REPORT     ***I
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21 August 2018
PE 610.684v03-00 A8-0269/2018

on the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU

(COM(2016)0723 – C8-0475/2016 – 2016/0359(COD))

Committee on Legal Affairs

Rapporteur: Angelika Niebler

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 OPINION of the Committee on Economic and Monetary Affairs
 OPINION of the Committee on Employment and Social Affairs
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU

(COM(2016)0723 – C8-0475/2016 – 2016/0359(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0723),

–  having regard to Article 294(2) and Articles 53 and 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0475/2016),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Economic and Monetary Affairs and the Committee on Employment and Social Affairs (A8-0269/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1)  The objective of this Directive is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

(1)  The objective of this Directive is to contribute to the proper functioning of the internal market and remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. Without affecting workers’ fundamental rights and freedoms, this Directive aims at removing such obstacles by ensuring that viable enterprises and entrepreneurs in financial difficulties, including individual entrepreneurs who are economically viable, have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after they have been the subject of an insolvency proceeding; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

Amendment    2

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

(2)  Restructuring and the result of appropriate and viable expert reports should enable enterprises and personally liable entrepreneurs in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business or the business itself. Preventive restructuring frameworks should above all enable the enterprises to restructure rapidly at an early stage and to avoid their insolvency and the liquidation of viable companies. Those rapid preventive frameworks should prevent job losses and the loss of knowledge and skills, and maximise the total value to creditors in comparison to what they would have received in the event of the liquidation of the company assets, and to owners and the economy as a whole. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected, including those of workers. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible. The availability of preventive rapid restructuring procedures would ensure that action is taken before companies default on their loans, thereby helping to reduce the risk of loans becoming non-performing in cyclical downturns and cushioning the adverse impact on the financial sector. A significant percentage of businesses and jobs could be saved if preventive procedures existed in all Member States where businesses’ places of establishment, assets or creditors are situated.

Amendment    3

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  There are differences between the Member States as regards the range of the procedures available to debtors in financial difficulties in order to restructure their business. Some Member States have a limited range of procedures meaning that businesses are only able to restructure at a relatively late stage, in the context of insolvency procedures. In other Member States, restructuring is possible at an earlier stage but the procedures available are not as effective as they could be or are very formal, in particular limiting the use of out-of-court processes. Similarly, national rules giving entrepreneurs a second chance, in particular by granting them discharge from the debts they have incurred in the course of their business, vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge.

(3)  There are differences between the Member States as regards the range of the procedures available to debtors in financial difficulties in order to restructure their business. Some Member States have a limited range of procedures meaning that businesses are only able to restructure at a relatively late stage, in the context of insolvency procedures. In other Member States, restructuring is possible at an earlier stage but the procedures available are not as effective as they could be or are very formal, in particular limiting the use of out-of-court processes. Preventive solutions are a growing trend in modern insolvency law. The trend goes towards favouring approaches that, unlike the traditional approach of liquidating a business in crisis, have the aim of restoring it to health or, at least, saving those of its units which are still economically viable. That practice often helps to maintain jobs or reduce avoidable job losses. Similarly, national rules giving entrepreneurs a second chance, in particular by granting them discharge from the debts they have incurred in the course of their business, vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge. Also, the degree of involvement of judicial or administrative authorities or their appointees varies from minimal involvement in some Member States to full participation in others.

Amendment    4

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long.

(5)  Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long and being unduly costly.

Amendment    5

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country.

(6)  All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. That uncertainty therefore acts as a disincentive which obstructs the freedom of establishment of undertakings and the promotion of entrepreneurship and harms the proper functioning of the internal market. Small and medium-sized enterprises in particular do not, for the most part, have the resources needed to assess risks related to cross-border activities.

Amendment    6

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

7.  Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.

7.  Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic activity, and therefore for the preservation and creation of jobs. At the same time, a greater level of harmonisation would contribute even more towards achieving a common Union commercial law.

Amendment    7

Proposal for a directive

Recital 8 a (new)

Text proposed by the Commission

Amendment

 

(8a)  It is widely recognised that any restructuring operation, in particular one of major size and which generates a significant impact, should be accompanied by an explanation and justification to the stakeholders, covering the choice of the measures envisaged in relation to the objectives as well as alternative options and should ensure there is full and appropriate involvement of workers' representatives at all levels. The explanation and justification should be prepared in good time to enable stakeholders to prepare for consultations, before the company takes a decision1a.

 

_________________

 

1a Text adopted P7_TA(2013)0005. Information and consultation of workers, anticipation and management of restructuring

Amendment    8

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

13.  In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

13.  Enterprises, and in particular small and medium sized enterprises, which represent 99% of all businesses in the Union, should benefit from a more coherent approach at Union level, since they are disproportionately more likely to be taken into liquidation rather than be subject to restructuring and they have to bear costs that are twice as high as those faced by larger companies for cross-border procedures, compared with domestic procedures. Small and medium enterprises, especially when facing financial difficulties, as well as workers representatives, often do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. In order to help such enterprises restructure at low cost, check lists for restructuring plans should also be developed nationally and made available electronically. Members States should consider, in particular, the needs and specificities of small-and medium-sized enterprises when establishing such checklists. Taking into account the limited resources of small-and medium-sized enterprises for hiring professional experts, early warning tools should be put in place to warn debtors of the urgent need to act quickly.

Amendment    9

Proposal for a directive

Recital 13 a (new)

Text proposed by the Commission

Amendment

 

(13a)  Creditors and workers should be allowed to propose an alternative restructuring plan. Member States should define the conditions under which they are able to propose such a plan.

Amendment    10

Proposal for a directive

Recital 13 b (new)

Text proposed by the Commission

Amendment

 

(13b)  In order to secure a more coherent approach, the Commission should consider setting up a registry of insolvencies in the Union, which would provide greater transparency for creditors and simplify access to information, in particular for small and medium-sized enterprises and for employees.

Amendment    11

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15)  Consumer over-indebtedness is a matter of great economic and social concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply the discharge provisions to consumers.

(15)  Consumer over-indebtedness is a matter of great economic and social concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States are advised to begin at the earliest opportunity also to apply the discharge provisions to consumers.

Amendment    12

Proposal for a directive

Recital 15 a (new)

Text proposed by the Commission

Amendment

 

(15a)  In order to achieve greater clarity, the Member States and the Commission should conduct a study in order to identify the key indicators of personal over-indebtedness. In light of the results of that study, the Member States and the Commission should adopt measures establishing a system of early warning tools for the over-indebtedness of consumers.

Amendment    13

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.

(16)  The earlier the debtor, the entrepreneur or the workers’ representative can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development. Workers’ representatives should have access to relevant information and be given the right to communicate concerns to other actors involved. Member States should provide the opportunity to use new IT technologies for notifications and online communication and they should make information about the early warning system available on a dedicated website.

Amendment    14

Proposal for a directive

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a)  The early warning phase, designed to anticipate the emergence of a crisis, is intended to assist by flagging difficulties arising for debtors and offering them the possibility of a rapid analysis of, and solution to, the economic and financial problems facing the company, making available - on a voluntary basis - various resources for that purpose, without dictating given lines of conduct or necessarily revealing the existence of a crisis to third parties. It is therefore important to leave it to the Member States to decide whether to restrict mandatory monitoring provisions to small and medium-sized enterprises, bearing in mind that small and medium-sized enterprises themselves are frequently unable to initiate restructuring processes independently because of a number of factors undermining their competitiveness, such as being undersized, a lack of strong corporate governance, effective operational procedures and monitoring and planning resources, and their lesser ability to afford to do so.

Amendment    15

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17)  A restructuring framework should be available to debtors to enable them to address their financial difficulties at an early stage, when it appears likely that their insolvency may be prevented and the continuation of their business assured. A restructuring framework should be available before a debtor becomes insolvent according to national law, i.e. before the debtor fulfils the conditions for entering collective insolvency procedure which entail normally a total divestment of the debtor and the appointment of a liquidator. A test of viability should not therefore be made a pre-condition for entering negotiations and for granting a stay of enforcement actions. Rather, the viability of an enterprise should most often be an assessment to be made by affected creditors who in their majority agree to some adjustments of their claims. However, in order to avoid the procedures being misused, the financial difficulties of the debtor should reflect a likelihood of insolvency and the restructuring plan should be capable of preventing the insolvency of the debtor and ensuring the viability of the business.

(17)  A restructuring framework should be available to debtors to enable them to address their financial difficulties at an early stage, when it appears likely that their insolvency may be prevented and the continuation of their business assured. A restructuring framework should be available before a debtor becomes insolvent according to national law, i.e. before the debtor fulfils the conditions for entering collective insolvency procedure which entail normally a total divestment of the debtor and the appointment of a liquidator. Member States should be able to limit access to the restructuring network with regard to enterprises that have been found by a court of a Member State to have infringed accounting or book-keeping obligations. Member States should also be able to grant access to the restructuring frameworks at the request of creditors and workers’ representatives. A test of viability should not therefore be made a pre-condition for entering negotiations and for granting a stay of enforcement actions. Rather, the viability of an enterprise should most often be an assessment to be made by affected creditors who in their majority agree to some adjustments of their claims. However, in order to avoid the procedures being misused, the financial difficulties of the debtor should reflect a likelihood of insolvency and the restructuring plan should be capable of preventing the insolvency of the debtor and ensuring the viability of the business.

Amendment    16

Proposal for a directive

Recital 17 a (new)

Text proposed by the Commission

Amendment

 

(17a)  The observation of accounting and book-keeping obligations is considered to be an effective instrument for making enterprises and entrepreneurs aware that they are at risk of being unable to pay their debts at maturity. It is appropriate to provide that Member States are allowed to limit access to restructuring proceedings to those enterprises and entrepreneurs who observe such accounting and book-keeping obligations.

Amendment    17

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18)  To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors.

(18)  To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. The conditions for such appointments should be left to the Member States to define. However, a practitioner should be appointed when a stay is granted, when the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram-down, or if requested by the debtor or a majority of the creditors. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors. Member States should further ensure that clear and transparent information is provided to the workers’ representatives.

Amendment    18

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.

(19)  A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. Such a request should only be possible if an obligation to file for insolvency has not yet arisen. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors, but only those creditors involved in the negotiations. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. Member States should set the further conditions for extension of the stay. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to ten months. However, where a company has transferred its registered office to another Member State within the three months prior to making its application for a stay, the total period of the stay should be limited to two months.

Amendment    19

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20)  To ensure that the creditors do not suffer detriment, the stay should not be granted or, if granted, should not be prolonged or should be lifted when creditors are unfairly prejudiced by the stay of enforcement. In establishing whether there is unfair prejudice to creditors, judicial or administrative authorities may take into account whether the stay would preserve the overall value of the estate, whether the debtor acts in bad faith or with the intention of causing prejudice or generally acts against the legitimate expectations of the general body of creditors. A single creditor or a class of creditors would be unfairly prejudiced by the stay if for example their claims would be made substantially worse-off as a result of the stay than if the stay was not granted, or if the creditor is put more at a disadvantage than other creditors in a similar position.

(20)  To ensure that the creditors do not suffer detriment, the stay should not be granted or, if granted, should not be prolonged or should be lifted when creditors are unfairly prejudiced by the stay of enforcement or when the legal obligation to file for insolvency has already arisen. In establishing whether there is unfair prejudice to creditors, judicial or administrative authorities may take into account whether the stay would preserve the overall value of the estate, whether the debtor acts in bad faith or with the intention of causing prejudice or generally acts against the legitimate expectations of the general body of creditors. A single creditor or a class of creditors would be unfairly prejudiced by the stay if for example their claims would be made substantially worse-off as a result of the stay than if the stay was not granted, or if the creditor is put more at a disadvantage than other creditors in a similar position.

Amendment    20

Proposal for a directive

Recital 23

Text proposed by the Commission

Amendment

(23)  Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority. When the stay is no longer necessary with a view to facilitating the adoption of a restructuring plan, for example because it is clear that there is a lack of support for the restructuring from a majority of creditors as required by national law, creditors should also be able to ask that stay be lifted.

(23)  Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority. When the stay is no longer necessary with a view to facilitating the adoption of a restructuring plan, for example because it is clear that there is a lack of support for the restructuring from a majority of creditors as required by national law, creditors should also be able to ask that stay be lifted. Also, individual creditors, or a class of creditors, should have the same right to challenge the stay if they are unfairly prejudiced by the plan, or are vulnerable creditors that encounter considerable economic difficulties.

Amendment    21

Proposal for a directive

Recital 24

Text proposed by the Commission

Amendment

(24)  Any creditors affected by the restructuring plan and, where allowed under national law, equity-holders should have a right to vote on the adoption of a restructuring plan. Parties unaffected by the restructuring plan should have no voting rights in relation to the plan, nor should their support be required for the approval of any plan. The vote can take the form of a formal voting process or of a consultation and agreement with the required majority of affected parties. However, where the vote takes the form of a consultation and agreement, affected parties whose agreement was not necessary should nevertheless be offered the possibility to join the restructuring plan.

(24)  Any creditors affected by the restructuring plan, including workers, and, where allowed under national law, equity-holders should have a right to vote on the adoption of a restructuring plan. Parties unaffected by the restructuring plan should have no voting rights in relation to the plan, nor should their support be required for the approval of any plan. The vote can take the form of a formal voting process or of a consultation and agreement with the required majority of affected parties. However, where the vote takes the form of a consultation and agreement, affected parties whose agreement was not necessary should nevertheless be offered the possibility to join the restructuring plan. Member States should also ensure, to the extent national law and practices allow, that the plan is confirmed by the workers if it leads to a change in work organisation or contractual arrangements.

Amendment    22

Proposal for a directive

Recital 25

Text proposed by the Commission

Amendment

(25)  To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

(25)  To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. Workers should be considered to be a separate class if they are affected by the plan.As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

Amendment    23

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26)  Requisite majorities should be established by national law to ensure that a minority of affected parties in each class cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that parties have a say on the adoption of restructuring plans proportionate to the stakes they have in the business, the required majority should be based on the amount of the creditors' claims or equity holders' interests in any given class.

(26)  Requisite majorities should be established by national law to ensure that a minority of affected parties in each class cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that all parties are fairly treated in the adoption of restructuring plans, the required majority should represent both a majority as regards the amount of the creditors' claims or equity holders' interests in any given class and a majority of creditors in that class.

Amendment    24

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.

(28)  While a restructuring plan should always be deemed adopted if the required majority in each affected class as well as the majority of creditors supports the plan, a restructuring plan which is not supported by the required majority may still be confirmed by a judicial or administrative authority provided that it is supported by the majority of affected creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). Such confirmation should also be required if the plan involves a loss of more than 25 % of the work force. In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern. In addition, proper information to workers’ representatives should be a condition for confirmation.

Amendment    25

Proposal for a directive

Recital 29

Text proposed by the Commission

Amendment

(29)  While shareholders' or other equity holders' legitimate interests should be protected, Member States should ensure that shareholders cannot unreasonably block the adoption of restructuring plans which would bring the debtor back to viability. For example, the adoption of a restructuring plan should not be conditional on the agreement of the out-of-the-money equity holders, namely equity holders who, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied. Member States can deploy different means to achieve this goal, for example by not giving equity holders the right to vote on a restructuring plan. However, where equity holders have the right to vote on a restructuring plan, a judicial or administrative authority should be able to confirm the plan notwithstanding the dissent of one or more classes of equity holders, through a cross-class cram down mechanism. More classes of equity holders may be needed where different classes of shareholdings with different rights exist. Equity holders of small and medium enterprises who are not mere investors but are the owners of the firm and contribute to the firm in other ways such as managerial expertise may not have an incentive to restructure under such conditions. For this reason, the cross-class cram-down mechanism should remain optional for the plan proposer.

(29)  While shareholders' or other equity holders' legitimate interests should be protected, Member States should ensure that shareholders cannot unreasonably block the adoption of restructuring plans which would bring the debtor back to viability and which is supported by a majority of the classes. For example, the adoption of a restructuring plan should not be conditional on the agreement of the out-of-the-money equity holders, namely equity holders who, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied. Member States can deploy different means to achieve this goal, for example by not giving equity holders the right to vote on a restructuring plan. However, where equity holders have the right to vote on a restructuring plan, a judicial or administrative authority should be able to confirm the plan notwithstanding the dissent of one or more classes of equity holders, through a cross-class cram down mechanism. More classes of equity holders may be needed where different classes of shareholdings with different rights exist. Equity holders of small and medium enterprises who are not mere investors but are the owners of the firm and contribute to the firm in other ways such as managerial expertise may not have an incentive to restructure under such conditions. For this reason, the cross-class cram-down mechanism should remain optional for the plan proposer.

Amendment    26

Proposal for a directive

Recital 29 a (new)

Text proposed by the Commission

Amendment

 

(29a)  For the purposes of its implementation, the restructuring plan should make it possible for holders of equity in small and medium-sized enterprises to provide non-monetary restructuring assistance by drawing on, for example, their experience, reputation or business contacts.

Amendment    27

Proposal for a directive

Recital 31

Text proposed by the Commission

Amendment

(31)  The success of a restructuring plan may often depend on whether there are financial resources in place to support first the operation of the business during restructuring negotiations and second the implementation of the restructuring plan after its confirmation. New financing or interim financing should therefore be exempt from avoidance actions which seek to declare such financing void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. National insolvency laws providing for avoidance actions if and when the debtor becomes eventually insolvent or stipulating that new lenders may incur civil, administrative or criminal sanctions for extending credit to debtors in financial difficulties are jeopardising the availability of financing necessary for the successful negotiation and implementation of a restructuring plan. As opposed to new financing which should be confirmed by a judicial or administrative authority as part of a restructuring plan, when interim financing is extended the parties do not know whether the plan will be eventually confirmed or not. Limiting the protection of interim finance to cases where the plan is adopted by creditors or confirmed by a judicial or administrative authority would discourage the provision of interim finance. To avoid potential abuses, only financing that is reasonably and immediately necessary for the continued operation or survival of the debtor's business or the preservation or enhancement of the value of that business pending the confirmation of that plan should be protected. Protection from avoidance actions and protection from personal liability are minimum guarantees granted to interim financing and new financing. However, encouraging new lenders to take the enhanced risk of investing in a viable debtor in financial difficulties may require further incentives such as for example giving such financing priority at least over unsecured claims in subsequent insolvency procedures.

(31)  The success of a restructuring plan may often depend on whether there are financial resources in place to support first the operation of the business during restructuring negotiations and second the implementation of the restructuring plan after its confirmation. New financing or interim financing should therefore be exempt from avoidance actions which seek to declare such financing void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. National insolvency laws providing for avoidance actions if and when the debtor becomes eventually insolvent or stipulating that new lenders may incur civil, administrative or criminal sanctions for extending credit to debtors in financial difficulties are jeopardising the availability of financing necessary for the successful negotiation and implementation of a restructuring plan. As opposed to new financing which should be confirmed by a judicial or administrative authority as part of a restructuring plan, when interim financing is extended the parties do not know whether the plan will be eventually confirmed or not. Limiting the protection of interim finance to cases where the plan is adopted by creditors or confirmed by a judicial or administrative authority would discourage the provision of interim finance. To avoid potential abuses, only financing that is reasonably and immediately necessary for the continued operation or survival of the debtor's business or the preservation or enhancement of the value of that business pending the confirmation of that plan should be protected. Protection from avoidance actions and protection from personal liability are minimum guarantees granted to interim financing and new financing.

Amendment    28

Proposal for a directive

Recital 32

Text proposed by the Commission

Amendment

(32)  Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

(32)  Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the restructuring plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the restructuring plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan, with the exception of the workers' class.

Amendment    29

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34)  Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

(34)  Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72 . The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should be required to exempt workers' outstanding claims, , from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed at a similar level by other means under national law. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

__________________

__________________

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.

70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.

70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.

71 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.

71 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.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

Amendment    30

Proposal for a directive

Recital 34 a (new)

Text proposed by the Commission

Amendment

 

(34a)  Workers and their representatives should be provided with all documents and information regarding the proposed restructuring plan in order to allow them to undertake an in-depth assessment of the various scenarios. Furthermore, workers and their representatives should be allowed active involvement in all the consultation and approval phases for the drawing up of the plan and should be guaranteed access to expert advice in connection with the restructuring.

Amendment    31

Proposal for a directive

Recital 35

Text proposed by the Commission

Amendment

(35)  Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors.

(35)  Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, while it should only be possible to apply Article 5 of that Directive in the event of insolvency but not in the event of a restructuring plan. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on it and their approval should be binding for the confirmation of the plan. For the purposes of voting on the restructuring plan, Member States should place workers in a class separate from other classes of creditors and should ensure that that class is given a preferential right.

Justification

Art.5 of Directive 2001/23/EC is applied “where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets” and it cannot be applied in case of a restructuring plan.

Amendment    32

Proposal for a directive

Recital 35 a (new)

Text proposed by the Commission

Amendment

 

(35a)  Any proposed restructuring operation should be fully explained to workers' representatives who should be given such information about the proposed restructuring to enable them to undertake an in-depth assessment and to prepare for consultations, where appropriate.1a

 

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1a Text adopted P7_TA(2013)0005 Information and consultation of workers, anticipation and management of restructuring

Amendment    33

Proposal for a directive

Recital 36

Text proposed by the Commission

Amendment

(36)  To further promote preventive restructurings, it is important to ensure that directors are not dissuaded from exercising reasonable business judgment or taking reasonable commercial risks, particularly where to do so would improve the chances for the restructuring of potentially viable businesses. Where the enterprise experiences financial difficulties, directors should take such steps as seeking professional advice, including on restructuring and insolvency, for instance by making use of early warning tools where applicable; protecting the assets of the company so as to maximize value and avoid loss of key assets; considering the structure and functions of the business to examine viability and reduce expenditure; not committing the company to the types of transaction that might be subject to avoidance unless there is an appropriate business justification; continuing to trade in circumstances where it is appropriate to do so to maximize going concern value; holding negotiations with creditors and entering preventive restructuring procedures. Where the debtor is in the vicinity of insolvency, it is also important to protect the legitimate interests of creditors from management decisions that may have an impact on the constitution of the debtor’s estate, in particular where those decisions may have the effect of further diminishing the value of the estate available for restructuring efforts or for distribution to creditors. It is therefore necessary that in such circumstances directors avoid any deliberate or grossly negligent actions that result in personal gain at the expense of stakeholders, agreeing to transactions at under value, or taking actions leading to unfair preference of one or more stakeholders over others. Directors for the purposes of this Directive should be persons responsible for taking decisions concerning the management of the company.

(36)  To further promote preventive restructurings, it is important to ensure that directors and entrepreneurs are not dissuaded from exercising reasonable business judgment or taking reasonable commercial risks, particularly where to do so would improve the chances for the restructuring of potentially viable businesses. Where the enterprise experiences financial difficulties, directors should take such steps as seeking professional advice, including on restructuring and insolvency, for instance by making use of early warning tools where applicable; protecting the assets of the company so as to maximize value and avoid loss of key assets; considering the structure and functions of the business to examine viability and reduce expenditure; not committing the company to the types of transaction that might be subject to avoidance unless there is an appropriate business justification; continuing to trade in circumstances where it is appropriate to do so to maximize going concern value; holding negotiations with creditors and entering preventive restructuring procedures. Directors should also comply with all of their obligations with regard to creditors, workers’ representatives and other stakeholders. Where the debtor is in the vicinity of insolvency, it is also important to protect the legitimate interests of creditors from management decisions that may have an impact on the constitution of the debtor’s estate, in particular where those decisions may have the effect of further diminishing the value of the estate available for restructuring efforts or for distribution to creditors. It is therefore necessary that in such circumstances directors avoid any deliberate or grossly negligent actions that result in personal gain at the expense of stakeholders, agreeing to transactions at under value or otherwise intentionally reducing the value of the company, or taking actions leading to unfair preference of one or more stakeholders over others. Directors for the purposes of this Directive should be persons responsible for taking decisions concerning the management of the company. Failure to comply with this should potentially lead to a longer discharge period or stricter conditions for discharge.

Amendment    34

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37)  The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness.

(37)  The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness. The period of time for discharge should be five years from the date when a debtor first applies and it should be possible for Member States to set a longer period in the case of a second or subsequent discharge period.

Amendment    35

Proposal for a directive

Recital 38

Text proposed by the Commission

Amendment

(38)  A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

(38)  A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, even after carrying out an insolvency procedure, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance and criteria to judicial or administrative authorities on the method for assessing the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

Amendment    36

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39)  It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

(39)  Specialised insolvency practitioners and judges and the availability of digital tools can greatly help reduce the length of proceedings, lower costs and improve the quality of assistance or supervision. It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving honest entrepreneurs a second chance or that permit the prompt and efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. It is also necessary to integrate digital communication tools into insolvency procedures to reduce the excessive duration thereof. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism and specialisation of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

Amendment    37

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

40.  Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

40.  Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity, with a view to achieving the main objective of restoring the viability of the business. Practitioners should be rescuers not liquidators and they should also adhere to a code of professional conduct with the aim of guaranteeing an appropriate level of qualification and training, and ensuring the transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications. Member States should ensure that information about the administrative authorities exercising supervision or control over practitioners in the field of restructuring, insolvency and second chance is publicly available.

Amendment    38

Proposal for a directive

Recital 42

Text proposed by the Commission

Amendment

42.  It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice.

42.  It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should intensify their efforts to collect, aggregate and supply that data to the Commission. Such data should be sufficiently granular to enable an accurate assessment of how the Directive works in practice.

Amendment    39

Proposal for a directive

Recital 46 a (new)

Text proposed by the Commission

Amendment

 

(46a)  Workers should not bear the burden of restructuring, insolvency and discharge procedures, and the debts due to them, such as unpaid wages, should always be satisfied first. In order to guarantee the continuity of production and employment and to better fight tactical or fraudulent practices by the management, workers should also be informed and consulted at the initial stage of restructuring, insolvency and discharge procedures.

Amendment    40

Proposal for a directive

Recital 47 a (new)

Text proposed by the Commission

Amendment

 

(47a)  Further assessment should be carried out in order to evaluate the necessity of submitting legislative proposals to deal with insolvency affecting persons not exercising a trade, business, craft or profession comparable to the activities of an employer, who, as consumers or users of goods or of public or private services, are, in good faith, temporarily or permanently, unable to pay debts as they fall due. Such legislative proposals should provide that access to basic goods and services is safeguarded for those persons to ensure that they benefit from decent living conditions.

Amendment    41

Proposal for a directive

Article 1 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency;

(a)  rapid preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency and a genuine possibility of preventing the company from undergoing insolvency proceedings;

Amendment    42

Proposal for a directive

Article 1 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  procedures leading to a discharge of debts incurred by over-indebted entrepreneurs and allowing them to take up a new activity;

(b)  procedures leading to a discharge of debts incurred by over-indebted entrepreneurs after they have undergone insolvency proceedings, allowing them to take up a new activity;

Amendment    43

Proposal for a directive

Article 2 – paragraph 1 – point 1

Text proposed by the Commission

Amendment

(1)  'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of a liquidator;

(1)  'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of an insolvency practitioner;

Amendment    44

Proposal for a directive

Article 2 – paragraph 1 – point 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  'likelihood of insolvency' means a situation in which the debtor is not insolvent under national law but in which there is a real and serious threat to the debtor’s future ability to pay its debts as they fall due;

Amendment    45

Proposal for a directive

Article 2 – paragraph 1 – point 5

Text proposed by the Commission

Amendment

(5)  'executory contracts' means contracts between the debtor and one or more creditors under which both sides still have obligations to perform at the moment the stay of individual enforcement actions is ordered;

(5)  'essential executory contracts' means contracts between the debtor and one or more creditors under which both sides still have obligations to perform at the moment the stay of individual enforcement actions is ordered and are necessary for the continuation of the day-to-day operation of the business, including any supplies where a suspension of deliveries would lead to the company coming to a standstill;

Amendment    46

Proposal for a directive

Article 2 – paragraph 1 – point 6

Text proposed by the Commission

Amendment

(6)  'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan;

(6)  'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan; for the purposes of adopting a restructuring plan, creditors are divided into different classes of creditors as regulated by Member States, where as a minimum, secured and unsecured claims are treated in separate classes;

Amendment    47

Proposal for a directive

Article 2 – paragraph 1 – point 8

Text proposed by the Commission

Amendment

(8)  'a cross-class cram-down' means the confirmation by a judicial or administrative authority of a restructuring plan over the dissent of one or several affected classes of creditors;

(8)  'a cross-class cram-down' means the confirmation by a judicial or administrative authority of a restructuring plan over the dissent of several affected classes of creditors;

Amendment    48

Proposal for a directive

Article 2 – paragraph 1 – point 11

Text proposed by the Commission

Amendment

(11)  'new financing' means any new funds, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

(11)  'new financing' means any new funds, including the provision of credit, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

Amendment    49

Proposal for a directive

Article 2 – paragraph 1 – point 12

Text proposed by the Commission

Amendment

(12)  'interim financing' means any funds, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;

(12)  'interim financing' means any funds, including the provision of credit, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;

Amendment    50

Proposal for a directive

Article 2 – paragraph 1 – point 13

Text proposed by the Commission

Amendment

(13)  'over-indebted entrepreneur' means a natural person exercising a trade, business, craft or profession, who is otherwise than temporarily unable to pay debts as they fall due;

(13)  'over-indebted entrepreneur' means a natural person exercising a trade, business, craft or profession, who is otherwise than temporarily unable to pay debts as they fall due, and also means an entrepreneur who is unable to pay debts incurred as a natural person but that are linked to the financing of the start of the entrepreneur’s business activity, as well as a person whose business activity is exclusively a side activity and whose professional debts and personal debts cannot be reasonably separated.

Amendment    51

Proposal for a directive

Article 2 – paragraph 1 – point 14

Text proposed by the Commission

Amendment

(14)  'full discharge of debt' means cancellation of outstanding debt subsequent to a procedure comprising a realisation of assets and/or a repayment/settlement plan;

(14)  'full discharge of debt' means cancellation of outstanding debt subsequent to an insolvency procedure;

Amendment    52

Proposal for a directive

Article 2 – paragraph 1 – point 15 – introductory part

Text proposed by the Commission

Amendment

(15)  'practitioner in the field of restructuring' means any person or body appointed by a judicial or administrative authority to carry out one or more of the following tasks:

(15)  'practitioner in the field of restructuring' means any person or body qualified under national law to carry out one or more of the following tasks:

Amendment    53

Proposal for a directive

Article 2 – paragraph 1 – point 15 – point a

Text proposed by the Commission

Amendment

(a)  to assist the debtor or the creditors in drafting or negotiating a restructuring plan;

(a)  to assist the debtor or the creditors in drafting or negotiating a restructuring plan or a plan to transfer viable parts of the business;

Amendment    54

Proposal for a directive

Article 2 – paragraph 1 – point 15 a (new)

Text proposed by the Commission

Amendment

 

(15a)  ‘repayment plan’ means a programme of payments of specified amounts on specified dates by a debtor to creditors made as part of a restructuring plan;

Amendment    55

Proposal for a directive

Article 2 – paragraph 1 – point 15 b (new)

Text proposed by the Commission

Amendment

 

(15b)  'viable' means the ability to provide an appropriate projected return on capital after having covered all costs, including depreciation and financial charges.

Amendment    56

Proposal for a directive

Article 3

Text proposed by the Commission

Amendment

Article 3

Article 3

Early warning

Early warning and access to information

1.  Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

1.  Member States shall develop and ensure access to clear and transparent early warning tools which can detect a deteriorating business development and signal to the debtor, the entrepreneur or the workers’ representative the need to act as a matter of urgency. In that regard, Member States may make use of new IT technologies for notifications and online communication.

 

1a. Early warning tools may include the following:

 

(a) accounting and monitoring duties for the debtor or the debtor’s management;

 

(b) reporting duties under loan agreements; and

 

(c) regular reporting or information obligations for third parties, such as accountants, tax and social security authorities or certain types of creditors such as banks.

2.  Member States shall ensure that debtors and entrepreneurs have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

2.  Member States shall ensure that debtors, entrepreneurs and workers’ representatives have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

 

2a. Member States shall make publicly available on a dedicated website and in a user-friendly manner the way in which debtors and entrepreneurs can access early warning tools in their Member State. Member States shall ensure that small and medium sized enterprises especially have access to that information.

 

2b. Member States shall ensure that workers’ representatives are given access to relevant and up-to-date information regarding the situation of the business and that they can communicate concerns to debtors and entrepreneurs about the situation of the business and about the need to consider making use of restructuring mechanisms.

3.  Member States may limit the access provided for in paragraphs 1 and 2 to small and medium sized enterprises or to entrepreneurs

 

Amendment    57

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

Article 4

Article 4

Availability of preventive restructuring frameworks

Availability of preventive restructuring frameworks

1.  Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency.

1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency or find other solutions to avoid insolvency, thereby protecting jobs and maintaining business activity.

 

1a. Member States may provide that access to restructuring proceedings is limited to enterprises that have not been finally sentenced for serious breaches of accounting and bookkeeping obligations under national law.

2.  Preventive restructuring frameworks may consist of one or more procedures or measures.

2.  Preventive restructuring frameworks may consist of one or more procedures or measures, either out-of-court or ordered by an administrative or judicial authority.

3.  Member States shall put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate so that rights of any affected parties are safeguarded.

3. Member States may put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate while ensuring that rights of any affected parties are safeguarded.

4.  Preventive restructuring frameworks shall be available on the application by debtors, or by creditors with the agreement of debtors.

4. Preventive restructuring frameworks shall be available on the application by debtors.

 

4a. Member States may also provide for restructuring frameworks to be available at the request of creditors and workers’ representatives, with the agreement of the debtor.

Amendment    58

Proposal for a directive

Article 5

Text proposed by the Commission

Amendment

Article 5

Article 5

Debtor in possession

Debtor in possession

1.   Member States shall ensure that debtors accessing preventive restructuring procedures remain totally or at least partially in control of their assets and the day-to-day operation of the business.

1  Member States shall ensure that debtors accessing preventive restructuring procedures remain totally or at least partially in control of their assets and the day-to-day operation of the business.

2.  The appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case.

2.  Whether or not the supervision of a restructuring procedure by a practitioner in the field of restructuring is mandatory, it shall in all cases be subject to national law in order to safeguard the rights of affected parties.

3.  Member States may require the appointment of a practitioner in the field of restructuring in the following cases:

3.  Member States shall require the appointment of a practitioner in the field of restructuring at least in the following cases:

(a)  where the debtor is granted a general stay of individual enforcement actions in accordance with Article 6;

(a)  where the debtor is granted a stay of enforcement actions in accordance with Article 6;

(b)  where the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram-down, in accordance with Article 11

(b)  where the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram-down, in accordance with Article 11

 

(ba)  where it is requested by the debtor or by a majority of creditors.

 

3a.  Member States shall ensure that representatives of the debtor’s workers receive clear and transparent information on the restructuring procedure and are regularly informed of any developments thereto.

Amendment    59

Proposal for a directive

Article 6

Text proposed by the Commission

Amendment

Article 6

Article 6

Stay of individual enforcement actions

Stay of individual enforcement actions

1.  Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

1.  Where the obligation of the debtor to file for insolvency has not yet arisen, Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan and provided there is a likelihood of preventing the company from undergoing insolvency proceedings.

2.  Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

2.  Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors provided that the debtor includes those creditors in the negotiations for a restructuring plan. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

3.  Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/EC.

3.  Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a similar level of protection.

4.  Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four months.

4.  The duration of the stay of individual enforcement actions is limited to a maximum period of no more than four four months.

5.  Member States may nevertheless enable judicial or administrative authorities to extend the initial duration of the stay of individual enforcement actions or to grant a new stay of individual enforcement actions, upon request of the debtor or of creditors. Such extension or new period of stay of individual enforcement actions shall be granted only if there is evidence that:

5.  Member States may nevertheless enable judicial or administrative authorities to extend the initial duration of the stay of individual enforcement actions or to grant a new stay of individual enforcement actions, upon request of the debtor or of the creditors. Member States shall set the conditions for an extension or a new period of stay. Such extension or new period of stay of individual enforcement actions shall be granted only if there is evidence that:

 

(-a)  secured creditors who are affected by the plan have agreed to such an extension or new period; and

(a)  relevant progress has been made in the negotiations on the restructuring plan; and

(a)  relevant progress has been made in the negotiations on the restructuring plan; and

(b)  the continuation of the stay of individual enforcement actions does not unfairly prejudice the rights or interests of any affected parties.

(b)  the continuation of the stay of individual enforcement actions does not unfairly prejudice the rights or interests of any affected parties; and

 

(ba)  the obligation of the debtor to file for insolvency under national law has not yet arisen.

6.  Any further extensions shall be given only if the conditions referred to in points (a) and (b) of paragraph 5 are met and the circumstances of the case show a strong likelihood that a restructuring plan will be adopted.

6.  Any further extensions shall be given only if the conditions referred to in points (a) to (b a) of paragraph 5 are met and the circumstances of the case show a strong likelihood that a restructuring plan will be adopted.

7.  The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months.

7.  The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed ten months. The total duration of the stay shall be limited to two months if the registered office of the company has been transferred to another Member State within a three-month-period prior to the filing of a request for the opening of restructuring proceedings.

8.  Member States shall ensure that judicial or administrative authorities may lift the stay of individual enforcement actions, in whole or in part:

8.  Member States shall ensure that judicial or administrative authorities may decide not to grant the stay of individual enforcement actions or may lift the stay of individual enforcement actions, in whole or in part:

(a)  if it becomes apparent that a proportion of creditors who under national law could block the adoption of the restructuring plan does not support the continuation of the negotiations; or

(a)  if it becomes apparent that a proportion of creditors who under national law could block the adoption of the restructuring plan does not support the continuation of the negotiations; or

(b)  at the request of the debtor or the practitioner in the field of restructuring.

(b)  at the request of the debtor or the practitioner in the field of restructuring or the majority of creditors concerned; or

 

(ba)  if an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions;

 

(bb) if a vulnerable creditor would encounter considerable economic difficulties;

9.  Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned.

 

Amendment    60

Proposal for a directive

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors.

deleted

Amendment    61

Proposal for a directive

Article 7 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

3.  Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan or economically viable business transfer within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

Amendment    62

Proposal for a directive

Article 7 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor for debts that came into existence prior to the stay. Member States may limit the application of this provision to essential contracts which are necessary for the continuation of the day-to-day operation of the business.

4.  Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify essential executory contracts to the detriment of the debtor in respect of debts that came into existence prior to the stay on condition that no severe financial difficulties for creditors are caused. For the purposes of this paragraph, an executory contract is essential when it is necessary for the continuation of the day-to-day operation of the business, including any supplies where a suspension of deliveries would lead to the company’s activities coming to a standstill.

Amendment    63

Proposal for a directive

Article 7 – paragraph 5

Text proposed by the Commission

Amendment

(5)  Member States shall ensure that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.

(5)  Member States may require that creditors are prohibited from withholding performance or terminating, accelerating or in any other way modifying executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay, unless they are affected by the stay and they can prove that they would suffer significant disadvantages from such an event.

Amendment    64

Proposal for a directive

Article 7 – paragraph 6

Text proposed by the Commission

Amendment

6.  Member States shall ensure that nothing prevents the debtor from paying in the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise after the stay is granted and which continue to arise throughout the period of the stay.

deleted

Amendment    65

Proposal for a directive

Article 8

Text proposed by the Commission

Amendment

Article 8

Article 8

Content of restructuring plans

Content of restructuring plans

1.  Member States shall require restructuring plans submitted for confirmation by a judicial or administrative authority to contain at least the following information:

1.  Member States shall require restructuring plans to be confirmed by a judicial or administrative authority and shall ensure that the restructuring plans are submitted to workers’ representatives for information and consultation. Restructuring plans shall contain at least the following information:

(a)  the identity of the debtor or the debtor’s business for which the restructuring plan is proposed;

(a)  the identity of the debtor or the debtor’s business for which the restructuring plan is proposed;

(b)  a valuation of the present value of the debtor or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor;

(b)  a valuation of the market value of the debtor or the debtor's business, including an evaluation of the financial obligations and the financial flows during the duration of the restructuring plan, at the time of the submission of the plan for confirmation as well as an expected liquidation value of the debtor or the debtor’s business, all prepared by a judicial expert, and a reasoned statement on the causes for and the extent of the financial difficulties of the debtor, including a description of assets and debts;

(c)  the identity of the affected parties, whether named individually or described by reference to one or more categories of debt, as well as their claims or interests covered by the restructuring plan;

(c)  the identity of the affected parties, whether named individually or described by reference to one or more categories of debt, as well as their claims or interests covered by the restructuring plan;

(d)  the classes into which the affected parties have been grouped for the purposes of adopting the plan, together with a rationale for doing so and information about the respective values of creditors and members in each class;

(d)  the classes into which the affected parties have been grouped, on the basis of objective criteria, for the purposes of adopting the plan, together with a rationale for doing so and information about the respective values of creditors and members in each class;

(e)  the identity of non-affected parties, whether named individually or described by reference to one or more categories of debt, together with a statement of the reasons why it is not proposed to affect them;

(e)  the identity of non-affected parties, whether named individually or described by reference to one or more categories of debt, together with a statement of the reasons why it is not proposed to affect them;

 

(ea)  the identity of the practitioner in the field of restructuring, where applicable;

(f)  the terms of the plan, including, but not limited to:

(f)  the terms of the plan, including, but not limited to:

(i)  its proposed duration;

(i)  its proposed duration;

(ii)  any proposal by which debts are rescheduled or waived or converted into other forms of obligation;

(ii)  any proposal by which debts are rescheduled or waived or converted into other forms of obligation;

 

(iia)  any proposal for a stay of individual enforcement actions as part of the restructuring plan;

 

(iib)  the modalities of information and consultation of the workers’ representatives in accordance with Union and national law;

 

(iic)  organisational aspects that touch upon consequences as regards employment such as dismissals, short-time work or similar;

(g)  an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and restore its long-term viability, and states any anticipated necessary pre-conditions for its success.

(g)  an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and/or restore its long-term viability, and states any anticipated necessary pre-conditions for its success. Member States may provide for the opinion or reasoned statement to be validated by an external expert, such as a practitioner in the field of restructuring.

 

1a.  Member States may determine whether creditors are able to propose an alternative restructuring plan. Where a Member State so decides, the Member State shall define the conditions under which creditors are able to propose an alternative restructuring plan.

2.  Member States shall make a model for restructuring plans available online. That model shall contain at least the information required under national law and shall provide general but practical information on how the model is to be used. The model shall be made available in the official language or languages of the Member State. Member States shall endeavour to make the model available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be adapted to the needs and circumstances of every case.

2.  Member States shall provide a check-list for restructuring plans available online. That check-list shall contain at least the information required under national law and shall provide general and practical information about the restructuring proceedings available in the Member State.. The check-list shall be made available in the official language or languages of the Member State. Member States shall endeavour to make the check-list available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be adapted to the needs and circumstances of every case.

3.  The parties may choose whether or not to use the model restructuring plan.

 

 

3a.  Member States shall ensure that workers’ rights, entitlements and claims are not affected by the restructuring plan subject to Article 6(3) of this Directive. Member States shall also ensure that restructuring plans have no impact on occupational pension funds or schemes.

Amendment    66

Proposal for a directive

Article 9

Text proposed by the Commission

Amendment

Article 9

Article 9

Adoption of restructuring plans

Adoption of restructuring plans

1.  Member States shall ensure that any affected creditors have a right to vote on the adoption of a restructuring plan. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

1.  Member States shall ensure that any affected creditors, including workers have a right to vote on the adoption of a restructuring plan after having been duly informed about the procedure and its potential consequences. Member States may grant such voting rights also to affected equity holders, in accordance with Article 12(2). Creditors that are not affected by the restructuring plan shall not have a voting right concerning the adoption of that plan.

 

1a.  Member States shall ensure that, where the plan includes measures leading to changes in the work organisation or in contractual relations, those shall be confirmed by workers in cases where national law and practices provide for such confirmation.

2.  Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States may also provide that workers are treated in a separate class of their own.

2.  Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria under national law. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States shall also provide that workers are treated in a separate class of their own in cases where they are affected by the plan. Member States may also provide that equity holders are treated in a separate class of their own.

3.  Class formation shall be examined by the judicial or administrative authority when a request is filed for confirmation of the restructuring plan.

3.  Voting rights and class formation shall be examined by the judicial or administrative authority when a request is filed for confirmation of the restructuring plan. Member States may provide for an examination of voting rights and class formation by a judicial or administrative authority at an earlier stage.

4.  A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

4.  A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests and a majority of creditors is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan.

5.  Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class.

5.  Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class.

6.  Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed if it complies with the cross-class cram-down requirements set out in Article 11.

6.  Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed by a judicial or administrative authority if it complies with the cross-class cram-down requirements set out in Article 11.

Amendment    67

Proposal for a directive

Article 10

Text proposed by the Commission

Amendment

Article 10

Article 10

Confirmation of restructuring plans

Confirmation of restructuring plans

1.  Member States shall ensure that the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative authority:

1.  Member States shall ensure that the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative authority:

(a)  restructuring plans which affect the interests of dissenting affected parties;

(a)  restructuring plans which affect the interests of dissenting affected parties;

(b)  restructuring plans which provide for new financing.

(b)  restructuring plans which provide for new financing.

 

(ba)  restructuring plans which involve the loss of more than 25% of the workforce;

2.  Member States shall ensure that the conditions under which a restructuring plan can be confirmed by a judicial or administrative authority are clearly specified and include at least the following:

2.  Member States shall ensure that the conditions under which a restructuring plan can be confirmed by a judicial or administrative authority are clearly specified in their law and include at least the following:

(a)  the restructuring plan has been adopted in accordance with Article 9 and has been notified to all known creditors likely to be affected by it;

(a)  the restructuring plan has been adopted respecting the requirements laid down by Article 9 and has been notified to all known creditors likely to be affected by it;

(b)  the restructuring plan complies with the best interest of creditors test;

(b)  the restructuring plan complies with the best interest of creditors test;

(c)  any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors.

(c)  any new financing is necessary and proportionate to implement the restructuring plan.

 

(ca)  workers’ representatives have been informed and consulted.

3.  Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.

3.  Member States shall ensure that judicial or administrative authorities shall refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.

4.  Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

4.  Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken within a reasonable time and without undue delay after the request for confirmation has been filed .

Amendment    68

Proposal for a directive

Article 11

Text proposed by the Commission

Amendment

Article 11

Article 11

Cross-class cram-down

Cross-class cram-down

1.  Member States shall ensure that a restructuring plan which is not approved by each and every class of affected parties may be confirmed by a judicial or administrative authority upon the proposal of a debtor or of a creditor with the debtor's agreement and become binding upon one or more dissenting classes where the restructuring plan:

1.  Member States shall ensure that a restructuring plan which is not approved by each and every class of affected parties may be confirmed by a judicial or administrative authority upon the proposal of a debtor or, when so provided by national law, of a creditor with the debtor's agreement and become binding upon one or more dissenting classes where the restructuring plan:

(a)  fulfils the conditions in Article 10(2);

(a)  fulfils the conditions in Article 10(2), while ensuring compliance with all requirements laid down in national law;

(b)  has been approved by at least one class of affected creditors other than an equity-holder class and any other class which, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied;

(b)  has been approved by the majority of classes of affected creditors amongst which there is no equity-holder class or any other class which, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied;

(c)  complies with the absolute priority rule.

(c)  complies with the absolute priority rule.

2.  Member States may vary the minimum number of affected classes required to approve the plan laid down in point (b) of paragraph (1).

2.  Member States may increase the minimum number of affected classes required to approve the plan laid down in point (b) of paragraph (1) as long as that minimum number still represents the majority of classes.

Amendment    69

Proposal for a directive

Article 12 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that, where there is a likelihood of insolvency, shareholders and other equity holders with interests in a debtor may not unreasonably prevent the adoption or implementation of a restructuring plan which would restore the viability of the business.

1.  Member States shall ensure that, where there is a likelihood of insolvency, shareholders and other equity holders with interests in a debtor may not unreasonably prevent or create obstacles for the adoption or implementation of a restructuring plan which would restore the viability of the business.

Amendment    70

Proposal for a directive

Article 12 a (new)

Text proposed by the Commission

Amendment

 

Article 12a

 

Workers

 

Members States shall ensure that workers’ rights, including the rights set out in this Directive, are not undermined by the restructuring process and that there is independent supervision of compliance with relevant Union and national law. Those rights shall include, in particular:

 

(1)  the right to collective bargaining and industrial action; and

 

(2)  the right to information and consultation, including in particular the right to access information concerning any procedure which could have an impact on employment or on the ability of workers to recover their wages and any future payments, including occupational pensions.

 

Member States shall also ensure that workers are always treated as a preferential and secured class of creditors.

Amendment    71

Proposal for a directive

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

1.  A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

1.  A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan or a sale plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

Amendment    72

Proposal for a directive

Article 14 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that restructuring plans which are confirmed by a judicial or administrative authority are binding upon each party identified in the plan.

1.  Member States shall ensure that restructuring plans which are confirmed by a judicial or administrative authority are binding upon each and all parties identified in the plan.

Amendment    73

Proposal for a directive

Article 15 – paragraph 4 – point b

Text proposed by the Commission

Amendment

(b)  confirm the plan and grant monetary compensation to the dissenting creditors, payable by the debtor or by the creditors who voted in favour of the plan.

(b)  confirm the plan and assess the possibility for dissenting creditors that suffer unjustifiable damage under the plan to be granted monetary compensation, and where appropriate order that such compensation is to be payable by the debtor.

Amendment    74

Proposal for a directive

Article 17 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

3.  Member States shall require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

Amendment    75

Proposal for a directive

Article 18

Text proposed by the Commission

Amendment

Article 18

Article 18

Duties of directors

Duties and obligations of directors

Member States shall lay down rules to ensure that, where there is a likelihood of insolvency, directors have the following obligations:

1. Member States shall lay down rules to ensure that, where there is a likelihood of insolvency, directors and entrepreneurs have the following obligations:

(a)  to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders;

(a)  to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders;

(b)  to have due regard to the interests of creditors and other stakeholders;

(b)  to have due regard to the interests of creditors, workers and other stakeholders;

 

(ba)  to comply with all their obligations to creditors, workers, other stakeholders, the state and its emanations;

(c)  to take reasonable steps to avoid insolvency;

(c)  to take reasonable steps to avoid insolvency;

(d)  to avoid deliberate or grossly negligent conduct that threatens the viability of the business.

(d)  to avoid deliberate or grossly negligent conduct that threatens the viability of the business.

 

(da)  not to reduce intentionally the value of the company’s net assets;

 

2.  Failure to comply with the duties set out in the paragraph 1 shall be taken into account in determining the period and conditions of discharge in accordance with Article 22.

Amendment    76

Proposal for a directive

Article 19 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive.

1.  Member States shall ensure that bona fide over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive.

Amendment    77

Proposal for a directive

Article 19 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  A full discharge shall apply only where the indebted entrepreneur has complied with the requirements of Article 18 of this Directive. Entrepreneurs who violate employment or competition law shall be excluded from a full discharge.

Amendment    78

Proposal for a directive

Article 19 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States shall provide entrepreneurs affected by the second chance with business support and regeneration actions which help to relaunch their entrepreneurial capacity.

Amendment    79

Proposal for a directive

Article 20

Text proposed by the Commission

Amendment

Article 20

Article 20

Discharge period

Discharge period

1.  The period of time after which over-indebted entrepreneurs may be fully discharged from their debts shall be no longer than three years starting from:

1.  The period of time after which over-indebted entrepreneurs may for the first time be fully discharged from their debts shall be no longer than five years starting from:

(a)  the date on which the judicial or administrative authority decided on the application to open such a procedure, in the case of a procedure ending with the liquidation of an over-indebted entrepreneur' s assets; or

(a)  the date on which the judicial or administrative authority decided on the application to open such a procedure, in the case of a procedure ending with the liquidation of an over-indebted entrepreneur' s assets; or

(b)  the date on which implementation of the repayment plan started, in the case of a procedure which includes a repayment plan.

(b)  the date on which implementation of the repayment plan started, in the case of a procedure which includes a repayment plan.

2.  Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts without the need to re-apply to a judicial or administrative authority.

2.  Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts.

 

2a.  Member States may provide for longer discharge periods in cases where an entrepreneur applies for a second or any subsequent discharge procedure.

Amendment    80

Proposal for a directive

Article 22 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  By way of derogation from Articles 19, 20 and 21, Member States may maintain or introduce provisions restricting access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods in certain well-defined circumstances and where such limitations are justified by a general interest, in particular where:

1.  By way of derogation from Articles 19, 20 and 21, Member States shall maintain or introduce provisions restricting access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods in certain well-defined circumstances and where such limitations are justified by a general interest, in particular where:

Amendment    81

Proposal for a directive

Article 22 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts;

(a)  the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts. The Commission shall provide guidelines for Member States to establish a set of criteria for what constitutes dishonest action or bad faith;

Amendment    82

Proposal for a directive

Article 22 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  the over-indebted entrepreneur does not adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors;

(b)  the over-indebted entrepreneur does not substantially adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors, taking into consideration the difficulties in terms of adherence to insolvency and restructuring procedures, which micro and small enterprises encounter.

Amendment    83

Proposal for a directive

Article 22 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  where entrepreneurs or their directors have acted in breach of their obligations under Article 18 of this Directive or where entrepreneurs or their directors have violated employment or competition law.

Amendment    84

Proposal for a directive

Article 22 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States may provide for longer discharge periods in cases where the main residence of an over-indebted entrepreneur is exempt from the possibility of realisation of assets, in order to safeguard the livelihood of the over-indebted entrepreneur and his or her family.

2.  Member States may provide for longer discharge periods in order to safeguard the livelihood of an over-indebted entrepreneur and his or her family where his or her main residence is exempt from the possibility of realisation of assets.

Amendment    85

Proposal for a directive

Article 22 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may exclude specific categories of debt, such as secured debts or debts arising out of criminal penalties or tortious liability, from discharge or lay down a longer discharge period where such exclusions or longer periods are justified by a general interest.

3.  Member States may exclude from discharge, or lay down a longer discharge period for, specific categories of debt, such as secured debts or debts arising out of criminal penalties or tortious liability, where such exclusions or longer periods are justified by a general interest.

Amendment    86

Proposal for a directive

Article 22 – paragraph 4

Text proposed by the Commission

Amendment

4.  By way of derogation from Article 21, Member States may provide for longer or indefinite disqualification periods where the over-indebted entrepreneur is a member of a profession to which specific ethical rules apply or where disqualifications were ordered by a court in criminal proceedings.

4.  By way of derogation from Article 21, Member States may provide for longer or indefinite disqualification periods where the over-indebted entrepreneur is a member of a profession to which specific ethical rules apply and the entrepreneur has infringed those rules or where disqualifications were ordered by a court in criminal proceedings.

Amendment    87

Proposal for a directive

Article 22 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  With regard to point (a) of paragraph 1, the Commission shall provide guidelines for Member States to establish a set of criteria in order to define what constitutes dishonest action or bad faith in this context.

Amendment    88

Proposal for a directive

Article 23 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, all debts are treated in a single procedure for the purposes of obtaining a discharge.

1.  Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, professional debts are to be treated, for the purposes of obtaining a discharge, separately from personal debts. Where there are procedures for obtaining a discharge for both professional and personal debts, those procedures may be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

Amendment    89

Proposal for a directive

Article 23 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States may derogate from paragraph 1 and stipulate that professional and personal debts are to be treated in separate procedures, provided that these procedures can be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

deleted

Amendment    90

Proposal for a directive

Article 25 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters receive the necessary initial and further training in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties.

1.  Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters receive the initial and further training and obtain the qualifications necessary in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties.

Amendment    91

Proposal for a directive

Article 25 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  The Commission shall facilitate the sharing of best practices between Member States with a view to improving the quality of training across the Union, including by means of networking and the exchange of experiences and capacity building tools, and if necessary shall organise training for members of judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters.

Amendment    92

Proposal for a directive

Article 25 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services.

2.  Member States shall ensure that practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services comply with statutory codes of conduct, which shall at least include provisions on training, qualification, licensing, registration, personal liability, insurance and good repute.

Amendment    93

Proposal for a directive

Article 25 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States shall establish effective sanctions for failure to comply with the practitioners' obligations under this Article and other relevant Union or national law.

Amendment    94

Proposal for a directive

Article 27 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1а.  Member States shall ensure that information about the authorities exercising supervision or control over practitioners in the field of restructuring is publicly available.

Amendment    95

Proposal for a directive

Article 27 a (new)

Text proposed by the Commission

Amendment

 

Article 27a

 

Information available to second chance entrepreneurs

 

1.  Member States shall ensure that second chance entrepreneurs have access to relevant, up-to-date, clear, concise and user-friendly information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the setting-up of a new business.

 

2.  Member States shall communicate to the Commission on a yearly basis the information to be provided under paragraph 1.

 

3.  The Commission shall publish the information to be provided under paragraph 1 and received in accordance with paragraph 2 in a user-friendly way on its website.

Amendment    96

Proposal for a directive

Article 28 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Any shift of the debtor’s centre of main interest as defined in Regulation (EU) 2015/848 shall not be permissible during restructuring proceedings.

Amendment    97

Proposal for a directive

Article 28 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  notifications to creditors;

(c)  notifications to creditors, including workers' representatives;

Amendment    98

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

(ga)  the number of job losses, transfer of part or whole of the business, part redundancy, impact of restructuring agreements on employment, breaches of directors' obligations and the level of public finance.

Amendment    99

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g b (new)

Text proposed by the Commission

Amendment

 

(gb)  the number of debtors who, after having undergone a procedure referred to in point (a)(iii), launched a new business;

Amendment    100

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g c (new)

Text proposed by the Commission

Amendment

 

(gc)  for debtors who launched a new business after having undergone a procedure referred to in points (a) (ii) and (iii), the average time between the end of the procedure and the launch of the new business;

Amendment    101

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g d (new)

Text proposed by the Commission

Amendment

 

(gd)  the number of job losses, transfer of part or whole of the business, part redundancy and impact of restructuring agreements on employment and the level of public finance;

Amendment    102

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g e (new)

Text proposed by the Commission

Amendment

 

(ge)  the number of job losses, transfer of part or whole of the business, and impact of restructuring agreements on the employment situation;

Amendment    103

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g f (new)

Text proposed by the Commission

Amendment

 

(gf)  the number of fraudulent restructuring and insolvency procedures and the functioning of enforcement mechanisms in place.

Amendment    104

Proposal for a directive

Article 29 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected.

3.  Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected. Member States shall present those statistics by means of a user-friendly website.

Amendment    105

Proposal for a directive

Article 29 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  The Commission shall centralise on its website the information laid down in paragraphs 1 to 3 of this Article in a publicly accessible, free and user-friendly manner.

Amendment    106

Proposal for a directive

Article 30 a (new)

Text proposed by the Commission

Amendment

 

Article 30a

 

Obligation to report

 

1.  Any debtor involved in a restructuring, insolvency or discharge procedure in a Member State and that also operates in another Member State shall report to the competent authority, administration or court of both Member States at the beginning of any of those procedures.

 

2.  The debtor is obliged to report the activity, volume and structure of its business in another Member State or in third countries to the administration of the court involved in the restructuring, insolvency or discharge procedure.

Amendment    107

Proposal for a directive

Article 31 – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa)  Directive 2008/94/EC.

Amendment    108

Proposal for a directive

Article 33 – paragraph 1

Text proposed by the Commission

Amendment

No later than [5 years from the date of start of application of implementing measures] and every 7 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measures to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered.

No later than [3 years from the date of start of application of implementing measures] and every five years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application and impact of this Directive. On the basis of that assessment, the Commission shall submit, if appropriate, a legislative proposal following the review of this Directive, considering additional measures to consolidate and harmonise the legal framework on restructuring, insolvency and second chance, in particular in areas such as the conditions for opening insolvency proceedings, a common definition of insolvency, the ranking of insolvency claims, and avoidance actions.


OPINION of the Committee on Economic and Monetary Affairs (7.12.2017)

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 the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU

(COM(2016)0723 – C8-0475/2016 – 2016/0359(COD))

Rapporteur: Enrique Calvet Chambon

AMENDMENTS

The Committee on Economic and Monetary Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1)  The objective of this Directive is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

(1)  The objective of this Directive is to contribute to the proper functioning of the internal market by removing obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance, thereby contributing to the establishment of a true Capital Markets Union. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length. Preventive solutions, sometimes called ‘pre-pack’ solutions, are a feature of a growing trend in modern insolvency law, whereby approaches are favoured which, unlike in the case of the traditional approach of liquidating a business which is in crisis, have the aim of restoring it to financial health or at least salvaging those of its parts that are still economically viable thus contributing to the preservation of jobs.

Amendment    2

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

(2)  Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business or the business itself, if those operations, like the liquidation of assets, also contribute to the satisfaction of creditors’ claims. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors in comparison with that which they would receive in the event of the liquidation of assets, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans (NPL), for which a comprehensive and co-ordinated approach combining a mix of complementing policy actions, at national level and at Union level where appropriate, is the most effective way to address them. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

Amendment    3

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long.

(5)  Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long and being unduly costly.

Amendment    4

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country.

(6)  All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. This uncertainty therefore acts as a disincentive which obstructs the freedom of establishment of undertakings and the willingness to entrepreneurship and harms the proper functioning of the internal market. Small and medium-sized enterprises in particular do not, for the most part, have the resources needed to assess risks related to cross-border activities.

Amendment    5

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.

(7)  Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States, and hamper the free movement of capital in the internal market. Analysis suggests that efficient preventive restructuring frameworks are positively associated with levels of entrepreneurship across Member States, and could also lead to fewer adverse outcomes in terms of financial stability and economic activity, in the event of deleveraging. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic operations.

Amendment    6

Proposal for a directive

Recital 7 a (new)

Text proposed by the Commission

Amendment

 

(7a)  Harmonisation in the area of insolvency law is a necessary step towards a common European business law. However, the Union acquis in the field of business law is both heterogeneous and incomplete. Further convergence is essential for the proper functioning of the European single market.

Amendment    7

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  The obstacles to the exercise of fundamental freedoms are not limited to purely cross-border situations. An increasingly interconnected single market - where goods, services, capital and workers circulate freely – with an ever stronger digital dimension means that very few companies are purely national if all relevant elements are considered, such as their client base, supply chain, scope of activities, investor and capital base. Even purely national insolvencies may have an impact on the functioning of the single market through the so-called domino effect of insolvencies, whereby an enterprise's insolvency may trigger further insolvencies in the supply chain.

(9)  The obstacles to the exercise of fundamental freedoms are not limited to purely cross-border situations. An increasingly interconnected single market - where goods, services, capital and workers circulate freely – with an ever stronger digital dimension means that very few companies are purely national if all relevant elements are considered, such as their client base, supply chain, scope of activities, investor and capital base. Even purely national insolvencies may have an impact on the functioning of the single market through the so-called domino effect of insolvencies, whereby an enterprise's insolvency may trigger further insolvencies in the supply chain, to which small and medium-sized enterprises are particularly vulnerable.

Amendment    8

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  Regulation (EU) 2015/848 of the European Parliament and of the Council62 deals with issues of jurisdiction, recognition and enforcement, applicable law and cooperation in cross-border insolvency proceedings as well as with the interconnection of insolvency registers. Its scope covers preventive procedures which promote the rescue of an economically viable debtor as well as procedures which give a second chance to entrepreneurs. However, Regulation (EU) 2015/848 does not tackle the discrepancies between those procedures in national law. Furthermore, an instrument limited to cross-border insolvencies only would not remove all obstacles to free movement, nor would it be feasible for investors to determine in advance the cross-border or domestic nature of the future potential financial difficulties of the debtor. There is a need therefore to go beyond matters of judicial cooperation and to establish substantive minimum standards.

(10)  Regulation (EU) 2015/848 of the European Parliament and of the Council62 deals with issues of jurisdiction, recognition and enforcement, applicable law and cooperation in cross-border insolvency proceedings as well as with the interconnection of insolvency registers. Its scope covers preventive procedures, initiated by a public decision, which promote the rescue of an economically viable debtor as well as procedures which give a second chance to entrepreneurs. However, Regulation (EU) 2015/848 does not tackle the discrepancies between those procedures in national law and does not concern confidential procedures. Furthermore, an instrument limited to cross-border insolvencies only would not remove all obstacles to free movement, nor would it be feasible for investors to determine in advance the cross-border or domestic nature of the future potential financial difficulties of the debtor. There is a need therefore to go beyond matters of judicial cooperation and to establish substantive minimum standards.

_________________

_________________

62 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).

62 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).

Amendment    9

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11)  It is necessary to lower the costs of restructuring for both debtors and creditors. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should maximise the returns to all types of creditors and investors and encourage cross-border investment. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.

(11)  It is necessary to lower the costs of restructuring for both debtors and creditors, who often bear those costs indirectly because of the reduction of their reimbursement. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency and more legal certainty and predictability, for both debtors and creditors, in the Union. Also, it should maximise the returns to all types of creditors and investors and encourage cross-border investment. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.

Amendment    10

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12)  Removing the barriers to effective restructuring of viable enterprises in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. Facilitating a second chance for entrepreneurs avoids their exclusion from the labour market and enables them to restart entrepreneurial activities, drawing lessons from past experience. Finally, reducing the length of restructuring procedures would result in higher recovery rates for creditors as the passing of time would normally only result in a further loss of value for the enterprise. Moreover, efficient insolvency frameworks would enable a better assessment of the risks involved in lending and borrowing decisions and smooth the adjustment for over-indebted enterprises, minimizing the economic and social costs involved in their deleveraging process.

(12)  Removing the barriers to effective restructuring of viable enterprises in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. In order to attain that objective and to preserve employment and operations, it is necessary to ensure that it is possible for these procedures to be conducted in whole or in part in a confidential framework, which in particular requires the rights of workers to be better specified. Facilitating a second chance for entrepreneurs avoids their exclusion from the labour market and enables them to restart entrepreneurial activities, drawing lessons from past experience. Finally, reducing the length of restructuring procedures would result in higher recovery rates for creditors as the passing of time would normally only result in a further loss of value for the enterprise. Moreover, efficient insolvency frameworks would enable a better assessment of the risks involved in lending and borrowing decisions and smooth the adjustment for over-indebted enterprises, minimizing the economic and social costs involved in their deleveraging process.

Amendment    11

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13)  In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

(13)  In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business. It should be possible for the debtor to find ad hoc and special solutions with third parties or creditors, either by reducing debts to all or most of the creditors or by surrendering whatever operations are viable, contributing to the satisfaction of creditors’ claims better than by means of the liquidation of assets. Finally, professional advice from practitioners in the field of restructuring should be made available with the support of businesses associations and other stakeholders taking into account the specificities of SMEs.

Amendment    12

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15)  Consumer over-indebtedness is a matter of great economic and social concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply the discharge provisions to consumers.

(15)  Consumer over-indebtedness is a matter of great economic and social concern and is closely related to the reduction of debt overhang. Furthermore, while in some jurisdictions a clear distinction is made between the consumer and business debts of an entrepreneur, in other jurisdictions making this distinction is more difficult and not common practice. In such jurisdictions, a second chance regime for entrepreneurs might not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply the discharge provisions to consumers.

Amendment    13

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.

(16)  The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management, taking into consideration the lack of financial resources of SMEs, as well as reporting duties under loan agreements. In addition, social security, tax and audit authorities should aim to have means under domestic law to draw attention to any dangerous development on business debts at the earliest possible stage. Access to public, free and user-friendly information on the legal procedures for restructuring and insolvency is a first step towards raising awareness of debtors and entrepreneurs and avoiding cases of insolvency. In addition, the Commission should promote, in line with its digital single market strategy, the use and development of new IT technologies for notifications and online communications, to ensure more effective early warning procedures.

Amendment    14

Proposal for a directive

Recital 16 a (new)

Text proposed by the Commission

Amendment

 

(16a)  The early warning phase, designed to anticipate the emergence of the crisis, is intended to assist by flagging difficulties arising for debtors and offering them the possibility of a rapid analysis and solution of the economic and financial problems facing the company, making available - on a voluntary basis - various resources for this purpose, without dictating given lines of conduct or necessarily revealing the existence of a crisis to third parties. It is therefore important to leave the Member States to decide on whether to restrict mandatory monitoring provisions to SMEs, bearing in mind that SMEs themselves are frequently unable to initiate restructuring processes independently because of a number of factors undermining their competitiveness, such as being undersized, a lack of strong corporate governance, effective operational procedures and monitoring and planning resources, and their lower ability to afford to do so.

Amendment    15

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18)  To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors.

(18)  To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible and timely procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, as such a requirement may not always be relevant, necessary, useful or in the interest of the debtor, especially in straightforward cases with few creditors involved, and could result in a disproportionately high administrative burden on some jurisdictions. Instead, it should be made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority where it appears necessary to impose a restructuring plan on dissenting classes of creditors, or where the obligation to file for insolvency would otherwise apply or where all or part of the business is transferred to another undertaking.

Amendment    16

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.

(19)  A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. Such limitation should not endanger the efficiency and success of the restructuring plan. Member States should strike a balance between the main objective of the continuity of the company and the general public interest in relation to public creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, Member States should limit the duration of the stay to a maximum period that is no less than three months and no more than six months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to nine months.

Amendment    17

Proposal for a directive

Recital 25

Text proposed by the Commission

Amendment

(25)  To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

(25)  To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law should also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

Amendment    18

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28)  While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.

(28)  While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors, representing a majority of the claims, and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.

Amendment    19

Proposal for a directive

Recital 29 a (new)

Text proposed by the Commission

Amendment

 

(29a)  For the purposes of implementing the restructuring plan, the latter should make it possible for holders of equity in small and medium-sized enterprises to provide non-monetary restructuring assistance by drawing, for example, on their experience, reputation or business contacts.

Amendment    20

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34)  Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

(34)  Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. If this Directive is to be without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72, it should lay down arrangements for the exercise of those rights which make it possible to safeguard jobs and economic activity, in particular the confidentiality necessary for that purpose, whilst guaranteeing the effective exercise of those rights. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

_________________

_________________

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.

70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.

70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.

71 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.

71 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.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

Amendment    21

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37)  The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness.

(37)  The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time, by establishing a liability regime in order to promote the taking of such action, and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness. While respecting State aid rules, Member States should provide entrepreneurs affected by second chance with business support, relaunching actions, access to up-to-date information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the set-up of a new business and which might help them to relaunch their entrepreneurship capacity.

Amendment    22

Proposal for a directive

Recital 38

Text proposed by the Commission

Amendment

(38)  A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

(38)  A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Member States should be able to exclude specific categories of debt. When such exclusions involve public creditors, Member States should take into account the necessary balance between the general public interest and the promotion of entrepreneurship. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

Amendment    23

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39)  It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

(39)  It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. Enhanced transparency and predictability would also ensure greater legal certainty for investors and creditors involved in the restructuring, insolvency and discharge procedures. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. It should be possible for that reduction in particular to be secured by introducing, as a first step, confidential procedures which make it possible, in part by virtue of that confidentiality, to prepare the plan or the assignment without the loss of value which would occur if that intention were to be made public. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, and applicable to public procedures, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of courts or chambers with specialist magistrates in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

Amendment    24

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40)  Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

(40)  Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities have sufficient expertise and are properly supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity bearing in mind the main objective of restoring the viability of the company. Practitioners should be rescuers not liquidators and it is essential that they also adhere to a professional code of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

Amendment    25

Proposal for a directive

Recital 42

Text proposed by the Commission

Amendment

(42)  It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice.

(42)  It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice with a view to instituting additional reforms if necessary. They should accordingly proceed to collect and analyse data by type of procedure so that reliable and usable comparative statistics can be obtained.

Amendment    26

Proposal for a directive

Recital 43

Text proposed by the Commission

Amendment

(43)  The stability of financial markets relies heavily on financial collateral arrangements, in particular, when security collateral is provided in connection with participation in designated systems or in central bank operations and when margins are provided to central counterparties (CCPs). As the value of financial instruments given as security may be very volatile, it is crucial to realize their value quickly before its goes down. Therefore, this Directive should be without prejudice to Directive 98/26/EC of the European Parliament and of the Council of 19 May 199874 , Directive 2002/47/EC of the European Parliament and of the Council75 and Regulation (EU) No 648/201276 .

(43)  The stability of financial markets relies heavily on financial collateral arrangements, in particular, when security collateral is provided in connection with participation in designated systems or in central bank operations and when margins are provided to central counterparties (CCPs). As the value of financial instruments given as security may be very volatile, it is crucial to realize their value quickly before its goes down. The provisions of Directive 98/26/EC of the European Parliament and of the Council of 19 May 199874, Directive 2002/47/EC of the European Parliament and of the Council75 and Regulation (EU) No 648/201276 should prevail over this Directive.

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74 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166/45, 11.6.1998).

74 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166/45, 11.6.1998).

75 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements (OJ L 168/43, 27.6.2002).

75 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements (OJ L 168/43, 27.6.2002).

76 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, (OJ L 201/1, 27.7.2012, p.1).

76 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, (OJ L 201/1, 27.7.2012, p.1).

Amendment    27

Proposal for a directive

Article 1 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency;

(a)  preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency, and a possibility of survival. By means of delegated acts, the Commission shall further specify what constitutes a "likelihood of insolvency";

Amendment    28

Proposal for a directive

Article 2 – paragraph 1 – point 1

Text proposed by the Commission

Amendment

(1)  'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of a liquidator;

(1)  'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of an insolvency practitioner;

Amendment    29

Proposal for a directive

Article 2 – paragraph 1 – point 2

Text proposed by the Commission

Amendment

(2)  'restructuring' means changing the composition, conditions, or structure of a debtor's assets and liabilities or any other part of the debtor's capital structure, including share capital, or a combination of those elements, including sales of assets or parts of the business, with the objective of enabling the enterprise to continue in whole or in part;

(2)  'restructuring' means a procedure or measures, whether public or confidential, which make it possible to change the composition, conditions, or structure of a debtor's assets and liabilities or any other part of the debtor's capital structure, including share capital, or a combination of those elements, including sales of assets or all or part of the business, with the objective of enabling the enterprise to continue in whole or in part;

Amendment    30

Proposal for a directive

Article 2 – paragraph 1 – point 3

Text proposed by the Commission

Amendment

(3)  'affected parties' means creditors or classes of creditors and, where applicable under national law, equity holders whose claims or interests are affected under a restructuring plan;

(3)  'affected parties' means creditors or classes of creditors, including public creditors and contracting partners of executory contracts and, where applicable under national law, equity holders and workers whose claims or interests are affected under a restructuring plan;

Amendment    31

Proposal for a directive

Article 2 – paragraph 1 – point 4

Text proposed by the Commission

Amendment

(4)  'stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor against a debtor, ordered by a judicial or administrative authority;

(4)  'stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor or a group of creditors against a debtor or a group of debtors, ordered by a judicial or administrative authority;

Amendment    32

Proposal for a directive

Article 2 – paragraph 1 – point 6

Text proposed by the Commission

Amendment

(6)  'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan;

(6)  'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan. For the purpose of adopting a restructuring plan, creditors are divided into different classes of creditors, where as a minimum, secured and unsecured claims are treated in distinct classes, whilst workers constitute a separate class;

Amendment    33

Proposal for a directive

Article 2 – paragraph 1 – point 11

Text proposed by the Commission

Amendment

(11)  'new financing' means any new funds, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

(11)  'new financing' means any new funds or provision of credit, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

Amendment    34

Proposal for a directive

Article 2 – paragraph 1 – point 12

Text proposed by the Commission

Amendment

(12)  'interim financing' means any funds, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;

(12)  'interim financing' means any funds or provision of credit, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;

Amendment    35

Proposal for a directive

Article 2 – paragraph 1 – point 15 – introductory part

Text proposed by the Commission

Amendment

(15)  'practitioner in the field of restructuring' means any person or body appointed by a judicial or administrative authority to carry out one or more of the following tasks:

(15)  'practitioner in the field of restructuring' means any person or body that carries out one or more of the following tasks:

Amendment    36

Proposal for a directive

Article 2 – paragraph 1 – point 15 a (new)

Text proposed by the Commission

Amendment

 

(15a)  'repayment plan' means a programme of payments of specified amounts on specified dates by a debtor to creditors as part of a restructuring plan;

Amendment    37

Proposal for a directive

Article 2 – paragraph 1 – point 15 b (new)

Text proposed by the Commission

Amendment

 

(15b)  'viable' means able to provide an appropriate projected return on capital after having covered all its costs including depreciation and financial charges.

Amendment    38

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

1.  Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency. In that regard, the Commission shall promote, as part of its digital single market strategy, the use and development of new IT technologies for notifications and online communications, to ensure more effective early warning procedures.

Amendment    39

Proposal for a directive

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that debtors and entrepreneurs have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

2.  Member States shall ensure public, free, relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to debtors and entrepreneurs to restructure at an early stage or to obtain a discharge of personal debt.

Amendment    40

Proposal for a directive

Article 3 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  The Commission shall:

 

(a)  issue a list of warning indicators, linked to a set of actions to be performed by debtors and entrepreneurs in the event that those indicators are met;

 

(b)  centralise on their website the information laid down in paragraph 2 in a user-friendly way. Members States shall communicate to the Commission updated information every year.

Amendment    41

Proposal for a directive

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may limit the access provided for in paragraphs 1 and 2 to small and medium sized enterprises or to entrepreneurs

3.  For small and medium sized enterprises or entrepreneurs, Member States shall at all stages provide access to professional advice from a restructuring practitioner, for instance through chambers of trade or business and notaries’ associations bearing in mind that those measures should be affordable to SME’s.

Amendment    42

Proposal for a directive

Article 3 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Member States shall ensure that the tax, social security and audit authorities have sufficient means under national law to be able to flag any worrying developments as soon as possible.

Amendment    43

Proposal for a directive

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Member States shall incentivise debtors in financial difficulty to take early action by providing clear information on the available preventive restructuring procedures and on the early warning tools.

Amendment    44

Proposal for a directive

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

2.  Preventive restructuring frameworks may consist of one or more procedures or measures.

2.  Preventive restructuring frameworks may consist of one or more procedures or measures, either out-of-court or ordered by an administrative or judicial authority.

Amendment    45

Proposal for a directive

Article 4 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States may provide for other means for debtors to obtain protection besides those required by this Directive, including contractual means.

Amendment    46

Proposal for a directive

Article 4 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States shall put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate so that rights of any affected parties are safeguarded.

3.  Member States may put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate while ensuring that rights of any affected parties are safeguarded.

Amendment    47

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  The appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case.

2.  Member States may require the appointment by a judicial or administrative authority of a practitioner in the field of restructuring, if necessary and appropriate to safeguard the rights of affected parties, bearing in mind that those measures should be affordable to SMEs.

Amendment    48

Proposal for a directive

Article 5 – paragraph 3 – introductory part

Text proposed by the Commission

Amendment

3.  Member States may require the appointment of a practitioner in the field of restructuring in the following cases:

3.  Member States shall ensure the appointment of a practitioner in the field of restructuring by a judicial or administrative authority, at least in the following cases:

Amendment    49

Proposal for a directive

Article 5 – paragraph 3 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  where the obligation of the debtor to file for insolvency under national law arises during the period of stay of individual enforcement actions;

Amendment    50

Proposal for a directive

Article 5 – paragraph 3 – point b b (new)

Text proposed by the Commission

Amendment

 

(bb)  where the plan provides for the transfer of all or part of an undertaking to another undertaking without the creditors being paid in full or, the entire workforce being kept on.

Amendment    51

Proposal for a directive

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

1.  Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions. Particular conditions shall be specified in order to ensure that such a stay is necessary to allow the negotiation of a restructuring plan. Member States shall at least require that businesses of debtors benefiting from a stay of individual enforcement actions are viable.

Amendment    52

Proposal for a directive

Article 6 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

2.  Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including public, commercial, secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law. Such limitation shall not endanger the efficiency and success of the restructuring plan. Member States shall endeavour to achieve a balance between the main objective of the continuity of the company and the general public interest in relation with public creditors.

Amendment    53

Proposal for a directive

Article 6 – paragraph 3

Text proposed by the Commission

Amendment

3.  Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/EC.

3.  Paragraph 2 shall not apply to micro and small enterprise claims and workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/EC.

Amendment    54

Proposal for a directive

Article 6 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four months.

4.  Member States shall set a maximum period for the duration of the stay of individual enforcement actions. That maximum period shall be no less than three months and no more than six months.

Amendment    55

Proposal for a directive

Article 6 – paragraph 7

Text proposed by the Commission

Amendment

7.  The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months.

7.  The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed nine months.

Amendment    56

Proposal for a directive

Article 6 – paragraph 9

Text proposed by the Commission

Amendment

9.  Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned.

9.  Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, or a vulnerable creditor would encounter financial difficulties, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned. An unfair prejudice shall be deemed to exist at least where a creditor or class of creditors is facing considerable economic difficulties.

Amendment    57

Proposal for a directive

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors.

2.  A general stay covering all creditors involved in the negotiation of the restructuring plan shall prevent the opening of insolvency procedures at the request of one or more creditors, with the exception of workers, in accordance with Article 6(3).

Amendment    58

Proposal for a directive

Article 7 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

3.  Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that event, a judicial or administrative authority shall have the power to defer the opening of the insolvency procedure and to keep in place the benefit of the stay of individual enforcement actions, on condition that it does not cause severe financial difficulties to creditors, in order to examine the prospects for achieving an agreement on a successful restructuring plan or an economically viable business transfer, within the period of the stay.

Amendment    59

Proposal for a directive

Article 7 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor for debts that came into existence prior to the stay. Member States may limit the application of this provision to essential contracts which are necessary for the continuation of the day-to-day operation of the business.

4.  Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify essential executory contracts to the detriment of the debtor for debts that came into existence prior to the stay on condition of not causing severe financial difficulties to the creditors. For the purposes of this paragraph, an executory contract is essential when it is necessary for the continuation of the day-to-day operation of the business, including any supplies where a suspension of deliveries would lead to the company’s activities coming to a standstill.

Amendment    60

Proposal for a directive

Article 7 – paragraph 5

Text proposed by the Commission

Amendment

5.  Member States shall ensure that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.

5.  Member States may require that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.

Amendment    61

Proposal for a directive

Article 7 – paragraph 6

Text proposed by the Commission

Amendment

6.  Member States shall ensure that nothing prevents the debtor from paying in the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise after the stay is granted and which continue to arise throughout the period of the stay.

6.  Member States shall ensure that nothing prevents the debtor from paying in the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise at any time during the period of the stay. During that period, debtors shall be able to execute transactions that are in the interest of the continuity of the business.

Amendment    62

Proposal for a directive

Article 8 – paragraph 1 – point g

Text proposed by the Commission

Amendment

(g)  an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and restore its long-term viability, and states any anticipated necessary pre-conditions for its success.

(g)  an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency, and/or to restore its long-term viability, and states any anticipated necessary pre-conditions for its success.

Amendment    63

Proposal for a directive

Article 8 – paragraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

(ga)  workers’ claims or other rights shall be treated taking into account that any financial claims by workers shall have full priority.

Amendment    64

Proposal for a directive

Article 8 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Member States shall ensure that their national legislation effectively guarantees the confidentiality of discussions, conversations, negotiations, or information sessions with persons who have entered into a confidentiality undertaking.

Amendment    65

Proposal for a directive

Article 8 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

 

3b.  Member States may introduce provisions allowing one or more creditors to propose an alternative plan to that proposed by the debtor or by a creditor with the debtor’s agreement.

Amendment    66

Proposal for a directive

Article 8 – paragraph 3 c (new)

Text proposed by the Commission

Amendment

 

3c.  Procedures for implementing restructuring plans that provide for creditors to receive a dividend at least equal to that which they would have received had the assets been sold and the priority of creditors determined following insolvency proceedings shall constitute a bankruptcy procedure within the meaning of the abovementioned directives.

Amendment    67

Proposal for a directive

Article 8 a (new)

Text proposed by the Commission

Amendment

 

Article 8a

 

Workers’ claims or other rights shall not be affected by restructuring plans.

Amendment    68

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that any affected creditors have a right to vote on the adoption of a restructuring plan. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

1.  Member States shall ensure that any affected creditors, including public ones and workers, have a right to vote on the adoption of a restructuring plan in full knowledge of the consequences it entails for each of them. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

Amendment    69

Proposal for a directive

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States may also provide that workers are treated in a separate class of their own.

2.  Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States shall also provide that workers are treated in a separate class of their own. Member States may also lay down specific rules supporting separate class formation for vulnerable creditors, such as small suppliers and micro and small enterprises.

Amendment    70

Proposal for a directive

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4.  A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

4.  A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class. A sale plan shall be authorised by the competent jurisdiction under the national procedure allowing a sale to be authorised and effected.

Amendment    71

Proposal for a directive

Article 9 – paragraph 6

Text proposed by the Commission

Amendment

6.  Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed if it complies with the cross-class cram-down requirements set out in Article 11.

6.  Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed by a judicial or administrative authority if it complies with the cross-class cram-down requirements set out in Article 11.

Amendment    72

Proposal for a directive

Article 9 – paragraph 6 a (new)

Text proposed by the Commission

Amendment

 

6a.  Member States shall guarantee that in the case of lack of collaboration of other creditors, the workers’ restructuring plan may be presented to the competent administration or court and adopted without the consent of non-cooperative creditors.

Amendment    73

Proposal for a directive

Article 10 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative authority:

1.  Member States shall ensure that the restructuring plans which affect the interests of dissenting affected parties can become binding on the parties only if they are confirmed by a judicial or administrative authority.

Amendment    74

Proposal for a directive

Article 10 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b)  the restructuring plan complies with the best interest of creditors test;

(b)  in the event that creditors challenge, whether the restructuring plan complies with the best interest of creditors test;

Amendment    75

Proposal for a directive

Article 10 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors.

(c)  any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of existing creditors.

Amendment    76

Proposal for a directive

Article 10 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

4.  Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan or authorise a sale plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

Amendment    77

Proposal for a directive

Article 11 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  fulfils the conditions in Article 10(2);

(a)  fulfils the conditions in Article 10(2) and does not run counter to Article 10(3) by meeting the condition set out therein;

Amendment    78

Proposal for a directive

Article 12 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States may introduce provisions authorising holders of equity in small and medium-sized undertakings to provide non-monetary assistance under the plan.

Amendment    79

Proposal for a directive

Article 12 a (new)

Text proposed by the Commission

Amendment

 

Article 12a

 

Workers

 

Member States shall ensure the rights of workers are not undermined by the restructuring process and that there is independent supervision of compliance with relevant national and Union legislation, including those set out in the present directive. Those rights shall include, in particular:

 

(i)  the right to collective bargaining and industrial action;

 

(ii)  the right to information and consultation of workers and workers' representatives, including notably access to information on any procedure which could have an impact on employment and/or the ability of workers to recover their wages and any future payments, including occupational pensions.

 

Members States shall also ensure that workers are everywhere treated as a preferential and secure class of creditors.

Amendment    80

Proposal for a directive

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

1.  A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

1.  A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan or a sale plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

Amendment    81

Proposal for a directive

Article 13 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2.  An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern in the following cases:

2.  An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern and the value of the proceeds from the sale of its assets by the insolvency practitioner in an insolvency procedure in the following cases:

Amendment    82

Proposal for a directive

Article 14 – paragraph 2

Text proposed by the Commission

Amendment

2.  Creditors who are not involved in the adoption of a restructuring plan shall not be affected by the plan.

2.  Creditors who are not identified in a restructuring plan confirmed by a judicial or administrative authority shall not be affected by the plan.

Amendment    83

Proposal for a directive

Article 15 – paragraph 4 – point b

Text proposed by the Commission

Amendment

(b)  confirm the plan and grant monetary compensation to the dissenting creditors, payable by the debtor or by the creditors who voted in favour of the plan.

(b)  confirm the plan and assess the possibility for dissenting creditors that suffer unjustifiable damage under the plan to be granted monetary compensation, and where appropriate grant such compensation payable by the debtor.

Amendment    84

Proposal for a directive

Article 17 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

3.  Member States shall require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

Amendment    85

Proposal for a directive

Article 18 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  to have due regard to the interests of creditors and other stakeholders;

(b)  to have due regard to the interests of creditors and other stakeholders, including in relation to employment;

Amendment    86

Proposal for a directive

Article 18 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  to fulfil, in the manner most compatible with confidentiality, the obligations arising from Union acts granting rights to workers.

Amendment    87

Proposal for a directive

Article 18 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

 

(db)  not to reduce intentionally the value of the company's net assets below the level necessary to discharge accrued liabilities to workers;

Amendment    88

Proposal for a directive

Article 19 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States shall provide entrepreneurs affected by the second chance with business support and regeneration actions which will help to relaunch their entrepreneurship capacity.

Amendment    89

Proposal for a directive

Article 20 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts without the need to re-apply to a judicial or administrative authority.

2.  Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts after official confirmation.

Amendment    90

Proposal for a directive

Article 22 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts;

(a)  the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts. The Commission shall provide guidelines for Member States to establish a set of criteria for what constitutes dishonest action or bad faith;

Amendment    91

Proposal for a directive

Article 22 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  the over-indebted entrepreneur does not adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors;

(b)  the over-indebted entrepreneur does not substantially adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors, taking into consideration the difficulties in terms of adherence to insolvency and restructuring procedures, which micro and small enterprises encounter.

Amendment    92

Proposal for a directive

Article 22 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  in case of abusive access to discharge procedures;

deleted

Amendment    93

Proposal for a directive

Article 22 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  in case of repeated access to discharge procedures within a certain period of time.

(d)  in case of repeated and abusive access to discharge procedures within a certain period of time.

Amendment    94

Proposal for a directive

Article 22 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may exclude specific categories of debt, such as secured debts or debts arising out of criminal penalties or tortious liability, from discharge or lay down a longer discharge period where such exclusions or longer periods are justified by a general interest.

3.  Member States may exclude specific categories of debt, such as secured debts or debts arising out of right to alimony, criminal penalties or tortious liability, from discharge or lay down a longer discharge period where such exclusions or longer periods are justified by a general interest. When exclusion involves public creditors, Member States shall take into account the necessary balance between the general public interest and the promotion of entrepreneurship.

Amendment    95

Proposal for a directive

Article 23 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, all debts are treated in a single procedure for the purposes of obtaining a discharge.

1.  Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, professional debts are to be treated, for the purposes of obtaining a discharge, separately from personal debts. Where there are procedures for obtaining a discharge for both professional and personal debts, these procedures can be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

Amendment    96

Proposal for a directive

Article 23 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States may derogate from paragraph 1 and stipulate that professional and personal debts are to be treated in separate procedures, provided that these procedures can be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

deleted

Amendment    97

Proposal for a directive

Article 24 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the members of the judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters receive initial and further training to a level appropriate to their responsibilities.

1.  Member States shall ensure that the members of the judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters have the expertise and experience at a level appropriate to their responsibilities.

Amendment    98

Proposal for a directive

Article 25 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters receive the necessary initial and further training in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties.

1.  Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters have extensive expertise and experience in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties. Member States shall also ensure the availability of a public list of registered practitioners and mediators which will facilitate the encouragement of debtors to obtain protection through contractual means beside those required by this Directive.

Amendment    99

Proposal for a directive

Article 25 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  The Commission shall facilitate the sharing of best practices between Member States in view of improving the quality of training across the Union, including by means of networking and the exchange of experiences and capacity building tools, and if necessary organise training for members of judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters.

Amendment    100

Proposal for a directive

Article 25 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services.

2.  The Commission shall encourage Member States to set minimum standards for the practitioner, such as training and professional qualification, a registered status as a practitioner, licensing, personal liability and professional code of ethics, insurance and good repute.

Amendment    101

Proposal for a directive

Article 26 – paragraph 3

Text proposed by the Commission

Amendment

3.  Where practitioners in the field of restructuring, insolvency and second chance are appointed by the judicial or administrative authority, Member States shall ensure that the criteria concerning the manner in which the judicial or administrative authority selects such a practitioner are clear and transparent. In selecting a practitioner in the field of restructuring, insolvency and second chance for a particular case, due consideration shall be given to the practitioner's experience and expertise. Where appropriate, the debtors and creditors shall be consulted in the selection of the practitioner.

3.  Where practitioners in the field of restructuring, insolvency and second chance are appointed by the judicial or administrative authority, Member States shall ensure that the criteria concerning the manner in which the judicial or administrative authority selects such a practitioner are clear and transparent. In selecting a practitioner in the field of restructuring, insolvency and second chance for a particular case, due consideration shall be given to the practitioner's experience and expertise, not only in legal but also in commercial matters. Where appropriate, the debtors and creditors shall be consulted in the selection of the practitioner.

Amendment    102

Proposal for a directive

Article 27 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that the fees charged by practitioners in the field of restructuring, insolvency and second chance are governed by rules which incentivise a timely and efficient resolution of procedures with due regard to the complexity of the case. Member States shall ensure that appropriate procedures with built-in safeguards are available to ensure that any disputes over remuneration can be resolved in a timely manner.

2.  Member States shall ensure that the fees charged by practitioners in the field of restructuring, insolvency and second chance are governed by rules which incentivise a timely and efficient resolution of procedures with due regard to the complexity of the case. The efficiency of the procedure shall be measured, not only in terms of creditors’ recovery rates, but also in terms of the company or the entrepreneur and restoration of viability, under the responsibility of an administrative or judicial authority. Member States shall ensure that appropriate procedures with built-in safeguards are available to ensure that any disputes over remuneration can be resolved in a timely manner.

Amendment    103

Proposal for a directive

Article 27 a (new)

Text proposed by the Commission

Amendment

 

Article 27a

 

Information available to second chance entrepreneurs

 

1.  Member States shall ensure that second chance entrepreneurs have access to relevant, up-to-date, clear, concise and user-friendly information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the set-up of a new business.

 

2.  Member States shall communicate to the Commission on a yearly basis the information to be provided under paragraph 1.

 

3.  The Commission shall publish the information to be provided under paragraph 1 and received according to paragraph 2 in a user-friendly way on its website.

Amendment    104

Proposal for a directive

Article 28 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  notifications to creditors;

(c)  notifications to creditors and workers' representatives;

Amendment    105

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g

Text proposed by the Commission

Amendment

(g)  the number of debtors who, after having undergone a procedure referred to in point (a)(iii) of this paragraph, are subject to another such procedure or another procedure referred to in point (a) of this paragraph.

(g)  the number of debtors who, after having undergone a procedure referred to in points (a)(ii) and (iii) of this paragraph, are subject to another such procedure or another procedure referred to in point (a) of this paragraph.

Amendment    106

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

(ga)  for debtors who launched a new business after having undergone a procedure referred to in points (a) (ii) and (iii), the average time between the end of the procedure and the launch of the new business;

Amendment    107

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g b (new)

Text proposed by the Commission

Amendment

 

(gb)  the number of job losses, transfer of part or whole of the business, part redundancy and impact of restructuring agreements on the employment and the level of public finance;

Amendment    108

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g c (new)

Text proposed by the Commission

Amendment

 

(gc)  the work carried out by each practitioner and its results with respect to data referred to in points (a) to (e) of this paragraph;

Amendment    109

Proposal for a directive

Article 29 – paragraph 1 – subparagraph 1 – point g d (new)

Text proposed by the Commission

Amendment

 

(gd)  the number of fraudulent restructuring and insolvency procedures and the functioning of enforcement mechanisms in place.

Amendment    110

Proposal for a directive

Article 29 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected.

3.  Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected. Member States shall present statistics by means of a user-friendly website.

Amendment    111

Proposal for a directive

Article 29 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  The Commission shall centralise on their website the information laid down in paragraphs 1, 2 and 3 in a user-friendly way.

Amendment    112

Proposal for a directive

Article 31 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  This Directive shall be without prejudice to the following acts:

1.  Member States shall ensure in their laws, regulations and administrative provisions that:

Amendment    113

Proposal for a directive

Article 31 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  Directive 98/26/EC of the European Parliament and of the Council on settlement finality in payment and securities settlement systems80 ;

(a)  Directive 98/26/EC of the European Parliament and of the Council on settlement finality in payment and securities settlement systems80, and in particular the protection of rights and obligations in Articles 3 to 9 thereof;

__________________

__________________

80 Directives 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L 166/45, 11.6.1998.

80 Directives 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L 166/45, 11.6.1998.

Amendment    114

Proposal for a directive

Article 31 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  Directive 2002/47/EC of the European Parliament and of the Council on financial collateral arrangements81 ; and

(b)  Directive 2002/47/EC of the European Parliament and of the Council on financial collateral arrangements81, and in particular the protection of rights and obligations in Articles 4 to 8 thereof and,

__________________

__________________

81 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements, OJ L 168/43, 27.6.2002.

81 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements, OJ L 168/43, 27.6.2002.

Amendment    115

Proposal for a directive

Article 31 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories82 .

(c)  Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories82, and in particular the requirement to provide collateral or margin in accordance with Articles 11, 41 and 46 thereof,

__________________

__________________

82 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, OJ L 201/1, 27.7.2012.

82 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, OJ L 201/1, 27.7.2012.

Amendment    116

Proposal for a directive

Article 31 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

prevail over the provisions of this Directive and in particular over the rights of debtors under any stay of enforcement actions in accordance with Article 6.

Amendment    117

Proposal for a directive

Article 33 – paragraph 1

Text proposed by the Commission

Amendment

No later than [5 years from the date of start of application of implementing measures] and every 7 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measures to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered.

No later than [3 years from the date of start of application of implementing measures] and every 5 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measures to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered, including the availability of resources and of specialised courts.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures

References

COM(2016)0723 – C8-0475/2016 – 2016/0359(COD)

Committee responsible

       Date announced in plenary

JURI

16.1.2017

 

 

 

Opinion by

       Date announced in plenary

ECON

16.1.2017

Rapporteur

       Date appointed

Enrique Calvet Chambon

24.11.2016

Discussed in committee

30.8.2017

 

 

 

Date adopted

4.12.2017

 

 

 

Result of final vote

+:

–:

0:

33

2

4

Members present for the final vote

Gerolf Annemans, Hugues Bayet, Pervenche Berès, Jonás Fernández, Sven Giegold, Roberto Gualtieri, Brian Hayes, Gunnar Hökmark, Petr Ježek, Philippe Lamberts, Werner Langen, Sander Loones, Olle Ludvigsson, Caroline Nagtegaal, Luděk Niedermayer, Anne Sander, Alfred Sant, Martin Schirdewan, Molly Scott Cato, Pedro Silva Pereira, Peter Simon, Paul Tang, Ramon Tremosa i Balcells, Tom Vandenkendelaere, Miguel Viegas, Jakob von Weizsäcker

Substitutes present for the final vote

Enrique Calvet Chambon, Ashley Fox, Marian Harkin, Alain Lamassoure, Verónica Lope Fontagné, Paloma López Bermejo, Tibor Szanyi

Substitutes under Rule 200(2) present for the final vote

Eleonora Evi, Sylvie Goddyn, Carlos Iturgaiz, Claudia Schmidt, Sven Schulze, Bogdan Brunon Wenta

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

33

+

ALDE

Enrique Calvet Chambon, Marian Harkin, Petr Ježek, Caroline Nagtegaal, Ramon Tremosa i Balcells

ECR

Ashley Fox, Sander Loones

PPE

Brian Hayes, Gunnar Hökmark, Carlos Iturgaiz, Alain Lamassoure, Werner Langen, Verónica Lope Fontagné, Luděk Niedermayer, Anne Sander, Claudia Schmidt, Sven Schulze, Tom Vandenkendelaere, Bogdan Brunon Wenta

S&D

Hugues Bayet, Pervenche Berès, Jonás Fernández, Roberto Gualtieri, Olle Ludvigsson, Alfred Sant, Pedro Silva Pereira, Peter Simon, Tibor Szanyi, Paul Tang, Jakob von Weizsäcker

VERTS/ALE

Sven Giegold, Philippe Lamberts, Molly Scott Cato

2

-

ENF

Gerolf Annemans, Sylvie Goddyn

4

0

EFDD

Eleonora Evi

GUE/NGL

Paloma López Bermejo, Martin Schirdewan, Miguel Viegas

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


OPINION of the Committee on Employment and Social Affairs (05.12.2017)

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 the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU

(COM(2016)0723 – C8-0475/2016 – 2016/0359(COD))

Rapporteur: Edouard Martin

SHORT JUSTIFICATION

From the point of view of the Committee on Employment and Social Affairs, a matter of concern in this legislative proposal is the fact that workers employed in companies are, as creditors, being placed on the same footing as banks or any other equity holders.

This vision of a company on the one hand confines the proposal to financial aspects, while regarding and describing the recovery of a company solely as a financial reorganisation of its stakeholders with a view to making a ‘fresh start’, without any real consideration for the workers.

Moreover, this means that creditors are virtually being identified with consumers, as pointed out in the introductory text, which, while being reluctant to take the plunge, envisages the possibility of the directive being applied to consumption-related matters. The proposed amendments pursue several lines of approach:

  to ensure the recognition of the corporate social responsibility of undertakings, which cannot boil down to organised networks of contracts between entrepreneurs, equity holders, capital lenders, suppliers, customers and workers, but are social organisations which produce value through the individual and collective work of their staff members; as such, therefore, workers are not in exactly the same class as the others;

  to enable workers and their representatives, bolstered by their knowledge of the working environment, to exercise whistleblowing rights and be able to warn of an economic situation which they consider to be of concern; in addition, in relation to early restructuring, workers should be placed on an equal footing with other stakeholders or creditors (as the text calls them) and they and their representatives should be entitled to, and given access to, assessment and advice resources which they currently lack;

  to take into account cases in which people who have retired from an undertaking that is threatened with bankruptcy might potentially be affected (company savings plans, pension funds, etc.) and consider them, in these cases, as a ‘class’ within the meaning of the directive.

In its introductory text, the Commission welcomes the positive impact of the right to information and consultation; however, this can only be the case if those rights are effective, which has not yet been ascertained. It is worth pointing out that the ‘Workers' right to information and consultation within the undertaking’ is enshrined in Article 27 of the Charter of Fundamental Rights. It is vital that any early restructuring not only should adhere to these principles, but should, all the more, put social dialogue in its rightful place. The measures proposed in this opinion will have a positive impact on this right since they do not affect existing Union legislation in this area and also provide for a right for the workers concerned to vote on restructuring plans.

Lastly, the proposed amendments strengthen four of the eight ‘benefits’ identified in the impact assessment (Nos 1, 3, 5 and 8): ‘efficient possibilities for early restructuring’; ‘facilitating continuation of a debtor’s business while restructuring’; ‘increasing restructuring plans’ chances of success’ and ‘increasing the effectiveness of restructuring, insolvency and second chance’.

AMENDMENTS

The Committee on Employment and Social Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital -1 (new)

Text proposed by the Commission

Amendment

 

(-1) All workers should have the right to protection of their claims in the event of the insolvency of their employer, as set out in the European Social Charter.

Amendment    2

Proposal for a directive

Recital 1

Text proposed by the Commission

Amendment

(1)  The objective of this Directive is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

(1)  The objective of this Directive is to contribute to the proper functioning of the internal market by removing obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. Without prejudice to workers’ fundamental rights and freedoms this Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating, thus reducing avoidable job losses while contributing to the same extent as would be the case in the event of liquidation to satisfying creditors’ claims; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

Amendment    3

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2)  Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

(2)  Restructuring and the result of appropriate and viable expert reports should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency and the liquidation of viable companies. Those frameworks should prevent job losses and loss of knowledge and skills, and maximise the total value to creditors in comparison with that which they would receive in the event of the liquidation of the company assets, to owners and the economy as a whole. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected, including those of workers. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

Amendment    4

Proposal for a directive

Recital 3 a (new)

Text proposed by the Commission

Amendment

 

(3a)  The Member States should examine the possibility of devising mechanisms to prevent excessive or abusive recourse by employees to experts at the expense of an undertaking, since such recourse would ultimately have a negative impact on the financial situation of the undertaking.

Amendment    5

Proposal for a directive

Recital 3 b (new)

Text proposed by the Commission

Amendment

 

(3b)  Given that it would reduce legal uncertainty, a common legislative framework would be positive for the interests of businesses and entrepreneurs wishing to extend their activity to other Member States and for transnational investors.

Amendment    6

Proposal for a directive

Recital 3 c (new)

Text proposed by the Commission

Amendment

 

(3c)  Special treatment should be accorded to retired workers whose pensions depend, entirely or in part, on company pension plans, and who might be harmed by early restructuring.

Amendment    7

Proposal for a directive

Recital 4

Text proposed by the Commission

Amendment

(4)  In many Member States it takes more than three years for bankrupt, but honest entrepreneurs to discharge their debts and make a fresh start. Inefficient second chance frameworks result in entrepreneurs having to relocate in other jurisdictions in order to benefit from a fresh start in a reasonable period of time, at considerable additional costs to both their creditors and the debtors themselves. Long disqualification orders which often accompany a procedure leading to discharge create obstacles to the freedom to take up and pursue a self-employed, entrepreneurial activity.

(4)  In many Member States it takes more than three years for bankrupt, but honest entrepreneurs to discharge their debts and make a fresh start. Inefficient second chance frameworks result in entrepreneurs having to relocate in other jurisdictions in order to benefit from a fresh start in a reasonable period of time, at considerable additional costs to both their creditors and the debtors themselves. Long disqualification orders which often accompany a procedure leading to discharge create obstacles to the freedom to pursue entrepreneurial activity.

Amendment    8

Proposal for a directive

Recital 4 a (new)

Text proposed by the Commission

Amendment

 

(4a)  A second chance should be seen as a step towards success and not a synonym for failure. Second-chance mechanisms that allow the exoneration of unpaid debt for debtors who are considered to be acting in good faith represent a disincentive for the black economy, and foster a business culture, thereby resulting in a positive effect on employment. Member States should be allowed to extend second-chance mechanisms to natural persons.

Amendment    9

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long.

(5)  Excessive length of restructuring, insolvency and discharge procedures in several Member States, or the virtual inexistence of such procedures in some cases, is an important factor triggering long-lasting adverse consequences for the workers concerned, low business recovery rates, deterring investors from doing business in the countries concerned and dramatically contributing to the increase in the number of citizens at risk of poverty or social and labour exclusion, and thereby undermining the social and economic resilience of society as a whole.

Amendment    10

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country.

(6)  All these differences translate into additional costs for investors or banks when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. Such uncertainty therefore acts as a disincentive to investment , obstructs the freedom of establishment of undertakings, and harms the proper functioning of the internal market.

Amendment    11

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.

(7)  Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic activity, and therefore for the preservation and creation of jobs.

Amendment    12

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8)  The additional risk-assessment and cross-border enforcement costs for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time should also be removed. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a second chance should also be reduced. Furthermore, the obstacles stemming from long disqualification orders linked to an entrepreneur' over-indebtedness suppresses entrepreneurship.

(8)  The additional risk-assessment and cross-border enforcement costs for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time should also be removed. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a second chance should also be reduced. Furthermore, the obstacles stemming from long disqualification orders linked to an entrepreneur's over-indebtedness stifles entrepreneurship.

Amendment    13

Proposal for a directive

Recital 8 a (new)

Text proposed by the Commission

Amendment

 

(8a)  It is widely recognised that any restructuring operation, in particular one of a major size and which generates a significant impact, should be accompanied by an explanation and justification to the stakeholders, covering the choice of the measures envisaged in relation to the objectives and to alternative options and respecting the full and appropriate involvement of workers' representatives at all levels, prepared in good time to enable stakeholders to prepare for consultations, before the company takes a decision1 a.

 

__________________

 

1a (P7_TA(2013)0005 Information and consultation of workers, anticipation and management of restructuring)

Amendment    14

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13)  In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

(13)  In particular small and medium sized enterprises should benefit from a coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the restructuring procedures in some Member States, which have proved to be efficient. Small and medium enterprises, especially when facing financial difficulties, as well as workers representatives, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

Amendment    15

Proposal for a directive

Recital 13 a (new)

Text proposed by the Commission

Amendment

 

(13a)  In order to secure a more coherent approach, the Commission should consider setting up a registry of insolvencies in the European Union, which would provide greater transparency for all creditors and simplify access to information, in particular for small and medium-sized enterprises and for employees.

Amendment    16

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.

(16)  The earlier the debtors or the workers’ representatives can communicate concerns about an undertaking’s worrying situation or financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action and to empower the workers concerned so that they are able to take an active role in the restructuring process. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, social security, competition and audit authorities would have sufficient means under domestic law tax to draw attention to any dangerous development at the earliest possible stage.

Amendment    17

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18)  To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors.

(18)  To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors or if all or part of the business is transferred to another undertaking.

Amendment    18

Proposal for a directive

Recital 32

Text proposed by the Commission

Amendment

(32)  Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

(32)  Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the restructuring plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the restructuring plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

Amendment    19

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34)  Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

(34)  Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

__________________

__________________

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.

70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.

70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.

71 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.

71 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.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p. 28.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p. 28.

Amendment    20

Proposal for a directive

Recital 35

Text proposed by the Commission

Amendment

(35)  Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors.

(35)  Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors. Due account should be taken of the rulings handed down by the Court of Justice, as Advocate-General Mengozzi recently pointed out in his conclusions in Case C-126/16.

Amendment    21

Proposal for a directive

Recital 38

Text proposed by the Commission

Amendment

(38)  A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

(38)  A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance and criteria to judicial or administrative authorities on the method for assessing the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

Amendment    22

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39)  It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

(39)  It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of courts or chambers with specialist magistrates in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

Amendment    23

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40)  Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

(40)  Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity and bear in mind the objective of restoring the viability of the company. Practitioners should be rescuers not liquidators and they should adhere to a code of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

Amendment    24

Proposal for a directive

Recital 47 a (new)

Text proposed by the Commission

Amendment

 

(47a)  Further assessment should be done in order to evaluate the necessity and consequently put forward legislative proposals to deal with insolvency affecting those persons not exercising a trade, business, craft or profession comparable to the activities of an employer, who, as consumers or users of goods or public or private services, are, in good faith, temporarily or permanently, unable to pay debts as they fall due. Such legislative proposals should provide that access to basic goods and services is safeguarded for those persons to ensure them decent living conditions.

Amendment    25

Proposal for a directive

Article 1 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency;

(a)  preventive restructuring procedures available for debtors in financial difficulty, when there is a likelihood of insolvency; or procedures that are used to reduce the amount owed to all or some of the creditors or to transfer all or part of the viable business to another enterprise within a long-term strategy;

Amendment    26

Proposal for a directive

Article 2 – paragraph 1 – point 6

Text proposed by the Commission

Amendment

(6)  'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan;

(6)  'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan; the Member States shall be responsible for delineating these groupings while taking into account that workers are a class of preferential creditors; any legal change to the delineation of these categories shall not affect a restructuring plan in progress in order to ensure legal certainty;

Amendment    27

Proposal for a directive

Article 2 – paragraph 1 – point 7

Text proposed by the Commission

Amendment

(7)  'cram-down of dissenting creditors' means the confirmation by a judicial or administrative authority of a restructuring plan that has the support of a majority in value of creditors or a majority in value in each and every class of creditors over the dissent of a minority of creditors or the dissent of a minority of creditors within each class;

(7)  ‘cram-down of dissenting creditors' means the confirmation by a judicial or administrative authority of a restructuring plan that has the support of a majority in value of creditors or a majority in value in each and every class of creditors, or a restructuring plan the transfer price of which is not enough to pay all the creditors in full, over the dissent of a minority of creditors or the dissent of a minority of creditors within each class or the dissent of creditors who do not receive full payment of their claims;

Amendment    28

Proposal for a directive

Article 2 – paragraph 1 – point 15 – point a

Text proposed by the Commission

Amendment

(a)  to assist the debtor or the creditors in drafting or negotiating a restructuring plan;

(a)  to assist the debtor or the creditors in drafting or negotiating a viable restructuring or sale plan;

Amendment    29

Proposal for a directive

Article 2 – paragraph 1 – point 15 – point b

Text proposed by the Commission

Amendment

(b)  to supervise the activity of the debtor during the negotiations on a restructuring plan and report to a judicial or administrative authority;

(b)  to supervise the activity of the debtor during the negotiations on a restructuring or sale plan and report to a judicial or administrative authority;

Amendment    30

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

1.  Member States shall ensure that debtors, entrepreneurs as well as workers and their representatives have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

Amendment    31

Proposal for a directive

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that debtors and entrepreneurs have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

2.  Member States shall ensure that debtors, entrepreneurs as well as workers and their representatives have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

Amendment    32

Proposal for a directive

Article 3 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States shall ensure that employees’ representatives have full access to information and are consulted if action needs to be taken;

Amendment    33

Proposal for a directive

Article 3 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Member States shall ensure that workers’ representatives are able to communicate concerns to debtors and entrepreneurs about the difficulties the undertaking is in and the urgent nature of those difficulties;

 

Member States shall ensure that workers’ representatives are in a position to have recourse to an independent expert of their choice in accordance with national law and practices, giving an access to relevant, up-to-date, clear, concise and user-friendly information regarding the financial situation of the business and the different restructuring strategies being envisaged, including transfer to worker ownership;

 

Member States shall also ensure that the tax, social security, competition and audit authorities are able under national law to be able to flag any worrying financial developments as soon as possible.

Amendment    34

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

Article 4

Article 4

Availability of preventive restructuring frameworks

Availability of preventive restructuring frameworks

1.  Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency.

1.  Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability or arrange for sustainable management by another undertaking and avoid insolvency or find a solution that is more satisfactory than liquidation of assets to help pay off creditors claims, protect jobs and sustain business activity.

2.  Preventive restructuring frameworks may consist of one or more procedures or measures.

2.  Preventive restructuring frameworks may consist of one or more procedures or measures, duly negotiated and consulted with workers’ representatives, if any, who shall retain all rights of collective bargaining and industrial action. Such frameworks shall also provide for procedures or measures aimed at the rescue of the indebted firm by workers, in accordance with relevant national law.

3.  Member States shall put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate so that rights of any affected parties are safeguarded.

3.  Member States shall put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate, while ensuring that rights of any affected parties are safeguarded.

4.  Preventive restructuring frameworks shall be available on the application by debtors, or by creditors with the agreement of debtors.

4.  Preventive restructuring frameworks shall be available on the application by debtors, by workers or by other creditors with the agreement of debtors.

Amendment    35

Proposal for a directive

Article 5 – paragraph 3 – introductory part

Text proposed by the Commission

Amendment

3.  Member States may require the appointment of practitioner in the field of restructuring in the following cases:

3.  Member States shall ensure the appointment of a practitioner at least in the field of restructuring in the following cases:

Amendment    36

Proposal for a directive

Article 5 – paragraph 3 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  where the plan provides for the transfer of all or part of an undertaking to another undertaking without keeping on the entire workforce.

Amendment    37

Proposal for a directive

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

1.  Member States shall ensure that debtors who are negotiating a restructuring or sale plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

Amendment    38

Proposal for a directive

Article 6 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

2.  Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors but excluding workers. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

Justification

While the safeguard of Art: 6.3 is a good one, it needs to be stated in the general text of 6.1 that the workers class has a special status

Amendment    39

Proposal for a directive

Article 6 – paragraph 5 – point a

Text proposed by the Commission

Amendment

(a)  relevant progress has been made in the negotiations on the restructuring plan; and

(a)  relevant progress has been made in the negotiations on the restructuring plan or transfer of the viable part of the business to another undertaking in accordance with the conditions laid down in this Directive; and

Amendment    40

Proposal for a directive

Article 7 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

3.  Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring or going concern transfer plan within the period of the stay, a judicial or administrative authority my decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

Amendment    41

Proposal for a directive

Article 8 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  a valuation of the present value of the debtor or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor;

(b)  a valuation of the present value of the debtor, following problem-solving or assets liquidation procedures or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor; without prejudice to Union and national confidentiality rules, it shall include a detailed description of any assets, debts and their location and of the relationship between the financial obligations and cashflows with the business’s parent companies and subsidiaries.

Amendment    42

Proposal for a directive

Article 8 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f)  the terms of the plan, including, but not limited to:

(f)  the terms of the plan, including, but not limited to:

(i)  its proposed duration;

(i)  its proposed duration;

(ii)  any proposal by which debts are rescheduled or waived or converted into other forms of obligation;

(ii)  any proposal by which debts are rescheduled or waived or converted into other forms of obligation;

(iii)  any new financing anticipated as part of the restructuring plan;

(iii)  any new financing anticipated as part of the restructuring plan;

 

(iiia)  its impact on all types of pensions of retired and current workers.

 

(iiib)  its impact on the working conditions and remuneration of workers.

 

(iiic)  its impact on subsidiaries and subcontractors.

Amendment    43

Proposal for a directive

Article 8 – paragraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

(ga)  an assessment of the employability and the individual and collective skills of the employees who are affected by the plan.

Amendment    44

Proposal for a directive

Article 8 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Workers’ claims or other rights shall not be affected by restructuring plans and the workers class shall take priority.

Exceptionally, contractual conditions may be renegotiated in early restructuring processes at company level between the management and the workers’ representatives if this serves the normal continuation of business activity and maintenance of jobs.

Amendment    45

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that any affected creditors have a right to vote on the adoption of a restructuring plan. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

1.  Member States shall ensure that the procedures provided for in national law allow creditors, including workers affected by a waiver plan, to have a right to vote on the adoption of the restructuring plan, after having been duly informed about the procedure and its potential consequences for the company. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

Amendment    46

Proposal for a directive

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2  Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States may also provide that workers are treated in a separate class of their own.

2  Member States shall ensure that parties affected by a waiver plan are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Taking into account that workers are a class of preferential creditors, except in duly justified circumstances, Member States shall also ensure that outstanding wage claims for active workers and pension claims for retired workers are treated in a separate preferential class of their own, and shall guarantee the priority of such claims.

Amendment    47

Proposal for a directive

Article 9 – paragraph 4

Text proposed by the Commission

Amendment

4.  A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

4.  A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests and in terms of the number of members with voting rights is obtained in each and every class including the workers’ class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class. A sale plan shall be authorised by the competent jurisdiction in accordance with the national law allowing the sale to be authorised and effected.

Amendment    48

Proposal for a directive

Article 9 – paragraph 5

Text proposed by the Commission

Amendment

5.  Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class.

5.  Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class. In the workers’ class this vote shall be held in compliance with national laws.

Amendment    49

Proposal for a directive

Article 10 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  restructuring plans which cut more than 10 jobs within one month in the undertaking;

Amendment    50

Proposal for a directive

Article 10 – paragraph 1 – point b b (new)

Text proposed by the Commission

Amendment

 

(bb)  restructuring plans which are subject to counter-proposals from workers, in particular to further those which include a change of shareholder supported by the workers, or restructuring plans making workers the future buyers, which have been approved by the class of workers after an information and consultation procedure.

Amendment    51

Proposal for a directive

Article 10 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

Member States shall ensure that plans to sell a business as a going concern cannot become binding on the parties unless they are confirmed by a judicial or administrative authority under national law.

Amendment    52

Proposal for a directive

Article 10 – paragraph 3

Text proposed by the Commission

Amendment

3.  Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.

3.  Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan involving the waiver of claims where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business or where the debtor’s obligations to workers under existing Directives have not been fulfilled. Member States shall ensure that judicial or administrative authorities may refuse to authorise a sale plan where that plan is such that creditors have no reasonable prospect of being paid a dividend at least equivalent to the amount which they would have received if assets had been sold following a bankruptcy procedure or where the business continuing as a going concern does not offer guarantees as to the viability of the operations transferred.

Amendment    53

Proposal for a directive

Article 10 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

4.  Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan or authorise a sale plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

Amendment    54

Proposal for a directive

Article 13 – paragraph 1

Text proposed by the Commission

Amendment

1.  A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

1.  A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan or a sale plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

Amendment    55

Proposal for a directive

Article 13 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2.  An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern in the following cases:

2.  An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern and the value of the proceeds from the sale of its assets by the insolvency practitioner in an insolvency procedure in the following cases:

Amendment    56

Proposal for a directive

Article 13 – paragraph 2 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  where a plan involves the transfer of all or part of a business.

Amendment    57

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States may afford grantors of new or interim financing the right to receive payment with priority in the context of subsequent liquidation procedures in relation to other creditors that would otherwise have superior or equal claims to money or assets. In such cases, Member States shall rank new financing and interim financing at least senior to the claims of ordinary unsecured creditors.

deleted

Justification

This provision constitutes a super-privilege for actors providing new and interim financing. It can lead to downgrading of other creditors including workers and can reduce the remaining substance of the concerned enterprise, thereby further endangering workers

Amendment    58

Proposal for a directive

Article 18 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders;

(a)  to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders, including employment and the interests and rights of workers;

Amendment    59

Proposal for a directive

Article 23 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States may extend the scope of the second chance mechanism for entrepreneurs to include natural persons, covering persons who do not exercise a trade, business, craft or profession comparable to activities of an employer. The enlargement of the scope shall aim at avoiding natural persons' over-indebtedness in good faith, by a discharge procedure to keep carrying debts once a partial repayment has been done and to allow them to renew their access to credit. The Commission shall provide an impact assessment on how enlargement of the scope of the second chance mechanism would help Member States to reduce poverty and social exclusion and to foster economic activities.

Amendment    60

Proposal for a directive

Article 25 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services.

2.  Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to a code of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services, such as licensing and registration.

Amendment    61

Proposal for a directive

Article 28 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  notifications to creditors;

(c)  notifications to creditors, including workers' representatives;

Amendment    62

Proposal for a directive

Article 29 – paragraph 1 – point g a (new)

Text proposed by the Commission

Amendment

 

(ga)  the number of job losses, transfers of part or whole of a business, part redundancy and the impact of restructuring agreements on employment and the public finances;

Amendment    63

Proposal for a directive

Article 29 – paragraph 1 – point g b (new)

Text proposed by the Commission

Amendment

 

(gb)  an evaluation of the work carried out by the practitioners and its results;

Amendment    64

Proposal for a directive

Article 29 – paragraph 4

Text proposed by the Commission

Amendment

4.  The Commission shall establish the communication form referred to in paragraph 3 by way of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 30(2).

4.  The Commission shall establish the communication form referred to in paragraph 3 by way of delegated acts.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures

References

COM(2016)0723 – C8-0475/2016 – 2016/0359(COD)

Committee responsible

       Date announced in plenary

JURI

16.1.2017

 

 

 

Opinion by

       Date announced in plenary

EMPL

16.1.2017

Rapporteur

       Date appointed

Edouard Martin

17.1.2017

Discussed in committee

3.5.2017

 

 

 

Date adopted

10.10.2017

 

 

 

Result of final vote

+:

–:

0:

39

1

5

Members present for the final vote

Laura Agea, Guillaume Balas, Brando Benifei, Vilija Blinkevičiūtė, Enrique Calvet Chambon, David Casa, Ole Christensen, Martina Dlabajová, Lampros Fountoulis, Arne Gericke, Agnes Jongerius, Rina Ronja Kari, Jan Keller, Ádám Kósa, Agnieszka Kozłowska-Rajewicz, Jérôme Lavrilleux, Jeroen Lenaers, Thomas Mann, Dominique Martin, Emilian Pavel, João Pimenta Lopes, Georgi Pirinski, Marek Plura, Dennis Radtke, Terry Reintke, Maria João Rodrigues, Claude Rolin, Siôn Simon, Ulrike Trebesius, Marita Ulvskog, Renate Weber, Tatjana Ždanoka, Jana Žitňanská

Substitutes present for the final vote

Georges Bach, Amjad Bashir, Heinz K. Becker, Dieter-Lebrecht Koch, Paloma López Bermejo, Edouard Martin, Anne Sander, Sven Schulze, Jasenko Selimovic, Theodoros Zagorakis, Flavio Zanonato, Kosma Złotowski

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

39

+

ALDE

EFDD

GUE/NGL

NI

PPE

 

 

S&D

 

VERTS/ALE

Enrique Calvet Chambon, Martina Dlabajová, Jasenko Selimovic, Renate Weber

Laura Agea

Rina Ronja Kari, Paloma López Bermejo, João Pimenta Lopes

Lampros Fountoulis

Georges Bach, Heinz K. Becker, David Casa, Dieter-Lebrecht Koch, Agnieszka Kozłowska-Rajewicz, Ádám Kósa, Jérôme Lavrilleux, Jeroen Lenaers, Thomas Mann, Marek Plura, Dennis Radtke, Claude Rolin, Anne Sander, Sven Schulze, Theodoros Zagorakis

Guillaume Balas, Brando Benifei, Vilija Blinkevičiūtė, Ole Christensen, Agnes Jongerius, Jan Keller, Edouard Martin, Emilian Pavel, Georgi Pirinski, Maria João Rodrigues, Siôn Simon, Marita Ulvskog, Flavio Zanonato

Terry Reintke, Tatjana Ždanoka

1

-

ENF

Dominique Martin

5

0

ECR

Amjad Bashir, Arne Gericke, Ulrike Trebesius, Jana Žitňanská, Kosma Złotowski

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures

References

COM(2016)0723 – C8-0475/2016 – 2016/0359(COD)

Date submitted to Parliament

22.11.2016

 

 

 

Committee responsible

       Date announced in plenary

JURI

16.1.2017

 

 

 

Committees asked for opinions

       Date announced in plenary

ECON

16.1.2017

EMPL

16.1.2017

 

 

Rapporteurs

       Date appointed

Angelika Niebler

28.11.2016

 

 

 

Discussed in committee

12.7.2017

10.10.2017

7.12.2017

 

Date adopted

2.7.2018

 

 

 

Result of final vote

+:

–:

0:

14

7

1

Members present for the final vote

Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Mady Delvaux, Rosa Estaràs Ferragut, Laura Ferrara, Mary Honeyball, Emil Radev, Julia Reda, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka

Substitutes present for the final vote

Sergio Gaetano Cofferati, Geoffroy Didier, Pascal Durand, Angel Dzhambazki, Jytte Guteland, Angelika Niebler, Virginie Rozière, Viktor Uspaskich, Tiemo Wölken, Kosma Złotowski

Substitutes under Rule 200(2) present for the final vote

Nicola Danti, Kateřina Konečná, Nils Torvalds

Date tabled

21.8.2018


FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

14

+

ALDE

Jean-Marie Cavada, Viktor Uspaskich

ECR

Angel Dzhambazki, Kosma Złotowski

EFDD

Joëlle Bergeron

PPE

Rosa Estaràs Ferragut, Angelika Niebler, Emil Radev, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka

VERTS/ALE

Max Andersson, Pascal Durand, Julia Reda

7

-

ENF

Marie-Christine Boutonnet

S&D

Sergio Gaetano Cofferati, Nicola Danti, Mady Delvaux, Mary Honeyball, Virginie Rozière, Tiemo Wölken

1

0

EFDD

Laura Ferrara

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Last updated: 27 August 2018Legal notice