54 Amendments of Isabel BENJUMEA BENJUMEA related to 2022/0408(COD)
Amendment 44 #
Proposal for a directive
Recital 2
Recital 2
(2) The wide differences in substantive insolvency laws acknowledged by Regulation (EU) 2015/848 of the European Parliament and of the Council32 create barriers to the internal market by reducing the attractiveness of cross-border investments, thus impacting the cross- border movement of capital within the Union and to and from third countries, undermining the guiding principles of the Capital markets union. __________________ 32 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 48 #
Proposal for a directive
Recital 3
Recital 3
(3) Insolvency proceedings ensure the orderly winding down or restructuring of companies or entrepreneurs in financial and economic distress. These proceedings are key in financial investments, as they determine the final recovery value of such investments. Diverging rules among Member States have contributed to increasing legal uncertainty and unpredictability about insolvency proceedings’ outcome, so raising barriers especially for cross-border investments in the internal market. Large divergences in recovery value and time required to complete insolvency proceedings across the Union have negative repercussions on cost predictability for creditors and investors in cross-border situations in the internal market, which acts as a disincentive to investment and makes it more difficult to attract foreign capital into EU territory.
Amendment 49 #
Proposal for a directive
Recital 4
Recital 4
(4) The integration of the internal market in the area of insolvency laws pursued by this Directive is a key tool for a more efficient functioning of the capital markets in the European Union, including greater access to corporate financing, diversification of portfolios and investment opportunities, which has a particularly negative impact on SMEs. Therefore, it is necessary to set out minimum requirements in targeted areas of national insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, especially on cross-border insolvency proceedings.
Amendment 55 #
Proposal for a directive
Recital 35
Recital 35
(35) National insolvency rules are not always fit to treat insolvent microenterprises and SMEs properly and in a proportionate manner. Taking into account the unique characteristics of microthese enterprises and their specific needs in financial distress, in particular the need for faster, simpler, and affordable procedures should be acknowledged, separate insolvency proceedings should be developed at national level in accordance with the provisions of this Directive. Although the provisions of this Directive concerning simplified winding-up proceedings only apply to microenterprises, it should be possible for Member States to extend their application also to small and medium-sized enterprises that are not micro applicable to small and medium-sized enterprises.
Amendment 56 #
Proposal for a directive
Recital 38
Recital 38
(38) In order to establish cost-effective and expeditious simplified winding-up proceedings for microenterprises and for SMEs, short deadlines should be introduced. Similarly, formalities for all procedural steps, including for the opening of the proceedings, the lodgement and the admission of claims, the establishment of the insolvency estate and the realisation of the assets should be minimised. A standard form should be used for submitting a request to open simplified winding-up proceedings and electronic means should be used for all communications between the competent authority, and where relevant, the insolvency practitioner, and the parties to the proceedings.
Amendment 58 #
Proposal for a directive
Recital 39
Recital 39
(39) All microenterprises and SMEs should be able to commence proceedings to address their financial difficulties and obtain a discharge. Access to simplified winding-up proceedings should not depend on the microenterprise’sir ability to cover the administrative costs of such proceedings. The laws of the Member States should introduce rules for covering the costs of administering simplified winding-up proceedings where assets and sources of revenue of the debtor are insufficient to cover those costs.
Amendment 60 #
Proposal for a directive
Recital 41
Recital 41
(41) A microenterprise or SME debtor should be able to benefit from a temporary stay of individual enforcement actions, in order to be able to preserve the value of the insolvency estate and ensure a fair and orderly conduct of the proceedings. Member States, however, may allow competent authorities to exclude certain claims from the scope of the stay, in well- defined circumstances.
Amendment 61 #
Proposal for a directive
Recital 42
Recital 42
(42) Disputed claims should be dealt with in a way that does not unnecessarily complicate the conduct of simplified winding-up proceedings for microenterprises and for SMEs. If disputed claims cannot be quickly dealt with, the ability to dispute a claim may be used to create unnecessary delays. In deciding on the treatment of a disputed claim, the competent authority should be empowered to allow the continuation of the simplified winding-up proceedings with respect to undisputed claims only.
Amendment 63 #
Proposal for a directive
Article 1 – paragraph 1 – point e
Article 1 – paragraph 1 – point e
(e) simplified winding-up proceedings for microenterprises and small and medium-sized undertakings;
Amendment 65 #
Proposal for a directive
Article 2 – paragraph 1 – point q a (new)
Article 2 – paragraph 1 – point q a (new)
(qa) ‘Small and medium-sized enterprises’ or ‘SMEs’ means an entity within the meaning of Annex I to Commission Regulation (EU) No 651/2014;
Amendment 70 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 – introductory part
Article 6 – paragraph 1 – subparagraph 1 – introductory part
Member States shall ensure that legal acts benefitting a creditor or a group of creditors by satisfaction, collateralisation or in any other way can be declared void if they were perfected, should the court deem it just and equitable to do so, or alternatively the court can require a sum paid in respect thereof, to the insolvency practitioner on such terms or conditions as the court thinks fit :
Amendment 73 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Member States shall ensure that legal acts of the debtor against no or a manifestly inadequate consideration can be declared voidand where the effect of such disposal was to perpetrate a fraud on the company, its creditors or members can be declared void by court order where it is deemed just and equitable to do so where they were perfected within a time period of one yearsix months prior to the submission of the request for the opening of insolvency proceedings or after the submission of such request.
Amendment 74 #
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Member States shall ensure that legal acts by which the debtor has intentionally caused a detriment to the general body of creditors can be declared void by court order where it is deemed just and equitable to do so where both of the following conditions are met:
Amendment 77 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
Member States shall ensure that the party which benefitted from the legal act that has been declared void ismay be obliged by court order where it is just and equitable to do so to compensate in full the insolvency estate concerned for the detriment caused to creditors by that legal act.
Amendment 78 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1 a (new)
Article 9 – paragraph 2 – subparagraph 1 a (new)
In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.
Amendment 83 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1
Article 22 – paragraph 1 – subparagraph 1
Member States shall provide that, upon request of the debtor, and where appropriate to do so, the court appoints a monitor.
Amendment 86 #
Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point a a (new)
Article 22 – paragraph 2 – subparagraph 1 – point a a (new)
(aa) may have recourse to an independent valuation where appropriate in order to satisfy requirements related to achieving market value;
Amendment 87 #
Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point b a (new)
Article 22 – paragraph 2 – subparagraph 1 – point b a (new)
(ba) consults with creditors on a regular basis as may be considered reasonable;
Amendment 90 #
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, whereprovided that it facilitates 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 94 #
Proposal for a directive
Article 24 – paragraph 1
Article 24 – paragraph 1
1. Member States shall ensure that the sale process carried out during the preparation phase is competitive, transparent, fair and, meets market standards, and aims to achieve fair value for the purchase.
Amendment 96 #
Proposal for a directive
Article 24 – paragraph 2
Article 24 – paragraph 2
2. Where the sale process only produces one binding offer, that offer shall be deepresumed to reflect the business market price, unless it can be demonstrated otherwise.
Amendment 97 #
Proposal for a directive
Article 24 – paragraph 3 a (new)
Article 24 – paragraph 3 a (new)
3a. Member States shall include the obtaining of the services of an independent valuation practitioner as a means of gauging a fair market price;
Amendment 105 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1 – point a
Article 32 – paragraph 1 – subparagraph 1 – point a
(a) they disclose in a timely manner to the monitor, the creditors, and to the court their relation to the debtor;
Amendment 106 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1 – point a a (new)
Article 32 – paragraph 1 – subparagraph 1 – point a a (new)
(aa) the purchase of the asset can be shown to be at fair value;
Amendment 109 #
Proposal for a directive
Article 36 – paragraph 1
Article 36 – paragraph 1
Member States shall ensure that, where a legal entity becomes insolvent, its directors are obliged to submit a request for the openingdirector becomes aware or has reasonable cause to believe that the legal entity is ofr insolvency proceedings with the court no later than 3 months after the directors became aware or can reasonably be expects likely to be insolvent, the director shall have regard to: (a) the interests of the creditors, (b) the need to take steps to avoid insolvency, and (c) the need to have been aware that the legal entity is insolventoid deliberate or grossly negligent conduct that threatens the viability of the business of the company.
Amendment 111 #
Proposal for a directive
Article 37 – paragraph 1
Article 37 – paragraph 1
1. Member States shall ensure that a failure to comply with the obligation laid down in Article 36 renders the insolvent legal entity’s directors are liable for damages incurred by creditors as a result of their failure to comply with the obligation laid down in Article 36.
Amendment 114 #
Proposal for a directive
Title VI
Title VI
Amendment 115 #
Proposal for a directive
Article 38 – title
Article 38 – title
Rules on winding-up of microenterprises and SMEs
Amendment 116 #
Proposal for a directive
Article 38 – paragraph 1
Article 38 – paragraph 1
1. Member States shall ensure that microenterprises and SMEs, when insolvent, have access to simplified winding-up proceedings that comply with the provisions laid down in this Title.
Amendment 117 #
Proposal for a directive
Article 38 – paragraph 2
Article 38 – paragraph 2
2. A microenterpriseThese entities shall be deemed insolvent for the purposes of simplified winding-up proceedings when it isthey are generally unable to pay itstheir debts as they mature. Member States shall set out the conditions under which a microenterprise or SME is deemed to be generally unable to pay its debts as they mature and ensure that these conditions are clear, simple and easily ascertainable by the microenterprise or SME concerned.
Amendment 118 #
Proposal for a directive
Article 39 – paragraph 1 – introductory part
Article 39 – paragraph 1 – introductory part
Member States shall ensure that infor simplified winding-up proceedings the need for an insolvency practitioner may only be appointedbe dispensed with if both of the following conditions are met:
Amendment 119 #
Proposal for a directive
Article 39 – paragraph 1 – point a
Article 39 – paragraph 1 – point a
(a) the debtor, and creditor ors a group of creditors requests such an appointmentee to do so;
Amendment 120 #
Proposal for a directive
Article 39 – paragraph 1 – point b
Article 39 – paragraph 1 – point b
(b) the costs of the intervention of the insolvency practitioner can be funded by the insolvency estate or by the party that requested the appointment.it remains possible for the debtor, a creditor, or group of creditors to request the appointment of an insolvency practitioner at a later stage;
Amendment 121 #
Proposal for a directive
Article 41 – paragraph 1
Article 41 – paragraph 1
1. Member States shall ensure that insolvent microenterprises and SMEs can submit a request for the opening of simplified winding-up proceedings to a competent authority.
Amendment 122 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. Member States shall ensure that any creditor of an insolvent microenterprise or SME can submit a request for the opening of simplified winding-up proceedings against the microenterpriseentity to a competent authority. The microenterprise or SME concerned shall be given the opportunity to respond to the request, by contesting or consenting to it.
Amendment 123 #
Proposal for a directive
Article 41 – paragraph 3
Article 41 – paragraph 3
3. Member States shall ensure that microenterprises and SMEs can submit a request for the opening of simplified winding-up proceedings using a standard form.
Amendment 124 #
Proposal for a directive
Article 41 – paragraph 4
Article 41 – paragraph 4
Amendment 125 #
Proposal for a directive
Article 41 – paragraph 4 – point a
Article 41 – paragraph 4 – point a
(a) if the microenterprise or SME is a legal person, the debtor’s name, registration number, registered office or, if different, postal address;
Amendment 126 #
Proposal for a directive
Article 41 – paragraph 4 – point b
Article 41 – paragraph 4 – point b
(b) if the microenterprise or SME is an entrepreneur, the debtor’s name, registration number, if any, and postal address or, where the address is protected, the debtor's place and date of birth;
Amendment 127 #
Proposal for a directive
Article 41 – paragraph 4 – point c
Article 41 – paragraph 4 – point c
(c) a list of the assets of the microenterprise or SME;
Amendment 128 #
Proposal for a directive
Article 41 – paragraph 4 – point d
Article 41 – paragraph 4 – point d
(d) name, address or other contact details of creditors of the microenterprise or SME, as known to the microenterpriseentity at the time of the submission of the request,
Amendment 129 #
Proposal for a directive
Article 41 – paragraph 4 – point e
Article 41 – paragraph 4 – point e
(e) the list of the claims against the microenterprise or SME and, for each claim, its amount specifying the principal and, where applicable, interest and the date on which it arose and the date on which it became due, if different;
Amendment 130 #
Proposal for a directive
Article 41 – paragraph 6
Article 41 – paragraph 6
6. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor, and the microenterprise expressed its consent to the opening of the proceedings, the microenterprise is required to submit the information listedstandard form referred to in paragraph 43 together with the response referred to in paragraph 2 of this Article, where available.
Amendment 131 #
Proposal for a directive
Article 41 – paragraph 6
Article 41 – paragraph 6
6. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor, and the microenterprise or SME expressed its consent to the opening of the proceedings, the microenterpriseentity is required to submit the information listed in paragraph 4 together with the response referred to in paragraph 2 of this Article, where available.
Amendment 132 #
Proposal for a directive
Article 41 – paragraph 7
Article 41 – paragraph 7
7. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor and the competent authority opens such proceedings despite the microenterprise contesting or not responding to the request the microenterprise is required to submit the information listedstandard form referred to in paragraph 43 of this Article no later than two weeks following the receipt of the notice of opening.
Amendment 133 #
Proposal for a directive
Article 41 – paragraph 7
Article 41 – paragraph 7
7. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor and the competent authority opens such proceedings despite the microenterprise or SME contesting or not responding to the request the microenterpriseentity is required to submit the information listed in paragraph 4 of this Article no later than two weeks following the receipt of the notice of opening.
Amendment 134 #
Proposal for a directive
Article 42 – paragraph 2 – point a
Article 42 – paragraph 2 – point a
(a) the debtor is not a microenterprise or SME;
Amendment 135 #
Proposal for a directive
Article 42 – paragraph 3
Article 42 – paragraph 3
3. Member States shall ensure that the microenterprise, SME or any creditor of the microenterpriseentity may challenge before a court the decision on the request for the opening of simplified winding-up proceedings. The challenge has no suspensive effect on the opening of simplified winding-up proceedings and shall be dealt with promptly by the court.
Amendment 136 #
Proposal for a directive
Article 43 – paragraph 4
Article 43 – paragraph 4
Amendment 139 #
Proposal for a directive
Article 48 – paragraph 2
Article 48 – paragraph 2
2. The assets of the insolvency estate shall include assets in the possessionownership 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.
Amendment 141 #
Proposal for a directive
Article 55 – paragraph 2
Article 55 – paragraph 2
2. Member States shall ensure that the decision on the closure of the simplified winding-up proceedings includes a specification of the time period leading to the discharge of the entrepreneur debtor or of those founders, owners or members of an unlimited liability microenterprise or SME debtor who are personally liable for the debts of the debtor.
Amendment 142 #
Proposal for a directive
Article 58 – paragraph 1
Article 58 – paragraph 1
1. Member States shall ensure that a creditors’ committee is established only if the general meeting of creditors so decides and in accordance with the national law in each Member State.
Amendment 144 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
3. Member States shallmay ensure that the appointed members of the creditors’ committee fairly reflect the different interests of creditors or groups thereof.
Amendment 149 #
Proposal for a directive
Article 61 – paragraph 1
Article 61 – paragraph 1
Member States shall ensure that the number of members composing the creditors’ committee is at least 32 and does not exceed 710, and that the company may appoint representatives to the committee.