20 Amendments of Emil RADEV related to 2016/0359(COD)
Amendment 109 #
Proposal for a directive
Recital 15
Recital 15
(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 toare advised to begin at the earliest opportunity also to apply the discharge provisions to consumers.
Amendment 120 #
Proposal for a directive
Recital 18
Recital 18
(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. TMember States may provide for cases in which 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, ishould 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.
Amendment 121 #
Proposal for a directive
Recital 19
Recital 19
(19) A debtor should be able to requestemporary stay of individual enforcement actions should take effect twhen a judicial or administrative authority for a temporary stay of individual enforcement actions whichdecision to open restructuring proceedings is taken and this 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.
Amendment 125 #
Proposal for a directive
Recital 20
Recital 20
(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 enforcementevery creditor should have the right to apply for the stay of enforcement to be withdrawn or lifted if it unfairly prejudices that creditor. In establishing whether there is unfair prejudice to the 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 144 #
Proposal for a directive
Recital 40
Recital 40
(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. 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 157 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. Member States may, at the earliest opportunity, extend the application of the procedures referred to in point (b) of paragraph 1 to over -indebted natural persons who are not entrepreneurs.
Amendment 209 #
Proposal for a directive
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4а. Member States may provide for restructuring frameworks to be available also at the request of creditors with the agreement of the debtor.
Amendment 213 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. TMember States may provide for cases in which the appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case.
Amendment 217 #
Proposal for a directive
Article 5 – paragraph 3 – introductory part
Article 5 – paragraph 3 – introductory part
3. Member States mayshall require the appointment of a practitioner in the field of restructuring at least in the following cases:
Amendment 219 #
Proposal for a directive
Article 5 – paragraph 3 – point а a (new)
Article 5 – paragraph 3 – point а a (new)
(аа) where, with a decision by a judicial or administrative authority to open restructuring proceedings, individual enforcement actions are temporarily stayed in accordance with Article 6.
Amendment 225 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
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 that such a stay is necessary to support the negotiations of a restructuring plan.
Amendment 227 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
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.
Amendment 248 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
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 286 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
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. All the debtor’s creditors of a given class shall have equal rights in respect of the restructuring plan. Member States may also provide that workers are treated in a separate class of their own.
Amendment 322 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2а. The stay shall apply from the moment the restructuring plan is adopted until it is discontinued in respect of claims against the debtor held by creditors involved in the adoption of the plan.
Amendment 342 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. Member States shall ensure that bona fide over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive.
Amendment 357 #
Proposal for a directive
Article 25 – paragraph 1
Article 25 – paragraph 1
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 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 359 #
Proposal for a directive
Article 25 – paragraph 2
Article 25 – paragraph 2
2. Member States shall encourage, by any means which they consider appropriate, the avoidance and/or elimination of conflicts of interest and 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.
Amendment 364 #
Proposal for a directive
Article 27 – paragraph 1 a (new)
Article 27 – paragraph 1 a (new)
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 382 #
Proposal for a directive
Article 34 – paragraph 1 – subparagraph 2
Article 34 – paragraph 1 – subparagraph 2
They shall apply those provisions from [23 years from the date of entry into force of this Directive], with the exception of the provisions implementing Title IV which shall apply from [34 years from the date of entry into force of this Directive].