21 Amendments of Andrea COZZOLINO related to 2016/0359(COD)
Amendment 66 #
Proposal for a directive
Recital 2
Recital 2
(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business or the business itself. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build- up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.
Amendment 67 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) Businesses should also have access to restructuring operations involving outright transfer of the going concern. In such cases of indirect continuity, this allows the company to remain in business and hold its value, thereby protecting the interests of creditors, workers and allied activities, an advantage in no way undermined by a purely formal change of ownership.
Amendment 81 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Member States may introduce provisions allowing one or more creditors to propose an alternative plan to counter the debtor's position of strength and the risks of it being abused, especially in companies where partners and managers are more closely identified with each other. Each Member State should stipulate the conditions under which creditors may legitimately propose such a plan.
Amendment 88 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) The early warning phase, designed to anticipate the emergence of the crisis, is intended to assist by flagging difficulties arising for debtors and offering them the possibility of a rapid analysis and solution of the economic and financial problems facing the company, making available - on a voluntary basis - various resources for this purpose, without dictating given lines of conduct or necessarily revealing the existence of a crisis to third parties. It is therefore important to leave the Member States to decide on whether to restrict mandatory monitoring provisions to SMEs, bearing in mind that SMEs themselves are frequently unable to initiate restructuring processes independently because of a number of factors undermining their competitiveness (being undersized, lacking in strong in corporate governance, effective operational procedures and monitoring and planning resources) and are less able to afford to do so.
Amendment 99 #
Proposal for a directive
Recital 29
Recital 29
(29) While shareholders' or other equity holders' legitimate interests should be protected, Member States should ensure that shareholders cannot unreasonably block the adoption of restructuring plans which would bring the debtor back to viability. For example, the adoption of a restructuring plan should not be conditional on the agreement of the out-of-the-money equity holders, namely equity holders who, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied. Member States can deploy different means to achieve this goal, for example by not giving equity holders the right to vote on a restructuring plan. However, where equity holders have the right to vote on a restructuring plan, a judicial or administrative authority should be able to confirm the plan notwithstanding the dissent of one or more classes of equity holders, through a cross-class cram down mechanism. More classes of equity holders may be needed where different classes of shareholdings with different rights exist. Equity holders of small and medium enterprises who are not mere investors but are the owners of the firm and contribute to the firm in other ways such as managerial expertise may not have an incentive to restructure under such conditions. For this reason, the cross- class cram-down mechanism should remain optional for the plan proposer.
Amendment 101 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) For the purposes of implementing the restructuring plan, the latter should make it possible for holders of equity in small and medium-sized enterprises to provide non-monetary restructuring assistance (drawing, for example, on their experience, reputation or business contacts).
Amendment 104 #
Proposal for a directive
Recital 33 a (new)
Recital 33 a (new)
(33a) Workers and their representatives should be provided with all the documents and information regarding the proposed restructuring so as to allow them to undertake an in-depth assessment of the various scenarios and prepare adequately for possible consultations. Workers and their representatives must also be actively involved during the consultation and approval phases of the plan and given guaranteed access to expert advice in connection with the restructuring.
Amendment 114 #
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 collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice. They should accordingly proceed to collect and analyse data by type of procedure so that reliable and usable comparative statistics can be obtained.
Amendment 120 #
Proposal for a directive
Article 1 – paragraph 2 – point g a (new)
Article 1 – paragraph 2 – point g a (new)
(ga) a public body that does not engage in business activities
Amendment 126 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) '‘restructuring'’ means changing the composition, conditions, or structure of a debtor's assets and liabilities or any other part of the debtor's capital structure, including share capital, or a combination of those elements, including sales of assets or parts of the business or the entire business, with the objective of enabling the enterprise to continue in whole or in part;
Amendment 135 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point a
Article 2 – paragraph 1 – point 15 – point a
(a) to assist the debtor or the creditors in drafting or negotiating a restructuring or economically viable business transfer plan;
Amendment 138 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point b
Article 2 – paragraph 1 – point 15 – point b
(b) to supervise the activity of the debtor during the negotiations on a restructuring or transfer plan and report to a judicial or administrative authority;
Amendment 174 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/EC.
Amendment 193 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. 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 or economically viable business transfer 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.
Amendment 198 #
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 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.
Amendment 213 #
Proposal for a directive
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. Member States may introduce provisions allowing one or more creditors to propose an alternative plan to that proposed by the debtor or by a creditor with the debtor’s agreement.
Amendment 226 #
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 homogeneous 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 mayust also provide that workers are treated in a separate class of their own.
Amendment 248 #
Proposal for a directive
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2a. Member States may introduce provisions authorising holders of equity in small and medium-sized undertakings to provide non-monetary assistance under the plan.
Amendment 251 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A liquidation value shall be determined by the judicial or administrative authority where a restructuring or transfer plan is challenged on the grounds of an alleged breach of the best interest of creditors test.
Amendment 258 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States may afford granters of new or interim financing the right to receive payment with priority in the context of subsequent liquidation procedures in relation to other creditors that would otherwise have superior or equal claims to money or assets. In such cases, Member States shall rank new financing and interim financing at least senior to the claims of ordinary unsecured creditors.
Amendment 260 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3