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DRAFT REPORT (COM(2022)0702 – C100410/2022 – 2022/0408(COD))

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

JURI-PR-771863

Committee on Legal Affairs · Rapporteur: Emil Radev

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The draft report proposes amendments to the directive harmonising insolvency law, covering avoidance actions, asset tracing, pre-pack proceedings, directors' duties, and creditors' committees, while deleting provisions on simplified winding-up for microenterprises.

Committee position. The rapporteur proposes amendments to the Commission proposal, including deleting Title VI on simplified winding-up for microenterprises, and strengthening rules on avoidance actions, asset tracing, pre-pack, and creditors' committees.

Key points

  1. Avoidance actions should cover intentional human behaviour, including omissions, and legal acts by third parties, with rebuttable presumptions for closely related parties.
  2. Legal acts performed directly against fair consideration to the benefit of the debtor's assets are exempt from avoidance, including netting arrangements in financial and commodity markets.
  3. New or interim financing during restructuring is protected from preference avoidance actions.
  4. Avoidance actions can be brought against individual successors who acquired assets with knowledge or for inadequate consideration, with rebuttable presumptions for closely related parties.
  5. Designated courts or administrative authorities can access bank account registers directly and immediately, including cross-border via BARIS, with safeguards for personal data and confidentiality.
  6. Insolvency practitioners get timely access to beneficial ownership information and direct access to national registers and databases, without alerting the entity, and equal treatment for foreign practitioners.
  7. Pre-pack proceedings are introduced with two phases, a monitor independent from parties, and assignment of executory contracts without consent unless court decides otherwise, excluding IP licenses and financial contracts.
  8. Directors must file for insolvency within three months of becoming aware, with liability for damages for failure, but preventive restructuring is excluded.
  9. Creditors' committees represent the whole body of creditors fairly and independently, with members acting in good faith, confidentiality, and limited liability except for intentional or grossly negligent violations.
  10. Member states must provide a key information factsheet on insolvency law via the e-Justice Portal, in a multilingual format.
  11. Provisions on simplified winding-up proceedings for microenterprises are deleted entirely, including related definitions and recitals.

Who is affected

  • Insolvency practitioners: gain broader access to registers and databases, with conditions not less favourable for foreign practitioners.
  • Creditors and their committees: committees represent all creditors, with members protected from liability except for intentional or gross negligence.
  • Directors of companies: must file for insolvency within three months of awareness, facing liability for damages.
  • Microenterprises: no longer subject to specific simplified winding-up provisions in the directive.

Figures and deadlines

  • Three months: period for avoidance of acts detrimental to creditors before filing.
  • One year: period for avoidance of acts with inadequate consideration.
  • Three years: period for intentional detriment acts, and limitation period for claims.
  • Three months: deadline for directors to file for insolvency after awareness.
  • 30 days: period for appointment of creditors' committee members.
  • 5 working days: period for court certification of committee appointment.
  • 3 months: period for notification of designated courts to Commission.
  • 12 months: transposition period from entry into force.

Legal basis: Article 114 and Article 294 of the Treaty on the Functioning of the European Union