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Harmonizing Consumer Insolvency Law

posted by Jason Kilborn

HarmonyIn contrast to the cacophony created by Brexit, EU authorities have been working for several years on a project to move toward greater harmony among the discordant insolvency laws of the Member States. Though the project is focused on business rescue and restructuring, the Commission Recommendation "on a new approach to business failure and insolvency" makes specific reference to non-business cases, as well, as "Member States are invited to explore the possibility of applying these recommendations also to consumers" (para. 15).

A fantastic conference at Brunel University London this May explored the question whether there was a need for comprehensive EU intervention in the historically national-law arena of consumer debt relief. The conference presented several instructional vignettes on the varying situations in the UK, Germany, Italy, and Greece, as well as some reflections on the very limited degree of EU involvement in ensuring "fair" consumer credit markets as a supposed bulwark against overindebtedness. The presentations at the conference vividly illustrated the weakness of this supply-side-only approach, as well as the extreme divergence among exisiting European personal insolvency relief regimes. A fascinating book published in connection with this conference's greater project nicely illustrates the messy state of overindebtedness regulation in the EU today.

All of which has me thinking about a topic that recurs in the academic debate in the US from time to time:

To what degree is it desirable to achieve harmonization of overindebtedness regulation among varying geographical and political regions? Or from the opposite perspective, is some degree of difference acceptable or even preferable? For a particularly powerful expression of this debate, see Daniel Austin's excellent paper, Bankruptcy and the Myth of "Uniform Laws." I believe Dan's position is the dominant academic view in the US; that is, something approaching absolute uniformity is both desirable and perhaps required by the federal Constitution. But one comment at the Brunel conference resonated with me, especially as I reflected on the infamous US means test. A commenter from Germany noted that energy is especially expensive in Germany, imposing the second-highest costs on consumers in the EU (see p. 193 of the book). It is virtually beyond doubt that any harmonized EU personal insolvency scheme would involve imposed payment plans of some kind (likely for 3 years). Is it sensible to demand that all EU consumer debtors be subjected to the same budget for energy? Is it sensible for the US means test to subject debtors in Alaska and Hawaii (and other extremely expensive areas) to the same basic household budget for food and other necessities? I was surprised when the separate standards for Alaska and Hawaii were removed in January 2008, and the remark about the significant differences in energy costs in Germany reminded me of this "unfair equality" problem. [Incidentally, the US means test does include separate, county-level figures for utility costs.] And on the major focus of the US debate about non-uniformity, is it not somewhat desirable to allow states to choose what property exemptions are appropriate for their regions? Perhaps the extreme differences among US states illustrate the dangers of such a liberal approach, as extreme outliers cast the whole system into disrepute (and lead to undesirable forum shopping). But the EU project has me wondering more about the optimal degree of harmony--and doubting that monotony is really the best way to go.

Anyway, politically, I don't think the EU would presume to impose rigid, one-size-fits-all rules in this process. But the specific mention of a discharge period of no more than 3 years (see para 9 of the Commission Recommendation) has me challenging myself to identify the aspects of European consumer insolvency rules where divergence among national regimes is sensible ... and more importantly, the maximum magnitude of any such divergence.

The Brexit vote may have made the EU bureaucrats a bit more leery of stepping on national toes with supranational Directives, but the process of bringing some order to the chaos of European personal debt relief laws will and should go on. How far should it go?

Harmony image courtesy of Shutterstock


Quite an interesting move from the EU towards protecting consumers from overindebtedness and debt relief. The recently approved revision of UN Guidelines for Consumer Protection last December added a chapter on financial services and how government and business should conduct their actions towards such protection and to a transparent and accountable management of consumer credit.
In Latin America, Consumers International launched in 2013 some documents on this issue, most notably a Model Law for Familiar Insolvency aimed to serve as a reference for the development of insolvency laws in the region. The Model Law can be found at

and a report on the need to reform sales incentives schemes in banks


Thanks, Antonio! I've seen your model law, and I've been wondering if it's had any impact in South America. The Colombian law predated your report and so doesn't seem to reflect its influence, and as far as I know, only Chile has a close equivalent, though dominated by "negotiation" rather than forcible relief. Any sense if other South American countries are considering following Colombia, Chile, or your model?

Hi Jason. At the time when the Chilean law was discussed, the Model Law served as a background document but unfortunately they followed the Colombian way of "negotiation". No other Latin American country advanced further in passing an insolvency law already. In Argentina, a bill was discussed in the Senate which was tailored from the Model Law but it didn't advance until now, and there are efforts to bring it back to life now that the government changed. In Brazil, the Consumer Protection Code is under revision and it should include a section on overindebtedness. In El Salvador attempts were made but no interest so far.
That is all what I can recall

So interesting and helpful--thanks, Antonio! I really should look more carefully into the latest developments in South America ...

Good. Let me know if you need any help this end

Great post. It is not clear to me why a consumer would benefit from uniformity, altho no doubt the industry would. We have in the US the uniformity that gutted the usury laws.

Uniformity would likely lead to lower financing costs for all consumers, as lenders would be able to more reliably evaluate their expected losses related to insolvency.

Thanks, Jay! In addition to the (theoretical) benefit that John identifies, my sense and hope is that harmonization would push toward the more humane and workable approaches like that in the Netherlands and Ireland, and away from the overly tentative regimes in Scandinavia and even Germany. The Commission has already identified a discharge period of three years as the desired norm, and that period is lower than the great majority of current discharge procedures. In the US, the National Bank Act and its liberal interpretation in Marquette came from a very different place (conservative, laissez-faire Congress and S. Ct.) than the harmonization movement in the EU. The latter process seems to be driven by relatively sensitive and attentive bureaucrats in the European Commission, who seem to care just as much about social solidarity and avoiding social exclusion as about maximizing banks' ability to reap rapacious profits at the expense of the middle and lower classes. We can hope.

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