Mit Erklärung vom 24.10.2017 begrüßt DLA Piper die Initiative der EU Kommission zur Entwicklung eines „secondary market“ und listet folgende Punkte auf, die die EU Kommission in der zukünftigen Beratung berücksichtigen sollte:

• The need to address the factors contributing to the bid-ask gap for NPLs, such as treatment of provisioning and write offs by banks leading to high ask prices, and high costs and a need for high returns which can result in low offer prices from investors
• Ways in which access to loan information for investors may be improved, such as considering changes to data protection rules to allow for information to be shared more easily (while still providing sufficient protection for debtors) and measures, such as standardising due diligence information, to encourage originating lenders to collect and store relevant loan information in an easily accessible form from the outset
• Procedural and regulatory improvements to support the trading and resolution of NPLs
• Other solutions to the NPL problem and ways in which they might be encouraged in appropriate circumstances, including the use of joint ventures, securitisation structures, bad banks and common platforms for resolving NPLs (such as those which are being used in Portugal and Italy)

The consultation also considers the introduction of a European-wide security instrument which could allow for out-of-court enforcement of security. While seeking ways in which lenders can achieve a quicker exit from NPLs, in a manner which is consistent across EU Member States, is a worthy goal, there appear to be some challenges to achieving this through the proposed security instrument. It may be difficult to agree the form of such an instrument due to legal, constitutional and cultural differences across Member States. In addition, even if such an instrument were introduced, there could be issues with low levels of lender take up in jurisdictions where lenders consider court involvement in enforcement to provide a level of protection from claims from borrowers that the enforcement process has been improper or that the enforcement proceeds achieved are too low.