On the proposal for a directive of the European Parliament and of the Council harmonising certain aspects of insolvency law
ECON-PA-752615
Committee on Economic and Monetary Affairs · Rapporteur: René Repasi
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This draft opinion amends the proposed directive on harmonising insolvency law, focusing on economic and monetary aspects. It calls for changes to rules on avoidance actions, pre-pack proceedings, creditors' committees, and simplified winding-up for microenterprises.¶¶¶
Committee position. The opinion proposes amendments to the directive, focusing on economic and monetary aspects, including changes to avoidance actions, pre-pack proceedings, creditors' committees, and simplified winding-up.¶¶¶
Key points
- Adds the Capital Markets Union and firm value to the directive's objectives, and stresses the need for minimum requirements including for employees.¶¶¶
- Calls for a harmonised tax environment to equalise debt and equity financing, in line with the DEBRA proposal.¶
- In avoidance actions, removes the 'should have known' standard for congruent coverages, requiring actual knowledge of insolvency.¶¶¶
- Exempts from avoidance legal acts performed directly against fair consideration, in particular wages, and adds social security claims to the exemption.¶¶¶
- In pre-pack sales, requires the monitor to reject offers from closely related parties if they do not satisfy the broader objectives of insolvency law, not just the best-interest-of-creditors test.¶¶
- Allows assignment of executory contracts without consent but requires consultation of employees; prohibits termination of employment contracts and contracts with employees.¶¶¶
- Requires that acquirers of a business take it free of debts unless they consent, but the debtor remains jointly liable; does not apply to employment contracts.¶
- Limits simplified winding-up to microenterprises with less than 20 creditors, and requires conditions like up-to-date accounting and payment of taxes for not appointing an insolvency practitioner.¶¶¶
- Adds a list of commercial transactions from the six months before the request to the debtor's statement, and clarifies security interests.¶¶
- Exempts employees' claims from the stay on enforcement actions unless guaranteed in preventive restructuring frameworks.¶
- Requires that employees' representatives are members of the creditors' committee, and deletes the article setting the number of members.¶¶
- Introduces a new article on data reporting, requiring the Commission to support harmonised data and publish annual reports on insolvency cases.¶
Who is affected
- Microenterprises with less than 20 creditors: simplified winding-up proceedings are available to them, with conditions for avoiding an insolvency practitioner.¶¶¶
- Employees: their wages are exempt from avoidance, their contracts are not terminated in pre-pack, and they get representation on creditors' committees.¶¶¶
- Creditors: their knowledge of insolvency must be actual, not constructive, for avoidance actions; they may request insolvency practitioner appointment in simplified proceedings.¶¶¶
- Acquirers of a debtor's business: they take it free of debts unless they consent, and they must consult employees on contract assignment.¶¶