Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 14 December 2023 (1)

Case C‑687/22

Julieta,

Rogelio

v

Agencia Estatal de la Administración Tributaria

(Request for a preliminary ruling from the Audiencia Provincial de Alicante (Provincial Court, Alicante, Spain))

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Insolvency proceedings – Restructuring plan – Directive (EU) 2019/1023 – Exclusion of claims governed by public law – Legal effects of directives – Obligation not to seriously compromise the attainment of the result prescribed by the directive)

I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of Article 23(4) of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency). (2)

2.        The request has been made in proceedings between two natural persons who have become insolvent (‘the Debtors’) and the Agencia Estatal de Administración Tributaria (State Tax Administration Agency, Spain) (‘the AEAT’), concerning an application for discharge of debt filed by the Debtors in the course of the insolvency proceedings concerning them. The AEAT opposed the discharge of debt corresponding to a tax claim.

3.        The present case provides the Court of Justice with an opportunity to clarify the scope of the discretion available to Member States when transposing Article 23(4) of Directive 2019/1023, which provides that specific categories of debt may be excluded from the full debt discharge mechanism.

4.        In this Opinion, at the end of my analysis, I propose to reply to the Audiencia Provincial de Alicante (Provincial Court of Alicante, Spain), the referring court, to the effect that Member States may provide for the exclusion of claims governed by public law from the full discharge of debt, provided that that decision is duly justified.

II.    Legal framework

A.      European Union law

5.        Under the heading ‘Derogations’, the fourth paragraph of Article 23 of Directive 2019/1023 provides as follows:

‘Member States may exclude specific categories of debt from discharge of debt, or restrict access to discharge of debt or lay down a longer discharge period where such exclusions, restrictions or longer periods are duly justified, such as in the case of:

(a)      secured debts;

(b)      debts arising from or in connection with criminal penalties;

(c)      debts arising from tortious liability;

(d)      debts regarding maintenance obligations arising from a family relationship, parentage, marriage or affinity;

(e)      debts incurred after the application for or opening of the procedure leading to a discharge of debt; and

(f)      debts arising from the obligation to pay the cost of the procedure leading to a discharge of debt.’

6.        It follows from the wording of Article 34(1) and (2) and Article 35 of the directive that it entered into force on the twentieth day following that of its publication in the Official Journal of the European Union and that the transposition period expired on 17 July 2021, a period which could be extended by one year in the event of particular difficulties. The Kingdom of Spain was granted such an additional period.

B.      Spanish law

7.        The Real Decreto-ley 1/2015 de mecanismo de segunda oportunidad, reducción de carga financiera y otras medidas de orden social (Royal Decree-Law 1/2015 on a second chance mechanism, reduction in financial burdens and other social measures) (3) of 27 February 2015 amended Ley 22/2003 Concursal (Insolvency Law 22/2003) (4) of 9 July 2003 (‘the Insolvency Law’), introducing a new Article 178bis to govern the benefit of discharge of debt. That provision introduced a two-tier system, allowing the debtor to opt either for immediate discharge of debt (Article 178bis(3)(4)) or for discharge of debt over five years subject to a payment plan (Article 178bis(3)(5)). As regards deferred discharge of debt with a payment plan, Article 178bis(5)(1) of the Insolvency Law provided:

‘The benefit of discharge of debt granted to the debtors referred to in paragraph 3(5) shall apply to that part of the following claims that remains unpaid:

1.      Ordinary and subordinated claims outstanding at the date of the termination of the insolvency proceedings, even where they have not been notified, with the exception of claims governed by public law and claims for maintenance payments.’

8.        The Real Decreto Legislativo 1/2020 por el que se aprueba el texto refundido de la Ley Concursal (Royal Legislative Decree 1/2020 approving the consolidated text of the Insolvency Law) (5) of 5 May 2020 (‘the TRLC’) once again amended the Insolvency Law, replacing Article 178bis of the Insolvency Law with a new chapter, and taking advantage of the opportunity to exclude claims governed by public law from the scope of discharge of debt, whether immediate or deferred.

9.        Article 491(1) of the TRLC provided:

‘Provided that claims against the estate and preferential insolvency claims have been paid in full and that, where the debtor satisfies the relevant criteria, he or she has sought to reach a prior extrajudicial payment agreement, the benefit of discharge of debt shall apply to all unpaid claims other than claims governed by public law and claims for maintenance payments.’

10.      Article 497(1)(1) of the TRLC provided:

‘The benefit of discharge of debt granted to debtors who have agreed to be subject to a payment plan shall apply to that part of the following claims which, under the plan, will remain unpaid:

1.      Ordinary and subordinated claims outstanding at the date of the termination of the insolvency proceedings, even where they have not been notified, with the exception of claims governed by public law and claims for maintenance payments.’

11.      The Ley 16/2022 de reforma del texto refundido de la Ley Concursal, aprobado por el Real Decreto Legislativo 1/2020, de 5 de mayo, para la transposición de la [Directiva 2019/1023] (Law 16/2022 amending the consolidated text of the Insolvency Law approved by the [TRLC] for the transposition of [Directive 2019/1023]) (6) of 5 September 2022 (‘Law 16/2022’) amended the TRLC, while confirming the exclusion of claims governed by public law from the scope of discharge of debt, whether immediate or deferred. Article 489(1)(5) of the new text of the TRLC provides:

‘The discharge of debt shall apply to all unpaid claims, with the exception of the following:

…

5.      Debts arising from claims governed by public law. However, debts for which the management of recovery falls within the competence of the [AEAT] may be discharged up to the maximum amount of EUR 10 000 per debtor; for the first EUR 5 000 of debt, a full discharge will be given and, from that amount and above, the discharge shall be 50% of the debt up to the maximum indicated. Similarly, social security debts may be discharged in respect of the same amount and under the same conditions. The amount discharged, up to the abovementioned ceiling, shall be applied in reverse order to the order of priority legally established by that law and, within each class, in accordance with seniority.’

12.      The preamble to Law 16/2022 provides, in Section IV, inter alia:

‘Directive 2019/1023 requires all Member States to introduce a second chance mechanism to prevent debtors from being tempted to relocate to other countries which already provide for such mechanisms, with the cost that that would entail for both the debtor and his creditors. At the same time, standardisation in this area is considered essential for the operation of the single European market.

…

Two methods are being put in place for the discharge of debt: discharge with liquidation of assets and discharge subject to a payment plan ….

…

The discharge of debt shall apply to all claims under insolvency proceedings and claims against assets. Exceptions shall be based, in certain cases, on the particular importance attached to them being paid in a just and cohesive society based on the rule of law (such as maintenance debts, debts arising from claims governed by public law, debts arising from criminal offences or debts arising from tortious liability). Thus, the discharge of debt in respect of claims governed by public law is subject to certain limits and can only take place at the time of the initial discharge of debt, and not at the time of subsequent discharges …’

III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

13.      In the insolvency proceedings concerning them, the Debtors applied on 3 March 2021 for discharge of debt, to which the AEAT objected in respect of its claim for EUR 192 366.21, which it considers to be a preferential claim governed by public law.

14.      On 30 July 2021, the Juzgado de Primera Instancia n^o 1 de Denia (Court of First Instance No 1, Denia, Spain) ordered the termination of the insolvency proceedings with the benefit of discharge of the Debtors’ debts, with the exception of the claims governed by public law and the maintenance claims.

15.      The debtors lodged an appeal against that order with the Audiencia Provincial de Alicante (Provincial Court of Alicante).

16.      In view of the date of the Debtors’ application, that court considers that the version of the Insolvency Law to be taken into account is not that resulting from Law 16/2022, which transposed Directive 2019/1023, but the version amended by Royal Legislative Decree 1/2020, which was published after the entry into force of that directive, during the transposition period. (7) Both those texts provide for the exclusion of claims governed by public law from discharge of debt.

17.      The referring court states that approaches in Spanish case-law differ. Some decisions take the view that claims governed by public debts are eligible for discharge of debt, while others conclude that they are not. All the decisions consulted by the referring court rely on Directive 2019/1023 as a factor in interpretation.

18.      The referring court has doubts concerning the compatibility of the TRLC with the directive, as regards whether or not claims governed by public law are excluded from discharge of debt.

19.      First, it questions whether the exclusion of claims governed by public law from discharge of debt under Spanish law has been duly justified. It explains that Article 23 of Directive 2019/1023 allows for a derogation from the general rule laid down in Article 20(1) of that directive, according to which a full discharge of debt is given. In particular, Article 23(4) of that directive allows Member States to exclude specific categories of debt from discharge of debt, provided that the exclusion is ‘duly justified’. (8)

20.      However, the referring court points out that, unlike Law 16/2022, (9) the TRLC, as amended by Royal Legislative Decree 1/2020, contains no justification for excluding claims governed by public law from discharge of debt.

21.      Second, the referring court wonders whether the list of specific categories of debt that may be excluded from discharge of debt appearing in Article 23(4) of Directive 2019/1023 constitutes an exhaustive list, since, if that were the case, the Insolvency Law, as amended by Royal Legislative Decree 1/2020, would be contrary to that article. However, if the list were merely illustrative, the law in question would comply with the relevant article.

22.      In the referring court’s view, the fact that claims governed by public law are not included in the list in Article 23(4) of Directive 2019/1023, even though they are of considerable importance in insolvency proceedings, could be an indication that that list is exhaustive. Furthermore, the absolute and total freedom of the Member States to exclude claims from discharge of debt and, consequently, the possible diversity of national legal rules on the matter could affect the functioning of the internal market and the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment. (10)

23.      In those circumstances, the Audiencia Provincial de Alicante (Provincial Court of Alicante) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is it possible to apply the principle that national law must be interpreted in conformity with EU law to Article 23(4) of [Directive 2019/1023] where the facts (as in the present case, in view of the date of the application for discharge of debt) occurred during the period between the entry into force of the directive and the deadline for its transposition, and the applicable national legislation ([the TRLC], as amended by Royal Legislative Decree 1/2020) is not the legislation which transposes the directive (Law 16/2022)?

(2)      Is national legislation, such as the Spanish legislation established in the consolidated text of the Insolvency Law (as amended by Royal Legislative Decree 1/2020), which provides no justification for excluding claims governed by public law from discharge of debt, compatible with Article 23(4) of [Directive 2019/1023] and its underlying principles concerning discharge of debt? In so far as that legislation excludes claims governed by public law from discharge of debt and is not duly justified, does it compromise or jeopardise the attainment of the objectives established in the directive?

(3)      Does Article 23(4) of [Directive 2019/1023] contain an exhaustive, closed list of categories of claims which can be excluded from discharge, or is the list instead merely illustrative, with the national legislature enjoying absolute discretion to establish such categories of excludable claims as it sees fit, provided that they are duly justified under national law?’

24.      The referring court requested that the present case be dealt with under the expedited preliminary ruling procedure provided for in Article 105 of the Rules of Procedure of the Court. By decision of 28 December 2022, the President of the Court rejected that request.

25.      The Spanish Government and the European Commission have lodged written observations.

IV.    Analysis

26.      For the sake of clarity in setting out my analysis, I will begin with the first question and then deal with the third question relating to the exhaustiveness of the list provided for in Article 23(4) of Directive 2019/1023 before addressing the second question relating to the national court’s assessment of its rules in the light of a directive which has entered into force, but for which the period for transposition has not expired, where the exclusion is not duly justified.

A.      The effect of directives before the period for their transposition has expired

27.      By its first question for a preliminary ruling, the referring court asks, in essence, whether it is possible to apply the principle of interpreting national law in conformity with EU law where the facts at issue occurred between the date of entry into force of a directive and the date of expiry of the period prescribed for its transposition and where the legislation applicable to those facts is not the legislation transposing that directive but legislation adopted between those two dates. The referring court refers in particular to Article 23(4) of Directive 2019/1023, which lists a number of possible derogations from the principle of full discharge of debt established by that directive.

28.      It should be noted that in the judgment of 4 July 2006, Adeneler and Others, (11) the Court of Justice held that, before the period for transposition of a directive has expired, Member States cannot be reproached for not having yet adopted measures implementing it in national law and that the general obligation owed by national courts to interpret domestic law in conformity with the directive exists only once the period for its transposition has passed. (12) Moreover, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive. (13) As such an obligation to refrain is incumbent on all national authorities, the courts of the Member States must refrain, as far as possible, from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive. (14)

29.      In the light of the above factors, I propose to answer the first question by stating that, between the date of entry into force of Directive 2019/1023 and the date of expiry of the period prescribed for its transposition, the national courts are not required to interpret their domestic law in accordance with Article 23(4) of that directive.

B.      The exhaustive or non-exhaustive nature of the list in Article 23(4) of Directive 2019/1023 and the scope of Member States’ discretion in transposing that provision

30.      By its third question, the referring court asks the Court of Justice to interpret Article 23(4) of Directive 2019/1023. It wonders whether or not the list of exceptions set out in that provision is exhaustive, and what discretion the Member States have in that sphere when transposing that directive. Such an interpretation is necessary to enable the referring court to assess whether Spanish law seriously compromises the objectives established by that directive.

1.      The exhaustive nature of the list in Article 23(4) of Directive 2019/1023

31.      In their observations, both the Commission and the Spanish Government recognise the non-exhaustive nature of the list in Article 23(4) of Directive 2019/1023, since it provides that specific categories of debt may be excluded from discharge of debt with regard, in particular, to six categories of debt listed in the remainder of that paragraph.

32.      Doubt may have been created by the initial wording of that article, in Spanish, which stated that the Member States could ‘exclude specific categories … from discharge of debt …, in the case of’. (15) However, that wording was replaced by ‘such as in the case of’ (16) in a corrigendum to the directive, (17) which brought the wording in Spanish into line with the other language versions.

33.      There is thus no longer any room for doubt: the use of the words ‘Member States may exclude … from discharge of debt’ and the term ‘such as’ means that the list in Article 23(4) of Directive 2019/1023 is indeed a non-exhaustive list of categories of debt that may be excluded from discharge of debt, and that the list may be supplemented by Member States. That analysis is supported by recital 81 of the directive, read in the light of the discussions within the Council of the European Union, (18) concluding that the Member States should be able to exclude other categories of claims in duly justified cases.

2.      Scope of Member States’ discretion when transposing legislation

34.      By its third question, the referring court also wonders about the scope of the discretion available to Member States to exclude certain categories of debt from the benefit of discharge of debt. In order to answer that question, we need to distinguish between the principle of excluding a category of debt and the conditions for that exclusion.

35.      As regards the exclusion of claims governed by public law as a matter of principle, it should be noted that Article 23(4) of Directive 2019/1023 lists six categories of debt that Member States may exclude from discharge of debt, or in respect of which the discharge of debt may be restricted or the discharge period extended. Those categories are: secured debts; debts arising from or in connection with criminal penalties; debts arising from tortious liability; maintenance debts; debts incurred after the application for or opening of the procedure leading to a discharge of debt; and debts relating to the cost of that procedure.

36.      In its observations, the Commission reiterates the referring court’s argument that there is a link between those different categories of debt that provides grounds for not allowing Member States wishing to create exceptions to the principle of full discharge of debt to have absolute discretion, because of the nature of the debt concerned.

37.      Thus, the link, it argues, resides in a concern for substantive justice: in the first place, a debtor should not be able to escape the financial consequences of acts not related to normal business life (family debts and debts relating to criminal or civil liability). In the second place, debts arising in the context of the procedure for discharge of debt or subsequently may not be the subject of a discharge of debt, in order to guarantee the effectiveness of that procedure. In the third place, secured debts may also be excluded, as they were secured specifically to avoid the consequences of insolvency.

38.      However, a number of factors run counter to such an argument.

39.      First, the wording of Article 23 of Directive 2019/1023 itself provides for different types of option regarding possible exceptions to the principle of full discharge of debt. Paragraph 1 states that all Member States must provide for the exclusion of dishonest debtors or debtors acting in bad faith. (19) On the other hand, paragraphs 3 and 5 indicate that Member States may provide for longer discharge periods or a longer period of disqualification, respectively, in certain strictly defined cases. Paragraph 4, the interpretation of which is sought in the present case, provides, as does paragraph 2, that Member States may choose exceptions to the principle of full discharge of debt, if duly justified, illustrating this possibility with a non-exhaustive list of examples. As a result, the procedure for full discharge of debt may operate in very different ways and have significantly different scope depending on the choices made by each Member State. It therefore seems difficult to argue that the objective of harmonising the discharge of debt procedure justifies not authorising, as a matter of principle, the exclusion of certain specific categories of debt from such discharge of debt.

40.      Second, there is nothing in the discussions prior to the adoption of Directive 2019/1023 to suggest that claims governed by public law could not be excluded from discharge of debt. The proposal for a directive clearly stated, with regard to Article 22 (which became Article 23 in the directive as adopted) that the Member States had ‘a large margin of discretion when setting limitations to the provisions on access to discharge and on discharge periods, provided that such limitations are clearly specified and are necessary to protect a general interest’. (20)

41.      That desire to leave Member States sufficient flexibility was confirmed in discussions in the Council. (21) In fact, during the negotiations within that institution, the exclusions from discharge of debt were added without any particular comments (22) and it was specified that Member States could also exclude certain types of claims under their national legislation without specifying the nature of those claims. (23) At the very end of the negotiations in the Council, Portuguese Republic made a statement in which it indicated, in essence, first, that the text was sufficiently flexible to allow Member States to maintain or introduce provisions excluding or restricting access to discharge of tax debts, because such measures had to be considered duly justified, due to the special nature of tax debts, and, second, that it wished to reserve its position regarding the regulation of access to discharge of tax debts when transposing the directive. (24)

42.      The European Parliament’s Committee on Economic and Monetary Affairs, having been asked for an opinion, proposed an amendment to the Committee on Legal Affairs, as the committee responsible, concerning a recital and a paragraph in favour of explicitly setting out the possibility of excluding claims governed by public law, in respect of which Member States would have to take into account the necessary balance between the general public interest and the promotion of entrepreneurship. (25)

43.      Lastly, it is clear that Directive 2019/1023 is a directive seeking a minimum level of harmonisation in relation to the full discharge of debt, the objective of which is to create a procedure of that type in each of the Member States and not to create a harmonised discharge of debt procedure. The negotiations provided an opportunity for Member States to highlight the fact that such a procedure, whether or not it was new, depending on the Member State, had to have the flexibility to be adapted sufficiently so as not to interfere with national systems that worked efficiently, since such a procedure was interconnected with other areas of national law and since different Member States had different economic situations and legal structures. (26)

44.      However, with regard to the conditions for excluding a category of debt, Article 23(4) of Directive 2019/1023 provides that ‘exclusions, restrictions or longer periods [shall be] duly justified’. Consequently, while the scope of Member States’ discretion is not restricted as regards the nature of the specific categories of debt which may be excluded, it is restricted in terms of the justification they must provide in support of such an exclusion.

45.      Moreover, Member States have used that discretion to exclude certain categories of debt other than those listed in Article 23(4) of Directive 2019/1023. In France, debts excluded from discharge of debt include employees’ claims and claims resulting from actions relating to assets acquired under a succession process that began during the procedure. (27) In the Netherlands, debts linked to student loans are excluded. (28) In Spain, claims relating to salaries are also excluded. (29) In Portugal, tax and social security debts are excluded. (30)

46.      In conclusion, it seems to me that Directive 2019/1023 is a directive seeking a minimum level of harmonisation, the objective of which is the introduction in each Member State of a procedure for the discharge of debt, the outlines of which as to the nature of the claims which may be excluded from such discharge are largely left to the discretion of Member States, provided that the exclusions are duly justified.

47.      I therefore propose to answer the third question referred for a preliminary ruling to the effect that Article 23(4) of Directive 2019/1023 must be interpreted as meaning that the list contained therein is not exhaustive and that specific categories of claims other than those included in that list may be the subject of discharge of debt, restricted discharge of debt or a longer discharge period, provided that such a decision is duly justified.

C.      The effects of the failure to justify the exclusion of claims governed by public law from discharge of debt in a regulation adopted during the period for transposing Directive 2019/1023

48.      By its second question for a preliminary ruling, the referring court asks, in essence, whether the TRLC, which it considers to be the law applicable to the dispute and which was amended during the period for transposing Directive 2019/1023 to exclude, without justification, claims governed by public law from discharge of debt, irrespective of whether such discharge is immediate or deferred, had the effect of compromising, within the meaning of the abovementioned case-law, (31) the attainment of the objectives established by that directive.

49.      As stated in point 28 of the present Opinion, during the period for transposing a directive the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive and the national courts must interpret domestic law in a manner which, once the transposition period has ended, does not risk seriously compromising the attainment of the objective established by that directive.

50.      It should also be pointed out that it is for the national court to assess whether the national provisions whose legality is challenged are liable seriously to compromise the result prescribed by a directive, and that that review must necessarily be conducted on the basis of an overall assessment, taking account of all the policies and measures adopted in the national territory concerned. (32)

51.      However, it is for the Court of Justice to interpret the objective pursued by the directive in question. The objective of Directive 2019/1023, as far as the full discharge of debt procedure is concerned, is that at least one such procedure should be introduced in each Member State (33) on the basis of a minimum degree of harmonisation.

52.      In my view, the mere absence of justification for the exclusion of claims governed by public law from discharge of debt cannot, on its own, before the expiry of the period prescribed for transposition, seriously compromise the attainment of the objective established by Directive 2019/1023, since it is possible for Member States to exclude claims governed by public law from discharge of debt, as I have already mentioned.

53.      Therefore, I propose the following answer to the second question: the mere fact that the exclusion of claims governed by public law from the discharge of debt procedure by a national provision adopted between the date of entry into force of Directive 2019/1023 and the date of expiry of the period prescribed for transposition is not duly justified does not, once the transposition period has ended, seriously compromise the attainment of the objective established by that directive.

V.      Conclusion

54.      In the light of all the foregoing considerations, I propose that the Court of Justice should give the following answers to the questions for a preliminary ruling by the Audiencia Provincial de Alicante (Provincial Court, Alicante, Spain):

(1)      Between the date of entry into force of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency), and the date of expiry of the period prescribed for its transposition, national courts are not required to interpret their domestic law in conformity with Article 23(4) of Directive 2019/1023.

(2)      Article 23(4) of Directive 2019/1023

must be interpreted as meaning that the list contained therein is not exhaustive and that specific categories of claim other than those included in that list may be subject to discharge of debt, restricted discharge of debt or a longer discharge period, provided that such a decision is duly justified.

(3)      The mere fact that the exclusion of claims governed by public law from the discharge of debt procedure by a national provision adopted between the date of entry into force of Directive 2019/1023 and the date of expiry of the period prescribed for its transposition is not duly justified does not, once the transposition period has ended, seriously compromise the attainment of the objective established by that directive.

1      Original language: French.

2      OJ 2019 L 172, p. 18.

3      BOE No 51 of 28 February 2015, p. 19058. That royal decree-law was approved without amendment by Ley 25/2015 de mecanismo de segunda oportunidad, reducción de la carga financiera y otras medidas de orden social (Law 25/2015 on a second chance mechanism, reduction in financial burdens and other social measures) of 28 July 2015 (BOE 180 of 29 July 2015, p. 64479).

4      BOE No 164 of 10 July 2003, p. 26905.

5      BOE No 127 of 7 May 2020, p. 31518.

6      BOE No 214 of 6 September 2022, p. 123682.

7      The referring court sets out the case-law of the Court of Justice according to which directives not only have an effect once they have been transposed or the period prescribed for transposition has expired, but also before that point, since, before the expiry of the transposition period, Member States must refrain from taking any measures liable seriously to compromise or jeopardise the attainment of the objectives established by the directive. In that regard, it refers to the judgments of 8 October 1987, Kolpinghuis Nijmegen (80/86, EU:C:1987:431); of 18 December 1997, Inter-Environnement Wallonie (C‑129/96, EU:C:1997:628); and of 22 November 2005, Mangold (C‑144/04, EU:C:2005:709).

8      The referring court also refers to recitals 78 and 81 of Directive 2019/1023.

9      See point 12 of the present Opinion.

10      The referring court is referring to recital 1 of Directive 2019/1023.

11      C‑212/04, EU:C:2006:443.

12      See judgment of 4 July 2006, Adeneler and Others (C‑212/04, EU:C:2006:443, paragraphs 114 and 115).

13      See judgment of 5 May 2022, BPC Lux 2 and Others (C‑83/20, EU:C:2022:346, paragraph 65 and the case-law cited).

14      See judgment of 5 May 2022, BPC Lux 2 and Others (C‑83/20, EU:C:2022:346, paragraph 66 and the case-law cited).

15      ‘en los siguientes casos’.

16      ‘como en los siguientes casos’.

17      OJ 2022 L 43, p. 94.

18      See note of 16 May 2018 from the Presidency to the Permanent Representatives Committee concerning the proposal for a directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge proceedings and amending Directive 2012/30/EU – Partial general approach (document 8830/18 ADD 1), and in particular footnote 14, which states that the recitals will clarify that Article 22(1) and (3) (Article 23(2) and (4) of the directive as adopted) are non-exhaustive.

19      Unlike the English, French, Italian, Polish and Portuguese versions of this provision, the Spanish version provides the possibility for Member States to maintain or adopt a measure excluding dishonest debtors or debtors acting in bad faith. I would recall that, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given preference over other language versions (judgment of 17 January 2023, Spain v Commission, C‑632/20 P, EU:C:2023:28, paragraph 40). Accordingly, that Spanish language version alone is not capable of calling into question my analysis.

20      See Proposal for a Directive of the European Parliament and of the Council on preventive restructuring frameworks, second chances and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU (COM(2016) 723 final), p. 26.

21      See paragraph 5 of the note of 19 May 2017 from the Presidency to Coreper/Council concerning the Proposal for a Directive on preventive restructuring frameworks, second chance and measures to be taken to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU – Policy debate (document 9316/17): ‘The objectives of the proposal received, in principle, broad support from ministers on 27 January 2017 during the informal Justice and Home Affairs meeting. Discussions during this meeting highlighted the importance of striking a fair balance between the interests of debtors and creditors and to allow a degree of flexibility so as not to interfere with national systems that work efficiently. Discussions within the Working Party on Civil Law Matters (Insolvency) have shown a general endorsement of the objectives of the proposal. However, delegations have also stressed the complexity of the proposed Directive due to its interconnection with other areas of national law, and the ensuing need to leave Member States enough flexibility to adapt the [European Union] measures to the local economic situation and legal structures.’

22      See note of 16 March 2018 from the Bulgarian Presidency and the incoming Austrian Presidency to the Working Party on Civil Law Matters (Insolvency) on the proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU – Revised text on Articles 19, 20 and 22 of Title III and related definitions (Document 7150/18), p. 6.

23      See note of 24 May 2018 from the Presidency to the Council concerning the proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU – Partial general approach (Document 9236/18 ADD 1), p. 9.

24      See note of 21 May 2019 from the General Secretariat of the Council to the Permanent Representatives Committee/Council concerning the draft Directive of the European Parliament and of the Council on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (first reading) – Adoption of the legislative act – Statements (Document 9170/2/19 REV 2 ADD 1), pp. 1 and 2.

25      See Opinion of the Committee on Economic and Monetary Affairs of 7 December 2017 for the Committee on Legal Affairs on the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU, Rapporteur: Enrique Calvet Chambon, proposed amendments 22 and 94.

26      See footnote 20 to the present Opinion.

27      See Article L.645-11 of the code de commerce (Commercial Code).

28      See Article 299a of the Faillissementswet (Law on Insolvency).

29      See Article 489(1)(4) of the Insolvency Law.

30      See Article 245 of the Código da Insolvência e da Recuperação de Empresas (Insolvency and Business Recovery Code).

31      See point 28 of the present Opinion.

32      See judgment of 5 May 2022, BPC Lux 2 and Others (C‑83/20, EU:C:2022:346, paragraph 68 and the case-law cited).

33      See Article 20(1) of Directive 2019/1023.