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Through the 2005 Green Paper on Mortgage Credit the European Commission opened a broad debate about which aspects of secured lending should be subject to uniform regulation throughout the European Union in order to increase the availability for consumers of one Member State of credit offered by lenders of a different Member State, thus achieving a fully integrated Internal Market in this important sector. The opening of national markets might, however, let more unscrupulous lenders issue credit on unfair conditions, in order to get more assets to use for securitization; this financial technique radically changed the US mortgage sector in recent decades and it is of increasing importance in Europe too. This paper examines the issues addressed by the Commission as well as the problems involved in any regulation of mortgage agreements. It suggests that consumer protection with regard to these contracts should be focused on a test of the fairness of their terms, which can be based on the balance of risks the terms create between the parties. Such a balance may be measured upon the relationship the loan has with the deal it aims to fund, which should therefore be considered as part of the mortgage agreement itself.

Mortgage credit contracts and the Green Paper on Mortgage Credit – Controls on Transparency and Fairness