Activities of Jean-Marie CAVADA related to 2016/0359(COD)
Legal basis opinions (0)
Amendments (31)
Amendment 88 #
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 and remove 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;
Amendment 95 #
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 legal uncertainty acts as a disincentive for cross-border investment, which harms the proper functioning of the internal market.
Amendment 96 #
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. At the same time, a greater level of harmonisation would contribute even more towards common European commercial legislation.
Amendment 100 #
Proposal for a directive
Recital 13
Recital 13
(13) In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since theySince small enterprises do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring pl, the latter should take into consideration the size of the enterprise in applying this Directive ansd should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their businesshow de facto tolerance to small enterprises.
Amendment 101 #
Proposal for a directive
Recital 13
Recital 13
13. In particular small and medium sized enterprises, which represent 99% of all businesses in the EU, should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member Statare disproportionately more likely to be taken into liquidation rather than restructuring and they have to bear costs that are twice as high as those faced by larger companies for cross- border procedures, compared with domestic procedures. Small and medium enterprises, especially when facing financial difficulties, often do not have the necessary resources to hire professional advice,cope with high restructuring costs and take advantage of theref more early warning tools should be put fficient restructuring place to alert debtors to the urgency to actrocedures in some Member States. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available onlineelectronically. Debtors should be able to use and adapt them to their own needs and to the specificities of their business. Taking into account their limited resources for hiring professional experts, early warning tools should be put in place to warn debtors of the urgent need to act quickly.
Amendment 107 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Member States with a robust household debt distress procedure should provide for enterprises in difficulties to be subject to comparable rules.
Amendment 145 #
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, with a view to the main objective of restoring the viability of the business. Practitioners should be rescuers not liquidators and they should also adhere to voluntarya codes of conduct aiming at ensurprofessional conduct with the aim of guaranteeing an appropriate level of qualification and training, and ensuring the 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 146 #
Proposal for a directive
Recital 42
Recital 42
42. It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should intensify their efforts to collect and, aggregate data that isand supply this data to the Commission, whereby it should be sufficiently granular to enable an accurate assessment of how the Directive works in practice.
Amendment 147 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
44a. The Commission shall review the application of this Directive and shall present a report to the European Parliament and the Council, possibly accompanied by a proposal for new legislative acts to strengthen the legal framework on restructuring, insolvency, discharge and second chance procedures. The assessment should not focus solely on the material recovery rate but also on solvency and restoring viability. Particular attention should be paid to the impact on SMEs.
Amendment 155 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive does not apply to procedures which give rise to agreements binding only the signatory creditors or to those intended to implement them.
Amendment 160 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of a liquidaton insolvency practitioner;
Amendment 163 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor against a debtoror group of creditors against a debtor or group of debtors, ordered by a judicial or administrative authority;
Amendment 175 #
Proposal for a directive
Article 2 – paragraph 1 – point 11
Article 2 – paragraph 1 – point 11
(11) 'new financing' means any new funds, including the provision of credit, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;
Amendment 176 #
Proposal for a directive
Article 2 – paragraph 1 – point 12
Article 2 – paragraph 1 – point 12
(12) 'interim financing' means any funds, including the provision of credit, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;
Amendment 182 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point a a (new)
Article 2 – paragraph 1 – point 15 – point a a (new)
(aa) ‘repayment plan’ means a programme of payments of specified amounts on specified dates by a debtor to creditors as part of a restructuring plan;
Amendment 184 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point b a (new)
Article 2 – paragraph 1 – point 15 – point b a (new)
(ba) 'viable' means able to provide an appropriate projected return on capital after having covered all its costs, including depreciation and financial charges.
Amendment 188 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall ensure that debtors and entrepreneurs have access todevelop early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur, the entrepreneur and the employees’ representative or the employees themselves, where they have no representative, the need to act as a matter of urgency.
Amendment 200 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Preventive restructuring frameworks may consist of one or more procedures or measures. They do not affect in any way other existing procedures in the Member States which are based on a contractual agreement between creditors and the procedures to implement such an agreement.
Amendment 205 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Preventive restructuring frameworks shall be available on the application by debtors, or, if a Member State so decides, by creditors with the agreement of debtors.
Amendment 228 #
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 beis ordered in respect of all types of creditors, including secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, opt for the possibility of the judicial or administrative authority not granting the provisional stay of individual enforcement actions or lifting accordance with national law stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned.
Amendment 235 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Member States shall limit tThe duration of the stay of individual enforcement actions to a maximum period of no more thanshall be fixed by agreement between the parties directly involved at between two and six months, which may be extended four monthsan identical period.
Amendment 239 #
Proposal for a directive
Article 6 – paragraph 5 – point b a (new)
Article 6 – paragraph 5 – point b a (new)
(ba) the obligation for the debtor to file for insolvency under national law arose during the period of the stay of individual enforcement actions.
Amendment 246 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
Amendment 249 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
9. Member States shall ensure that, where the judicial or administrative authority may determine that an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, and as a consequence the judicial or administrative authority may decide not to 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.
Amendment 258 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor forin respect of 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.
Amendment 262 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Member States shall ensure that nothing prevents the debtor from paying in the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise after the stay is granted and which continue to arise throughoutt any time during the period of the stay.
Amendment 264 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall require restructuring plans submitted forto be confirmationed by a judicial or administrative authority toand shall guarantee that plans are notified for assessment to employees’ representatives or to the debtors’ employees themselves, where they have no representative, for their opinion. Restructuring plans shall contain at least the following information:
Amendment 353 #
Proposal for a directive
Article 22 – paragraph 4 a (new)
Article 22 – paragraph 4 a (new)
4a. With regard to paragraph 1(a), the Commission shall provide guidelines for Member States to establish a set of criteria in order to define what constitutes dishonest action or bad faith in this context.
Amendment 370 #
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 debtors who, after having undergone a procedure referred to in point (a)(iii), launched a new business;
Amendment 372 #
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) the number of job losses, transfer of part or whole of the business, and impact of restructuring agreements on the employment situation;
Amendment 381 #
Proposal for a directive
Article 33 – paragraph 1
Article 33 – paragraph 1
No later than [5 years from the date of start of application of implementing measures] and every 7 years thereafter, the Commission shall review the application of this Directive and shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measureaccompanied, if possible, by a proposal for new legislative acts to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered. That review shall not focus solely on the material recovery rate but also on solvency and restoring viability. Particular attention shall be paid to the impact on SMEs.