PR_COD_1amCom€¦ · Web viewfrom differences between national laws and procedures on preventive...

European Parliament2014-2019

Plenary sitting

A8-0269/2018

21.8.2018

***IREPORTon the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU(COM(2016)0723 – C8-0475/2016 – 2016/0359(COD))

Committee on Legal Affairs

Rapporteur: Angelika Niebler

RR\1161006EN.docx PE610.684v03-00

EN United in diversity EN

PR_COD_1amCom

Symbols for procedures

* Consultation procedure*** Consent procedure

***I Ordinary legislative procedure (first reading)***II Ordinary legislative procedure (second reading)

***III Ordinary legislative procedure (third reading)

(The type of procedure depends on the legal basis proposed by the draft act.)

Amendments to a draft act

Amendments by Parliament set out in two columns

Deletions are indicated in bold italics in the left-hand column. Replacements are indicated in bold italics in both columns. New text is indicated in bold italics in the right-hand column.

The first and second lines of the header of each amendment identify the relevant part of the draft act under consideration. If an amendment pertains to an existing act that the draft act is seeking to amend, the amendment heading includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend.

Amendments by Parliament in the form of a consolidated text

New text is highlighted in bold italics. Deletions are indicated using either the ▌symbol or strikeout. Replacements are indicated by highlighting the new text in bold italics and by deleting or striking out the text that has been replaced.By way of exception, purely technical changes made by the drafting departments in preparing the final text are not highlighted.

PE610.684v03-00 2/158 RR\1161006EN.docx

EN

CONTENTS

Page

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION.................................5

OPINION OF THE COMMITTEE ON ECONOMIC AND MONETARY AFFAIRS..........71

OPINION OF THE COMMITTEE ON EMPLOYMENT AND SOCIAL AFFAIRS..........128

PROCEDURE – COMMITTEE RESPONSIBLE.................................................................164

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE..................................165

RR\1161006EN.docx 3/158 PE610.684v03-00

EN

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU(COM(2016)0723 – C8-0475/2016 – 2016/0359(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2016)0723),

– having regard to Article 294(2) and Articles 53 and 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0475/2016),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Economic and Monetary Affairs and the Committee on Employment and Social Affairs (A8-0269/2018),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment 1

Proposal for a directiveRecital 1

Text proposed by the Commission Amendment

(1) The objective of this Directive is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring,

(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

PE610.684v03-00 4/158 RR\1161006EN.docx

EN

insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

procedures on preventive restructuring, insolvency and second chance. Without affecting workers’ fundamental rights and freedoms, this Directive aims at removing such obstacles by ensuring that viable enterprises and entrepreneurs in financial difficulties, including individual entrepreneurs who are economically viable, have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after they have been the subject of an insolvency proceeding; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

Amendment 2



(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

(2) Restructuring and the result of appropriate and viable expert reports should enable enterprises and personally liable entrepreneurs in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business or the business itself. Preventive restructuring frameworks should above all enable the enterprises to restructure rapidly at an early stage and to avoid their insolvency and the liquidation of viable companies. Those rapid preventive frameworks should prevent job losses and the loss of knowledge and skills, and maximise the total value to creditors in comparison to what they would have received in the event of the liquidation of the company assets, and to owners and the economy as a whole. They should also

RR\1161006EN.docx 5/158 PE610.684v03-00

EN

prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected, including those of workers. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible. The availability of preventive rapid restructuring procedures would ensure that action is taken before companies default on their loans, thereby helping to reduce the risk of loans becoming non-performing in cyclical downturns and cushioning the adverse impact on the financial sector. A significant percentage of businesses and jobs could be saved if preventive procedures existed in all Member States where businesses’ places of establishment, assets or creditors are situated.

Amendment 3



(3) There are differences between the Member States as regards the range of the procedures available to debtors in financial difficulties in order to restructure their business. Some Member States have a limited range of procedures meaning that businesses are only able to restructure at a relatively late stage, in the context of insolvency procedures. In other Member States, restructuring is possible at an earlier stage but the procedures available are not as effective as they could be or are very formal, in particular limiting the use of out-of-court processes. Similarly, national rules giving entrepreneurs a second chance, in particular by granting them discharge from the debts they have incurred in the course of their business, vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge.

(3) There are differences between the Member States as regards the range of the procedures available to debtors in financial difficulties in order to restructure their business. Some Member States have a limited range of procedures meaning that businesses are only able to restructure at a relatively late stage, in the context of insolvency procedures. In other Member States, restructuring is possible at an earlier stage but the procedures available are not as effective as they could be or are very formal, in particular limiting the use of out-of-court processes. Preventive solutions are a growing trend in modern insolvency law. The trend goes towards favouring approaches that, unlike the traditional approach of liquidating a business in crisis, have the aim of restoring it to health or, at least, saving those of its units which are still economically viable. That

PE610.684v03-00 6/158 RR\1161006EN.docx

EN

practice often helps to maintain jobs or reduce avoidable job losses. Similarly, national rules giving entrepreneurs a second chance, in particular by granting them discharge from the debts they have incurred in the course of their business, vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge. Also, the degree of involvement of judicial or administrative authorities or their appointees varies from minimal involvement in some Member States to full participation in others.

Amendment 4



(5) Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long.

(5) Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long and being unduly costly.

Amendment 5



(6) All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency

(6) All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many

RR\1161006EN.docx 7/158 PE610.684v03-00

EN

procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country.

investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. That uncertainty therefore acts as a disincentive which obstructs the freedom of establishment of undertakings and the promotion of entrepreneurship and harms the proper functioning of the internal market. Small and medium-sized enterprises in particular do not, for the most part, have the resources needed to assess risks related to cross-border activities.

Amendment 6



7. Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.

7. Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic activity, and therefore for the preservation and creation of jobs. At the same time, a greater level of harmonisation would contribute even more towards achieving a common Union commercial law.

Amendment 7

Proposal for a directiveRecital 8 a (new)


(8a) It is widely recognised that any restructuring operation, in particular one

PE610.684v03-00 8/158 RR\1161006EN.docx

EN

of major size and which generates a significant impact, should be accompanied by an explanation and justification to the stakeholders, covering the choice of the measures envisaged in relation to the objectives as well as alternative options and should ensure there is full and appropriate involvement of workers' representatives at all levels. The explanation and justification should be prepared in good time to enable stakeholders to prepare for consultations, before the company takes a decision1a.

_________________1a Text adopted P7_TA(2013)0005. Information and consultation of workers, anticipation and management of restructuring

Amendment 8



13. In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

13. Enterprises, and in particular small and medium sized enterprises, which represent 99% of all businesses in the Union, should benefit from a more coherent approach at Union level, since they are disproportionately more likely to be taken into liquidation rather than be subject to restructuring and they have to bear costs that are twice as high as those faced by larger companies for cross-border procedures, compared with domestic procedures. Small and medium enterprises, especially when facing financial difficulties, as well as workers representatives, often do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. In order to help such enterprises restructure at low cost, check lists for restructuring plans should also be developed nationally and

RR\1161006EN.docx 9/158 PE610.684v03-00

EN

made available electronically. Members States should consider, in particular, the needs and specificities of small-and medium-sized enterprises when establishing such checklists. Taking into account the limited resources of small-and medium-sized enterprises for hiring professional experts, early warning tools should be put in place to warn debtors of the urgent need to act quickly.

Amendment 9



(13a) Creditors and workers should be allowed to propose an alternative restructuring plan. Member States should define the conditions under which they are able to propose such a plan.

Amendment 10

Proposal for a directiveRecital 13 b (new)


(13b) In order to secure a more coherent approach, the Commission should consider setting up a registry of insolvencies in the Union, which would provide greater transparency for creditors and simplify access to information, in particular for small and medium-sized enterprises and for employees.

Amendment 11



(15) Consumer over-indebtedness is a matter of great economic and social


PE610.684v03-00 10/158 RR\1161006EN.docx

EN

concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply the discharge provisions to consumers.

concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States are advised to begin at the earliest opportunity also to apply the discharge provisions to consumers.

Amendment 12



(15a) In order to achieve greater clarity, the Member States and the Commission should conduct a study in order to identify the key indicators of personal over-indebtedness. In light of the results of that study, the Member States and the Commission should adopt measures establishing a system of early warning tools for the over-indebtedness of consumers.

Amendment 13



(16) The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more

(16) The earlier the debtor, the entrepreneur or the workers’ representative can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a

RR\1161006EN.docx 11/158 PE610.684v03-00

EN

orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.

business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development. Workers’ representatives should have access to relevant information and be given the right to communicate concerns to other actors involved. Member States should provide the opportunity to use new IT technologies for notifications and online communication and they should make information about the early warning system available on a dedicated website.

Amendment 14



(16a) The early warning phase, designed to anticipate the emergence of a crisis, is intended to assist by flagging difficulties arising for debtors and offering them the possibility of a rapid analysis of, and solution to, the economic and financial problems facing the company, making available - on a voluntary basis - various resources for that purpose, without dictating given lines of conduct or necessarily revealing the existence of a crisis to third parties. It is therefore important to leave it to the Member States to decide whether to restrict mandatory monitoring provisions to small and

PE610.684v03-00 12/158 RR\1161006EN.docx

EN

medium-sized enterprises, bearing in mind that small and medium-sized enterprises themselves are frequently unable to initiate restructuring processes independently because of a number of factors undermining their competitiveness, such as being undersized, a lack of strong corporate governance, effective operational procedures and monitoring and planning resources, and their lesser ability to afford to do so.

Amendment 15



(17) A restructuring framework should be available to debtors to enable them to address their financial difficulties at an early stage, when it appears likely that their insolvency may be prevented and the continuation of their business assured. A restructuring framework should be available before a debtor becomes insolvent according to national law, i.e. before the debtor fulfils the conditions for entering collective insolvency procedure which entail normally a total divestment of the debtor and the appointment of a liquidator. A test of viability should not therefore be made a pre-condition for entering negotiations and for granting a stay of enforcement actions. Rather, the viability of an enterprise should most often be an assessment to be made by affected creditors who in their majority agree to some adjustments of their claims. However, in order to avoid the procedures being misused, the financial difficulties of the debtor should reflect a likelihood of insolvency and the restructuring plan should be capable of preventing the insolvency of the debtor and ensuring the viability of the business.

(17) A restructuring framework should be available to debtors to enable them to address their financial difficulties at an early stage, when it appears likely that their insolvency may be prevented and the continuation of their business assured. A restructuring framework should be available before a debtor becomes insolvent according to national law, i.e. before the debtor fulfils the conditions for entering collective insolvency procedure which entail normally a total divestment of the debtor and the appointment of a liquidator. Member States should be able to limit access to the restructuring network with regard to enterprises that have been found by a court of a Member State to have infringed accounting or book-keeping obligations. Member States should also be able to grant access to the restructuring frameworks at the request of creditors and workers’ representatives. A test of viability should not therefore be made a pre-condition for entering negotiations and for granting a stay of enforcement actions. Rather, the viability of an enterprise should most often be an assessment to be made by affected creditors who in their majority agree to

RR\1161006EN.docx 13/158 PE610.684v03-00

EN

some adjustments of their claims. However, in order to avoid the procedures being misused, the financial difficulties of the debtor should reflect a likelihood of insolvency and the restructuring plan should be capable of preventing the insolvency of the debtor and ensuring the viability of the business.

Amendment 16



(17a) The observation of accounting and book-keeping obligations is considered to be an effective instrument for making enterprises and entrepreneurs aware that they are at risk of being unable to pay their debts at maturity. It is appropriate to provide that Member States are allowed to limit access to restructuring proceedings to those enterprises and entrepreneurs who observe such accounting and book-keeping obligations.

Amendment 17



(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets

(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets

PE610.684v03-00 14/158 RR\1161006EN.docx

EN

and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors.

and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. The conditions for such appointments should be left to the Member States to define. However, a practitioner should be appointed when a stay is granted, when the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram-down, or if requested by the debtor or a majority of the creditors. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors. Member States should further ensure that clear and transparent information is provided to the workers’ representatives.

Amendment 18



(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the

(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions where such actions may adversely

RR\1161006EN.docx 15/158 PE610.684v03-00

EN

obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.

affect negotiations and hamper the prospects of a restructuring of the debtor's business. Such a request should only be possible if an obligation to file for insolvency has not yet arisen. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors, but only those creditors involved in the negotiations. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. Member States should set the further conditions for extension of the stay. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to ten months. However, where a company has transferred its registered office to another Member State within the three months prior to making its application for a stay, the total period of the stay should be limited to two months.

PE610.684v03-00 16/158 RR\1161006EN.docx

EN

Amendment 19



(20) To ensure that the creditors do not suffer detriment, the stay should not be granted or, if granted, should not be prolonged or should be lifted when creditors are unfairly prejudiced by the stay of enforcement. In establishing whether there is unfair prejudice to creditors, judicial or administrative authorities may take into account whether the stay would preserve the overall value of the estate, whether the debtor acts in bad faith or with the intention of causing prejudice or generally acts against the legitimate expectations of the general body of creditors. A single creditor or a class of creditors would be unfairly prejudiced by the stay if for example their claims would be made substantially worse-off as a result of the stay than if the stay was not granted, or if the creditor is put more at a disadvantage than other creditors in a similar position.

(20) To ensure that the creditors do not suffer detriment, the stay should not be granted or, if granted, should not be prolonged or should be lifted when creditors are unfairly prejudiced by the stay of enforcement or when the legal obligation to file for insolvency has already arisen. In establishing whether there is unfair prejudice to creditors, judicial or administrative authorities may take into account whether the stay would preserve the overall value of the estate, whether the debtor acts in bad faith or with the intention of causing prejudice or generally acts against the legitimate expectations of the general body of creditors. A single creditor or a class of creditors would be unfairly prejudiced by the stay if for example their claims would be made substantially worse-off as a result of the stay than if the stay was not granted, or if the creditor is put more at a disadvantage than other creditors in a similar position.

Amendment 20



(23) Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority. When the stay is no longer necessary with a view to facilitating the adoption of a restructuring plan, for example because it is clear that there is a lack of support for the restructuring from a majority of

(23) Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority. When the stay is no longer necessary with a view to facilitating the adoption of a restructuring plan, for example because it is clear that there is a lack of support for the restructuring from a majority of

RR\1161006EN.docx 17/158 PE610.684v03-00

EN

creditors as required by national law, creditors should also be able to ask that stay be lifted.

creditors as required by national law, creditors should also be able to ask that stay be lifted. Also, individual creditors, or a class of creditors, should have the same right to challenge the stay if they are unfairly prejudiced by the plan, or are vulnerable creditors that encounter considerable economic difficulties.

Amendment 21



(24) Any creditors affected by the restructuring plan and, where allowed under national law, equity-holders should have a right to vote on the adoption of a restructuring plan. Parties unaffected by the restructuring plan should have no voting rights in relation to the plan, nor should their support be required for the approval of any plan. The vote can take the form of a formal voting process or of a consultation and agreement with the required majority of affected parties. However, where the vote takes the form of a consultation and agreement, affected parties whose agreement was not necessary should nevertheless be offered the possibility to join the restructuring plan.

(24) Any creditors affected by the restructuring plan, including workers, and, where allowed under national law, equity-holders should have a right to vote on the adoption of a restructuring plan. Parties unaffected by the restructuring plan should have no voting rights in relation to the plan, nor should their support be required for the approval of any plan. The vote can take the form of a formal voting process or of a consultation and agreement with the required majority of affected parties. However, where the vote takes the form of a consultation and agreement, affected parties whose agreement was not necessary should nevertheless be offered the possibility to join the restructuring plan. Member States should also ensure, to the extent national law and practices allow, that the plan is confirmed by the workers if it leads to a change in work organisation or contractual arrangements.

Amendment 22


PE610.684v03-00 18/158 RR\1161006EN.docx

EN


(25) To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

(25) To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. Workers should be considered to be a separate class if they are affected by the plan.As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

Amendment 23



(26) Requisite majorities should be established by national law to ensure that a minority of affected parties in each class

(26) Requisite majorities should be established by national law to ensure that a minority of affected parties in each class

RR\1161006EN.docx 19/158 PE610.684v03-00

EN

cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that parties have a say on the adoption of restructuring plans proportionate to the stakes they have in the business, the required majority should be based on the amount of the creditors' claims or equity holders' interests in any given class.

cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that all parties are fairly treated in the adoption of restructuring plans, the required majority should represent both a majority as regards the amount of the creditors' claims or equity holders' interests in any given class and a majority of creditors in that class.

Amendment 24



(28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of

(28) While a restructuring plan should always be deemed adopted if the required majority in each affected class as well as the majority of creditors supports the plan, a restructuring plan which is not supported by the required majority may still be confirmed by a judicial or administrative authority provided that it is supported by the majority of affected creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). Such confirmation should also be required if the plan involves a loss of more than 25 % of the work force. In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under

PE610.684v03-00 20/158 RR\1161006EN.docx

EN

such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.

the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern. In addition, proper information to workers’ representatives should be a condition for confirmation.

Amendment 25



(29) While shareholders' or other equity holders' legitimate interests should be protected, Member States should ensure that shareholders cannot unreasonably block the adoption of restructuring plans which would bring the debtor back to viability. For example, the adoption of a restructuring plan should not be conditional on the agreement of the out-of-the-money equity holders, namely equity holders who, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied. Member States can deploy different means to achieve this goal, for example by not giving equity holders the right to vote on a restructuring plan. However, where equity holders have the right to vote on a restructuring plan, a judicial or administrative authority should be able to confirm the plan notwithstanding the dissent of one or more classes of equity holders, through a cross-class cram down mechanism. More classes of equity holders may be needed where different classes of shareholdings with different rights exist. Equity holders of small and medium

(29) While shareholders' or other equity holders' legitimate interests should be protected, Member States should ensure that shareholders cannot unreasonably block the adoption of restructuring plans which would bring the debtor back to viability and which is supported by a majority of the classes. For example, the adoption of a restructuring plan should not be conditional on the agreement of the out-of-the-money equity holders, namely equity holders who, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied. Member States can deploy different means to achieve this goal, for example by not giving equity holders the right to vote on a restructuring plan. However, where equity holders have the right to vote on a restructuring plan, a judicial or administrative authority should be able to confirm the plan notwithstanding the dissent of one or more classes of equity holders, through a cross-class cram down mechanism. More classes of equity holders may be needed where different classes of shareholdings with different rights exist.

RR\1161006EN.docx 21/158 PE610.684v03-00

EN

enterprises who are not mere investors but are the owners of the firm and contribute to the firm in other ways such as managerial expertise may not have an incentive to restructure under such conditions. For this reason, the cross-class cram-down mechanism should remain optional for the plan proposer.

Equity holders of small and medium enterprises who are not mere investors but are the owners of the firm and contribute to the firm in other ways such as managerial expertise may not have an incentive to restructure under such conditions. For this reason, the cross-class cram-down mechanism should remain optional for the plan proposer.

Amendment 26



(29a) For the purposes of its implementation, the restructuring plan should make it possible for holders of equity in small and medium-sized enterprises to provide non-monetary restructuring assistance by drawing on, for example, their experience, reputation or business contacts.

Amendment 27



(31) The success of a restructuring plan may often depend on whether there are financial resources in place to support first the operation of the business during restructuring negotiations and second the implementation of the restructuring plan after its confirmation. New financing or interim financing should therefore be exempt from avoidance actions which seek to declare such financing void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. National insolvency laws providing for avoidance actions if and when the debtor becomes eventually insolvent or stipulating

(31) The success of a restructuring plan may often depend on whether there are financial resources in place to support first the operation of the business during restructuring negotiations and second the implementation of the restructuring plan after its confirmation. New financing or interim financing should therefore be exempt from avoidance actions which seek to declare such financing void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. National insolvency laws providing for avoidance actions if and when the debtor becomes eventually insolvent or stipulating

PE610.684v03-00 22/158 RR\1161006EN.docx

EN

that new lenders may incur civil, administrative or criminal sanctions for extending credit to debtors in financial difficulties are jeopardising the availability of financing necessary for the successful negotiation and implementation of a restructuring plan. As opposed to new financing which should be confirmed by a judicial or administrative authority as part of a restructuring plan, when interim financing is extended the parties do not know whether the plan will be eventually confirmed or not. Limiting the protection of interim finance to cases where the plan is adopted by creditors or confirmed by a judicial or administrative authority would discourage the provision of interim finance. To avoid potential abuses, only financing that is reasonably and immediately necessary for the continued operation or survival of the debtor's business or the preservation or enhancement of the value of that business pending the confirmation of that plan should be protected. Protection from avoidance actions and protection from personal liability are minimum guarantees granted to interim financing and new financing. However, encouraging new lenders to take the enhanced risk of investing in a viable debtor in financial difficulties may require further incentives such as for example giving such financing priority at least over unsecured claims in subsequent insolvency procedures.

that new lenders may incur civil, administrative or criminal sanctions for extending credit to debtors in financial difficulties are jeopardising the availability of financing necessary for the successful negotiation and implementation of a restructuring plan. As opposed to new financing which should be confirmed by a judicial or administrative authority as part of a restructuring plan, when interim financing is extended the parties do not know whether the plan will be eventually confirmed or not. Limiting the protection of interim finance to cases where the plan is adopted by creditors or confirmed by a judicial or administrative authority would discourage the provision of interim finance. To avoid potential abuses, only financing that is reasonably and immediately necessary for the continued operation or survival of the debtor's business or the preservation or enhancement of the value of that business pending the confirmation of that plan should be protected. Protection from avoidance actions and protection from personal liability are minimum guarantees granted to interim financing and new financing.

Amendment 28



(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce

(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the restructuring plan, to

RR\1161006EN.docx 23/158 PE610.684v03-00

EN

uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the restructuring plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan, with the exception of the workers' class.

Amendment 29



(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question

(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72 . The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should be required to exempt workers' outstanding claims, , from any stay of enforcement irrespective of the question whether these

PE610.684v03-00 24/158 RR\1161006EN.docx

EN

whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed at a similar level by other means under national law. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

__________________ __________________68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.

69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16.


70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29.


71 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.2008, p. 36.


72 Directive 2009/38/EC of the European 72 Directive 2009/38/EC of the European

RR\1161006EN.docx 25/158 PE610.684v03-00

EN

Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

Amendment 30



(34a) Workers and their representatives should be provided with all documents and information regarding the proposed restructuring plan in order to allow them to undertake an in-depth assessment of the various scenarios. Furthermore, workers and their representatives should be allowed active involvement in all the consultation and approval phases for the drawing up of the plan and should be guaranteed access to expert advice in connection with the restructuring.

Amendment 31



(35) Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and

(35) Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, while it should only be possible to apply Article 5 of that Directive in the event of insolvency but not in the event of a restructuring plan. Furthermore, in addition and without prejudice to the rights to information and

PE610.684v03-00 26/158 RR\1161006EN.docx

EN

without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors.

consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on it and their approval should be binding for the confirmation of the plan. For the purposes of voting on the restructuring plan, Member States should place workers in a class separate from other classes of creditors and should ensure that that class is given a preferential right.

Justification

Art.5 of Directive 2001/23/EC is applied “where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets” and it cannot be applied in case of a restructuring plan.

Amendment 32



(35a) Any proposed restructuring operation should be fully explained to workers' representatives who should be given such information about the proposed restructuring to enable them to undertake an in-depth assessment and to prepare for consultations, where appropriate.1a

_________________1a Text adopted P7_TA(2013)0005 Information and consultation of workers, anticipation and management of restructuring

Amendment 33


RR\1161006EN.docx 27/158 PE610.684v03-00

EN


(36) To further promote preventive restructurings, it is important to ensure that directors are not dissuaded from exercising reasonable business judgment or taking reasonable commercial risks, particularly where to do so would improve the chances for the restructuring of potentially viable businesses. Where the enterprise experiences financial difficulties, directors should take such steps as seeking professional advice, including on restructuring and insolvency, for instance by making use of early warning tools where applicable; protecting the assets of the company so as to maximize value and avoid loss of key assets; considering the structure and functions of the business to examine viability and reduce expenditure; not committing the company to the types of transaction that might be subject to avoidance unless there is an appropriate business justification; continuing to trade in circumstances where it is appropriate to do so to maximize going concern value; holding negotiations with creditors and entering preventive restructuring procedures. Where the debtor is in the vicinity of insolvency, it is also important to protect the legitimate interests of creditors from management decisions that may have an impact on the constitution of the debtor’s estate, in particular where those decisions may have the effect of further diminishing the value of the estate available for restructuring efforts or for distribution to creditors. It is therefore necessary that in such circumstances directors avoid any deliberate or grossly negligent actions that result in personal gain at the expense of stakeholders, agreeing to transactions at under value, or taking actions leading to unfair preference of one or more stakeholders over others. Directors for the purposes of this Directive should be persons responsible for taking decisions concerning the management of

(36) To further promote preventive restructurings, it is important to ensure that directors and entrepreneurs are not dissuaded from exercising reasonable business judgment or taking reasonable commercial risks, particularly where to do so would improve the chances for the restructuring of potentially viable businesses. Where the enterprise experiences financial difficulties, directors should take such steps as seeking professional advice, including on restructuring and insolvency, for instance by making use of early warning tools where applicable; protecting the assets of the company so as to maximize value and avoid loss of key assets; considering the structure and functions of the business to examine viability and reduce expenditure; not committing the company to the types of transaction that might be subject to avoidance unless there is an appropriate business justification; continuing to trade in circumstances where it is appropriate to do so to maximize going concern value; holding negotiations with creditors and entering preventive restructuring procedures. Directors should also comply with all of their obligations with regard to creditors, workers’ representatives and other stakeholders. Where the debtor is in the vicinity of insolvency, it is also important to protect the legitimate interests of creditors from management decisions that may have an impact on the constitution of the debtor’s estate, in particular where those decisions may have the effect of further diminishing the value of the estate available for restructuring efforts or for distribution to creditors. It is therefore necessary that in such circumstances directors avoid any deliberate or grossly negligent actions that result in personal gain at the expense of stakeholders, agreeing to transactions at under value or otherwise intentionally reducing the value

PE610.684v03-00 28/158 RR\1161006EN.docx

EN

the company. of the company, or taking actions leading to unfair preference of one or more stakeholders over others. Directors for the purposes of this Directive should be persons responsible for taking decisions concerning the management of the company. Failure to comply with this should potentially lead to a longer discharge period or stricter conditions for discharge.

Amendment 34



(37) The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness.

(37) The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness. The period of time for discharge should be five years from the date when a debtor first applies and it should be possible for Member States to set a longer period in the case of a second or subsequent discharge period.

RR\1161006EN.docx 29/158 PE610.684v03-00

EN

Amendment 35



(38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

(38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, even after carrying out an insolvency procedure, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance and criteria to judicial or administrative authorities on the method for assessing the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

Amendment 36



(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes

(39) Specialised insolvency practitioners and judges and the availability of digital tools can greatly

PE610.684v03-00 30/158 RR\1161006EN.docx

EN

that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

help reduce the length of proceedings, lower costs and improve the quality of assistance or supervision. It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving honest entrepreneurs a second chance or that permit the prompt and efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. It is also necessary to integrate digital communication tools into insolvency procedures to reduce the excessive duration thereof. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism and specialisation of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

Amendment 37


RR\1161006EN.docx 31/158 PE610.684v03-00

EN


40. Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

40. Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity, with a view to achieving the main objective of restoring the viability of the business. Practitioners should be rescuers not liquidators and they should also adhere to a code of professional conduct with the aim of guaranteeing an appropriate level of qualification and training, and ensuring the transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications. Member States should ensure that information about the administrative authorities exercising supervision or control over practitioners in the field of restructuring, insolvency and second chance is publicly available.

Amendment 38



42. It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and

42. It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and

PE610.684v03-00 32/158 RR\1161006EN.docx

EN

application of this Directive. Therefore Member States should collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice.

application of this Directive. Therefore Member States should intensify their efforts to collect, aggregate and supply that data to the Commission. Such data should be sufficiently granular to enable an accurate assessment of how the Directive works in practice.

Amendment 39



(46a) Workers should not bear the burden of restructuring, insolvency and discharge procedures, and the debts due to them, such as unpaid wages, should always be satisfied first. In order to guarantee the continuity of production and employment and to better fight tactical or fraudulent practices by the management, workers should also be informed and consulted at the initial stage of restructuring, insolvency and discharge procedures.

Amendment 40



(47a) Further assessment should be carried out in order to evaluate the necessity of submitting legislative proposals to deal with insolvency affecting persons not exercising a trade, business, craft or profession comparable to the activities of an employer, who, as consumers or users of goods or of public or private services, are, in good faith, temporarily or permanently, unable to pay debts as they fall due. Such legislative proposals should provide that access to basic goods and services is

RR\1161006EN.docx 33/158 PE610.684v03-00

EN

safeguarded for those persons to ensure that they benefit from decent living conditions.

Amendment 41

Proposal for a directiveArticle 1 – paragraph 1 – point a


(a) preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency;

(a) rapid preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency and a genuine possibility of preventing the company from undergoing insolvency proceedings;

Amendment 42

Proposal for a directiveArticle 1 – paragraph 1 – point b


(b) procedures leading to a discharge of debts incurred by over-indebted entrepreneurs and allowing them to take up a new activity;

(b) procedures leading to a discharge of debts incurred by over-indebted entrepreneurs after they have undergone insolvency proceedings, allowing them to take up a new activity;

Amendment 43

Proposal for a directiveArticle 2 – paragraph 1 – point 1


(1) 'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of a liquidator;

(1) 'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of an insolvency practitioner;

PE610.684v03-00 34/158 RR\1161006EN.docx

EN

Amendment 44

Proposal for a directiveArticle 2 – paragraph 1 – point 2 a (new)


(2a) 'likelihood of insolvency' means a situation in which the debtor is not insolvent under national law but in which there is a real and serious threat to the debtor’s future ability to pay its debts as they fall due;

Amendment 45



(5) 'executory contracts' means contracts between the debtor and one or more creditors under which both sides still have obligations to perform at the moment the stay of individual enforcement actions is ordered;

(5) 'essential executory contracts' means contracts between the debtor and one or more creditors under which both sides still have obligations to perform at the moment the stay of individual enforcement actions is ordered and are necessary for the continuation of the day-to-day operation of the business, including any supplies where a suspension of deliveries would lead to the company coming to a standstill;

Amendment 46



(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor

(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor

RR\1161006EN.docx 35/158 PE610.684v03-00

EN

agreements, and their treatment under the restructuring plan;

agreements, and their treatment under the restructuring plan; for the purposes of adopting a restructuring plan, creditors are divided into different classes of creditors as regulated by Member States, where as a minimum, secured and unsecured claims are treated in separate classes;

Amendment 47



(8) 'a cross-class cram-down' means the confirmation by a judicial or administrative authority of a restructuring plan over the dissent of one or several affected classes of creditors;

(8) 'a cross-class cram-down' means the confirmation by a judicial or administrative authority of a restructuring plan over the dissent of several affected classes of creditors;

Amendment 48



(11) 'new financing' means any new funds, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

(11) 'new financing' means any new funds, including the provision of credit, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

Amendment 49



(12) 'interim financing' means any funds, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's

(12) 'interim financing' means any funds, including the provision of credit, whether provided by an existing or new creditor, that is reasonably and

PE610.684v03-00 36/158 RR\1161006EN.docx

EN

business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;

immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;

Amendment 50



(13) 'over-indebted entrepreneur' means a natural person exercising a trade, business, craft or profession, who is otherwise than temporarily unable to pay debts as they fall due;

(13) 'over-indebted entrepreneur' means a natural person exercising a trade, business, craft or profession, who is otherwise than temporarily unable to pay debts as they fall due, and also means an entrepreneur who is unable to pay debts incurred as a natural person but that are linked to the financing of the start of the entrepreneur’s business activity, as well as a person whose business activity is exclusively a side activity and whose professional debts and personal debts cannot be reasonably separated.

Amendment 51



(14) 'full discharge of debt' means cancellation of outstanding debt subsequent to a procedure comprising a realisation of assets and/or a repayment/settlement plan;

(14) 'full discharge of debt' means cancellation of outstanding debt subsequent to an insolvency procedure;

Amendment 52

Proposal for a directiveArticle 2 – paragraph 1 – point 15 – introductory part

RR\1161006EN.docx 37/158 PE610.684v03-00

EN


(15) 'practitioner in the field of restructuring' means any person or body appointed by a judicial or administrative authority to carry out one or more of the following tasks:

(15) 'practitioner in the field of restructuring' means any person or body qualified under national law to carry out one or more of the following tasks:

Amendment 53

Proposal for a directiveArticle 2 – paragraph 1 – point 15 – point a


(a) to assist the debtor or the creditors in drafting or negotiating a restructuring plan;

(a) to assist the debtor or the creditors in drafting or negotiating a restructuring plan or a plan to transfer viable parts of the business;

Amendment 54



(15a) ‘repayment plan’ means a programme of payments of specified amounts on specified dates by a debtor to creditors made as part of a restructuring plan;

Amendment 55

Proposal for a directiveArticle 2 – paragraph 1 – point 15 b (new)


(15b) 'viable' means the ability to provide an appropriate projected return on capital after having covered all costs, including depreciation and financial charges.

PE610.684v03-00 38/158 RR\1161006EN.docx

EN

Amendment 56

Proposal for a directiveArticle 3


Article 3 Article 3

Early warning Early warning and access to information

1. Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

1. Member States shall develop and ensure access to clear and transparent early warning tools which can detect a deteriorating business development and signal to the debtor, the entrepreneur or the workers’ representative the need to act as a matter of urgency. In that regard, Member States may make use of new IT technologies for notifications and online communication.

1a. Early warning tools may include the following:

(a) accounting and monitoring duties for the debtor or the debtor’s management;

(b) reporting duties under loan agreements; and

(c) regular reporting or information obligations for third parties, such as accountants, tax and social security authorities or certain types of creditors such as banks.

2. Member States shall ensure that debtors and entrepreneurs have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

2. Member States shall ensure that debtors, entrepreneurs and workers’ representatives have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

2a. Member States shall make publicly available on a dedicated website and in a user-friendly manner the way in which debtors and entrepreneurs can access early warning tools in their Member State. Member States shall ensure that small and medium sized enterprises especially

RR\1161006EN.docx 39/158 PE610.684v03-00

EN

have access to that information.

2b. Member States shall ensure that workers’ representatives are given access to relevant and up-to-date information regarding the situation of the business and that they can communicate concerns to debtors and entrepreneurs about the situation of the business and about the need to consider making use of restructuring mechanisms.

3. Member States may limit the access provided for in paragraphs 1 and 2 to small and medium sized enterprises or to entrepreneurs

Amendment 57



Article 4 Article 4

Availability of preventive restructuring frameworks


1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency.

1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency or find other solutions to avoid insolvency, thereby protecting jobs and maintaining business activity.

1a. Member States may provide that access to restructuring proceedings is limited to enterprises that have not been finally sentenced for serious breaches of accounting and bookkeeping obligations under national law.

2. Preventive restructuring frameworks may consist of one or more procedures or measures.

2. Preventive restructuring frameworks may consist of one or more procedures or measures, either out-of-court or ordered by an administrative or judicial authority.

PE610.684v03-00 40/158 RR\1161006EN.docx

EN

3. Member States shall put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate so that rights of any affected parties are safeguarded.

3. Member States may put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate while ensuring that rights of any affected parties are safeguarded.

4. Preventive restructuring frameworks shall be available on the application by debtors, or by creditors with the agreement of debtors.

4. Preventive restructuring frameworks shall be available on the application by debtors.

4a. Member States may also provide for restructuring frameworks to be available at the request of creditors and workers’ representatives, with the agreement of the debtor.

Amendment 58



Article 5 Article 5

Debtor in possession Debtor in possession

1. Member States shall ensure that debtors accessing preventive restructuring procedures remain totally or at least partially in control of their assets and the day-to-day operation of the business.

1 Member States shall ensure that debtors accessing preventive restructuring procedures remain totally or at least partially in control of their assets and the day-to-day operation of the business.

2. The appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case.

2. Whether or not the supervision of a restructuring procedure by a practitioner in the field of restructuring is mandatory, it shall in all cases be subject to national law in order to safeguard the rights of affected parties.

3. Member States may require the appointment of a practitioner in the field of restructuring in the following cases:

3. Member States shall require the appointment of a practitioner in the field of restructuring at least in the following cases:

(a) where the debtor is granted a general stay of individual enforcement actions in accordance with Article 6;

(a) where the debtor is granted a stay of enforcement actions in accordance with Article 6;

(b) where the restructuring plan needs to be confirmed by a judicial or

(b) where the restructuring plan needs to be confirmed by a judicial or

RR\1161006EN.docx 41/158 PE610.684v03-00

EN

administrative authority by means of a cross-class cram-down, in accordance with Article 11

administrative authority by means of a cross-class cram-down, in accordance with Article 11

(ba) where it is requested by the debtor or by a majority of creditors.

3a. Member States shall ensure that representatives of the debtor’s workers receive clear and transparent information on the restructuring procedure and are regularly informed of any developments thereto.

Amendment 59



Article 6 Article 6

Stay of individual enforcement actions Stay of individual enforcement actions

1. Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

1. Where the obligation of the debtor to file for insolvency has not yet arisen, Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan and provided there is a likelihood of preventing the company from undergoing insolvency proceedings.

2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors provided that the debtor includes those creditors in the negotiations for a restructuring plan. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

3. Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such

3. Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such

PE610.684v03-00 42/158 RR\1161006EN.docx

EN

claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/EC.

claims is guaranteed at a similar level of protection.

4. Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four months.

4. The duration of the stay of individual enforcement actions is limited to a maximum period of no more than four four months.

5. Member States may nevertheless enable judicial or administrative authorities to extend the initial duration of the stay of individual enforcement actions or to grant a new stay of individual enforcement actions, upon request of the debtor or of creditors. Such extension or new period of stay of individual enforcement actions shall be granted only if there is evidence that:

5. Member States may nevertheless enable judicial or administrative authorities to extend the initial duration of the stay of individual enforcement actions or to grant a new stay of individual enforcement actions, upon request of the debtor or of the creditors. Member States shall set the conditions for an extension or a new period of stay. Such extension or new period of stay of individual enforcement actions shall be granted only if there is evidence that:

(-a) secured creditors who are affected by the plan have agreed to such an extension or new period; and

(a) relevant progress has been made in the negotiations on the restructuring plan; and


(b) the continuation of the stay of individual enforcement actions does not unfairly prejudice the rights or interests of any affected parties.

(b) the continuation of the stay of individual enforcement actions does not unfairly prejudice the rights or interests of any affected parties; and

(ba) the obligation of the debtor to file for insolvency under national law has not yet arisen.

6. Any further extensions shall be given only if the conditions referred to in points (a) and (b) of paragraph 5 are met and the circumstances of the case show a strong likelihood that a restructuring plan will be adopted.

6. Any further extensions shall be given only if the conditions referred to in points (a) to (b a) of paragraph 5 are met and the circumstances of the case show a strong likelihood that a restructuring plan will be adopted.

7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months.

7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed ten months. The total duration of the stay shall be limited to two months if the registered office of the company has been

RR\1161006EN.docx 43/158 PE610.684v03-00

EN

transferred to another Member State within a three-month-period prior to the filing of a request for the opening of restructuring proceedings.

8. Member States shall ensure that judicial or administrative authorities may lift the stay of individual enforcement actions, in whole or in part:

8. Member States shall ensure that judicial or administrative authorities may decide not to grant the stay of individual enforcement actions or may lift the stay of individual enforcement actions, in whole or in part:

(a) if it becomes apparent that a proportion of creditors who under national law could block the adoption of the restructuring plan does not support the continuation of the negotiations; or

(a) if it becomes apparent that a proportion of creditors who under national law could block the adoption of the restructuring plan does not support the continuation of the negotiations; or

(b) at the request of the debtor or the practitioner in the field of restructuring.

(b) at the request of the debtor or the practitioner in the field of restructuring or the majority of creditors concerned; or

(ba) if an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions;

(bb) if a vulnerable creditor would encounter considerable economic difficulties;

9. Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned.

Amendment 60

Proposal for a directiveArticle 7 – paragraph 2

PE610.684v03-00 44/158 RR\1161006EN.docx

EN


2. A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors.

deleted

Amendment 61



3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring plan or economically viable business transfer within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

Amendment 62



4. Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor for debts that came into existence prior to the stay. Member States may limit the application of this provision to essential contracts which are necessary for the continuation of the day-to-day operation of the business.

4. Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify essential executory contracts to the detriment of the debtor in respect of debts that came into existence prior to the stay on condition that no severe financial difficulties for creditors are caused. For the purposes of this paragraph, an executory contract is

RR\1161006EN.docx 45/158 PE610.684v03-00

EN

essential when it is necessary for the continuation of the day-to-day operation of the business, including any supplies where a suspension of deliveries would lead to the company’s activities coming to a standstill.

Amendment 63



(5) Member States shall ensure that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.

(5) Member States may require that creditors are prohibited from withholding performance or terminating, accelerating or in any other way modifying executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay, unless they are affected by the stay and they can prove that they would suffer significant disadvantages from such an event.

Amendment 64



6. Member States shall ensure that nothing prevents the debtor from paying in the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise after the stay is granted and which continue to arise throughout the period of the stay.

deleted

Amendment 65

Proposal for a directive

PE610.684v03-00 46/158 RR\1161006EN.docx

EN

Article 8


Article 8 Article 8

Content of restructuring plans Content of restructuring plans

1. Member States shall require restructuring plans submitted for confirmation by a judicial or administrative authority to contain at least the following information:

1. Member States shall require restructuring plans to be confirmed by a judicial or administrative authority and shall ensure that the restructuring plans are submitted to workers’ representatives for information and consultation. Restructuring plans shall contain at least the following information:

(a) the identity of the debtor or the debtor’s business for which the restructuring plan is proposed;

(a) the identity of the debtor or the debtor’s business for which the restructuring plan is proposed;

(b) a valuation of the present value of the debtor or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor;

(b) a valuation of the market value of the debtor or the debtor's business, including an evaluation of the financial obligations and the financial flows during the duration of the restructuring plan, at the time of the submission of the plan for confirmation as well as an expected liquidation value of the debtor or the debtor’s business, all prepared by a judicial expert, and a reasoned statement on the causes for and the extent of the financial difficulties of the debtor, including a description of assets and debts;

(c) the identity of the affected parties, whether named individually or described by reference to one or more categories of debt, as well as their claims or interests covered by the restructuring plan;

(c) the identity of the affected parties, whether named individually or described by reference to one or more categories of debt, as well as their claims or interests covered by the restructuring plan;

(d) the classes into which the affected parties have been grouped for the purposes of adopting the plan, together with a rationale for doing so and information about the respective values of creditors and members in each class;

(d) the classes into which the affected parties have been grouped, on the basis of objective criteria, for the purposes of adopting the plan, together with a rationale for doing so and information about the respective values of creditors and members in each class;

(e) the identity of non-affected parties, whether named individually or described by reference to one or more categories of

(e) the identity of non-affected parties, whether named individually or described by reference to one or more categories of

RR\1161006EN.docx 47/158 PE610.684v03-00

EN

debt, together with a statement of the reasons why it is not proposed to affect them;

debt, together with a statement of the reasons why it is not proposed to affect them;

(ea) the identity of the practitioner in the field of restructuring, where applicable;

(f) the terms of the plan, including, but not limited to:


(i) its proposed duration; (i) its proposed duration;

(ii) any proposal by which debts are rescheduled or waived or converted into other forms of obligation;


(iia) any proposal for a stay of individual enforcement actions as part of the restructuring plan;

(iib) the modalities of information and consultation of the workers’ representatives in accordance with Union and national law;

(iic) organisational aspects that touch upon consequences as regards employment such as dismissals, short-time work or similar;

(g) an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and restore its long-term viability, and states any anticipated necessary pre-conditions for its success.

(g) an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and/or restore its long-term viability, and states any anticipated necessary pre-conditions for its success. Member States may provide for the opinion or reasoned statement to be validated by an external expert, such as a practitioner in the field of restructuring.

1a. Member States may determine whether creditors are able to propose an alternative restructuring plan. Where a Member State so decides, the Member State shall define the conditions under which creditors are able to propose an alternative restructuring plan.

2. Member States shall make a model for restructuring plans available online.

2. Member States shall provide a check-list for restructuring plans available

PE610.684v03-00 48/158 RR\1161006EN.docx

EN

That model shall contain at least the information required under national law and shall provide general but practical information on how the model is to be used. The model shall be made available in the official language or languages of the Member State. Member States shall endeavour to make the model available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be adapted to the needs and circumstances of every case.

online. That check-list shall contain at least the information required under national law and shall provide general and practical information about the restructuring proceedings available in the Member State.. The check-list shall be made available in the official language or languages of the Member State. Member States shall endeavour to make the check-list available in other languages, in particular in languages used in international business. It shall be designed in such a way that it can be adapted to the needs and circumstances of every case.

3. The parties may choose whether or not to use the model restructuring plan.

3a. Member States shall ensure that workers’ rights, entitlements and claims are not affected by the restructuring plan subject to Article 6(3) of this Directive. Member States shall also ensure that restructuring plans have no impact on occupational pension funds or schemes.

Amendment 66



Article 9 Article 9

Adoption of restructuring plans Adoption of restructuring plans

1. Member States shall ensure that any affected creditors have a right to vote on the adoption of a restructuring plan. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

1. Member States shall ensure that any affected creditors, including workers have a right to vote on the adoption of a restructuring plan after having been duly informed about the procedure and its potential consequences. Member States may grant such voting rights also to affected equity holders, in accordance with Article 12(2). Creditors that are not affected by the restructuring plan shall not have a voting right concerning the adoption of that plan.

1a. Member States shall ensure that, where the plan includes measures leading

RR\1161006EN.docx 49/158 PE610.684v03-00

EN

to changes in the work organisation or in contractual relations, those shall be confirmed by workers in cases where national law and practices provide for such confirmation.

2. Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States may also provide that workers are treated in a separate class of their own.

2. Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria under national law. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States shall also provide that workers are treated in a separate class of their own in cases where they are affected by the plan. Member States may also provide that equity holders are treated in a separate class of their own.

3. Class formation shall be examined by the judicial or administrative authority when a request is filed for confirmation of the restructuring plan.

3. Voting rights and class formation shall be examined by the judicial or administrative authority when a request is filed for confirmation of the restructuring plan. Member States may provide for an examination of voting rights and class formation by a judicial or administrative authority at an earlier stage.

4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests and a majority of creditors is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan.

5. Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class.


PE610.684v03-00 50/158 RR\1161006EN.docx

EN

6. Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed if it complies with the cross-class cram-down requirements set out in Article 11.

6. Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed by a judicial or administrative authority if it complies with the cross-class cram-down requirements set out in Article 11.

Amendment 67



Article 10 Article 10

Confirmation of restructuring plans Confirmation of restructuring plans

1. Member States shall ensure that the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative authority:

1. Member States shall ensure that the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative authority:

(a) restructuring plans which affect the interests of dissenting affected parties;

(a) restructuring plans which affect the interests of dissenting affected parties;

(b) restructuring plans which provide for new financing.

(b) restructuring plans which provide for new financing.

(ba) restructuring plans which involve the loss of more than 25% of the workforce;

2. Member States shall ensure that the conditions under which a restructuring plan can be confirmed by a judicial or administrative authority are clearly specified and include at least the following:

2. Member States shall ensure that the conditions under which a restructuring plan can be confirmed by a judicial or administrative authority are clearly specified in their law and include at least the following:

(a) the restructuring plan has been adopted in accordance with Article 9 and has been notified to all known creditors likely to be affected by it;

(a) the restructuring plan has been adopted respecting the requirements laid down by Article 9 and has been notified to all known creditors likely to be affected by it;

(b) the restructuring plan complies with the best interest of creditors test;


(c) any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors.

(c) any new financing is necessary and proportionate to implement the restructuring plan.

RR\1161006EN.docx 51/158 PE610.684v03-00

EN

(ca) workers’ representatives have been informed and consulted.

3. Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.

3. Member States shall ensure that judicial or administrative authorities shall refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.

4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan in order for it to become binding, a decision is taken within a reasonable time and without undue delay after the request for confirmation has been filed .

Amendment 68




Cross-class cram-down Cross-class cram-down

1. Member States shall ensure that a restructuring plan which is not approved by each and every class of affected parties may be confirmed by a judicial or administrative authority upon the proposal of a debtor or of a creditor with the debtor's agreement and become binding upon one or more dissenting classes where the restructuring plan:

1. Member States shall ensure that a restructuring plan which is not approved by each and every class of affected parties may be confirmed by a judicial or administrative authority upon the proposal of a debtor or, when so provided by national law, of a creditor with the debtor's agreement and become binding upon one or more dissenting classes where the restructuring plan:

(a) fulfils the conditions in Article 10(2);

(a) fulfils the conditions in Article 10(2), while ensuring compliance with all requirements laid down in national law;

(b) has been approved by at least one class of affected creditors other than an equity-holder class and any other class which, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of

(b) has been approved by the majority of classes of affected creditors amongst which there is no equity-holder class or any other class which, upon a valuation of the enterprise, would not receive any payment or other consideration if the

PE610.684v03-00 52/158 RR\1161006EN.docx

EN

liquidation priorities were applied; normal ranking of liquidation priorities were applied;

(c) complies with the absolute priority rule.

(c) complies with the absolute priority rule.

2. Member States may vary the minimum number of affected classes required to approve the plan laid down in point (b) of paragraph (1).

2. Member States may increase the minimum number of affected classes required to approve the plan laid down in point (b) of paragraph (1) as long as that minimum number still represents the majority of classes.

Amendment 69



1. Member States shall ensure that, where there is a likelihood of insolvency, shareholders and other equity holders with interests in a debtor may not unreasonably prevent the adoption or implementation of a restructuring plan which would restore the viability of the business.

1. Member States shall ensure that, where there is a likelihood of insolvency, shareholders and other equity holders with interests in a debtor may not unreasonably prevent or create obstacles for the adoption or implementation of a restructuring plan which would restore the viability of the business.

Amendment 70

Proposal for a directiveArticle 12 a (new)


Article 12a

Workers

Members States shall ensure that workers’ rights, including the rights set out in this Directive, are not undermined by the restructuring process and that there is independent supervision of compliance with relevant Union and national law. Those rights shall include, in particular:

(1) the right to collective bargaining and industrial action; and

RR\1161006EN.docx 53/158 PE610.684v03-00

EN

(2) the right to information and consultation, including in particular the right to access information concerning any procedure which could have an impact on employment or on the ability of workers to recover their wages and any future payments, including occupational pensions.

Member States shall also ensure that workers are always treated as a preferential and secured class of creditors.

Amendment 71



1. A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

1. A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan or a sale plan is challenged on the grounds of an alleged breach of the best interest of creditors test.

Amendment 72



1. Member States shall ensure that restructuring plans which are confirmed by a judicial or administrative authority are binding upon each party identified in the plan.

1. Member States shall ensure that restructuring plans which are confirmed by a judicial or administrative authority are binding upon each and all parties identified in the plan.

Amendment 73



(b) confirm the plan and grant (b) confirm the plan and assess the

PE610.684v03-00 54/158 RR\1161006EN.docx

EN

monetary compensation to the dissenting creditors, payable by the debtor or by the creditors who voted in favour of the plan.

possibility for dissenting creditors that suffer unjustifiable damage under the plan to be granted monetary compensation, and where appropriate order that such compensation is to be payable by the debtor.

Amendment 74



3. Member States may require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

3. Member States shall require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

Amendment 75




Duties of directors Duties and obligations of directors

Member States shall lay down rules to ensure that, where there is a likelihood of insolvency, directors have the following obligations:

1. Member States shall lay down rules to ensure that, where there is a likelihood of insolvency, directors and entrepreneurs have the following obligations:

(a) to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders;


(b) to have due regard to the interests of creditors and other stakeholders;

(b) to have due regard to the interests of creditors, workers and other stakeholders;

(ba) to comply with all their obligations to creditors, workers, other stakeholders, the state and its emanations;

(c) to take reasonable steps to avoid insolvency;

(c) to take reasonable steps to avoid insolvency;

RR\1161006EN.docx 55/158 PE610.684v03-00

EN

(d) to avoid deliberate or grossly negligent conduct that threatens the viability of the business.

(d) to avoid deliberate or grossly negligent conduct that threatens the viability of the business.

(da) not to reduce intentionally the value of the company’s net assets;

2. Failure to comply with the duties set out in the paragraph 1 shall be taken into account in determining the period and conditions of discharge in accordance with Article 22.

Amendment 76



1. Member States shall ensure that over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive.

1. Member States shall ensure that bona fide over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive.

Amendment 77

Proposal for a directiveArticle 19 – paragraph 1 a (new)


1a. A full discharge shall apply only where the indebted entrepreneur has complied with the requirements of Article 18 of this Directive. Entrepreneurs who violate employment or competition law shall be excluded from a full discharge.

Amendment 78



2a. Member States shall provide entrepreneurs affected by the second chance with business support and regeneration actions which help to

PE610.684v03-00 56/158 RR\1161006EN.docx

EN

relaunch their entrepreneurial capacity.

Amendment 79




Discharge period Discharge period

1. The period of time after which over-indebted entrepreneurs may be fully discharged from their debts shall be no longer than three years starting from:

1. The period of time after which over-indebted entrepreneurs may for the first time be fully discharged from their debts shall be no longer than five years starting from:

(a) the date on which the judicial or administrative authority decided on the application to open such a procedure, in the case of a procedure ending with the liquidation of an over-indebted entrepreneur' s assets; or

(a) the date on which the judicial or administrative authority decided on the application to open such a procedure, in the case of a procedure ending with the liquidation of an over-indebted entrepreneur' s assets; or

(b) the date on which implementation of the repayment plan started, in the case of a procedure which includes a repayment plan.

(b) the date on which implementation of the repayment plan started, in the case of a procedure which includes a repayment plan.

2. Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts without the need to re-apply to a judicial or administrative authority.

2. Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts.

2a. Member States may provide for longer discharge periods in cases where an entrepreneur applies for a second or any subsequent discharge procedure.

Amendment 80

Proposal for a directiveArticle 22 – paragraph 1 – introductory part


1. By way of derogation from Articles 19, 20 and 21, Member States may maintain or introduce provisions restricting

1. By way of derogation from Articles 19, 20 and 21, Member States shall maintain or introduce provisions restricting

RR\1161006EN.docx 57/158 PE610.684v03-00

EN

access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods in certain well-defined circumstances and where such limitations are justified by a general interest, in particular where:

access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods in certain well-defined circumstances and where such limitations are justified by a general interest, in particular where:

Amendment 81



(a) the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts;

(a) the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts. The Commission shall provide guidelines for Member States to establish a set of criteria for what constitutes dishonest action or bad faith;

Amendment 82



(b) the over-indebted entrepreneur does not adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors;

(b) the over-indebted entrepreneur does not substantially adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors, taking into consideration the difficulties in terms of adherence to insolvency and restructuring procedures, which micro and small enterprises encounter.

Amendment 83

Proposal for a directiveArticle 22 – paragraph 1 – point d a (new)


(da) where entrepreneurs or their directors have acted in breach of their obligations under Article 18 of this

PE610.684v03-00 58/158 RR\1161006EN.docx

EN

Directive or where entrepreneurs or their directors have violated employment or competition law.

Amendment 84



2. Member States may provide for longer discharge periods in cases where the main residence of an over-indebted entrepreneur is exempt from the possibility of realisation of assets, in order to safeguard the livelihood of the over-indebted entrepreneur and his or her family.

2. Member States may provide for longer discharge periods in order to safeguard the livelihood of an over-indebted entrepreneur and his or her family where his or her main residence is exempt from the possibility of realisation of assets.

Amendment 85



3. Member States may exclude specific categories of debt, such as secured debts or debts arising out of criminal penalties or tortious liability, from discharge or lay down a longer discharge period where such exclusions or longer periods are justified by a general interest.

3. Member States may exclude from discharge, or lay down a longer discharge period for, specific categories of debt, such as secured debts or debts arising out of criminal penalties or tortious liability, where such exclusions or longer periods are justified by a general interest.

Amendment 86



4. By way of derogation from Article 21, Member States may provide for longer or indefinite disqualification periods where the over-indebted entrepreneur is a member

4. By way of derogation from Article 21, Member States may provide for longer or indefinite disqualification periods where the over-indebted entrepreneur is a member

RR\1161006EN.docx 59/158 PE610.684v03-00

EN

of a profession to which specific ethical rules apply or where disqualifications were ordered by a court in criminal proceedings.

of a profession to which specific ethical rules apply and the entrepreneur has infringed those rules or where disqualifications were ordered by a court in criminal proceedings.

Amendment 87



4a. With regard to point (a) of paragraph 1, the Commission shall provide guidelines for Member States to establish a set of criteria in order to define what constitutes dishonest action or bad faith in this context.

Amendment 88



1. Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, all debts are treated in a single procedure for the purposes of obtaining a discharge.

1. Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, professional debts are to be treated, for the purposes of obtaining a discharge, separately from personal debts. Where there are procedures for obtaining a discharge for both professional and personal debts, those procedures may be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

Amendment 89



PE610.684v03-00 60/158 RR\1161006EN.docx

EN

2. Member States may derogate from paragraph 1 and stipulate that professional and personal debts are to be treated in separate procedures, provided that these procedures can be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

deleted

Amendment 90



1. Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters receive the necessary initial and further training in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties.

1. Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters receive the initial and further training and obtain the qualifications necessary in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties.

Amendment 91



1a. The Commission shall facilitate the sharing of best practices between Member States with a view to improving the quality of training across the Union, including by means of networking and the exchange of experiences and capacity building tools, and if necessary shall organise training for members of judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters.

Amendment 92

RR\1161006EN.docx 61/158 PE610.684v03-00

EN



2. Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services.

2. Member States shall ensure that practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services comply with statutory codes of conduct, which shall at least include provisions on training, qualification, licensing, registration, personal liability, insurance and good repute.

Amendment 93



2a. Member States shall establish effective sanctions for failure to comply with the practitioners' obligations under this Article and other relevant Union or national law.

Amendment 94



1а. Member States shall ensure that information about the authorities exercising supervision or control over practitioners in the field of restructuring is publicly available.

Amendment 95



PE610.684v03-00 62/158 RR\1161006EN.docx

EN

Article 27a

Information available to second chance entrepreneurs

1. Member States shall ensure that second chance entrepreneurs have access to relevant, up-to-date, clear, concise and user-friendly information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the setting-up of a new business.

2. Member States shall communicate to the Commission on a yearly basis the information to be provided under paragraph 1.

3. The Commission shall publish the information to be provided under paragraph 1 and received in accordance with paragraph 2 in a user-friendly way on its website.

Amendment 96



1a. Any shift of the debtor’s centre of main interest as defined in Regulation (EU) 2015/848 shall not be permissible during restructuring proceedings.

Amendment 97

Proposal for a directiveArticle 28 – paragraph 1 – point c


(c) notifications to creditors; (c) notifications to creditors, including workers' representatives;

Amendment 98

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g a (new)

RR\1161006EN.docx 63/158 PE610.684v03-00

EN


(ga) the number of job losses, transfer of part or whole of the business, part redundancy, impact of restructuring agreements on employment, breaches of directors' obligations and the level of public finance.

Amendment 99

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g b (new)


(gb) the number of debtors who, after having undergone a procedure referred to in point (a)(iii), launched a new business;

Amendment 100

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g c (new)


(gc) for debtors who launched a new business after having undergone a procedure referred to in points (a) (ii) and (iii), the average time between the end of the procedure and the launch of the new business;

Amendment 101

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g d (new)


(gd) the number of job losses, transfer of part or whole of the business, part redundancy and impact of restructuring agreements on employment and the level of public finance;

Amendment 102

PE610.684v03-00 64/158 RR\1161006EN.docx

EN

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g e (new)


(ge) the number of job losses, transfer of part or whole of the business, and impact of restructuring agreements on the employment situation;

Amendment 103

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g f (new)


(gf) the number of fraudulent restructuring and insolvency procedures and the functioning of enforcement mechanisms in place.

Amendment 104



3. Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected.

3. Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected. Member States shall present those statistics by means of a user-friendly website.

Amendment 105


RR\1161006EN.docx 65/158 PE610.684v03-00

EN


4a. The Commission shall centralise on its website the information laid down in paragraphs 1 to 3 of this Article in a publicly accessible, free and user-friendly manner.

Amendment 106



Article 30a

Obligation to report

1. Any debtor involved in a restructuring, insolvency or discharge procedure in a Member State and that also operates in another Member State shall report to the competent authority, administration or court of both Member States at the beginning of any of those procedures.

2. The debtor is obliged to report the activity, volume and structure of its business in another Member State or in third countries to the administration of the court involved in the restructuring, insolvency or discharge procedure.

Amendment 107

Proposal for a directiveArticle 31 – paragraph 1 – point a a (new)


(aa) Directive 2008/94/EC.

Amendment 108



PE610.684v03-00 66/158 RR\1161006EN.docx

EN

No later than [5 years from the date of start of application of implementing measures] and every 7 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measures to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered.

No later than [3 years from the date of start of application of implementing measures] and every five years thereafter, 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. On the basis of that assessment, the Commission shall submit, if appropriate, a legislative proposal following the review of this Directive, considering additional measures to consolidate and harmonise the legal framework on restructuring, insolvency and second chance, in particular in areas such as the conditions for opening insolvency proceedings, a common definition of insolvency, the ranking of insolvency claims, and avoidance actions.

RR\1161006EN.docx 67/158 PE610.684v03-00

EN

7.12.2017

OPINION OF THE COMMITTEE ON ECONOMIC AND MONETARY AFFAIRS

for the Committee on Legal Affairs


Rapporteur: Enrique Calvet Chambon

AMENDMENTS

The Committee on Economic and Monetary Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment 1



(1) The objective of this Directive is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue

(1) The objective of this Directive is to contribute to the proper functioning of the internal market by removing obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance, thereby contributing to the establishment of a true Capital Markets Union. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial

PE610.684v03-00 68/158 RR\1161006EN.docx

EN

operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length. Preventive solutions, sometimes called ‘pre-pack’ solutions, are a feature of a growing trend in modern insolvency law, whereby approaches are favoured which, unlike in the case of the traditional approach of liquidating a business which is in crisis, have the aim of restoring it to financial health or at least salvaging those of its parts that are still economically viable thus contributing to the preservation of jobs.

Amendment 2



(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival

(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business or the business itself, if those operations, like the liquidation of assets, also contribute to the satisfaction of creditors’ claims. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors in comparison with that which they would receive in the event of the liquidation of assets, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They

RR\1161006EN.docx 69/158 PE610.684v03-00

EN

should be liquidated as quickly as possible. should also prevent the build-up of non-performing loans (NPL), for which a comprehensive and co-ordinated approach combining a mix of complementing policy actions, at national level and at Union level where appropriate, is the most effective way to address them. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

Amendment 3




(5) Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long and being unduly costly.

Amendment 4



(6) All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into

(6) All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or

PE610.684v03-00 70/158 RR\1161006EN.docx

EN

a business relationship with a counterpart outside their own country.

complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. This uncertainty therefore acts as a disincentive which obstructs the freedom of establishment of undertakings and the willingness to entrepreneurship and harms the proper functioning of the internal market. Small and medium-sized enterprises in particular do not, for the most part, have the resources needed to assess risks related to cross-border activities.

Amendment 5



(7) Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.

(7) Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States, and hamper the free movement of capital in the internal market. Analysis suggests that efficient preventive restructuring frameworks are positively associated with levels of entrepreneurship across Member States, and could also lead to fewer adverse outcomes in terms of financial stability and economic activity, in the event of deleveraging. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic operations.

Amendment 6


RR\1161006EN.docx 71/158 PE610.684v03-00

EN


(7a) Harmonisation in the area of insolvency law is a necessary step towards a common European business law. However, the Union acquis in the field of business law is both heterogeneous and incomplete. Further convergence is essential for the proper functioning of the European single market.

Amendment 7



(9) The obstacles to the exercise of fundamental freedoms are not limited to purely cross-border situations. An increasingly interconnected single market - where goods, services, capital and workers circulate freely – with an ever stronger digital dimension means that very few companies are purely national if all relevant elements are considered, such as their client base, supply chain, scope of activities, investor and capital base. Even purely national insolvencies may have an impact on the functioning of the single market through the so-called domino effect of insolvencies, whereby an enterprise's insolvency may trigger further insolvencies in the supply chain.

(9) The obstacles to the exercise of fundamental freedoms are not limited to purely cross-border situations. An increasingly interconnected single market - where goods, services, capital and workers circulate freely – with an ever stronger digital dimension means that very few companies are purely national if all relevant elements are considered, such as their client base, supply chain, scope of activities, investor and capital base. Even purely national insolvencies may have an impact on the functioning of the single market through the so-called domino effect of insolvencies, whereby an enterprise's insolvency may trigger further insolvencies in the supply chain, to which small and medium-sized enterprises are particularly vulnerable.

Amendment 8



(10) Regulation (EU) 2015/848 of the European Parliament and of the Council62 deals with issues of jurisdiction,

(10) Regulation (EU) 2015/848 of the European Parliament and of the Council62 deals with issues of jurisdiction,

PE610.684v03-00 72/158 RR\1161006EN.docx

EN

recognition and enforcement, applicable law and cooperation in cross-border insolvency proceedings as well as with the interconnection of insolvency registers. Its scope covers preventive procedures which promote the rescue of an economically viable debtor as well as procedures which give a second chance to entrepreneurs. However, Regulation (EU) 2015/848 does not tackle the discrepancies between those procedures in national law. Furthermore, an instrument limited to cross-border insolvencies only would not remove all obstacles to free movement, nor would it be feasible for investors to determine in advance the cross-border or domestic nature of the future potential financial difficulties of the debtor. There is a need therefore to go beyond matters of judicial cooperation and to establish substantive minimum standards.

recognition and enforcement, applicable law and cooperation in cross-border insolvency proceedings as well as with the interconnection of insolvency registers. Its scope covers preventive procedures, initiated by a public decision, which promote the rescue of an economically viable debtor as well as procedures which give a second chance to entrepreneurs. However, Regulation (EU) 2015/848 does not tackle the discrepancies between those procedures in national law and does not concern confidential procedures. Furthermore, an instrument limited to cross-border insolvencies only would not remove all obstacles to free movement, nor would it be feasible for investors to determine in advance the cross-border or domestic nature of the future potential financial difficulties of the debtor. There is a need therefore to go beyond matters of judicial cooperation and to establish substantive minimum standards.

_________________ _________________62 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).

62 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 9



(11) It is necessary to lower the costs of restructuring for both debtors and creditors. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should maximise the returns to all types of creditors and investors and

(11) It is necessary to lower the costs of restructuring for both debtors and creditors, who often bear those costs indirectly because of the reduction of their reimbursement. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency and more legal certainty and predictability, for

RR\1161006EN.docx 73/158 PE610.684v03-00

EN

encourage cross-border investment. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.

both debtors and creditors, in the Union. Also, it should maximise the returns to all types of creditors and investors and encourage cross-border investment. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.

Amendment 10



(12) Removing the barriers to effective restructuring of viable enterprises in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. Facilitating a second chance for entrepreneurs avoids their exclusion from the labour market and enables them to restart entrepreneurial activities, drawing lessons from past experience. Finally, reducing the length of restructuring procedures would result in higher recovery rates for creditors as the passing of time would normally only result in a further loss of value for the enterprise. Moreover, efficient insolvency frameworks would enable a better assessment of the risks involved in lending and borrowing decisions and smooth the adjustment for over-indebted enterprises, minimizing the economic and social costs involved in their deleveraging process.

(12) Removing the barriers to effective restructuring of viable enterprises in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. In order to attain that objective and to preserve employment and operations, it is necessary to ensure that it is possible for these procedures to be conducted in whole or in part in a confidential framework, which in particular requires the rights of workers to be better specified. Facilitating a second chance for entrepreneurs avoids their exclusion from the labour market and enables them to restart entrepreneurial activities, drawing lessons from past experience. Finally, reducing the length of restructuring procedures would result in higher recovery rates for creditors as the passing of time would normally only result in a further loss of value for the enterprise. Moreover, efficient insolvency frameworks would enable a better assessment of the risks involved in lending and borrowing decisions and smooth the adjustment for over-indebted enterprises, minimizing the economic and social costs involved in their deleveraging process.

Amendment 11

PE610.684v03-00 74/158 RR\1161006EN.docx

EN



(13) In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

(13) In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business. It should be possible for the debtor to find ad hoc and special solutions with third parties or creditors, either by reducing debts to all or most of the creditors or by surrendering whatever operations are viable, contributing to the satisfaction of creditors’ claims better than by means of the liquidation of assets. Finally, professional advice from practitioners in the field of restructuring should be made available with the support of businesses associations and other stakeholders taking into account the specificities of SMEs.

Amendment 12





RR\1161006EN.docx 75/158 PE610.684v03-00

EN

concern and is closely related to the reduction of debt overhang. Furthermore, it is often not possible to draw a clear distinction between the consumer and business debts of an entrepreneur. A second chance regime for entrepreneurs would not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply the discharge provisions to consumers.

concern and is closely related to the reduction of debt overhang. Furthermore, while in some jurisdictions a clear distinction is made between the consumer and business debts of an entrepreneur, in other jurisdictions making this distinction is more difficult and not common practice. In such jurisdictions, a second chance regime for entrepreneurs might not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over-indebtedness, Member States should be able to also apply the discharge provisions to consumers.

Amendment 13



(16) The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.

(16) The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management, taking into consideration the lack of financial resources of SMEs, as well as reporting duties under loan agreements. In addition, social security, tax and audit authorities should aim to have means under domestic law to draw attention to any dangerous

PE610.684v03-00 76/158 RR\1161006EN.docx

EN

development on business debts at the earliest possible stage. Access to public, free and user-friendly information on the legal procedures for restructuring and insolvency is a first step towards raising awareness of debtors and entrepreneurs and avoiding cases of insolvency. In addition, the Commission should promote, in line with its digital single market strategy, the use and development of new IT technologies for notifications and online communications, to ensure more effective early warning procedures.

Amendment 14



(16a) The early warning phase, designed to anticipate the emergence of the crisis, is intended to assist by flagging difficulties arising for debtors and offering them the possibility of a rapid analysis and solution of the economic and financial problems facing the company, making available - on a voluntary basis - various resources for this purpose, without dictating given lines of conduct or necessarily revealing the existence of a crisis to third parties. It is therefore important to leave the Member States to decide on whether to restrict mandatory monitoring provisions to SMEs, bearing in mind that SMEs themselves are frequently unable to initiate restructuring processes independently because of a number of factors undermining their competitiveness, such as being undersized, a lack of strong corporate governance, effective operational procedures and monitoring and planning resources, and their lower ability to afford to do so.

RR\1161006EN.docx 77/158 PE610.684v03-00

EN

Amendment 15



(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors.

(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible and timely procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, as such a requirement may not always be relevant, necessary, useful or in the interest of the debtor, especially in straightforward cases with few creditors involved, and could result in a disproportionately high administrative burden on some jurisdictions. Instead, it should be made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority where it appears

PE610.684v03-00 78/158 RR\1161006EN.docx

EN

necessary to impose a restructuring plan on dissenting classes of creditors, or where the obligation to file for insolvency would otherwise apply or where all or part of the business is transferred to another undertaking.

Amendment 16



(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of

(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. Such limitation should not endanger the efficiency and success of the restructuring plan. Member States should strike a balance between the main objective of the continuity of the company and the general public interest in relation to public creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, Member States should limit the duration of the stay to a maximum period that is no less than three months and no more than six months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted.

RR\1161006EN.docx 79/158 PE610.684v03-00

EN

enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.

Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to nine months.

Amendment 17



(25) To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could

(25) To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law should also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could

PE610.684v03-00 80/158 RR\1161006EN.docx

EN

stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.

Amendment 18



(28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.

(28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors, representing a majority of the claims, and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.

Amendment 19


RR\1161006EN.docx 81/158 PE610.684v03-00

EN

Recital 29 a (new)


(29a) For the purposes of implementing the restructuring plan, the latter should make it possible for holders of equity in small and medium-sized enterprises to provide non-monetary restructuring assistance by drawing, for example, on their experience, reputation or business contacts.

Amendment 20



(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for

(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. If this Directive is to be without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72, it should lay down arrangements for the exercise of those rights which make it possible to safeguard jobs and economic activity, in particular the confidentiality necessary for that purpose, whilst guaranteeing the effective exercise of those rights. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt

PE610.684v03-00 82/158 RR\1161006EN.docx

EN

the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

_________________ _________________68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.






71 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.2008, p.

71 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.2008, p.

RR\1161006EN.docx 83/158 PE610.684v03-00

EN

36. 36.72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p.28.

Amendment 21



(37) The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness.

(37) The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time, by establishing a liability regime in order to promote the taking of such action, and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness. While

PE610.684v03-00 84/158 RR\1161006EN.docx

EN

respecting State aid rules, Member States should provide entrepreneurs affected by second chance with business support, relaunching actions, access to up-to-date information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the set-up of a new business and which might help them to relaunch their entrepreneurship capacity.

Amendment 22



(38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

(38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Member States should be able to exclude specific categories of debt. When such exclusions involve public creditors, Member States should take into account the necessary balance between the general public interest and the promotion of entrepreneurship. Disqualification orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she

RR\1161006EN.docx 85/158 PE610.684v03-00

EN

was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

Amendment 23



(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of

(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. Enhanced transparency and predictability would also ensure greater legal certainty for investors and creditors involved in the restructuring, insolvency and discharge procedures. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. It should be possible for that reduction in particular to be secured by introducing, as a first step, confidential procedures which make it possible, in part by virtue of that confidentiality, to prepare the plan or the assignment without the loss of value which would occur if that intention were to be made public. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, and applicable to public procedures, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised

PE610.684v03-00 86/158 RR\1161006EN.docx

EN

achieving these objectives. knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of courts or chambers with specialist magistrates in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

Amendment 24



(40) Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

(40) Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities have sufficient expertise and are properly supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity bearing in mind the main objective of restoring the viability of the company. Practitioners should be rescuers not liquidators and it is essential that they also adhere to a professional code of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to

RR\1161006EN.docx 87/158 PE610.684v03-00

EN

create new professions or qualifications.

Amendment 25



(42) It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice.

(42) It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should collect and aggregate data that is sufficiently granular to enable an accurate assessment of how the Directive works in practice with a view to instituting additional reforms if necessary. They should accordingly proceed to collect and analyse data by type of procedure so that reliable and usable comparative statistics can be obtained.

Amendment 26



(43) The stability of financial markets relies heavily on financial collateral arrangements, in particular, when security collateral is provided in connection with participation in designated systems or in central bank operations and when margins are provided to central counterparties (CCPs). As the value of financial instruments given as security may be very volatile, it is crucial to realize their value quickly before its goes down. Therefore, this Directive should be without prejudice to Directive 98/26/EC of the European Parliament and of the Council of 19 May 199874 , Directive 2002/47/EC of the European Parliament and of the Council75 and Regulation (EU) No 648/201276 .

(43) The stability of financial markets relies heavily on financial collateral arrangements, in particular, when security collateral is provided in connection with participation in designated systems or in central bank operations and when margins are provided to central counterparties (CCPs). As the value of financial instruments given as security may be very volatile, it is crucial to realize their value quickly before its goes down. The provisions of Directive 98/26/EC of the European Parliament and of the Council of 19 May 199874, Directive 2002/47/EC of the European Parliament and of the Council75 and Regulation (EU) No 648/201276 should prevail over this

PE610.684v03-00 88/158 RR\1161006EN.docx

EN

Directive.

_________________ _________________74 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166/45, 11.6.1998).

74 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166/45, 11.6.1998).

75 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements (OJ L 168/43, 27.6.2002).

75 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements (OJ L 168/43, 27.6.2002).

76 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, (OJ L 201/1, 27.7.2012, p.1).

76 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, (OJ L 201/1, 27.7.2012, p.1).

Amendment 27




(a) preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency, and a possibility of survival. By means of delegated acts, the Commission shall further specify what constitutes a "likelihood of insolvency";

Amendment 28



(1) 'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of a liquidator;

(1) 'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of an insolvency practitioner;

Amendment 29

RR\1161006EN.docx 89/158 PE610.684v03-00

EN



(2) 'restructuring' means changing the composition, conditions, or structure of a debtor's assets and liabilities or any other part of the debtor's capital structure, including share capital, or a combination of those elements, including sales of assets or parts of the business, with the objective of enabling the enterprise to continue in whole or in part;

(2) 'restructuring' means a procedure or measures, whether public or confidential, which make it possible to change the composition, conditions, or structure of a debtor's assets and liabilities or any other part of the debtor's capital structure, including share capital, or a combination of those elements, including sales of assets or all or part of the business, with the objective of enabling the enterprise to continue in whole or in part;

Amendment 30



(3) 'affected parties' means creditors or classes of creditors and, where applicable under national law, equity holders whose claims or interests are affected under a restructuring plan;

(3) 'affected parties' means creditors or classes of creditors, including public creditors and contracting partners of executory contracts and, where applicable under national law, equity holders and workers whose claims or interests are affected under a restructuring plan;

Amendment 31



(4) 'stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor against a debtor, ordered by a judicial or administrative authority;

(4) 'stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor or a group of creditors against a debtor or a group of debtors, ordered by a judicial or administrative authority;

Amendment 32


PE610.684v03-00 90/158 RR\1161006EN.docx

EN

Article 2 – paragraph 1 – point 6


(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan;

(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan. For the purpose of adopting a restructuring plan, creditors are divided into different classes of creditors, where as a minimum, secured and unsecured claims are treated in distinct classes, whilst workers constitute a separate class;

Amendment 33



(11) 'new financing' means any new funds, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

(11) 'new financing' means any new funds or provision of credit, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;

Amendment 34



(12) 'interim financing' means any funds, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value

(12) 'interim financing' means any funds or provision of credit, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the

RR\1161006EN.docx 91/158 PE610.684v03-00

EN

of that business pending the confirmation of a restructuring plan;

value of that business pending the confirmation of a restructuring plan;

Amendment 35

Proposal for a directiveArticle 2 – paragraph 1 – point 15 – introductory part


(15) 'practitioner in the field of restructuring' means any person or body appointed by a judicial or administrative authority to carry out one or more of the following tasks:

(15) 'practitioner in the field of restructuring' means any person or body that carries out one or more of the following tasks:

Amendment 36



(15a) 'repayment plan' means a programme of payments of specified amounts on specified dates by a debtor to creditors as part of a restructuring plan;

Amendment 37

Proposal for a directiveArticle 2 – paragraph 1 – point 15 b (new)


(15b) 'viable' means able to provide an appropriate projected return on capital after having covered all its costs including depreciation and financial charges.

Amendment 38



1. Member States shall ensure that 1. Member States shall ensure that

PE610.684v03-00 92/158 RR\1161006EN.docx

EN

debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency. In that regard, the Commission shall promote, as part of its digital single market strategy, the use and development of new IT technologies for notifications and online communications, to ensure more effective early warning procedures.

Amendment 39




2. Member States shall ensure public, free, relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to debtors and entrepreneurs to restructure at an early stage or to obtain a discharge of personal debt.

Amendment 40



2a. The Commission shall:

(a) issue a list of warning indicators, linked to a set of actions to be performed by debtors and entrepreneurs in the event that those indicators are met;

(b) centralise on their website the information laid down in paragraph 2 in a user-friendly way. Members States shall communicate to the Commission updated information every year.

Amendment 41

RR\1161006EN.docx 93/158 PE610.684v03-00

EN



3. Member States may limit the access provided for in paragraphs 1 and 2 to small and medium sized enterprises or to entrepreneurs

3. For small and medium sized enterprises or entrepreneurs, Member States shall at all stages provide access to professional advice from a restructuring practitioner, for instance through chambers of trade or business and notaries’ associations bearing in mind that those measures should be affordable to SME’s.

Amendment 42



3a. Member States shall ensure that the tax, social security and audit authorities have sufficient means under national law to be able to flag any worrying developments as soon as possible.

Amendment 43



1a. Member States shall incentivise debtors in financial difficulty to take early action by providing clear information on the available preventive restructuring procedures and on the early warning tools.

Amendment 44


PE610.684v03-00 94/158 RR\1161006EN.docx

EN



2. Preventive restructuring frameworks may consist of one or more procedures or measures, either out-of-court or ordered by an administrative or judicial authority.

Amendment 45



2a. Member States may provide for other means for debtors to obtain protection besides those required by this Directive, including contractual means.

Amendment 46




3. Member States may put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate while ensuring that rights of any affected parties are safeguarded.

Amendment 47



2. The appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case.

2. Member States may require the appointment by a judicial or administrative authority of a practitioner in the field of restructuring, if necessary and appropriate to safeguard the rights of affected parties, bearing in mind that those measures

RR\1161006EN.docx 95/158 PE610.684v03-00

EN

should be affordable to SMEs.

Amendment 48



3. Member States may require the appointment of a practitioner in the field of restructuring in the following cases:

3. Member States shall ensure the appointment of a practitioner in the field of restructuring by a judicial or administrative authority, at least in the following cases:

Amendment 49

Proposal for a directiveArticle 5 – paragraph 3 – point b a (new)


(ba) where the obligation of the debtor to file for insolvency under national law arises during the period of stay of individual enforcement actions;

Amendment 50

Proposal for a directiveArticle 5 – paragraph 3 – point b b (new)


(bb) where the plan provides for the transfer of all or part of an undertaking to another undertaking without the creditors being paid in full or, the entire workforce being kept on.

Amendment 51



1. Member States shall ensure that debtors who are negotiating a restructuring

1. Member States shall ensure that debtors who are negotiating a restructuring

PE610.684v03-00 96/158 RR\1161006EN.docx

EN

plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

plan with their creditors may benefit from a stay of individual enforcement actions. Particular conditions shall be specified in order to ensure that such a stay is necessary to allow the negotiation of a restructuring plan. Member States shall at least require that businesses of debtors benefiting from a stay of individual enforcement actions are viable.

Amendment 52




2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including public, commercial, secured and preferential creditors. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law. Such limitation shall not endanger the efficiency and success of the restructuring plan. Member States shall endeavour to achieve a balance between the main objective of the continuity of the company and the general public interest in relation with public creditors.

Amendment 53



3. Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/EC.

3. Paragraph 2 shall not apply to micro and small enterprise claims and workers' outstanding claims except if and to the extent that Member States ensure by other means that the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing

RR\1161006EN.docx 97/158 PE610.684v03-00

EN

Directive 2008/94/EC.

Amendment 54



4. Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four months.

4. Member States shall set a maximum period for the duration of the stay of individual enforcement actions. That maximum period shall be no less than three months and no more than six months.

Amendment 55



7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve months.

7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed nine months.

Amendment 56



9. Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned.

9. Member States shall ensure that, where an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, or a vulnerable creditor would encounter financial difficulties, the judicial or administrative authority may decide not grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned. An unfair prejudice

PE610.684v03-00 98/158 RR\1161006EN.docx

EN

shall be deemed to exist at least where a creditor or class of creditors is facing considerable economic difficulties.

Amendment 57



2. A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors.

2. A general stay covering all creditors involved in the negotiation of the restructuring plan shall prevent the opening of insolvency procedures at the request of one or more creditors, with the exception of workers, in accordance with Article 6(3).

Amendment 58




3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that event, a judicial or administrative authority shall have the power to defer the opening of the insolvency procedure and to keep in place the benefit of the stay of individual enforcement actions, on condition that it does not cause severe financial difficulties to creditors, in order to examine the prospects for achieving an agreement on a successful restructuring plan or an economically viable business transfer, within the period of the stay.

Amendment 59


RR\1161006EN.docx 99/158 PE610.684v03-00

EN


4. Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor for debts that came into existence prior to the stay. Member States may limit the application of this provision to essential contracts which are necessary for the continuation of the day-to-day operation of the business.

4. Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify essential executory contracts to the detriment of the debtor for debts that came into existence prior to the stay on condition of not causing severe financial difficulties to the creditors. For the purposes of this paragraph, an executory contract is essential when it is necessary for the continuation of the day-to-day operation of the business, including any supplies where a suspension of deliveries would lead to the company’s activities coming to a standstill.

Amendment 60



5. Member States shall ensure that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.

5. Member States may require that creditors may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor by virtue of a contractual clause providing for such measures, solely by reason of the debtor's entry into restructuring negotiations, a requested for a stay of individual enforcement actions, the ordering of the stay as such or any similar event connected to the stay.

Amendment 61



6. Member States shall ensure that nothing prevents the debtor from paying in

6. Member States shall ensure that nothing prevents the debtor from paying in

PE610.684v03-00 100/158 RR\1161006EN.docx

EN

the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise after the stay is granted and which continue to arise throughout the period of the stay.

the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise at any time during the period of the stay. During that period, debtors shall be able to execute transactions that are in the interest of the continuity of the business.

Amendment 62

Proposal for a directiveArticle 8 – paragraph 1 – point g


(g) an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and restore its long-term viability, and states any anticipated necessary pre-conditions for its success.

(g) an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency, and/or to restore its long-term viability, and states any anticipated necessary pre-conditions for its success.

Amendment 63

Proposal for a directiveArticle 8 – paragraph 1 – point g a (new)


(ga) workers’ claims or other rights shall be treated taking into account that any financial claims by workers shall have full priority.

Amendment 64



3a. Member States shall ensure that their national legislation effectively guarantees the confidentiality of discussions, conversations, negotiations, or information sessions with persons who

RR\1161006EN.docx 101/158 PE610.684v03-00

EN

have entered into a confidentiality undertaking.

Amendment 65

Proposal for a directiveArticle 8 – paragraph 3 b (new)


3b. Member States may introduce provisions allowing one or more creditors to propose an alternative plan to that proposed by the debtor or by a creditor with the debtor’s agreement.

Amendment 66

Proposal for a directiveArticle 8 – paragraph 3 c (new)


3c. Procedures for implementing restructuring plans that provide for creditors to receive a dividend at least equal to that which they would have received had the assets been sold and the priority of creditors determined following insolvency proceedings shall constitute a bankruptcy procedure within the meaning of the abovementioned directives.

Amendment 67



Article 8a

Workers’ claims or other rights shall not be affected by restructuring plans.

Amendment 68


PE610.684v03-00 102/158 RR\1161006EN.docx

EN



1. Member States shall ensure that any affected creditors, including public ones and workers, have a right to vote on the adoption of a restructuring plan in full knowledge of the consequences it entails for each of them. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

Amendment 69



2. Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States may also provide that workers are treated in a separate class of their own.

2. Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States shall also provide that workers are treated in a separate class of their own. Member States may also lay down specific rules supporting separate class formation for vulnerable creditors, such as small suppliers and micro and small enterprises.

Amendment 70



4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay

4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay

RR\1161006EN.docx 103/158 PE610.684v03-00

EN

down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class. A sale plan shall be authorised by the competent jurisdiction under the national procedure allowing a sale to be authorised and effected.

Amendment 71



6. Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed if it complies with the cross-class cram-down requirements set out in Article 11.

6. Where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed by a judicial or administrative authority if it complies with the cross-class cram-down requirements set out in Article 11.

Amendment 72



6a. Member States shall guarantee that in the case of lack of collaboration of other creditors, the workers’ restructuring plan may be presented to the competent administration or court and adopted without the consent of non-cooperative creditors.

Amendment 73



1. Member States shall ensure that the following restructuring plans can become binding on the parties only if they are confirmed by a judicial or administrative

1. Member States shall ensure that the restructuring plans which affect the interests of dissenting affected parties can become binding on the parties only if they

PE610.684v03-00 104/158 RR\1161006EN.docx

EN

authority: are confirmed by a judicial or administrative authority.

Amendment 74




(b) in the event that creditors challenge, whether the restructuring plan complies with the best interest of creditors test;

Amendment 75



(c) any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors.

(c) any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of existing creditors.

Amendment 76




4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan or authorise a sale plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

Amendment 77


RR\1161006EN.docx 105/158 PE610.684v03-00

EN


(a) fulfils the conditions in Article 10(2);

(a) fulfils the conditions in Article 10(2) and does not run counter to Article 10(3) by meeting the condition set out therein;

Amendment 78



2a. Member States may introduce provisions authorising holders of equity in small and medium-sized undertakings to provide non-monetary assistance under the plan.

Amendment 79



Article 12a

Workers

Member States shall ensure the rights of workers are not undermined by the restructuring process and that there is independent supervision of compliance with relevant national and Union legislation, including those set out in the present directive. Those rights shall include, in particular:

(i) the right to collective bargaining and industrial action;

(ii) the right to information and consultation of workers and workers' representatives, including notably access to information on any procedure which could have an impact on employment and/or the ability of workers to recover their wages and any future payments,

PE610.684v03-00 106/158 RR\1161006EN.docx

EN

including occupational pensions.

Members States shall also ensure that workers are everywhere treated as a preferential and secure class of creditors.

Amendment 80





Amendment 81



2. An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern in the following cases:

2. An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern and the value of the proceeds from the sale of its assets by the insolvency practitioner in an insolvency procedure in the following cases:

Amendment 82



2. Creditors who are not involved in the adoption of a restructuring plan shall not be affected by the plan.

2. Creditors who are not identified in a restructuring plan confirmed by a judicial or administrative authority shall not be affected by the plan.

RR\1161006EN.docx 107/158 PE610.684v03-00

EN

Amendment 83



(b) confirm the plan and grant monetary compensation to the dissenting creditors, payable by the debtor or by the creditors who voted in favour of the plan.

(b) confirm the plan and assess the possibility for dissenting creditors that suffer unjustifiable damage under the plan to be granted monetary compensation, and where appropriate grant such compensation payable by the debtor.

Amendment 84



3. Member States may require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

3. Member States shall require the transactions referred to in point (e) of paragraph 2 to be approved by a practitioner in the field of restructuring or by a judicial or administrative authority in order to benefit from the protection referred to in paragraph 1.

Amendment 85



(b) to have due regard to the interests of creditors and other stakeholders;

(b) to have due regard to the interests of creditors and other stakeholders, including in relation to employment;

Amendment 86

Proposal for a directiveArticle 18 – paragraph 1 – point d a (new)


(da) to fulfil, in the manner most

PE610.684v03-00 108/158 RR\1161006EN.docx

EN

compatible with confidentiality, the obligations arising from Union acts granting rights to workers.

Amendment 87

Proposal for a directiveArticle 18 – paragraph 1 – point d b (new)


(db) not to reduce intentionally the value of the company's net assets below the level necessary to discharge accrued liabilities to workers;

Amendment 88



2a. Member States shall provide entrepreneurs affected by the second chance with business support and regeneration actions which will help to relaunch their entrepreneurship capacity.

Amendment 89



2. Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts without the need to re-apply to a judicial or administrative authority.

2. Member States shall ensure that on expiry of the discharge period, over-indebted entrepreneurs are discharged of their debts after official confirmation.

Amendment 90


RR\1161006EN.docx 109/158 PE610.684v03-00

EN


(a) the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts;

(a) the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts. The Commission shall provide guidelines for Member States to establish a set of criteria for what constitutes dishonest action or bad faith;

Amendment 91



(b) the over-indebted entrepreneur does not adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors;

(b) the over-indebted entrepreneur does not substantially adhere to a repayment plan or to any other legal obligation aimed at safeguarding the interests of creditors, taking into consideration the difficulties in terms of adherence to insolvency and restructuring procedures, which micro and small enterprises encounter.

Amendment 92



(c) in case of abusive access to discharge procedures;

deleted

Amendment 93

Proposal for a directiveArticle 22 – paragraph 1 – point d


(d) in case of repeated access to discharge procedures within a certain period of time.

(d) in case of repeated and abusive access to discharge procedures within a certain period of time.

PE610.684v03-00 110/158 RR\1161006EN.docx

EN

Amendment 94



3. Member States may exclude specific categories of debt, such as secured debts or debts arising out of criminal penalties or tortious liability, from discharge or lay down a longer discharge period where such exclusions or longer periods are justified by a general interest.

3. Member States may exclude specific categories of debt, such as secured debts or debts arising out of right to alimony, criminal penalties or tortious liability, from discharge or lay down a longer discharge period where such exclusions or longer periods are justified by a general interest. When exclusion involves public creditors, Member States shall take into account the necessary balance between the general public interest and the promotion of entrepreneurship.

Amendment 95



1. Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, all debts are treated in a single procedure for the purposes of obtaining a discharge.

1. Member States shall ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, professional debts are to be treated, for the purposes of obtaining a discharge, separately from personal debts. Where there are procedures for obtaining a discharge for both professional and personal debts, these procedures can be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

Amendment 96


RR\1161006EN.docx 111/158 PE610.684v03-00

EN


2. Member States may derogate from paragraph 1 and stipulate that professional and personal debts are to be treated in separate procedures, provided that these procedures can be coordinated for the purposes of obtaining a discharge in accordance with this Directive.

deleted

Amendment 97



1. Member States shall ensure that the members of the judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters receive initial and further training to a level appropriate to their responsibilities.

1. Member States shall ensure that the members of the judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters have the expertise and experience at a level appropriate to their responsibilities.

Amendment 98



1. Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters receive the necessary initial and further training in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties.

1. Member States shall ensure that mediators, insolvency practitioners and other practitioners appointed in restructuring, insolvency and second chance matters have extensive expertise and experience in order to ensure that their services are provided in an effective, impartial, independent and competent way in relation to the parties. Member States shall also ensure the availability of a public list of registered practitioners and mediators which will facilitate the encouragement of debtors to obtain protection through contractual means beside those required by this

PE610.684v03-00 112/158 RR\1161006EN.docx

EN

Directive.

Amendment 99



1a. The Commission shall facilitate the sharing of best practices between Member States in view of improving the quality of training across the Union, including by means of networking and the exchange of experiences and capacity building tools, and if necessary organise training for members of judiciary and administrative authorities dealing with restructuring, insolvency and second chance matters.

Amendment 100




2. The Commission shall encourage Member States to set minimum standards for the practitioner, such as training and professional qualification, a registered status as a practitioner, licensing, personal liability and professional code of ethics, insurance and good repute.

Amendment 101



3. Where practitioners in the field of restructuring, insolvency and second chance are appointed by the judicial or

3. Where practitioners in the field of restructuring, insolvency and second chance are appointed by the judicial or

RR\1161006EN.docx 113/158 PE610.684v03-00

EN

administrative authority, Member States shall ensure that the criteria concerning the manner in which the judicial or administrative authority selects such a practitioner are clear and transparent. In selecting a practitioner in the field of restructuring, insolvency and second chance for a particular case, due consideration shall be given to the practitioner's experience and expertise. Where appropriate, the debtors and creditors shall be consulted in the selection of the practitioner.

administrative authority, Member States shall ensure that the criteria concerning the manner in which the judicial or administrative authority selects such a practitioner are clear and transparent. In selecting a practitioner in the field of restructuring, insolvency and second chance for a particular case, due consideration shall be given to the practitioner's experience and expertise, not only in legal but also in commercial matters. Where appropriate, the debtors and creditors shall be consulted in the selection of the practitioner.

Amendment 102



2. Member States shall ensure that the fees charged by practitioners in the field of restructuring, insolvency and second chance are governed by rules which incentivise a timely and efficient resolution of procedures with due regard to the complexity of the case. Member States shall ensure that appropriate procedures with built-in safeguards are available to ensure that any disputes over remuneration can be resolved in a timely manner.

2. Member States shall ensure that the fees charged by practitioners in the field of restructuring, insolvency and second chance are governed by rules which incentivise a timely and efficient resolution of procedures with due regard to the complexity of the case. The efficiency of the procedure shall be measured, not only in terms of creditors’ recovery rates, but also in terms of the company or the entrepreneur and restoration of viability, under the responsibility of an administrative or judicial authority. Member States shall ensure that appropriate procedures with built-in safeguards are available to ensure that any disputes over remuneration can be resolved in a timely manner.

Amendment 103



PE610.684v03-00 114/158 RR\1161006EN.docx

EN

Article 27a

Information available to second chance entrepreneurs

1. Member States shall ensure that second chance entrepreneurs have access to relevant, up-to-date, clear, concise and user-friendly information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the set-up of a new business.

2. Member States shall communicate to the Commission on a yearly basis the information to be provided under paragraph 1.

3. The Commission shall publish the information to be provided under paragraph 1 and received according to paragraph 2 in a user-friendly way on its website.

Amendment 104



(c) notifications to creditors; (c) notifications to creditors and workers' representatives;

Amendment 105

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g


(g) the number of debtors who, after having undergone a procedure referred to in point (a)(iii) of this paragraph, are subject to another such procedure or another procedure referred to in point (a) of this paragraph.

(g) the number of debtors who, after having undergone a procedure referred to in points (a)(ii) and (iii) of this paragraph, are subject to another such procedure or another procedure referred to in point (a) of this paragraph.

RR\1161006EN.docx 115/158 PE610.684v03-00

EN

Amendment 106

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g a (new)


(ga) for debtors who launched a new business after having undergone a procedure referred to in points (a) (ii) and (iii), the average time between the end of the procedure and the launch of the new business;

Amendment 107

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g b (new)


(gb) the number of job losses, transfer of part or whole of the business, part redundancy and impact of restructuring agreements on the employment and the level of public finance;

Amendment 108

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g c (new)


(gc) the work carried out by each practitioner and its results with respect to data referred to in points (a) to (e) of this paragraph;

Amendment 109

Proposal for a directiveArticle 29 – paragraph 1 – subparagraph 1 – point g d (new)


(gd) the number of fraudulent

PE610.684v03-00 116/158 RR\1161006EN.docx

EN

restructuring and insolvency procedures and the functioning of enforcement mechanisms in place.

Amendment 110



3. Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected.

3. Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected. Member States shall present statistics by means of a user-friendly website.

Amendment 111



4a. The Commission shall centralise on their website the information laid down in paragraphs 1, 2 and 3 in a user-friendly way.

Amendment 112



1. This Directive shall be without 1. Member States shall ensure in

RR\1161006EN.docx 117/158 PE610.684v03-00

EN

prejudice to the following acts: their laws, regulations and administrative provisions that:

Amendment 113



(a) Directive 98/26/EC of the European Parliament and of the Council on settlement finality in payment and securities settlement systems80 ;

(a) Directive 98/26/EC of the European Parliament and of the Council on settlement finality in payment and securities settlement systems80, and in particular the protection of rights and obligations in Articles 3 to 9 thereof;

__________________ __________________80 Directives 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L 166/45, 11.6.1998.

80 Directives 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L 166/45, 11.6.1998.

Amendment 114



(b) Directive 2002/47/EC of the European Parliament and of the Council on financial collateral arrangements81 ; and

(b) Directive 2002/47/EC of the European Parliament and of the Council on financial collateral arrangements81, and in particular the protection of rights and obligations in Articles 4 to 8 thereof and,

__________________ __________________81 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements, OJ L 168/43, 27.6.2002.

81 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2012 on financial collateral arrangements, OJ L 168/43, 27.6.2002.

Amendment 115


PE610.684v03-00 118/158 RR\1161006EN.docx

EN


(c) Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories82 .

(c) Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories82, and in particular the requirement to provide collateral or margin in accordance with Articles 11, 41 and 46 thereof,

__________________ __________________82 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, OJ L 201/1, 27.7.2012.

82 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, OJ L 201/1, 27.7.2012.

Amendment 116

Proposal for a directiveArticle 31 – paragraph 1 – subparagraph 1 a (new)


prevail over the provisions of this Directive and in particular over the rights of debtors under any stay of enforcement actions in accordance with Article 6.

Amendment 117



No later than [5 years from the date of start of application of implementing measures] and every 7 years thereafter, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measures to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered.

No later than [3 years from the date of start of application of implementing measures] 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 of this Directive, including on whether additional measures to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered, including the availability of resources and

RR\1161006EN.docx 119/158 PE610.684v03-00

EN

of specialised courts.

PE610.684v03-00 120/158 RR\1161006EN.docx

EN

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title Preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures

References COM(2016)0723 – C8-0475/2016 – 2016/0359(COD)

Committee responsible Date announced in plenary

JURI16.1.2017

Opinion by Date announced in plenary

ECON16.1.2017

Rapporteur Date appointed

Enrique Calvet Chambon24.11.2016

Discussed in committee 30.8.2017

Date adopted 4.12.2017

Result of final vote +:–:0:

3324

Members present for the final vote Gerolf Annemans, Hugues Bayet, Pervenche Berès, Jonás Fernández, Sven Giegold, Roberto Gualtieri, Brian Hayes, Gunnar Hökmark, Petr Ježek, Philippe Lamberts, Werner Langen, Sander Loones, Olle Ludvigsson, Caroline Nagtegaal, Luděk Niedermayer, Anne Sander, Alfred Sant, Martin Schirdewan, Molly Scott Cato, Pedro Silva Pereira, Peter Simon, Paul Tang, Ramon Tremosa i Balcells, Tom Vandenkendelaere, Miguel Viegas, Jakob von Weizsäcker

Substitutes present for the final vote Enrique Calvet Chambon, Ashley Fox, Marian Harkin, Alain Lamassoure, Verónica Lope Fontagné, Paloma López Bermejo, Tibor Szanyi

Substitutes under Rule 200(2) present for the final vote

Eleonora Evi, Sylvie Goddyn, Carlos Iturgaiz, Claudia Schmidt, Sven Schulze, Bogdan Brunon Wenta

RR\1161006EN.docx 121/158 PE610.684v03-00

EN

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

33 +ALDE Enrique Calvet Chambon, Marian Harkin, Petr Ježek, Caroline Nagtegaal, Ramon

Tremosa i Balcells

ECR Ashley Fox, Sander Loones

PPE Brian Hayes, Gunnar Hökmark, Carlos Iturgaiz, Alain Lamassoure, Werner Langen, Verónica Lope Fontagné, Luděk Niedermayer, Anne Sander, Claudia Schmidt, Sven Schulze, Tom Vandenkendelaere, Bogdan Brunon Wenta

S&D Hugues Bayet, Pervenche Berès, Jonás Fernández, Roberto Gualtieri, Olle Ludvigsson, Alfred Sant, Pedro Silva Pereira, Peter Simon, Tibor Szanyi, Paul Tang, Jakob von Weizsäcker

VERTS/ALE Sven Giegold, Philippe Lamberts, Molly Scott Cato

2 -ENF Gerolf Annemans, Sylvie Goddyn

4 0EFDD Eleonora Evi

GUE/NGL Paloma López Bermejo, Martin Schirdewan, Miguel Viegas

Key to symbols:+ : in favour- : against0 : abstention

PE610.684v03-00 122/158 RR\1161006EN.docx

EN

05.12.2017

OPINION OF THE COMMITTEE ON EMPLOYMENT AND SOCIAL AFFAIRS

for the Committee on Legal Affairs


Rapporteur: Edouard Martin

SHORT JUSTIFICATION

From the point of view of the Committee on Employment and Social Affairs, a matter of concern in this legislative proposal is the fact that workers employed in companies are, as creditors, being placed on the same footing as banks or any other equity holders.This vision of a company on the one hand confines the proposal to financial aspects, while regarding and describing the recovery of a company solely as a financial reorganisation of its stakeholders with a view to making a ‘fresh start’, without any real consideration for the workers.Moreover, this means that creditors are virtually being identified with consumers, as pointed out in the introductory text, which, while being reluctant to take the plunge, envisages the possibility of the directive being applied to consumption-related matters. The proposed amendments pursue several lines of approach:

to ensure the recognition of the corporate social responsibility of undertakings, which cannot boil down to organised networks of contracts between entrepreneurs, equity holders, capital lenders, suppliers, customers and workers, but are social organisations which produce value through the individual and collective work of their staff members; as such, therefore, workers are not in exactly the same class as the others;

to enable workers and their representatives, bolstered by their knowledge of the working environment, to exercise whistleblowing rights and be able to warn of an economic situation which they consider to be of concern; in addition, in relation to early restructuring, workers should be placed on an equal footing with other stakeholders or creditors (as the text calls them) and they and their representatives should be entitled to, and given access to, assessment and advice resources which they currently lack;

to take into account cases in which people who have retired from an undertaking that

RR\1161006EN.docx 123/158 PE610.684v03-00

EN

is threatened with bankruptcy might potentially be affected (company savings plans, pension funds, etc.) and consider them, in these cases, as a ‘class’ within the meaning of the directive.

In its introductory text, the Commission welcomes the positive impact of the right to information and consultation; however, this can only be the case if those rights are effective, which has not yet been ascertained. It is worth pointing out that the ‘Workers' right to information and consultation within the undertaking’ is enshrined in Article 27 of the Charter of Fundamental Rights. It is vital that any early restructuring not only should adhere to these principles, but should, all the more, put social dialogue in its rightful place. The measures proposed in this opinion will have a positive impact on this right since they do not affect existing Union legislation in this area and also provide for a right for the workers concerned to vote on restructuring plans.Lastly, the proposed amendments strengthen four of the eight ‘benefits’ identified in the impact assessment (Nos 1, 3, 5 and 8): ‘efficient possibilities for early restructuring’; ‘facilitating continuation of a debtor’s business while restructuring’; ‘increasing restructuring plans’ chances of success’ and ‘increasing the effectiveness of restructuring, insolvency and second chance’.

AMENDMENTS

The Committee on Employment and Social Affairs calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment 1

Proposal for a directiveRecital -1 (new)


(-1) All workers should have the right to protection of their claims in the event of the insolvency of their employer, as set out in the European Social Charter.

Amendment 2


PE610.684v03-00 124/158 RR\1161006EN.docx

EN


(1) The objective of this Directive is to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

(1) The objective of this Directive is to contribute to the proper functioning of the internal market by removing obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures on preventive restructuring, insolvency and second chance. Without prejudice to workers’ fundamental rights and freedoms this Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating, thus reducing avoidable job losses while contributing to the same extent as would be the case in the event of liquidation to satisfying creditors’ claims; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

Amendment 3



(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the

(2) Restructuring and the result of appropriate and viable expert reports should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage

RR\1161006EN.docx 125/158 PE610.684v03-00

EN

total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

and to avoid their insolvency and the liquidation of viable companies. Those frameworks should prevent job losses and loss of knowledge and skills, and maximise the total value to creditors in comparison with that which they would receive in the event of the liquidation of the company assets, to owners and the economy as a whole. They should also prevent the build-up of non-performing loans. In the restructuring process the rights of all parties involved should be protected, including those of workers. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

Amendment 4



(3a) The Member States should examine the possibility of devising mechanisms to prevent excessive or abusive recourse by employees to experts at the expense of an undertaking, since such recourse would ultimately have a negative impact on the financial situation of the undertaking.

Amendment 5

Proposal for a directiveRecital 3 b (new)


(3b) Given that it would reduce legal uncertainty, a common legislative framework would be positive for the interests of businesses and entrepreneurs wishing to extend their activity to other Member States and for transnational investors.

PE610.684v03-00 126/158 RR\1161006EN.docx

EN

Amendment 6

Proposal for a directiveRecital 3 c (new)


(3c) Special treatment should be accorded to retired workers whose pensions depend, entirely or in part, on company pension plans, and who might be harmed by early restructuring.

Amendment 7



(4) In many Member States it takes more than three years for bankrupt, but honest entrepreneurs to discharge their debts and make a fresh start. Inefficient second chance frameworks result in entrepreneurs having to relocate in other jurisdictions in order to benefit from a fresh start in a reasonable period of time, at considerable additional costs to both their creditors and the debtors themselves. Long disqualification orders which often accompany a procedure leading to discharge create obstacles to the freedom to take up and pursue a self-employed, entrepreneurial activity.

(4) In many Member States it takes more than three years for bankrupt, but honest entrepreneurs to discharge their debts and make a fresh start. Inefficient second chance frameworks result in entrepreneurs having to relocate in other jurisdictions in order to benefit from a fresh start in a reasonable period of time, at considerable additional costs to both their creditors and the debtors themselves. Long disqualification orders which often accompany a procedure leading to discharge create obstacles to the freedom to pursue entrepreneurial activity.

Amendment 8



(4a) A second chance should be seen as a step towards success and not a synonym for failure. Second-chance mechanisms that allow the exoneration of unpaid debt for debtors who are considered to be acting in good faith represent a

RR\1161006EN.docx 127/158 PE610.684v03-00

EN

disincentive for the black economy, and foster a business culture, thereby resulting in a positive effect on employment. Member States should be allowed to extend second-chance mechanisms to natural persons.

Amendment 9




(5) Excessive length of restructuring, insolvency and discharge procedures in several Member States, or the virtual inexistence of such procedures in some cases, is an important factor triggering long-lasting adverse consequences for the workers concerned, low business recovery rates, deterring investors from doing business in the countries concerned and dramatically contributing to the increase in the number of citizens at risk of poverty or social and labour exclusion, and thereby undermining the social and economic resilience of society as a whole.

Amendment 10



(6) All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main

(6) All these differences translate into additional costs for investors or banks when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about

PE610.684v03-00 128/158 RR\1161006EN.docx

EN

reason for not investing or not entering into a business relationship with a counterpart outside their own country.

insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. Such uncertainty therefore acts as a disincentive to investment , obstructs the freedom of establishment of undertakings, and harms the proper functioning of the internal market.

Amendment 11



(7) Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular.

(7) Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular, as well as for the viability of economic activity, and therefore for the preservation and creation of jobs.

Amendment 12



(8) The additional risk-assessment and cross-border enforcement costs for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time should also be removed. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a second chance should also be reduced. Furthermore, the obstacles stemming from long disqualification orders

(8) The additional risk-assessment and cross-border enforcement costs for creditors of over-indebted entrepreneurs who relocate to another Member State in order to obtain a second chance in a much shorter period of time should also be removed. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a second chance should also be reduced. Furthermore, the obstacles stemming from long disqualification orders

RR\1161006EN.docx 129/158 PE610.684v03-00

EN

linked to an entrepreneur' over-indebtedness suppresses entrepreneurship.

linked to an entrepreneur's over-indebtedness stifles entrepreneurship.

Amendment 13



(8a) It is widely recognised that any restructuring operation, in particular one of a major size and which generates a significant impact, should be accompanied by an explanation and justification to the stakeholders, covering the choice of the measures envisaged in relation to the objectives and to alternative options and respecting the full and appropriate involvement of workers' representatives at all levels, prepared in good time to enable stakeholders to prepare for consultations, before the company takes a decision1 a.

__________________1a (P7_TA(2013)0005 Information and consultation of workers, anticipation and management of restructuring)

Amendment 14



(13) In particular small and medium sized enterprises should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice,

(13) In particular small and medium sized enterprises should benefit from a coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the restructuring procedures in some Member States, which have proved to be efficient. Small and medium enterprises, especially when facing financial difficulties, as well as workers representatives, often do not have

PE610.684v03-00 130/158 RR\1161006EN.docx

EN

therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.

Amendment 15



(13a) In order to secure a more coherent approach, the Commission should consider setting up a registry of insolvencies in the European Union, which would provide greater transparency for all creditors and simplify access to information, in particular for small and medium-sized enterprises and for employees.

Amendment 16



(16) The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action. Possible early warning

(16) The earlier the debtors or the workers’ representatives can communicate concerns about an undertaking’s worrying situation or financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start

RR\1161006EN.docx 131/158 PE610.684v03-00

EN

mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.

to experience financial problems to take early action and to empower the workers concerned so that they are able to take an active role in the restructuring process. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, social security, competition and audit authorities would have sufficient means under domestic law tax to draw attention to any dangerous development at the earliest possible stage.

Amendment 17



(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured

(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured

PE610.684v03-00 132/158 RR\1161006EN.docx

EN

when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors.

when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors or if all or part of the business is transferred to another undertaking.

Amendment 18



(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the restructuring plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the restructuring plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

Amendment 19



(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without

(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without

RR\1161006EN.docx 133/158 PE610.684v03-00

EN

prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period.

__________________ __________________68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16.


PE610.684v03-00 134/158 RR\1161006EN.docx

EN







72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p. 28.

72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p. 28.

Amendment 20



(35) Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the

(35) Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the

RR\1161006EN.docx 135/158 PE610.684v03-00

EN

possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors.

possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors. Due account should be taken of the rulings handed down by the Court of Justice, as Advocate-General Mengozzi recently pointed out in his conclusions in Case C-126/16.

Amendment 21



(38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance to judicial or administrative authorities on how to assess the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification orders may last

(38) A full discharge or the end of disqualification after a short period of time are not appropriate in all circumstances, for instance in cases where the debtor is dishonest or has acted in bad faith. Member States should provide clear guidance and criteria to judicial or administrative authorities on the method for assessing the honesty of the entrepreneur. For example, in establishing whether the debtor was dishonest, judicial or administrative authorities may take into account circumstances such as the nature and extent of the debts, the time when these were incurred, the efforts of the debtor to meet the debts and comply with legal obligations including public licensing requirements and proper bookkeeping, and actions on his or her part to frustrate recourse by creditors. Disqualification

PE610.684v03-00 136/158 RR\1161006EN.docx

EN

longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

orders may last longer or indefinitely in situations where the entrepreneur exercises certain professions which are considered sensitive in the Member States or where he or she was convicted for criminal activities. In such cases it would be possible for entrepreneurs to benefit from a discharge of debt, but still be disqualified for a longer period of time or indefinitely from exercising a particular profession.

Amendment 22



(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example,

(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross-border cases set up by Regulation (EU) 2015/848, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example,

RR\1161006EN.docx 137/158 PE610.684v03-00

EN

the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

the creation of courts or chambers with specialist magistrates in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.

Amendment 23



(40) Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

(40) Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity and bear in mind the objective of restoring the viability of the company. Practitioners should be rescuers not liquidators and they should adhere to a code of conduct aiming at ensuring an appropriate level of qualification and training, transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.

Amendment 24


PE610.684v03-00 138/158 RR\1161006EN.docx

EN


(47a) Further assessment should be done in order to evaluate the necessity and consequently put forward legislative proposals to deal with insolvency affecting those persons not exercising a trade, business, craft or profession comparable to the activities of an employer, who, as consumers or users of goods or public or private services, are, in good faith, temporarily or permanently, unable to pay debts as they fall due. Such legislative proposals should provide that access to basic goods and services is safeguarded for those persons to ensure them decent living conditions.

Amendment 25




(a) preventive restructuring procedures available for debtors in financial difficulty, when there is a likelihood of insolvency; or procedures that are used to reduce the amount owed to all or some of the creditors or to transfer all or part of the viable business to another enterprise within a long-term strategy;

Amendment 26



(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking

(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking

RR\1161006EN.docx 139/158 PE610.684v03-00

EN

into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan;

into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan; the Member States shall be responsible for delineating these groupings while taking into account that workers are a class of preferential creditors; any legal change to the delineation of these categories shall not affect a restructuring plan in progress in order to ensure legal certainty;

Amendment 27



(7) 'cram-down of dissenting creditors' means the confirmation by a judicial or administrative authority of a restructuring plan that has the support of a majority in value of creditors or a majority in value in each and every class of creditors over the dissent of a minority of creditors or the dissent of a minority of creditors within each class;

(7) ‘cram-down of dissenting creditors' means the confirmation by a judicial or administrative authority of a restructuring plan that has the support of a majority in value of creditors or a majority in value in each and every class of creditors, or a restructuring plan the transfer price of which is not enough to pay all the creditors in full, over the dissent of a minority of creditors or the dissent of a minority of creditors within each class or the dissent of creditors who do not receive full payment of their claims;

Amendment 28

Proposal for a directiveArticle 2 – paragraph 1 – point 15 – point a


(a) to assist the debtor or the creditors in drafting or negotiating a restructuring plan;

(a) to assist the debtor or the creditors in drafting or negotiating a viable restructuring or sale plan;

Amendment 29


PE610.684v03-00 140/158 RR\1161006EN.docx

EN

Article 2 – paragraph 1 – point 15 – point b


(b) to supervise the activity of the debtor during the negotiations on a restructuring plan and report to a judicial or administrative authority;

(b) to supervise the activity of the debtor during the negotiations on a restructuring or sale plan and report to a judicial or administrative authority;

Amendment 30



1. Member States shall ensure that debtors and entrepreneurs have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

1. Member States shall ensure that debtors, entrepreneurs as well as workers and their representatives have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.

Amendment 31




2. Member States shall ensure that debtors, entrepreneurs as well as workers and their representatives have access to relevant up-to-date, clear, concise and user-friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.

Amendment 32


RR\1161006EN.docx 141/158 PE610.684v03-00

EN


2a. Member States shall ensure that employees’ representatives have full access to information and are consulted if action needs to be taken;

Amendment 33



3a. Member States shall ensure that workers’ representatives are able to communicate concerns to debtors and entrepreneurs about the difficulties the undertaking is in and the urgent nature of those difficulties;

Member States shall ensure that workers’ representatives are in a position to have recourse to an independent expert of their choice in accordance with national law and practices, giving an access to relevant, up-to-date, clear, concise and user-friendly information regarding the financial situation of the business and the different restructuring strategies being envisaged, including transfer to worker ownership;

Member States shall also ensure that the tax, social security, competition and audit authorities are able under national law to be able to flag any worrying financial developments as soon as possible.

Amendment 34



Article 4 Article 4

PE610.684v03-00 142/158 RR\1161006EN.docx

EN



1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency.

1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability or arrange for sustainable management by another undertaking and avoid insolvency or find a solution that is more satisfactory than liquidation of assets to help pay off creditors claims, protect jobs and sustain business activity.


2. Preventive restructuring frameworks may consist of one or more procedures or measures, duly negotiated and consulted with workers’ representatives, if any, who shall retain all rights of collective bargaining and industrial action. Such frameworks shall also provide for procedures or measures aimed at the rescue of the indebted firm by workers, in accordance with relevant national law.


3. Member States shall put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate, while ensuring that rights of any affected parties are safeguarded.

4. Preventive restructuring frameworks shall be available on the application by debtors, or by creditors with the agreement of debtors.

4. Preventive restructuring frameworks shall be available on the application by debtors, by workers or by other creditors with the agreement of debtors.

Amendment 35



3. Member States may require the appointment of practitioner in the field of restructuring in the following cases:

3. Member States shall ensure the appointment of a practitioner at least in the field of restructuring in the following

RR\1161006EN.docx 143/158 PE610.684v03-00

EN

cases:

Amendment 36



(ba) where the plan provides for the transfer of all or part of an undertaking to another undertaking without keeping on the entire workforce.

Amendment 37



1. Member States shall ensure that debtors who are negotiating a restructuring plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

1. Member States shall ensure that debtors who are negotiating a restructuring or sale plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.

Amendment 38




2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors but excluding workers. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.

Justification

While the safeguard of Art: 6.3 is a good one, it needs to be stated in the general text of 6.1

PE610.684v03-00 144/158 RR\1161006EN.docx

EN

that the workers class has a special status

Amendment 39




(a) relevant progress has been made in the negotiations on the restructuring plan or transfer of the viable part of the business to another undertaking in accordance with the conditions laid down in this Directive; and

Amendment 40




3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring or going concern transfer plan within the period of the stay, a judicial or administrative authority my decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.

Amendment 41



(b) a valuation of the present value of the debtor or the debtor's business as well

(b) a valuation of the present value of the debtor, following problem-solving or

RR\1161006EN.docx 145/158 PE610.684v03-00

EN

as a reasoned statement on the causes and the extent of the financial difficulties of the debtor;

assets liquidation procedures or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor; without prejudice to Union and national confidentiality rules, it shall include a detailed description of any assets, debts and their location and of the relationship between the financial obligations and cashflows with the business’s parent companies and subsidiaries.

Amendment 42

Proposal for a directiveArticle 8 – paragraph 1 – point f




(i) its proposed duration; (i) its proposed duration;



(iii) any new financing anticipated as part of the restructuring plan;

(iii) any new financing anticipated as part of the restructuring plan;

(iiia) its impact on all types of pensions of retired and current workers.

(iiib) its impact on the working conditions and remuneration of workers.

(iiic) its impact on subsidiaries and subcontractors.

Amendment 43



(ga) an assessment of the employability and the individual and collective skills of the employees who are affected by the

PE610.684v03-00 146/158 RR\1161006EN.docx

EN

plan.

Amendment 44



1a. Workers’ claims or other rights shall not be affected by restructuring plans and the workers class shall take priority.

Exceptionally, contractual conditions may be renegotiated in early restructuring processes at company level between the management and the workers’ representatives if this serves the normal continuation of business activity and maintenance of jobs.

Amendment 45




1. Member States shall ensure that the procedures provided for in national law allow creditors, including workers affected by a waiver plan, to have a right to vote on the adoption of the restructuring plan, after having been duly informed about the procedure and its potential consequences for the company. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).

Amendment 46


RR\1161006EN.docx 147/158 PE610.684v03-00

EN


2 Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States may also provide that workers are treated in a separate class of their own.

2 Member States shall ensure that parties affected by a waiver plan are treated in separate classes which reflect the class formation criteria. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Taking into account that workers are a class of preferential creditors, except in duly justified circumstances, Member States shall also ensure that outstanding wage claims for active workers and pension claims for retired workers are treated in a separate preferential class of their own, and shall guarantee the priority of such claims.

Amendment 47



4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

4. A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests and in terms of the number of members with voting rights is obtained in each and every class including the workers’ class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class. A sale plan shall be authorised by the competent jurisdiction in accordance with the national law allowing the sale to

PE610.684v03-00 148/158 RR\1161006EN.docx

EN

be authorised and effected.

Amendment 48




5. Member States may stipulate that a vote on the adoption of a restructuring plan takes the form of a consultation and agreement of a requisite majority of affected parties in each class. In the workers’ class this vote shall be held in compliance with national laws.

Amendment 49



(ba) restructuring plans which cut more than 10 jobs within one month in the undertaking;

Amendment 50

Proposal for a directiveArticle 10 – paragraph 1 – point b b (new)


(bb) restructuring plans which are subject to counter-proposals from workers, in particular to further those which include a change of shareholder supported by the workers, or restructuring plans making workers the future buyers, which have been approved by the class of workers after an information and consultation procedure.

RR\1161006EN.docx 149/158 PE610.684v03-00

EN

Amendment 51

Proposal for a directiveArticle 10 – paragraph 1 – subparagraph 1 a (new)


Member States shall ensure that plans to sell a business as a going concern cannot become binding on the parties unless they are confirmed by a judicial or administrative authority under national law.

Amendment 52



3. Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business.

3. Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan involving the waiver of claims where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business or where the debtor’s obligations to workers under existing Directives have not been fulfilled. Member States shall ensure that judicial or administrative authorities may refuse to authorise a sale plan where that plan is such that creditors have no reasonable prospect of being paid a dividend at least equivalent to the amount which they would have received if assets had been sold following a bankruptcy procedure or where the business continuing as a going concern does not offer guarantees as to the viability of the operations transferred.

Amendment 53


PE610.684v03-00 150/158 RR\1161006EN.docx

EN



4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan or authorise a sale plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.

Amendment 54





Amendment 55



2. An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern in the following cases:

2. An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern and the value of the proceeds from the sale of its assets by the insolvency practitioner in an insolvency procedure in the following cases:

Amendment 56


RR\1161006EN.docx 151/158 PE610.684v03-00

EN


(ba) where a plan involves the transfer of all or part of a business.

Amendment 57



2. Member States may afford grantors of new or interim financing the right to receive payment with priority in the context of subsequent liquidation procedures in relation to other creditors that would otherwise have superior or equal claims to money or assets. In such cases, Member States shall rank new financing and interim financing at least senior to the claims of ordinary unsecured creditors.

deleted

Justification

This provision constitutes a super-privilege for actors providing new and interim financing. It can lead to downgrading of other creditors including workers and can reduce the remaining substance of the concerned enterprise, thereby further endangering workers

Amendment 58




(a) to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders, including employment and the interests and rights of workers;

Amendment 59


PE610.684v03-00 152/158 RR\1161006EN.docx

EN


2a. Member States may extend the scope of the second chance mechanism for entrepreneurs to include natural persons, covering persons who do not exercise a trade, business, craft or profession comparable to activities of an employer. The enlargement of the scope shall aim at avoiding natural persons' over-indebtedness in good faith, by a discharge procedure to keep carrying debts once a partial repayment has been done and to allow them to renew their access to credit. The Commission shall provide an impact assessment on how enlargement of the scope of the second chance mechanism would help Member States to reduce poverty and social exclusion and to foster economic activities.

Amendment 60




2. Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to a code of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services, such as licensing and registration.

Amendment 61



(c) notifications to creditors; (c) notifications to creditors, including

RR\1161006EN.docx 153/158 PE610.684v03-00

EN

workers' representatives;

Amendment 62



(ga) the number of job losses, transfers of part or whole of a business, part redundancy and the impact of restructuring agreements on employment and the public finances;

Amendment 63

Proposal for a directiveArticle 29 – paragraph 1 – point g b (new)


(gb) an evaluation of the work carried out by the practitioners and its results;

Amendment 64



4. The Commission shall establish the communication form referred to in paragraph 3 by way of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 30(2).

4. The Commission shall establish the communication form referred to in paragraph 3 by way of delegated acts.

PE610.684v03-00 154/158 RR\1161006EN.docx

EN

PROCEDURE – COMMITTEE ASKED FOR OPINION




JURI16.1.2017

Opinion by Date announced in plenary

EMPL16.1.2017

Rapporteur Date appointed

Edouard Martin17.1.2017

Discussed in committee 3.5.2017



3915

Members present for the final vote Laura Agea, Guillaume Balas, Brando Benifei, Vilija Blinkevičiūtė, Enrique Calvet Chambon, David Casa, Ole Christensen, Martina Dlabajová, Lampros Fountoulis, Arne Gericke, Agnes Jongerius, Rina Ronja Kari, Jan Keller, Ádám Kósa, Agnieszka Kozłowska-Rajewicz, Jérôme Lavrilleux, Jeroen Lenaers, Thomas Mann, Dominique Martin, Emilian Pavel, João Pimenta Lopes, Georgi Pirinski, Marek Plura, Dennis Radtke, Terry Reintke, Maria João Rodrigues, Claude Rolin, Siôn Simon, Ulrike Trebesius, Marita Ulvskog, Renate Weber, Tatjana Ždanoka, Jana Žitňanská

Substitutes present for the final vote Georges Bach, Amjad Bashir, Heinz K. Becker, Dieter-Lebrecht Koch, Paloma López Bermejo, Edouard Martin, Anne Sander, Sven Schulze, Jasenko Selimovic, Theodoros Zagorakis, Flavio Zanonato, Kosma Złotowski

RR\1161006EN.docx 155/158 PE610.684v03-00

EN

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

39 +ALDE

EFDD

GUE/NGL

NI

PPE

S&D

VERTS/ALE

Enrique Calvet Chambon, Martina Dlabajová, Jasenko Selimovic, Renate Weber

Laura Agea

Rina Ronja Kari, Paloma López Bermejo, João Pimenta Lopes

Lampros Fountoulis

Georges Bach, Heinz K. Becker, David Casa, Dieter-Lebrecht Koch, Agnieszka Kozłowska-Rajewicz, Ádám Kósa, Jérôme Lavrilleux, Jeroen Lenaers, Thomas Mann, Marek Plura, Dennis Radtke, Claude Rolin, Anne Sander, Sven Schulze, Theodoros Zagorakis

Guillaume Balas, Brando Benifei, Vilija Blinkevičiūtė, Ole Christensen, Agnes Jongerius, Jan Keller, Edouard Martin, Emilian Pavel, Georgi Pirinski, Maria João Rodrigues, Siôn Simon, Marita Ulvskog, Flavio Zanonato

Terry Reintke, Tatjana Ždanoka

1 -ENF Dominique Martin

5 0ECR Amjad Bashir, Arne Gericke, Ulrike Trebesius, Jana Žitňanská, Kosma Złotowski


PE610.684v03-00 156/158 RR\1161006EN.docx

EN

PROCEDURE – COMMITTEE RESPONSIBLE



Date submitted to Parliament 22.11.2016


JURI16.1.2017

Committees asked for opinions Date announced in plenary

ECON16.1.2017

EMPL16.1.2017

Rapporteurs Date appointed

Angelika Niebler28.11.2016

Discussed in committee 12.7.2017 10.10.2017 7.12.2017



1471

Members present for the final vote Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Mady Delvaux, Rosa Estaràs Ferragut, Laura Ferrara, Mary Honeyball, Emil Radev, Julia Reda, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka

Substitutes present for the final vote Sergio Gaetano Cofferati, Geoffroy Didier, Pascal Durand, Angel Dzhambazki, Jytte Guteland, Angelika Niebler, Virginie Rozière, Viktor Uspaskich, Tiemo Wölken, Kosma Złotowski

Substitutes under Rule 200(2) present for the final vote

Nicola Danti, Kateřina Konečná, Nils Torvalds

Date tabled 21.8.2018

RR\1161006EN.docx 157/158 PE610.684v03-00

EN

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

14 +ALDE Jean-Marie Cavada, Viktor Uspaskich

ECR Angel Dzhambazki, Kosma Złotowski

EFDD Joëlle Bergeron

PPE Rosa Estaràs Ferragut, Angelika Niebler, Emil Radev, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka

VERTS/ALE Max Andersson, Pascal Durand, Julia Reda

7 -ENF Marie-Christine Boutonnet

S&D Sergio Gaetano Cofferati, Nicola Danti, Mady Delvaux, Mary Honeyball, Virginie Rozière, Tiemo Wölken

1 0EFDD Laura Ferrara


PE610.684v03-00 158/158 RR\1161006EN.docx

EN

PR_COD_1amCom€¦ · Web viewfrom differences between national laws and procedures on preventive...

Documents

Transcript of PR_COD_1amCom€¦ · Web viewfrom differences between national laws and procedures on preventive...