Activities of Dominique MARTIN related to 2016/0359(COD)
Shadow opinions (1)
OPINION 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
Amendments (77)
Amendment 19 #
Proposal for a directive
Recital 1
Recital 1
(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 chanceith due regard for the rules laid down by the Member States. 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; and to preserve as many jobs as possible in the undertakings concerned and in the supplier businesses to which they are in debt, but also 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 27 #
Proposal for a directive
Recital 2
Recital 2
(2) Restructuring should enable enterprises in financial difficulties for which they are not responsible 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.
Amendment 33 #
Proposal for a directive
Recital 3
Recital 3
(3) There are differences between the Member States as regards the range of the procedures available to debtoentrepreneurs 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. (This amendment, replacing the word ‘debtor’ with the word ‘entrepreneur’, applies throughout the text; adopting it will necessitate corresponding changes throughout.)
Amendment 35 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) Early recourse to preventive restructuring should not have the effect of whittling down workers’ rights, particularly with regard to their pay and working conditions, but also with regard to their rights to representation and, more generally, to conduct a normal relationship between social partners, in particular as regards information and consultation.
Amendment 40 #
Proposal for a directive
Recital 3 b (new)
Recital 3 b (new)
(3b) 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 41 #
Proposal for a directive
Recital 4
Recital 4
(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.
Amendment 47 #
Proposal for a directive
Recital 6
Recital 6
(6) All these differences translate into additional costs for investors when assessingMany investors mention uncertainty about insolvency rules or 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 countrylengthy 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. Fortunately, in some Member States, to protect their production and employees, these differences translate into additional costs to investors when they assess the risks associated with entrepreneurs in financial difficulties. It is true that costs are incurred by undertakings in the course of restructuring which have establishments, creditors or assets in other Member States; the most obvious example is the restructuring of international groups of undertakings.
Amendment 50 #
Proposal for a directive
Recital 7
Recital 7
(7) Those differences lead to unevendamage conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation infor honest entrepreneurs because certain dishonest entrepreneurs, some of them 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 particularrom other countries, abuse insolvency rules or commit fraud against them. It is therefore important that the directive should treat honest entrepreneurs as a separate category in order to facilitate a second chance for them.
Amendment 53 #
Proposal for a directive
Recital 8
Recital 8
Amendment 57 #
Proposal for a directive
Recital 9
Recital 9
(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 to the detriment of honest entrepreneurs – with an ever stronger digital dimension means that very few financial 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.
Amendment 58 #
Proposal for a directive
Recital 10
Recital 10
(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 finvestoanciers 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).
Amendment 60 #
Proposal for a directive
Recital 11
Recital 11
(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 Unionsafeguard employment to the maximum.
Amendment 64 #
Proposal for a directive
Recital 12
Recital 12
Amendment 77 #
Proposal for a directive
Recital 17
Recital 17
(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 honest debtor and ensuring the viability of the business.
Amendment 79 #
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. 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 partythe entrepreneur, of workers or of a creditor supplier who meets the definition of ‘small or medium- sized enterprise’. 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 86 #
Proposal for a directive
Recital 20
Recital 20
(20) To ensure that theprevent the domino effect caused by certain bankruptcies of enterprises with 50 employees or fewer, it is important to ensure that priority creditors do not suffer detriment, t. The stay should not be granted or, if granted, should not be prolonged or should be lifted when priority creditors are unfairly prejudiced by the stay of enforcement. In establishing whether there is unfair prejudice to priority 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 priority 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 89 #
Proposal for a directive
Recital 21
Recital 21
(21) Creditors to which the stay applies should also not be allowed to withhold performance, terminate, accelerate or in any other way modify executory contracts during the stay period, provided the debtor continues to comply with its existing obligations under such contracts. Early termination would endanger the ability of the business to continue operating during restructuring negotiations, especially when it concerns contracts for essential supplies such as gas, electricity, water, telecoms and card payment services. However, in order to protect the legitimate interests of creditors and to ensure the least disruption to the operation of creditors in the supply chain, the stay should only apply in respect of the claims which arose before the stay was granted. In order to achieve a successful restructuring, the debtor should pay in the ordinary course of business claims of and owed to priority creditors unaffected by the stay and the claims of creditors affected by the stay that arise after the stay is granted.
Amendment 94 #
Proposal for a directive
Recital 23
Recital 23
(23) Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority, for example by providing information demonstrating the probability of misconduct on the part of a dishonest entrepreneur. 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.
Amendment 95 #
Proposal for a directive
Recital 24
Recital 24
(24) Any creditorparties 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.
Amendment 96 #
Proposal for a directive
Recital 25
Recital 25
(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. Workers should, at all events, be given preferential treatment. In order to prevent chain bankruptcies, suppliers/clients with fewer than 50 employees should be treated as a priority class of creditors when activities essential to their survival are at stake. 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 98 #
Proposal for a directive
Recital 26
Recital 26
(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 clasTo 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 degree of importance of the claim to the survival of the creditor’s business and then on the size of that claim or stake as a percentage of all the other claims and stakes which the creditor holds.
Amendment 101 #
Proposal for a directive
Recital 27
Recital 27
Amendment 103 #
Proposal for a directive
Recital 28
Recital 28
(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 creditothe entrepreneur or the workers and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism)least one affected class of priority creditors. 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 107 #
Proposal for a directive
Recital 30
Recital 30
(30) Confirmation of a restructuring plan by a judicial or administrative authority is necessary to ensure that the reduction of the rights of creditors or interests of equity holders is proportionate to the benefits of the restructuring and that they have access to an effective remedy. The judicial or administrative authority should therefore reject a plan where it has been established that the attempted restructuring reduces the rights of dissenting creditors or equity holders below what they could reasonably expect to receive in the event of the liquidation of the debtor's business, either by piecemeal liquidation or by a sale as a going concern, depending on the particular circumstances of each debtor. However, where the plan is confirmed through a cross-class cram-down mechanism, the absolute priority rule should be applied by reference to the enterprise valuation which, as opposed to the going-concern liquidation valuation of the enterprise, looks at the value of the debtor's business in the longer term. The enterprise valuation is, as a rule, higher than the going-concern liquidation value because it captures the fact that the business continues its activity and contracts with the minimum disruption, has the confidence of financial creditors, shareholders and clients, continues to generate revenues and limits the impact on workers.
Amendment 109 #
Proposal for a directive
Recital 31
Recital 31
(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, unless these transactions have been offset by the extremely high return granted contractually by the entrepreneur or were carried out fraudulently or dishonestly. That is the case if the period covered by the financing solution was unreasonably short. 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, without, however, giving them priority over the claims of workers or creditors who are suppliers/clients with fewer than 50 employees.
Amendment 110 #
Proposal for a directive
Recital 32
Recital 32
(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.
Amendment 116 #
Proposal for a directive
Recital 35
Recital 35
(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 toshall place workers in a class separate from other classes of creditors.
Amendment 119 #
Proposal for a directive
Recital 36
Recital 36
(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 creditorsthe entrepreneur 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. Member States may make provision for the recovery of excessive bonuses paid to directors during the period covered by the stay or restructuring plan. These sums may be distributed to the debtors.
Amendment 129 #
Proposal for a directive
Recital 41
Recital 41
(41) To increase their chances of success and further reduce the length of procedures and at the same time ensure a better participation of creditors in restructuring, insolvency and discharge procedures and to ensure similar conditions for creditors irrespective of where they are located in the Union, Member States should put in place distance means of communication in court procedures. Therefore, it should be possible that procedural steps such as the filing of claims by creditors, the notifications sent by the debtor or by practitioners in the field of restructuring, insolvency and second chance, voting on a restructuring plan or lodging appeals take place electronically. The cross-border recognition of such communications should comply with Regulation (EU) No 910/2014 of the European Parliament and of the Council73. __________________ 73 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).
Amendment 132 #
Proposal for a directive
Recital 47
Recital 47
Amendment 142 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(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;. Workers shall be a class of preferential creditors. In order to prevent chain bankruptcies, suppliers/clients with fewer than 50 employees shall be treated as a preferential class of creditors when activities essential to their survival are at stake. A creditor who is a dominant bank or dominant client whose deliberate actions have been shown to have given rise to the probability of insolvency shall be placed by the Member State in a separate, less preferential class.
Amendment 149 #
Proposal for a directive
Article 2 – paragraph 1 – subparagraph 15 – point a
Article 2 – paragraph 1 – subparagraph 15 – point a
(a) to assist the debtor, the workers or the creditors in drafting or negotiating a restructuring plan;
Amendment 152 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
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.
Amendment 156 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
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.
Amendment 158 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. Member States may limit the access provided for in paragraphs 1 and 2 to small and medium sized enterprises or to entrepreneursshall ensure that workers’ representatives are in a position to warn entrepreneurs about matters giving cause for concern regarding the undertaking and the urgent need for action in this regard.
Amendment 159 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Member States shall ensure that workers’ representatives are in a position to have recourse to an independent expert, funded by the undertaking or the State as they see fit, giving them access to relevant, up-to-date, clear, concise and user- friendly information regarding the situation of the undertaking. Member States are able limit the access provided for in paragraph 3a to enterprises with over 150 employees.
Amendment 165 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Preventive restructuring frameworks shall be available on the application by debtors, or by creditors with the agreement of debtors or at the request of management with the agreement of the entrepreneurs.
Amendment 168 #
Proposal for a directive
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4a. The businesses shall be required to inform and consult their employees before and during negotiations. Utmost attention should be paid to worker interests, especially during the various stages of early restructuring and, where insolvency proceedings are under way, to make explicit reference to Article 5(2) of Directive 2001/23/EC, with a view to protecting the rights of employees in this instance.
Amendment 169 #
Proposal for a directive
Article 4 – paragraph 4 b (new)
Article 4 – paragraph 4 b (new)
4b. Member States shall take the necessary measures to ensure that dishonest entrepreneurs guilty of deliberate insolvency are not able to benefit from the provisions of this Directive and keep a blacklist of dishonest entrepreneurs not entitled to do so. The Member States shall determine the justification for, and duration of, inclusion on the list.
Amendment 170 #
Proposal for a directive
Article 4 – paragraph 4 c (new)
Article 4 – paragraph 4 c (new)
4c. The Member States shall lay down presumption of honesty criteria in respect of entrepreneurs requesting it.
Amendment 171 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a Entrepreneurs seeking preventive restructuring framework arrangements must make immediately available to their interlocutors (workers, trade unions and creditors generally, as well as designated crisis settlement bodies) all their accounts (financial statements and annexes, banking and insurance documents, stock records, etc.) and agree to any form of verification of their activities.
Amendment 175 #
Proposal for a directive
Article 5 – paragraph 3 – point b a (new)
Article 5 – paragraph 3 – point b a (new)
(ba) where the restructuring plan cuts more than 30 % of the workforce, or more than 20 % where the business has 50 employees;
Amendment 178 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Member States shall ensure that honest 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.
Amendment 188 #
Proposal for a directive
Article 6 – paragraph 5 – point b
Article 6 – paragraph 5 – point b
(b) the continuation of the stay of individual enforcement actions does not unfairly prejudice the rights or interests of any affected parties. In order to avoid the domino effect of bankruptcies, particular attention shall be given to creditors with less than 50 employees.
Amendment 193 #
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, thereby compromising their activity, 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 199 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
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 or of its suppliers/customers with less than 50 employees, so as to avoid the domino effect of bankruptcies.
Amendment 200 #
Proposal for a directive
Article 8 – paragraph 1 – point a a (new)
Article 8 – paragraph 1 – point a a (new)
(aa) a statement setting out the presumption of honesty assessment criteria determined by the Member States for the purpose of implementing preventive restructuring and second chance framework provisions.
Amendment 203 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii a (new)
Article 8 – paragraph 1 – point f – point iii a (new)
(iiia) the impact on employment in the businesses concerned, including suppliers and subcontractors. Member States shall ensure that in businesses with more than 150 employees, workers’ representatives are allowed to appoint an independent expert, to be financed, according to their preference, by the business or by the State, for the purpose of giving prior consideration to the causes and the implications for the viability of the business, employment, and pay, and that they can make proposals as part of the information and consultation process (Directive 2002/14/EC).
Amendment 207 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii b (new)
Article 8 – paragraph 1 – point f – point iii b (new)
(iiib) past and future commitments linked to bonuses and pensions, and the impact of the plan on those commitments.
Amendment 209 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii c (new)
Article 8 – paragraph 1 – point f – point iii c (new)
(iiic) a summary of the situation broken down by country, where restructuring operations are on a cross-border scale.
Amendment 221 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
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). Before the vote, creditors shall be informed without undue delay of the causes and the consequences that the plan will entail for each of them.
Amendment 224 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1a. Member States shall ensure that business managers inform and consult their employees before and during negotiations. In particular, at every stage of early restructuring, worker interests should receive the utmost attention, and, for the purposes of insolvency proceedings, explicit reference should be made to Article 5(2) of Directive 2001/23/EC.
Amendment 225 #
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. Member States shall provide that salaries are treated in a separate class of their own. Member States may also provide that workerpensions are treated in a separate class of their own.
Amendment 236 #
Proposal for a directive
Article 9 – paragraph 5
Article 9 – paragraph 5
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 239 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) restructuring plans which adversely affect the interests of dissenting affected partiesworkers and supplier creditors whose activities are directly threatened by a restructuring plan;
Amendment 242 #
Proposal for a directive
Article 10 – paragraph 2 – point a a (new)
Article 10 – paragraph 2 – point a a (new)
(aa) the procedure and time-frames for informing and notifying interested parties are clearly stated;
Amendment 243 #
Proposal for a directive
Article 10 – paragraph 2 – point b
Article 10 – paragraph 2 – point b
(b) the restructuring plan complies with the best interest of creditors and employment test;
Amendment 244 #
Proposal for a directive
Article 10 – paragraph 2 – point c
Article 10 – paragraph 2 – point c
(c) any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors or employment.
Amendment 246 #
Proposal for a directive
Article 10 – paragraph 2 – point c a (new)
Article 10 – paragraph 2 – point c a (new)
(ca) any alternative plan submitted by the workers within a reasonable time that would enable jobs to be preserved to the greatest possible extent in Europe. Alternative plans of this kind may include a permanent or temporary change in the share ownership in the form of a public or private holding.
Amendment 249 #
Proposal for a directive
Article 10 – paragraph 2 – point c b (new)
Article 10 – paragraph 2 – point c b (new)
(cb) the competent authority must consider any alternative plan proposed by a representative group of employees before confirming any restructuring plan entailing job losses of more than 30% or more than 20% if the business concerned has more than 50 employees.
Amendment 250 #
Proposal for a directive
Article 10 – paragraph 2 – point c c (new)
Article 10 – paragraph 2 – point c c (new)
(cc) the competent authority must consider any plan involving the temporary acquisition of an owning interest by a public authority with a view to offering an alternative to any restructuring plan entailing the loss of a significant number of jobs in the Member State concerned.
Amendment 252 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
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 complete request for confirmation has been filed and in any case no later than 30 days after the request is filed.
Amendment 256 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
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 or prevent a domino effect.
Amendment 260 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Creditors who are not involved in the adoption of a restructuring plan shall not be affected by the planThe Member States shall ensure that a national risk mutualisation fund is established to guarantee employees payment of their salaries.
Amendment 261 #
Proposal for a directive
Article 15 – paragraph 4 – point b
Article 15 – paragraph 4 – point b
(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. This compensation must take account of the primary need to safeguard jobs and prevent the domino effect of bankruptcies.
Amendment 262 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall ensure that new financing and interim financing are adequately encouraged and protected. In particular, new and interim financing shall not be declared void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures, unless such transactions have been carried out fraudulently or in bad faithoffset by the extremely high return granted contractually by the entrepreneur or were carried out fraudulently or in bad faith. That is the case if the period covered by the financing solution was unreasonably short.
Amendment 264 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
Amendment 266 #
Proposal for a directive
Article 17 – paragraph 2 – point e
Article 17 – paragraph 2 – point e
(e) transactions such as new credit, financial contributions or partial asset transfers outside the ordinary course of business made in contemplation of and closely connected with negotiations for a restructuring plan, unless such transactions have been offset by the extremely high return granted contractually by the entrepreneur or were carried out fraudulently or in bad faith. That is the case if the period covered by the financing solution was unreasonably short.
Amendment 267 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
Amendment 269 #
Proposal for a directive
Article 18 – paragraph 1 – point b
Article 18 – paragraph 1 – point b
(b) to have due regard to the interests of creditors and other stakeholders; directors should be prohibited from reducing the assets of the business to below the level necessary to meet the commitments they have towards their employees.
Amendment 271 #
Proposal for a directive
Article 18 – paragraph 1 – point d a (new)
Article 18 – paragraph 1 – point d a (new)
(da) to avoid the payment of irresponsible bonuses to directors.
Amendment 278 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. Member States in which a full discharge of debt is conditional on a partial repayment of debt by the entrepreneur shall ensure that the related repayment obligation is based on the individual situation of the entrepreneur and is notably proportionate to his or her disposable income over the discharge period. The criteria of honest professional behaviour by which the reliability of entrepreneurs is judged must be verified and such behaviour must be attested by appropriate documents issued by the authorities. Such documents shall serve to justify recourse to second chance.
Amendment 285 #
Proposal for a directive
Article 22 – paragraph 1 – point b
Article 22 – paragraph 1 – point b
(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, particularly where he misuses the insolvency procedure in order to deprive workers of their rights;
Amendment 286 #
Proposal for a directive
Article 22 – paragraph 4
Article 22 – paragraph 4
4. By way of derogation from Article 21, Member States mayshall 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.
Amendment 291 #
Proposal for a directive
Article 26 – paragraph 4 a (new)
Article 26 – paragraph 4 a (new)
4a. When the restructuring procedures have been completed, the entrepreneurs and creditors shall be consulted in order to evaluate the performance of the practitioner in terms of saving jobs both in the undertaking and in the creditors’ undertakings.
Amendment 292 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Member States shall put in place appropriate oversight and regulatory structures to ensure that the work of practitioners in the field of restructuring, insolvency and second chance is appropriately supervised. This oversight and regulation shall also include an appropriate and effective regime for identifying and sanctioning practitioners who have failed in their duties. This oversight and regulation shall also include an appropriate and effective regime for identifying and sanctioning vulture funds which have repeatedly taken action to the detriment of employment without genuinely participating in the objectives of the preventive restructuring.
Amendment 294 #
Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g a (new)
Article 29 – paragraph 1 – subparagraph 1 – point g a (new)
(ga) the number of jobs at risk at the opening of a procedure and the number of jobs maintained at the end of the procedure. The number of indirect jobs with creditors/suppliers shall also be counted.