Work continues in the EU Council on the proposal for a Regulation on the law applicable to the effectiveness of assignments of claims (see EUROPE 11979/1). On Monday 27 July, the German Presidency of the Council put a revised text on the table, which is to be examined by the Council Working Party on Civil Law Matters on 3 and 7 September.
Compared to the German-Croatian text presented at the end of June (see EUROPE 12516/9), the new text, of which EUROPE has received a copy, contains few changes.
It maintains the same general rule, namely that in conflict situations the law of the country in which the transferor has his habitual residence at the time of the conclusion of the contract of assignment applies.
Nevertheless, the text continues to indicate that the matter is not definitively settled and that some Member States still wish to reverse the general rule, preferring the application of the law of the assigned claim, with several preliminary objections. In addition, a drafting proposal has reportedly been submitted by the Italian delegation.
Since June, work seems to have focused instead on the claims to which the right of the assigned claim should apply.
The text further provides that the parties to the assignment contract will be free to choose the law applicable to a claim assigned for securitisation, as proposed by the Commission, but also in the context of the issuance of a covered bond. Several Member States would like to see this addition, but again the issue is not definitively resolved.
The text also maintains the two options, drawn up under the Croatian Presidency of the Council, concerning claims secured by immovable property or property entered in a public register (see EUROPE 12475/18). However, in the view of the German Presidency, the discussions showed that further reflection on this subject and reworking of the wording were necessary.
The text also leaves intact the provision that a priority conflict between several transferees of the same assigned claim whose effectiveness against third parties of one or more assignments is governed by the law of the place of the transferor’s habitual residence and, for one or more other assignments, by the law applicable to the assigned claim, will be governed by the law applicable to the effectiveness against third parties of the assignment first made under the law applicable to it.
The EU Council has apparently still not determined the date from which the Regulation would apply to the contracts concluded on assignment of claims. During a debate at the beginning of June, the European Ministers of Justice were in any case in favour of the non-retroactivity of the regulation (see EUROPE 12499/12).
Two options are, however, envisaged for the date of application of the Regulation in the Member States, i.e., 18 or 24 months after its entry into force. (Original version in French by Marion Fontana)