Next event: Commission response to text adopted in plenary 2019/07/30 more...
- Final act published in Official Journal 2019/06/26
- Draft final act 2019/06/20
- Final act signed 2019/06/20
- End of procedure in Parliament 2019/06/20
- Act adopted by Council after Parliament's 1st reading 2019/06/06
- Results of vote in Parliament 2019/03/28
- Decision by Parliament, 1st reading 2019/03/28
- Debate in Parliament 2019/03/27
- Approval in committee of the text agreed at 1st reading interinstitutional negotiations 2019/01/23
- Council Meeting 2018/10/12
- Committee decision to enter into interinstitutional negotiations confirmed by plenary (Rule 71) 2018/09/12
- Committee decision to enter into interinstitutional negotiations announced in plenary (Rule 71) 2018/09/10
- Committee report tabled for plenary, 1st reading/single reading 2018/08/21
- Committee report tabled for plenary, 1st reading 2018/08/21
- Vote in committee, 1st reading 2018/07/02
- Committee decision to open interinstitutional negotiations with report adopted in committee 2018/07/02
- Council Meeting 2018/06/05
- Debate in Council 2017/12/08
- Council Meeting 2017/12/08
- Committee opinion 2017/12/07
- Committee opinion 2017/12/05
- Amendments tabled in committee 2017/11/16
- Committee draft report 2017/09/25
Progress: Procedure completed
Role | Committee | Rapporteur | Shadows |
---|---|---|---|
Lead | JURI | NIEBLER Angelika ( PPE) | COFFERATI Sergio Gaetano ( S&D), ZŁOTOWSKI Kosma ( ECR), MARINHO E PINTO António ( ALDE), DURAND Pascal ( Verts/ALE), BERGERON Joëlle ( EFDD) |
Committee Opinion | EMPL | MARTIN Edouard ( S&D) | Enrique CALVET CHAMBON ( ALDE), Verónica LOPE FONTAGNÉ ( PPE), Paloma LÓPEZ BERMEJO ( GUE/NGL), Dominique MARTIN ( ENF), Jana ŽITŇANSKÁ ( ECR) |
Committee Opinion | ECON | CALVET CHAMBON Enrique ( ALDE) | Sander LOONES ( ECR), Paloma LÓPEZ BERMEJO ( GUE/NGL) |
Lead committee dossier:
Legal Basis:
TFEU 053-p1, TFEU 114
Legal Basis:
TFEU 053-p1, TFEU 114Subjects
Events
PURPOSE: 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 concerning preventive restructuring, insolvency, discharge of debt, and disqualifications and to guarantee a second chance to entrepreneurs after bankruptcy.
LEGISLATIVE ACT: Directive (EU) 2019/1023 of the European Parliament and of the Council on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).
CONTENT: the Directive aims to ensure a second chance to bankrupt entrepreneurs and to facilitate access by viable companies in financial difficulty to preventive restructuring frameworks at an early stage in order to prevent their insolvency.
Key elements of the new rules include the following:
Early warning and access to information
Debtors shall have access to one or more clear and transparent early warning tools which can detect circumstances that could give rise to a likelihood of insolvency and can signal to them the need to act without delay.
Early warning tools may include alert mechanisms when the debtor has not made certain types of payments or advisory services provided by public or private organisations.
Preventive restructuring frameworks
Where there is a likelihood of insolvency, debtors will have access to a preventive restructuring framework that enables them to restructure, with a view to preventing insolvency and ensuring their viability, thereby protecting jobs and maintaining business activity. Member States may also provide that preventive restructuring frameworks are available at the request of creditors and employees’ representatives, subject to the agreement of the debtor. They may limit that requirement to obtain the debtor's agreement to cases where debtors are SMEs.
Facilitating negotiations on preventive restructuring plans
Member States shall ensure that debtors accessing preventive restructuring procedures remain totally, or at least partially, in control of their assets and the day-to-day operation of their business.
The Directive provides for the appointment, in certain cases, of a restructuring practitioner to assist in the development of the plan. Practitioners appointed by a judicial or administrative authority shall receive suitable training and have the necessary expertise in relation to their responsibilities. They shall be subject to regulatory and control mechanisms including measures concerning the accountability of practitioners who fail to perform their duties.
Practitioners in the field of restructuring, insolvency, and discharge of debt that are appointed by judicial or administrative authorities must be suitably trained and have the necessary expertise for their responsibilities. They should be subject to oversight and regulatory mechanisms which should include effective measures regarding the accountability of practitioners who have failed in their duties,
Restructuring plans
The new rules provide for a number of elements to be included in a plan, including:
- the debtor's assets and liabilities at the time of submission of the plan, including the value of the assets, a description of the debtor's economic situation and the situation of the workers, and a description of the causes and extent of the debtor's difficulties;
- the affected parties and their classes into which they have been grouped;
- the terms of the restructuring plans and in particular any proposed restructuring measures, and, if applicable, the proposed duration of any proposed restructuring measure and the general consequences for employment.
Stay of individual enforcement actions
Member States shall ensure that debtors can benefit from a stay of individual enforcement actions to support the negotiations of a restructuring plan in a preventive restructuring framework. The initial duration of a stay of individual enforcement actions shall be limited to a maximum period of no more than four months. Member States may enable judicial or administrative authorities to extend the duration of a stay of individual enforcement actions or to grant a new stay of individual enforcement actions, at the request of the debtor, a creditor or, where applicable, a practitioner in the field of restructuring.
Full discharge of debts
Member States shall ensure that insolvent entrepreneurs have access to at least one procedure that can lead to a full discharge of debt after a maximum period of three years, under the conditions defined in the Directive.
Duties of directors
Where there is a likelihood of insolvency, directors must have due regard, as a minimum, to the following: (i) the interests of creditors, equity holders and other stakeholders; (ii) the need to take steps to avoid insolvency; and (iii) the need to avoid deliberate or grossly negligent conduct that threatens the viability of the business.
Workers
The Directive stipulates that Member States shall ensure that existing rights of workers under national and Union law are not affected by the process of preventive restructuring (e.g. the right to collective bargaining and the right to information and consultation).
ENTRY INTO FORCE: 16.7.2019.
TRANSPOSITION: no later than 17.7.2021.
The European Parliament adopted by 327 votes to 34 with 142 abstentions, a legislative resolution 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.
The proposed directive aims to provide a second chance for insolvent, honest entrepreneurs, and to facilitate the access of viable enterprises in financial difficulty to effective national preventive restructuring frameworks that enable them to continue operating.
Parliament’s position in first reading following the ordinary legislative procedure amended the Commission’s proposal as follows:
Early warning and access to information
Debtors should have access to one or more clear and transparent early warning tools which can detect circumstances that could give rise to a likelihood of insolvency and can signal to them the need to act without delay.
Early warning tools may include the following:
- alert mechanisms when the debtor has not made certain types of payments;
- advisory services provided by public or private organisations;
- incentives under national law for third parties with relevant information about the debtor, such as accountants, tax and social security authorities, to flag to the debtor a negative development.
Preventive restructuring frameworks
Where there is a likelihood of insolvency, debtors will have access to a preventive restructuring framework that enables them to restructure, with a view to preventing insolvency and ensuring their viability, thereby protecting jobs and maintaining business activity.
Member States may also provide that preventive restructuring frameworks are available at the request of creditors and employees’ representatives, subject to the agreement of the debtor. They may limit that requirement to obtain the debtor's agreement to cases where debtors are SMEs.
Facilitating negotiations on preventive restructuring plans
The amended text provides that the appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall be decided on a case-by-case basis, except in certain circumstances where Member States may require the mandatory appointment of such a practitioner in every case.
Member States shall provide for the appointment of a practitioner in the field of restructuring, to assist the debtor and creditors in negotiating and drafting the plan, at least in the following cases: (i) where a general stay of individual enforcement actions is granted by a judicial or administrative authority; (ii) where the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram-down; or (iii) where it is requested by the debtor or by a majority of the creditors.
Practitioners in the field of restructuring, insolvency, and discharge of debt that are appointed by judicial or administrative authorities must be suitably trained and have the necessary expertise for their responsibilities. They should be subject to oversight and regulatory mechanisms which should include effective measures regarding the accountability of practitioners who have failed in their duties,
Stay of individual enforcement actions
Debtors may benefit from a stay of individual enforcement actions to support the negotiations of a restructuring plan in a preventive restructuring framework. Judicial or administrative authorities can refuse to grant a stay of individual enforcement actions where such a stay is not necessary. Member States may exclude certain claims or categories of claims from the scope of the stay of individual enforcement actions in well-defined circumstances.
The initial duration of a stay of individual enforcement actions shall be limited to a maximum period of no more than four months. Member States may enable judicial or administrative authorities to extend the duration of a stay of individual enforcement actions, at the request of the debtor, a creditor or, where applicable, a practitioner in the field of restructuring. Member States may provide for a minimum duration of not more than four months during which a stay of individual action cannot be lifted. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months. The expiry of a stay of individual enforcement actions without the adoption of a restructuring plan must not, of itself, give rise to the opening of an insolvency procedure which could end in the liquidation of the debtor.
Restructuring plans
Plans submitted for adoption or for confirmation by a judicial or administrative authority must contain at least the following information:
- the debtor’s assets and liabilities at the time of submission of the restructuring plan, including a value for the assets;
- a description of the economic situation of the debtor and the position of workers;
- a description of the causes and the extent of the difficulties of the debtor;
- the affected parties, whether named individually or described by categories of debt in accordance with national law, as well as their claims or interests covered by the restructuring plan;
- the classes into which the affected parties have been grouped, for the purpose of adopting the restructuring plan, and the respective values of claims and interests in each class;
- the terms of the restructuring plan, including, in particular, any proposed restructuring measures and, if applicable, the proposed duration of any proposed restructuring measure and the general consequences for employment.
The plan must include a statement of reasons that explains why the restructuring plan has a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business, including the necessary pre-conditions for the success of the plan. The following restructuring plans must be binding on the parties only if they are confirmed by a judicial or administrative authority:
a) restructuring plans which affect the claims or interests of dissenting affected parties;
b) restructuring plans which provide for new financing;
c) restructuring plans which involve the loss of more than 25% of the workforce, if such loss is permitted under national law.
Duties of directors
Where there is a likelihood of insolvency, directors must have due regard, as a minimum, to the following: (i) the interests of creditors, equity holders and other stakeholders; (ii) the need to take steps to avoid insolvency; and (iii) the need to avoid deliberate or grossly negligent conduct that threatens the viability of the business.
Workers
A new article on workers' rights has been introduced stipulating that Member States should ensure that existing rights of workers under national and Union law are not affected by the process of preventive restructuring (e.g. the right to collective bargaining and the right to information and consultation).
OPINION OF THE EUROPEAN CENTRAL BANK on a 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.
The European Central Bank (ECB) is exercising its right to submit an opinion, since the proposed directive contains provisions falling within the ECB's fields of competence, including the task of the European System of Central Banks (ESCB) to contribute to the smooth conduct of policies pursued by the competent authorities relating to the stability of the financial system and the tasks conferred upon the ECB pursuant to the Treaty concerning policies relating to the prudential supervision of credit institutions.
General observations : the ECB welcomes the key objective of the proposed directive to reduce the most significant barriers to the cross-border flow of capital stemming from differences in Member States' business and corporate restructuring frameworks.
It would, however, like to see more ambitious action undertaken to lay a common ground for a substantive harmonisation of Member States' insolvency laws. This would ensure a more comprehensive harmonisation in the long term and contributing to a well-functioning Capital Markets Union.
At a minimum, the ECB considers that the overarching objectives of insolvency proceedings within the Member States should be further harmonised, including a commonly agreed balance between the rights of creditors and debtors.
In addition to legislative reforms, a code of best practice or principles could be considered as a tool to orient national insolvency laws towards a more harmonised approach in the long term. Furthermore, the proposal offers a unique opportunity to put in place a pan-European regime, which builds on common underlying concepts and harmonised key elements regarding the definition of the triggers for the opening of reorganisation proceedings.
Lastly, the proposed directive does not apply to procedures related to debtors that are credit institutions, investment firms and collective investment undertakings, central counterparties and central securities depositories, insurance undertakings and reinsurance undertakings. Unintended consequences for these institutions may arise due to the impact on financial contracts with their commercial counterparties. The ECB feels that careful attention should be paid to any potentially unintended consequences.
In specific terms, the ECB suggests that:
the proposed directive should be used as a vehicle for further harmonisation of the definition of insolvency proceedings , rather than giving rise to further conceptual fragmentation; the concept of ‘ likelihood of insolvency’ should be further elaborated with further guidance provided to national legislators regarding the scope and content of the concept. This could be provided through regulatory technical standards to be adopted by the Commission by means of delegated legislative powers; there is a need for a clear hierarchy between the proposed directive and other Union legal acts such as Directives 98/26/EC and 2002/47/EC and Regulation (EU) No 648/2012 by providing expressly that the provisions of these legal acts prevail over the proposed directive; it should be clarified to what extent entities regulated by Directives 2009/110/EC and Directive (EU) 2015/2366 of the European Parliament and of the Council, namely payment institutions and electronic money institutions, may utilise the proposed directive's preventive restructuring framework; it should also be clarified to what extent the proposed directive, including the stay of enforcement actions, would operate without prejudice to the enforceability of close-out netting arrangements between credit and financial institutions, on the one hand, and corporate debtors, on the other hand.
PURPOSE: to put in place an insolvency framework and encourage effective preventive restructuring, second chance, including measures to increase the efficiency of restructuring.
PROPOSED ACT: Directive of the European Parliament and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with Council.
BACKGROUND: insolvency matters have a strong Union dimension. An increasingly interconnected single market with stronger digital dimension means that very few companies operate at purely national level. Many investors mention uncertainty over insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing outside their own country.
The 2015 Insolvency Regulation focuses on resolving the conflicts of jurisdiction and laws in cross-border insolvency proceedings, and ensures the recognition of insolvency-related judgments across the EU. It does not harmonise the substantive insolvency laws of the Member States.
Reviews of the implementation of the 2014 Recommendation on restructuring and second chance showed that, despite reforms in the area of insolvency, the latter has not led to the desired impact in terms of consistent changes across all Member States that would facilitate the rescue of businesses in financial difficulty and give a second chance to entrepreneurs . There are still several Member States where a business cannot be restructured before it is insolvent.
As regards the second chance, important discrepancies have remained as to the duration of the discharge period. Such differences in Member States' legal frameworks mean continuing legal uncertainty, additional costs for investors in assessing their risks, less developed capital markets and persisting barriers to the efficient restructuring of viable companies in the EU, including cross-border enterprise groups.
IMPACT ASSESSMENT: four options were considered in the impact assessment. The selected option was to set up a harmonised minimum legal framework for restructuring and second chance for entrepreneurs, with a non-binding provision on second chance for consumers, and to make procedures more efficient.
CONTENT : The proposed directive lays down rules on:
1) Preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency. This will help companies continue their activity and preserve jobs. Companies in financial difficulties, especially SMEs, will have access to early warning tools to detect a deteriorating business situation and ensure restructuring at an early stage. Flexible preventive restructuring frameworks will simplify lengthy, complex and costly court proceedings. Where necessary, national courts must be involved to safeguard the interests of stakeholders. The duration of the stay of individual enforcement actions will be limited to a maximum period of no more than four months , with an extension possible in prescribed cases
2) Procedures leading to a discharge of debts incurred by over-indebted entrepreneurs and allowing them to take up a new activity. This enables entrepreneurs to benefit from a second chance , as they will be fully discharged of their debt after a maximum period of 3 years . Entrepreneurs disqualified on grounds linked to their over-indebtedness should have the benefit of short disqualification orders to offer them an effective second chance, but Member States have a large margin of discretion
3) Measures to increase the efficiency of the procedures relating to these points as well as of insolvency procedures. This will reduce the excessive length and costs of procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates of unpaid debts.
Lastly, training, specialisation of practitioners and courts , and the use of technology (e.g. online filing of claims, notifications to creditors) will improve the efficiency and length of insolvency, restructuring and second chance procedures.
BUDGETARY IMPLICATIONS: the proposal does not have implications for the EU budget.
Documents
- Commission response to text adopted in plenary: SP(2019)437
- Final act published in Official Journal: Directive 2019/1023
- Final act published in Official Journal: OJ L 172 26.06.2019, p. 0018
- Draft final act: 00093/2018/LEX
- Results of vote in Parliament: Results of vote in Parliament
- Decision by Parliament, 1st reading: T8-0321/2019
- Debate in Parliament: Debate in Parliament
- Committee report tabled for plenary, 1st reading/single reading: A8-0269/2018
- Committee report tabled for plenary, 1st reading: A8-0269/2018
- Debate in Council: 3584
- Committee opinion: PE608.079
- Committee opinion: PE601.220
- Amendments tabled in committee: PE613.399
- Committee draft report: PE610.684
- Debate in Council: 3546
- European Central Bank: opinion, guideline, report: CON/2017/0022
- European Central Bank: opinion, guideline, report: OJ C 236 21.07.2017, p. 0002
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2016)0357
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2016)0358
- Legislative proposal published: COM(2016)0723
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: EUR-Lex SWD(2016)0357
- Document attached to the procedure: EUR-Lex SWD(2016)0358
- European Central Bank: opinion, guideline, report: CON/2017/0022 OJ C 236 21.07.2017, p. 0002
- Committee draft report: PE610.684
- Amendments tabled in committee: PE613.399
- Committee opinion: PE601.220
- Committee opinion: PE608.079
- Committee report tabled for plenary, 1st reading/single reading: A8-0269/2018
- Draft final act: 00093/2018/LEX
- Commission response to text adopted in plenary: SP(2019)437
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
- Contribution: COM(2016)0723
Activities
- Dobromir SOŚNIERZ
- Enrique CALVET CHAMBON
Plenary Speeches (1)
- Sergio Gaetano COFFERATI
Plenary Speeches (1)
- Pavel SVOBODA
Plenary Speeches (1)
Amendments | Dossier |
281 |
2016/0359(COD)
2017/06/02
EMPL
281 amendments...
Amendment 100 #
Proposal for a directive Recital 26 (26) Requisite majorities should be established by national law to ensure that a minority of affected parties in each class cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that parties have a say on the adoption of restructuring plans proportionate to the stakes they have in the business, the required majority should be based on the amount of the creditors' claims or equity holders' interests in any given class. Workers as a class should be exempt from this provision.
Amendment 101 #
Proposal for a directive Recital 27 Amendment 102 #
Proposal for a directive Recital 28 Amendment 103 #
Proposal for a directive Recital 28 (28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by
Amendment 104 #
Proposal for a directive Recital 28 (28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any
Amendment 105 #
Proposal for a directive Recital 29 Amendment 106 #
Proposal for a directive 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
Amendment 107 #
Proposal for a directive Recital 30 (30) Confirmation of a restructuring plan by a judicial or administrative authority is necessary to ensure that the reduction of the rights of creditors or interests of equity holders is proportionate to the benefits of the restructuring and that they have access to an effective remedy.
Amendment 108 #
Proposal for a directive 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.
Amendment 109 #
Proposal for a directive 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, unless these transactions have been offset by the extremely high return granted contractually by the entrepreneur or were carried out fraudulently or dishonestly. That is the case if the period covered by the financing solution was unreasonably short. 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
Amendment 110 #
Proposal for a directive 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.
Amendment 111 #
Proposal for a directive Recital 32 (32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan.
Amendment 112 #
Proposal for a directive 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 restructuring 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
Amendment 113 #
Proposal for a directive Recital 34 (34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. I
Amendment 114 #
Proposal for a directive 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
Amendment 115 #
Proposal for a directive 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 Directive. 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 the plan. For the purposes of voting on the
Amendment 116 #
Proposal for a directive 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 Directive. 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 the plan. For the purposes of voting on the restructuring plan, Member States
Amendment 117 #
Proposal for a directive 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 Directive. 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 the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors. Due account should be taken of the rulings handed down by the Court of Justice, as Advocate-General Mengozzi recently pointed out in his conclusions in Case C- 126/16.
Amendment 118 #
Proposal for a directive Recital 35 a (new) (35a) Any proposed restructuring operation should be fully explained to workers' representatives who should be given such information about the proposed restructuring as to enable them to undertake an in-depth assessment and to prepare for consultations, where appropriate1 a. __________________ 1a(P7_TA(2013)0005 Information and consultation of workers, anticipation and management of restructuring)
Amendment 119 #
Proposal for a directive Recital 36 (36) To further promote preventive restructurings, it is important to ensure that directors are not dissuaded from exercising reasonable business judgment or taking reasonable commercial risks, particularly where to do so would improve the chances for the restructuring of potentially viable businesses. Where the enterprise experiences financial difficulties, directors should take such steps as seeking professional advice, including on restructuring and insolvency, for instance by making use of early warning tools where applicable; protecting the assets of the company so as to maximize value and avoid loss of key assets; considering the structure and functions of the business to examine viability and reduce expenditure;
Amendment 120 #
Proposal for a directive Recital 37 (37) The different second chance possibilities in the Member States, or in some cases the lack of such possibilities, may
Amendment 121 #
Proposal for a directive Recital 37 (37) The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time, by establishing a liability regime which both incentivises early and responsible action and punishes the failure to take such action, and by limiting the length of disqualification orders issued in connection with the debtor's over- indebtedness.
Amendment 122 #
Proposal for a directive Recital 38 (38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance and criteria to judicial or administrative authorities on
Amendment 123 #
Proposal for a directive Recital 38 (38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for
Amendment 124 #
Proposal for a directive Recital 39 (39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for
Amendment 125 #
Proposal for a directive Recital 39 (39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of
Amendment 126 #
Proposal for a directive Recital 39 (39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of
Amendment 127 #
Proposal for a directive Recital 39 (39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. To this end, the Commission is urged to consider creating a single European point of contact for the sale of assets of non- viable enterprises. This would avoid fragmentation of sales and enhance the value of company assets, as well as increasing the recovery rate for creditors, including employees. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-
Amendment 128 #
Proposal for a directive 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
Amendment 129 #
Proposal for a directive Recital 41 (41) To increase their chances of success and further reduce the length of procedures and at the same time ensure a better participation of creditors in restructuring, insolvency and discharge procedures and to ensure similar conditions for creditors irrespective of where they are located in the Union, Member States should put in place distance means of communication in court procedures. Therefore, it should be possible that procedural steps such as the filing of claims by creditors, the notifications sent by the debtor or by practitioners in the field of restructuring, insolvency and second chance, voting on a restructuring plan or lodging appeals take place electronically. The cross-border recognition of such communications should comply with Regulation (EU) No 910/2014 of the European Parliament and of the Council73. __________________ 73 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).
Amendment 130 #
Proposal for a directive Recital 42 (42) It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in
Amendment 131 #
Proposal for a directive Recital 46 a (new) (46a) Under no circumstances should workers bear the burden of restructuring, insolvency and discharge procedures, and the debts owing to them (such as unpaid wages) should always be recovered in full and without delay. In order to guarantee the continuity of production and employment and to better fight tactical or fraudulent practices by management, workers should also be informed and consulted at the initial stage of restructuring, insolvency and discharge procedures.
Amendment 132 #
Proposal for a directive Recital 47 Amendment 133 #
Proposal for a directive Article 1 – paragraph 1 – point a (a) preventive restructuring procedures available for debtors in financial difficulty, including when there is a likelihood of insolvency;
Amendment 134 #
Proposal for a directive Article 1 – paragraph 1 – point a (a) preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency or where the procedures are being used to resolve a short-term problem, to reduce the amount owed to all or some of the creditors or to transfer all or part of the viable business to another enterprise on the basis of arrangements which afford creditors a dividend at least as large as that which they would have received in the event of liquidation;
Amendment 135 #
Proposal for a directive Article 1 – paragraph 1 – point b (b) procedures leading to a discharge of debts incurred by honest over-indebted entrepreneurs or natural persons who are not entrepreneurs (consumers who are not entrepreneurs) and allowing them to take up a new activity or to maintain decent living conditions;
Amendment 136 #
Proposal for a directive Article 1 – paragraph 2 – point g Amendment 137 #
Proposal for a directive Article 1 – paragraph 3 3. Member States
Amendment 138 #
Proposal for a directive Article 2 – paragraph 1 – point 1 (1) 'insolvency procedure' means a collective insolvency procedure opened by means of a public decision which entails a partial or total divestment of the debtor and the appointment of a liquidator;
Amendment 139 #
Proposal for a directive Article 2 – paragraph 1 – point 2 (2) 'restructuring' means a procedure or measures, whether public or confidential, which make it possible to cha
Amendment 140 #
Proposal for a directive 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, individual property or a combination of those elements, including sales of assets or parts of the business or of the natural person’s property, with the objective of enabling the enterprise or consumer affected by debt to continue in whole or in part or to maintain decent conditions for their subsistence;
Amendment 141 #
Proposal for a directive Article 2 – paragraph 1 – point 4 Amendment 142 #
Proposal for a directive 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
Amendment 143 #
Proposal for a directive 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; the Member States shall be responsible for delineating these categories;
Amendment 144 #
Proposal for a directive Article 2 – paragraph 1 – point 7 Amendment 145 #
Proposal for a directive Article 2 – paragraph 1 – point 7 (7)
Amendment 146 #
Proposal for a directive Article 2 – paragraph 1 – point 8 Amendment 147 #
Proposal for a directive Article 2 – paragraph 1 – point 12 (
Amendment 148 #
Proposal for a directive Article 2 – paragraph 1 – point 13 a (new) (13a) ‘over-indebted non-business consumer’ means a natural person not exercising a trade, business, craft or profession comparable to the activities of an employer, who, as a consumer or user of goods or public or private services, is temporarily or permanently unable to pay debts as they fall due;
Amendment 149 #
Proposal for a directive Article 2 – paragraph 1 – subparagraph 15 – point a (a) to assist the debtor, the workers or the creditors in drafting or negotiating a restructuring plan;
Amendment 150 #
Proposal for a directive Article 2 – paragraph 1 – point 15 – point a (a) to assist the debtor or the creditors in drafting or negotiating a viable restructuring or business wind-up plan;
Amendment 151 #
Proposal for a directive Article 2 – paragraph 1 – point 15 – point b (b) to supervise the activity of the debtor during the negotiations on a restructuring or business wind-up plan and report to a judicial or administrative authority;
Amendment 152 #
Proposal for a directive Article 3 – paragraph 1 1. Member States shall ensure that
Amendment 153 #
Proposal for a directive Article 3 – paragraph 1 1. Member States shall ensure that debtors
Amendment 154 #
Proposal for a directive Article 3 – paragraph 1 1. Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development or worsening consumer indebtedness and signal to the debtor or the entrepreneur the need to act as a matter of urgency.
Amendment 155 #
Proposal for a directive Article 3 – paragraph 2 2. Member States shall ensure that debtors
Amendment 156 #
Proposal for a directive Article 3 – paragraph 2 2. Member States shall ensure that
Amendment 157 #
Proposal for a directive Article 3 – paragraph 2 a (new) 2a. Member States shall ensure that employees’ representatives have full access to information and are consulted if action needs to be taken;
Amendment 158 #
Proposal for a directive Article 3 – paragraph 3 3. Member States
Amendment 159 #
Proposal for a directive Article 3 – paragraph 3 a (new) 3a. Member States shall ensure that workers’ representatives are in a position to have recourse to an independent expert, funded by the undertaking or the State as they see fit, giving them access to relevant, up-to-date, clear, concise and user- friendly information regarding the situation of the undertaking. Member States are able limit the access provided for in paragraph 3a to enterprises with over 150 employees.
Amendment 160 #
Proposal for a directive Article 3 – paragraph 3 a (new) 3a. Member States shall ensure that workers’ representatives are in a position to have recourse to an expert funded by the undertaking, giving access to relevant, up-to-date, clear, concise and user- friendly information regarding the situation of the business and the different restructuring policies being envisaged, including transfer to worker ownership;
Amendment 161 #
Proposal for a directive Article 3 – paragraph 3 a (new) 3a. Member States shall ensure that the tax, social security, competition and audit authorities are sufficient means under national law be able to flag any worrying developments as soon as possible;
Amendment 162 #
Proposal for a directive 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
Amendment 163 #
Proposal for a directive Article 4 – paragraph 2 2. Preventive restructuring frameworks may consist of one or more procedures or measures, duly negotiated and consulted with workers’ representatives, who shall retain all rights of collective bargaining and industrial action. It shall also provide for procedures or measures destined to the recovery of the indebted firm by workers, according to the relevant national law.
Amendment 164 #
Proposal for a directive Article 4 – paragraph 3 3. Member States
Amendment 165 #
Proposal for a directive Article 4 – paragraph 4 4. Preventive restructuring frameworks shall be available on the application by debtors, or by creditors with the agreement of debtors or at the request of management with the agreement of the entrepreneurs.
Amendment 166 #
Proposal for a directive Article 4 – paragraph 4 4. Preventive restructuring frameworks shall be available on the application by debtors,
Amendment 167 #
Proposal for a directive Article 4 – paragraph 4 a (new) 4a. Member States shall introduce specific provisions placing workers in a position, prior to restructuring, to consider the possibility of a cooperative buyout, a process that would include entering into negotiations with creditors, administrators, experts, financial institutions, trade unions and the authorities concerned, so as to create every opportunity for a viable and sustainable takeover that would not simply be considered as a last resort. Member States shall ensure that the necessary legal provisions are in place for worker buyouts and the creation of cooperatives in this and other instances. Public financing should be secured, through the cohesion funds for example, to assist projects ahead of restructuring, as well as mechanisms for the direct funding of cooperative worker buyouts.
Amendment 168 #
Proposal for a directive Article 4 – paragraph 4 a (new) 4a. The businesses shall be required to inform and consult their employees before and during negotiations. Utmost attention should be paid to worker interests, especially during the various stages of early restructuring and, where insolvency proceedings are under way, to make explicit reference to Article 5(2) of Directive 2001/23/EC, with a view to protecting the rights of employees in this instance.
Amendment 169 #
Proposal for a directive Article 4 – paragraph 4 b (new) 4b. Member States shall take the necessary measures to ensure that dishonest entrepreneurs guilty of deliberate insolvency are not able to benefit from the provisions of this Directive and keep a blacklist of dishonest entrepreneurs not entitled to do so. The Member States shall determine the justification for, and duration of, inclusion on the list.
Amendment 170 #
Proposal for a directive Article 4 – paragraph 4 c (new) 4c. The Member States shall lay down presumption of honesty criteria in respect of entrepreneurs requesting it.
Amendment 171 #
Proposal for a directive Article 4 a (new) Article 4a Entrepreneurs seeking preventive restructuring framework arrangements must make immediately available to their interlocutors (workers, trade unions and creditors generally, as well as designated crisis settlement bodies) all their accounts (financial statements and annexes, banking and insurance documents, stock records, etc.) and agree to any form of verification of their activities.
Amendment 172 #
Proposal for a directive Article 5 – paragraph 1 1. Member States shall ensure that debtors accessing preventive restructuring procedures remain totally or at least partially in control of their assets and the day-to-day operation of the business
Amendment 173 #
Proposal for a directive Article 5 – paragraph 3 – introductory part 3. Member States
Amendment 174 #
Proposal for a directive Article 5 – paragraph 3 – point b a (new) (ba) where the plan provides for the transfer of all or part of an undertaking to another undertaking without keeping on the entire workforce.
Amendment 175 #
Proposal for a directive Article 5 – paragraph 3 – point b a (new) (ba) where the restructuring plan cuts more than 30 % of the workforce, or more than 20 % where the business has 50 employees;
Amendment 176 #
Proposal for a directive Article 5 – paragraph 3 a (new) 3a. Member States shall ensure that a creditors' committee is established. The committee shall include representatives of the main creditors and other stakeholders, including workers. The members of the creditors' committee shall support and monitor the insolvency administrator's execution of his office. They shall demand information on the progress of business affairs, have the books and business documents inspected and the monetary transactions and the available cash verified.
Amendment 178 #
Proposal for a directive Article 6 – paragraph 1 1. Member States shall ensure that honest debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.
Amendment 179 #
Proposal for a directive Article 6 – paragraph 1 1. Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions, such as eviction, if and to the extent such a stay is necessary to support or make sustainable the negotiations of a restructuring plan.
Amendment 18 #
Proposal for a directive Recital -1 a (new) (–1) All workers should have the right to protection of their claims in the event of the insolvency of their employer, as set out in the European Social Charter.
Amendment 180 #
Proposal for a directive Article 6 – paragraph 1 1. Member States shall ensure that debtors who are negotiating a restructuring or business wind-up plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.
Amendment 181 #
Proposal for a directive Article 6 – paragraph 2 2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors, particularly in the case of individual non-business debtors facing eviction from their habitual home or being deprived of utilities essential for maintaining a decent life, such as water, electricity and heating. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.
Amendment 182 #
Proposal for a directive Article 6 – paragraph 2 2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors but not including workers. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.
Amendment 183 #
Proposal for a directive Article 6 – paragraph 3 3. Paragraph 2 shall not apply to workers' outstanding claims
Amendment 184 #
Proposal for a directive Article 6 – paragraph 3 3. Paragraph 2 shall not apply to workers' outstanding claims
Amendment 185 #
Proposal for a directive Article 6 – paragraph 4 4. Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four months; this deadline may be extended on a seasonal, temporary or indefinite basis in the case of non- business debtors in circumstances jeopardising decent living conditions for them or their immediate family, such as lack of a fixed abode or loss of access to essential utilities such as water, gas or electricity.
Amendment 186 #
Proposal for a directive Article 6 – paragraph 5 – introductory part 5. Member States may
Amendment 187 #
Proposal for a directive Article 6 – paragraph 5 – point a (a) relevant progress has been made in the negotiations on the restructuring plan or transfer of a going concern to another undertaking under the conditions laid down in this Directive; et
Amendment 188 #
Proposal for a directive Article 6 – paragraph 5 – point b (b) the continuation of the stay of individual enforcement actions does not unfairly prejudice the rights or interests of any affected parties. In order to avoid the domino effect of bankruptcies, particular attention shall be given to creditors with less than 50 employees.
Amendment 189 #
Proposal for a directive Article 6 – paragraph 5 – point b a (new) (ba) there are circumstances jeopardising decent living conditions for the individual or their immediate family, such as lack of a fixed abode or loss of access to essential utilities such as water, gas or electricity.
Amendment 19 #
Proposal for a directive 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, w
Amendment 190 #
Proposal for a directive Article 6 – paragraph 6 6. Any further extensions shall be given only if the conditions referred to in points (a), (b) and (ba) of paragraph 5 are met and the circumstances of the case show a strong likelihood that a restructuring plan will be adopted or, for non-business consumers, in the event of a serious deterioration in decent living conditions.
Amendment 191 #
Proposal for a directive Article 6 – paragraph 7 7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months, for business debtors.
Amendment 192 #
Proposal for a directive Article 6 – paragraph 8 – point a (a) if – for business debtors only – it becomes apparent that a proportion of creditors who under national law could block the adoption of the restructuring plan does not support the continuation of the negotiations; o
Amendment 193 #
Proposal for a directive Article 6 – paragraph 9 9. Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced, thereby compromising their activity, by a stay of individual enforcement actions, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual
Amendment 194 #
Proposal for a directive Article 6 – paragraph 9 9. Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, the judicial or administrative authority may decide not 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, provided that – in respect of non-business debtors – such a decision does not jeopardise decent living conditions.
Amendment 196 #
Proposal for a directive Article 7 – paragraph 2 2. A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors, with the exception of procedures requested by the workers under Article 6(3).
Amendment 197 #
Proposal for a directive Article 7 – paragraph 2 2. A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors, with the exception of workers according to article 6.3.
Amendment 198 #
Proposal for a directive Article 7 – paragraph 3 3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his
Amendment 199 #
Proposal for a directive 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 or of its suppliers/customers with less than 50 employees, so as to avoid the domino effect of bankruptcies.
Amendment 20 #
Proposal for a directive 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. This Directive aims at removing such obstacles by ensuring that viable enterprises and individual debtors acting in good faith, consumers and users in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating or, as appropriate, which enable them to maintain access to fundamental public and private goods and services, such as the supply of energy, heating and water, and to maintain decent housing, with a guarantee that they can keep minimum financial means so that they are able to maintain decent levels of subsistence; that honest over indebted entrepreneurs, consumers and users 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 200 #
Proposal for a directive Article 8 – paragraph 1 – point a a (new) (aa) a statement setting out the presumption of honesty assessment criteria determined by the Member States for the purpose of implementing preventive restructuring and second chance framework provisions.
Amendment 201 #
Proposal for a directive Article 8 – paragraph 1 – point b (b) a valuation of the present value of the debtor, following problem solving or business divestiture procedures, or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor;
Amendment 202 #
Proposal for a directive 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 detailed description of any assets, debts and their location; this shall include a relation of the financial obligations and flows with the business’ parent companies and subsidiaries in order to estimate the financial capacity of the debtors’ business group when joint responsibility may arise;
Amendment 203 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii a (new) (iiia) the impact on employment in the businesses concerned, including suppliers and subcontractors. Member States shall ensure that in businesses with more than 150 employees, workers’ representatives are allowed to appoint an independent expert, to be financed, according to their preference, by the business or by the State, for the purpose of giving prior consideration to the causes and the implications for the viability of the business, employment, and pay, and that they can make proposals as part of the information and consultation process (Directive 2002/14/EC).
Amendment 204 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii a (new) (iiia) the possibilities for selling businesses as going concerns, selling prices, or possible sale terms, the implications of those prices or terms for the dividends that creditors would receive compared with the dividend that a creditor would probably have received had the business in question been liquidated or the priority of creditors determined, and the consequences for workers, employment and activity, or for each stakeholder.
Amendment 205 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii a (new) (iiia) the impact on all types of pensions of retired and current workers.
Amendment 206 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii a (new) (iiia) its impact on the working conditions and remuneration of workers.
Amendment 207 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii b (new) (iiib) past and future commitments linked to bonuses and pensions, and the impact of the plan on those commitments.
Amendment 208 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii b (new) (iiib) its impact on subsidiaries and subcontractors.
Amendment 209 #
Proposal for a directive Article 8 – paragraph 1 – point f – point iii c (new) (iiic) a summary of the situation broken down by country, where restructuring operations are on a cross-border scale.
Amendment 21 #
Proposal for a directive 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. 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 while contributing as fully as they would in the event of liquidation to satisfying the creditors’ claims; 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 210 #
Proposal for a directive Article 8 – paragraph 1 – point g a (new) (ga) an assessment of the employability and the individual and collective skills of the employees affected by the plan.
Amendment 211 #
Proposal for a directive Article 8 – paragraph 1 a (new) 1a. Workers’ claims or other rights shall not be affected by restructuring plans, which shall take into account that any financial claims by workers shall take full priority.
Amendment 212 #
Proposal for a directive Article 8 – paragraph 1 a (new) 1a. The rights and claims of employees shall not be affected by restructuring plans.
Amendment 213 #
Proposal for a directive Article 8 – paragraph 2 2. Member States shall make a model for restructuring plans available online. That model shall contain at least the information required under national law and shall provide general but practical information on how the model is to be used. The model shall be made available in the co-official language or languages of the Member State. Member States shall endeavour to make the model available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be adapted to the needs and circumstances of every case.
Amendment 214 #
Proposal for a directive Article 8 – paragraph 2 (2) Member States shall make a model for restructuring plans available online. That model shall contain at least the information required under national law and shall provide general but practical information on how the model is to be used. The model shall be made available in the official language or languages of the Member State. Member States shall endeavour to make the model available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be partially adapted to the needs and circumstances of every case.
Amendment 215 #
Proposal for a directive Article 8 – paragraph 3 a (new) 3a. Member States shall ensure that workers’ representatives are able to appoint an expert of their choice, funded by the business, to give prior consideration to the causes and consequences for the viability of the business, employment, and pay, and that they are able to make proposals in the context of the information and consultation process (Directive 2002/14/EC).
Amendment 216 #
Proposal for a directive Article 8 – paragraph 3 a (new) 3a. Member States shall ensure that their national legislation effectively guarantees the confidentiality of discussions, conversations, negotiations, or information sessions with persons who have entered into a confidentiality undertaking.
Amendment 217 #
Proposal for a directive Article 8 – paragraph 3 b (new) 3b. The obligations of employers to inform and consult workers shall not be put into effect until a plan has been finalised.
Amendment 218 #
Proposal for a directive Article 9 – paragraph 1 1. Member States shall ensure that
Amendment 219 #
Proposal for a directive Article 9 – paragraph 1 Amendment 22 #
Proposal for a directive 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. 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, without prejudice to workers’ fundamental rights and freedoms; 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 220 #
Proposal for a directive Article 9 – paragraph 1 (1) Member States shall ensure that any affected creditors have a right to an informed vote on the adoption of a restructuring plan. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).
Amendment 221 #
Proposal for a directive 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. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2). Before the vote, creditors shall be informed without undue delay of the causes and the consequences that the plan will entail for each of them.
Amendment 222 #
Proposal for a directive Article 9 – paragraph 1 – subparagraph 1 a (new) Member States shall ensure that the procedures provided for in national law are such that any creditors affected by a plan to sell a business as a going concern to another business, and which would not be repaid in full, would have the right to raise objections in the jurisdiction called upon to authorise the sale.
Amendment 223 #
Proposal for a directive Article 9 – paragraph 1 – subparagraph 1 b (new) Member States shall ensure that a debtor, having embarked on a confidential procedure, may at any time thereafter initiate a further procedure publicly, if it considers the latter to be necessary before the plan has been adopted or the sale has been authorised by the jurisdiction concerned.
Amendment 224 #
Proposal for a directive Article 9 – paragraph 1 a (new) 1a. Member States shall ensure that business managers inform and consult their employees before and during negotiations. In particular, at every stage of early restructuring, worker interests should receive the utmost attention, and, for the purposes of insolvency proceedings, explicit reference should be made to Article 5(2) of Directive 2001/23/EC.
Amendment 225 #
Proposal for a directive 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 shall provide that salaries are treated in a separate class of their own. Member States may also provide that
Amendment 226 #
Proposal for a directive 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
Amendment 227 #
Proposal for a directive 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
Amendment 228 #
Proposal for a directive 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.
Amendment 229 #
Proposal for a directive 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
Amendment 23 #
Proposal for a directive 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. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to
Amendment 230 #
Proposal for a directive Article 9 – paragraph 2 2. Member States shall ensure that parties affected
Amendment 231 #
Proposal for a directive Article 9 – paragraph 3 a (new) 3a. Member States shall ensure that, where the bids received are equal, preferential rights are accorded to the workers in order to place them in the best position to make a takeover bid should their business be closed down.
Amendment 232 #
Proposal for a directive Article 9 – paragraph 4 4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class and that the class of workers obtains the majority. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.
Amendment 233 #
Proposal for a directive Article 9 – paragraph 4 (4) A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests and in terms of the number of members with voting rights is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.
Amendment 234 #
Proposal for a directive Article 9 – paragraph 4 4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class. A sale plan shall be authorised by the competent jurisdiction under the national procedure allowing the sale to be authorised and effected.
Amendment 235 #
Proposal for a directive Article 9 – paragraph 5 (5) Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class, in accordance with national laws.
Amendment 236 #
Proposal for a directive Article 9 – paragraph 5 5. Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class. In the workers’ class this vote shall be held in compliance with national laws.
Amendment 237 #
Proposal for a directive Article 9 – paragraph 6 6. With the exemption of the class of workers, where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed if it complies with the cross- class cram-down requirements set out in Article 11.
Amendment 238 #
Proposal for a directive Article 9 – paragraph 6 a (new) 6a. Member States shall guarantee that in the case of lack of collaboration of other creditors, the worker’s restructuring plan may be presented to the competent administration or court and adopted without the consent of non-cooperative creditors.
Amendment 239 #
Proposal for a directive Article 10 – paragraph 1 – point a (a) restructuring plans which adversely affect the interests of
Amendment 24 #
Proposal for a directive 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. 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 creditors receive a maximised dividend; 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 240 #
Proposal for a directive Article 10 – paragraph 1 – subparagraph 1 a (new) Member States shall ensure that plans to sell a business as a going concern cannot become binding on the parties unless they are confirmed by a judicial or administrative authority under national law.
Amendment 241 #
Proposal for a directive Article 10 – paragraph 1 – subparagraph 1 b (new) In each of the cases referred to in this paragraph, Member States shall ensure that the procedures provided for in national law are such that workers have the right to submit comments to, or raise objections before, the judicial or administrative authority called upon to rule on the confirmation of the plan.
Amendment 242 #
Proposal for a directive Article 10 – paragraph 2 – point a a (new) (aa) the procedure and time-frames for informing and notifying interested parties are clearly stated;
Amendment 243 #
Proposal for a directive Article 10 – paragraph 2 – point b (b) the restructuring plan complies with the best interest of creditors and employment test;
Amendment 244 #
Proposal for a directive Article 10 – paragraph 2 – point c (c) any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors or employment.
Amendment 245 #
Proposal for a directive Article 10 – paragraph 2 – point c a (new) (ca) any restructuring plan which is the subject of counter-proposals from the workers’ class, in particular to further those which include a change of shareholder supported by the workers’ class, or any restructuring plan making workers the future buyers.
Amendment 246 #
Proposal for a directive Article 10 – paragraph 2 – point c a (new) (ca) any alternative plan submitted by the workers within a reasonable time that would enable jobs to be preserved to the greatest possible extent in Europe. Alternative plans of this kind may include a permanent or temporary change in the share ownership in the form of a public or private holding.
Amendment 247 #
Proposal for a directive Article 10 – paragraph 2 – point c a (new) (ca) workers’ representatives have been informed and consulted.
Amendment 248 #
Proposal for a directive Article 10 – paragraph 2 – point c a (new) (ca) it has been approved by the class of workers.
Amendment 249 #
Proposal for a directive Article 10 – paragraph 2 – point c b (new) (cb) the competent authority must consider any alternative plan proposed by a representative group of employees before confirming any restructuring plan entailing job losses of more than 30% or more than 20% if the business concerned has more than 50 employees.
Amendment 25 #
Proposal for a directive Recital 1 (1) The objective of this Directive is to contribute to the proper functioning of the internal market by remov
Amendment 250 #
Proposal for a directive Article 10 – paragraph 2 – point c c (new) (cc) the competent authority must consider any plan involving the temporary acquisition of an owning interest by a public authority with a view to offering an alternative to any restructuring plan entailing the loss of a significant number of jobs in the Member State concerned.
Amendment 251 #
Proposal for a directive Article 10 – paragraph 3 3. Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan involving the waiver of claims where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business or where the debtor’s obligations to workers under existing Directives have not been fulfilled. Member States shall ensure that judicial or administrative authorities may refuse to authorise a sale plan where that plan is such that creditors have no reasonable prospect of being paid a dividend at least equivalent to the amount which they would have received if assets had been sold following a bankruptcy procedure or where the business continuing as a going concern does not offer guarantees as to the viability of the operations transferred.
Amendment 252 #
Proposal for a directive Article 10 – paragraph 4 4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken without undue delay after the complete request for confirmation has been filed and in any case no later than 30 days after
Amendment 253 #
Proposal for a directive Article 10 – paragraph 4 4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan or authorise a sale plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.
Amendment 254 #
Proposal for a directive Article 11 Amendment 255 #
Proposal for a directive Article 11 – paragraph 1 – point b a (new) (ba) has been approved by the class of workers;
Amendment 256 #
Proposal for a directive 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
Amendment 257 #
Proposal for a directive Article 13 – paragraph 1 1. A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan or a sale plan is challenged on the grounds of an alleged breach of the best interest of creditors test.
Amendment 258 #
Proposal for a directive Article 13 – paragraph 2 – introductory part 2. An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern and the value of the proceeds from the sale of its assets by the insolvency practitioner in an insolvency procedure in the following cases:
Amendment 259 #
Proposal for a directive Article 13 – paragraph 2 – point b a (new) (ba) where a plan involves the transfer of all or part of a business.
Amendment 26 #
Proposal for a directive 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,
Amendment 260 #
Proposal for a directive Article 14 – paragraph 2 2.
Amendment 261 #
Proposal for a directive 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. This compensation must take account of the primary need to safeguard jobs and prevent the domino effect of bankruptcies.
Amendment 262 #
Proposal for a directive Article 16 – paragraph 1 1. Member States shall ensure that new financing and interim financing are adequately encouraged and protected. In particular, new and interim financing shall not be declared void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures, unless such transactions have been
Amendment 263 #
Proposal for a directive Article 16 – paragraph 2 Amendment 264 #
Proposal for a directive Article 16 – paragraph 3 Amendment 265 #
Proposal for a directive Article 17 – paragraph 2 – point c (c) the payment of worker wages
Amendment 266 #
Proposal for a directive Article 17 – paragraph 2 – point e (e) transactions such as new credit, financial contributions or partial asset transfers outside the ordinary course of business made in contemplation of and closely connected with negotiations for a restructuring plan, unless such transactions have been offset by the extremely high return granted contractually by the entrepreneur or were carried out fraudulently or in bad faith. That is the case if the period covered by the financing solution was unreasonably short.
Amendment 267 #
Proposal for a directive Article 17 – paragraph 4 Amendment 268 #
Proposal for a directive Article 18 – paragraph 1 – point a (a) to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders, including employment and the interests and rights of workers;
Amendment 269 #
Proposal for a directive Article 18 – paragraph 1 – point b (b) to have due regard to the interests of creditors and other stakeholders; directors should be prohibited from reducing the assets of the business to below the level necessary to meet the commitments they have towards their employees.
Amendment 27 #
Proposal for a directive Recital 2 (2) Restructuring should enable enterprises in financial difficulties for which they are not responsible 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. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage
Amendment 270 #
Proposal for a directive Article 18 – paragraph 1 – point d a (new) (da) to fulfil, in the manner most compatible with confidentiality, the obligations arising from the directives granting rights to workers.
Amendment 271 #
Proposal for a directive Article 18 – paragraph 1 – point d a (new) (da) to avoid the payment of irresponsible bonuses to directors.
Amendment 272 #
Proposal for a directive Article 18 – paragraph 1 a (new) Amendment 274 #
Proposal for a directive Article 19 – paragraph 1 (1) Member States shall ensure that over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive and that creditors can receive maximised dividends.
Amendment 275 #
Proposal for a directive Article 19 – paragraph 1 1. Member States shall ensure that over-indebted entrepreneurs and non- business consumers may be fully discharged of their debts in accordance with this Directive.
Amendment 276 #
Proposal for a directive Article 19 – paragraph 1 1. Member States shall ensure that over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive, while guaranteeing the payment of all claims by workers.
Amendment 277 #
Proposal for a directive Article 19 – paragraph 2 2. Member States in which a full discharge of debt is conditional on a partial repayment of debt by the entrepreneur or non-business consumer shall ensure that the related repayment obligation is based on the individual situation of the entrepreneur or consumer and is notably proportionate to his or her disposable income over the discharge period
Amendment 278 #
Proposal for a directive Article 19 – paragraph 2 2. Member States in which a full discharge of debt is conditional on a partial repayment of debt by the entrepreneur shall ensure that the related repayment obligation is based on the individual situation of the entrepreneur and is notably proportionate to his or her disposable income over the discharge period. The criteria of honest professional behaviour by which the reliability of entrepreneurs is judged must be verified and such behaviour must be attested by appropriate documents issued by the authorities. Such documents shall serve to justify recourse to second chance.
Amendment 279 #
Proposal for a directive Article 20 – paragraph 1 – introductory part 1. The period of time after which over-indebted entrepreneurs and non- business consumers may be fully discharged from their debts shall be no
Amendment 28 #
Proposal for a directive Recital 2 (2) Restructuring should enable enterprises and consumers in financial difficulties to continue business in whole or in part, and ensure that they can maintain decent levels of subsistence, by changing the composition, conditions or structure of assets and liabilities or of their capital or property structure, including by sales of assets, property or parts of the business. Preventive restructuring frameworks should above all enable the enterprises and individual consumers 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 both unnecessary job losses and losses of knowledge and skills, and an increase in poverty and risk of exclusion among honest over-indebted consumers who are not entrepreneurs. They should also prevent the build-up of non- performing loans and debts. In the restructuring process the rights of all parties involved should be protected, especially those of particularly vulnerable individuals at risk of falling into poverty or social exclusion. At the same time, non- viable businesses with no prospect of survival should be liquidated as quickly as possible.
Amendment 280 #
Proposal for a directive Article 20 – paragraph 1 – point a Amendment 281 #
Proposal for a directive Article 20 – paragraph 1 – point b Amendment 282 #
Proposal for a directive Article 20 – paragraph 2 2. Member States shall ensure that on expiry of the discharge period, over- indebted entrepreneurs and non-business consumers are discharged of their debts without the need to re-apply to a judicial or administrative authority.
Amendment 283 #
Proposal for a directive Article 21 a (new) Article 21a Evictions and access to the basic goods and services needed to ensure a decent living Member States shall ensure that, when an over-indebted, non-business consumer begins a debt restructuring or discharge procedure pursuant to this Directive, any proceedings to evict them or deprive them of access to basic goods and services needed to ensure decent living conditions as a result of such over-indebtedness shall cease, with no need for recourse to a court or administrative authority.
Amendment 284 #
Proposal for a directive Article 22 – paragraph 1 – introductory part 1. By way of derogation from Articles 19, 20, 21 and 21(a), Member States may 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:
Amendment 285 #
Proposal for a directive Article 22 – paragraph 1 – point b (b) the over-indebted entrepreneur does not adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors, particularly where he misuses the insolvency procedure in order to deprive workers of their rights;
Amendment 286 #
Proposal for a directive Article 22 – paragraph 4 4. By way of derogation from Article 21, Member States
Amendment 287 #
Proposal for a directive Article 23 – paragraph 1 1. Member States shall ensure that,
Amendment 288 #
Proposal for a directive Article 23 – paragraph 2 a (new) 2a. Member States may extend the scope of this Directive to cover natural persons if they see fit.
Amendment 289 #
Proposal for a directive Article 25 – paragraph 2 2. Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to
Amendment 29 #
Proposal for a directive 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. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should prevent job losses and loss of knowledge and skills and maximise the total value to creditors, owners and the economy as a whole
Amendment 290 #
Proposal for a directive Article 26 – paragraph 3 (3) Where practitioners in the field of restructuring, insolvency and second chance are appointed by the judicial or administrative authority, Member States shall ensure that the criteria concerning the manner in which the judicial or administrative authority selects such a practitioner are clear and transparent. In selecting a practitioner in the field of restructuring, insolvency and second chance for a particular case, due consideration shall be given to the practitioner's experience and expertise.
Amendment 291 #
Proposal for a directive Article 26 – paragraph 4 a (new) 4a. When the restructuring procedures have been completed, the entrepreneurs and creditors shall be consulted in order to evaluate the performance of the practitioner in terms of saving jobs both in the undertaking and in the creditors’ undertakings.
Amendment 292 #
Proposal for a directive Article 27 – paragraph 1 1. Member States shall put in place appropriate oversight and regulatory structures to ensure that the work of practitioners in the field of restructuring, insolvency and second chance is appropriately supervised. This oversight and regulation shall also include an appropriate and effective regime for identifying and sanctioning practitioners who have failed in their duties. This oversight and regulation shall also include an appropriate and effective regime for identifying and sanctioning vulture funds which have repeatedly taken action to the detriment of employment without genuinely participating in the objectives of the preventive restructuring.
Amendment 293 #
Proposal for a directive Article 28 – paragraph 1 – point c (c) notifications to creditors, including workers' representatives;
Amendment 294 #
Proposal for a directive Article 29 – paragraph 1 – subparagraph 1 – point g a (new) (ga) the number of jobs at risk at the opening of a procedure and the number of jobs maintained at the end of the procedure. The number of indirect jobs with creditors/suppliers shall also be counted.
Amendment 295 #
Proposal for a directive Article 29 – paragraph 1 – subparagraph 1 – point g a (new) (ga) the number of job losses, transfer of part or whole of the business, part redundancy and impact of restructuring agreements on the employment and the level of public finance;
Amendment 296 #
Proposal for a directive Article 29 – paragraph 1 – subparagraph 1 – point g b (new) (gb) an evaluation on the work carried by the practitioners and its results;
Amendment 297 #
Proposal for a directive Article 29 – paragraph 4 4. The Commission shall establish the communication form referred to in paragraph 3 by way of
Amendment 298 #
Proposal for a directive Article 30 a (new) Amendment 30 #
Proposal for a directive 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, if those operations, like the liquidation of assets, also contribute to the satisfaction of creditors’ claims. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should even maximise the total value to creditors in comparison with that which they would receive in the event of the liquidation of assets, owners and the economy as a whole and should prevent unnecessary job losses and losses of operations, 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, including those of workers. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.
Amendment 31 #
Proposal for a directive Recital 2 (2) Restructuring, the result of appropriate and viable expert reports, 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
Amendment 32 #
Proposal for a directive 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. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency and the liquidation of viable companies. 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
Amendment 33 #
Proposal for a directive Recital 3 (3) There are differences between the Member States as regards the range of the procedures available to
Amendment 34 #
Proposal for a directive 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 or debts, in the case of consumers who are not entrepreneurs. 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. Similarly, according to recently published studies1a, there are different models for the treatment of over- indebtedness among consumers, individuals and families across Europe. Mention might be made of three specific models1b: the Anglo-Saxon or market model, the Franco-Scandinavian or debtor rehabilitation model, and the Germanic model of debtor responsibility. Indeed, in some European Union countries such as Spain and Bulgaria these procedures are virtually non- existent in the case of natural persons who are not entrepreneurs. With regard to 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, these vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge. __________________ 1a Study on a new approach to business failure and insolvency. Published by EC DG for JUSTICE and CONSUMERS: http://ec.europa.eu/justice/civil/files/insolv ency/insolvency_study_2016_final_en.pdf (24.05.2017) 1bGutiérrez-Peris, D. Viavoice (2015) Personal insolvency laws in Europe
Amendment 35 #
Proposal for a directive Recital 3 a (new) (3a) Early recourse to preventive restructuring should not have the effect of whittling down workers’ rights, particularly with regard to their pay and working conditions, but also with regard to their rights to representation and, more generally, to conduct a normal relationship between social partners, in particular as regards information and consultation.
Amendment 36 #
Proposal for a directive Recital 3 a (new) (3a) Workers’ representatives should be given a whistleblower role with regard to the state of health of their company. In addition, the use of expert evaluations as part of restructuring plans should be guaranteed and promoted, particularly evaluations relevant to buy-outs of companies by their employees.
Amendment 37 #
Proposal for a directive Recital 3 a (new) (3a) The Member States should examine the possibility of devising mechanisms to prevent excessive or abusive recourse to experts at the expense of an undertaking on the part of employees, since such recourse would ultimately have a negative impact on the financial situation of the undertaking.
Amendment 38 #
Proposal for a directive Recital 3 a (new) (3a) A common legislative framework will be positive for the interests of businesses and entrepreneurs wishing to extend their activity to other Member States and for transnational investors, since legal uncertainty will be reduced.
Amendment 39 #
Proposal for a directive Recital 3 b (new) (3b) Early restructuring may entail the exceptional renegotiation of working conditions, including pay, if this serves the normal continuation of business activity and the maintenance of jobs.
Amendment 40 #
Proposal for a directive Recital 3 b (new) (3b) Special treatment should be accorded to retired workers whose pensions depend, entirely or in part, on company pension plans and who might be harmed by early restructuring.
Amendment 41 #
Proposal for a directive Recital 4 (4) In many Member States it takes more than three years for bankrupt, but honest entrepreneurs to discharge their debts and make a fresh start.
Amendment 42 #
Proposal for a directive Recital 4 (4) In many Member States it takes more than three years for bankrupt, but honest entrepreneurs or honest over- indebted consumers who are not entrepreneurs to discharge their debts and make a fresh start. Inefficient second chance frameworks result in entrepreneurs having to relocate in other jurisdictions in order to benefit from a fresh start in a reasonable period of time, or consumers who are not entrepreneurs frequently being thrown into poverty and exclusion or facing living and subsistence conditions that are a violation of human rights and the right to maintain decent living standards. This all comes at considerable additional costs to both their creditors and the debtors themselves, and for society as a whole. Long disqualification orders or eviction which often accompany a procedure leading to discharge create obstacles to the freedom to take up and pursue a self-employed, entrepreneurial activity and violate people’s dignity.
Amendment 43 #
Proposal for a directive Recital 4 (4) In many Member States it takes more than three years for bankrupt, but honest entrepreneurs to discharge their debts and make a fresh start. Inefficient second chance frameworks result in entrepreneurs having to relocate in other jurisdictions in order to benefit from a fresh start in a reasonable period of time, at considerable additional costs to both their creditors and the debtors themselves. Long disqualification orders which often accompany a procedure leading to discharge create obstacles to the freedom to
Amendment 44 #
Proposal for a directive Recital 4 a (new) (4a) A second chance should be seen as a step towards success and not a synonym for failure. Second-chance mechanisms that allow the exoneration of unpaid debt for those debtors who are considered as acting in good faith represent a disincentive for the black economy and foster the business culture, which will always have a positive effect on employment. Member States may extend second chance to natural persons.
Amendment 45 #
Proposal for a directive Recital 5 (5) Excessive length of restructuring, insolvency and discharge procedures in several Member States, or the virtual inexistence of these procedures in some cases, is an important factor triggering low business recovery rates
Amendment 46 #
Proposal for a directive Recital 5 (5) Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering longstanding damage for the workers concerned, low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long.
Amendment 47 #
Proposal for a directive Recital 6 (6)
Amendment 48 #
Proposal for a directive Recital 6 (6) All these differences translate into additional costs for investors or banks when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of
Amendment 49 #
Proposal for a directive 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 uncertainty therefore acts as a disincentive which obstructs the freedom of establishment of undertakings and harms the proper functioning of the internal market.
Amendment 50 #
Proposal for a directive Recital 7 (7) Those differences
Amendment 51 #
Proposal for a directive 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 for entrepreneurs and for consumers who are not entrepreneurs is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.
Amendment 52 #
Proposal for a directive 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, as well as for the viability of economic operations and therefore for the preservation and creation of jobs.
Amendment 53 #
Proposal for a directive Recital 8 Amendment 54 #
Proposal for a directive Recital 8 (8) The additional risk-assessment and cross-border enforcement costs for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time should also be removed. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a second chance should also be reduced. This would likewise reduce the alarming costs for society of the spectacular rise in poverty and exclusion, as well as use of the black economy, resulting from unresolved over- indebtedness among individuals and families who daily face eviction or lack of access to basic goods and services, which generates a pocket of marginalisation that is not only unjust but also unproductive and counter-productive in terms of economic efficiency. Furthermore, the obstacles stemming from long disqualification orders linked to an entrepreneur's over-
Amendment 55 #
Proposal for a directive Recital 8 (8) The additional risk-assessment and cross-border enforcement costs for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time should also be removed. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a second chance should also be reduced. Furthermore, the obstacles stemming from long disqualification orders linked to an entrepreneur's over- indebtedness s
Amendment 56 #
Proposal for a directive Recital 8 a (new) Amendment 57 #
Proposal for a directive Recital 9 (9) The obstacles to the exercise of fundamental freedoms are not limited to purely cross-border situations. An increasingly interconnected single market - where goods, services, capital and workers circulate freely to the detriment of honest entrepreneurs – with an ever stronger digital dimension means that very few financial companies are purely national if all relevant elements are considered, such as their client base, supply chain, scope of activities, investor and capital base. Even purely national insolvencies may have an impact on the functioning of the single market through the so-called domino effect of insolvencies, whereby an enterprise's insolvency may trigger further insolvencies in the supply chain.
Amendment 58 #
Proposal for a directive Recital 10 (10) Regulation (EU) 2015/848 of the
Amendment 59 #
Proposal for a directive Recital 10 (10) Regulation (EU) 2015/848 of the European Parliament and of the Council62 deals with issues of jurisdiction, recognition and enforcement, applicable law and cooperation in cross-border insolvency proceedings as well as with the interconnection of insolvency registers. Its
Amendment 60 #
Proposal for a directive Recital 11 (11) It is necessary to lower the costs of restructuring for both debtors and creditors. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should
Amendment 61 #
Proposal for a directive Recital 11 (11) It is necessary to lower the costs of restructuring for both debtors and creditors, who often bear those costs indirectly because of the reduction of their reimbursement. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should maximise the returns to all types of creditors and investors and encourage cross-border investment. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.
Amendment 62 #
Proposal for a directive Recital 11 (11) It is necessary to lower the costs of restructuring for both debtors and creditors. Therefore the differences which hamper the early restructuring of viable enterprises and productive and able citizens in financial difficulties, and the possibility of a second chance for honest entrepreneurs and consumers who are not entrepreneurs, should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should maximise the returns to all types of creditors and investors and encourage cross-border investment, as well as greater social cohesion across the Union, which should improve the resilience of European economies. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.
Amendment 63 #
Proposal for a directive Recital 11 (11) It is necessary to lower the costs of restructuring for both debtors and creditors. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should prioritise the protection of the workers concerned and their claims by ensuring absolute priority to their class claims, maximise the returns to all types of creditors and investors and
Amendment 64 #
Proposal for a directive Recital 12 Amendment 65 #
Proposal for a directive Recital 12 (12) Removing the barriers to effective restructuring of viable enterprises and consumers who are not entrepreneurs in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills, and
Amendment 66 #
Proposal for a directive Recital 12 (12)
Amendment 67 #
Proposal for a directive Recital 12 (12) Removing the barriers to effective restructuring of viable enterprises in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. In order to attain that objective and to preserve employment and operations, it is necessary to enable these procedures to be conducted in whole or in part in a confidential framework, which in particular requires the rights of workers to be specified better. Facilitating a second chance for entrepreneurs avoids their exclusion from the labour market and enables them to
Amendment 68 #
Proposal for a directive Recital 13 (13) In particular small and medium sized enterprises should benefit from a
Amendment 69 #
Proposal for a directive Recital 13 (13) In particular small and medium sized enterprises and consumers who are not entrepreneurs 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 States. Small and medium enterprises, as well as consumers, 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 these debtors to the urgency to act. In order to help such enterprises and individuals restructure at low cost, model restructuring plans 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 business or the nature of their indebtedness as consumers who are not entrepreneurs.
Amendment 70 #
Proposal for a directive Recital 13 (13) In particular small and medium sized enterprises 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 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,
Amendment 71 #
Proposal for a directive Recital 13 (13) In particular small and medium sized enterprises 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 States. Small and medium
Amendment 72 #
Proposal for a directive Recital 13 (13) In particular small and medium sized enterprises 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 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 plans 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 business. It should be possible for the debtor to find ad hoc and special solutions with third parties or creditors, either by reducing debts to all or most of the creditors or by surrendering whatever operations are viable, contributing to the satisfaction of creditors’ claims better than by means of the liquidation of assets, while preserving as many jobs as possible.
Amendment 73 #
Proposal for a directive Recital 13 a (new) (13a) In order to secure a more coherent approach, the Commission is asked to consider setting up a single European journal recording insolvencies, which would provide greater transparency for all creditors and simplify access to information, in particular for small and medium-sized enterprises and for employees.
Amendment 74 #
Proposal for a directive 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
Amendment 75 #
Proposal for a directive 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. 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. 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,
Amendment 76 #
Proposal for a directive Recital 16 (16) The earlier the debtor and the workers concerned can detect
Amendment 77 #
Proposal for a directive Recital 17 (17) A restructuring framework should
Amendment 78 #
Proposal for a directive Recital 18 (18)
Amendment 79 #
Proposal for a directive Recital 18 (18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested
Amendment 80 #
Proposal for a directive Recital 18 (18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative
Amendment 81 #
Proposal for a directive Recital 18 (18) To promote efficiency and reduce delays and costs, national preventive
Amendment 82 #
Proposal for a directive Recital 19 Amendment 83 #
Proposal for a directive 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
Amendment 84 #
Proposal for a directive 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 or, as appropriate, may affect access to minimum goods and services that are necessary to be able to live a decent life. 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. 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
Amendment 85 #
Proposal for a directive Recital 20 Amendment 86 #
Proposal for a directive Recital 20 (20) To
Amendment 87 #
Proposal for a directive Recital 20 (20) To ensure that the creditors do not suffer detriment, the stay should not be granted or, if granted, should not be
Amendment 88 #
Proposal for a directive Recital 21 Amendment 89 #
Proposal for a directive Recital 21 (21) Creditors to which the stay applies should also not be allowed to withhold performance, terminate, accelerate or in any other way modify executory contracts during the stay period, provided the debtor continues to comply with its existing obligations under such contracts. Early termination would endanger the ability of the business to continue operating during restructuring negotiations, especially when it concerns contracts for essential supplies such as gas, electricity, water, telecoms and card payment services. However, in order to protect the legitimate interests of creditors and to ensure the least disruption to the operation of creditors in the supply chain, the stay should only apply in respect of the claims which arose before the stay was granted. In order to achieve a successful restructuring, the debtor should pay in the ordinary course of business claims of and owed to priority creditors unaffected by the stay and the claims of creditors affected by the stay that arise after the stay is granted.
Amendment 90 #
Proposal for a directive Recital 21 (21) Creditors to which the stay applies should also not be allowed to withhold performance, terminate, accelerate or in any other way modify executory contracts during the stay period, provided the debtor continues to comply with its existing obligations under such contracts. Early termination would endanger the ability of the business to continue operating during restructuring negotiations or that of individual consumers and users to continue to have access to minimum goods and services that are necessary to be able to live a decent life, especially when it concerns contracts for essential supplies such as gas, electricity, water, telecoms and card payment services or access to premises or their habitual home, as appropriate. However, in order to protect the legitimate interests of creditors and to ensure the least disruption to the operation of creditors in the supply chain, the stay should only apply in respect of the claims which arose before the stay was granted. In order to achieve a successful restructuring, the debtor should pay in the ordinary course of business claims of and owed to creditors unaffected by the stay and the claims of creditors affected by the stay that arise after the stay is granted.
Amendment 91 #
Proposal for a directive Recital 22 Amendment 92 #
Proposal for a directive Recital 22 (22) When a debtor enters an insolvency procedure, some suppliers may have contractual rights entitling them to terminate the supply contract solely on account of the insolvency (known as ipso facto clauses). The same may be true when a debtor applies for preventive
Amendment 93 #
Proposal for a directive Recital 23 Amendment 94 #
Proposal for a directive Recital 23 (23) Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority, for example by providing information demonstrating the probability of misconduct on the part of a dishonest entrepreneur. When the stay is no longer necessary with a view to facilitating the adoption of a restructuring plan, for example because it is clear that there is a lack of support for the restructuring from a majority of creditors as required by national law, creditors should also be able to ask that stay be lifted.
Amendment 95 #
Proposal for a directive Recital 24 (24) Any
Amendment 96 #
Proposal for a directive 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 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. Workers should, at all events, be given preferential treatment. In order to prevent chain bankruptcies, suppliers/clients with fewer than 50 employees should be treated as a priority class of creditors when activities essential to their survival are at stake. 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 97 #
Proposal for a directive 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 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. Workers should, at all events, be given preferential treatment and special consideration as potential buyers. 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 98 #
Proposal for a directive Recital 26 (26)
Amendment 99 #
Proposal for a directive Recital 26 (26) Requisite majorities should be established by national law to ensure that a minority of affected parties in each class cannot obstruct the adoption of
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