Autore
Abatangelo, Chiara

Titolo
The Directive 2002/47/EC Compared with the Italian Set of Rules on Security Interests
Periodico
Osservatorio del diritto civile e commerciale
Anno: 2013 - Fascicolo: 1 - Pagina iniziale: 187

The regulation on financial collateral agreements, provided by Directive 2002/47/EC (so called Collateral Directive) - put into force in the Italian legal system by legislativedecree n. 170/2004 - contains specific rules inspired by a principle opposite to that foundon the ground of the prohibition of patto commissorio (art. 2744 c.c.). The above dispositionstates, in fact, that a creditor cannot become owner of a certain item with the sole purposeof covering the performance of the obligation. Thus, ownership of the collateral cannotpass to the creditor if the debtor fails to honour his debt, out of a legal procedure led by thejudicial authority. Instead, European regulation aims to encourage creditors to lend moneyby allowing, on the one hand, parties to agree on title transfer financial collateral agreements- whereby the ownership of the collateral passes to the creditor - and by providing,on the other hand, the creditor with special tools for obtaining satisfaction should the debtnot be repaid. In the event of default, the creditor can appropriate the collateral and give thedebtor the difference between the value of the collateral and the outstanding sum incurredby the debtor himself. Therefore, the implementation of the Directive in the Italian legalsystem has created a specific area - related to financial collateral - in which the prohibitionof patto commissorio is ineffective. Furthermore, this European regulation is the expressionof a trend favouring self-help remedies for the creditor, who can - if the debt is not paid -sell or appropriate the collateral, subject to the condition that he will give the debtor thedifference between the price obtained (or the value of the collateral) and the amount of thedebt. The challenge for the Italian doctrine shall therefore be to examine whether the aboveself-help remedies could be granted in every case in which the value of the collateral can bedetermined according to objective criteria, such as whether the collateral consists of currency,receivables or financial instruments negotiable in the market.



SICI: 2281-2628(2013)1<187:TD2CWT>2.0.ZU;2-B
Testo completo: http://www.mulino.it/download/article/10.4478/74696
Testo completo alternativo: http://www.mulino.it/doi/10.4478/74696

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