Activities of Sergio Gaetano COFFERATI related to 2016/0359(COD)
Plenary speeches (1)
Increasing the efficiency of restructuring, insolvency and discharge procedures (debate) IT
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU PDF (1 MB) DOC (245 KB)
Amendments (42)
Amendment 87 #
Proposal for a directive
Recital 1
Recital 1
(1) The objective of this Directive is to 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. TWithout prejudice to workers’ fundamental rights and freedoms, 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; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.
Amendment 90 #
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 shprevent unnecessary job losses and losses of knowledge and skills and should maximise the total value to creditors in comparison with what they would prevent unnecessary job losses and losses of knowledge and skillsceive in the event of the liquidation of assets, to owners and to the economy as a whole. 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 92 #
Proposal for a directive
Recital 3
Recital 3
(3) There are differences between the Member States as regards the range of the procedures available to debtors in financial difficulties in order to restructure their business. Some Member States have a limited range of procedures meaning that businesses are only able to restructure at a relatively late stage, in the context of insolvency procedures. In other Member States, restructuring is possible at an earlier stage but the procedures available are not as effective as they could be or are very formal, in particular limiting the use of out- of-court processes. Preventive solutions are a growing trend in modern insolvency law. The trend goes towards favouring approaches that, unlike the traditional approach of liquidating a business in crisis, have the aim of restoring it to health or, at least, saving those of its units which are still economically viable. That practice is praiseworthy and often helps to maintain jobs or reduce avoidable job losses. Similarly, national rules giving entrepreneurs a second chance, in particular by granting them discharge from the debts they have incurred in the course of their business, vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge.
Amendment 106 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Creditors and workers should be allowed to propose an alternative restructuring plan. Member States should define the conditions under which they may legitimately propose such a plan.
Amendment 108 #
Proposal for a directive
Recital 15
Recital 15
(15) Consumer over-indebtedness is a matter of great economic and social concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply th Member States should define discharge provisions applicable to consumers.
Amendment 112 #
Proposal for a directive
Recital 16
Recital 16
(16) The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Access to public, free and user- friendly information on the legal procedures for restructuring and insolvency is a first step for raising awareness among debtors and entrepreneurs and for avoiding cases of insolvency. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action and to empower the workers concerned to take an active role in the restructuring process. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.
Amendment 122 #
Proposal for a directive
Recital 19
Recital 19
(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted and will succeed. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.
Amendment 127 #
Proposal for a directive
Recital 25
Recital 25
(25) To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law should also provide that workers are part of a separate class, and it should ensure that a preferential right is attributed to this class. Member States may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.
Amendment 131 #
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 or enable the viable parts of its business to be continued by another enterprise after its transfer. 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 132 #
Proposal for a directive
Recital 31
Recital 31
(31) The success of a restructuring plan may often depend on whether there are financial resources in place to support first the operation of the business during restructuring negotiations and second the implementation of the restructuring plan after its confirmation. New financing or interim financing should therefore be exempt from avoidance actions which seek to declare such financing void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. National insolvency laws providing for avoidance actions if and when the debtor becomes eventually insolvent or stipulating that new lenders may incur civil, administrative or criminal sanctions for extending credit to debtors in financial difficulties are jeopardising the availability of financing necessary for the successful negotiation and implementation of a restructuring plan. As opposed to new financing which should be confirmed by a judicial or administrative authority as part of a restructuring plan, when interim financing is extended the parties do not know whether the plan will be eventually confirmed or not. Limiting the protection of interim finance to cases where the plan is adopted by creditors or confirmed by a judicial or administrative authority would discourage the provision of interim finance. To avoid potential abuses, only financing that is reasonably and immediately necessary for the continued operation or survival of the debtor's business or the preservation or enhancement of the value of that business pending the confirmation of that plan should be protected. Protection from avoidance actions and protection from personal liability are minimum guarantees granted to interim financing and new financing. However, encouraging new lenders to take the enhanced risk of investing in a viable debtor in financial difficulties may require further incentives such as for example giving such financing priority at least over unsecured claims in subsequent insolvency procedures.
Amendment 133 #
Proposal for a directive
Recital 32
Recital 32
(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan, with the exception of the workers' class.
Amendment 134 #
Proposal for a directive
Recital 34
Recital 34
(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68 , Council Directive 2001/23/EC69 , Directive 2002/14EC of the European Parliament and of the Council70 , Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72 . The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principlebe required to exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed at the same level by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period. _________________ 68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16. 69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16. 70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29. 71 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.2008, p. 36. 72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.
Amendment 137 #
Proposal for a directive
Recital 34 a (new)
Recital 34 a (new)
(34a) Workers and their representatives should be provided with all the documents and information regarding the proposed restructuring plan in order to allow them to undertake an in-depth assessment of the various scenarios. Furthermore, workers and their representatives should be allowed active involvement in all the consultation and approval phases for the definition of the plan and should be guaranteed access to expert advice in connection with the restructuring.
Amendment 138 #
Proposal for a directive
Recital 35
Recital 35
(35) Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the possibilities allowed by Article 5(2) of that Directivehile it should only be possible to apply Article 5 of that Directive in case of insolvency but not in case of a restructuring plan. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on it and their approval should be binding for the confirmation of the plan. For the purposes of voting on the restructuring plan, Member States may decide toshould place workers in a class separate from other classes of creditors and should ensure that this class is given a preferential right.
Amendment 158 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. Member States may extend the application of thshall define procedures referred to in point (b) of paragraph 1 applicable to over indebted natural persons who are not entrepreneurs.
Amendment 166 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan. For the purpose of adopting a restructuring plan, creditors should be divided into different classes of creditors, where, as a minimum, secured and unsecured claims should be treated in distinct classes, whilst workers should constitute a separate privileged class;
Amendment 180 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – introductory part
Article 2 – paragraph 1 – point 15 – introductory part
(15) 'practitioner in the field of restructuring' means any independent and neutral person or body appointed by a judicial or administrative authority to carry out one or more of the following tasks:
Amendment 181 #
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 plan or a plan to transfer viable parts of the business;
Amendment 183 #
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 193 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 196 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Member States shall ensure that workers’ representatives can communicate concerns to debtors and entrepreneurs about the situation of the business. Member States shall also ensure that workers’ representatives are in a position to have recourse to an independent expert of their choice and are given access to relevant, up-to-date, clear and user-friendly information regarding the situation of the business and the different restructuring strategies being envisaged, including a transfer to worker ownership;
Amendment 197 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency or find solutions that are more satisfactory than liquidation of assets to help pay off creditors claims, protect jobs and maintain business activity.
Amendment 207 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Preventive restructuring frameworks shall be available on the application by debtors, by workers or by creditors with the agreement of debtors.
Amendment 215 #
Proposal for a directive
Article 5 – paragraph 3 – introductory part
Article 5 – paragraph 3 – introductory part
3. Member States mayshall require the appointment of a practitioner in the field of restructuring in the following cases:
Amendment 232 #
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/ECthe same level.
Amendment 255 #
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 plan or economically viable business transfer 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 268 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) a valuation of the present value of the debtor or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor; , including a description of any assets, debts and their location; this shall include an evaluation of the financial obligations relating to and the financial flows towards and from the business' parent companies and subsidiaries, in order to estimate the financial capacity of the debtor's economic group when joint responsibility may arise.
Amendment 271 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii a (new)
Article 8 – paragraph 1 – point f – point iii a (new)
(iiia) all organisational aspects and possible consequences on employment levels, emanating from the restructuring plan, including the impact on subsidiaries and subcontractors, on working conditions and remuneration of workers;
Amendment 272 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii b (new)
Article 8 – paragraph 1 – point f – point iii b (new)
(iiib) evidence that any negative impact will not affect occupational pension funds and schemes for retired and current workers;
Amendment 273 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii c (new)
Article 8 – paragraph 1 – point f – point iii c (new)
(iiic) eventual possibilities of selling business;
Amendment 278 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Member States shall define the conditions under which creditors and workers may legitimately propose an alternative restructuring plan.
Amendment 282 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that any affected creditors have a right to vote on the adoption of a restructuring plan after having been duly informed about the procedure and its potential consequences. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).
Amendment 287 #
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 homogenous 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 mayshall also provide that workers are treated in a separate class of their own, and shall ensure that preferential rights are given to this class.
Amendment 293 #
Proposal for a directive
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5a. Member States shall ensure that, if the plan includes decisions likely to lead to substantial changes in work organisation or in contractual relations, workers who are affected by the restructuring plan shall have the right to vote on it and their approval shall be compulsory for confirmation of the plan.
Amendment 300 #
Proposal for a directive
Article 10 – paragraph 1 – point b a (new)
Article 10 – paragraph 1 – point b a (new)
(ba) restructuring plans which involve the loss of more than 10 jobs;
Amendment 301 #
Proposal for a directive
Article 10 – paragraph 1 – point b b (new)
Article 10 – paragraph 1 – point b b (new)
(bb) restructuring plans which are subject to counter-proposals from the class of workers or other creditors;
Amendment 312 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall ensure that, where there is a likelihood of insolvency, shareholders and other equity holders with interests in a debtor may not unreasonably prevent or create obstacles for the adoption or implementation of a restructuring plan which would restore the viability of the business.
Amendment 327 #
Proposal for a directive
Article 15 – paragraph 4 – point b
Article 15 – paragraph 4 – point b
(b) confirm the plan and grant monetary compensation to the dissenting creditors, payable by the debtor or by the creditors who voted in favour of the plan, with the exception of the workers' class.
Amendment 329 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States may afford grantors of new or interim financing the right to receive payment with priority in the context of subsequent liquidation procedures in relation to other creditrank new financing and interim financing seniors 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 creditoro the claims of ordinary unsecured creditors, but they shall never rank them senior to the claims of the workers' class.
Amendment 331 #
Amendment 335 #
Proposal for a directive
Article 18 – paragraph 1 – point b
Article 18 – paragraph 1 – point b
(b) to have due regard to the interests of creditors, workers and other stakeholders;
Amendment 349 #
Proposal for a directive
Article 22 – paragraph 1 – introductory part
Article 22 – paragraph 1 – introductory part
1. By way of derogation from Articles 19, 20 and 21, Member States mayshall maintain or introduce provisions restricting access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods in certain well-defined circumstances and where such limitations are justified by a general interest, in particular where: