33 Amendments of Markus FERBER related to 2016/0359(COD)
Amendment 83 #
Proposal for a directive
Recital 15
Recital 15
Amendment 87 #
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 taking into consideration the lack of financial resources of SMEs 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 security authorities could be incentivised or obliged under national law to flag a negative development.
Amendment 89 #
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, tThe 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 debtor and ensuring the viability of the business.
Amendment 92 #
Proposal for a directive
Recital 18
Recital 18
(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should includbe 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 affectedand timely. 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 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 95 #
Proposal for a directive
Recital 19
Recital 19
(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which 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 fourthree 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 twelvesix months.
Amendment 121 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
Amendment 127 #
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 contracting partners of executing contracts and, where applicable under national law, equity holders whose claims or interests are affected under a restructuring plan;
Amendment 149 #
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 smFor SME debtors, Member States shall provide access to professionall and medium sized enterprises or to entrepreneursdvice on a low cost basis.
Amendment 156 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Member States may predicate the access to the restructuring framework upon evidence of anticipated solvency for at least six months from the commencement of proceedings.
Amendment 158 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Member States shall put in place provisions limitingensure the involvement of a judicial or administrative authority to where it is necessary and proportionate so that rights of any affected parties are safeguarded.
Amendment 161 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. TMember States may require the appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case, if necessary and appropriate to safeguard the rights of affected parties.
Amendment 165 #
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 in the field of restructuring at least in the following cases:
Amendment 170 #
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 such a stay is necessary to support the negotiations of a restructuring plan and if the debtor can demonstrate the ability to restructure, in order to justify that such a stay is necessary to allow the negotiation of a restructuring plan.
Amendment 173 #
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 ofthe creditors, including secured and preferential creditors, involved in the negotiation of the restructuring plan. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.
Amendment 179 #
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 fourthree months.
Amendment 182 #
Proposal for a directive
Article 6 – paragraph 5 – introductory part
Article 6 – paragraph 5 – introductory part
5. Member States may nevertheless enable judicial or administrative authorities to extend the initial duration of the stay of individual enforcement actions or to grant a new stay of individual enforcement actions, upon request of the debtor or of creditors involved in the negotiation of the restructuring plan. Such extension or new period of stay of individual enforcement actions shall be granted only if there is evidence that:
Amendment 183 #
Proposal for a directive
Article 6 – paragraph 5 – point -a (new)
Article 6 – paragraph 5 – point -a (new)
-a a majority of creditors involved in the negotiation of a restructuring plan favours the prolonging of a stay;
Amendment 186 #
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 twelvesix months.
Amendment 188 #
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. An unfair prejudice exists at least where if a creditor or class of creditor is facing considerable economic difficulties.
Amendment 191 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. A general stay covering all creditors involved in the negotiation of the restructuring plan shall prevent the opening of insolvency procedures at the request of one or more creditors.
Amendment 192 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States mayshall ensure that a derogateion from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period will be put in place. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions, upon the condition of not financially troubling the creditors severely.
Amendment 197 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Member States shall ensumay require that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify essential 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, upon the condition of not financially troubling the creditors severely.
Amendment 199 #
Proposal for a directive
Article 7 – paragraph 5
Article 7 – paragraph 5
5. Member States shall ensumay require that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.
Amendment 211 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Member States shall provide access to professional advice for micro and small enterprises on a low cost basis and make a model for restructuring plans available online. That model shall contain at least the information required under national law and shall provide general but practical information on how the model is to be used. The model shall be made available in the official language or languages of the Member State. Member States shall endeavour to make the model available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be adapted to the needs and circumstances of every case.
Amendment 223 #
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 may also provide that workers are, and micro and small enterprises, are each treated in a separate class of their own.
Amendment 230 #
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 highlower than 75% in the amount of claims or interests in each class.
Amendment 234 #
Proposal for a directive
Article 10 – paragraph 1 – introductory part
Article 10 – paragraph 1 – introductory part
1. Member States shall ensure that at least the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative authority:
Amendment 241 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall ensure that judicial or administrative authorities mayshall refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.
Amendment 245 #
Proposal for a directive
Article 11 – paragraph 1 – point b
Article 11 – paragraph 1 – point b
(b) has been approved by at least one class of affected creditors, representing at least a majority in the amount of claims, and other than an equity-holder class and any other class 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 246 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Member States may vary the minimum number of affected classes required to approve the plan laid down in point (b) of paragraph (1), unless this number falls below the majority of classes and disregards the class of micro and small enterprises.
Amendment 247 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shallmay 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.
Amendment 261 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. Member States mayshall require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.
Amendment 269 #
Proposal for a directive
Article 22 – paragraph 1 – point b
Article 22 – paragraph 1 – point b
(b) the over-indebted entrepreneur does not substantially adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors;, taking into consideration the difficulties in terms of adherence to insolvency and restructuring procedures, which micro and small enterprises encounter.