Response to consultation Paper on draft Guidelines on loan origination and monitoring.

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5. What are the respondents’ views on the requirements for governance for credit granting and monitoring (Section 4)?

Finance Watch recommends also including a requirement to document the situation of end-users in the paragraph 31 (so as to have an indicator of consumers at risk of over-indebtedness). EBA should at a second stage elaborate a standardised set of common EU indicators (cf. paragraph 33 - “products and specific credit facilities” should benefit from a common EU typology).
In paragraph 35(b) - and to be added in annex 1: credit granting criteria should guarantee sufficient remaining income to allow, beside credit and contract reimbursement, a decent living standard for the household.
In this respect, it should be compulsory to collect data on the composition of households, as it is key to being able to ensure sufficient income and guarantee decent living standards.
Finance Watch is also in favour of including a suitability check of the type of credit proposed. It should be used to document the information and advice consumers should have received in the pre-contractual phase.
In paragraph 41 an addition should be included to ensure that only quality and “non-falsifiable” information is used in the process (not unstructured data as found through the internet and social media).
Section 4.3.3
Institutions should demonstrate that the way they are using data is compliant with the GDPR and antidiscrimination regulation. Providers should be able to clearly demonstrate their compliance with principles such as necessity and proportionality and show how they are operationalised.
In paragraph 59 it is not clear what the rationale is behind using the borrowers’ geographic location in the credit-decision making framework. This could also lead to discrimination based on postcode lottery of currently better-off areas.
In paragraph 639(b)ii it should be clarified if the principle of independence and minimisation of conflict of interest, which references economic interest, covers sales incentives.
Paragraph 76(f) again talks about credit risk and creditworthiness as if they were similar processes. (See above) The following point should be added to address this:
Ensure that creditworthiness and credit risk assessments do not lead to contradictory lending decisions".
To put it in other words: while a client may not have sufficient funds to repay a loan (negative creditworthiness assessment), the credit risk associated with lending at a certain interest rate may still be viable for the financial institution and in line with prudential regulation (creating a risk pool with borrowers of a similar profile and ensuring that overall the borrowers that manage to repay cover for the loss of those who default).
In paragraph 76(g) the definition of "independent" needs to be better clarified. For instance, would credit rating agencies be considered "independent"? Would the Schufa score be considered independent? It is key to define what an independent or second opinion” looks like. From our perspective, it should be defined by law and supervised by public authorities. For instance, using a methodology for creditworthiness assessment which has been validated by a public institution and based on data which is also validated and approved by a public institution. However, “second opinion” are only needed where creditworthiness checks are not properly regulated or undertaken by financial institutions. The right approach must be to make sure that creditworthiness checks are of high quality and independent from the start rather than relying on them as a fall back plan.
At the end of paragraph 76 the following addition is needed:
“Put in place preventive mechanisms for early detection of financial problems and set up a specific unit to explore solutions with customers in difficulty such as putting loan reimbursement on hold, helping the customer with legal and administrative proceedings (obtaining social benefits, any benefits they may be entitled to given there difficult financial situation such as unemployment benefits etc), liaising and cooperating with not for profit or independent, recognized, high quality debt counselling and debt advice services.”"

6. What are the respondent’s views on how the guidelines capture the role of the risk management function in credit granting process?

Clarification is needed in paragraph 82(a) on how this would work in practice. The use of the term high quality is too vague and should be properly defined.
Firstly, given staff turn-over, it may not be possible to remunerate staff based on long-term criteria.
Secondly, does quality refer to compliance with prudential requirements or does it refer to a specific number of non-performing contracts or defaults from borrowers? For instance, in payday lending institutions, while their default rates are high, they still comply with prudential requirements.
The same question can be raised for point (b), where it is again not clear how “credit quality” is defined in that context.
In point (c), the best interest of the consumer also needs to be properly defined.
In order to make these recommendations or requirements operational, rigorous definitions need to be put in place to define when a credit is deemed to be high quality. As outlined above, setting a benchmark such as the level of NPLs for certain products and how they compare to other products could be an objective way to measure credit quality. If the level of defaults for a specific product or in a specific institution is significantly higher than this benchmark, that would signal where there are poor quality products/credit.
Overall, the above requirements are very focused on credit risk and not on consumers or protecting their best interest (protecting them against loan sharks, payday lenders, debt collectors etc). More focus should be put on creditworthiness and what can be done to mitigate negative consequences of defaults and NPLs from the point of view of consumers.

7. What are the respondents’ views on the requirements for collection of information and documentation for the purposes of creditworthiness assessment (Section 5.1)?

The 5.1.1 section should include a more precise definition of the creditworthiness- it should focus on household budgets (income, contracts, liabilities, incompressible expenditures, remaining income for a decent standard of life).
It should also underline the necessary objective of creditworthiness assessment to guarantee sufficient income to allow a decent standard of life considering a household’s composition (children or other family members - parents...). If this is the intention behind the definition of disposable income, mentioned in the paragraph 98, then it must be made very clear in the guidelines. In this regard, paragraph 98 should not only refer to the borrower’s income, but rather to the borrower’s budget.
Paragraph 99 should also mention the remaining income needed for a decent standard of life, considering the composition of the household. This is aligned with paragraph 109 that mentions “appropriate substantiation and consideration of the living expenses”. If these expenditures are not connected with household composition then they lose all meaning (circumstances will differ if the amount of expenditures considered covers one adult or one adult and two children, for example). Using automated analysis of inflow and outflow from a consumer's accounts via PSD2 may be relevant in this case, rather than trying to manually assess the expenditures of the borrower.

In this respect, 5.1.2 paragraph should include the following points:
- Employment should be understood more broadly as all types of professional activity. The current trend of moving away from traditional labour contracts (no end date) to temporary contracts should be taken into account as banks may consider that temporary contracts are more “risky” than other labour contracts, which would significantly impact on many workers possibility of accessing decent credit conditions.
- Household composition.
- Amount of remaining budget (after incompressible expenditures such as contracts- rent, energy, water,..., as well as other financial commitments, liabilities) needed to ensure a decent standard of life (food, health, education, mobility…).
- Point (f) is too vague and should be removed as it is open ended and could lead to abuse such as using non-conventional data from social networks and other sources.

8. What are the respondents’ views on the requirements for assessment of borrower’s creditworthiness (Section 5.2)?

Several key relevant points have already been mentioned in the response to question n°7.
There is, however, an important concern with paragraph 110. Financial institutions should indeed provision for difficult to predict and sudden events such as the case of the Swiss Franc loans, and to insure against them. This is essential to ensure that consumers are able to keep reimbursing under the same conditions, instead of transferring all the risk to consumers, whilst also expecting them to repay (which introduces prudential risks in the case of mass defaults). Hedging, in this case, would be purchasing special insurance products at the level of the financial institutions and not counting on hedging at the level of the consumer (for instance, counting on the increase in value of property to hedge the risk in case of default and liquidation).
Given the unpredictability of products in a foreign currency and their exposure to currency movements, even with proper hedging Finance Watch considers foreign currency loans by their very nature render it impossible to undertake proper creditworthiness assessment. Indeed, such with products they may be significant changes to the total cost of the product that might affect the capacity of the borrower to meet their liabilities, even if their income and budget remain unchanged.
These circumstances and the major issues encountered by a large range of EU borrowers (1) , need to be addressed here by introducing a number of changes:
- The risk related to changes in exchange rates should not only be covered by the consumer but also by the credit provider.
To ensure meaningful creditworthiness assessment takes place, provisions in the credit contract should at least: mention maximum increases/ decreases in interest, in duration, in monthly repayments. These predefined scenarios should then be included in the creditworthiness assessment, along with documented reasoning of suitability of the product for the borrower at the time of the agreement).
- These predefined scenarios can also be used to defined what the worst case scenario could be and present to the consumer the maximum costs they could be exposed under different difficult or unexpected negative circumstances. This is the case for so-called ‘accordeon’ variable rate credit in Belgium, which bring not only flexibility but also security by defining the maximum possible cost of the credit in advance.
Under paragraph 118, it would be more relevant to assess the consumers' saving capacity since this reflects the income that remains after all current expenditures. It also crucially does not and should not assume that the consumer can compress one or more of their current expenditures to service a loan due to unexpected developments.
Data regarding missed payments should be treated with great care. Missed payments may reflect many different situations: an unfortunate circumstance (forgetting to repay, missed correspondence or mail...), or a conflictual situation with a provider (for instance, an error in the amount asked for utility bills and a consumer withholding payment until the problem is resolved, which may appear as a missed payment where the consumer is at fault, but is actually directly due to the provider).
In section 5.2.3, there may be a need to include a general remark on the fact that consumer credit origination should not only be backed by a guarantee but should be based on evidence of creditworthiness. In this respect, if the decision to offer credit is first and foremost based on the creditworthiness of the borrower, we should expect proportionality from the provider for requirement on the borrower to also guarantee the loan.
In paragraph 117 and more broadly in the guidelines as a whole, a key aim to foster must be for credit providers to design and adapt credit offers to new circumstances (type of jobs, incomes,…). This is important to bring more agile and user-friendly products that can help to build consumer trust.
(1) The recent experience in Central and Eastern Europe is an excellent demonstration of massive negative impact on consumers as they are unprotected against currency fluctuations. As we know, all regulators have by now prohibited (mostly not by law) the issuance of new FX loans. But this should be clearly and explicitly provided for at the EU level policy documents. Responsible product design should be part of the concept of ‘responsible lending’.

9. What are the respondents’ views on the scope of the asset classes and products covered in loan origination procedures (Section 5)?

A clarification needs to be included in paragraph 182 on the credit decision making process between acceptance and refusal thresholds, linked to default rates. For instance, at which rate of default inside a specific risk pool do offers of credit start to be considered predatory lending or irresponsible lending? For instance, if inside a risk pool over 20% of consumers are considered to be likely to default on their loans, is this considered predatory lending?
Taken from the creditworthiness perspective, it is important to define how much of the borrowers' current savings capacity can be taken up by the reimbursement of a credit without creating a substantial risk, especially in the case of a financial shock (loss of employment, health problem, divorce etc).
A further point to consider in paragraph 182, is the importance of factoring in the constraints set out in macroprudential policy, where this is the case. Several EU Members States have put forward macroprudential policy tools (1) , some more binding than others, which restrict the provision of loans by setting limits on ratios such as debt-to-service ratios, loan-to-value measures, and on maturity. The guidelines should reflect the fact that decisions to offer credit are also bound by macroprudential measures (in the jurisdictions where such measures are in place).
In paragraph 183 the information on the key features of a loan being offered to the borrower should include the APR. The APR is a key indicator that helps to reflect the actual cost of a loan and is a fundamental piece of information to be able to compare different proposals (as referred to both in the CCD and the MCD).
(1) See ESRB’s report “A Review of Macroprudential Policy in the EU in 2018”, in particular Annex 2

10. What are the respondents’ views on the requirements for loan pricing (Section 6)?

Pricing of consumer credit should exclude (by design) any risk of discrimination, based on protected characteristics. There may be a risk of discrimination arising from creating “homogeneous risk groups” for example that should be considered. Pricing policies should be documented in order to allow a compliance check by the relevant authority to take place.
Paragraph 187(b) mentions that creditors should take into account behavioural assumptions in determining the cost of funding. This needs more clarification.

11. What are the respondents’ views on the requirements for valuation of immovable and movable property collateral (Section 7)?

All of the provisions in this section have a limit: that of pricing with the context of current experimental monetary policy (QE), which artificially inflates the prices of real estate and the stock market. This is completely disconnected from fundamentals and the impact it may have in case of a massive recession or collapse of the “everything bubble”, which refers to the inflation of several assets among which, mostly, the price of stocks (thanks to massive corporate buybacks facilitated by QE) and the inflation in the price of (existing) property and real estate. Both of these assets are completely disconnected from economic fundamentals (for instance, stock prices relative to company earnings) and any reversal in the policy of central banks would precipitate their depreciation, risking the triggering of a massive crisis (the alternative being a “Japanification” of Europe- 30 years of economic stagnation with baseline central bank interest rates at negative or 0%).
In paragraph 204 the reference should be to paragraph 200 (not 2000).

12. What are the respondents’ views on the proposed requirements on monitoring framework (Section 8)?

In paragraph 229(e) the monitoring of credit risk and especially of NPLs across comparable consumer segments could be a basis for defining predatory lending. If any financial service provider has an NPL ratio which significantly negatively deviates (from a statistical point of view) from its competitors (average), then their lending practices should be closely investigated and considered inappropriate.
In general in this section there was no mention of prevention measures such as identifying consumers in financial difficulty before they default (1) on their existing financial commitments and a dedicated unit which deals with helping consumers in distress.
In paragraph 263 the early warnings seem to apply mostly to professional clients and not individual consumers. It would be important to add indicators such as a drop in the consumers' ability to save, or a lack of financial buffer (living from salary to salary).
In paragraph 266 the plan should also include the write off of part or all of the debt. This must also be a part of the solutions proposed.
Credit refinancing procedures (especially in the case of mortgages) should be properly considered. If the same strict standards are to be applied as they should with any entirely new credit or higher credit amount, too strict conditions could cause borrowers to default instead of preventing it. Especially if consumers were able to repay their previous instalments before the refinancing, despite having lower assumed creditworthiness. This would as well be in line with Article 28 of Directive 2014/17/ЕU (Mortgage Credit Directive).
In line with Article 28 of Directive 2014/17/EU, lenders should exercise reasonable forbearance and try to prevent credit contacts from becoming non-performing.
(1) French consumer credit regulation has introduced the notion of “fragile client” that should be identified before default occur, and for who adequate solution should be proposed to avoid a deterioration of its financial situation. – legal reference:
Arrêté du 9 mars 2016 pris en application de l'article R. 312-13 du code monétaire et financier et fixant la liste, le contenu et les modalités de transmission des informations transmises à l'Observatoire de l'inclusion bancaire – available on :

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