02015R0848 — EN — 09.01.2022 — 003.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
REGULATION (EU) 2015/848 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 2015 on insolvency proceedings (OJ L 141 5.6.2015, p. 19) |
Amended by:
|
|
Official Journal |
||
No |
page |
date |
||
REGULATION (EU) 2017/353 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 February 2017 |
L 57 |
19 |
3.3.2017 |
|
REGULATION (EU) 2018/946 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2018 |
L 171 |
1 |
6.7.2018 |
|
REGULATION (EU) 2021/2260 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 December 2021 |
L 455 |
4 |
20.12.2021 |
Corrected by:
REGULATION (EU) 2015/848 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 20 May 2015
on insolvency proceedings
(recast)
CHAPTER I
GENERAL PROVISIONS
Article 1
Scope
This Regulation shall apply to public collective proceedings, including interim proceedings, which are based on laws relating to insolvency and in which, for the purpose of rescue, adjustment of debt, reorganisation or liquidation:
a debtor is totally or partially divested of its assets and an insolvency practitioner is appointed;
the assets and affairs of a debtor are subject to control or supervision by a court; or
a temporary stay of individual enforcement proceedings is granted by a court or by operation of law, in order to allow for negotiations between the debtor and its creditors, provided that the proceedings in which the stay is granted provide for suitable measures to protect the general body of creditors, and, where no agreement is reached, are preliminary to one of the proceedings referred to in point (a) or (b).
Where the proceedings referred to in this paragraph may be commenced in situations where there is only a likelihood of insolvency, their purpose shall be to avoid the debtor's insolvency or the cessation of the debtor's business activities.
The proceedings referred to in this paragraph are listed in Annex A.
This Regulation shall not apply to proceedings referred to in paragraph 1 that concern:
insurance undertakings;
credit institutions;
investment firms and other firms, institutions and undertakings to the extent that they are covered by Directive 2001/24/EC; or
collective investment undertakings.
Article 2
Definitions
For the purposes of this Regulation:
‘collective proceedings’ means proceedings which include all or a significant part of a debtor's creditors, provided that, in the latter case, the proceedings do not affect the claims of creditors which are not involved in them;
‘collective investment undertakings’ means undertakings for collective investment in transferable securities (UCITS) as defined in Directive 2009/65/EC of the European Parliament and of the Council ( 1 ) and alternative investment funds (AIFs) as defined in Directive 2011/61/EU of the European Parliament and of the Council ( 2 );
‘debtor in possession’ means a debtor in respect of which insolvency proceedings have been opened which do not necessarily involve the appointment of an insolvency practitioner or the complete transfer of the rights and duties to administer the debtor's assets to an insolvency practitioner and where, therefore, the debtor remains totally or at least partially in control of its assets and affairs;
‘insolvency proceedings’ means the proceedings listed in Annex A;
‘insolvency practitioner’ means any person or body whose function, including on an interim basis, is to:
verify and admit claims submitted in insolvency proceedings;
represent the collective interest of the creditors;
administer, either in full or in part, assets of which the debtor has been divested;
liquidate the assets referred to in point (iii); or
supervise the administration of the debtor's affairs.
The persons and bodies referred to in the first subparagraph are listed in Annex B;
‘court’ means:
in points (b) and (c) of Article 1(1), Article 4(2), Articles 5 and 6, Article 21(3), point (j) of Article 24(2), Articles 36 and 39, and Articles 61 to 77, the judicial body of a Member State;
in all other articles, the judicial body or any other competent body of a Member State empowered to open insolvency proceedings, to confirm such opening or to take decisions in the course of such proceedings;
‘judgment opening insolvency proceedings’ includes:
the decision of any court to open insolvency proceedings or to confirm the opening of such proceedings; and
the decision of a court to appoint an insolvency practitioner;
‘the time of the opening of proceedings’ means the time at which the judgment opening insolvency proceedings becomes effective, regardless of whether the judgment is final or not;
‘the Member State in which assets are situated’ means, in the case of:
registered shares in companies other than those referred to in point (ii), the Member State within the territory of which the company having issued the shares has its registered office;
financial instruments, the title to which is evidenced by entries in a register or account maintained by or on behalf of an intermediary (‘book entry securities’), the Member State in which the register or account in which the entries are made is maintained;
cash held in accounts with a credit institution, the Member State indicated in the account's IBAN, or, for cash held in accounts with a credit institution which does not have an IBAN, the Member State in which the credit institution holding the account has its central administration or, where the account is held with a branch, agency or other establishment, the Member State in which the branch, agency or other establishment is located;
property and rights, ownership of or entitlement to which is entered in a public register other than those referred to in point (i), the Member State under the authority of which the register is kept;
European patents, the Member State for which the European patent is granted;
copyright and related rights, the Member State within the territory of which the owner of such rights has its habitual residence or registered office;
tangible property, other than that referred to in points (i) to (iv), the Member State within the territory of which the property is situated;
claims against third parties, other than those relating to assets referred to in point (iii), the Member State within the territory of which the third party required to meet the claims has the centre of its main interests, as determined in accordance with Article 3(1);
‘establishment’ means any place of operations where a debtor carries out or has carried out in the 3-month period prior to the request to open main insolvency proceedings a non-transitory economic activity with human means and assets;
‘local creditor’ means a creditor whose claims against a debtor arose from or in connection with the operation of an establishment situated in a Member State other than the Member State in which the centre of the debtor's main interests is located;
‘foreign creditor’ means a creditor which has its habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings, including the tax authorities and social security authorities of Member States;
‘group of companies’ means a parent undertaking and all its subsidiary undertakings;
‘parent undertaking’ means an undertaking which controls, either directly or indirectly, one or more subsidiary undertakings. An undertaking which prepares consolidated financial statements in accordance with Directive 2013/34/EU of the European Parliament and of the Council ( 3 ) shall be deemed to be a parent undertaking.
Article 3
International jurisdiction
In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.
In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual's principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual's principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.
In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual's habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.
The territorial insolvency proceedings referred to in paragraph 2 may only be opened prior to the opening of main insolvency proceedings in accordance with paragraph 1 where
insolvency proceedings under paragraph 1 cannot be opened because of the conditions laid down by the law of the Member State within the territory of which the centre of the debtor's main interests is situated; or
the opening of territorial insolvency proceedings is requested by:
a creditor whose claim arises from or is in connection with the operation of an establishment situated within the territory of the Member State where the opening of territorial proceedings is requested; or
a public authority which, under the law of the Member State within the territory of which the establishment is situated, has the right to request the opening of insolvency proceedings.
When main insolvency proceedings are opened, the territorial insolvency proceedings shall become secondary insolvency proceedings.
Article 4
Examination as to jurisdiction
Article 5
Judicial review of the decision to open main insolvency proceedings
Article 6
Jurisdiction for actions deriving directly from insolvency proceedings and closely linked with them
The first subparagraph shall apply to the debtor in possession, provided that national law allows the debtor in possession to bring actions on behalf of the insolvency estate.
Article 7
Applicable law
The law of the State of the opening of proceedings shall determine the conditions for the opening of those proceedings, their conduct and their closure. In particular, it shall determine the following:
the debtors against which insolvency proceedings may be brought on account of their capacity;
the assets which form part of the insolvency estate and the treatment of assets acquired by or devolving on the debtor after the opening of the insolvency proceedings;
the respective powers of the debtor and the insolvency practitioner;
the conditions under which set-offs may be invoked;
the effects of insolvency proceedings on current contracts to which the debtor is party;
the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of pending lawsuits;
the claims which are to be lodged against the debtor's insolvency estate and the treatment of claims arising after the opening of insolvency proceedings;
the rules governing the lodging, verification and admission of claims;
the rules governing the distribution of proceeds from the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings by virtue of a right in rem or through a set-off;
the conditions for, and the effects of closure of, insolvency proceedings, in particular by composition;
creditors' rights after the closure of insolvency proceedings;
who is to bear the costs and expenses incurred in the insolvency proceedings;
the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to the general body of creditors.
Article 8
Third parties' rights in rem
The rights referred to in paragraph 1 shall, in particular, mean:
the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds of or income from those assets, in particular by virtue of a lien or a mortgage;
the exclusive right to have a claim met, in particular a right guaranteed by a lien in respect of the claim or by assignment of the claim by way of a guarantee;
the right to demand assets from, and/or to require restitution by, anyone having possession or use of them contrary to the wishes of the party so entitled;
a right in rem to the beneficial use of assets.
Article 9
Set-off
Article 10
Reservation of title
Article 11
Contracts relating to immoveable property
The court which opened main insolvency proceedings shall have jurisdiction to approve the termination or modification of the contracts referred to in this Article where:
the law of the Member State applicable to those contracts requires that such a contract may only be terminated or modified with the approval of the court opening insolvency proceedings; and
no insolvency proceedings have been opened in that Member State.
Article 12
Payment systems and financial markets
Article 13
Contracts of employment
The first subparagraph shall also apply to an authority competent under national law to approve the termination or modification of the contracts referred to in this Article.
Article 14
Effects on rights subject to registration
The effects of insolvency proceedings on the rights of a debtor in immoveable property, a ship or an aircraft subject to registration in a public register shall be determined by the law of the Member State under the authority of which the register is kept.
Article 15
European patents with unitary effect and Community trade marks
For the purposes of this Regulation, a European patent with unitary effect, a Community trade mark or any other similar right established by Union law may be included only in the proceedings referred to in Article 3(1).
Article 16
Detrimental acts
Point (m) of Article 7(2) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that:
the act is subject to the law of a Member State other than that of the State of the opening of proceedings; and
the law of that Member State does not allow any means of challenging that act in the relevant case.
Article 17
Protection of third-party purchasers
Where, by an act concluded after the opening of insolvency proceedings, a debtor disposes, for consideration, of:
an immoveable asset;
a ship or an aircraft subject to registration in a public register; or
securities the existence of which requires registration in a register laid down by law;
the validity of that act shall be governed by the law of the State within the territory of which the immoveable asset is situated or under the authority of which the register is kept.
Article 18
Effects of insolvency proceedings on pending lawsuits or arbitral proceedings
The effects of insolvency proceedings on a pending lawsuit or pending arbitral proceedings concerning an asset or a right which forms part of a debtor's insolvency estate shall be governed solely by the law of the Member State in which that lawsuit is pending or in which the arbitral tribunal has its seat.
CHAPTER II
RECOGNITION OF INSOLVENCY PROCEEDINGS
Article 19
Principle
The rule laid down in the first subparagraph shall also apply where, on account of a debtor's capacity, insolvency proceedings cannot be brought against that debtor in other Member States.
Article 20
Effects of recognition
Article 21
Powers of the insolvency practitioner
Article 22
Proof of the insolvency practitioner's appointment
The insolvency practitioner's appointment shall be evidenced by a certified copy of the original decision appointing it or by any other certificate issued by the court which has jurisdiction.
A translation into the official language or one of the official languages of the Member State within the territory of which it intends to act may be required. No legalisation or other similar formality shall be required.
Article 23
Return and imputation
Article 24
Establishment of insolvency registers
The information referred to in paragraph 1 shall be made publicly available, subject to the conditions laid down in Article 27, and shall include the following (‘mandatory information’):
the date of the opening of insolvency proceedings;
the court opening insolvency proceedings and the case reference number, if any;
the type of insolvency proceedings referred to in Annex A that were opened and, where applicable, any relevant subtype of such proceedings opened in accordance with national law;
whether jurisdiction for opening proceedings is based on Article 3(1), 3(2) or 3(4);
if the debtor is a company or a legal person, the debtor's name, registration number, registered office or, if different, postal address;
if the debtor is an individual whether or not exercising an independent business or professional activity, the debtor's name, registration number, if any, and postal address or, where the address is protected, the debtor's place and date of birth;
the name, postal address or e-mail address of the insolvency practitioner, if any, appointed in the proceedings;
the time limit for lodging claims, if any, or a reference to the criteria for calculating that time limit;
the date of closing main insolvency proceedings, if any;
the court before which and, where applicable, the time limit within which a challenge of the decision opening insolvency proceedings is to be lodged in accordance with Article 5, or a reference to the criteria for calculating that time limit.
Where a Member State makes use of the possibility referred to in the first subparagraph, the insolvency proceedings shall not affect the claims of foreign creditors who have not received the information referred to in the first subparagraph.
Article 25
Interconnection of insolvency registers
By means of implementing acts in accordance with the procedure referred to in Article 87, the Commission shall adopt the following by 26 June 2019:
the technical specification defining the methods of communication and information exchange by electronic means on the basis of the established interface specification for the system of interconnection of insolvency registers;
the technical measures ensuring the minimum information technology security standards for communication and distribution of information within the system of interconnection of insolvency registers;
minimum criteria for the search service provided by the European e-Justice Portal based on the information set out in Article 24;
minimum criteria for the presentation of the results of such searches based on the information set out in Article 24;
the means and the technical conditions of availability of services provided by the system of interconnection; and
a glossary containing a basic explanation of the national insolvency proceedings listed in Annex A.
Article 26
Costs of establishing and interconnecting insolvency registers
Article 27
Conditions of access to information via the system of interconnection
The requesting person shall not be obliged to provide translations of the documents justifying his request, or to bear any costs of translation which the competent authority may incur.
Article 28
Publication in another Member State
Article 29
Registration in public registers of another Member State
Article 30
Costs
The costs of the publication and registration provided for in Articles 28 and 29 shall be regarded as costs and expenses incurred in the proceedings.
Article 31
Honouring of an obligation to a debtor
Article 32
Recognition and enforceability of other judgments
The first subparagraph shall also apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court.
The first subparagraph shall also apply to judgments relating to preservation measures taken after the request for the opening of insolvency proceedings or in connection with it.
Article 33
Public policy
Any Member State may refuse to recognise insolvency proceedings opened in another Member State or to enforce a judgment handed down in the context of such proceedings where the effects of such recognition or enforcement would be manifestly contrary to that State's public policy, in particular its fundamental principles or the constitutional rights and liberties of the individual.
CHAPTER III
SECONDARY INSOLVENCY PROCEEDINGS
Article 34
Opening of proceedings
Where main insolvency proceedings have been opened by a court of a Member State and recognised in another Member State, a court of that other Member State which has jurisdiction pursuant to Article 3(2) may open secondary insolvency proceedings in accordance with the provisions set out in this Chapter. Where the main insolvency proceedings required that the debtor be insolvent, the debtor's insolvency shall not be re-examined in the Member State in which secondary insolvency proceedings may be opened. The effects of secondary insolvency proceedings shall be restricted to the assets of the debtor situated within the territory of the Member State in which those proceedings have been opened.
Article 35
Applicable law
Save as otherwise provided for in this Regulation, the law applicable to secondary insolvency proceedings shall be that of the Member State within the territory of which the secondary insolvency proceedings are opened.
Article 36
Right to give an undertaking in order to avoid secondary insolvency proceedings
Article 37
Right to request the opening of secondary insolvency proceedings
The opening of secondary insolvency proceedings may be requested by:
the insolvency practitioner in the main insolvency proceedings;
any other person or authority empowered to request the opening of insolvency proceedings under the law of the Member State within the territory of which the opening of secondary insolvency proceedings is requested.
Article 38
Decision to open secondary insolvency proceedings
The court referred to in paragraph 1 may order protective measures to protect the interests of local creditors by requiring the insolvency practitioner or the debtor in possession not to remove or dispose of any assets which are located in the Member State where its establishment is located unless this is done in the ordinary course of business. The court may also order other measures to protect the interest of local creditors during a stay, unless this is incompatible with the national rules on civil procedure.
The stay of the opening of secondary insolvency proceedings shall be lifted by the court of its own motion or at the request of any creditor if, during the stay, an agreement in the negotiations referred to in the first subparagraph has been concluded.
The stay may be lifted by the court of its own motion or at the request of any creditor if the continuation of the stay is detrimental to the creditor's rights, in particular if the negotiations have been disrupted or it has become evident that they are unlikely to be concluded, or if the insolvency practitioner or the debtor in possession has infringed the prohibition on disposal of its assets or on removal of them from the territory of the Member State where the establishment is located.
Article 39
Judicial review of the decision to open secondary insolvency proceedings
The insolvency practitioner in the main insolvency proceedings may challenge the decision to open secondary insolvency proceedings before the courts of the Member State in which secondary insolvency proceedings have been opened on the ground that the court did not comply with the conditions and requirements of Article 38.
Article 40
Advance payment of costs and expenses
Where the law of the Member State in which the opening of secondary insolvency proceedings is requested requires that the debtor's assets be sufficient to cover in whole or in part the costs and expenses of the proceedings, the court may, when it receives such a request, require the applicant to make an advance payment of costs or to provide appropriate security.
Article 41
Cooperation and communication between insolvency practitioners
In implementing the cooperation set out in paragraph 1, the insolvency practitioners shall:
as soon as possible communicate to each other any information which may be relevant to the other proceedings, in particular any progress made in lodging and verifying claims and all measures aimed at rescuing or restructuring the debtor, or at terminating the proceedings, provided appropriate arrangements are made to protect confidential information;
explore the possibility of restructuring the debtor and, where such a possibility exists, coordinate the elaboration and implementation of a restructuring plan;
coordinate the administration of the realisation or use of the debtor's assets and affairs; the insolvency practitioner in the secondary insolvency proceedings shall give the insolvency practitioner in the main insolvency proceedings an early opportunity to submit proposals on the realisation or use of the assets in the secondary insolvency proceedings.
Article 42
Cooperation and communication between courts
The cooperation referred to in paragraph 1 may be implemented by any means that the court considers appropriate. It may, in particular, concern:
coordination in the appointment of the insolvency practitioners;
communication of information by any means considered appropriate by the court;
coordination of the administration and supervision of the debtor's assets and affairs;
coordination of the conduct of hearings;
coordination in the approval of protocols, where necessary.
Article 43
Cooperation and communication between insolvency practitioners and courts
In order to facilitate the coordination of main, territorial and secondary insolvency proceedings opened in respect of the same debtor:
an insolvency practitioner in main insolvency proceedings shall cooperate and communicate with any court before which a request to open secondary insolvency proceedings is pending or which has opened such proceedings;
an insolvency practitioner in territorial or secondary insolvency proceedings shall cooperate and communicate with the court before which a request to open main insolvency proceedings is pending or which has opened such proceedings; and
an insolvency practitioner in territorial or secondary insolvency proceedings shall cooperate and communicate with the court before which a request to open other territorial or secondary insolvency proceedings is pending or which has opened such proceedings;
to the extent that such cooperation and communication are not incompatible with the rules applicable to each of the proceedings and do not entail any conflict of interest.
Article 44
Costs of cooperation and communication
The requirements laid down in Articles 42 and 43 shall not result in courts charging costs to each other for cooperation and communication.
Article 45
Exercise of creditors' rights
Article 46
Stay of the process of realisation of assets
The court referred to in paragraph 1 shall terminate the stay of the process of realisation of assets:
at the request of the insolvency practitioner in the main insolvency proceedings;
of its own motion, at the request of a creditor or at the request of the insolvency practitioner in the secondary insolvency proceedings if that measure no longer appears justified, in particular, by the interests of creditors in the main insolvency proceedings or in the secondary insolvency proceedings.
Article 47
Power of the insolvency practitioner to propose restructuring plans
Article 48
Impact of closure of insolvency proceedings
Article 49
Assets remaining in the secondary insolvency proceedings
If, by the liquidation of assets in the secondary insolvency proceedings, it is possible to meet all claims allowed under those proceedings, the insolvency practitioner appointed in those proceedings shall immediately transfer any assets remaining to the insolvency practitioner in the main insolvency proceedings.
Article 50
Subsequent opening of the main insolvency proceedings
Where the proceedings referred to in Article 3(1) are opened following the opening of the proceedings referred to in Article 3(2) in another Member State, Articles 41, 45, 46, 47 and 49 shall apply to those opened first, in so far as the progress of those proceedings so permits.
Article 51
Conversion of secondary insolvency proceedings
Article 52
Preservation measures
Where the court of a Member State which has jurisdiction pursuant to Article 3(1) appoints a temporary administrator in order to ensure the preservation of a debtor's assets, that temporary administrator shall be empowered to request any measures to secure and preserve any of the debtor's assets situated in another Member State, provided for under the law of that Member State, for the period between the request for the opening of insolvency proceedings and the judgment opening the proceedings.
CHAPTER IV
PROVISION OF INFORMATION FOR CREDITORS AND LODGEMENT OF THEIR CLAIMS
Article 53
Right to lodge claims
Any foreign creditor may lodge claims in insolvency proceedings by any means of communication, which are accepted by the law of the State of the opening of proceedings. Representation by a lawyer or another legal professional shall not be mandatory for the sole purpose of lodging of claims.
Article 54
Duty to inform creditors
Article 55
Procedure for lodging claims
The standard claims form referred to in paragraph 1 shall include the following information:
the name, postal address, e-mail address, if any, personal identification number, if any, and bank details of the foreign creditor referred to in paragraph 1;
the amount of the claim, specifying the principal and, where applicable, interest and the date on which it arose and the date on which it became due, if different;
if interest is claimed, the interest rate, whether the interest is of a legal or contractual nature, the period of time for which the interest is claimed and the capitalised amount of interest;
if costs incurred in asserting the claim prior to the opening of proceedings are claimed, the amount and the details of those costs;
the nature of the claim;
whether any preferential creditor status is claimed and the basis of such a claim;
whether security in rem or a reservation of title is alleged in respect of the claim and if so, what assets are covered by the security interest being invoked, the date on which the security was granted and, where the security has been registered, the registration number; and
whether any set-off is claimed and, if so, the amounts of the mutual claims existing on the date when insolvency proceedings were opened, the date on which they arose and the amount net of set-off claimed.
The standard claims form shall be accompanied by copies of any supporting documents.
CHAPTER V
INSOLVENCY PROCEEDINGS OF MEMBERS OF A GROUP OF COMPANIES
SECTION 1
Cooperation and communication
Article 56
Cooperation and communication between insolvency practitioners
In implementing the cooperation set out in paragraph 1, insolvency practitioners shall:
as soon as possible communicate to each other any information which may be relevant to the other proceedings, provided appropriate arrangements are made to protect confidential information;
consider whether possibilities exist for coordinating the administration and supervision of the affairs of the group members which are subject to insolvency proceedings, and if so, coordinate such administration and supervision;
consider whether possibilities exist for restructuring group members which are subject to insolvency proceedings and, if so, coordinate with regard to the proposal and negotiation of a coordinated restructuring plan.
For the purposes of points (b) and (c), all or some of the insolvency practitioners referred to in paragraph 1 may agree to grant additional powers to an insolvency practitioner appointed in one of the proceedings where such an agreement is permitted by the rules applicable to each of the proceedings. They may also agree on the allocation of certain tasks amongst them, where such allocation of tasks is permitted by the rules applicable to each of the proceedings.
Article 57
Cooperation and communication between courts
The cooperation referred to in paragraph 1 may be implemented by any means that the court considers appropriate. It may, in particular, concern:
coordination in the appointment of insolvency practitioners;
communication of information by any means considered appropriate by the court;
coordination of the administration and supervision of the assets and affairs of the members of the group;
coordination of the conduct of hearings;
coordination in the approval of protocols where necessary.
Article 58
Cooperation and communication between insolvency practitioners and courts
An insolvency practitioner appointed in insolvency proceedings concerning a member of a group of companies:
shall cooperate and communicate with any court before which a request for the opening of proceedings in respect of another member of the same group of companies is pending or which has opened such proceedings; and
may request information from that court concerning the proceedings regarding the other member of the group or request assistance concerning the proceedings in which he has been appointed;
to the extent that such cooperation and communication are appropriate to facilitate the effective administration of the proceedings, do not entail any conflict of interest and are not incompatible with the rules applicable to them.
Article 59
Costs of cooperation and communication in proceedings concerning members of a group of companies
The costs of the cooperation and communication provided for in Articles 56 to 60 incurred by an insolvency practitioner or a court shall be regarded as costs and expenses incurred in the respective proceedings.
Article 60
Powers of the insolvency practitioner in proceedings concerning members of a group of companies
An insolvency practitioner appointed in insolvency proceedings opened in respect of a member of a group of companies may, to the extent appropriate to facilitate the effective administration of the proceedings:
be heard in any of the proceedings opened in respect of any other member of the same group;
request a stay of any measure related to the realisation of the assets in the proceedings opened with respect to any other member of the same group, provided that:
a restructuring plan for all or some members of the group for which insolvency proceedings have been opened has been proposed under point (c) of Article 56(2) and presents a reasonable chance of success;
such a stay is necessary in order to ensure the proper implementation of the restructuring plan;
the restructuring plan would be to the benefit of the creditors in the proceedings for which the stay is requested; and
neither the insolvency proceedings in which the insolvency practitioner referred to in paragraph 1 of this Article has been appointed nor the proceedings in respect of which the stay is requested are subject to coordination under Section 2 of this Chapter;
apply for the opening of group coordination proceedings in accordance with Article 61.
Before ordering the stay, the court shall hear the insolvency practitioner appointed in the proceedings for which the stay is requested. Such a stay may be ordered for any period, not exceeding 3 months, which the court considers appropriate and which is compatible with the rules applicable to the proceedings.
The court ordering the stay may require the insolvency practitioner referred to in paragraph 1 to take any suitable measure available under national law to guarantee the interests of the creditors in the proceedings.
The court may extend the duration of the stay by such further period or periods as it considers appropriate and which are compatible with the rules applicable to the proceedings, provided that the conditions referred to in points (b)(ii) to (iv) of paragraph 1 continue to be fulfilled and that the total duration of the stay (the initial period together with any such extensions) does not exceed 6 months.
SECTION 2
Coordination
Article 61
Request to open group coordination proceedings
The request referred to in paragraph 1 shall be accompanied by:
a proposal as to the person to be nominated as the group coordinator (‘the coordinator’), details of his or her eligibility pursuant to Article 71, details of his or her qualifications and his or her written agreement to act as coordinator;
an outline of the proposed group coordination, and in particular the reasons why the conditions set out in Article 63(1) are fulfilled;
a list of the insolvency practitioners appointed in relation to the members of the group and, where relevant, the courts and competent authorities involved in the insolvency proceedings of the members of the group;
an outline of the estimated costs of the proposed group coordination and the estimation of the share of those costs to be paid by each member of the group.
Article 62
Priority rule
Without prejudice to Article 66, where the opening of group coordination proceedings is requested before courts of different Member States, any court other than the court first seised shall decline jurisdiction in favour of that court.
Article 63
Notice by the court seised
The court seised of a request to open group coordination proceedings shall give notice as soon as possible of the request for the opening of group coordination proceedings and of the proposed coordinator to the insolvency practitioners appointed in relation to the members of the group as indicated in the request referred to in point (c) of Article 61(3), if it is satisfied that:
the opening of such proceedings is appropriate to facilitate the effective administration of the insolvency proceedings relating to the different group members;
no creditor of any group member expected to participate in the proceedings is likely to be financially disadvantaged by the inclusion of that member in such proceedings; and
the proposed coordinator fulfils the requirements laid down in Article 71.
Article 64
Objections by insolvency practitioners
An insolvency practitioner appointed in respect of any group member may object to:
the inclusion within group coordination proceedings of the insolvency proceedings in respect of which it has been appointed; or
the person proposed as a coordinator.
The objection may be made by means of the standard form established in accordance with Article 88.
Article 65
Consequences of objection to the inclusion in group coordination
Article 66
Choice of court for group coordination proceedings
Article 67
Consequences of objections to the proposed coordinator
Where objections to the person proposed as coordinator have been received from an insolvency practitioner which does not also object to the inclusion in the group coordination proceedings of the member in respect of which it has been appointed, the court may refrain from appointing that person and invite the objecting insolvency practitioner to submit a new request in accordance with Article 61(3).
Article 68
Decision to open group coordination proceedings
After the period referred to in Article 64(2) has elapsed, the court may open group coordination proceedings where it is satisfied that the conditions of Article 63(1) are met. In such a case, the court shall:
appoint a coordinator;
decide on the outline of the coordination; and
decide on the estimation of costs and the share to be paid by the group members.
Article 69
Subsequent opt-in by insolvency practitioners
In accordance with its national law, any insolvency practitioner may request, after the court decision referred to in Article 68, the inclusion of the proceedings in respect of which it has been appointed, where:
there has been an objection to the inclusion of the insolvency proceedings within the group coordination proceedings; or
insolvency proceedings with respect to a member of the group have been opened after the court has opened group coordination proceedings.
Without prejudice to paragraph 4, the coordinator may accede to such a request, after consulting the insolvency practitioners involved, where
he or she is satisfied that, taking into account the stage that the group coordination proceedings has reached at the time of the request, the criteria set out in points (a) and (b) of Article 63(1) are met; or
all insolvency practitioners involved agree, subject to the conditions in their national law.
Article 70
Recommendations and group coordination plan
If it does not follow the coordinator's recommendations or the group coordination plan, it shall give reasons for not doing so to the persons or bodies that it is to report to under its national law, and to the coordinator.
Article 71
The coordinator
Article 72
Tasks and rights of the coordinator
The coordinator shall:
identify and outline recommendations for the coordinated conduct of the insolvency proceedings;
propose a group coordination plan that identifies, describes and recommends a comprehensive set of measures appropriate to an integrated approach to the resolution of the group members' insolvencies. In particular, the plan may contain proposals for:
the measures to be taken in order to re-establish the economic performance and the financial soundness of the group or any part of it;
the settlement of intra-group disputes as regards intra-group transactions and avoidance actions;
agreements between the insolvency practitioners of the insolvent group members.
The coordinator may also:
be heard and participate, in particular by attending creditors' meetings, in any of the proceedings opened in respect of any member of the group;
mediate any dispute arising between two or more insolvency practitioners of group members;
present and explain his or her group coordination plan to the persons or bodies that he or she is to report to under his or her national law;
request information from any insolvency practitioner in respect of any member of the group where that information is or might be of use when identifying and outlining strategies and measures in order to coordinate the proceedings; and
request a stay for a period of up to 6 months of the proceedings opened in respect of any member of the group, provided that such a stay is necessary in order to ensure the proper implementation of the plan and would be to the benefit of the creditors in the proceedings for which the stay is requested; or request the lifting of any existing stay. Such a request shall be made to the court that opened the proceedings for which a stay is requested.
Where the coordinator considers that the fulfilment of his or her tasks requires a significant increase in the costs compared to the cost estimate referred to in point (d) of Article 61(3), and in any case, where the costs exceed 10 % of the estimated costs, the coordinator shall:
inform without delay the participating insolvency practitioners; and
seek the prior approval of the court opening group coordination proceedings.
Article 73
Languages
Article 74
Cooperation between insolvency practitioners and the coordinator
Article 75
Revocation of the appointment of the coordinator
The court shall revoke the appointment of the coordinator of its own motion or at the request of the insolvency practitioner of a participating group member where:
the coordinator acts to the detriment of the creditors of a participating group member; or
the coordinator fails to comply with his or her obligations under this Chapter.
Article 76
Debtor in possession
The provisions applicable, under this Chapter, to the insolvency practitioner shall also apply, where appropriate, to the debtor in possession.
Article 77
Costs and distribution
CHAPTER VI
DATA PROTECTION
Article 78
Data protection
Article 79
Responsibilities of Member States regarding the processing of personal data in national insolvency registers
Article 80
Responsibilities of the Commission in connection with the processing of personal data
Article 81
Information obligations
Without prejudice to the information to be given to data subjects in accordance with Articles 11 and 12 of Regulation (EC) No 45/2001, the Commission shall inform data subjects, by means of publication through the European e-Justice Portal, about its role in the processing of data and the purposes for which those data will be processed.
Article 82
Storage of personal data
As regards information from interconnected national databases, no personal data relating to data subjects shall be stored in the European e-Justice Portal. All such data shall be stored in the national databases operated by the Member States or other bodies.
Article 83
Access to personal data via the European e-Justice Portal
Personal data stored in the national insolvency registers referred to in Article 24 shall be accessible via the European e-Justice Portal for as long as they remain accessible under national law.
CHAPTER VII
TRANSITIONAL AND FINAL PROVISIONS
Article 84
Applicability in time
Article 85
Relationship to Conventions
This Regulation replaces, in respect of the matters referred to therein, and as regards relations between Member States, the Conventions concluded between two or more Member States, in particular:
the Convention between Belgium and France on Jurisdiction and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments, signed at Paris on 8 July 1899;
the Convention between Belgium and Austria on Bankruptcy, Winding-up, Arrangements, Compositions and Suspension of Payments (with Additional Protocol of 13 June 1973), signed at Brussels on 16 July 1969;
the Convention between Belgium and the Netherlands on Territorial Jurisdiction, Bankruptcy and the Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments, signed at Brussels on 28 March 1925;
the Treaty between Germany and Austria on Bankruptcy, Winding-up, Arrangements and Compositions, signed at Vienna on 25 May 1979;
the Convention between France and Austria on Jurisdiction, Recognition and Enforcement of Judgments on Bankruptcy, signed at Vienna on 27 February 1979;
the Convention between France and Italy on the Enforcement of Judgments in Civil and Commercial Matters, signed at Rome on 3 June 1930;
the Convention between Italy and Austria on Bankruptcy, Winding-up, Arrangements and Compositions, signed at Rome on 12 July 1977;
the Convention between the Kingdom of the Netherlands and the Federal Republic of Germany on the Mutual Recognition and Enforcement of Judgments and other Enforceable Instruments in Civil and Commercial Matters, signed at The Hague on 30 August 1962;
the Convention between the United Kingdom and the Kingdom of Belgium providing for the Reciprocal Enforcement of Judgments in Civil and Commercial Matters, with Protocol, signed at Brussels on 2 May 1934;
the Convention between Denmark, Finland, Norway, Sweden and Iceland on Bankruptcy, signed at Copenhagen on 7 November 1933;
the European Convention on Certain International Aspects of Bankruptcy, signed at Istanbul on 5 June 1990;
the Convention between the Federative People's Republic of Yugoslavia and the Kingdom of Greece on the Mutual Recognition and Enforcement of Judgments, signed at Athens on 18 June 1959;
the Agreement between the Federative People's Republic of Yugoslavia and the Republic of Austria on the Mutual Recognition and Enforcement of Arbitral Awards and Arbitral Settlements in Commercial Matters, signed at Belgrade on 18 March 1960;
the Convention between the Federative People's Republic of Yugoslavia and the Italian Republic on Mutual Judicial Cooperation in Civil and Administrative Matters, signed at Rome on 3 December 1960;
the Agreement between the Socialist Federative Republic of Yugoslavia and the Kingdom of Belgium on Judicial Cooperation in Civil and Commercial Matters, signed at Belgrade on 24 September 1971;
the Convention between the Governments of Yugoslavia and France on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed at Paris on 18 May 1971;
the Agreement between the Czechoslovak Socialist Republic and the Hellenic Republic on Legal Aid in Civil and Criminal Matters, signed at Athens on 22 October 1980, still in force between the Czech Republic and Greece;
the Agreement between the Czechoslovak Socialist Republic and the Republic of Cyprus on Legal Aid in Civil and Criminal Matters, signed at Nicosia on 23 April 1982, still in force between the Czech Republic and Cyprus;
the Treaty between the Government of the Czechoslovak Socialist Republic and the Government of the Republic of France on Legal Aid and the Recognition and Enforcement of Judgments in Civil, Family and Commercial Matters, signed at Paris on 10 May 1984, still in force between the Czech Republic and France;
the Treaty between the Czechoslovak Socialist Republic and the Italian Republic on Legal Aid in Civil and Criminal Matters, signed at Prague on 6 December 1985, still in force between the Czech Republic and Italy;
the Agreement between the Republic of Latvia, the Republic of Estonia and the Republic of Lithuania on Legal Assistance and Legal Relationships, signed at Tallinn on 11 November 1992;
the Agreement between Estonia and Poland on Granting Legal Aid and Legal Relations on Civil, Labour and Criminal Matters, signed at Tallinn on 27 November 1998;
the Agreement between the Republic of Lithuania and the Republic of Poland on Legal Assistance and Legal Relations in Civil, Family, Labour and Criminal Matters, signed at Warsaw on 26 January 1993;
the Convention between the Socialist Republic of Romania and the Hellenic Republic on legal assistance in civil and criminal matters and its Protocol, signed at Bucharest on 19 October 1972;
the Convention between the Socialist Republic of Romania and the French Republic on legal assistance in civil and commercial matters, signed at Paris on 5 November 1974;
the Agreement between the People's Republic of Bulgaria and the Hellenic Republic on Legal Assistance in Civil and Criminal Matters, signed at Athens on 10 April 1976;
the Agreement between the People's Republic of Bulgaria and the Republic of Cyprus on Legal Assistance in Civil and Criminal Matters, signed at Nicosia on 29 April 1983;
the Agreement between the Government of the People's Republic of Bulgaria and the Government of the French Republic on Mutual Legal Assistance in Civil Matters, signed at Sofia on 18 January 1989;
the Treaty between Romania and the Czech Republic on judicial assistance in civil matters, signed at Bucharest on 11 July 1994;
the Treaty between Romania and the Republic of Poland on legal assistance and legal relations in civil cases, signed at Bucharest on 15 May 1999.
This Regulation shall not apply:
in any Member State, to the extent that it is irreconcilable with the obligations arising in relation to bankruptcy from a convention concluded by that Member State with one or more third countries before the entry into force of Regulation (EC) No 1346/2000;
in the United Kingdom of Great Britain and Northern Ireland, to the extent that is irreconcilable with the obligations arising in relation to bankruptcy and the winding-up of insolvent companies from any arrangements with the Commonwealth existing at the time Regulation (EC) No 1346/2000 entered into force.
Article 86
Information on national and Union insolvency law
Article 87
Establishment of the interconnection of registers
The Commission shall adopt implementing acts establishing the interconnection of insolvency registers as referred to in Article 25. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 89(3).
Article 88
Establishment and subsequent amendment of standard forms
The Commission shall adopt implementing acts establishing and, where necessary, amending the forms referred to in Article 27(4), Articles 54 and 55 and Article 64(2). Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 89(2).
Article 89
Committee procedure
Article 90
Review clause
Article 91
Repeal
Regulation (EC) No 1346/2000 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex D to this Regulation.
Article 92
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 26 June 2017, with the exception of:
Article 86, which shall apply from 26 June 2016;
Article 24(1), which shall apply from 26 June 2018; and
Article 25, which shall apply from 26 June 2019.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.
ANNEX A
INSOLVENCY PROCEEDINGS REFERRED TO IN ARTICLE 2, POINT (4)
BELGIQUE/BELGIË
БЪЛГАРИЯ
ČESKÁ REPUBLIKA
DEUTSCHLAND
EESTI
ÉIRE/IRELAND
ΕΛΛΑΔΑ
ESPAÑA
FRANCE
HRVATSKA
ITALIA
ΚΥΠΡΟΣ
LATVIJA
LIETUVA
LUXEMBOURG
MAGYARORSZÁG
MALTA
NEDERLAND
ÖSTERREICH
POLSKA
PORTUGAL
ROMÂNIA
SLOVENIJA
SLOVENSKO
SUOMI/FINLAND
SVERIGE
ANNEX B
INSOLVENCY PRACTITIONERS REFERRED TO IN ARTICLE 2, POINT (5)
BELGIQUE/BELGIË
БЪЛГАРИЯ
ČESKÁ REPUBLIKA
DEUTSCHLAND
EESTI
ÉIRE/IRELAND
ΕΛΛΑΔΑ
ESPAÑA
FRANCE
HRVATSKA
ITALIA
ΚΥΠΡΟΣ
LATVIJA
LIETUVA
LUXEMBOURG
MAGYARORSZÁG
MALTA
NEDERLAND
ÖSTERREICH
POLSKA
PORTUGAL
ROMÂNIA
SLOVENIJA
SLOVENSKO
SUOMI/FINLAND
SVERIGE
ANNEX C
Repealed Regulation with list of the successive amendments thereto
ANNEX D
Correlation table
Regulation (EC) No 1346/2000 |
This Regulation |
Article 1 |
Article 1 |
Article 2, introductory words |
Article 2, introductory words |
Article 2, point (a) |
Article 2, point (4) |
Article 2, point (b) |
Article 2, point (5) |
Article 2, point (c) |
— |
Article 2, point (d) |
Article 2, point (6) |
Article 2, point (e) |
Article 2, point (7) |
Article 2, point (f) |
Article 2, point (8) |
Article 2, point (g), introductory words |
Article 2, point (9), introductory words |
Article 2, point (g), first indent |
Article 2, point (9)(vii) |
Article 2, point (g), second indent |
Article 2, point (9)(iv) |
Article 2, point (g), third indent |
Article 2, point (9)(viii) |
Article 2, point (h) |
Article 2, point 10 |
— |
Article 2, points (1) to (3) and (11) to (13) |
— |
Article 2, point (9)(i) to (iii), (v), (vi) |
Article 3 |
Article 3 |
— |
Article 4 |
— |
Article 5 |
— |
Article 6 |
Article 4 |
Article 7 |
Article 5 |
Article 8 |
Article 6 |
Article 9 |
Article 7 |
Article 10 |
Article 8 |
Article 11(1) |
— |
Article 11(2) |
Article 9 |
Article 12 |
Article 10 |
Article 13(1) |
— |
Article 13(2) |
Article 11 |
Article 14 |
Article 12 |
Article 15 |
Article 13, first indent |
Article 16, point (a) |
Article 13, second indent |
Article 16, point (b) |
Article 14, first indent |
Article 17, point (a) |
Article 14, second indent |
Article 17, point (b) |
Article 14, third indent |
Article 17, point (c) |
Article 15 |
Article 18 |
Article 16 |
Article 19 |
Article 17 |
Article 20 |
Article 18 |
Article 21 |
Article 19 |
Article 22 |
Article 20 |
Article 23 |
— |
Article 24 |
— |
Article 25 |
— |
Article 26 |
— |
Article 27 |
Article 21(1) |
Article 28(2) |
Article 21(2) |
Article 28(1) |
Article 22 |
Article 29 |
Article 23 |
Article 30 |
Article 24 |
Article 31 |
Article 25 |
Article 32 |
Article 26 |
Article 33 |
Article 27 |
Article 34 |
Article 28 |
Article 35 |
— |
Article 36 |
Article 29 |
Article 37(1) |
— |
Article 37(2) |
— |
Article 38 |
— |
Article 39 |
Article 30 |
Article 40 |
Article 31 |
Article 41 |
— |
Article 42 |
— |
Article 43 |
— |
Article 44 |
Article 32 |
Article 45 |
Article 33 |
Article 46 |
Article 34(1) |
Article 47(1) |
Article 34(2) |
Article 47(2) |
Article 34(3) |
— |
— |
Article 48 |
Article 35 |
Article 49 |
Article 36 |
Article 50 |
Article 37 |
Article 51 |
Article 38 |
Article 52 |
Article 39 |
Article 53 |
Article 40 |
Article 54 |
Article 41 |
Article 55 |
Article 42 |
— |
— |
Article 56 |
— |
Article 57 |
— |
Article 58 |
— |
Article 59 |
— |
Article 60 |
— |
Article 61 |
— |
Article 62 |
— |
Article 63 |
— |
Article 64 |
— |
Article 65 |
— |
Article 66 |
— |
Article 67 |
— |
Article 68 |
— |
Article 69 |
— |
Article 70 |
— |
Article 71 |
— |
Article 72 |
— |
Article 73 |
— |
Article 74 |
— |
Article 75 |
— |
Article 76 |
— |
Article 77 |
— |
Article 78 |
— |
Article 79 |
— |
Article 80 |
— |
Article 81 |
— |
Article 82 |
— |
Article 83 |
Article 43 |
Article 84(1) |
— |
Article 84(2) |
Article 44 |
Article 85 |
— |
Article 86 |
Article 45 |
— |
— |
Article 87 |
— |
Article 88 |
— |
Article 89 |
Article 46 |
Article 90(1) |
— |
Article 90(2) to (4) |
— |
Article 91 |
Article 47 |
Article 92 |
Annex A |
Annex A |
Annex B |
— |
Annex C |
Annex B |
— |
Annex C |
— |
Annex D |
( 1 ) Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).
( 2 ) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
( 3 ) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertaking, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
( 4 ) Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ L 283, 28.10.2008, p. 36).
( 5 ) Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ L 174, 27.6.2001, p. 25).