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DRAFT OPINION (COM(2022)0702 – C90410/2022 – 2022/0408(COD))

On the proposal for a directive of the European Parliament and of the Council harmonising certain aspects of insolvency law

ECON-PA-768176

Committee on Economic and Monetary Affairs · Rapporteur: René Repasi

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This draft opinion amends the proposed directive on harmonising insolvency law, extending its scope to SMEs, strengthening worker protection, and adjusting rules on avoidance actions, pre-pack proceedings, and simplified winding-up.

Committee position. The opinion proposes amendments to the directive, extending its scope to SMEs, strengthening worker protections, and refining rules on avoidance actions, pre-pack proceedings, and simplified winding-up.

Key points

  1. Extends the directive's scope to include SMEs alongside microenterprises in simplified winding-up proceedings and related provisions.
  2. Adds a new recital stating that employees who are owed wages can be regarded as creditors.
  3. Calls for a legal instrument to address the debt-equity bias, placing debt and equity financing on equal footing.
  4. Allows legal acts requiring registration to be deemed perfected before registration, exceptionally.
  5. Changes the standard for avoidance of congruent coverages: the creditor must have known, not merely should have known, of the debtor's insolvency.
  6. Adds social security claims to the list of legal acts that may be exempt from avoidance actions.
  7. Requires that avoidance actions be declared void by court order and only where just and equitable.
  8. Protects good-faith heirs or universal successors from avoidance actions.
  9. Makes pre-pack proceedings optional for Member States and allows them to provide greater worker protection.
  10. Requires monitors to consult creditors, use independent valuations, and ensure creditor committee participation.
  11. Mandates that sale processes in pre-pack meet social standards and aim for fair value, with employment safeguarding as a selection criterion.
  12. Requires directors to take steps to avoid insolvency, considering creditor interests and avoiding reckless conduct, and to file for insolvency without undue delay if unavoidable.

Who is affected

  • Microenterprises and SMEs: gain access to simplified winding-up proceedings and related protections.
  • Employees: recognised as creditors, with rights to information, consultation, and representation in creditors' committees.
  • Creditors: face stricter conditions for avoidance actions and gain rights to information and participation.
  • Directors of legal entities: must take steps to avoid insolvency and file for insolvency without undue delay if unavoidable.

Figures and deadlines

  • Two weeks: deadline for microenterprise or SME to submit information after opening of proceedings if contested.
  • Six months: period for listing commercial transactions in the request for simplified winding-up proceedings.
  • Two years after entry into force: Commission to draw up annual reports on insolvency cases.