Activities of Enrique CALVET CHAMBON related to 2016/0359(COD)
Plenary speeches (1)
Increasing the efficiency of restructuring, insolvency and discharge procedures (debate) ES
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 (17)
Amendment 25 #
Proposal for a directive
Recital 1
Recital 1
(1) The objective of this Directive is to contribute to the proper functioning of the internal market by removeing obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.
Amendment 43 #
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,pursue entrepreneurial activity.
Amendment 49 #
Proposal for a directive
Recital 6
Recital 6
(6) All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. This uncertainty therefore acts as a disincentive which obstructs the freedom of establishment of undertakings and harms the proper functioning of the internal market.
Amendment 52 #
Proposal for a directive
Recital 7
Recital 7
(7) Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic operations and therefore for the preservation and creation of jobs.
Amendment 63 #
Proposal for a directive
Recital 2
Recital 2
(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans (NPL), which absorb bank capital, reduce the efficiency of capital allocation, weigh heavily on the balance sheets of certain credit institutions and represent a challenge to the European banking system stability and hamper the development of the Banking Union. Deteriorating loan portfolios and increasing losses force banks to curtail their credit supply further increasing pressures on the non-financial sector to deleverage. Still, increased prudential oversight to incentivise banks to write off or restructure impaired loans should be considered. A robust supervision, including to ensure prudent provisioning and strong capital buffers, can enhance banks’ incentives to recognise losses. Access to timely financial information on distressed borrowers, collateral valuations, and recent NPL sales are fundamental for the development of an active market for NPL restructuring. Thus, collateral should be periodically valued by reliable and independent third parties and subject to enhanced supervisory scrutiny. Banks should obtain sound appraisals of the current fair value of the collateral from qualified professionals. Therefore, a comprehensive, co-ordinated effort is now crucial, notably through a legal framework for NPL to explore possible initiatives to facilitate the development of secondary markets for NPL should be necessary. 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 75 #
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. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social secursocial security, competition and audity authorities cwould be incentivised or obliged under national law to flag a negative developmenthave sufficient means under domestic law tax to draw attention to any dangerous development at the earliest possible stage.
Amendment 114 #
Proposal for a directive
Recital 34
Recital 34
(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period. __________________ 68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16. 69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16. 70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29. 71 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.2008, p. 36. 72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p. 28.
Amendment 125 #
Proposal for a directive
Recital 39
Recital 39
(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross- border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers with specialist magistrates in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.
Amendment 128 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) 'affected parties' means creditors or classes of creditors, including public creditors and, where applicable under national law, equity holders whose claims or interests are affected under a restructuring plan;
Amendment 128 #
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 bearing in mind the objective of restoring the viability of the company. Practitioners should be rescuers not liquidators and they should adhere to voluntarya 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.
Amendment 161 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Member States shall ensure that the tax, social security, competition and audit authorities are sufficient means under national law be able to flag any worrying developments as soon as possible;
Amendment 173 #
Proposal for a directive
Article 5 – paragraph 3 – introductory part
Article 5 – paragraph 3 – introductory part
3. Member States may requishall ensure the appointment of a practitioner at least in the field of restructuring in the following cases:
Amendment 220 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that any affected creditors including public ones 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).
Amendment 256 #
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 creditorsassess the possibility for dissenting creditors that suffer unjustifiable damage under the plan to be granted monetary compensation, payable by the debtor or by the creditors who voted in favour of the plan.
Amendment 289 #
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 development of, and adherence to, voluntary a 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, such as licensing and registration.
Amendment 295 #
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 job losses, transfer of part or whole of the business, part redundancy and impact of restructuring agreements on the employment and the level of public finance;
Amendment 296 #
Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g b (new)
Article 29 – paragraph 1 – subparagraph 1 – point g b (new)
(gb) an evaluation on the work carried by the practitioners and its results;