10

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Područje politike
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New EU insolvency rules give troubled businesses a chance to start anew

19-06-2018

In 2012, the Commission proposed to recast the 2000 Insolvency Regulation in order to address the cross-border aspects of insolvency in the EU. Adopted in 2015, the recast regulation introduced clear rules on the jurisdiction and law applicable to a debtor's insolvency proceedings and made mandatory the recognition of those proceedings in other EU Member States. Its remit was expanded to include not only bankruptcy but also hybrid and pre-insolvency proceedings, as well as debt discharges and debt ...

In 2012, the Commission proposed to recast the 2000 Insolvency Regulation in order to address the cross-border aspects of insolvency in the EU. Adopted in 2015, the recast regulation introduced clear rules on the jurisdiction and law applicable to a debtor's insolvency proceedings and made mandatory the recognition of those proceedings in other EU Member States. Its remit was expanded to include not only bankruptcy but also hybrid and pre-insolvency proceedings, as well as debt discharges and debt adjustments for natural persons (consumers and sole traders). In late 2016, as a further step and a follow up to the Insolvency Recommendation of 2014, the Commission proposed to adopt a directive on business restructuring, which would provide new legal tools to rescue viable businesses in distress and give honest but bankrupt entrepreneurs a second chance. The proposal focuses on three key elements: common principles on early restructuring tools, which would help companies to continue operating and preserve jobs; rules to allow entrepreneurs to benefit from a second chance through a discharge of debt; and targeted measures allowing Member States to increase the efficiency of insolvency, restructuring and discharge procedures. The initiative is a key deliverable under the capital markets union action plan. It will also contribute substantially to addressing the high levels of non-performing loans in banks' balance sheets. The draft report was presented to the Parliament’s Committee on Legal Affairs (JURI) in September 2017. In May 2018 the Council reached agreement on part of the proposal.

The Provision of Critical Functions at Global, National and Regional Level - Is there a need for further legal/regulatory clarification if liquidation is the default option for failing banks?

30-11-2017

This paper defines critical banking functions and considers whether there is a need for further legal/regulatory clarification if liquidation is the default option for failing banks. We rely on EU law and soft law principles (FSB) bearing in mind that ‘liquidation’ is at times a loosely defined concept. Despite efforts to agree upon a set of qualitative and quantitative criteria to assess the critical nature, or lack thereof, of relevant functions we argue that simplification is needed. Given the ...

This paper defines critical banking functions and considers whether there is a need for further legal/regulatory clarification if liquidation is the default option for failing banks. We rely on EU law and soft law principles (FSB) bearing in mind that ‘liquidation’ is at times a loosely defined concept. Despite efforts to agree upon a set of qualitative and quantitative criteria to assess the critical nature, or lack thereof, of relevant functions we argue that simplification is needed. Given the discretionary element in the determination of public interest and critical functions and the existence of different legal sources with different purposes, we recommend a consistent application of the resolution rules to build up credibility in the Banking Union project, considering in particular the differential treatment by the competent resolution authorities in recent Spanish and Italian liquidation and resolution cases.

Vanjski autor

Rosa M. Lastra, Rodrigo Olivares-Caminal, Costanza A. Russo

The provision of critical functions at global, national or regional level

30-11-2017

The introduction of a bank resolution framework for EU banks has created the need for clear legal definitions of the main elements in resolution. This paper assesses one of these elements, namely “critical functions”, which encompasses the activities of a bank that are of significant importance for the real economy. The assessment of the regulation and implementation shows that there is room for sharpening the definition and equal application across all banks. It is questionable, however, whether ...

The introduction of a bank resolution framework for EU banks has created the need for clear legal definitions of the main elements in resolution. This paper assesses one of these elements, namely “critical functions”, which encompasses the activities of a bank that are of significant importance for the real economy. The assessment of the regulation and implementation shows that there is room for sharpening the definition and equal application across all banks. It is questionable, however, whether regulatory intervention is necessary given the on-going work of authorities at different levels. In turn, legislative intervention will be required to align the objectives of the resolution framework and state aid. The latter currently leaves more room for public support measures, which are not necessarily in the public interest.

Vanjski autor

Willem Pieter de Groen

Resources for the funding of the research fund for coal and steel

15-09-2017

The ECSC Treaty, which was concluded for a period of 50 years from its entry into force, expired on 23 July 2002. Accordingly, in the run-up to its expiry, and in view of the benefits which the coal and steel sectors derived from the ECSC research and technological development programmes, the European Council, in the resolution on growth and employment which it adopted in Amsterdam on 16 and 17 June 1997, determined that revenues from reserves outstanding at the expiry of the Treaty should be used ...

The ECSC Treaty, which was concluded for a period of 50 years from its entry into force, expired on 23 July 2002. Accordingly, in the run-up to its expiry, and in view of the benefits which the coal and steel sectors derived from the ECSC research and technological development programmes, the European Council, in the resolution on growth and employment which it adopted in Amsterdam on 16 and 17 June 1997, determined that revenues from reserves outstanding at the expiry of the Treaty should be used for a research fund for sectors related to the coal and steel industry.

The orderly liquidation of Veneto Banca and Banca Popolare di Vicenza

25-07-2017

This briefing focusses on the failure of two Italian banks, Veneto Banca and Banca Popolare di Vicenza (hereunder “the Veneto banks”), and their subsequent liquidation through a special insolvency procedure under Italian law.

This briefing focusses on the failure of two Italian banks, Veneto Banca and Banca Popolare di Vicenza (hereunder “the Veneto banks”), and their subsequent liquidation through a special insolvency procedure under Italian law.

Preventive restructuring, second chance and efficient restructuring, insolvency and discharge procedures

24-05-2017

This Commission impact assessment is based on a wealth of information drawing from both research and consultation. Research quoted spans the last decade and encompasses international organisation, academic and think tank work. The consultation performed by the Commission has been essential to prioritising the issues to be further harmonised and in choosing the detailed sub-options. Among the strengths of the IA, there is a genuine attempt to comply as much as possible with the Commission Better Regulation ...

This Commission impact assessment is based on a wealth of information drawing from both research and consultation. Research quoted spans the last decade and encompasses international organisation, academic and think tank work. The consultation performed by the Commission has been essential to prioritising the issues to be further harmonised and in choosing the detailed sub-options. Among the strengths of the IA, there is a genuine attempt to comply as much as possible with the Commission Better Regulation Guidelines and transparency in providing information. This is particularly evident in the broad range of options presented and in the presentation of the territorial impacts of the initiative. In this regard, for instance, the IA provides a useful legal analysis of the most important issues for most Member States. Nevertheless, economic impacts appear to be analysed more in depth than social and employment outcomes. Among the additional weaknesses, the numerous objectives identified are not time-bound and may be difficult to measure. Finally, although the IA states that Member States should not incur significant monitoring costs, the requirements in the IA appear to be shorter and less detailed than the ones in the Commission proposal.

The Impact on SMEs of the Proposal of Preventive Restructuring, Second Chance and Improvement Measures

20-05-2017

This study was commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the JURI Committee. It looks at the effects the recent Commission proposal might have both on micro and small and medium-sized enterprise, thus reflecting the diversity of SMEs. It identifies and explains the issues at stake of concerned SMEs related to their capacity as both debtors and creditors.

This study was commissioned by the European Parliament's Policy Department for Citizens' Rights and Constitutional Affairs at the request of the JURI Committee. It looks at the effects the recent Commission proposal might have both on micro and small and medium-sized enterprise, thus reflecting the diversity of SMEs. It identifies and explains the issues at stake of concerned SMEs related to their capacity as both debtors and creditors.

A SECOND CHANCE FOR ENTREPRENEURS

20-03-2017

There are still several Member States where a business cannot be restructured before it is insolvent. Important discrepancies have remained as to the duration of the discharge period. Such differences in Member States' legal frameworks mean continuing legal uncertainty. The proposal aims to reduce barriers to cross-border investment related to differences between the Member States' restructuring and second chance frameworks, and to increase investment and job opportunities in the single market. ...

There are still several Member States where a business cannot be restructured before it is insolvent. Important discrepancies have remained as to the duration of the discharge period. Such differences in Member States' legal frameworks mean continuing legal uncertainty. The proposal aims to reduce barriers to cross-border investment related to differences between the Member States' restructuring and second chance frameworks, and to increase investment and job opportunities in the single market. Furthermore, unnecessary liquidations of viable companies should be decreased, value for creditors, owners and the economy should be maximised, and possibilities of cross-border restructurings be increased. Finally, the Directive is intended to improve the effectiveness of all restructuring, insolvency and second chance procedures with a view to reducing their length and costs.

Harmonising Insolvency Laws in the Euro Area: Rationale, Stock-Taking and Challenges. What role for the Eurogroup?

13-07-2016

There are four distinct areas where harmonising national insolvency frameworks can improve the functioning of the single market and the stability of the Euro area. Early restructuring of businesses, bank resolution, cross-border insolvency and NPL management rely on common features of local insolvency frameworks, which can affect their legal certainty and functioning. To promote a more entrepreneurial spirit, a pan-European framework for early restructuring of business could offer a true second chance ...

There are four distinct areas where harmonising national insolvency frameworks can improve the functioning of the single market and the stability of the Euro area. Early restructuring of businesses, bank resolution, cross-border insolvency and NPL management rely on common features of local insolvency frameworks, which can affect their legal certainty and functioning. To promote a more entrepreneurial spirit, a pan-European framework for early restructuring of business could offer a true second chance for entrepreneurs. To benefit from a capital markets union, insolvency frameworks would also need to remove sources of cost unpredictability in cross-border insolvency procedures, which are often hidden in national insolvency laws or not sufficiently dealt with in the current EU framework. This report makes a contribution to define areas for further action. Measures, moreover, to harmonise insolvency laws can produce positive impacts on the banking union, with the harmonisation of hierarchies of claims in particular for the functioning of the resolution mechanism. Finally, the diffusion of best practices on credit recovery procedures can help to improve the management of NPLs via fostering liquidity in secondary markets.

Vanjski autor

Diego Valiante

Insolvency Proceedings: Initial Appraisal of the Commission's Impact Assessment

15-05-2013

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment (IA) accompanying the proposal for a revised Regulation on insolvency proceedings, submitted on 12 December 2012. It does not attempt to deal with the substance of the proposal. It is drafted for informational and background purposes to assist the relevant parliamentary committee(s) and Members more widely in their work.

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment (IA) accompanying the proposal for a revised Regulation on insolvency proceedings, submitted on 12 December 2012. It does not attempt to deal with the substance of the proposal. It is drafted for informational and background purposes to assist the relevant parliamentary committee(s) and Members more widely in their work.

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