The main objective of the adoption of the Financial Collateral Directive (Directive 2002/47/ES) was to improve the situation on the common financial market by simplifying the procedures for concluding financial collateral agreements and limiting formal requirements for establishment and execution of financial collateral. Above all, there was a desire to unify the rules at European level. The Directive was transposed into our law by Financial Collateral Act, which adapted the already known institutes of property, contract and insolvency law to the special requirements of financial collateral. Simpler procedures and rules that give the creditor the possibility of out-of-court execution of the security come into consideration only when the contract on securing the claim with a financial instrument, cash or bank loan is concluded by professional entities from the narrow list of persons specified in the Financial Collateral Act.
The purpose of this diploma thesis is to present the specifics, brought to our legal system by the Financial Collateral Act (for example, possibilities of special agreements on the right of use, appropriation of the object used as collateral, elimination of required form of agreement, …), background of these new rules, and to present a case study that reflects the difficulties or obstacles to the successful execution of the creditor’s claim. It is a field of transactions between professional financial market participants, in which it is essential to combine legal provisions with case law for better understanding and use in the future. I presented the case SAVA d.d. against DUTB d.d., where the problem occurred at the moment of enforcement of the claim. SAVA created a lien on a 99,05 % stake in its company Sava Turizem d.d. to secure a loan with the bank NLB. This claim was later taken over by DUTB as a legal successor, which, after an unsuccessful search for repayment, enforced the financial collateral and appropriated the shares. SAVA filed a lawsuit and, with an interim injunction, obtained a return to the state prior to the appropriation. The case ended with a court settlement and without a final judgement, so there is no court argumentation available. Nonetheless, it is an important case and the first major court dispute in our legal space about financial collateral. It shows us the dilemmas that may arise in practice and connects issues of abuse of enforcement procedure and the impact of insolvency proceedings to financial collateral.