11 Amendments of Jiří MAŠTÁLKA related to 2018/0044(COD)
Amendment 20 #
Proposal for a regulation
Recital 11
Recital 11
(11) Conflict of laws rules governing the third-party (or proprietary) effects of assignments of claims do not currently exist at Union level. These conflict of laws rules are laid down at Member State level, but they are inconsistent and often unclear. In cross- border assignments of claims, the inconsistency of national conflict of laws rules leads to legal uncertainty as to which law applies to the third-party effects of the assignments. The lack of legal certainty creates a legal risk in cross-border assignments of claims which does not exist in domestic assignments as different national substantive rules may be applied depending on the Member State whose courts or authorities assess a dispute as to the legal title over the claims.
Amendment 24 #
(14a) This Regulation is not intended to alter the provisions of Rome I regarding the proprietary effect of a voluntary assignment as between assignor and assignee or as between assignee and debtor.
Amendment 25 #
Proposal for a regulation
Recital 15
Recital 15
Amendment 29 #
Proposal for a regulation
Recital 16
Recital 16
(16) The claims covered by this Regulation are inter alia trade receivables, claims arising from financial instruments as defined in Directive 2014/65/EU on markets in financial instruments43 and cash credited to an account in a credit institution. Financial instruments as defined in Directive 2014/65/EU include securities and derivatives traded on financial markets. While securities are assets, derivatives are contracts which include both rights (or claims) and obligations for the parties to the contract. _________________ 43 Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L 173, 12.6.2014, p. 349–496.
Amendment 46 #
Proposal for a regulation
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
(e) ‘third-party effects’ means proprietary effects, that is, the right of the assignee to assert his legal title over a claim assigned to him towards other assignees or beneficiaries of the same or functionally equivalent claim, creditors of the assignor and other third parties;
Amendment 49 #
Proposal for a regulation
Article 2 – paragraph 1 – point i a (new)
Article 2 – paragraph 1 – point i a (new)
(ia) ‘securitisation’ means -pursuant to Art. 2(1) Regulation(EU) 2017/2042- a transaction or scheme, whereby the credit risk associated with an exposure or a pool of exposures is tranched, having all of the following characteristics: (a) payments in the transaction or scheme are dependent upon the performance of the exposure or of the pool of exposures; (b) the subordination of tranches determines the distribution of losses during the ongoing life of the transaction or scheme; (c) the transaction or scheme does not create exposures which possess all of the characteristics listed in Article 147(8) of Regulation (EU) No 575/2013.
Amendment 52 #
Proposal for a regulation
Article 4 – paragraph 1 – subparagraph 1 a (new)
Article 4 – paragraph 1 – subparagraph 1 a (new)
The material time for determining the habitual residence of the assignor is the point in time that the assignment is made.
Amendment 59 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1
Article 4 – paragraph 3 – subparagraph 1
The assignor and the assignee may choose the law applicable to the assigned claim as the law applicable to the third-party effects of an assignment of claims in view of a securitisation, as well as in view of supply chain finance programs and secondary trading in syndicated loans.
Amendment 61 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 2
Article 4 – paragraph 3 – subparagraph 2
The choice of law shall be made expressly in the assignment contract or by a separate agreement. The substantive and formal validity of the act whereby the choice of law was made shall be governed by the chosen law. Any assignment shall be formally valid if it satisfies the formal requirements of the law that applies to the contract between the assignor and assignee under Article 14(1) of Rome I.
Amendment 64 #
Proposal for a regulation
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
If a notice of the assignment to the debtor is one of the requirements referred to in Article 5(a) o or is relevant to any of the questions of priority referred to in Article 5(b) to (e), then any such notice shall be formally valid. This notice shall satisfy the formal requirements for such notices of the law that applies to the relationship between the assignee and the debtor under Article 14(2) of Rome I.
Amendment 66 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1 (new)
Article 6 – paragraph 2 – subparagraph 1 (new)
Collective Redress In a collective redress procedure, jurisdiction for a claim is governed, also when assigned or securitised, by the respective national lex fori until Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) will be complemented by specific consistent union-wide provisions for collective procedures.