Harmonising certain aspects of insolvency law

Amendments tabled for the plenary sitting on this text, in their own numbering series. This is a different set from the committee amendments tracked elsewhere on AmendEU, and is not counted in any of the site’s amendment totals.

1. Amendment 1Proposal for a directive · Recital 1
   Current text

   (1) The objective of this Directive is to contribute to the proper functioning of the internal market and remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures in the area of insolvency.

   Amendment

   (1) The objective of this Directive is to contribute to the proper functioning of the internal market and the Capital Markets Union and remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures in the area of insolvency.

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2. Amendment 2Proposal for a directive · Recital 2
   Current text

   (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. __________________ 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

   (2) The wide differences in substantive insolvency laws acknowledged by Regulation (EU) 2015/848 of the European Parliament and of the Council32 and the stark divergence in the quality of domestic insolvency procedures as measured by the World Bank in its Doing Business studies 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. Those differences also mean that harmonising certain aspects of insolvency law could entail changes in some Member States. __________________ 32 Regulation (EU) 2015/848 of the European Parliament and of the Council of 2…

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3. Amendment 3Proposal for a directive · Recital 3
   Current text

   (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 i…

   Amendment

   (3) Insolvency proceedings ensure the orderly winding up 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 the value of companies and the outcome of insolvency proceedings, 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 investo…

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4. Amendment 4Proposal for a directive · Recital 4
   Current text

   (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, especially on cross-border insolvency proceedings.

   Amendment

   (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 debt 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, especially on cross-border insolvency proceedings.

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5. Amendment 5Proposal for a directive · Recital 4 a (new)
   Amendment

   (4a) The harmonisation of insolvency proceedings is associated with lower costs of credit, increased access to credit and improved creditor recovery and it could also serve as an effective protection for workers. At the same time, one of the goals when completing the Capital Market Union is to stimulate more equity financing.

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6. Amendment 6Proposal for a directive · Recital 5 a (new)
   Amendment

   (5a) The minimum standards provided for in this Directive aim to approximate the insolvency laws of the Member States, taking into account, in particular, the following objectives: to maximise legal certainty as to the value of companies; to improve the efficiency of insolvency proceedings in terms of both costs and duration; to improve the predictability and fair distribution of value among creditors; and to preserve the operations and viability of companies.

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7. Amendment 7Proposal for a directive · Recital 6
   Current text

   (6) The scope of the legal acts that could be challenged under the avoidance actions rules should be drawn broadly, in order to cover any human behaviour with legal effects. The principle of equal treatment of creditors implies that legal acts should also include omissions, as it makes no significant difference if creditors suffer a detriment as a consequence of an action or of the passivity of the party concerned. For instance, it makes no difference whether a debtor actively waives a claim against his or her obligor or whether he or she remains passive and accepts the claim to become time-barred. Further examples of omissions that may be subject to avoidance actions include the omission to…

   Amendment

   (6) The scope of the legal acts that could be challenged under the avoidance actions rules should be interpreted broadly, in order to cover any human behaviour with legal effects that is detrimental to the general body of creditors. The principle of equal treatment of creditors implies that legal acts should also include omissions, as it makes no significant difference if creditors suffer a detriment as a consequence of an action or of the passivity of the party concerned. For instance, it makes no difference whether a debtor actively waives a claim against his or her obligor or whether he or she remains passive and accepts the claim to become time-barred. Further examples of omissions that…

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8. Amendment 8Proposal for a directive · Recital 8
   Current text

   (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 defence…

   Amendment

   (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 defence…

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9. Amendment 9Proposal for a directive · Recital 9
   Current text

   (9) Certain congruent coverages, namely legal acts that are performed directly against fair consideration to the benefit of the insolvency estate, should be exempted from the scope of legal acts that can be declared void. Those legal acts aim at supporting the ordinary daily activity of the debtor’s business. Legal acts falling under this exception should have a contractual basis, and require the direct exchange of the mutual performances, but not necessarily a simultaneous exchange of performances, as, in some cases, unavoidable delays may result from practical circumstances. However, this exemption should not cover the granting of credit. Furthermore, performance and counter-performance in…

   Amendment

   (9) Certain congruent coverages, namely legal acts that are performed directly against fair consideration to the benefit of the debtor’s asset, should be exempted from the scope of voidable and unenforceable legal acts. Those legal acts aim at supporting the ordinary daily activity of the debtor’s business. Legal acts falling under this exemption should have a contractual basis, and require the direct exchange of the mutual performances, but not necessarily a simultaneous exchange of performances, as, in some cases, unavoidable delays may result from practical circumstances. However, this exemption should not cover the granting of credit. Furthermore, performance and counter-performance in t…

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10. Amendment 10Proposal for a directive · Recital 10
    Current text

    (10) New- or interim financing provided during a restructuring attempt, including in the course of a preventive insolvency procedure under Title II of Directive (EU) 2019/1023 of the European Parliament and of the Council33 , should be protected in subsequent insolvency proceedings. Consequently, avoidance actions on the ground of preferences should not be permitted against payments to or collateralisation in favour of the providers of such new- or interim financing, if those payments or collateralisations are performed in accordance with the claims of the providers. Such payments or collateralisation should be considered, therefore, as legal acts performed directly against fair consideratio…

    Amendment

    (10) New financing or interim financing provided during a restructuring attempt, including in the course of a preventive insolvency procedure under Title II of Directive (EU) 2019/1023 of the European Parliament and of the Council33, should be protected in subsequent insolvency proceedings. Consequently, avoidance actions on the ground of preferences should not be permitted against payments to or collateralisation in favour of the providers of such new- or interim financing, if those payments or collateralisations are performed in accordance with the claims of the providers. Such payments or collateralisation should be considered, therefore, as legal acts performed directly against fair cons…

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11. Amendment 11Proposal for a directive · Recital 11
    Current text

    (11) The main consequence of declaring a legal act void in avoidance proceedings is the obligation for the party benefiting from the legal act that has been declared void to compensate the insolvency estate for the detriment caused by such legal act. Compensation should include emoluments, where relevant, and interest, in accordance with the applicable general civil law. The compensation implies the payment of a sum equivalent to the value of the performance received if it cannot be returned in natura to the insolvency estate.

    Amendment

    (11) The main consequence of a legal act being void, voidable or unenforceable in avoidance proceedings is the obligation for the party benefiting from the void, voidable or unenforceable legal act to compensate the insolvency estate for the detriment caused by such legal act. Compensation should include emoluments, where relevant, and interest, in accordance with the applicable civil law. The compensation implies the payment of a sum equivalent to the value of the performance received if it cannot be returned in natura to the insolvency estate. It should be possible to bring avoidance actions against individual successors of the debtor if they acquired the asset against no or manifestly ina…

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12. Amendment 12Proposal for a directive · Recital 12
    Current text

    (12) Parties who are closely related to the debtor, such as relatives in case the debtor is a natural person or actors fulfilling decisive roles in relation to a debtor that is a legal entity, usually enjoy an information advantage with regard to the financial situation of the debtor. In order to prevent abusive behaviours, additional safeguards should be established. Consequently, in the context of avoidance actions, legal presumptions about the knowledge of the circumstances on which the conditions for avoidance were based should be introduced when the other party involved in the legal act that can be declared void is a party closely related to the debtor. These presumptions should be rebu…

    Amendment

    (12) Parties who are closely related to the debtor, such as relatives in case the debtor is a natural person or actors fulfilling decisive roles in relation to a debtor that is a legal entity, usually enjoy an information advantage with regard to the financial situation of the debtor. In order to prevent abusive behaviours, additional safeguards should be established. Consequently, in the context of avoidance actions, legal presumptions about the knowledge of the circumstances on which the conditions for avoidance were based should be introduced when the other party involved in the void, voidable and unenforceable legal act is a party closely related to the debtor. These presumptions should…

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13. Amendment 13Proposal for a directive · Recital 13
    Current text

    (13) Improving the possibilities of insolvency practitioners to identify and trace assets belonging to the insolvency estate is essential for the maximisation of the value of that estate. When performing their duties, insolvency practitioners may, already now, access information held in public data registers, partly set up by Union law and interconnected at European level, such as the Business Registers Interconnection System (BRIS), the system of Insolvency Registers Interconnection (IRI) or the Beneficial Ownership Registers Interconnection System (BORIS). Accessing the information held in public databases, however, is often not satisfactory to identify and trace important assets that are…

    Amendment

    (13) Improving the means available for insolvency practitioners to identify and trace assets belonging to the insolvency estate, including those subject to avoidance actions, is essential for the maximisation of the value of that estate. When performing their duties, insolvency practitioners may, already now, access information held in public data registers, partly set up by Union law and interconnected at European level, such as the Business Registers Interconnection System (BRIS), the system of Insolvency Registers Interconnection (IRI) or the Beneficial Ownership Registers Interconnection System (BORIS). Accessing the information held in public databases, however, is often not satisfactor…

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14. Amendment 14Proposal for a directive · Recital 15
    Current text

    (15) Prompt direct access to centralised bank account registries or data retrieval systems is often indispensable for the maximisation of the value of the insolvency estate. Therefore, rules should be laid down granting direct access to information held in centralised bank account registries or data retrieval systems to designated Member States’ courts that have jurisdiction in insolvency proceedings. Where a Member State provides access to bank account information through a central electronic data retrieval system, that Member State should ensure that the authority operating the retrieval system reports search results in an immediate and unfiltered way to the designated courts.

    Amendment

    (15) Prompt direct access to bank account registers is often indispensable for the maximisation of the value of the insolvency estate. Therefore, rules should be laid down granting direct access to information held in bank account registers for the designated courts or authorities of the Member States. Where a Member State provides access to bank account information through a central electronic data retrieval system, that Member State should ensure that the authority operating the retrieval system reports search results in an immediate and unfiltered way to the designated courts or administrative authorities.

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15. Amendment 15Proposal for a directive · Recital 16
    Current text

    (16) In order to respect the right to the protection of personal data and the right to privacy, direct and immediate access to bank account registries should be granted only to courts with jurisdiction in insolvency proceedings that are designated by the Member States for that purpose. Insolvency practitioners should therefore be allowed to access information held in the bank account registries only indirectly by requesting the designated courts in their Member State to access and run the searches.

    Amendment

    (16) In order to respect the right to the protection of personal data and the right to privacy, direct and immediate access to bank account registers should be granted to courts or administrative authorities that are designated by the Member States for that purpose. Insolvency practitioners should therefore be allowed to access information held in the bank account registers indirectly by requesting the designated courts or administrative authorities in their Member State to access the bank account registers and perform the searches. Member States should be able to designate different courts or administrative authorities for the purpose of accessing bank account registers domestically or acro…

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16. Amendment 16Proposal for a directive · Recital 17
    Current text

    (17) Directive (EU) YYYY/XX of the European Parliament and of the Council34 [OP: Directive which replaces Directive 2015/849] provides that the centralised automated mechanisms are interconnected via the bank account registers (BAR) single access point, to be developed and operated by the Commission. Considering the growing importance of insolvency cases with cross-border implications and the importance of relevant financial information for the purposes of maximising the value of the insolvency estate in insolvency proceedings, the designated national courts having jurisdiction in insolvency matters should be able to directly access and search the centralised bank account registries of other…

    Amendment

    (17) Directive (EU) 2024/1640 of the European Parliament and of the Council34 provides that centralised automated mechanisms, such as central registers or central electronic data retrieval systems, are interconnected via BARIS, which is to be developed and operated by the Commission. Considering the growing importance of insolvency cases with cross-border implications and the importance of relevant financial information for the purposes of maximising the value of the insolvency estate in insolvency proceedings, the designated courts or administrative authorities should be able to access and search the bank account registers of other Member States directly through BARIS. __________________ 34…

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17. Amendment 17Proposal for a directive · Recital 17 a (new)
    Amendment

    (17a) Access by the courts or administrative authorities designated under this Directive to bank account information across borders through BARIS is based on the mutual trust among Member States derived from their respect of fundamental rights and of the principles recognised by Article 6 of the Treaty on European Union (TEU) and by the Charter of Fundamental Rights of the European Union (the ‘Charter’), as well as the fundamental rights and principles provided for in international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitu…

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18. Amendment 18Proposal for a directive · Recital 19
    Current text

    (19) Directive (EU) 2015/849 of the European Parliament and the Council35 ensures that persons who are able to demonstrate a legitimate interest are granted access to beneficial ownership information on trusts and other types of legal arrangements, in accordance with data protection rules. Those persons are granted access to information on the name, month and year of birth and the country of residence and nationality of the beneficial owner, as well as the nature and extent of beneficial interest held. It is essential that insolvency practitioners can quickly and easily access that set of information for performing their tasks to trace assets in the context of ongoing insolvency proceedings.…

    Amendment

    (19) Directive (EU) 2024/1640 ensures that persons with a legitimate interest are granted access to beneficial ownership information, in accordance with data protection rules. For the purpose of tracing assets in the context of ongoing insolvency proceedings, insolvency practitioners should be granted access in a timely manner to specific categories of beneficial ownership information, such as on the name, month and year of birth and the country of residence and nationality of the beneficial owner, as well as the nature and extent of beneficial interest held. At the same time, the scope of data directly accessible by the insolvency practitioners could be broader than the scope of data access…

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19. Amendment 19Proposal for a directive · Recital 20
    Current text

    (20) To ensure that assets can be efficiently traced in the context of cross-border insolvency proceedings, insolvency practitioners appointed in a Member State should be granted expeditious access to asset registers also when these registers are located in a different Member State. Therefore, the access conditions applying to foreign insolvency practitioners should not be more cumbersome than those applying to domestic insolvency practitioners.

    Amendment

    (20) To ensure that assets can be efficiently traced in the context of cross-border insolvency proceedings, insolvency practitioners appointed in a Member State should be granted expeditious access to national registers and databases, even when these registers and databases are located in a Member State other than that in which the insolvency practitioner was appointed. Access should be provided without the involvement of any intermediary court or authority, allowing insolvency practitioners to communicate directly with the entities operating or maintaining the national registers or databases concerned. Member States should provide that insolvency practitioners can directly search datasets c…

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20. Amendment 20Proposal for a directive · Recital 20 a (new)
    Amendment

    (20a) In order to establish an effective and consistent system for the enforcement of debts against the assets of debtors, it is essential to prevent debtors from concealing their assets, including through the acquisition of financial instruments, such as securities. The differences between national settlement systems, as well as the varying types and characteristics of financial instruments, can give rise to difficulties in accessing records and in identifying the ultimate beneficial owner of a financial instrument. Therefore, irrespective of the kind of existing register, database or other source of information a Member State uses, it is necessary for Member States to have in place the fra…

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21. Amendment 21Proposal for a directive · Recital 22
    Current text

    (22) It is generally assumed that more value can be recovered in liquidation by selling the business (or part thereof) as a going concern rather than by piecemeal liquidation. In order to promote going-concern sales in liquidation, national insolvency regimes should include a pre-pack proceeding, where the debtor in financial distress, with the help of a “monitor”, seeks possible interested acquirers and prepares the sale of the business as a going concern before the formal opening of insolvency proceedings, so that the assets can be quickly realised shortly after the opening of the formal insolvency proceedings. The pre-pack proceedings should consist of two phases, namely a preparation pha…

    Amendment

    (22) It is generally assumed that more value can be recovered in liquidation by selling the business (or part thereof) as a going concern rather than by piecemeal liquidation. In order to promote going-concern sales in liquidation, national insolvency regimes should include a pre-pack proceeding, where the debtor in financial distress, with the help of a “monitor”, seeks possible interested acquirers and prepares the sale of the business as a going concern before the formal opening of insolvency proceedings, so that the assets can be quickly realised shortly after the opening of the formal insolvency proceedings. In order to guarantee that the sale process is prepared in a fair way, the moni…

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22. Amendment 22Proposal for a directive · Recital 22 a (new)
    Amendment

    (22a) The introduction of pre-pack proceedings should not lead to restrictions in the scope of action of insolvency practitioners in the context of regular insolvency proceedings. Such insolvency practitioners should continue to be authorised to seek a sale of the business.

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23. Amendment 23Proposal for a directive · Recital 24
    Current text

    (24) The pre-pack proceedings should ensure that the monitor appointed in the preparation phase might propose the best bid obtained during the sale process for authorisation by the court only if it declares that, in its view, piecemeal liquidation would not recover manifestly more value for creditors than the market price obtained for the business (or part thereof) as a going concern. The going-concern value is, as a rule, higher than the piecemeal liquidation value because it is based on the assumption that the business continues its activity with the minimum of disruption, has the confidence of financial creditors, shareholders and clients and continues to generate revenues. Therefore, the…

    Amendment

    (24) The pre-pack proceedings should ensure that the monitor submits for authorisation to the court or competent authority the best bid obtained during the preparation phase. It should be possible to require the monitor to assess and state whether the piecemeal liquidation would not recover manifestly more value for creditors than the market price obtained through the sale of the business (or part thereof) as a going concern. The going-concern value is, as a rule, higher than the piecemeal liquidation value because it is based on the assumption that the business continues its activity with the minimum of disruption, has the confidence of financial creditors, shareholders and clients and cont…

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24. Amendment 24Proposal for a directive · Recital 25
    Current text

    (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, or provide that the court runs a brief public auction after the opening of the liquidation phase of the proceedings.

    Amendment

    (25) In order to guarantee that the business is sold at the best market value during the pre-pack proceedings, Member States should ensure high standards of competitiveness, transparency and fairness of the sale process conducted in the preparation phase. The court should be able to decide to run a brief public auction after the opening of the liquidation phase of the proceedings if there are credible suspicions of abuse in the preparatory phase.

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25. Amendment 25Proposal for a directive · Recital 25 a (new)
    Amendment

    (25a) In order to give full effect to the objective of insolvency proceedings, namely the collective realisation of claims against the debtor, it is necessary that all creditors holding claims against the insolvent debtor participate in the proceedings. By so participating, it should be possible for such claims to be duly recorded, examined and satisfied in accordance with the applicable insolvency framework.

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26. Amendment 26Proposal for a directive · Recital 26
    Current text

    (26) If a Member State opts to require high standards in the preparation phase, the monitor (subsequently to be appointed as insolvency practitioner in the liquidation phase) should be responsible for ensuring that the sale process is competitive, transparent, fair and meets market standards. Complying with market standards in this context should require that the process is compatible with the standard rules and practice on mergers and acquisitions in the Member State concerned, which includes an invitation to potentially interested parties to participate in the sale process, disclosing the same information to potential buyers, enabling the exercise of due diligence by interested acquirers,…

    Amendment

    (26) In the preparation phase, the monitor (subsequently to be appointed as insolvency practitioner in the liquidation phase, unless the monitor resigns or is unable to perform the required functions) should be responsible for ensuring that the sale process is competitive, transparent, fair and meets market standards. Complying with market standards in this context should require that the process is compatible with the standard rules and practice on mergers and acquisitions in the Member State concerned, which includes an invitation to potentially interested parties to participate in the sale process, disclosing the same information to potential buyers, enabling the exercise of due diligence…

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27. Amendment 27Proposal for a directive · Recital 27
    Current text

    (27) If a Member State opts to provide that the court runs a public auction after the opening of the liquidation phase, the offer selected by the monitor during the preparation phase should be used as an initial bid (‘stalking horse bid’) during the auction. The debtor should be able to offer incentives to the ‘stalking horse bidder’ by agreeing, in particular, to expense reimbursements or break-up fees in the case a better offer is selected through the public auction. Member States should, nevertheless, ensure that such incentives given by the debtors to the ‘stalking horse bidders’ during the preparation phase are commensurate and do not deter other potentially interested bidders from part…

    Amendment

    (27) If the court or the administrative authority runs a public auction after the opening of the liquidation phase, the offer selected by the monitor during the preparation phase should be used as an initial bid (‘stalking horse bid’) during the auction. The debtor should be able to offer incentives to the ‘stalking horse bidder’ by agreeing, in particular, to expense reimbursements or break-up fees in the case a better offer is selected through the public auction. Member States should, nevertheless, ensure that such incentives given by the debtors to the ‘stalking horse bidders’ during the preparation phase are commensurate and do not deter other potentially interested bidders from particip…

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28. Amendment 28Proposal for a directive · Recital 27 a (new)
    Amendment

    (27a) Monitors should take their actions in writing and should make them available, in digital format and in a timely manner, only to the parties involved in the preparation phase in order to secure the necessary confidentiality of all information obtained in connection with the preparation phase.

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29. Amendment 29Proposal for a directive · Recital 28
    Current text

    (28) The opening of insolvency proceedings should not result in the early termination of contracts under which the parties still have obligations to perform (executory contracts), which are necessary for the continuation of business operations. Such termination would unduly jeopardise the value of the business, or part thereof, to be sold in the pre-pack proceedings. It should, therefore, be ensured that those contracts are assigned to the acquirer of the business of the debtor or part thereof, even without the consent of the counterparty of the debtor to those contracts. Nonetheless, there are situations where the assignment of the executory contracts cannot be reasonably expected, such as…

    Amendment

    (28) The opening of insolvency proceedings should not result in the early termination of contracts under which the parties still have obligations to perform (executory contracts), which are necessary for the continuation of business operations. Such termination would unduly jeopardise the value of the business, or part thereof, to be sold in the pre-pack proceedings. It should, therefore, be ensured that those contracts are assigned to the acquirer of the business of the debtor or part thereof, even without the consent of the counterparty of the debtor to those contracts, unless the court considers that consent is necessary to protect the interests of the debtor’s counterparties. Nonetheless…

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30. Amendment 30Proposal for a directive · Recital 29
    Current text

    (29) The possibility to enforce pre-emption rights in the course of the sale process would distort competition in the pre-pack proceedings. Potential bidders might abstain from bidding because of rights that would discard their offers at the holder’s discretion, irrespective of the time and resources invested and the economic value of the offer. In order to ensure that the winning offer reflects the best available price on the market, pre-emption rights should not be conceded to bidders, nor should such rights be enforced in the course of the bidding process. Holders of pre-emption rights that were granted prior to the commencement of the pre-pack proceedings, instead of invoking their optio…

    Amendment

    (29) The possibility to enforce pre-emption rights in the course of the sale process would distort competition in the pre-pack proceedings. That consideration cannot prevent a court from reserving a right of pre-emption for an undertaking participating in an essential strategic interest. Potential bidders might abstain from bidding because of rights that would discard their offers at the holder’s discretion, irrespective of the time and resources invested and the economic value of the offer. In order to ensure that the winning offer reflects the best available price on the market, pre-emption rights should not be conceded to bidders, nor should such rights be enforced in the course of the bi…

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31. Amendment 31Proposal for a directive · Recital 32
    Current text

    (32) Directors oversee the management of the affairs of a legal entity and have the best overview of its financial situation. Directors are therefore among the first to realise whether a legal entity is approaching or surpassing the brink of insolvency. A late filing for insolvency by directors may lead to lower recovery values for creditors Member States should therefore introduce an obligation on directors to submit a request for the opening of insolvency proceedings within a specified time-period. Member States should also define to whom the directors’ duties should apply taking into account that the notion of “director” should be interpreted broadly, to cover all persons who are in charg…

    Amendment

    (32) Directors oversee the management of the affairs of a legal entity and have the best overview of its financial situation. Directors are therefore among the first to realise whether a legal entity is insolvent. A late filing for insolvency by directors may lead to lower recovery values for creditors Member States should therefore introduce an obligation on directors to submit a request for the opening of insolvency proceedings within a specified time-period. Member States should also define the notion of “director”.

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32. Amendment 32Proposal for a directive · Recital 32 a (new)
    Amendment

    (32a) Member States should set a deadline for the duty to submit a request for the opening of insolvency proceedings. That deadline should be no later than three months from the date on which the directors became aware that the company was insolvent. If the company regains its solvency before that deadline, Member States should be able to provide that a new period starts if the company becomes insolvent again thereafter.

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33. Amendment 33Proposal for a directive · Recital 33
    Current text

    (33) To ensure that directors do not act in their self-interest by delaying the submission of a request for the opening of insolvency proceedings, despite signs of insolvency, Member States should lay down provisions making directors civilly liable for a breach of the duty to submit such a request. In that case directors should compensate creditors for the damages resulting from the deterioration in the recovery value of the legal entity compared to the situation where the request would have been submitted on time. Member States should be able to adopt or maintain national rules on civil liability of directors related to the filing for insolvency that are stricter than those laid down by thi…

    Amendment

    (33) To ensure that directors do not act in their self-interest by delaying the submission of a request for the opening of insolvency proceedings, despite signs of insolvency, Member States should lay down provisions making directors civilly liable for a breach of the duty to submit such a request. In that case directors should compensate creditors for the damages resulting from the deterioration in the recovery value of the legal entity compared to the situation where the request would have been submitted on time. Member States should be able to adopt or maintain national rules on civil liability of directors related to the filing for insolvency that are stricter than those laid down by thi…

    Excerpt — full text in the official PDF.
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34. Amendment 34Proposal for a directive · Recital 33 a (new)
    Amendment

    (33a) In order to promote an efficient and inclusive insolvency framework that supports entrepreneurship and economic renewal, Member States should be able to maintain or introduce simplified winding-up proceedings for microenterprises, while upholding the high standards of transparency and fairness provided for in this Directive and under other relevant instruments. Given the limited resources typically available to such businesses, it is essential that the Member States ensure that those proceedings are accessible even in cases where the debtor has no assets or where the available assets are insufficient to cover the procedural costs or the cost for the involvement of an insolvency practit…

    Excerpt — full text in the official PDF.
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35. Amendment 35Proposal for a directive · Recital 34
    Current text

    (34) Microenterprises often take the form of sole proprietorships or small partnerships whose founders, owners or members do not enjoy limited liability protection and thus are exposed to unlimited liability for business debts. Where microenterprises operate as limited liability entities, limited liability protection is usually illusory for microenterprises owners because they are often expected to secure microenterprises business debts using their personal assets as collateral. Moreover, since microenterprises heavily depend on payments from their clients they often face cash-flow problems and higher default risks that follow from the loss of a significant business partner or from late paym…

    Amendment

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36. Amendment 36Proposal for a directive · Recital 35
    Current text

    (35) National insolvency rules are not always fit to treat insolvent microenterprises properly and in a proportionate manner. Taking into account the unique characteristics of microenterprises 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…

    Amendment

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37. Amendment 37Proposal for a directive · Recital 36
    Current text

    (36) It is appropriate to ensure that the conduct and oversight of simplified winding-up proceedings may be entrusted by Member States to a competent authority which is either a court or an administrative body. The choice would depend, among other things, on the administrative and legal systems of the Member States as well as the capacities of courts and the need to ensure cost-efficiency and speed of proceedings.

    Amendment

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38. Amendment 38Proposal for a directive · Recital 37
    Current text

    (37) The cessation of payments test and the balance sheet test are the two usual triggers among Member States for opening of standard insolvency proceedings. The balance sheet test may however be unfeasible for microenterprise debtors, particularly where the debtor is an individual entrepreneur, because of a possible lack of proper record and of a clear distinction between personal assets and liabilities and business assets and liabilities. Therefore, the inability to pay debts as they mature should be the criterion for the opening of simplified winding-up proceedings. Member States should also define the specific conditions under which this criterion is met, as long as these conditions are…

    Amendment

    deleted

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39. Amendment 39Proposal for a directive · Recital 38
    Current text

    (38) In order to establish cost-effective and expeditious simplified winding-up proceedings for microenterprises, 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

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40. Amendment 40Proposal for a directive · Recital 39
    Current text

    (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.

    Amendment

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41. Amendment 41Proposal for a directive · Recital 40
    Current text

    (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. Therefore, the debtor should remain 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

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42. Amendment 42Proposal for a directive · Recital 41
    Current text

    (41) A microenterprise 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

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43. Amendment 43Proposal for a directive · Recital 42
    Current text

    (42) Disputed claims should be dealt with in a way that does not unnecessarily complicate the conduct of simplified winding-up proceedings for microenterprises. 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

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44. Amendment 44Proposal for a directive · Recital 43
    Current text

    (43) In the context of simplified winding-up proceedings, avoidance actions should only be brought by a creditor or, where appointed, by the insolvency practitioner. In taking the decision to convert the simplified winding-up proceedings to standard insolvency proceedings for the purpose of the conduct of avoidance proceedings, the competent authority should weigh various considerations, including the anticipated cost, duration and complexity of avoidance proceedings, the likelihood of the successful recovery of assets and expected benefits to all creditors.

    Amendment

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45. Amendment 45Proposal for a directive · Recital 44
    Current text

    (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.

    Amendment

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46. Amendment 46Proposal for a directive · Recital 45
    Current text

    (45) The auction systems operated for the purposes of realising the assets of debtors in simplified winding-up proceedings should be interconnected via the European e-Justice Portal. The e-Justice Portal should serve as a central electronic access point to the on-line judicial auction processes run in the national system or systems, provide a search functionality for users and guide them to the relevant national on-line platforms if they intend to participate in the bidding. When determining the technical specifications of that interconnection system by way of implementing act, the Commission should, in accordance with the Commission's “Dual Pillar Approach"37 , present the result of the ana…

    Amendment

    deleted

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47. Amendment 47Proposal for a directive · Recital 46
    Current text

    (46) In the case of insolvency of an unlimited liability microenterprise debtor, individuals who are personally liable for the debtor’s debts should not be personally liable for unsatisfied claims following liquidation of the insolvency estate of the debtor. Therefore, Member States should ensure that in simplified winding-up proceedings entrepreneur debtors, as well as those founders, owners or members of an unlimited liability microenterprise debtor who are personally liable for the debts of the microenterprise subject to simplified winding-up proceedings, are fully discharged from their debts. For the purpose of granting such discharge, Member States should apply Title III of Directive (E…

    Amendment

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48. Amendment 48Proposal for a directive · Recital 47
    Current text

    (47) It is important to ensure a fair balance between the interests of the debtor and creditors in insolvency proceedings. Creditors’ committees allow for better involvement of creditors in insolvency proceedings, in particular when creditors would otherwise be inhibited from doing so individually, due to limited resources, economic significance of their claims or the lack of geographic proximity. Creditors’ committees can especially help cross-border creditors better exercise their rights and ensure their fair treatment. Member States should allow the establishment of a creditors’ committee once proceedings are opened. A creditors’ committee should be established only provided that creditor…

    Amendment

    (47) In order to protect creditors, this Directive strengthens the provisions concerning creditors’ committees, ensuring fair representation of all categories of creditors, including cross-border creditors, and increased transparency in the decision-making process. It is important to ensure a fair balance between the interests of the debtor and creditors in insolvency proceedings. Creditors’ committees allow for better involvement of creditors in insolvency proceedings, in particular when creditors would otherwise be inhibited from doing so individually, due to limited resources, economic significance of their claims or the lack of geographic proximity. Creditors’ committees can especially h…

    Excerpt — full text in the official PDF.
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49. Amendment 49Proposal for a directive · Recital 49
    Current text

    (49) Member States should clarify the requirements, duties and procedures for the appointment of members of the creditors’ committee, as well as the functions attributed to the creditors’ committee. Member States should be given the option to decide whether the appointment should be done by the general meeting of creditors or by the court. To avoid undue delays in the set-up of the creditors’ committee, the members should be appointed expeditiously. Member States should cater for a fair representation of creditors in the committee and ensure that the participation in the creditors’ committee is not precluded to creditors whose claim is not yet admitted or to creditors that are resident in an…

    Amendment

    (49) Member States should clarify the requirements, duties and procedures for the appointment of members of the creditors’ committee, as well as the functions attributed to the creditors’ committee. Member States should be given the option to decide whether the appointment should be done by the general meeting of creditors or by the court. To avoid undue delays in the set-up of the creditors’ committee, the members should be appointed expeditiously. Member States should cater for a fair representation of creditors in the committee and ensure that the participation in the creditors’ committee is not precluded to creditors whose claim is not yet admitted or to creditors that are resident in an…

    Excerpt — full text in the official PDF.
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50. Amendment 50Proposal for a directive · Recital 50
    Current text

    (50) Fair representation of creditors in the creditors’ committee is particularly important in relation to unsecured creditors that are micro, small or medium-sized enterprises, which in the case of insolvency of a debtor which is a large enterprise, if not paid promptly, are also exposed to insolvency (domino effect). Proper representation in the creditors’ committee of such creditors could ensure that in the course of the distribution of the recovered proceeds they receive their parts more expeditiously.

    Amendment

    (50) Fair representation of creditors in the creditors’ committee is particularly important for workers who are creditors and for whom a delay in the payment of wages could pose an existential threat, as well as for unsecured creditors that are micro, small or medium-sized enterprises, which in the case of insolvency of a debtor which is a large enterprise, if not paid promptly, are also exposed to insolvency (domino effect). Proper representation in the creditors’ committee of such creditors could ensure that in the course of the distribution of the recovered proceeds they receive their parts more expeditiously.

    official amendment document ↗
51. Amendment 51Proposal for a directive · Recital 51
    Current text

    (51) An important task of the creditors’ committee should be to verify that insolvency proceedings are conducted in a way that protects creditors’ interests. The committee’s role in the monitoring of the fairness and integrity of the proceedings can only be performed effectively if the creditors’ committee and its members act independently from the insolvency practitioner and are accountable only to the creditors who established it.

    Amendment

    (51) An important task of the creditors’ committee should be to verify that insolvency proceedings are conducted in a fair and unbiased way that protects creditors’ interests. The committee’s role in the monitoring of the fairness and integrity of the proceedings can only be performed effectively if the creditors’ committee and its members act independently from the insolvency practitioner and are accountable only to the creditors who established it. The members of the creditors’ committee should act in good faith when carrying out the functions of the committee. They should have the power to share relevant and necessary information to represented creditors and to receive information from th…

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52. Amendment 52Proposal for a directive · Recital 52
    Current text

    (52) The number of members in the creditors’ committee should, on the one hand, be sufficiently large to ensure diversity of views and interests in the committee and, on the other hand, remain relatively limited to deliver on its tasks effectively and timely. Member States should clarify when and how the composition of the committee needs to be altered, which could happen if representatives are no longer able to act, including in the creditors’ best interests, or wish to withdraw. They should also clarify the conditions for the removal of members that acted relentlessly against creditors’ interest.

    Amendment

    (52) Member States should clarify the number of the members in the creditors’ committee and when and how the composition of the committee needs to be altered, which could happen if representatives are no longer able to act, including in the creditors’ best interests, or wish to withdraw. They should also clarify the conditions for the removal of members that have acted relentlessly against creditors’ interests or that have a conflict of interest.

    official amendment document ↗
53. Amendment 53Proposal for a directive · Recital 54
    Current text

    (54) Member States should ensure that the court has the power to determine the working methods for the creditors’ committee, if they are not established expeditiously. The Commission should establish standard working methods that should facilitate the task of the creditors’ committee and reduce the need for courts to intervene in the case of missing working methods.

    Amendment

    (54) Member States should ensure that the court has the power to determine the working methods for the creditors’ committee, if they have not been established in the creditors’ committee’s protocol of working methods. The Commission should establish standard working methods that should facilitate the task of the creditors’ committee and reduce the need for courts to intervene in the case of missing working methods.

    official amendment document ↗
54. Amendment 54Proposal for a directive · Recital 55
    Current text

    (55) The creditors’ committee should be granted sufficient rights to perform its functions efficiently and effectively. Member States should ensure that the creditors’ committee can interact with insolvency practitioners, courts, the debtor, external advisors and the creditors whom it represents, as necessary, to enable the committee to form and communicate a view on matters of direct interest and relevance to creditors, and for this view to be duly considered in proceedings. Member States could also empower the creditors’ committee to make decisions.

    Amendment

    (55) The creditors’ committee should be granted sufficient rights to perform its functions efficiently and effectively. Member States should ensure that the creditors’ committee can interact with insolvency practitioners, courts, the debtor, external advisors and the creditors whom it represents, as necessary, to enable the committee to form and communicate a view on matters of direct interest and relevance to creditors, and for this view to be duly considered in proceedings. Member States should also empower the creditors’ committee to appoint a secretary, to request external consultations and to make decisions.

    official amendment document ↗
55. Amendment 55Proposal for a directive · Recital 58
    Current text

    (58) To ensure an enhanced transparency of the key features of national insolvency proceedings and help especially cross-border creditors to estimate what would happen if their investments got involved in insolvency proceedings, investors and potential investors should be granted easy access to that information in a pre-defined, comparable and user-friendly format. A standardised key information factsheet should be prepared and made available to the public by Member States. This document would be key for potential investors to make a “glance-through” assessment of the insolvency proceedings rules in a given Member State. It should contain sufficient explanations to allow the reader to unders…

    Amendment

    (58) To ensure an enhanced transparency of the key features of national insolvency proceedings and help especially cross-border creditors to estimate what would happen if their investments got involved in insolvency proceedings, investors and potential investors should be granted easy access to that information in a pre-defined, comparable and user-friendly format. A standardised key information factsheet should be prepared and made available to the public by Member States. This document would be key for potential investors to make a “glance-through” assessment of the insolvency proceedings rules in a given Member State. It should contain sufficient explanations to allow the reader to unders…

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56. Amendment 56Proposal for a directive · Recital 59 a (new)
    Amendment

    (59a) This Directive should be without prejudice to the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure pursuant to Directive (EU) 2016/943 of the European Parliament and of the Council1a. __________________ 1a Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets).

    official amendment document ↗
57. Amendment 57Proposal for a directive · Article 1 – paragraph 1 – introductory part
    Current text

    1. This Directive lays down common rules on:

    Amendment

    1. In order to maximise legal certainty concerning the value of companies, to improve the efficiency of insolvency proceedings both in terms of cost and length, to improve predictability and to ensure a fair distribution of value among creditors, this Directive lays down common rules on:

    official amendment document ↗
58. Amendment 58Proposal for a directive · Article 1 – paragraph 1 – point e
    Current text

    (e) simplified winding-up proceedings for microenterprises;

    Amendment

    deleted

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59. Amendment 59Proposal for a directive · Article 2 – paragraph 1 – point a
    Current text

    (a) ‘insolvency practitioner’ means a practitioner appointed by a judicial or administrative authority in procedures concerning restructuring, insolvency and discharge of debt as referred to in Article 26 Directive (EU) 2019/1023;

    Amendment

    (a) ‘insolvency practitioner’ means a person or body who has one or more of the functions listed in Article 2, point (5), of Regulation (EU) 2015/848 and in Article 2(1), point (12), of Directive (EU) 2019/1023;

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60. Amendment 60Proposal for a directive · Article 2 – paragraph 1 – point b
    Current text

    (b) ‘court’ means the judicial body of a Member State;

    Amendment

    (b) ‘court’ means:

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61. Amendment 61Proposal for a directive · Article 2 – paragraph 1 – point b – point i (new)
    Amendment

    (i) for the purposes of Article 18a, Title IV, with the exception of Article 21, Title V and Title VII, with the exception of Article 59(5), a judicial body of a Member State or the authority of a Member State competent for insolvency proceedings;

    official amendment document ↗
62. Amendment 62Proposal for a directive · Article 2 – paragraph 1 – point b – point ii (new)
    Amendment

    (ii) for the purposes of all other articles, a judicial body of a Member State;

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63. Amendment 63Proposal for a directive · Article 2 – paragraph 1 – point c
    Current text

    (c) ‘competent authority’ means a judicial or administrative authority of a Member State that is responsible for conduct or oversight, or both, of simplified winding-up proceedings, in accordance with Title VI of this Directive;

    Amendment

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64. Amendment 64Proposal for a directive · Article 2 – paragraph 1 – point d
    Current text

    (d) ‘centralised bank account registries’ means the centralised automated mechanisms, such as central registries or central electronic data retrieval systems, put in place in accordance with Article 32 of Directive (EU) 2015/849;

    Amendment

    (d) ‘bank account registers ’ means centralised automated mechanisms, such as central registries or central electronic data retrieval systems, put in place in accordance with Article 16 (1) of Directive (EU) 2024/1640;

    official amendment document ↗
65. Amendment 65Proposal for a directive · Article 2 – paragraph 1 – point e
    Current text

    (e) ‘beneficial ownership register’ means national central registers on beneficial ownership information referred to in Articles 30 and 31 of Directive (EU) 2015/849;

    Amendment

    (e) ‘central beneficial ownership register’ means national central registers holding beneficial ownership information and the systems of interconnection of those registers as referred to in Article 10 of Directive (EU) 2024/1640;

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66. Amendment 66Proposal for a directive · Article 2 – paragraph 1 – point e a (new)
    Amendment

    (ea) ‘bank account information’ means the information listed in Article 16(3) of Directive (EU) 2024/1640;

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67. Amendment 67Proposal for a directive · Article 2 – paragraph 1 – point f
    Current text

    (f) ‘legal act’ means any human behaviour, including an omission, producing a legal effect;

    Amendment

    (f) ‘legal act’ means any human behaviour, producing a legal effect;

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68. Amendment 68Proposal for a directive · Article 2 – paragraph 1 – point g
    Current text

    (g) ‘executory contract’ means a contract between a debtor and one or more counterparties under which the parties still have obligations to perform at the time of the opening of insolvency proceedings in the liquidation phase in Title IV;

    Amendment

    (g) ‘executory contract’ means a contract between a debtor and one or more counterparties under which the parties still have obligations to perform at the time of the opening of insolvency proceedings in the liquidation phase in Title IV, but does not include netting agreements;

    official amendment document ↗
69. Amendment 69Proposal for a directive · Article 2 – paragraph 1 – point h
    Current text

    (h) ‘best-interest-of-creditors test’ means the test whereby no creditor would be worse off under a liquidation in pre-pack proceedings than such a creditor would be if the normal ranking of liquidation priorities were applied in the event of a piecemeal liquidation;

    Amendment

    (h) ‘best-interest-of-creditors test’ means the test whereby no creditor would be worse off under a liquidation in pre-pack proceedings than such a creditor would be if the normal ranking of liquidation priorities were applied in the event of a piecemeal liquidation or the sale of the business, or a part thereof, as a going concern;

    official amendment document ↗
70. Amendment 70Proposal for a directive · Article 2 – paragraph 1 – point j
    Current text

    (j) ‘microenterprise’ means a microenterprise within the meaning of the Annex to Commission Recommendation 2003/361/EC;

    Amendment

    deleted

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71. Amendment 71Proposal for a directive · Article 2 – paragraph 1 – point k
    Current text

    (k) ‘unlimited liability microenterprise’ means a microenterprise with or without separate legal personality and without limited liability protection of any of its founders, owners or members;

    Amendment

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72. Amendment 72Proposal for a directive · Article 2 – paragraph 1 – point l
    Current text

    (l) ‘entrepreneur’ means an entrepreneur as defined in Article 2(1), point (9) of Directive (EU) 2019/1023;

    Amendment

    deleted

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73. Amendment 73Proposal for a directive · Article 2 – paragraph 1 – point m
    Current text

    (m) ‘full discharge of debt’ means the situation in which either i) the enforcement of outstanding dischargeable debts against entrepreneurs or against those individuals who are founders, owners or members of an unlimited liability microenterprise and are personally liable for the debts of the microenterprise is precluded or ii) outstanding dischargeable debts as such are cancelled, as part of simplified winding-up proceedings;

    Amendment

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74. Amendment 74Proposal for a directive · Article 2 – paragraph 1 – point n
    Current text

    (n) ‘repayment plan’ means a programme of payments of specified amounts on specified dates to creditors by a natural person benefiting from a full discharge of debt, or a plan setting out periodic transfers to creditors of a certain part of the disposable income of the natural person concerned during the discharge period;

    Amendment

    deleted

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75. Amendment 75Proposal for a directive · Article 2 – paragraph 1 – point q
    Current text

    (q) ‘party closely related to the debtor’ means persons, including legal persons, with preferential access to non-public information on the affairs of the debtor. Where the debtor is a natural person, closely related parties shall include in particular: (i) the spouse or partner of the debtor; (ii) ascendants, descendants, and siblings of the debtor, or of the spouse or partner, and the spouses or partners of these persons; (iii) persons living in the household of the debtor; (iv) persons who are working for the debtor under a contract of employment with access to non-public information on the affairs of the debtor, or otherwise performing tasks through which they have access to non-public i…

    Amendment

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76. Amendment 76Proposal for a directive · Article 2 – paragraph 1 a (new)
    Amendment

    1a. For the purposes of this Directive, the concepts of “insolvency” and “directors” are to be understood as defined by national law.

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77. Amendment 77Proposal for a directive · Article 3 – title
    Current text

    Relevant point in time in relation to close relatedness

    Amendment

    Party closely related to the debtor

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78. Amendment 78Proposal for a directive · Article 3 – paragraph -1 (new)
    Amendment

    -1. For the purposes of this Directive, parties closely related to the debtor shall include: (a) where the debtor is a natural person: (i) the spouse or partner of the debtor; (ii) ascendants, descendants, and siblings of the debtor, or of the spouse or partner of the debtor, and the spouses or partners of these persons; (iii) persons living in the household of the debtor; (iv) persons who are working for the debtor under a contract of employment with access to non-public information on the affairs of the debtor; (v) legal entities in which the debtor or one of the persons referred to in points (i) to (iv) of this subparagraph is a member of the management or supervisory bodies or performs d…

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79. Amendment 79Proposal for a directive · Article 3 – paragraph 1 a (new)
    Amendment

    1a. Paragraph -1 and paragraph 1, point (a), of this Article shall apply mutatis mutandis to the concept of persons closely related to parties which have benefitted from a void, voidable or unenforceable legal act as referred to in Article 11(2), second subparagraph.

    official amendment document ↗
80. Amendment 80Proposal for a directive · Article 3 a (new)
    Amendment

    Article 3a National law and minimum harmonisation 1. Member States may adopt or maintain laws which provide for a greater level of protection for the general body of creditors than that provided for under Titles II, IV and VII, provided that they comply with Union law. 2. Member States may adopt or maintain laws which facilitate access by insolvency practitioners to bank account information held in their bank account registers, beneficial ownership information and national registers and databases to a greater extent than the rules provided for in Title III. 3. Member States shall ensure that, when insolvent, microenterprises have access to insolvency proceedings in situations where the debto…

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81. Amendment 81Proposal for a directive · Article 3 b (new)
    Amendment

    Article 3b Protection of workers This Directive is without prejudice to the application of national labour law and Union law with regard to workers’ rights, in particular Council Directives 98/59/EC1a and 2001/23/EC1b and Directives 2002/14/EC1c, 2009/38/EC1d, (EU) 2016/23411e and 2008/94/EC1f of the European Parliament and of the Council. This Directive shall not prevent Member States from introducing or maintaining provisions relating to Title IV which provide for a greater level of protection for workers or their representatives. __________________ 1a Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ L…

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82. Amendment 82Proposal for a directive · Article 4 – paragraph 1
    Current text

    Member States shall ensure that legal acts which have been perfected prior to the opening of insolvency proceedings to the detriment of the general body of creditors can be declared void under the conditions laid down in Chapter 2 of this Title.

    Amendment

    Member States shall ensure that legal acts which have been perfected prior to the opening of insolvency proceedings to the detriment of the general body of creditors are void, voidable or unenforceable under the conditions laid down in Chapter 2 of this Title.

    official amendment document ↗
83. Amendment 83Proposal for a directive · Article 4 – paragraph 1 a (new)
    Amendment

    Member States may adopt or maintain rules that establish that, where a legal act requires registration in a public register for its perfection, the point in time from which the legal act is considered perfected can exceptionally be before the date on which the registration takes place.

    official amendment document ↗
84. Amendment 84Proposal for a directive · Article 5
    Current text

    Article 5 Relationship to national provisions This Directive shall not prevent Member States from adopting or maintaining provisions relating to the voidness, voidability or unenforceability of legal acts detrimental to the general body of creditors in the context of insolvency proceedings where such provisions provide a greater protection of the general body of creditors than those set out in Chapter 2 of this Title.

    Amendment

    deleted

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85. Amendment 85Proposal for a directive · Article 6 – paragraph 1 – subparagraph 1 – introductory part
    Current text

    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:

    Amendment

    Member States shall ensure that detrimental legal acts benefitting a creditor or a group of creditors by satisfaction or collateralisation are void, voidable or unenforceable if they were perfected:

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86. Amendment 86Proposal for a directive · Article 6 – paragraph 1 – subparagraph 1 – point a
    Current text

    (a) within three months prior to the submission of the request for the opening of insolvency proceedings, under the condition that the debtor was unable to pay its mature debts; or

    Amendment

    (a) within three months prior to the submission of the request for the opening of insolvency proceedings, or, in the absence of a formal request, prior to the date of the resolution to commence insolvency proceedings, provided that the debtor was unable to pay its mature debts under national law; or

    official amendment document ↗
87. Amendment 87Proposal for a directive · Article 6 – paragraph 1 – subparagraph 1 – point b
    Current text

    (b) after the submission of the request for the opening of insolvency proceedings.

    Amendment

    (b) after the submission of the request or the date of the resolution referred to in point (a) and before the opening of insolvency proceedings.

    official amendment document ↗
88. Amendment 88Proposal for a directive · Article 6 – paragraph 2 – subparagraph 1 – introductory part
    Current text

    If a due claim of a creditor was satisfied or secured in the owed manner, Member States shall ensure that the legal act can be declared void only if:

    Amendment

    If a due claim of a creditor was satisfied or secured in the owed manner, Member States shall ensure that the legal act are void, voidable or unenforceable only if:

    official amendment document ↗
89. Amendment 89Proposal for a directive · Article 6 – paragraph 2 – subparagraph 1 – point b
    Current text

    (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

    (b) that creditor knew that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted or that, in the absence of a formal request, a resolution to commence insolvency proceedings had been made.

    official amendment document ↗
90. Amendment 90Proposal for a directive · Article 6 – paragraph 2 – subparagraph 2
    Current text

    The creditor’s knowledge referred to in the first subparagraph, point (b), shall be presumed if the creditor was a party closely related to the debtor.

    Amendment

    The creditor’s knowledge referred to in the first subparagraph, point (b), shall be presumed if the creditor was a party closely related to the debtor. That presumption shall be rebuttable.

    official amendment document ↗
91. Amendment 91Proposal for a directive · Article 6 – paragraph 3 – subparagraph 1 – introductory part
    Current text

    By way of derogation from paragraphs 1 and 2, Member States shall ensure that the following legal acts cannot be declared void:

    Amendment

    By way of derogation from paragraphs 1 and 2, Member States shall ensure that the following legal acts cannot be void, voidable or unenforceable:

    official amendment document ↗
92. Amendment 92Proposal for a directive · Article 6 – paragraph 3 – subparagraph 1 – point a
    Current text

    (a) legal acts performed directly against fair consideration to the benefit of the insolvency estate;

    Amendment

    (a) legal acts performed directly against fair consideration to the benefit of the debtor’s assets;

    official amendment document ↗
93. Amendment 93Proposal for a directive · Article 6 – paragraph 3 – subparagraph 1 – point c a (new)
    Amendment

    (ca) where relevant, in accordance with national law, legal acts the purpose of which is to satisfy or collateralise claims by social security authorities.

    official amendment document ↗
94. Amendment 94Proposal for a directive · Article 6 – paragraph 3 – subparagraph 1 – point c b (new)
    Amendment

    (cb) the entering into netting arrangements, including close-out netting, in financial markets, energy markets or other commodity markets as well as legal acts supporting the operation of such arrangements.

    official amendment document ↗
95. Amendment 95Proposal for a directive · Article 6 – paragraph 3 – subparagraph 2
    Current text

    Member States shall ensure that where payments on bills of exchange or cheques are concerned as referred to in the first subparagraph, point (b), the amount paid on the bill or cheque shall be restituted by the last endorser or, if the latter endorsed the bill on account of a third party, by such party if the last endorser or the third party 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 at the moment of endorsing the bill or having it endorsed. This knowledge is presumed if the last endorser or the third party was a party closely related to the debtor.

    Amendment

    Member States shall ensure that where payments on bills of exchange or cheques are concerned as referred to in the first subparagraph, point (b), the amount paid on the bill or cheque shall be restituted by the last endorser or, if the latter endorsed the bill on account of a third party, by such party if the last endorser or the third party knew that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted at the moment of endorsing the bill or having it endorsed. This knowledge is presumed if the last endorser or the third party was a party closely related to the debtor. That presumption shall be rebuttable.

    official amendment document ↗
96. Amendment 96Proposal for a directive · Article 7 – paragraph 1
    Current text

    1. Member States shall ensure that legal acts of the debtor against no or a manifestly inadequate consideration can be declared void where they were perfected within a time period of one year prior to the submission of the request for the opening of insolvency proceedings or after the submission of such request.

    Amendment

    1. Member States shall ensure that legal acts of the debtor against no or manifestly inadequate consideration are void, voidable or unenforceable where they were perfected within a time period of one year prior to the submission of the request for the opening of insolvency proceedings or, in the absence of a formal request, prior to the date on which a resolution to commence insolvency proceedings had been made. The payment of a third-party debt in a three-person relationship shall not be automatically considered as a legal act against no or manifestly inadequate consideration. Member States may provide that the fact that the enrichment resulting from a void legal act is no longer the proper…

    Excerpt — full text in the official PDF.
    official amendment document ↗
97. Amendment 97Proposal for a directive · Article 8 – paragraph 1 – subparagraph 1 – introductory part
    Current text

    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 where both of the following conditions are met:

    Amendment

    Member States shall ensure that legal acts by which the debtor has intentionally caused a detriment to the general body of creditors are void, voidable or unenforceable where both of the following conditions are met:

    official amendment document ↗
98. Amendment 98Proposal for a directive · Article 8 – paragraph 1 – subparagraph 1 – point a
    Current text

    (a) those acts were perfected either within a time period of four years prior to the submission of the request for the opening of insolvency proceedings or after the submission of such request;

    Amendment

    (a) those acts were perfected either within a time period of three years prior to the submission of the request for the opening of insolvency proceedings or, in the absence of a formal request, prior to the date on which a resolution to commence insolvency proceedings had been made;

    official amendment document ↗
99. Amendment 99Proposal for a directive · Article 8 – paragraph 1 – subparagraph 1 – point b
    Current text

    (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

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

    official amendment document ↗
100. Amendment 100Proposal for a directive · Article 8 – paragraph 1 – subparagraph 2
     Current text

     The knowledge referred to in the first subparagraph, point (b), shall be presumed if the other party to the legal act was a party closely related to the debtor.

     Amendment

     The knowledge referred to in the first subparagraph, point (b), shall be presumed if the other party to the legal act was a party closely related to the debtor. That presumption shall be rebuttable.

     official amendment document ↗
101. Amendment 101Proposal for a directive · Article 8 – paragraph 2
     Current text

     2. Where several persons have submitted a request for the opening of insolvency proceedings against the same debtor, the point in time when the first admissible request is submitted shall be considered the beginning of the four-year period referred to in paragraph 1, first subparagraph, point (a).

     Amendment

     2. Where several persons have submitted a request for the opening of insolvency proceedings against the same debtor, the point in time when the first admissible request is submitted shall be considered the beginning of the three-year period referred to in paragraph 1, first subparagraph, point (a).

     official amendment document ↗
102. Amendment 102Proposal for a directive · Article 9 – paragraph 1
     Current text

     1. Member State shall ensure that the claims, rights or obligations resulting from legal acts that have been declared void pursuant to Chapter 2 of this Title may not be invoked to obtain satisfaction from the insolvency estate concerned.

     Amendment

     1. Member State shall ensure that the claims, rights or obligations resulting from legal acts that are void, voidable or unenforceable pursuant to Chapter 2 of this Title may not be invoked to obtain satisfaction from the insolvency estate concerned.

     official amendment document ↗
103. Amendment 103Proposal for a directive · Article 9 – paragraph 2 – subparagraph 1
     Current text

     Member States shall ensure that the party which benefitted from the legal act that has been declared void is obliged to compensate in full the insolvency estate concerned for the detriment caused to creditors by that legal act.

     Amendment

     Member States shall ensure that the party which benefitted from the void, voidable or unenforceable legal act is obliged to compensate in full the insolvency estate concerned for the detriment caused to creditors by that legal act.

     official amendment document ↗
104. Amendment 104Proposal for a directive · Article 9 – paragraph 2 – subparagraph 2
     Current text

     The fact that the enrichment resulting from the legal act that has been declared void is not available anymore in the property of the party which benefited from that legal act (‘lapse of enrichment’) can only be invoked if that party was neither aware, nor should have been aware, of the circumstances on which the avoidance action is based.

     Amendment

     The fact that the enrichment resulting from the void, voidable or unenforceable legal act is not available anymore in the property of the party which benefited from that legal act (‘lapse of enrichment’) can only be invoked if that party was not aware of the circumstances on which the avoidance action is based.

     official amendment document ↗
105. Amendment 105Proposal for a directive · Article 9 – paragraph 3
     Current text

     3. Member States shall ensure that the limitation period for all claims resulting from the legal act that can be declared void against the other party is three years from the date of the opening of insolvency proceedings.

     Amendment

     3. Member States shall ensure that the limitation period for all claims resulting from the void, voidable or unenforceable legal act against the other party is three years from the date of the opening of insolvency proceedings.

     official amendment document ↗
106. Amendment 106Proposal for a directive · Article 10 – title
     Current text

     Consequences for the party which benefitted from the legal act that has been declared void

     Amendment

     Consequences for the party which benefitted from the void, voidable or unenforceable legal act

     official amendment document ↗
107. Amendment 107Proposal for a directive · Article 10 – paragraph 1
     Current text

     1. Member States shall ensure that if and to the extent that the party which benefitted from the legal act that has been declared void compensates the insolvency estate for the detriment caused by that legal act, any claim of that party which was satisfied with that legal act revives.

     Amendment

     1. Member States shall ensure that if and to the extent that the party which benefitted from the void, voidable or unenforceable legal act compensates the insolvency estate for the detriment caused by that legal act, any claim of that party which was satisfied with that legal act revives.

     official amendment document ↗
108. Amendment 108Proposal for a directive · Article 10 – paragraph 2 – subparagraph 1
     Current text

     Member States shall ensure that any counter-performance of the party which benefitted from the legal act that has been declared void performed after or in an instant exchange for the performance of the debtor under that legal act shall be refunded from the insolvency estate to the extent that the counter-performance is still available in the estate in a form that can be distinguished from the rest of the insolvency estate or the insolvency estate is still enriched by its value.

     Amendment

     Member States shall ensure that any counter-performance of the party which benefitted from the void, voidable or unenforceable legal act performed after or in an instant exchange for the performance of the debtor under that legal act shall be refunded from the insolvency estate to the extent that the counter-performance is still available in the estate in a form that can be distinguished from the rest of the insolvency estate or the insolvency estate is still enriched by its value.

     official amendment document ↗
109. Amendment 109Proposal for a directive · Article 10 – paragraph 2 – subparagraph 2
     Current text

     In all cases not covered by the first subparagraph, the party which benefitted from the legal act that has been declared void may file claims for the compensation of the counter-performance. For the purposes of the ranking of claims in insolvency proceedings, this claim shall be deemed to have arisen before the opening of insolvency proceedings

     Amendment

     In all cases not covered by the first subparagraph, the party which benefitted from the void, voidable or unenforceable legal act may file claims for the compensation of the counter-performance. For the purposes of the ranking of claims in insolvency proceedings, this claim shall be deemed to have arisen before the opening of insolvency proceedings.

     official amendment document ↗
110. Amendment 110Proposal for a directive · Article 11 – paragraph 1
     Current text

     1. Member States shall ensure that the rights laid down in Article 9 are enforceable against an heir or another universal successor of the party which benefitted from the legal act that has been declared void.

     Amendment

     1. Member States shall ensure that Articles 9 and 10 are applicable to an heir or another universal successor of the party which benefitted from the void, voidable or unenforceable legal act.

     official amendment document ↗
111. Amendment 111Proposal for a directive · Article 11 – paragraph 2 – subparagraph 1 – introductory part
     Current text

     Member States shall ensure that the rights laid down in Article 9 are also enforceable against any individual successor of the other party to the legal act that has been declared void if one of the following conditions is fulfilled:

     Amendment

     Member States shall ensure that Article 9 is applicable to any individual successor of the other party to the void, voidable or unenforceable legal act if one of the following conditions is fulfilled:

     official amendment document ↗
112. Amendment 112Proposal for a directive · Article 11 – paragraph 2 – subparagraph 1 – point b
     Current text

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

     Amendment

     (b) the successor knew the circumstances on which the avoidance action is based.

     official amendment document ↗
113. Amendment 113Proposal for a directive · Article 11 – paragraph 2 – subparagraph 2
     Current text

     The knowledge referred to in the first subparagraph, point (b), shall be presumed if the individual successor is a party closely related to the party which benefitted from the legal act that has been declared void.

     Amendment

     The knowledge referred to in the first subparagraph, point (b), shall be presumed if the individual successor is a party closely related to the party which benefitted from the void, voidable or unenforceable legal act. That presumption shall be rebuttable.

     official amendment document ↗
114. Amendment 114Proposal for a directive · Title III – Chapter I – title
     Current text

     Access to bank account information by designated courts

     Amendment

     Access to bank account information by designated courts and administrative authorities

     official amendment document ↗
115. Amendment 115Proposal for a directive · Article 13 – title
     Current text

     Designated courts

     Amendment

     Designated courts and administrative authorities

     official amendment document ↗
116. Amendment 116Proposal for a directive · Article 13 – paragraph 1
     Current text

     1. Each Member State shall designate, among its courts that are competent to hear cases related to procedures in restructuring, insolvency or discharge of debt, the courts empowered to access and search its national centralised bank account registry established pursuant to Article 32a of Directive (EU) 2015/849 (‘designated courts’).

     Amendment

     1. Each Member State shall designate, the courts or administrative authorities that are empowered to access and search bank account registers

     official amendment document ↗
117. Amendment 117Proposal for a directive · Article 13 – paragraph 2
     Current text

     2. Each Member State shall notify the Commission of its designated courts by [6 months from transposition date], and shall notify the Commission of any amendment thereto. The Commission shall publish the notifications in the Official Journal of the European Union.

     Amendment

     2. Each Member State shall notify the Commission of its designated courts or administrative authorities by ... [3 months from transposition date], and shall immediately notify the Commission of any amendment thereto. The Commission shall publish the notifications in the Official Journal of the European Union and on the European e-Justice Portal.

     official amendment document ↗
118. Amendment 118Proposal for a directive · Article 14 – title
     Current text

     Access to and searches of bank account information by designated courts

     Amendment

     Access to and searches of bank account information by designated courts and administrative authorities

     official amendment document ↗
119. Amendment 119Proposal for a directive · Article 14 – paragraph 1
     Current text

     1. Member States shall ensure that, upon request of the insolvency practitioner appointed in ongoing insolvency proceedings, the designated courts have the power to access and search, directly and immediately, bank account information listed in Article 32a(3) of Directive (EU) 2015/849, where necessary for the purposes of identifying and tracing assets belonging to the insolvency estate of the debtor in that proceedings, including those subject to avoidance actions.

     Amendment

     1. Member States shall ensure that, upon request of the insolvency practitioner appointed in ongoing insolvency proceedings, including interim proceedings, the designated courts or administrative authorities have the power to access and search, directly and immediately, bank account information, where necessary for the purposes of identifying and tracing assets belonging to the insolvency estate of the debtor in that proceedings, including those subject to avoidance actions.

     official amendment document ↗
120. Amendment 120Proposal for a directive · Article 14 – paragraph 2
     Current text

     2. Member States shall ensure that, upon request of the insolvency practitioner appointed in ongoing insolvency proceedings, the designated courts have the power to access and search, directly and immediately, bank account information in other Member States available through the bank account registers (BAR) single access point set up pursuant to Article XX of Directive (EU) YYYY/XX [OP: the new Anti-Money Laundering Directive] where necessary for the purposes of identifying and tracing assets belonging to the insolvency estate of the debtor in that proceedings, including those subject to avoidance actions.

     Amendment

     2. Member States shall ensure that, upon request of the insolvency practitioner appointed in ongoing insolvency proceedings, including interim proceedings, the designated courts or administrative authorities have the power to access and search, directly and immediately, bank account information in other Member States available through the bank account registers interconnection system (BARIS) referred to in Article 16(6) of Directive (EU) 2024/1640, where necessary for the purposes of identifying and tracing assets belonging to the insolvency estate of the debtor in that those proceedings, including those assets subject to avoidance actions.

     official amendment document ↗
121. Amendment 121Proposal for a directive · Article 14 – paragraph 3
     Current text

     3. The additional information that Member States consider essential and include in the centralised bank account registries pursuant to Article 32a(4) of Directive (EU) 2015/849 shall not be accessible and searchable by designated courts.

     Amendment

     3. The additional information that Member States consider essential and include in the bank account registers pursuant to Article 16(5) of Directive (EU) 2024/1640 shall not be accessible or searchable by designated courts or administrative authorities.

     official amendment document ↗
122. Amendment 122Proposal for a directive · Article 14 – paragraph 3 a (new)
     Amendment

     3a. Member States shall ensure that the designated courts or administrative authorities or other competent courts or authorities verify whether the conditions referred to in paragraphs 1 and 2 are met. If those conditions are met, Member States shall ensure that the designated courts or administrative authorities transmit the relevant bank account information obtained by accessing and searching bank account information pursuant to paragraphs 1 and 2 to the insolvency practitioner who requested it.

     official amendment document ↗
123. Amendment 123Proposal for a directive · Article 14 – paragraph 3 b (new)
     Amendment

     3b. Access and searches pursuant to paragraphs 1 and 2 shall be without prejudice to national procedural safeguards and Union and national rules on the protection of personal data. Member States shall ensure that bank account information obtained pursuant to paragraphs 1 and 2 is processed only for the purposes for which it was obtained, including where it is processed by insolvency practitioners.

     official amendment document ↗
124. Amendment 124Proposal for a directive · Article 14 – paragraph 3 c (new)
     Amendment

     3c. Member States shall ensure that insolvency practitioners, when processing bank account information obtained pursuant to paragraphs 1 and 2, have in place relevant internal procedures for the appropriate management of confidential information.

     official amendment document ↗
125. Amendment 125Proposal for a directive · Article 14 – paragraph 4
     Current text

     4. For the purpose of paragraphs 1 and 2, access and searches shall be considered to be direct and immediate, inter alia, where the national authorities operating the central bank account registries transmit the bank account information expeditiously by an automated mechanism to the designated courts, provided that no intermediary institution is able to interfere with the requested data or the information to be provided.

     Amendment

     4. For the purpose of paragraphs 1 and 2, access to and searches of bank account information shall be considered to be direct and immediate, inter alia, where the national authorities operating the bank account registers transmit the bank account information expeditiously by an automated mechanism to the designated courts or administrative authorities, provided that no intermediary institution is able to interfere with the requested data or the information to be provided.

     official amendment document ↗
126. Amendment 126Proposal for a directive · Article 15 – title
     Current text

     Conditions for access and for searches by designated courts

     Amendment

     Conditions for access to and for searches of bank account information by designated courts and administrative authorities

     official amendment document ↗
127. Amendment 127Proposal for a directive · Article 15 – paragraph 1
     Current text

     1. Access to and searches of bank account information in accordance with Article 14 shall be performed only on a case-by-case basis by the staff of each designated court that have been specifically appointed and authorised to perform those tasks.

     Amendment

     1. Access to and searches of bank account information in accordance with Article 14 shall be performed only on a case-by-case basis by the staff of each designated court or administrative authority that have been specifically appointed and authorised to perform those tasks.

     official amendment document ↗
128. Amendment 128Proposal for a directive · Article 15 – paragraph 2 – point a
     Current text

     (a) the staff of the designated courts maintain high professional standards of confidentiality and data protection, and that they are of high integrity and are appropriately skilled;

     Amendment

     (a) the staff referred to in paragraph 1 maintain high professional standards of confidentiality and data protection, and that they are of high integrity and are appropriately skilled;

     official amendment document ↗
129. Amendment 129Proposal for a directive · Article 15 – paragraph 2 – point b
     Current text

     (b) technical and organisational measures are in place to ensure the security of the data to high technological standards for the purposes of the exercise by designated courts of the power to access and search bank account information in accordance with Article 14.

     Amendment

     (b) technical and organisational measures are in place to ensure the security of the data to high technological standards for the purposes of the exercise by designated courts and administrative authorities of the power to access and search bank account information in accordance with Article 14.

     official amendment document ↗
130. Amendment 130Proposal for a directive · Article 16 – title
     Current text

     Monitoring access and searches by designated courts

     Amendment

     Monitoring access to and searches of bank account information by designated courts and administrative authorities

     official amendment document ↗
131. Amendment 131Proposal for a directive · Article 16 – paragraph 1 – point e
     Current text

     (e) the name of the designated court consulting the registry;

     Amendment

     (e) the name of the designated court or administrative authority accessing or searching the bank account register;

     official amendment document ↗
132. Amendment 132Proposal for a directive · Article 16 – paragraph 1 – point f
     Current text

     (f) the unique user identifier of the staff member of the designated court who made the query or performed the search and, where applicable, of the judge who ordered the query or search and, as far as possible, the unique user identifier of the recipient of the results of the query or search.

     Amendment

     (f) the unique user identifier of the staff member of the designated court or administrative authority who made the query and, where applicable, of the judge or the official who ordered the query or search and of the requesting insolvency practitioner.

     official amendment document ↗
133. Amendment 133Proposal for a directive · Article 16 – paragraph 2
     Current text

     2. The authorities operating the centralised bank account registries shall check the logs referred to in paragraph 1 regularly.

     Amendment

     2. The authorities operating the bank account registers shall check the logs referred to in paragraph 1 regularly.

     official amendment document ↗
134. Amendment 134Proposal for a directive · Article 17 – paragraph 1
     Current text

     1. Member States shall ensure that insolvency practitioners, when identifying and tracing assets relevant for the insolvency proceedings for which they are appointed, have timely access to the information referred to in Article 30(5), second subparagraph, and in Article 31(4), second subparagraph, of Directive (EU) 2015/849 which is held in the beneficial ownership registers set up in the Member States and is accessible through the system of interconnection of beneficial ownership registers set up in accordance with Article 30(10) and Article 31(9) of Directive (EU) 2015/849.

     Amendment

     1. Member States shall ensure that insolvency practitioners, when identifying and tracing assets relevant for the insolvency proceedings for which they are appointed, have timely access to the information on the beneficial owners of legal entities and of legal arrangements held in central beneficial ownership registers, and that such access is provided without alerting the entity, the legal arrangement or the beneficial owner concerned.

     official amendment document ↗
135. Amendment 135Proposal for a directive · Article 17 – paragraph 2 – point a
     Current text

     (a) the name, the month, the year of birth, the country of residence and the nationality of the legal owner;

     Amendment

     (a) the name, the month, the year of birth, the country of residence and the nationality or nationalities of the beneficial owner;

     official amendment document ↗
136. Amendment 136Proposal for a directive · Article 17 – paragraph 2 – point a a (new)
     Amendment

     (aa) for beneficial owners of legal entities, the nature and extent of the beneficial interest held;

     official amendment document ↗
137. Amendment 137Proposal for a directive · Article 17 – paragraph 2 – point a b (new)
     Amendment

     (ab) for beneficial owners of express trusts or similar legal arrangements, the nature of their beneficial ownership.

     official amendment document ↗
138. Amendment 138Proposal for a directive · Article 17 – paragraph 2 – point b
     Current text

     (b) the nature and the extent of the beneficial interest held.

     Amendment

     deleted

     official amendment document ↗
139. Amendment 139Proposal for a directive · Title III – Chapter 3 – title
     Current text

     3 Access by insolvency practitioners to national asset registers

     Amendment

     Access by insolvency practitioners to national registers and databases

     official amendment document ↗
140. Amendment 140Proposal for a directive · Article 18 – title
     Current text

     Access by insolvency practitioners to national asset registers

     Amendment

     Access by insolvency practitioners to national registers and databases

     official amendment document ↗
141. Amendment 141Proposal for a directive · Article 18 – paragraph 1
     Current text

     1. Member States shall ensure that insolvency practitioners, regardless of the Member State where they have been appointed, have direct and expeditious access to the national asset registers listed in the Annex located in their territory, where available.

     Amendment

     1. Member States shall ensure that insolvency practitioners, when identifying and tracing assets relevant for the insolvency proceedings for which they are appointed, regardless of the Member State where they have been appointed, have direct and expeditious access to the national registers and databases listed in the Annex located in their territory, where available.

     official amendment document ↗
142. Amendment 142Proposal for a directive · Article 18 – paragraph 2 a (new)
     Amendment

     2a. Member States shall communicate the lists of the national registers and databases referred to in the Annex to the Commission by…[ 3 months from the date of entry into force of this Directive]. Member States shall immediately notify the Commission of any changes thereto. The Commission shall publish those lists on the European e-Justice portal.

     official amendment document ↗
143. Amendment 143Proposal for a directive · Title III – Chapter 3 a (new)
     Amendment

     Chapter 3a Access to courts by insolvency practitioners of another Member State Article 18a Access to courts by insolvency practitioners of another Member State With respect to the right to initiate proceedings or appear before courts in order to claim assets on behalf of the insolvency estate, each Member State shall ensure that insolvency practitioners appointed in another Member State are not subject to conditions that are less favourable than those applicable to the insolvency practitioners appointed in that Member State.

     official amendment document ↗
144. Amendment 144Proposal for a directive · Article 19 – paragraph 1 – introductory part
     Current text

     1. Member States shall ensure that pre-pack proceedings are composed of the following two consecutive phases:

     Amendment

     1. Member States shall introduce pre-pack proceedings for situations in which the debtor is likely to become insolvent in accordance with national law. Member States shall ensure that pre-pack proceedings are composed of the following two consecutive phases:

     official amendment document ↗
145. Amendment 145Proposal for a directive · Article 19 – paragraph 2
     Current text

     2. Pre-pack proceedings shall comply with the conditions set out in this Title. As regards all other matters, including the ranking of claims and the rules on distribution of proceeds, Member States shall apply national provisions on winding-up proceedings, provided that they are compatible with Union law, including the rules laid down in this Title.

     Amendment

     2. Pre-pack proceedings shall comply with the conditions set out in this Title. As regards all other matters, including the ranking of claims and the rules on distribution of proceeds, Member States shall apply national provisions on winding-up proceedings, provided that they are compatible with Union law.

     official amendment document ↗
146. Amendment 146Proposal for a directive · Article 19 a (new)
     Amendment

     Article 19a Rights of workers The pre-pack proceedings are without prejudice to Union and national law on the rights of workers in insolvency proceedings, including the involvement of workers’ representatives and appropriate measures to inform and consult workers’ representatives. While applying this Title, Member States shall ensure that the impact on workers is taken into account as much as possible, with a view to preserving employment.

     official amendment document ↗
147. Amendment 147Proposal for a directive · Article 20 – paragraph 2
     Current text

     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).

     Amendment

     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, provided that the liquidation of the debtor’s business as a going concern satisfies to the greatest extent possible the claims of the creditors. __________________ 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…

     Excerpt — full text in the official PDF.
     official amendment document ↗
148. Amendment 148Proposal for a directive · Article 22 – paragraph 1 – subparagraph 1
     Current text

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

     Amendment

     Member States shall provide that, upon request of the debtor, the court appoints a monitor. The monitor shall be independent of the debtor, the debtor’s shareholders, the creditors and any other party having a legal or economic interest in the debtor or the debtor’s business.

     official amendment document ↗
149. Amendment 149Proposal for a directive · Article 22 – paragraph 2 – subparagraph 1 – point a a (new)
     Amendment

     (aa) where appropriate, has recourse to an independent valuation in order to comply with requirements related to obtaining market value;

     official amendment document ↗
150. Amendment 150Proposal for a directive · Article 22 – paragraph 2 – subparagraph 1 – point b
     Current text

     (b) justifies why it considers that the sale process is competitive, transparent, fair and meets market standards;

     Amendment

     (b) formally declares and demonstrates that the sale process is competitive, transparent, fair and meets market standards;

     official amendment document ↗
151. Amendment 151Proposal for a directive · Article 22 – paragraph 2 – subparagraph 1 – point d
     Current text

     (d) states whether it considers that the best bid does not constitute a manifest breach of the best-interest-of-creditors test.

     Amendment

     (d) formally declares and demonstrates that the best bid does not constitute a manifest breach of the best-interest-of-creditors test.

     official amendment document ↗
152. Amendment 152Proposal for a directive · Article 22 – paragraph 2 – subparagraph 2
     Current text

     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.

     Amendment

     Actions by the monitor listed in the first subparagraph shall be done in writing and shall be made available in digital format and in a timely manner only to the parties involved in the preparation phase. Beyond that, the monitor shall maintain the confidentiality of all information obtained in connection with the preparation phase.

     official amendment document ↗
153. Amendment 153Proposal for a directive · Article 23 – paragraph -1 (new)
     Amendment

     Member States shall ensure that, in the course of the preparation phase, the debtor remains in control of its assets and the day-to-day operation of the business.

     official amendment document ↗
154. Amendment 154Proposal for a directive · Article 23 – paragraph 1
     Current text

     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 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

     Member States shall ensure that during the preparation phase, where the debtor is likely to become insolvent 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 is essential for the successful roll-out of the pre-pack proceedings. The monitor and the corresponding creditor shall be heard by the court prior to the decision on the stay of individual enforcement actions.

     official amendment document ↗
155. Amendment 155Proposal for a directive · Article 24 – paragraph 2
     Current text

     2. Where the sale process only produces one binding offer, that offer shall be deemed to reflect the business market price.

     Amendment

     2. Without prejudice to Article 32(2), where the sale process only produces one binding offer, that offer shall be deemed to reflect the business market price, unless it can be demonstrated otherwise.

     official amendment document ↗
156. Amendment 156Proposal for a directive · Article 24 – paragraph 3
     Current text

     3. Member States may depart from paragraph 1 only where the court runs a public auction in the liquidation phase in accordance with Article 26. In this case, Article 22(2), point (b) shall not apply.

     Amendment

     3. Member States may depart from paragraph 1 only where the court runs a public auction in the liquidation phase in accordance with Article 26(2). In this case, Article 22(2), point (b) shall not apply.

     official amendment document ↗
157. Amendment 157Proposal for a directive · Article 24 – paragraph 3 a (new)
     Amendment

     3a. Member States shall ensure that it is possible, in the course of the preparation phase, to obtain the services of an independent valuation practitioner as a means of gauging a fair market price.

     official amendment document ↗
158. Amendment 158Proposal for a directive · Article 25 – paragraph 1
     Current text

     Member States shall ensure that, when the liquidation phase is opened, the court appoints the monitor referred to in Article 22 as insolvency practitioner.

     Amendment

     Member States shall ensure that, when the liquidation phase is opened, the court appoints the monitor referred to in Article 22 as insolvency practitioner unless the monitor resigns or is unable to perform the required functions, such as in cases of serious illness or death.

     official amendment document ↗
159. Amendment 159Proposal for a directive · Article 26 – paragraph 2
     Current text

     2. In case Member States apply Article 24(3), the public auction referred to in that provision shall last no longer than four weeks and shall be initiated within two weeks as of the opening of the liquidation phase. The offer selected by the monitor shall be used as the initial bid in the public auction. Member States shall ensure that the protections granted to the initial bidder in the preparation phase, such as expense reimbursement or break-up fees, are commensurate and proportionate, and do not deter potentially interested parties from bidding in the liquidation phase.

     Amendment

     2. By way of derogation from paragraph 1, Member States shall ensure that the court can run a public auction where one or more creditors’ groups demonstrate a credible suspicion of abuse. The offer selected by the monitor shall be used as the initial bid in the public auction. Member States shall ensure that the protections granted to the initial bidder in the preparation phase, such as expense reimbursement or break-up fees, are commensurate and proportionate, and do not deter potentially interested parties from bidding in the liquidation phase.

     official amendment document ↗
160. Amendment 160Proposal for a directive · Article 27 – paragraph 1 – subparagraph 1 a (new)
     Amendment

     By way of derogation from the first subparagraph, Member States may provide that consent of the debtor’s counterparty or counterparties is required in so far as is necessary, depending on the type of contract, the legal status of the parties or the interests of the business.

     official amendment document ↗
161. Amendment 161Proposal for a directive · Article 27 – paragraph 2 – subparagraph 1 – introductory part
     Current text

     2. Member States shall ensure that the court may decide to terminate the executory contracts referred to in paragraph 1, first subparagraph, provided that one of the following conditions applies:

     Amendment

     2. Member States shall ensure that the court may decide to terminate the executory contracts referred to in paragraph 1, first subparagraph, subject to a notice period of at least three months prior to the assignment, provided that one of the following conditions applies:

     official amendment document ↗
162. Amendment 162Proposal for a directive · Article 27 – paragraph 2 – subparagraph 2
     Current text

     Point (a) of the first subparagraph shall not apply to executory contracts relating to licenses of intellectual and industrial property rights.

     Amendment

     Point (a) of the first subparagraph shall not apply to executory contracts relating to licenses of intellectual and industrial property rights or to credit or financial services contracts.

     official amendment document ↗
163. Amendment 163Proposal for a directive · Article 28 – paragraph 1
     Current text

     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.

     Amendment

     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, solely or jointly with the debtor, the debts and the liabilities of the business or part thereof.

     official amendment document ↗
164. Amendment 164Proposal for a directive · Article 31 – paragraph 1
     Current text

     Member States shall ensure that the monitor and the insolvency practitioner are liable for the damages that their failure to comply with their obligations under this Title causes to creditors and third parties affected by the pre-pack proceedings.

     Amendment

     Member States shall ensure that the monitor and the insolvency practitioner are liable for the damages that their intentional or negligent failure to comply with their obligations under this Title causes to creditors and third parties affected by the pre-pack proceedings.

     official amendment document ↗
165. Amendment 165Proposal for a directive · Article 32 – paragraph 1 – subparagraph 2
     Current text

     Member States may provide that where it is proved that the disclosure duty referred to in the first subparagraph, point (a), was breached, the court revokes the benefits referred to in Article 28.

     Amendment

     Member States shall provide that where it is proved that the disclosure duty referred to in the first subparagraph, point (a), was breached, the court revokes the benefits referred to in Article 28.

     official amendment document ↗
166. Amendment 166Proposal for a directive · Article 32 – paragraph 2
     Current text

     2. Where the offer made by a party closely related to the debtor is the only existing offer, Member States shall introduce additional safeguards for the authorisation and execution of the sale of the debtor’s business or part thereof. These safeguards shall at least include the duty for the monitor and the insolvency practitioner to reject the offer from the party closely related to the debtor if the offer does not satisfy the best-interest-of-creditors test.

     Amendment

     2. Where the offer made by a party closely related to the debtor is the only existing offer, Member States shall introduce additional safeguards for the authorisation and execution of the sale of the debtor’s business or part thereof. These safeguards shall at least include the requirement to obtain a market valuation of the business and the duty for the monitor and the insolvency practitioner to reject the offer from the party closely related to the debtor if the offer does not satisfy the best-interest-of-creditors test.

     official amendment document ↗
167. Amendment 167Proposal for a directive · Article 33 – paragraph 1 – point a
     Current text

     (a) the monitor or the insolvency practitioner takes the necessary steps to obtain interim financing at the lowest possible cost;

     Amendment

     (a) the debtor, the monitor or the insolvency practitioner takes the necessary steps to obtain interim financing at the lowest possible cost;

     official amendment document ↗
168. Amendment 168Proposal for a directive · Article 34 – paragraph -1 (new)
     Amendment

     -1. Member States shall ensure that, prior to the authorisation of the sale of the debtor’s business or part thereof, the insolvency practitioner provides the court with a report on a favourable best-interest-of-creditors test.

     official amendment document ↗
169. Amendment 169Proposal for a directive · Article 36 – paragraph 1
     Current text

     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 insolvent.

     Amendment

     1. Member States shall ensure that, where a legal entity becomes insolvent, its directors have the duty 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 become aware that the legal entity is insolvent in accordance with national law. Preventive restructuring proceedings are be excluded from that obligation.

     official amendment document ↗
170. Amendment 170Proposal for a directive · Article 36 – paragraph 1 a (new)
     Amendment

     1a. By way of derogation from paragraph 1, Member States may provide that the duty referred to therein does not apply to directors who are natural persons and are personally liable for all of the company’s debts where: (a) the directors inform the public of the company’s insolvency through a notification in a public register, at the latest within the deadline referred to in paragraph 1, in order to ensure that the creditors are able to request the opening of insolvency proceedings; or (b) the directors take measures that are designed to avoid damage to the creditors of the insolvent company, provided that such measures were reasonably likely to avoid such damage or secure a better outcome fo…

     Excerpt — full text in the official PDF.
     official amendment document ↗
171. Amendment 171Proposal for a directive · Article 37 – paragraph 1
     Current text

     1. Member States shall ensure that 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

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

     official amendment document ↗
172. Amendment 172Proposal for a directive · Article 37 – paragraph 2 a (new)
     Amendment

     If Member States have exercised the option provided for in Article 36(1a), they shall ensure that directors who take measures as referred to therein are liable, in accordance with national law, for damage caused to creditors that would not otherwise have been caused had the opening of insolvency proceedings been requested in accordance with Article 36(1).

     official amendment document ↗
173. Amendment 173Proposal for a directive · Article 37 – paragraph 2 b (new)
     Amendment

     Member States may provide that such liability is excluded where and to the extent that the directors can demonstrate, on the basis of objective circumstances, that the measures taken could reasonably be expected to avoid damage to creditors, provided that such measures were reasonably likely to avoid such damage or secure a better outcome for creditors.

     official amendment document ↗
174. Amendment 174Proposal for a directive · Title VI
     Current text

     [...]

     Amendment

     deleted

     official amendment document ↗
175. Amendment 175Proposal for a directive · Article 58 – paragraph 3
     Current text

     3. Member States may exclude in national law the possibility to establish a creditors’ committee in insolvency proceedings, when the overall costs of the involvement of such a committee are not justified in view of the low economic relevance of the insolvency estate, of the low number of creditors or the circumstance that the debtor is a microenterprise.

     Amendment

     3. Member States may exclude in national law the possibility to establish a creditors’ committee in insolvency proceedings, when, due to the nature and scope of the debtor’s business, the overall costs of the involvement of such a committee are not justified in view of the low economic relevance of the insolvency estate, of the low number of creditors or the circumstance that the debtor is a microenterprise.

     official amendment document ↗
176. Amendment 176Proposal for a directive · Article 59 – paragraph 1
     Current text

     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

     1. Where a creditors’ committee is established pursuant to Article 58, 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 insolvency proceedings.

     official amendment document ↗
177. Amendment 177Proposal for a directive · Article 59 – paragraph 2
     Current text

     2. Where the members of the creditors’ committee are appointed at the general meeting of creditors, Member States shall ensure that the court certifies the appointment within 5 days from the date of the communication of the appointment to the court.

     Amendment

     2. Where the members of the creditors’ committee are appointed at the general meeting of creditors, Member States shall ensure that the court certifies the appointment within 5 working days from the date of the communication of the appointment to the court.

     official amendment document ↗
178. Amendment 178Proposal for a directive · Article 59 – paragraph 3 – subparagraph 1 a (new)
     Amendment

     When workers are among the creditors, Member States shall ensure that the creditors’ committee can include members who are workers or their representatives. Individuals who are not themselves creditors may also be appointed as members of the creditors’ committee only if they represent the interests of a group of creditors.

     official amendment document ↗
179. Amendment 179Proposal for a directive · Article 60 – paragraph 1 – subparagraph 1
     Current text

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

     Amendment

     Member States shall ensure that members of the creditors’ committee represent solely the interests of the whole body of creditors, in a fair and unbiased way and act independently of the insolvency practitioner.

     official amendment document ↗
180. Amendment 180Proposal for a directive · Article 60 – paragraph 1 – subparagraph 2
     Current text

     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 in the same insolvency proceedings. In this case, the members of the creditors’ committee represent solely the interests of the creditors who appointed them.

     Amendment

     deleted

     official amendment document ↗
181. Amendment 181Proposal for a directive · Article 60 – paragraph 2 a (new)
     Amendment

     2a. Member States shall ensure that the members of the creditors’ committee act in good faith when carrying out the functions of the committee.

     official amendment document ↗
182. Amendment 182Proposal for a directive · Article 61
     Current text

     Article 61 Number of members Member States shall ensure that the number of members composing the creditors’ committee is at least 3 and does not exceed 7.

     Amendment

     deleted

     official amendment document ↗
183. Amendment 183Proposal for a directive · Article 62 – paragraph 2
     Current text

     2. Grounds for removal shall at least include fraudulent or grossly negligent conduct, wilful misconduct, or breach of fiduciary duties with respect to the creditors’ interests.

     Amendment

     2. Grounds for removal shall at least include fraudulent or grossly negligent conduct, conflicts of interest, wilful misconduct, or breach of fiduciary duties with respect to the creditors’ interests.

     official amendment document ↗
184. Amendment 184Proposal for a directive · Article 63 – paragraph 2 – point -a (new)
     Current text

     .

     Amendment

     (-a) the scope of the creditors’ committee’s duties;

     official amendment document ↗
185. Amendment 185Proposal for a directive · Article 64 – paragraph 1 – subparagraph 1
     Current text

     Member States shall ensure that the creditors’ committee’s function is to ensure that in the conduct of the insolvency proceedings the creditors’ interests are protected and individual creditors are involved.

     Amendment

     Member States shall ensure that the creditors’ committee’s function is to ensure that in the conduct of the insolvency proceedings the interests of the whole body of creditors are protected.

     official amendment document ↗
186. Amendment 186Proposal for a directive · Article 64 – paragraph 1 – subparagraph 2 – point e
     Current text

     (e) the duty to provide information to the creditors represented by the creditors’ committee and the right to receive information from those creditors;

     Amendment

     (e) the power to share relevant and necessary information to represented creditors and to receive information from them;

     official amendment document ↗
187. Amendment 187Proposal for a directive · Article 64 – paragraph 1 – subparagraph 2 – point f a (new)
     Amendment

     (fa) the power to appoint a secretary;

     official amendment document ↗
188. Amendment 188Proposal for a directive · Article 64 – paragraph 1 – subparagraph 2 a (new)
     Amendment

     Member States shall ensure that creditors, members of the creditors’ committee and any professionals employed by the creditors’ committee maintain the confidentiality of all information obtained in connection with the committee’s activities.

     official amendment document ↗
189. Amendment 189Proposal for a directive · Article 66 – paragraph 1
     Current text

     Members of a creditors’ committee are exempt from individual liability for their actions in their capacity as members of the committee unless they have committed grossly negligent or fraudulent conduct, wilful misconduct, or have breached a fiduciary duty to the creditors they represent.

     Amendment

     Members of a creditors’ committee are exempt from individual liability for their actions in their capacity as members of the committee unless they have committed an intentional or grossly negligent violation of duties with respect to the creditors’ interests.

     official amendment document ↗
190. Amendment 190Proposal for a directive · Article 66 – paragraph 1a (new)
     Amendment

     Expenses for liability insurance covering the liability of members of the creditors’ committee shall be borne by the insolvency estate in accordance with Article 65(2).

     official amendment document ↗
191. Amendment 191Proposal for a directive · Article 68 – paragraph 1
     Current text

     1. Member States shall provide, within the framework of the European e-Justice Portal, a key information factsheet on certain elements of national law on insolvency proceedings.

     Amendment

     1. Member States shall provide, within the framework of the European e-Justice Portal, a key information factsheet on essential elements of national law on insolvency proceedings.

     official amendment document ↗
192. Amendment 192Proposal for a directive · Article 69 a (new)
     Amendment

     Article 69a Supporting measures To address the difficulties of SMEs and microenterprises in particular, and their need for additional supporting measures in the event of insolvency and financial distress, the Commission shall support the exchange of best practices between Member States and provide guidance on that basis and on the basis of exchanges with SME representatives.

     official amendment document ↗
193. Amendment 193Proposal for a directive · Article 70 – paragraph 1
     Current text

     By [5 years after the deadline for transposition of this Directive], the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application and impact of this Directive.

     Amendment

     By [3 years after the deadline for transposition of this Directive] and every 5 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application, impact and its effectiveness in reaching the objectives of this Directive. The report may be accompanied, if appropriate, by a legislative proposal.

     official amendment document ↗
194. Amendment 194Proposal for a directive · Article 71 – paragraph 1 – subparagraph 1
     Current text

     Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [2 years from entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

     Amendment

     Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... [12 months from entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

     official amendment document ↗
195. Amendment 195Proposal for a directive · Annex I – title
     Current text

     National asset registers referred to in Article 18

     Amendment

     National registers and databases referred to in Article 18

     official amendment document ↗
196. Amendment 196Proposal for a directive · Annex I – point 3
     Current text

     3. Movable property registers including registers of vehicles, ships and aircrafts and registers of weapons;

     Amendment

     3. Movable property registers including registers of vehicles, ships and aircrafts, where property rights are registered in such registers;

     official amendment document ↗
197. Amendment 197Proposal for a directive · Annex I – point 6
     Current text

     6. Other security registers, including securities depository registers and book-entry registers;

     Amendment

     6. Registers or databases containing information on the ownership of securities, such as central securities depositories, as defined in Article 2 of Regulation (EU) No 909/2014;

     official amendment document ↗
198. Amendment 198Proposal for a directive · Annex I – point 9
     Current text

     9. Probate registers;

     Amendment

     deleted

     official amendment document ↗
199. Amendment 199Proposal for a directive · Annex I – point 11
     Current text

     11. Registers of internet domains;

     Amendment

     deleted

     official amendment document ↗
200. Amendment 200Proposal for a directive · Annex I – point 12
     Current text

     12. Register of General Terms and Conditions.

     Amendment

     deleted

     official amendment document ↗
201. Amendment 201JURIProposal for a directive

     Replaces or inserts a longer passage — full text in the official document.

     official amendment document ↗
202. Amendment 202PfEProposal for a directive · Article 18 – paragraph 2
     Current text

     2. With respect to access to the national asset registers listed in the Annex, every Member State shall ensure that the insolvency practitioners appointed in another Member State are not subject to access conditions that are de jure or de facto less favourable than the conditions granted to the insolvency practitioners appointed in that Member State.

     Amendment

     2. With respect to access to the national registers and databases listed in the Annex, a Member State may refuse such access to insolvency practitioners appointed in another Member State where that other Member State does not ensure a comparable level of education and continuing professional training for its insolvency practitioners, in particular in relation to the handling of personal data and commercially sensitive information. In such cases, the Member State applying higher professional standards may designate a national insolvency practitioner to act on behalf of the requesting insolvency practitioner from the Member State where lower professional standards apply.

     official amendment document ↗
203. Amendment 203PfEProposal for a directive · Article 27
     Current text

     Article 27 Assignment or termination of executory contracts 1. Member States shall ensure that the acquirer of the debtor’s business or part thereof is assigned the executory contracts which are necessary for the continuation of the debtor’s business and the suspension of which would lead to a business standstill. The assignment shall not require the consent of the debtor’s counterparty or counterparties. The first subparagraph shall not apply if the acquirer of the debtor’s business or part thereof is a competitor to the debtor’s counterparty or counterparties. 2. Member States shall ensure that the court may decide to terminate the executory contracts referred to in paragraph 1, first subp…

     Amendment

     Article 27 Assignment or termination of executory contracts In order to safeguard the freedom of contract, the debtor’s counterparty or counterparties shall retain the right to terminate the assigned contract, subject to a notice period no shorter than three months from the data of the notification of the assignment.

     Excerpt — full text in the official PDF.
     official amendment document ↗
204. Amendment 206ECRProposal for a directive · Recital 1 a (new)
     Amendment

     (1 a) Minimum harmonization implies a set of common rules applicable to any insolvency proceedings, such as: -the judicial and transparent nature of the proceedings; -the collective and sacrificial nature of the proceedings—all participants in the proceedings are subject to restrictions on their rights, and creditors are subject to modifications, alterations, or cancellations of their claims against the debtor, in the common interest of creditors, employees, and interested parties (indirect shareholders, stakeholders); -the competitive nature of the procedure; -the independence of the court and the insolvency practitioner; -the liability of persons who caused the insolvency for the damages r…

     Excerpt — full text in the official PDF.
     official amendment document ↗
205. Amendment 207ECRProposal for a directive · Recital 30 a (new)
     Amendment

     (30 a) Member States shall ensure that the monitor is not the same person as the insolvency practitioner to be appointed in the liquidation phase. Member States shall also ensure that there are no conflicts of interest between the monitor and the insolvency practitioner appointed in the liquidation phase or in insolvency proceedings ongoing at the time of the launch of the pre-pack procedure. Conflicts of interest shall be presumed to exist where the monitor is affiliated to the insolvency practitioner or they have a common beneficial owner.

     official amendment document ↗
206. Amendment 208ECRProposal for a directive · Recital 31 a (new)
     Amendment

     (31 a) Member States shall ensure that the court that opened the insolvency proceedings is separate and independent from the court that would decide on the liquidation phase in a pre-pack procedure.

     official amendment document ↗
207. Amendment 209ECRProposal for a directive · Recital 55 a (new)
     Amendment

     (55 a) Member States shall put in place procedures to prevent hostile takeovers through a pre-pack sale, which shall be made available in particular to public companies and companies that are competitors of potential acquirers or targets of "control hunters."

     official amendment document ↗
208. Amendment 210ECRProposal for a directive · Recital 55 b (new)
     Amendment

     (55 b) Systemic bankruptcies or exceptional emergency situations should not be used as a method of avoiding or circumventing insolvency proceedings.

     official amendment document ↗
209. Amendment 211ECRProposal for a directive · Article 2 – paragraph 1 – point a a (new)
     Amendment

     (a a) 'monitor' means the natural or legal person authorized to select the best buyer for the debtor's business, as well as to negotiate the terms of sale or, where appropriate, to assist the debtor in the negotiation; the monitor may refer the matter to the creditors or the court in order to propose a decision on the sale; the monitor shall not be the insolvency practitioner appointed in the liquidation phase of the pre-pack procedure, nor the liquidator appointed in bankruptcy proceedings opened as a result of the failure of the pre-pack proceeding.

     official amendment document ↗
210. Amendment 212ECRProposal for a directive · Article 19 – paragraph 2 a (new)
     Amendment

     2 a. The court that opened the insolvency proceedings pending at the date of commencement of the pre-pack proceeding is separate and independent from the court that would decide on the liquidation phase in a pre-pack proceeding.

     official amendment document ↗
211. Amendment 213ECRProposal for a directive · Article 20 – paragraph 2 a (new)
     Amendment

     2 a. If a pre-pack proceeding has failed, the judicial reorganization shall cease or, as the case may be, shall no longer constitute an alternative to bankruptcy. The monitor shall not be appointed as liquidator in the bankruptcy proceedings opened following the failure of the pre-pack proceeding.

     official amendment document ↗
212. Amendment 214ECRProposal for a directive · Article 22 – paragraph 1 – subparagraph 1 a (new)
     Amendment

     Employees, through their representatives, as well as the main creditors, may propose an alternative monitor.

     official amendment document ↗
213. Amendment 215ECRProposal for a directive · Article 25 – paragraph 1 a (new)
     Amendment

     The court with jurisdiction in the liquidation phase of the pre-pack proceeding is separate and independent from the court that previously opened insolvency proceedings. The opening of the second phase, liquidation, of the pre-pack proceeding suspends the previously ongoing insolvency proceedings.

     official amendment document ↗
214. Amendment 216ECRProposal for a directive · Article 26 – paragraph 2 a (new)
     Amendment

     2 a. The debtor, in particular when it is the owner of a public enterprise or a competitor of the potential acquirer, shall have the right to challenge and stop, on the basis of clear evidence, a hostile takeover carried out through the pre-pack proceeding. National or EU competition authorities remain competent in cases of potential economic concentrations or other facts or events with the potential to affect competition in the market.

     official amendment document ↗