Activities of Frances FITZGERALD related to 2022/0408(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council harmonising certain aspects of insolvency law
Amendments (35)
Amendment 51 #
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. 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, as well as creating heightened risks and costs for investors, especially on cross-border insolvency proceedings.
Amendment 54 #
Proposal for a directive
Recital 25
Recital 25
(25) In order to guarantee that the business is sold at the best market value during the pre-pack proceedings, Member States should either ensure high standards of competitiveness, transparency and fairness of the sale process conducted in the preparation phase, as well as access to independent valuation where required, or provide that the court runs a brief public auction after the opening of the liquidation phase of the proceedings.
Amendment 59 #
Proposal for a directive
Recital 40
Recital 40
(40) In simplified winding-up proceedings, the appointment of an insolvency practitioner is usually unnecessary given the simple business operations carried out by the microenterprises that make their supervision by the competent authority possible and sufficient. However, the presence of an insolvency practitioner may also benefit the business as an independent actor capable of navigating the legal process. Therefore, the debtor should have the option of remaining in control of its assets and day-to-day operation of the business. At the same time, to ensure that simplified winding-up proceedings can be conducted effectively and efficiently, the debtor should, upon commencement of and throughout the proceedings, provide accurate, reliable and complete information relating to its financial position and business affairs.
Amendment 64 #
Proposal for a directive
Article 2 – paragraph 1 – point q
Article 2 – paragraph 1 – point q
(q) ‘party closely related to the debtor’ means the following persons, including legal persons, withprovided they have preferential access to non-public information on the affairs of the debtor.:
Amendment 66 #
Proposal for a directive
Article 2 – paragraph 2 – introductory part
Article 2 – paragraph 2 – introductory part
Where the debtor is a natural person, closely related parties shall include in particular:
Amendment 67 #
Proposal for a directive
Article 2 – paragraph 3 – introductory part
Article 2 – paragraph 3 – introductory part
Where the debtor is a legal entity, closely related parties shall include in particular:
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 79 #
Proposal for a directive
Article 11 – paragraph 2 – subparagraph 1 – point a
Article 11 – paragraph 2 – subparagraph 1 – point a
(a) the successor acquired the asset against no or a manifestly inadequate consideration, unless the acquisition was in good faith;
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 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 124 #
Proposal for a directive
Article 41 – paragraph 4
Article 41 – paragraph 4
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 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 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 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 143 #
Proposal for a directive
Article 59 – paragraph 1
Article 59 – paragraph 1
1. Member States shall ensure that the members of the creditors’ committee are appointed either at the general meeting of creditors or by decision of the court, within 30 days from the date of the opening of the proceedings as referred to in Article 24(2), point (a) of Regulation (EU) 2015/848.
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.