¹ This chapter is a revised version of a seminar paper given on 12 February 2014 on the occasion of the Lent Term Seminar Programme organised by the Centre for European Legal Studies, University of Cambridge. I would like to thank Professor Kenneth Armstrong, Director of the Centre for his kind invitation, and Dr Jens M Scherpe, University Senior Lecturer, for the recommendation to participate in the seminar.

² See the data published in: EMF HYPOSTAT 2013, www.hypo.org/Content/Default.asp?PageID=524.

³ Conceptual differences in individual security rights on immovables mostly ensue from the fact that some are typical of common law systems (ie mortgage), and some of civil (continental) law systems (ie hypothec). The most important differences are reflected in the legal effects of the establishment of security rights on immovables (conveyance of the mortgagor’s title to the mortgagee, the establishment of an unlimited real right in favour of the mortgagee, conditional/fiduciary transfer of ownership to the mortgagee). For more, see van Erp, S, ‘A secure start for the development of European property law’ in Sicherungsrechte an Immobilien in Europa, ed Hinteregger, M and Boric´, T (Vienna, Lit Verlag GmbH & Co KG, 2009) 5 Google Scholar; M Hinnteregger, ‘Die Immobiliensicherheit in Europa—eine rechtvergleichende Skizze’ in Sicherungsrechte an Immobilien in Europa, ibid, 42; Sagaert, V, ‘Harmonization of Security Rights on Immoveables: An Ongoing Story’ in Towards a European Civil Code, ed Hartkamp, A, Hesselink, M, Hondius, E, Mak, C and du Perron, E (Kluwer Law International BV, 2011) 1046–48Google Scholar.

⁴ See eg the results of the comparative research of the legal regulation of mortgage in Europe published in verband deutscher pfandbriefbanken, Round Table ‘Flexibility, Security and Efficiency of Security Rights Over Immovable Property in Europe’, Schaubilder ENGLISH (Stand Bd III, 3. Erweiterte Auflage, Berlin 2012—Übersetzung gem Bd 50 vdp-Schriftenreihe) at: www.pfandbrief.de/cms/_internet.nsf/tindex/de_de_rtall.htm.

⁵ See eg the results of the comparative research published in the White Paper on the Integration of EU Mortgage Credit Markets, ANNEX 3 (2007): ec.europa.eu/internal_ market/finservices-retail/home-loans/integration_en.htm#whitepaper. See Aalbers, MB, ‘The Globalisation and Europeanisation of Mortgage Markets’ (2009) 33 International Journal of Urban and Regional Research 400 CrossRefGoogle Scholar.

⁶ Cross-border provision of financial services is thus based on the TFEU rules on the freedom of movement of capital (Arts 63–66 TFEU), freedom of movement of services (Arts 56–62 TFEU) and freedom of establishment (Arts 49–55 TFEU).

⁷ In such cases, a special problem can be the application of separate rules on the applicable law for mortgage agreements and credit agreements. When a credit agreement is entered into in a Member State and the immovable property securing the repayment of the credit is located in another Member State, the law applicable to a mortgage agreement, or to a credit agreement, may be different. A mortgage agreement as a contract relating to the right in rem in immovable property is governed by the law of the country where the property is situated (Art 4(1)(c) Rome I Regulation). This rule applies even in the case where a consumer concludes a mortgage agreement with a financial institution (Art 6(4)(c) Rome I Regulation). On the other hand, the applicable law for credit agreements is determined under the rules of the Rome I Regulation on freedom of choice (Art 3) and on the applicable law in the absence of choice (Art 4), or, in the case of consumers’ credit agreements, under the rules referred to in Art 6 of the Rome I Regulation. (See König, Ch, ‘The creation of an internal market for mortgage loans: A never ending story?’ (2013) 2 European Policy Analysis)Google Scholar. Every foreign investor who secures his loan with an immovable in another Member State must, therefore, acquaint himself with its national legal system in order to adjust (if this is even possible) the conditions of his loan and its security to a different legal framework from the one in his country. This is usually very time consuming and costly. In situations of a single or occasional cross-border provision of services, it is often also not commercially cost-effective. For more on consumer protection in the Rome I Regulation see Bisping, Christophe, ‘Consumer Protection and Overriding Mandatory Rules in the Rome I Regulation’ in European Consumer Protection, ed Devenny, J and Kenny, M (Cambridge University Press, 2012) 239–56CrossRefGoogle Scholar.

⁸ For more, see under Sections II. and III.

⁹ Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directive 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 [2014] OJ L60/34.

¹⁰ For more, see Sagaert (n 3 above) 1054–62; van Erp (n 3 above), studies and reports on the integration of EU mortgage markets by expert groups established by the European Commission at: http://ec.europa.eu/internal_market/finservices-retail/credit/mortgage/index_ en.htm#maincontentSec3.

¹¹ The accessoriness or non-accessoriness of the security right on immovables depends on the legal nature of the relationship/connection between the secured claim and the security right. Accessory security rights are characterised by a strong legal connection between the security right and the security claim. The emergence, existence, termination and the exercise of a security right depend on the existence of a valid and enforceable secured claim. When it comes to non-accessory security rights, a security right exists regardless of a secured claim. A non-accessory security right may be disposed of independently of a secured claim. A person other than the holder of a secured claim may be the holder of a non-accessory security right. Therefore, non-accessory security rights are considered to be more flexible in legal transactions. For more on the types or effects of accessoriness, see Stöcker, OM and Stürner, R, Flexibility, Security and Efficiency of Security Rights over Real Property in Europe vol III (Berlin, Verband deutcher Pfandbriefbanken, 2010) 44 Google Scholar.

¹² The Development of a European Capital Market, Report of a Group of experts appointed by the EEC Commission, Brussels, November, 1966 (Segré Report): http://ec.europa.eu/economy_finance/emu_history/documentation/chapter1/19661130en382develeurocapitm_a.pdf.

¹³ For more, see Stöcker, O, Die Eurohypothek (Berlin, Duncker & Humblot, 1992) 216, 217Google Scholar.

¹⁴ See Stöcker (n 13 above) 216, 217; Kircher, S, Grundpfandrechte in Europa (Berlin, Duncker und Humblot, 2004) 442 Google Scholar.

¹⁵ See Stöcker (n 13 above) 217.

¹⁶ The accessoriness of security rights means the following: a security right only exists if a secured claim also exists (accessoriness of origin); the scope of a security right is determined by the amount of the secured claim (accessoriness of scope); the holder of the security claim (creditor) is always the holder of the security right (accessoriness of competency); a security right terminates with the extinguishment of the secured claim (accessoriness of extinguishment); a security right can be enforced only if the secured claim is capable of enforcement (accessoriness of enforcement). These types of accessoriness are taken over from Stöcker, Stürner (n 11 above) 44.

¹⁷ Since then, Eurohypothec started to be used as a common name for all other proposals for a universal European real property security instrument on immovables and even in EU documents where the possibility of its introduction was considered.

¹⁸ A shortened version of the Report with the proposals was published in the German language in Wehrens, HG, ‘Der schweizer Schuldbrief und die deutsche Briefgrundschuld—Ein rechtvergleich als Basis für eine zukünftige Eurohypothek’ (1988) 7 Ősterreichische Notaritars Zeitung 181–91Google Scholar; Wehrens, HG, ‘Überlegungen zu einer Eurohypothek’ (1992) 14 Wertpapier Mitteilungen WM Zeitschrift für Wirtschaftsund Bankrecht 557–96Google Scholar.

¹⁹ The regulation of Eurohypothec on the model of the Swiss Schuldbrief is explained by the fact that the Swiss Grundschuld as a non-accessory security right is even more flexible as a security instrument than the German Grundschuld. See Stöcker (n 13 above) 229; Wehrens, ‘Überlegungen zu einer Eurohypothek’ (n 18 above) 560.

²⁰ See Wehrens, ‘Überlegungen zu einer Eurohypothek’ (n 18 above) 560; HG Wehrens, ‘Das Grundbuch als Finanzierungsinstrument’ (1993) Notariatszeitung 69, 70.

²¹ See Wehrens, ‘Der schweizer Schuldbrief’ (n 18 above) 181; Wehrens, ‘Überlegungen zu einer Eurohypothek’ (n 18 above) 559; Kircher (n 14 above) 483; Stöcker, O, ‘The Eurohypothek’ in The Future of European Property Law, ed van Erp, S, Salomons, A, Akkermans, B (Munich, Sellier European Law Publishers, 2012) 75 Google Scholar.

²² See Drewicz-Tułodziecka, Agnieszka (ed), Basic Guidelines for a Eurohypothec: Outcome of the Eurohypothec Workshop, November 2004/April 2005 (Warsaw, Mortgage Credit Foundation, 2005)Google Scholar. The Guidelines are developed in cooperation with experts gathered in a research group called ‘The Eurohypothec: A Common Mortgage for Europe’, members of the subgroup ‘Collateral’ working within the ‘Forum Group on Mortgage Credit’ established by the European Commission, a representative of the European Land Information Service/EULIS and experts from various Member States gathered around the project ‘Real Property Law and Procedure in the European Union’ at the European University Institute in Florence.

²³ Watt, G, ‘The Eurohypothec and the English Mortgage’ (2006) 2 Maastricht Journal of European and Comparative Law 175 Google Scholar; Stöcker, ‘The Eurohypothek’ (n 21 above) 73, 74; Nasarre-Aznar, S, ‘The need for the integration of the mortgage market’ in Europe, The Future of European Property Law, ed van Erp, S, Salomons, A and Akkermans, B (Munich, Sellier European Law Publishers, 2012) 96–98 Google Scholar.

²⁴ The security agreement stipulates under what conditions the holder of the Eurohypothec may keep and enforce the Eurohypothec (Arts 2.2, 4.1, 4.2). If the creditor exercises his rights under the Eurohypothec contrary to this agreement, the owner of the immovable is entitled to the compensation of damage (Art 4.3).

²⁵ See eg Case C-222/97 Trummer v Mayer [1999] ECR I-1661.

²⁶ Art 345 TFEU is very important for the harmonisation of security rights on immovables as a segment of property law. It states that ‘The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership’. In literature, viewpoints can be found that this provision does not exclude the whole of property law from the impact of European law. It is also emphasised that Art 352 TFEU may be a suitable legal basis for future optional instruments on EU property law. See Ramaekers, E, European Union Property Law (Cambridge, Intersentia, 2013) 140, 220–23Google Scholar.

²⁷ Green Paper on Mortgage Credit in the EU (COM(2005) 0327) of 19 July 2005, final.

²⁸ In the Green Paper on Mortgage Credit in the EU, the Commission highlighted the question of regulation of security rights to secure loans as one of the key issues for the integration of the mortgage credit market. It referred to the recommendations for the introduction of the Eurohypothec (eg Basic Guidelines for the Eurohypothec) as a special optional non-accessory security right to be applied in the whole EU. It is characterised by increased flexibility and it would exist as a separate security right in parallel with the national regulations for mortgages. However, being aware of the complexity of the issue, particularly because it overlaps with many other legal areas such as substantive law and the law of obligations, the EC initiated consultations on the necessity and appropriateness of introducing the Eurohypothec.

²⁹ For more, see ‘Feedback on the Consultation on the Green Paper on Mortgage Credit 2006’, 23 May 2006 MARKT/H3JR D(2006): http://ec.europa.eu/internal_market/finservicesretail/archive/mortgage_en.htm; Steven, AJM, ‘Accessoriness and Security over Land’ (2009) 13 Edinburgh Law Review 421 CrossRefGoogle Scholar.

³⁰ See van Erp, S, Akkermans, B, ‘European Union Property Law European Union Private Law, ed Twigg-Flesner, Ch (Cambridge, Cambridge University Press, 2010) 181 Google Scholar.

³¹ White Paper on the Integration of EU Mortgage Credit Markets, 18 December 2007 [SEC/2007) 1683, SEC(2007) 1684] (COM/2007/0807 final). For more see S Nasarre-Aznar (n 23 above) 90, 91.

³² The Eurohypothec is mentioned only in one of the annexes (Annex Three ‘Impact Assessment of Specific Issues’) as one of the models which could facilitate the cross-border transfer of mortgage loan portfolios (169).

³³ Commission Recommendation of 1 March 2001 on pre-contractual information to be given to consumer by lenders offering home loans [2001] OJ L69/25.

³⁴ Agreement on the Code of Conduct and Register of Institutions adhering to the European Code are published at: http://ec.auropa.eu/internal_market/finservices-retail/home-loans/code_en.htm. For more on the implementation of the Code see HJ Dübel and M Rothemund, ‘A New Mortgage Credit Regime for Europe—Setting the Rights Priorities’ (2011) Center for European Policy Studies/European Credit Research Institute, EPS Special Report (www.ceps. eu/book/new-mortgage-credit-regime-europe-setting-right-priorities) 37–41.

³⁵ See expert group studies and reports on the integration of EU mortgage markets at: http://ec.europa.eu/internal_market/finservices-retail/archive/mortgage_en.htm.

³⁶ 2006/2012(INI): www.europarl.europa.eu.

³⁷ See White Paper on the Integration of EU Mortgage Credit Markets (n 31 above).

³⁸ See n 9 above.

³⁹ This Directive was adopted on the basis of Art 114 TFEU which constitutes the basis for the harmonisation of consumer protection in Member States in the context of the completion of the internal market (Art 169(2)(a) TFEU).

⁴⁰ For more on previous attempts of the Commission to regulate EU mortgage credit markets see Ch König (n 7 above) 3, 4.

⁴¹ The proposal for a Directive of the European Parliament and of the Council on credit agreements relating to residential property (text with EEA relevance), COM(2011) 0142 final—COD(2011) 0062.

⁴² The quotation taken from Recital (3) of the Preamble to the Mortgage Credit Directive.

⁴³ Proposal for a Directive on the freedom of establishment and the free supply of services in the field of mortgage credit, Brussels, 7.2.1985, COM(84) 730 final (http://aei.pitt.edu/8826).

⁴⁴ Proposal for a Directive of the European Parliament and of the Council on credit agreements relating to residential property, Brussels, 31.3.2011, COM(2011) 142 final (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52011PC0142).

⁴⁵ See Arts 9, 12, 18 of the Proposal/2011.

⁴⁶ See the Amendments adopted by the European Parliament on 10 September 2013 on the proposal for a directive of the European Parliament and of the Council on credit agreements relating to residential property (COM(2011) 0142—C7-0085/2011—COD(2011) 0062): www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2013-0341&language=EN&ring=A7-2012-0202.

⁴⁷ See, eg p 3, 6 MCD – Text adopted by European Parliament (n 42 above).

⁴⁸ Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC [2008] OJ L133/66–92.

⁴⁹ Cf points 19, 20 of the Preamble to the Directive.

⁵⁰ In order to ensure harmonised protection of consumers in taking consumer loans, residential mortgage credits and home loans, there are various links (in individual articles of the Mortgage Credit Directive) between the CCD and MCD. Eg, in some of its articles, the MCD refers to the appropriate application of the CCD. Thus, the MCD, in Art 4 which outlines some definitions for the purpose of this Directive, only refers to the definitions given in the CCD, such as the definitions of ‘consumer’, ‘total amount of credit’, ‘total amount payable by the consumer’, ‘borrowing rate’, ‘durable medium’ (Art 4, points (1), (12), (14), (16), (18) MCD). On the other hand, the MCD in some cases leaves an option to Member States not to apply some provisions of the MCD to some credit agreements but only under the condition that they apply the provisions of the CCD (Art 3(3)(a), (e) MCD).

⁵¹ The exceptions from the scope of application of the CCD are expressly laid down in Art 2(2) CCD. However, the MCD has expressly broadened the scope of application of the CCD regardless of these exceptions. Art 46 MCD expressly supplements the CCD by widening the scope of application also to unsecured credit agreements whose purpose is the renovation of residential movable property involving a total amount of credit exceeding €75,000.

⁵² For the purposes of the Directive, ‘credit agreement’ means an agreement whereby a creditor grants or promises to grant, to a consumer, a credit falling within the scope of the Directive (Art 3) in the form of a deferred payment, loan or other similar financial accommodation (Art 4(3) MCD).

⁵³ Credit agreements excluded from the scope of application of the Directive are expressly specified in Art 4(2) MCD.

⁵⁴ For the purposes of the Directive, ‘consumer’ is defined as in Art 3(a) CCD (Art 4(1) MCD). According to the MCD, ‘consumer’ is considered to be a natural person who, in transactions covered by the Directive, is acting for the purposes which are outside his trade, business or profession. ‘Creditor’ means a natural or legal person who grants or promises to grant credit falling within the scope of the Directive (Art 3) in the course of his trade, business or profession (Art 4(2) MCD).

⁵⁵ Cf Recital 13 of the Preamble to the Directive.

⁵⁶ The Member States may, however, extend the scope of application of the Directive also to credit agreements related to other forms of immovable property (recital 13 of the Preamble).

⁵⁷ Compare, eg Arts 3(3); 7(5); 11(1); 12(2), (3), (4); 14(6); 16(2); 22(4), (5); 23(2), (5); 25(2), (3), (5); 27(2); 28(2), (3).

⁵⁸ Cf Arts 29–35 MCD.

⁵⁹ The principles for conducting business must include the obligation to act honestly, fairly, transparently and professionally, to organise sound and effective risk management, to act in the consumer’s best interest, to provide information free of charge to consumers, to have an appropriate level of knowledge and competence, the obligation for advertising to be fair, clear and not misleading, and the prohibition of tying practices. See Ch König (n 7 above) 4.

⁶⁰ See Ch König (n 7 above) 6.

⁶¹ See Ch König (n 7 above) 5.

⁶² See eg Consumer Credit Directive (n 48 above), or Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts [2009] OJ L33/10.

⁶³ Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council [2011] OJ L304/64.

⁶⁴ The obligation of pre-contractual information does not apply to consumer contracts exempted from the area of application of the Directive on Consumer Rights (Art 3(2)) or for distance and off-premises contracts in the case of which pre-contractual requirements are particularly provided for in this Directive (Art 6).

⁶⁵ Comp Annex II MCD.

⁶⁶ See Ch König (n 7 above) 7.

⁶⁷ See HJ Dübel and M Rothemund (n 34 above) 3.

⁶⁸ The creditor would not be in a position to subsequently cancel or alter the credit agreement because of irregular assessment, unless the consumer consciously withholds or falsifies information (Art 18(4) MCD).

⁶⁹ See below under III.B.iii on contracting the right to agree the transfer of charged property to repay the credit.

⁷⁰ The Commission’s proposal for a Directive on credit agreements relating to residential property of 2011 did not provide for the protection of consumers when taking foreign currency loans. Special rules on consumer protection have been incorporated in the Directive as an amendment by the European Parliament.

⁷¹ An alternative currency is either the currency in which the consumer primarily receives income or holds assets from which the credit is to be repaid, or the currency of the Member State in which the consumer was either resident at the time the credit agreement was concluded, or in which he is currently resident (Art 23(2) MCD). In the case of the conversion of a credit agreement into an alternative currency, the exchange rate at which the conversion is carried out is the market exchange rate applicable on the day of the application for conversion, unless otherwise specified in the credit agreement (Art 23(3) MCD).

⁷² The basic condition for the realisation of the right by which the consumer is protected against an exchange rate risk is his being well informed about the risk. In line with this requirement, the Directive puts an obligation on Member States to bind creditors to warn consumers of the changes of the exchange rate at least where the value of the total amount payable by the consumer varies by more than 20% (Art 23(4) MCD).

⁷³ Eg, in December 2013, the Republic of Croatia, shortly after having become a full Member State of the EU (1 July 2013), amended the Consumer Credit Act (2009), by which the Consumer Credit Directive was implemented with the provision on the protection of consumers from changes in exchange rates. The Croatian Consumer Foreign Currency Housing Loans Act lays down a maximum amount of variable rate credit if the exchange rate changes by 20% or more. There is also a provision binding creditors to offer the conversion of loans into the domestic currency (Art 11(a)).

⁷⁴ The so-called ‘pre-payment option’ is considered as a measure ensuring financial and physical mobility of European consumers. See HJ Dübel and M Rothemund (n 34 above) 4, 60.

⁷⁵ For more, see in the ‘Study on the Means to Protect Consumers in Financial Difficulty: Personal Bankruptcy, Datio in Solutum of Mortgages, and Restrictions on Debt Collection Abusive Practices’. Final Report prepared by London Economics (2012) 106–54, 201–18: http://ec.europa.eu/internal_market/finservices-retail/docs/fsug/papers/debt_solutions_report_ en.pdf.

⁷⁶ See the ‘Study on the Means to Protect Consumers in Financial Difficulty’ (n 75 above) 204–13, 218.

⁷⁷ A very important aspect of the protection of a consumer whose residential immovable property is sold in foreclosure proceedings for the repayment of debts arising from a credit agreement is the legal instrument (eg legal action, complaint, appeal, or an interim measure) by which the consumer in foreclosure proceedings may exercise the protection of his rights, challenge the validity of a credit agreement, unfair contract terms, etc. All these instruments must be regulated in such a way that they offer the consumer efficient protection of his rights. See eg Case C-415/11 Mohamed Aziz v Caixa d Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa ) [2013] ECR nyr. This case concerns the interpretation of the principle of the efficiency of interim relief in mortgage enforcement proceedings for the payment of a claim arising from a consumer mortgage credit agreement. For more on the meaning of the principle of efficient consumer protection when dealing with unfair contract terms, see in Reich, N, General Principles of EU Civil Law (Cambridge, Intersentia, 2014) 89–129Google Scholar; König, J, Der Äquivalenz-und Effektivitätgtundsatz in der Rechtsprechung des Europäischen Gerichtshofs (Nomos, 2011) 205–11CrossRefGoogle Scholar; Rott, P, ‘The Court of Justice’s Principle of Effectiveness and its Unforeseeable Impact on Private Law Relationships’ in The Involvement of EU Law in Private Law Relationships, ed Leczykiewicz, D and Weatherill, S (Oxford, Hart Publishing, 2013) 181–98Google Scholar.

⁷⁸ See Ch König (n 7 above) 13.