63 Amendments of Kosma ZŁOTOWSKI related to 2016/0359(COD)
Amendment 110 #
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 to also apply the discharge provisions to consumersMember States should be able to also apply the discharge provisions to consumers and establish single procedures for both professional and personal debts of the same person.
Amendment 111 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) In order to achieve greater clarity, the Member States and the Commission should conduct a study for the identification of key indicators of personal over indebtedness. In light of the results of this study, the Member States and the Commission should adopt measures establishing a system of early warning tools for the over indebtedness of natural persons.
Amendment 115 #
Proposal for a directive
Recital 16
Recital 16
(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. PossibleTherefore a system of early warning mechanisms should include accounting and monitoring duties for the debtor or the debbe established with indicator'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 developmentsuch as repeated delays with ordinary payments, and should be followed and monitored by, for example, tax and social security authorities, banks or energy providers.
Amendment 117 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) Member States should support the establishment of financial counselling services that, based on the principle of non-profit and financial product neutrality and in cooperation with banks and other relevant stakeholders, would provide financial advice to debtors or indebted entrepreneurs and help them overcome financial problems at a very early stage.
Amendment 128 #
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 minimumIf affected by a restructuring plan, 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 129 #
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 class.
Amendment 151 #
Proposal for a directive
Article 1 – paragraph 1 – point c
Article 1 – paragraph 1 – point c
(c) measures to increase the efficiency of the procedures referred to in point (a) and (b) as well as of insolvency procedures.
Amendment 153 #
Proposal for a directive
Article 1 – paragraph 2 – point g
Article 1 – paragraph 2 – point g
Amendment 156 #
Amendment 159 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
Amendment 162 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) 'stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor against a debtoror a group of creditors against a debtor or a group of debtors, ordered by a judicial or administrative authority;
Amendment 165 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) 'executory contracts' means contracts, excluding financial facilities such as undrawn credit facilities, revolving credit lines and offers for financing, 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;
Amendment 167 #
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; 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 170 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
(9) 'best interest of creditors test' means that no dissenting creditor would be worse off under the restructuring plan than they would be in the event of liquidation, whether piecemeal or sale asor, in cases where a continuation of the debtor as a going concern is likely, a sale on the basis of a going concern value;
Amendment 171 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 a (new)
Article 2 – paragraph 1 – point 9 a (new)
(9a) ‘Alternative value’ means, for secured creditors, the expected proceeds from a hypothetic enforcement of the collateral at the earliest point in time where the legal conditions for an enforcement are fulfilled;
Amendment 173 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) 'absolute priority rule' means that: 1. a dissenting class of secured creditors must receive under the plan the value of the collateral, valued on the basis of the enterprise as a going concern; and 2. any other dissenting class of creditors must be satisfied in full before a more junior class may receive any distribution or keep any interest under the restructuring plan;. Member States may impose other requirements with respect to preferential claims.
Amendment 177 #
Proposal for a directive
Article 2 – paragraph 1 – point 13
Article 2 – paragraph 1 – point 13
Amendment 186 #
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. Member states shall also include banks and non- banking companies in the early warning system scheme, which should provide clear information about the possibilities according to this directive and also possibilities of the financial counselling to the debtor or indebted entrepreneur when they recognize the first signs of their deteriorating financial development. Member states shall also ensure that banks and non-banking companies regularly, and at least once a year, inform the debtor about the exact state of his debts, including all charges and interests.
Amendment 192 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 198 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that, where there is likelihooda preponderance of probability 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. Member States shall ensure that the viability of the debtor is proven.
Amendment 201 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Preventive restructuring frameworks may consist of one or more procedures or measures. These are without prejudice to other existing procedures based on a creditors’ contractual agreement that may exist in the Member States.
Amendment 202 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
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. As soon as the debtor lodges an application for the intervention of a judicial authority, the proceedings should be treated as court proceedings.
Amendment 208 #
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 ofonly by debtors.
Amendment 210 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
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, without prejudice to specific legislation, such as Directive 2002/47/EC of the European Parliament and of the Council on financial collateral arrangements.
Amendment 212 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case and shall be subject to Member States' legislation.
Amendment 226 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1a. Upon a fully justified application, the judicial authority shall investigate the issue of a stay order in case of extrajudicial proceedings.
Amendment 233 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four monththree months. However, in case of financial contracts and netting arrangements that period shall not exceed 48 hours.
Amendment 238 #
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. Member States shall set the particular conditions that the debtor would have to comply with in order to extend the stay or grant a new period of stay.
Amendment 240 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months. A stay exceeding three months shall require the consent of secured creditors who are affected by the plan.
Amendment 245 #
Proposal for a directive
Article 6 – paragraph 8 – point b a (new)
Article 6 – paragraph 8 – point b a (new)
(ba) at the request of a creditor if (i) its security interest or other interest in property is not adequately protected, or (ii) the property is not necessary for an effective restructuring.
Amendment 247 #
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, or if no relevant progress has been made in the negotiations of the restructuring plan due to the debtor’s uncooperative behaviour, 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 251 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Where the obligation of the debtor to file for insolvency under national law arises during the period of the stay of individual enforcement actionsongoing restructuring procedure, that obligation shall be suspended for the duration of the stayrestructuring.
Amendment 253 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. A general stayThe ongoing restructuring procedure covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors.
Amendment 256 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Without prejudice to specific legislation, such as Directive 2002/47/EC of the European Parliament and of the Council on financial collateral arrangements, Member States shall ensure that, during the stay period, unsecured 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 businesand essential contracts which are necessary for the continuation of the day- to-day operation of the business to the detriment of the debtor for debts that came into existence prior to the stay, provided that the debtor complies with its obligations under such contracts.
Amendment 259 #
Proposal for a directive
Article 7 – paragraph 5
Article 7 – paragraph 5
Amendment 269 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) a valuation of the present value of the debtor or the debtor's business as well as an expected liquidation valuation of the debtor or the debtor's business, all prepared by a judicial expert, and a reasoned statement on the causes and the extent of the financial difficulties of the debtor;
Amendment 276 #
Proposal for a directive
Article 8 – paragraph 1 – point g
Article 8 – paragraph 1 – point g
(g) an opinion or reasoned statement by the person responsible for proposing the restructuring plan, with that person being determined by each Member State, 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.
Amendment 288 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States shall ensurmay provide that affected parties are treated in separate classes which reflect the class formation criteria. Classes shallmay 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 unIf affected by a restructuring plan, secured claims shallmay be treated in a 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.
Amendment 292 #
Proposal for a directive
Article 9 – paragraph 4
Article 9 – paragraph 4
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%, or 80% in the case of secured creditors, in the amount of claims or interests in each class.
Amendment 295 #
6a. Member States where it is partially or totally impossible that credits of State entities are affected by restructuring plans shall ensure that those credits form a separate class, which shall be treated separately, and that those State entities do not have voting rights for the approval of the restructuring plan.
Amendment 310 #
Proposal for a directive
Article 11 – paragraph 1 – point b
Article 11 – paragraph 1 – point b
(b) has been approved by at least onthose classes of the affected creditors other than an equity-holder class and any orepresenting the majority in amount of ther classims, which, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied;.
Amendment 316 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A liquidn alternationve 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.
Amendment 317 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
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 followingwhere a restructuring plan is challenged in the rest of cases:.
Amendment 319 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 320 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
Amendment 323 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2a. Member States may exclude secured creditors from the effect of a restructuring plan.
Amendment 324 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Member States shall ensure that a decision on the confirmation of a restructuring plan taken by a judicial authority may be challenged or appealed before the same or a higher judicial authority and that a decision on the confirmation of a restructuring plan taken by an administrative authority may be appealed before a judicial authority.
Amendment 325 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. AChallenges and appeals shall be resolved in an expedited manner.
Amendment 326 #
Proposal for a directive
Article 15 – paragraph 4 – point b
Article 15 – paragraph 4 – point b
Amendment 328 #
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 protectedaim to adequately encourage and protect new financing and interim financing. 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 faith.
Amendment 332 #
Proposal for a directive
Article 18
Article 18
Amendment 345 #
Proposal for a directive
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
1. The period of time after which over-indebted entrepreneurs may be fully discharged from their debts shall be no longer thanat least three years starting from:
Amendment 346 #
Proposal for a directive
Article 20 – paragraph 1 – point a
Article 20 – paragraph 1 – point a
(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, as described in paragraph 2 of Article 19 of this Directive; or
Amendment 347 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
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.
Amendment 348 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
Member States shall ensure that, where an over-indebted entrepreneur obtains a discharge of debts in accordance with this Directive, any disqualifications from taking up or pursuing a trade, business, craft or profession which is connected with the entrepreneur's over-indebtedness shall cease to have effect at the latest at the end of the discharge period, without the need to re-apply to a judicial or administrative authority.
Amendment 351 #
Proposal for a directive
Article 22 – paragraph 1 – point d a (new)
Article 22 – paragraph 1 – point d a (new)
(da) Member States provide that access to discharge procedures is granted not more than twice and that no discharge may be granted to the entrepreneur for a period of five years following his last debt discharge.
Amendment 354 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
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 coordinateare demonstrably faster and fmor the purposes of obtaining a discharge in accordance with this Directive efficient than a single procedure.
Amendment 361 #
Proposal for a directive
Article 26 – paragraph 1
Article 26 – paragraph 1
1. Member States shall ensure that the process for the appointment, removal and resignation of practitioners in the field of restructuring, and insolvency and second chance is clear, predictable and fair and fulfils, in particular, the requirements set out in paragraphs 2, 3 and 4.
Amendment 362 #
Proposal for a directive
Article 26 – paragraph 3
Article 26 – paragraph 3
3. Where practitioners in the field of restructuring, and 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, and 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.
Amendment 363 #
Proposal for a directive
Article 27
Article 27
Amendment 367 #
Proposal for a directive
Article 28 – paragraph 1 a (new)
Article 28 – paragraph 1 a (new)
1a. Any shift of the debtor’s centre of main interest as defined in Regulation EU 2015/848 of the European Parliament and the Council on insolvency proceedings (recast) shall not be permissible during restructuring proceedings.
Amendment 368 #
Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1
Article 29 – paragraph 1 – subparagraph 1
Amendment 377 #
Proposal for a directive
Article 31 – paragraph 1 – introductory part
Article 31 – paragraph 1 – introductory part
1. This Directive shall be without prejudice to the following acts, which shall prevail over this Directive: