The European Parliament adopted a resolution
with recommendations to the Commission on
insolvency proceedings in the context of EU company law (Initiative
– Rule 42 of the Rules of Procedure).
Parliament notes that disparities between national insolvency
laws create competitive advantages or
disadvantages and difficulties for companies with cross-border
activities which could become obstacles to a successful
restructuring of insolvent companies (“forum shopping”).
However, the existence of identical
conditions for all would help to strengthen the single
market.
If the creation of a body of substantive insolvency
law at EU level is not possible, there are certain areas of
insolvency law where harmonisation is worthwhile and achievable. It
is for this reason that Members request the Commission to submit to
Parliament on the basis of Article 50,
Article 81(2) or Article 114 of the Treaty on the Functioning of
the European Union, one or more legislative proposals relating
to an EU corporate insolvency framework, following the detailed
recommendations set out in the Annex hereto, in order to ensure a
level playing field, based on a profound analysis of all viable
alternatives.
The detailed recommendations as to the content of the
proposal requested are as follows:
1. The harmonisation of specific aspects of insolvency
and company law: Parliament
recommends in particular:
- the harmonisation, by means of a directive, of certain
aspects of the opening of insolvency proceedings
(e.g. the proceedings can be brought against
debtors who are natural persons, legal entities or associations;
the proceedings are initiated in a timely manner in order to allow
a rescue of a troubled enterprise; a creditor may request the
opening of proceedings if he/she has a legal interest therein and
shows credibly that he/she has a claim);
- the harmonisation of the conditions under which claims
in insolvency proceedings are to be filed (e.g. that the date for
determining outstanding claims is the date on which the employer
becomes insolvent; that creditors file their claim with the
liquidator in written form within a certain period of time; that
Member States are required to fix the above-mentioned period of
time within one to three months from the date of publication of the
bankruptcy decision);
- the harmonisation of aspects of avoidance
actions (e.g. acts that can be
the object of an avoidance action are transactions in a situation
of imminent insolvency, the creation of security rights,
transactions with connected parties and transactions carried out
with the intention of defrauding creditors);
- the harmonisation of general aspects of the
requirements for the qualification and work of
liquidators (e.g. the liquidator
must be approved by a competent authority of a Member State or
appointed by a court of competent jurisdiction of a Member State,
must be of good repute and must have the educational background
needed for the performance of his/her duties; – the liquidator
must be competent and qualified to assess the situation of the
debtor’s entity and to take over management duties for the
company;
- the harmonisation of aspects of restructuring
plans (e.g. the plan must i)
contain rules for the satisfaction of the creditors and for the
debtor’s liability after the insolvency proceeding have been
concluded; ii) the plan must contain all relevant information
enabling the creditors to decide whether they can accept the plan;
iii) the plan must be approved or disapproved in a specific
procedure before the relevant court);
2. The revision of Council Regulation (EC) No
1346/2000 of 29 May 2000 on insolvency proceedings: the recommendations relate to:
- the scope of the Insolvency Regulation which
should be broadened to include insolvency proceedings in which the
debtor remains in possession or where a preliminary liquidator has
been appointed;
- the inclusion of a definition of the term
‘centre of main interest’ formulated in such a way as
to prevent fraudulent forum shopping;
- the inclusion of a definition of
‘establishment’ as any place of operations where the
debtor carries on a non-transitory economic activity with human
means and goods and services;
- provision for an unequivocal duty of communication
and cooperation not only between liquidators but also between
courts;
- the Insolvency Regulation should be reviewed so that
it does not encourage cross-border avoidance actions but
helps to prevent avoidance actions from succeeding by means of
choice-of-law clauses.
3. The insolvency of groups of
companies: due to the different
levels of integration which may exist within a group of companies,
Parliament considers that the Commission should present a
flexible proposal for the regulation of the insolvency of
groups of companies, whenever the functional/ownership structure
allows it. They also suggest providing for an instrument for
insolvency proceedings in respect of decentralised groups.
In this case, the instrument should provide, inter
alia:
- rules for mandatory coordination and
cooperation between courts, between courts and insolvency
representatives and between insolvency representatives;
- rules on immediate recognition of judgments
concerning the opening, conduct and closure of insolvency
proceedings and judgments handed down in connection with such
proceedings;
- rules on access to courts by liquidators and
creditors;
- rules allowing and promoting cross-border
insolvency agreements which would address the allocation of
responsibility for various aspects of the conduct and
administration of the proceedings between the different courts
involved and between insolvency representatives.
4. The creation of an EU insolvency
register: Members propose the
creation of an EU insolvency register in the context of the
European e-Justice Portal, which should contain, for every
cross-border insolvency opened, at least: (i) the relevant court
orders and judgments, (ii) the appointment of the liquidator
and that person's contact details, and (iii) the deadlines for
filing claims. Transmission of these data to the EU registry by the
courts should be compulsory.
Parliament considers that the legislative action
requested should be based on detailed impact assessments, as
requested by Parliament.