8 Amendments of Markus FERBER related to 2022/0408(COD)
Amendment 52 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Exceptionally, when the perfection of a legal act requires registration in a public register, e.g. the land register, the legal act may be deemed to be perfected before the registration takes place. Since the registration procedure can take up considerable time and is beyond the control of the parties, it is not appropriate or justified to refer to the point in time when the legal act is registered for the purpose of avoidance actions. For example, the transfer of ownership of a property can require that the transfer is entered in the land register. In this case, it is not appropriate to refer to the completion of the transfer of ownership, i.e. when the transfer of ownership is entered in the land register. Instead, the relevant point in time could be, for instance, the moment when the debtor’s counterparty applies for registration of the transfer of ownership in the land register.
Amendment 53 #
Proposal for a directive
Recital 8
Recital 8
(8) In the context of avoidance actions, a distinction should be made between legal acts where the claim of the counterparty was due and enforceable and has been satisfied in the owed manner (congruent coverages) and those where performance was not entirely in accordance with the creditor’s claim (incongruent coverage). Incongruent coverages include, in particular, premature payments, the satisfaction with unusual means of payments, the subsequent collateralisation of a so far unsecured claim which was not already agreed upon in the original debt agreement, granting an extraordinary termination right or other amendments not provided for in the underlying contract, the waiver of legal defences or objections or the acknowledgement of disputable debts. In the case of congruent coverages, the avoidance ground of preferences can only be invoked if the creditor of the legal act that can be declared void knew, or should have known, at the time of the transaction that the debtor was insolvent.
Amendment 68 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
Member States may adopt or maintain rules according to which exceptionally a legal act which in order to be perfected must be registered in a public register is deemed to be perfected before the registration takes place.
Amendment 72 #
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1 – point b
Article 6 – paragraph 2 – subparagraph 1 – point b
(b) that creditor knew, or should have known, that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted.
Amendment 76 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – point b
Article 8 – paragraph 1 – subparagraph 1 – point b
(b) the other party to the legal act knew or should have known of the debtor’s intent to cause a detriment to the general body of creditors.
Amendment 80 #
Proposal for a directive
Article 11 – paragraph 2 – subparagraph 1 – point b
Article 11 – paragraph 2 – subparagraph 1 – point b
(b) the successor knew or should have known the circumstances on which the avoidance action is based.
Amendment 92 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
Member States shall ensure that during the preparation phase, where the debtor is in a situation of likelihood of insolvency or is insolvent in accordance with national law, the debtor can benefit from a stay of individual enforcement actions in accordance with Articles 6 and 7 of Directive (EU) 2019/1023, where it facilitatesis required for the seamless and effective roll- out of the pre-pack proceedings. The monitor shall be heard prior to the decision on the stay of individual enforcement actions.
Amendment 140 #
Proposal for a directive
Article 48 – paragraph 2
Article 48 – paragraph 2
2. The assets of the insolvency estate shall include assets in the possessionroperty of the debtor at the time of the opening of simplified winding-up proceedings, assets acquired after the submission of the request for opening of such proceedings and assets recovered through avoidance actions or other actions.