2022/0408(COD) | [ParlTrack]

Proposal for a directive
Article 27 – paragraph 2 a (new)

2a. Paragraphs 2 and 3 of this Article shall not apply to workers’ claims. The law applicable to these claims shall be determined in accordance with Article 8 of Regulation 593/2008 (Rome I).

Amendment 101 #

Proposal for a directive
Article 28 – paragraph 1

Member States shall ensure that the acquirer acquires the debtor’s business or part thereof ~~free of debts and liabilities, unless the acquirer expressly consents to bear the debts and the liabilities of the business or part thereof~~in accordance with Council Directive 2001/23/EC and the case law of the Court of Justice of the European Union.

Amendment 102 #

Proposal for a directive
Article 28 – paragraph 1 a (new)

Liability for the clean-up of environmental impacts shall not be excluded from the acquisition.

Amendment 103 #

Proposal for a directive
Article 29 – paragraph 1

1. Member States shall ensure that appeals against decisions of the court relating to the authorisation or execution of the sale of the debtor’s business or part thereof may have suspensive effects only subject to the provision by the appellant of a security that is adequate to cover the potential damages caused by the stay of the realisation of the sale. This provision does not apply to trade unions or workers’ representatives representing workers in the debtor’s business or part thereof.

Amendment 104 #

Proposal for a directive
Article 30 – paragraph 1

Member States shall ensure that the criteria to select the best bid in the pre-pack proceedings arinclude the samefeguarding of employment as well as the criteria used to select between competing offers in winding-up proceedings.

Amendment 105 #

Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1 – point a

(a) they disclose in a timely manner to the monitor, the creditors, and to the court their relation to the debtor;

Amendment 106 #

Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1 – point a a (new)

(aa) the purchase of the asset can be shown to be at fair value;

Amendment 107 #

Proposal for a directive
Article 34 a (new)

Article 34a Protection of the interests of third parties and the environment 1. Member States shall ensure that the cost for the remeditation of potential environmental damage, if any, within the responsibility of the debtor or on premises owned or occupied by the debtor, shall be assessed and considered as a claim on the debtor to be compensated alongside other creditors. 2. The cost of such environmental remediation, if required, shall be financed through the insolvency estate.

Amendment 108 #

Proposal for a directive
Article 36 – title

Duty to ~~requ~~take all possible measurest t~~he opening of insolvency proceedings~~o prevent bankruptcy

Amendment 109 #

Proposal for a directive
Article 36 – paragraph 1

Member States shall ensure that, where a ~~legal entity becomes insolvent, its directors are obliged to submit a request for the opening~~director becomes aware or has reasonable cause to believe that the legal entity is ofr i~~nsolvency proceedings with the court no later than 3 months after the directors became aware or can reasonably be expect~~s likely to be insolvent, the director shall have regard to: (a) the interests of the creditors, (b) the need to take steps to avoid insolvency, and (c) the need to hav~~e been aware that the legal entity is insolvent~~oid deliberate or grossly negligent conduct that threatens the viability of the business of the company.

Amendment 110 #

Proposal for a directive
Article 36 – paragraph 1

Member States shall ensure that, where a legal entity becomes insolvent, its directors are obliged to submit a request for the opening of insolvency proceedings with the court no later than 3 months after the directors became aware or can reasonably be expected to have been aware that the legal entity is insolventtake all possible measures to prevent bankruptcy.

Amendment 111 #

Proposal for a directive
Article 37 – paragraph 1

1. Member States shall ensure that a failure to comply with the obligation laid down in Article 36 renders the insolvent legal entity’s directors ~~are~~ liable for damages incurred by creditors ~~as a result of their failure to comply with the obligation laid down in Article 36~~.

Amendment 112 #

Proposal for a directive
Article 37 – paragraph 1

1. Member States shall ensure that the insolvent legal entity’s directors are liable for damages incurred by creditors and workers as a result of their failure to comply with the obligation laid down in Article 36.

Amendment 113 #

Proposal for a directive
Article 37 – paragraph 2

2. Paragraph 1 shall be without prejudice to national rules on civil liability for the breach of the duty of directors to ~~submit a request for the opening of insolvency proceedings as set out in Article 36 that are stricter towards directors~~take all possible measures to prevent bankruptcy.

Amendment 114 #

Proposal for a directive
Title VI

VI WINDING-UP OF INSOLVENT MICROENTERPRISES AND SMEs

Amendment 115 #

Proposal for a directive
Article 38 – title

Rules on winding-up of microenterprises and SMEs

Amendment 116 #

Proposal for a directive
Article 38 – paragraph 1

1. Member States shall ensure that microenterprises and SMEs, when insolvent, have access to simplified winding-up proceedings that comply with the provisions laid down in this Title.

Amendment 117 #

Proposal for a directive
Article 38 – paragraph 2

2. ~~A microenterprise~~These entities shall be deemed insolvent for the purposes of simplified winding-up proceedings when ~~it is~~they are generally unable to pay ~~its~~their debts as they mature. Member States shall set out the conditions under which a microenterprise or SME is deemed to be generally unable to pay its debts as they mature and ensure that these conditions are clear, simple and easily ascertainable by the microenterprise or SME concerned.

Amendment 118 #

Proposal for a directive
Article 39 – paragraph 1 – introductory part

Member States shall ensure that infor simplified winding-up proceedings the need for an insolvency practitioner may ~~only be appointed~~be dispensed with if both of the following conditions are met:

Amendment 119 #

Proposal for a directive
Article 39 – paragraph 1 – point a

(a) the debtor, and creditor ors a gr~~oup of creditors requests such an appointment~~ee to do so;

Amendment 120 #

Proposal for a directive
Article 39 – paragraph 1 – point b

(b) ~~the costs of the intervention of the insolvency practitioner can be funded by the insolvency estate or by the party that requested the appointment.~~it remains possible for the debtor, a creditor, or group of creditors to request the appointment of an insolvency practitioner at a later stage;

Amendment 121 #

Proposal for a directive
Article 41 – paragraph 1

1. Member States shall ensure that insolvent microenterprises and SMEs can submit a request for the opening of simplified winding-up proceedings to a competent authority.

Amendment 122 #

Proposal for a directive
Article 41 – paragraph 2

2. Member States shall ensure that any creditor of an insolvent microenterprise or SME can submit a request for the opening of simplified winding-up proceedings against the ~~microenterprise~~entity to a competent authority. The microenterprise or SME concerned shall be given the opportunity to respond to the request, by contesting or consenting to it.

Amendment 123 #

Proposal for a directive
Article 41 – paragraph 3

3. Member States shall ensure that microenterprises and SMEs can submit a request for the opening of simplified winding-up proceedings using a standard form.

Amendment 124 #

Proposal for a directive
Article 41 – paragraph 4

4. The standard form referred to in paragraph 3 shall allow for the inclusion, among others, of the following information: (a) person, the debtor’s name, registration number, registered office or, if different, postal address; (b) entrepreneur, the debtor’s name, registration number, if any, and postal address or, where the address is protected, the debtor's place and date of birth; (c) a list of the assets of the microenterprise; (d) details of creditors of the microenterprise, as known to the microenterprise at the time of the submission of the request, (e) the list of the claims against the microenterprise and, for each claim, its amount specifying the principal and, where applicable, interest and the date on which it arose and the date on which it became due, if different; (f) of title is alleged in respect of a certain claim and, if so, what assets are covered by the security interest.deleted if the microenterprise is a legal if the microenterprise is an name, address or other contact if security in rem or a reservation

Amendment 125 #

Proposal for a directive
Article 41 – paragraph 4 – point a

(a) if the microenterprise or SME is a legal person, the debtor’s name, registration number, registered office or, if different, postal address;

Amendment 126 #

Proposal for a directive
Article 41 – paragraph 4 – point b

(b) if the microenterprise or SME is an entrepreneur, the debtor’s name, registration number, if any, and postal address or, where the address is protected, the debtor's place and date of birth;

Amendment 127 #

Proposal for a directive
Article 41 – paragraph 4 – point c

Amendment 128 #

Proposal for a directive
Article 41 – paragraph 4 – point d

(d) name, address or other contact details of creditors of the microenterprise or SME, as known to the ~~microenterprise~~entity at the time of the submission of the request,

Amendment 129 #

Proposal for a directive
Article 41 – paragraph 4 – point e

(e) the list of the claims against the microenterprise or SME and, for each claim, its amount specifying the principal and, where applicable, interest and the date on which it arose and the date on which it became due, if different;

Amendment 130 #

Proposal for a directive
Article 41 – paragraph 6

6. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor, and the microenterprise expressed its consent to the opening of the proceedings, the microenterprise is required to submit the ~~information listed~~standard form referred to in paragraph 43 together with the response referred to in paragraph 2 of this Article, where available.

Amendment 131 #

Proposal for a directive
Article 41 – paragraph 6

6. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor, and the microenterprise or SME expressed its consent to the opening of the proceedings, the ~~microenterprise~~entity is required to submit the information listed in paragraph 4 together with the response referred to in paragraph 2 of this Article, where available.

Amendment 132 #

Proposal for a directive
Article 41 – paragraph 7

7. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor and the competent authority opens such proceedings despite the microenterprise contesting or not responding to the request the microenterprise is required to submit the ~~information listed~~standard form referred to in paragraph 43 of this Article no later than two weeks following the receipt of the notice of opening.

Amendment 133 #

Proposal for a directive
Article 41 – paragraph 7

7. Member States shall ensure that when the request for opening simplified winding-up proceedings is submitted by a creditor and the competent authority opens such proceedings despite the microenterprise or SME contesting or not responding to the request the ~~microenterprise~~entity is required to submit the information listed in paragraph 4 of this Article no later than two weeks following the receipt of the notice of opening.

Amendment 134 #

Proposal for a directive
Article 42 – paragraph 2 – point a

(a) the debtor is not a microenterprise or SME;

Amendment 135 #

Proposal for a directive
Article 42 – paragraph 3

3. Member States shall ensure that the microenterprise, SME or any creditor of the ~~microenterprise~~entity may challenge before a court the decision on the request for the opening of simplified winding-up proceedings. The challenge has no suspensive effect on the opening of simplified winding-up proceedings and shall be dealt with promptly by the court.

Amendment 136 #

Proposal for a directive
Article 43 – paragraph 4

~~4. Member States shall ensure that, where the debtor no longer holds the right to manage~~deleted andy d~~ispose of its assets and no insolvency practitioner is appointed,~~ ecisione of the ~~following applies: (a) effect becomes subject to the approval of the competent authority, or (b) the right to manage and dispose of the assets of the debtor to a creditor.~~debtor to that the competent authority entrusts

Amendment 137 #

Proposal for a directive
Article 46 – paragraph 1

(1) Member States shall ensure that the claims against the debtor are considered as lodged without any further action from the creditors concerned, where those claims are indicated by the debtor in one of the following submissions: (a) simplified winding-up proceedings; (b) in its response to the request for the opening of such proceedings submitted by a creditor; (c) Article 41(7).deleted in its request for the opening of in its submission pursuant to

Amendment 138 #

Proposal for a directive
Article 48 – paragraph 2

(2) The assets of the insolvency estate shall include assets ~~in the possession~~which were the property of the debtor at the time of the opening of simplified winding-up proceedings, assets acquired after the submission of the request for opening of such proceedings and assets recovered through avoidance actions or other actions.

Amendment 139 #

Proposal for a directive
Article 48 – paragraph 2

2. The assets of the insolvency estate shall include assets in the ~~possession~~ownership of the debtor at the time of the opening of simplified winding-up proceedings, assets acquired after the submission of the request for opening of such proceedings and assets recovered through avoidance actions or other actions.

Amendment 140 #

Proposal for a directive
Article 48 – paragraph 2

2. The assets of the insolvency estate shall include assets in the p~~ossession~~roperty of the debtor at the time of the opening of simplified winding-up proceedings, assets acquired after the submission of the request for opening of such proceedings and assets recovered through avoidance actions or other actions.

Amendment 141 #

Proposal for a directive
Article 55 – paragraph 2

2. Member States shall ensure that the decision on the closure of the simplified winding-up proceedings includes a specification of the time period leading to the discharge of the entrepreneur debtor or of those founders, owners or members of an unlimited liability microenterprise or SME debtor who are personally liable for the debts of the debtor.

Amendment 142 #

Proposal for a directive
Article 58 – paragraph 1

1. Member States shall ensure that a creditors’ committee is established only if the general meeting of creditors so decides and in accordance with the national law in each Member State.

Amendment 143 #

Proposal for a directive
Article 59 – paragraph 1

1. Member States shall ensure that the members of the creditors’ committee are appointed either at the general meeting of creditors or by decision of the court~~, within 30 days from the date of the opening of the proceedings as referred to in Article 24(2), point (a) of Regulation (EU) 2015/848~~.

Amendment 144 #

Proposal for a directive
Article 59 – paragraph 3

3. Member States ~~shall~~may ensure that the appointed members of the creditors’ committee fairly reflect the different interests of creditors or groups thereof.

Amendment 145 #

Proposal for a directive
Article 59 – paragraph 3

3. Member States shall ensure that the appointed members of the creditors’ committee fairly reflect the different interests of creditors or groups thereof, including the interests of workers through the appointment of a workers’ representative to the creditor’s committee.

Amendment 146 #

Proposal for a directive
Article 60 – paragraph 1 – subparagraph 1

Member States shall ensure that members of the creditors’ committee represent solely the interests of the whole body of creditors, including workers, and act independently of the insolvency practitioner.

Amendment 147 #

Proposal for a directive
Article 60 – paragraph 1 – subparagraph 2

By way of derogation from the previous subparagraph, Member States may maintain national provisions that allow to set up more than one creditors’ committee representing different groups of creditors, including workers, in the same insolvency proceedings. In this case, the members of the creditors’ committee represent solely the interests of the creditors, including workers, who appointed them.

Amendment 148 #

Proposal for a directive
Article 60 – paragraph 2

2. The creditors’ committee owes the duties to all creditors it represents, including workers.

Amendment 149 #

Proposal for a directive
Article 61 – paragraph 1

Member States shall ensure that the number of members composing the creditors’ committee is at least 32 and does not exceed 710, and that the company may appoint representatives to the committee.

Amendment 150 #

Proposal for a directive
Article 61 – paragraph 1

Member States shall ensure that the number of members composing the creditors’ committee is at least 3 and does not exceed 711.

Amendment 151 #

Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1

Member States shall ensure that the creditors’ committee’s function is to ensure that in the conduct of the insolvency proceedings the creditors’ interests including the interests of workers are protected and individual creditors are involved, in the case of the workers through a workers’ representative.

Amendment 44 #

Georgios KYRTSOS, Engin EROGLU

Proposal for a directive
Recital 2

(2) The wide differences in substantive insolvency laws acknowledged by Regulation (EU) 2015/848 of the European Parliament and of the Council32 create barriers to the internal market by reducing the attractiveness of cross-border investments, thus impacting the cross- border movement of capital within the Union and to and from third countries, undermining the guiding principles of the Capital markets union. __________________ 32 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141 5.6.2015, p. 19).

Amendment 45 #

Georgios KYRTSOS

Proposal for a directive
Recital 2

(2) The wide differences in substantive insolvency laws acknowledged by Regulation (EU) 2015/848 of the European Parliament and of the Council32 create barriers to the internal market by reducing the attractiveness of cross-border investments, thus impacting the viability of economic operations and the cross- border movement of capital within the Union and to and from third countries. __________________ 32 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141 5.6.2015, p. 19).

Amendment 46 #

Georgios KYRTSOS

Proposal for a directive
Recital 2 a (new)

(2a) Wide differences also exist in the application of insolvency law in Member States, in particular debt management, that disincentivise business undertaking; Member States should ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession, professional debts are to be treated, for the purposes of obtaining a discharge, separately from personal debts;

Amendment 47 #

Proposal for a directive
Recital 3

(3) Insolvency proceedings ensure the orderly winding down or restructuring of companies or entrepreneurs in financial and economic distress. These proceedings are key in financial investments, as they determine the final recovery value of such investments. Diverging rules among Member States have contributed to increasing legal uncertainty and unpredictability about insolvency proceedings’ outcome, so raising barriers especially for cross-border investments in the internal market. This uncertainty acts as a disincentive which obstructs the freedom of establishment of undertakings and the willingness to entrepreneurship thus harming the proper functioning of the internal market. Small and medium- sized enterprises, in particular, often lack the necessary resources to assess risks related to cross-border activities. Large divergences in recovery value and time required to complete insolvency proceedings across the Union have negative repercussions on cost predictability for creditors and investors in cross-border situations in the internal market.

Amendment 48 #

Proposal for a directive
Recital 3

(3) Insolvency proceedings ensure the orderly winding down or restructuring of companies or entrepreneurs in financial and economic distress. These proceedings are key in financial investments, as they determine the final recovery value of such investments. Diverging rules among Member States have contributed to increasing legal uncertainty and unpredictability about insolvency proceedings’ outcome, so raising barriers especially for cross-border investments in the internal market. Large divergences in recovery value and time required to complete insolvency proceedings across the Union have negative repercussions on cost predictability for creditors and investors in cross-border situations in the internal market, which acts as a disincentive to investment and makes it more difficult to attract foreign capital into EU territory.

Amendment 49 #

Georgios KYRTSOS, Engin EROGLU

Proposal for a directive
Recital 4

(4) The integration of the internal market in the area of insolvency laws pursued by this Directive is a key tool for a more efficient functioning of the capital markets in the European Union, including greater access to corporate financing, diversification of portfolios and investment opportunities, which has a particularly negative impact on SMEs. Therefore, it is necessary to set out minimum requirements in targeted areas of national insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, especially on cross-border insolvency proceedings.

Amendment 50 #

Proposal for a directive
Recital 4

(4) The integration of the internal market in the area of insolvency laws pursued by this Directive is a key tool for a more efficient functioning of the capital markets in the European Union, including greater access to corporate financing, while also preventing the build-up of non- performing loans (NPL). Therefore, it is necessary to set out minimum requirements in targeted areas of national insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, especially on cross-border insolvency proceedings.

Amendment 51 #

Proposal for a directive
Recital 4

(4) The integration of the internal market in the area of insolvency laws pursued by this Directive is a key tool for a more efficient functioning of the capital markets in the European Union, including greater access to corporate financing. Therefore, it is necessary to set out minimum requirements in targeted areas of national insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, as well as creating heightened risks and costs for investors, especially on cross-border insolvency proceedings.

Amendment 52 #

Proposal for a directive
Recital 5 a (new)

(5a) Exceptionally, when the perfection of a legal act requires registration in a public register, e.g. the land register, the legal act may be deemed to be perfected before the registration takes place. Since the registration procedure can take up considerable time and is beyond the control of the parties, it is not appropriate or justified to refer to the point in time when the legal act is registered for the purpose of avoidance actions. For example, the transfer of ownership of a property can require that the transfer is entered in the land register. In this case, it is not appropriate to refer to the completion of the transfer of ownership, i.e. when the transfer of ownership is entered in the land register. Instead, the relevant point in time could be, for instance, the moment when the debtor’s counterparty applies for registration of the transfer of ownership in the land register.

Amendment 53 #

Proposal for a directive
Recital 8

(8) In the context of avoidance actions, a distinction should be made between legal acts where the claim of the counterparty was due and enforceable and has been satisfied in the owed manner (congruent coverages) and those where performance was not entirely in accordance with the creditor’s claim (incongruent coverage). Incongruent coverages include, in particular, premature payments, the satisfaction with unusual means of payments, the subsequent collateralisation of a so far unsecured claim which was not already agreed upon in the original debt agreement, granting an extraordinary termination right or other amendments not provided for in the underlying contract, the waiver of legal defences or objections or the acknowledgement of disputable debts. In the case of congruent coverages, the avoidance ground of preferences can only be invoked if the creditor of the legal act that can be declared void knew~~, or should have known,~~ at the time of the transaction that the debtor was insolvent.

Amendment 54 #

Proposal for a directive
Recital 25

(25) In order to guarantee that the business is sold at the best market value during the pre-pack proceedings, Member States should either ensure high standards of competitiveness, transparency and fairness of the sale process conducted in the preparation phase, as well as access to independent valuation where required, or provide that the court runs a brief public auction after the opening of the liquidation phase of the proceedings.

Amendment 55 #

Proposal for a directive
Recital 35

(35) National insolvency rules are not always fit to treat insolvent microenterprises and SMEs properly and in a proportionate manner. Taking into account the unique characteristics of ~~micro~~these enterprises and their specific needs in financial distress, in particular the need for faster, simpler, and affordable procedures should be acknowledged, separate insolvency proceedings should be developed at national level in accordance with the provisions of this Directive. Although the provisions of this Directive concerning simplified winding-up proceedings only apply to microenterprises, it should be possible for Member States to extend their application also to small and medium-sized enterprises that are not micro applicable to small and medium-sized enterprises.

Amendment 56 #

Proposal for a directive
Recital 38

(38) In order to establish cost-effective and expeditious simplified winding-up proceedings for microenterprises and for SMEs, short deadlines should be introduced. Similarly, formalities for all procedural steps, including for the opening of the proceedings, the lodgement and the admission of claims, the establishment of the insolvency estate and the realisation of the assets should be minimised. A standard form should be used for submitting a request to open simplified winding-up proceedings and electronic means should be used for all communications between the competent authority, and where relevant, the insolvency practitioner, and the parties to the proceedings.

Amendment 57 #

Georgios KYRTSOS

Proposal for a directive
Recital 39

(39) All microenterprises should be able to commence proceedings to address their financial difficulties and obtain a discharge. Access to simplified winding-up proceedings should not depend on the microenterprise’s ability to cover the administrative costs of such proceedings. The laws of the Member States should introduce rules for covering the costs of administering simplified winding-up proceedings where assets and sources of revenue of the debtor are insufficient to cover those costs. Member States should also provide second chance entrepreneurs with business support, access to up-to- date information on the availability of administrative, legal, business or financial support and any means available to them to facilitate the relaunching of entrepreneurship capacity.

Amendment 58 #

Proposal for a directive
Recital 39

(39) All microenterprises and SMEs should be able to commence proceedings to address their financial difficulties and obtain a discharge. Access to simplified winding-up proceedings should not depend on the ~~microenterprise’s~~ir ability to cover the administrative costs of such proceedings. The laws of the Member States should introduce rules for covering the costs of administering simplified winding-up proceedings where assets and sources of revenue of the debtor are insufficient to cover those costs.

Amendment 59 #

Proposal for a directive
Recital 40

(40) In simplified winding-up proceedings, the appointment of an insolvency practitioner is usually unnecessary given the simple business operations carried out by the microenterprises that make their supervision by the competent authority possible and sufficient. However, the presence of an insolvency practitioner may also benefit the business as an independent actor capable of navigating the legal process. Therefore, the debtor should have the option of remaining in control of its assets and day-to-day operation of the business. At the same time, to ensure that simplified winding-up proceedings can be conducted effectively and efficiently, the debtor should, upon commencement of and throughout the proceedings, provide accurate, reliable and complete information relating to its financial position and business affairs.

Amendment 60 #

Proposal for a directive
Recital 41

(41) A microenterprise or SME debtor should be able to benefit from a temporary stay of individual enforcement actions, in order to be able to preserve the value of the insolvency estate and ensure a fair and orderly conduct of the proceedings. Member States, however, may allow competent authorities to exclude certain claims from the scope of the stay, in well- defined circumstances.

Amendment 61 #

Proposal for a directive
Recital 42

(42) Disputed claims should be dealt with in a way that does not unnecessarily complicate the conduct of simplified winding-up proceedings for microenterprises and for SMEs. If disputed claims cannot be quickly dealt with, the ability to dispute a claim may be used to create unnecessary delays. In deciding on the treatment of a disputed claim, the competent authority should be empowered to allow the continuation of the simplified winding-up proceedings with respect to undisputed claims only.

Amendment 62 #

Andreas SCHWAB

Proposal for a directive
Recital 44

(44) Member States should ensure that the assets of the insolvency estate in simplified winding-up proceedings can be realised through public on-line judicial auction, if the competent authority considers this means of realisation of assets as appropriate. For this reason, Member States should ensure that one or more electronic auction systems are maintained in their territory for that purposes. This obligation should be without prejudice to the multiple platforms that exist in some Member States for on-line judicial auctions of specific types of assets. This Directive should not affect national rules on the validity of contracts for the sale and transfer of shares in companies or special legal form requirements. Member States should, for example, be able to require a notarial deed or a confirmation of signatures.

Amendment 63 #

Proposal for a directive
Article 1 – paragraph 1 – point e

(e) simplified winding-up proceedings for microenterprises and small and medium-sized undertakings;

Amendment 64 #

Proposal for a directive
Article 2 – paragraph 1 – point q

(q) ‘party closely related to the debtor’ means the following persons, including legal persons, ~~with~~provided they have preferential access to non-public information on the affairs of the debtor.:

Amendment 65 #

Proposal for a directive
Article 2 – paragraph 1 – point q a (new)

(qa) ‘Small and medium-sized enterprises’ or ‘SMEs’ means an entity within the meaning of Annex I to Commission Regulation (EU) No 651/2014;

Amendment 66 #

Proposal for a directive
Article 2 – paragraph 2 – introductory part

Where the debtor is a natural person~~, closely related parties shall include in particular~~:

Amendment 67 #

Proposal for a directive
Article 2 – paragraph 3 – introductory part

Where the debtor is a legal entity~~, closely related parties shall include in particular~~:

Amendment 68 #

Proposal for a directive
Article 4 – paragraph 1 a (new)

Member States may adopt or maintain rules according to which exceptionally a legal act which in order to be perfected must be registered in a public register is deemed to be perfected before the registration takes place.

Amendment 69 #

Proposal for a directive
Article 5 – paragraph 1 a (new)

This Directive is without prejudice to workers’ rights to be informed and consulted in accordance with Union and national law on insolvency plans or elements of insolvency plans which may impact on terms and conditions of employment, structure of the undertaking, probable development and production and sales, substantial changes concerning organisation, introduction of new working methods or production processes, transfers of production, mergers, cut- backs or closures of undertakings or important parts thereof, and collective redundancies.

Amendment 70 #

Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 – introductory part

Member States shall ensure that legal acts benefitting a creditor or a group of creditors by satisfaction, collateralisation or in any other way can be declared void if they were perfected, should the court deem it just and equitable to do so, or alternatively the court can require a sum paid in respect thereof, to the insolvency practitioner on such terms or conditions as the court thinks fit :

Amendment 71 #

Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1 – point b

(b) that creditor knew~~, or should have known,~~ that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted.

Amendment 72 #

Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1 – point b

(b) that creditor knew~~, or should have known,~~ that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted.

Amendment 73 #

Proposal for a directive
Article 7 – paragraph 1

1. Member States shall ensure that legal acts of the debtor against no or a manifestly inadequate consideration ~~can be declared void~~and where the effect of such disposal was to perpetrate a fraud on the company, its creditors or members can be declared void by court order where it is deemed just and equitable to do so where they were perfected within a time period of ~~one year~~six months prior to the submission of the request for the opening of insolvency proceedings or after the submission of such request.

Amendment 74 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – introductory part

Member States shall ensure that legal acts by which the debtor has intentionally caused a detriment to the general body of creditors can be declared void by court order where it is deemed just and equitable to do so where both of the following conditions are met:

Amendment 75 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – point b

(b) the other party to the legal act knew ~~or should have known~~ of the debtor’s intent to cause a detriment to the general body of creditors.

Amendment 76 #

Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – point b

(b) the other party to the legal act knew ~~or should have known~~ of the debtor’s intent to cause a detriment to the general body of creditors.

Amendment 77 #

Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1

Member States shall ensure that the party which benefitted from the legal act that has been declared void ismay be obliged by court order where it is just and equitable to do so to compensate in full the insolvency estate concerned for the detriment caused to creditors by that legal act.

Amendment 78 #

Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1 a (new)

In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.

Amendment 79 #

Proposal for a directive
Article 11 – paragraph 2 – subparagraph 1 – point a

(a) the successor acquired the asset against no or a manifestly inadequate consideration, unless the acquisition was in good faith;

Amendment 80 #

Proposal for a directive
Article 11 – paragraph 2 – subparagraph 1 – point b

(b) the successor knew ~~or should have known~~ the circumstances on which the avoidance action is based.

Amendment 81 #

Proposal for a directive
Article 19 – paragraph 2 a (new)

2a. This Directive shall not prevent Member States from adopting or maintaining provisions relating to pre- pack proceedings where such provisions provide a greater protection of workers or their representatives than those set out in this Title.

Amendment 82 #

Proposal for a directive
Article 20 – paragraph 2

2. For the purposes of Article 5(1) of Council Directive 2001/23/EC40 , the liquidation phase shall be considered to be bankruptcy or insolvency proceedings instituted with a view to the liquidation of the assets of the transferor under the supervision of a competent public authority. __________________ 40 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001, p. 16).deleted

Amendment 83 #

Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1

Member States shall provide that, upon request of the debtor, and where appropriate to do so, the court appoints a monitor.

Amendment 84 #

Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1

Member States shall provide that, upon request of the debtor, or of workers’ representatives, the court appoints a monitor.

Amendment 85 #

Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point a a (new)

(aa) carries its tasks in consultation with workers’ representations;

Amendment 86 #

Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point a a (new)

(aa) may have recourse to an independent valuation where appropriate in order to satisfy requirements related to achieving market value;

Amendment 87 #

Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point b a (new)

(ba) consults with creditors on a regular basis as may be considered reasonable;

Amendment 88 #

Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point d

(d) states whether it considers that the best bid does not constitute a manifest breach of the best-interest-of-creditors test, taking in account the impact on employment.

Amendment 89 #

Proposal for a directive
Article 22 – paragraph 2 – subparagraph 2

Actions by the monitor listed in the first subparagraph shall be done in writing, be made available in digital format and in a timely manner to all parties involved in the preparation phase, including workers´ representatives.

Amendment 90 #

Proposal for a directive
Article 23 – paragraph 1

Member States shall ensure that during the preparation phase, where the debtor is ~~in a situation of likelihood of insolvency or is~~ insolvent in accordance with national law, the debtor can benefit from a stay of individual enforcement actions in accordance with Articles 6 and 7 of Directive (EU) 2019/1023, ~~where~~provided that it facilitates the seamless and effective roll- out of the pre-pack proceedings. The monitor shall be heard prior to the decision on the stay of individual enforcement actions.

Amendment 91 #

Proposal for a directive
Article 23 – paragraph 1

Member States shall ensure that during the preparation phase, where the debtor is in a situation of likelihood of insolvency or is insolvent in accordance with national law, the debtor can benefit from a stay of individual enforcement actions in accordance with Articles 6 and 7 of Directive (EU) 2019/1023, where ~~it facilitates~~necessary for the seamless and effective roll- out of the pre-pack proceedings. The monitor shall be heard prior to the decision on the stay of individual enforcement actions.

Amendment 92 #

Proposal for a directive
Article 23 – paragraph 1

Member States shall ensure that during the preparation phase, where the debtor is in a situation of likelihood of insolvency or is insolvent in accordance with national law, the debtor can benefit from a stay of individual enforcement actions in accordance with Articles 6 and 7 of Directive (EU) 2019/1023, where it ~~facilitates~~is required for the seamless and effective roll- out of the pre-pack proceedings. The monitor shall be heard prior to the decision on the stay of individual enforcement actions.

Amendment 93 #

Proposal for a directive
Article 24 – paragraph 1

1. Member States shall ensure that the sale process carried out during the preparation phase presents convincing guarantees for the safeguarding of employment, is competitive, transparent, fair and meets market standards.

Amendment 94 #

Proposal for a directive
Article 24 – paragraph 1

1. Member States shall ensure that the sale process carried out during the preparation phase is competitive, transparent, fair ~~and~~, meets market standards, and aims to achieve fair value for the purchase.

Amendment 95 #

Proposal for a directive
Article 24 – paragraph 1 a (new)

1a. Member States shall ensure that workers’ representatives are informed and consulted on the proposed guarantees for the safeguarding of employment. Their opinion shall be appended to the documents transmitted to the competent insolvency authority.

Amendment 96 #

Proposal for a directive
Article 24 – paragraph 2

2. Where the sale process only produces one binding offer, that offer shall be ~~dee~~presumed to reflect the business market price, unless it can be demonstrated otherwise.

Amendment 97 #

Proposal for a directive
Article 24 – paragraph 3 a (new)

3a. Member States shall include the obtaining of the services of an independent valuation practitioner as a means of gauging a fair market price;

Amendment 98 #

Proposal for a directive
Article 27 – paragraph 1 – subparagraph 2 a (new)

This does not apply to credit and financial service contracts.

Amendment 99 #