination) of security rights. As we have seen, ‘creation’ in the sense applied in Chapter 2 does not require registration or other acts promoting publicity.

Secondly, the information obtainable from the register does not have to be particularly precise and detailed. The information may be limited to notice that a security right (or retention of ownership device) might be in existence. Described more precisely, the minimum information accessible from the register consists of:  *37

a) the name and contact details of the security provider (which information is characteristic of any personal folio system);

b) the name and contact details of the secured creditor;

c) the date of registration (which is particularly important for determination of priority relations); and

d) a ‘minimum declaration’ as to the encumbered asset and an indication as to the categories of assets (defined in a list) to which the encumbered assets belong.  *38

No details on the secured claim(s) must be provided, nor must the collateral be ‘identified’, in the sense of the common property-law principle of specificity, in the register. This may be regarded as reasonable in order to prevent security providers from becoming ‘debtors of glass’ (fully transparent debtors), as it has been put in the discussion on a law-reform project launched in Austria a couple of years ago,  *39 which ultimately failed for lack of support by banks and other businesses. These circles were not attracted by the idea that even persons without any business relationship with the security provider (e.g., competitors) should be provided with detailed information about the security provider’s amount of debt and conditions of credit,  *40 and that they might obtain a relatively detailed overview of the debtor’s means of production (such as machines and licences), ultimately allowing conclusions as to the debtor’s methods of production, quantitative capacities, and technical expertise.

In addition, where a potential creditor or business partner initially only intends to get a rough overview of the security provider’s financial situation, it may well be that information in brief form by reference to certain categories of assets can serve this function better than very detailed information that includes full identification. In particular, this may be the case where the person searching the register does not understand the language in which the entry is made (whereas the DCFR-specified categories could be displayed in any of several languages)—which one can presume would be a standard problem with a pan-European register.  *41

Thirdly, any precise information, such as whether a proprietary security right has, in fact, been created, has not ceased to exist, and which assets exactly are used as collateral can be ascertained only by means of further enquiries. The source of information for such further enquiries is the secured creditor, whose name and address are visible in the register. There is—at least—a two-part logic underlying this approach:

– The secured creditor is the most reliable source for such information. The alternative source, the security provider, would be subject to significant conflict of interests: He would profit from offering the prospective creditor far-reaching collateralisation, and this could create a risk that the actual situation of encumbrances is not reported correctly. In order to be truly sure, prospective creditors would, therefore, contact the original secured creditor anyway. This, by the way, is consistent with a practice commonly applied in the German banking context, wherein future creditors must obtain an overview of non‑publicised security transfers.  *42

– The notice-filing system further builds upon this superior reliability of the creditor and imposes on the creditor a duty to give such additional information.  *43 However, said duty arises only if the request for additional information is made with the security provider’s approval. This involves the second prong of the logic underlying the DCFR model: Whereas minimal information, which is not necessarily reliable, should be readily available to the general public, it should be up to the security provider to decide to whom detailed and valid information is to be disclosed. The security provider will approve a request if he has a vital interest in obtaining credit from this third person or entering into a business relationship with that person. If, on the other hand, approval is not given, a prospective business partner should be left suspicious.

In this way, Book IX provides a kind of midpoint in its solution regarding publicity. The extent to which the security provider becomes a ‘debtor of glass’ is reduced in comparison to registration regimes providing full publicity (such as that under the Austrian draft proposal of 2006/2007).  *44 On the other hand, the DCFR system certainly provides more publicity than does the Dutch ‘undisclosed pledge’ ^*45 or the current Austrian solution addressing security assignments of claims  *46 (in the latter, the information provided by bookkeeping entries is accessible only to those to whom the bookkeeping is disclosed, from which it follows that third parties are fully dependent on the security provider’s approval of giving information). And, evidently, Book IX provides more publicity than the German and Estonian transfer of ownership for security purposes, which lacks any publicity if made by way of constitutum possessorium.

Fourthly and finally, further characteristics of the registration system  *47 include that entries in the register are made directly by the secured creditor  *48 and require the prior consent of the security provider. Such declarations of consent too are made directly in the register.  *49 The register is to operate as a personal folio system; i.e., entries are filed against identified security providers.  *50 The register operates electronically and is directly accessible to its users in online form;  *51 that is, the filing and searching are executed online. Access to the register for search purposes is open to anyone (subject to the payment of—rather low—fees).  *52 The register can be searched either for entries filed against an individual security provider or for entries pertaining to specifically defined assets,  *53 provided that information sufficiently detailed for identifying individual assets was provided upon registration (e.g., the serial number of a machine). Entries are made directly by the parties, without involvement of a public registrar who might have to check the particulars of the security right and the content, let alone the  validity of the registered facts. This should facilitate rapid or even immediate processing of filings, so that achievement of third-party effectiveness for security rights is not delayed or impeded.

5. Further features

Another aspect that should be spotlighted briefly is costs. The examples of countries operating notice-filing systems indicate that the registration system can be run, and be used, at considerably low cost.  *54

The final areas I want to touch on, at least briefly, are retention of title and functionally equivalent devices (so-called acquisition finance devices).  *55 We have already mentioned one important aspect – namely, that acquisition finance devices are granted ‘superpriority’.  *56 Such superpriority can be contractually extended to proceeds from the collateral goods in the case of resale.  *57 Further aspects include, first and perhaps most notably, Book IX DCFR requiring acquisition finance devices to be registered in order for ‘effectiveness’ to be gained against third persons in the sense of Chapter 3.  *58 This is a departure from the approach in many European countries and proves to be a major point of criticism  *59 ; however, the problem is mitigated by a grace period of 35 days from delivery  *60 and by the fact that a single act of registration can, in effect, cover all future deliveries within a long-term business relationship.  *61

Secondly, it is noteworthy that Book IX accepts both the concept of a) ‘retention of ownership’ in a strict sense—i.e., retention of the full right of ownership, which is enforced by the seller (secured creditor) through termination of the contract and recovery of the goods—and that of b) retention of a mere security right, in which case the seller does not terminate the contract but enforces its secured claim and also does not recover possession of the goods but has a right to preferential payment from the collateral. Thirdly, I want to point out an innovative solution for situations wherein goods sold under retention of ownership (or a similar device) are used by the buyer to produce ‘new goods’ (called ‘production’ in the DCFR). Provided that the parties have concluded an agreement to this effect, the ‘producer’ (the buyer) acquires sole ownership of the products but the supplier of material is entitled against the producer to compensation for the value of the material, secured by a proprietary security right in the new goods.  *62 This solution takes care of the producer-buyer’s sovereignty interests just as much as of the supplier’s value interests.

6. Conclusions

In conclusion, I believe that Book IX DCFR offers several solutions that are both efficient and appropriate in their substance. I do not wish to argue for an uncritical wholesale adoption. Some of its concepts are particularly complex and different from the law seen today in many European countries. Difference, as we know, has some deterrent effect in the development of law. But if the overall results are significantly better, the force of arguments (or, rather, fears) grounded in issues of difference alone should decrease.

The crux of the matter, therefore, is to determine in detail and with care in what regard and to what extent the solutions offered by these model rules would actually be a step forward. This evaluation will actually be unique from each individual Member State’s perspective and may again be different when one is focusing not on potential national reforms alone but on some kind of European integration in this area—in particular, encompassing a common European registration system. It is clear to me that such evaluations take their time, and this is good. Hasty decisions are usually not the best ones. Such evaluations may (and do), of course, reveal problems, which I hope will lead to attempts to modify or amend the model rules proposed in the DCFR and to re-evaluation of the issue in view of them. For example, the facilitating of global security rights evidently increases the ‘risk’ of one first-rank creditor absorbing the value of more or less all movable assets. Lower-ranked secured creditors and also unsecured creditors may be left with virtually nothing in the event of the debtor’s insolvency. This requires some basic discussion as to the extent to which such an effect can be considered acceptable. On that basis, countermeasures should probably be adopted, such as ‘carving out’ a certain percentage in the eventuality of insolvency.

In any case, there is reason to hope that secured-transactions law in Europe can make considerable steps forward in the years to come.