Since its adoption, the Act on Nullity has caused controversy, with some Croatian scholars and judges expressing their concern about (for example) its constitutionality and contravention of EU law. While most judicial decisions made after the act's enactment have declared loan agreements which fall within the act's scope null and void, some Croatian courts have interpreted the act differently due to its ambiguity.
The Croatian Tax Authority has issued several relevant opinions regarding the taxation of virtual currencies. Since 2015 the Croatian Tax Authority, in line with the European Court of Justice's Skatteverket decision, has exempted virtual currency exchange services from value added tax, established relevant tax treatments for the mining and trading of virtual currencies and provided its opinion on payments in virtual currencies.
Virtual currencies and attempts to categorise them have attracted widespread attention. For virtual currencies to be considered electronic money under the Electronic Money Act, they must follow certain rules, including being stored electronically, representing a monetary value and being issued on receipt of funds. However, the Croatian National Bank has warned that trading and paying in virtual currencies cannot be considered payment services under the Payment System Act.
The current Act on Preventing Anti-money Laundering (AML) and Financing Terrorism does not regulate crypto-assets. However, the proposed new bill on Preventing AML and Financing Terrorism intends to regulate crypto-assets and require legal and natural persons providing exchange services for virtual and fiduciary currencies or wallet custodial services to comply therewith.
The Act on Nullity of Loans with an International Element Concluded in the Republic of Croatia was created following a period of time wherein certain foreign credit unions continually granted loans to Croatian borrowers. As a result, some consumer organisations pushed to have such loans annulled in order to stop the ongoing enforcement procedures over Croatian borrowers' assets. However, concerns over the act have been raised, including the fact that it is unconstitutional and contravenes EU law.
No banking and finance transaction is the same. However, there are a number of considerations that financial institutions should keep in mind when negotiating the provision of loans and the entry into other financial arrangements. The proper structuring of a finance transaction ensures the due performance of its terms – especially in situations of default and, more specifically, the borrower's insolvency.
Virtual currencies have been analysed and considered by numerous policymakers at the EU level. According to the European Central Bank, the legal definition of 'virtual currencies' tends to vary depending on the context, while the European Banking Authority defines them as a digital representation of value that is neither issued by a central bank or public authority nor necessarily attached to a fiat currency, but used as a means of exchange and transferred, stored or traded electronically.
The European Commission recently published a legislative proposal amending the Bank Recovery and Resolution Directive to modify creditor hierarchy in insolvency with a view to facilitating the resolution of EU credit institutions. The proposal, which was fast tracked, resulted in the adoption of EU Directive 2017/2399, which amends the Bank Recovery and Resolution Directive as regards the ranking of debt instruments in insolvency.
The Court of Cassation recently clarified its position on first-demand guarantees. Considering the significant consequences for the beneficiary of a guarantee (depending on whether it is characterised as a first-demand guarantee or suretyship), the court's reasoning should be looked at carefully by any drafter of a first-demand guarantee.
The Tubingen Regional Court recently held that negative interest on a consumer's existing cash deposits imposed by a German bank by unilaterally changing the bank's general terms and conditions was unlawful. According to the court, the defendant bank violated the rules of the general terms and conditions regime because it did not differentiate between existing deposits and newly deposited cash.
As of January 2018, the EU regulation which established a new European Account Preservation Order (EAPO) procedure will have been effective and in force for one year. In Germany, the most important conclusion which can be drawn from the past year is that the German courts are adopting EAPOs. However, as the procedure is still fairly new to the courts, it has taken time and effort on the part of creditors.