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More effective rules on insolvency proceedings across EU borders

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More effective rules on insolvency proceedings across EU borders

 

SUMMARY OF:

Regulation (EU) 2015/848 — insolvency proceedings

WHAT DOES THE REGULATION DO?

It aims to ensure the efficient administration of insolvency proceedings involving an individual or business that has business activities or financial interests in another EU country than the one in which they are usually based.

KEY POINTS

The regulation sets out EU-wide rules to establish:

  • which court has jurisdiction to open an insolvency case;
  • the applicable national law;
  • recognition of the court's decision when a company, a trader or an individual becomes insolvent.

It does not apply to Denmark.

Applicable situations

The regulation applies to proceedings which include all or a significant part of debtor's creditors, are based on insolvency laws and in which, for the purpose of rescue, adjustment of debt, reorganisation or liquidation:

  • 1.

    a debtor has lost all or part of its assets and an insolvency specialist, such as a liquidator, has been appointed;

  • 2.

    the assets and affairs of a debtor are under the control or supervision of a court; or

  • 3.
    a proceeding has been halted to allow for negotiations between the debtor and its creditors. This situation is only applicable if:
    • it takes place in the context of proceedings which aim at protecting the general body of creditors;
    • the negotiations fail, one of the 2 other types of proceedings listed above would follow.

The regulation covers ‘preventive’ insolvency proceedings available under national law which may be launched at an early stage in order to enhance the chances of rescuing the business. These proceedings are listed in Annex A of the regulation. It also covers a larger range of personal insolvency proceedings.

Jurisdiction

Proceedings take place in the courts of the EU country where the debtor's main interests are centred. This is presumed to mean:

  • the location of the registered office, in the case of company or legal person;
  • the principal place of business, in the case of an individual running a business or professional activity;
  • where they usually live, in the case of any other individual.

These presumptions do not apply if the location has changed within a certain period prior to the start of insolvency proceedings.

If the debtor has a place of operation in another EU country than the one where the debtor's main interests are centred, that EU country may also open insolvency proceedings against the debtor. However, these ‘secondary proceedings’ are limited to the assets held in that country.

The regulation enhances chances of rescuing companies by avoiding the opening of so-called synthetic secondary proceedings, where interests of local creditors are otherwise guaranteed.

Applicable law

In general, the applicable law is that of the country in which the proceedings take place. That law governs the conditions for opening and closing the proceedings and their conduct. This includes determining:

  • the debtors against whom a case can be brought;
  • the assets which form part of the insolvency estate;
  • creditors' rights after the case is closed;
  • who bears the costs and expenses of the proceedings.

Recognition and enforcement

Once a judgment opening insolvency proceedings in one EU country becomes effective it must be recognised in all other EU countries with the same effect.

Insolvency registers

To better ensure creditors and courts receive relevant information and to prevent parallel proceedings being opened, EU countries are required to publish relevant information on cross-border insolvency cases in a publicly accessible online register. These registers will be interconnected via the European e-Justice Portal, in conformity with EU data protection rules.

Group insolvency proceedings

The regulation creates a specific legal framework to deal with the insolvency of members of a group of companies. This includes:

  • rules obliging the various insolvency practitioners and the courts involved to cooperate and communicate with each other;
  • limited rights of standing for an insolvency practitioner in the proceedings concerning another member of the same group;
  • a specific system for the coordination of proceedings concerning the same company group (‘group coordination proceedings’).

FROM WHEN DOES THE REGULATION APPLY?

It has applied since 26 June 2017. Regulation (EU) 2015/848 revised and replaced Regulation (EC) No 1346/2000 (and its subsequent amendments).

BACKGROUND

Insolvency proceedings

ACT

Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (OJ L 141, 5.6.2015, pp. 19-72)

Successive amendments to Regulation (EU) 2015/848 have been incorporated into the basic text. This consolidated version is of documentary value only.

last update 20.01.2016

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