Proposed directive affecting restructuring, insolvency and discharge procedures
Published: 06 December 2016
The European Commission has published a proposed directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU [i.e., the Second Company Law Directive]. According to the text the objective is “to reduce the most significant barriers to the free flow of capital stemming from differences in Member States' restructuring and insolvency frameworks. The aim is for all Member States to have in place key principles on effective preventive restructuring and second chance frameworks, and measures to make all types of insolvency procedures more efficient by reducing their length and associated costs and improving their quality. … The proposal does not harmonise core aspects of insolvency such as rules on conditions for opening insolvency proceedings, a common definition of insolvency, ranking of claims and avoidance actions broadly speaking. Although such rules would be useful for achieving full cross-border legal certainty, as confirmed by many stakeholders in the public consultation, the current diversity in Member States' legal systems over insolvency proceedings seems too large to bridge given the numerous links between insolvency law and connected areas of national law, such as tax, employment and social security law. Prescriptive harmonisation could require far-reaching changes to commercial law, civil law and company law, whereas flexible provisions risk not bringing about desired changes. …” If you have any comments on this proposed directive or would like to contribute to the development of a position paper, please contact Jennifer Wood.