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CMS guide to taking and enforcing security over moveable propertyOctober 2002
2
CMS guide to taking and enforcing security over moveable property
Topic Page
Introduction 3
Austria 4
Belgium 6
Czech Republic 8
England 10
France 12
Germany 14
Hungary 16
Italy 18
Netherlands 20
Poland 22
Romania 24
Russia 26
Switzerland 28
Contacts 30
3
IntroductionThis Guide has been prepared at a time when the European economic outlook seems more uncertain
than for many years. As a result, banks and other financiers will be reviewing existing security structures
and requiring more comprehensive security for new facilities. This comparative guide provides a simple
check list of standard questions raised by financial institutions contemplating granting secured facilities
across Europe.
CMS is a major transnational legal and tax services organisation with 1,700 lawyers and a total staff in
excess of 3,500. CMS has been created by several major European law firms to offer clients seamless
services across Europe. For further information on how we can help please contact:
Austria Peter Huber [email protected]
Belgium Alexis Goeminne [email protected]
Czech Republic Paul Stallebrass [email protected]
England Nicholas Zervos [email protected]
France Gérard Kling [email protected]
Germany Christoph Schücking [email protected]
Hungary Gabriella Ormai [email protected]
Italy Massimo Audisio [email protected]
Netherlands Marcel Groenewegen [email protected]
Poland Keith Ham [email protected]
Romania Cristina Brinzan [email protected]
Russia David Griston [email protected]
Switzerland Kaspar Landolt [email protected]
Details of CMS offices are at the back of this guide.
This guide only provides snapshot answers to certain standard questions. The information contained in
this guide is not comprehensive nor does it purport to be professional advice. If you require specific
advice or further information please call the relevant contact or your usual CMS partner.
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or
notarisation process?
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of
property subject to the Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be
created in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
Yes
No
No
No
No
No
No
Yes, under certain conditions if
transfer of goods is not practicable.
Yes
Yes, if property is sufficiently
determinable.
Yes. Although there is no floating
charge in Austria, similar results
can be achieved for certain classes
of assets (e.g. stock in trade).
Yes
AU
ST
RIA
4
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking pos-
session of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
No
Yes
Yes
Yes
Yes
No
No
No
No
Yes. Creditor who has possession
is given priority.
Yes
No
Yes
No
No. If its assets are sold privately,
the terms must be commercially
reasonable.
5
1 Who can grant a Security Interest over moveable property?
2 Who can hold (receive) a Security Interest over
moveable property?
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and
pledgee over moveable property be created:
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which items
must be filed as part of the registration or notarisation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property forming the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be
created in the following:
tangible moveable (e.g., stock in trade, equipment)?
intangible moveable (e.g., debts, shares)?
future property (e.g., future debts)?
Any legal or natural person
Any legal or natural person (except
for a floating pledge over the busi-
ness of the pledgor, which can only
be held by a Belgian or EU bank.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
A notarial act is possible but not
required to create a Security Interest.
No, (except for a floating pledge over
the business of the pledgor and a
non-commercial pledge which must
be registered).
No
Not applicable (except for a
floating pledge over the business
of the pledgor and a non-com-
mercial pledge which must be
registered).
No
Yes
Yes
BE
LGIU
M
6
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking pos-
session of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Yes, by way of a floating pledge
over the business of the pledgor.
No
Yes, by way of a floating pledge
over the business of the pledgor.
Unknown
No
Yes
Unknown
No (except for a floating pledge
over the business of the pledgor
and a non-commercial pledge which
are subject to registration duties).
No
Yes, for a floating pledge over the
business of the pledgor. Such a
pledge must be registered by the
parties or a notary. There are dedi-
cated registries for ships and for
floating pledges over a business.
The registries are open for public
inspection for a small fee.
Registration fees are calculated as a
percentage of the loan/debt being
secured (between 0.1% and 1%).
Yes
Yes. First creditor to register is
given priority.
Yes
Unknown
Yes
No
Not applicable.
7
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process?
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be created
in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveable (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes (although not required by law).
No
No
Yes. Ownership must be proved or
moveables held by third party.
Not applicable.
Yes
Yes
Yes
Unknown
Yes
No
Unknown
Yes
Yes
Yes
CZ
EC
H R
EP
UB
LIC
8
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases protect
the secured creditor against the debtor’s subsequent deal-
ings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking posses-
sion of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Since this Guide was published, some of the rules in the Czech
Republic have changed. Please contact Paul Stallebrass at
[email protected] for an update.
No
No
Yes, for ships and aeroplanes. The reg-
istries are independent, computerised
but not centralised. There is a flat regis-
tration fee of less than $100. The
registries are open for public inspection
at a fee of less than $25.
Yes
Yes. First creditor to register is
given priority.
Yes
Yes
Yes
Yes
No. If the assets are sold privately,
the terms must be commercially
reasonable.
9
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created:
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third
parties, must a Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which items
must be filed as part of the registration or notarisation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes, in certain cases. Most security
interests created by companies and
security over moveables (including
receivables) created by natural persons
have to be registered.
No
No
No
Yes
Yes
No for companies, yes for persons.
No
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
EN
GLA
ND
10
property already subject to a Security Interest?
public sector (state-owned) property?
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking pos-
session of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Yes
No
No
No
Yes in certain cases. See 5. Ships and
aeroplanes have specific registries. All
registries are independent, comput-
erised and centralised (except ships).
Registration fees vary but are not exces-
sive. All registries are open to public
inspection for a small fee.
Yes
Yes. In most cases priority is given
to the first to register.
Yes
Yes
Yes
Yes if possession can be obtained
peaceably. Ships always require
court assistance.
No. If the assets are sold privately,
the terms must be commercially
reasonable and the price must be
the open market value.
11
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process?
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be created
in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Possible, but not required.
Yes in most cases.
No
No
Yes
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Yes
Yes
Yes
Yes
Yes
Yes
Unknown
No
Yes
No
FRA
NC
E
12
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking pos-
session of the asset and selling it without court
assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Yes, in most cases.
No
Yes in most cases. There is one
independent, computerised and
centralised registry open to public
inspection for a small fee.
Registration fees are less than $100.
Yes
Yes. Priority is given to the first to
register.
Yes
Yes
Yes
No. (except for listed securities
which have to be sold through the
stock exchange). Court proceed-
ings typically take 6/12 months.
No
13
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process?
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be
created in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is
prohibited by contract?
property already subject to a Security Interest?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
It depends on the type of assets.
No
If the security interest has to be
registered or notarised to be
enforceable, then:
Yes
Yes
Yes
Yes
No
Depends on the type of
asset/security interest.
Yes
Yes
Yes
Yes
Yes
No
Sometimes
Depends on nature of property
and type of contract.
Yes
GE
RM
AN
Y
14
public sector (state-owned) property?
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking posses-
sion of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Yes
No
Depends on the type of asset. If
the security interest has to be
notarised, the notarial fees are
based on the value of the collat-
eral on a regressive scale.
No, except in the case of ships and
aeroplanes which are treated as real
estate for the purposes of security.
Yes
Yes
Yes
Yes
Yes
Depends on the type of security
interest.
Depends on the types of (a) assets
and (b) security interests.
15
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process?
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes, (provided that there is an
existing framework facility in
existence).
Yes
Yes
Yes, but only where the lender has
possession of the moveable property.
Yes
Yes, but only where the lender has
possession of the moveable property
Yes
No
Yes
Yes
No, except in case of a “floating
charge”, where the secured property
can be described in general terms.
Yes, in case of a fixed charge. Not
necessary in case of a floating charge.
No
No
Yes
Yes
Yes
Yes, by using a floating charge.
Yes
HU
NG
AR
Y
16
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have
to be notarised in order to be enforceable against
third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking posses-
sion of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Yes
Uncertain, (previously prohibited,
but current laws do not include
specific provisions).
Yes
Yes, (but then subject to ranking).
Yes
No, but in addition to the notarial
fees a registration fee of HUF5,000
per pledgor is payable as a regis-
tration fee for the registration of a
fixed charge/floating charge.
Yes. Notarial fees are payable
based on a percentage of the
amount secured.
Yes. There is a central registry main-
tained by the Hungarian Chamber of
Notaries Public for movables generally
and there are specific registries for
ships and aeroplanes. The registries
are independent computerised and
centralised and open to public inspec-
tion for a small fee.
Yes. However, the charge termi-
nates if the asset is sold bona fide
for full value.
Yes. A fixed charge takes priority
over a floating charge. Subject to
that, the first creditor to register
has priority.
Yes
Yes (also if there is a breach of the
underlying loan/facility agreement).
Yes
Yes, subject to certain conditions.
No. However, the parties may opt
for public auction.
17
1 Who can grant a Security Interest over moveable
property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and
pledgee over moveable property be created:
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or
notarisation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property forming the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be
created in the following:
tangible moveable (e.g., stock in trade, equipment)?
intangible moveable (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes, in most cases.
Yes, even if not needed.
Yes, in most cases.
No, with the exception of shares
and stocks.
No
No
Yes
Yes, as far as intangible move-
ables are concerned.
Yes, as far as tangible moveables
are concerned.
No
No
No, possession is always required
Yes, but adequate documents
are required.
Yes
Yes, but adequate documents are
needed.
Yes, but adequate documents are
needed.
ITALY
18
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have
to be notarised in order to be enforceable against
third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking pos-
session of the asset and selling it without court
assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
No, possession is always required.
No
No, possession is always required.
No, possession is always required.
No, possession always required.
No
Yes, but only in particular cases
(shares, stocks, ships, airplanes
etc). In those cases notary fees are
calculated as a percentage of the
value of the collateral. The per-
centage varies according to the
value of the collateral.
Yes, in most cases. Particularly
ships, airplanes and cars. The reg-
istries are independent, centralised,
computerised and open to the
public for a fee of under $100.
Registration fees are calculated as
a percentage of the value of the
collateral over 1%. Inspection of
the register shows existence of
Security Interests.
Yes
Yes, priority is given to the first
to register.
Yes
No
Yes
No, except for listed securities
which must be sold through the
stock exchange. Court proceed-
ings take more than 12 months.
No
19
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process?
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
Yes
Yes
Yes
No
No
No
Yes
Yes
Yes
Unknown
Yes
No
Yes
No
Yes
Yes
TH
E N
ET
HE
RLA
ND
S
20
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to
be notarised in order to be enforceable against third par-
ties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking
possession of the asset and selling it without court
assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
No
No
Yes. There is one independent, com-
puterised and centralised registry for
all types of assets. Registration fees
are less than $100. The registry is not
open for public inspection.
No
Yes. The first creditor to register is
given priority.
Yes
Yes
Yes
No
Either by public auction or private
agreement. There are no require-
ments for a minimum price or
reasonable commercial terms.
21
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created:
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
Yes
Yes
Yes
Yes
No
No
Yes
Yes
Yes
Yes
Unknown
No
Yes
No
Yes
Yes
PO
LAN
D
22
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking posses-
sion of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
No
No
Yes. There are registries for all
assets, including ships and aero-
planes . They are independent,
computerised and centralised.
Registration is achieved through the
court at a fixed fee of under $100.
The registries are open to public
inspection at a fee of under $25.
Yes
Yes. Priority is given to the first
creditor to register.
Yes
Yes
Yes
Yes
No. There is no minimum price
requirement but the commercial
terms must be reasonable.
23
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional?)
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created:
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Unknown
Yes
No
RO
MA
NIA
24
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking posses-
sion of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
Yes - between 0.1% and 1% of
the value of the collateral.
No
Yes. The register is independent, com-
puterised and centralised. There are
flat registration fees, currently less
than US$100. The registrations are
available for inspection by the internet
(www.mj.romarhiva.ro). There are
separate registers for ships and air-
craft, held by the relevant authorities.
Yes
Yes. The first creditor to register is
given priority.
Yes
Yes
Yes
Yes
Either by public auction or private
agreement. There is no minimum
price requirement but the commer-
cial terms must be reasonable.
25
1 Who can grant a Security Interest over moveable property:
2 Who can hold (receive) a Security Interest over moveable
property:
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created?
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Unknown
Yes
Yes
No
No
No
Yes
No
No
No
No
No
No
Yes
Yes
Yes
Unknown
Unknown
Yes
Yes
No
Yes
No
RU
SS
IA
26
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have to be
notarised in order to be enforceable against third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking posses-
sion of the asset and selling it without court assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
No
No
No
Not applicable.
Yes. The Security Interests rank in
priority in chronological order.
Yes
Yes
Yes
No
Yes and there is a minimum price
requirement.
27
1 Who can grant a Security Interest over moveable property?
2 Who can hold (receive) a Security Interest over moveable
property?
3 What type of debt may be secured:
commercial?
consumer?
foreign currency debts?
debts not yet existing (future or conditional)?
changing pool of debt?
third party obligations?
4 How can a Security Interest between pledgor and pledgee
over moveable property be created:
by written agreement between the parties?
by notarial act?
5 In order to be enforceable against third parties, must a
Security Interest be:
registered?
notarised?
other?
6 If a Security Interest is to be legally enforceable, which
items must be filed as part of the registration or notari-
sation process:
entire security agreement?
names of the pledgee and pledgor?
description of secured property in general terms?
individual description of each item of property subject to the
Security Interest?
documents concerning ownership of secured property?
documents concerning debt which is being secured?
Not applicable
7 Can a non-possessory pledge or Security Interest be cre-
ated in the following:
tangible moveables (e.g., stock in trade, equipment)?
intangible moveables (e.g., debts, shares)?
future property (e.g., future debts)?
a changing pool of property?
user rights as opposed to ownership rights?
an enterprise?
another Security Interest?
property where creation of a pledge is prohibited by contract?
property already subject to a Security Interest?
public sector (state-owned) property?
Any legal or natural person.
Any legal or natural person.
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No, except in certain cases.
No
Yes
Not applicable.
No
Yes
Yes
No
No
No
No
No
No
No
SW
ITZ
ER
LAN
D
28
8 Is there any stamp or similar tax or duty payable on the
security document in respect of moveable property?
9 Does the document creating the Security Interest have
to be notarised in order to be enforceable against
third parties?
10 Must a non-possessory Security Interest be registered in a
registry in order to be enforceable against third parties?
11 Does registration of a Security Interest in most cases pro-
tect the secured creditor against the debtor’s subsequent
dealings with the collateral?
12 Can a debtor grant multiple Security Interests in the
same property?
13 Can a right to enforce the Security Interest arise:
when the secured debt is unpaid and due?
when there is some other breach of the pledge agreement?
when the debtor becomes insolvent or bankrupt?
14 Can a creditor enforce its Security Interest by taking
possession of the asset and selling it without court
assistance?
15 If a sale is permitted without court assistance does it
have to be made by public auction?
No
No
No
No
Yes. Creditor who has possession
is given priority.
Yes
Yes
Yes
No
No. If the assets are sold privately,
the terms must be commercially
reasonable.
29
Austria
ViennaPeter Huber
CMS Strommer Reich-Rohrwig
Karasek Hainz
Ebendorferstrasse 3
A-1010 Wien, Austria
T +43 1 40 4430
F +43 1 40 443 9000
BelgiumBrusselsAlexis Goeminne
CMS Lexcelis
Avenue Louise 200
B-1050 Brussels
Belgium
T +32 2626 2200
F +32 2626 2251
Czech RepublicPraguePaul Stallebrass
CMS Cameron McKenna
Karolíny Světlé 25
110 00 Praha 1
Czech Republic
T +420 2 9679 8111
F +420 2 2109 8000
EnglandLondonNicholas Zervos
CMS Cameron McKenna
Mitre House
160 Aldersgate Street
London EC1A 4DD
T +44 (0)20 7367 3000
F +44 (0)20 7367 2000
France
ParisGérard Kling
CMS Bureau Francis Lefebvre
1-3 Villa Emile Bergerat
92522 Neuilly-Sur-Seine Cedex
France
T +33 1 47 38 55 00
F +33 1 47 38 55 55
GermanyFrankfurt am MainChristoph Schücking
CMS Hasche Sigle
Friedrich-Ebert-Anlage 44
D-60325 Frankfurt am Main
Germany
T +49 69 7 17 01-0
F +49 69 7 17 01-110
HungaryBudapestGabriella Ormai
Ormai és Társai CMS Cameron McKenna
Ybl Palace, 3rd Floor
Károlyi Mihály utca 12
H-1053 Budapest, Hungary
T +36 1 483 4800
F +36 1 483 4801
ItalyMilan Massimo Audisio
CMS Adonnino Ascoli & Cavasola ScamoniVia Michelangelo Buonarroti, 39 20145 Milan, ItalyT +39 02 48011171 F +39 02 48012914
30
For further information on any of the issues raised in this guide or for any other queries, please call the
relevant contact listed below, or your usual CMS partner.
CO
NTA
CT
S
Netherlands
Utrecht Marcel Groenewegen
CMS Derks Star Busmann
Pythagoraslaan 2
3584 BB Utrecht, The Netherlands
T + 31 30 2121 111
F + 31 30 2121 333
PolandWarsawKeith Ham
CMS Cameron McKenna
Warsaw Financial Center
ul. Emilii Plater 53
00-113 Warsaw , Poland
T +48 22 5205 555
F +48 22 5205 556
RomaniaBucharestCristina Brinzan
CMS Bureau Francis Lefebvre
Catalina Marcu Law Office
Bulevardul Aviatorilor 52
3 étage, app 10, Sector 1,
7000 Bucharest, Romania
T +40 1 231 91 19
F +40 1 231 91 20
RussiaMoscowDavid Griston
CMS Cameron McKenna
Paveletskaya Square 2/3
Moscow, 113054, Russia
T +7 501 258 50 00
F +7 095 299 30 24
Switzerland
ZürichKaspar Landolt
CMS von Erlach Klainguti Stettler Wille
Dreikonigstrasse 7
Postfach, CH-8022
Zürich, Switzerland
T +41 1 285 11 11
F +41 1 285 11 22
CMS is a major transnational legal and tax services
organisation with 1700 lawyers and a total staff in
excess of 3500. CMS has been created to offer clients
seamless services across Europe and is the vehicle to
full integration of member firms. The members of
CMS are:
CMS Adonnino Ascoli & Cavasola Scamoni
CMS Bureau Francis Lefebvre
CMS Cameron McKenna
CMS Derks Star Busmann
CMS von Erlach Klainguti Stettler Wille
CMS Lexcelis
CMS Hasche Sigle
CMS Strommer Reich-Rohrwig Karasek Hainz
Further information on CMS may be found at
www.cmslegal.com
CMS offices and associated
offices worldwide: Berlin,
Brussels, London, Paris, Rome,
Utrecht, Vienna, Zürich,
Aberdeen, Amsterdam, Arnhem,
Beijing, Belgrade, Bratislava,
Bristol, Bucharest, Budapest,
Buenos Aires, Casablanca,
Chemnitz, Dresden, Düsseldorf,
Edinburgh, Frankfurt, Hamburg,
Hilversum, Hong Kong, Leipzig,
Lyon, Madrid, Milan, Montevideo
Moscow, Munich, New York,
Prague, Rio de Janeiro ,
Stuttgart, Shanghai, Toronto,
Warsaw and Washington DC.