Financial Collateral Directive
the Financial Collateral Directive (2002/47/EC (EUR Lex)) is a well-intended piece of EU Regulation that, by common consent, didn't quite achieve what it set out to, which was to introduce "a Community framework to reduce credit exposure in financial collateral arrangements. These common rules contribute to the effectiveness and integration of European financial markets, reducing credit losses and thereby stimulating cross-border transactions and competitiveness."
The directive was designed to simplify and universalise the process of taking security in financial contracts across the EU – for one thing it would mean that any formal registration or perfection requirements which otherwise would be required (registering the security interest with the registrar of companies for example) do not apply.
Contractual Provisions: The Financial Collateral Directive is a little more vague about what counts as a financial collateral arrangement than is ideal, so you may see contractual stipulations that both parties agree their arrangement is intended to be one. While this is no doubt intended to help, given that in the final analysis the person who would challenge that is a competing third party creditor and the person who would be arbitrating on it was a liquidqator, if an arrangement were not formally within the definition, then the fact that the parties agreed it was intended to be probably wouldn’t help.
Title transfer collateral arrangements: TTCAs are not security arrangements of any kind, do not therefore require registration, and therefore the Financial Collateral Directive doesn't really apply to them. But contrast differing styles of agreement that cover the same product:
- a 2010 GMSLA is a TTCA, so isn't in scope for the financial collateral regualtions;
- a Master Securities Lending Agreement is a security interest arrangement, and so is in scope.
Interpretation
Helpful Clifford Chance article here
Adoption
- Portugal: It was adopted by Portugal in July 2004 (see in depth article here)
- UK': It was adopted by the UK under the Financial Collateral Arrangement (No.2) Regulations 2003, fondly known to all as the Financial Collateral Regulations.