Assessment of the European Insolvency Regulation

1. Assessment of the European Insolvency Regulation Dr Marek Porzycki JagiellonianUniversity

2. Was EIR a step forward? • more predictability as regards: • jurisdiction to open proceedings • conflict of laws rules • Recognitions of judgments • Recognition of powers of insolvency liquidators

3. Effectiveness in preventing forum shopping? • Aftermath of the Eurofood decision  no examination of decisions by courts of other Member States on COMI  „race to the court” • Lack of legal certainty as regards COMI and competence to open main proceedings • Incentives for forum shopping by shifting COMI abroad and filing for insolvency in the advantageous jurisdiction • On the other hand, there would be incentives for forum shopping as long as differences between national insolvency laws persist.

4. Restructuringincross-bordercases • Better possibilities for cross-border restructuring within main proceedings • Weak point – secondary proceedings, in particular in cases where most assets of the debtor are situated within the secondary jurisdiction • limitation to winding-up proceedings • problematic coordination with main proceedings  lack of provision on cooperation between courts (useful initiatives: protocols for cooperation, CoCo Guidelines) • Lack of specific rules for proceedings aimed specifically at restructuring (e.g. French sauvegarde) • In general, the EIR is too liquidation-oriented.

5. Scope of application • Deficiences in the functioning of the annexes to the EIR • amendments are triggered in practice by Member States, without regard to the criteria of Article 1(1) of the EIR  questionable entries in Annexes A and C • delay in amending the Annexes following changes to national law  lack of clarity as regards proceedings opened following the change of national law but before the amendment of the Annexes.

6. Groups of companies • Strict approach of the EIR based on separate legal personalities of entities within corporate groups • Results: lack of coordination of winding-up or reorganisation efforts within a group • on the other hand – difficulties in developing a sound legal framework, as issues beyond international insolvency law would need to be tackled (in particular arising under civil law and company law)

7. Lack of easy and reliableaccess to information on insolvencyproceedings • universal effectiveness of insolvency proceedings in the EU is linked to purely national and divergent publication procedures • no pan-European insolvency case register • national registers are not coordinated and not always accessible on-line • national publication rules are not harmonised • language issues • there is no single access point with reliable information on insolvency laws in force in the Member States

8. Reform initiative • reform initiative triggered by the need for an application report on the EIR due under Article 46 of the EIR (until mid-2012 and every 5 years thereafter)  steps taken by the Commission in 2012: • establishment of a group of experts, regular meetings during 2012; • external evaluation of the EIR, conducted by a team coordinated by the Universities of Heidelberg and Vienna, with participation of national reporters; • public consultation.

9. Reform initiative- continued • Initiative of the European Parliament – resolution of 15.11.2011 with recommendations to the Commission on insolvency proceedings in the context of EU company law (2011/2006(INI)), available at http://www.europarl.europa.eu/ • proposal to harmonise certain aspects of national insolvency proceedings: opening of proceedings, filing of claims, avoidance actions, some issues related to liquidators, some basic aspects of restructuring • proposal of amendments related to some cross-border issues: scope of application, definitions of COMI and establishment, cooperation between courts • proposal for a regulation on insolvency of groups of companies • recommendation for an EU insolvency register

10. Reform initiative - continued • Influence of the case-law of the ECJ • cf. ECJ judgment of 20.10.2011 in case C-396/09, Interedil • judgment of 22 November 2012, C-116/11, Bank Handlowy and Adamiak  on restructuring in secondary proceedings

11. Reform initiative - results • Documents adopted on 12 December 2012, including: • draft regulation amending the EIR (COM(2012) 744 final); • report on the application of the EIR; • communication from the Commission „A new European approach to business failure and insolvency”. Declared purpose: a more growth-oriented insolvency framework, second chance for honest enterpreneurs, promoting restructuring, enhancing legal certainty see http://ec.europa.eu/justice/newsroom/civil/news/121212_en.htm

12. Draft amendingregulation – mainfeatures • Scope and definition – broader definition, including debt adjustment proceedings and proceedings without a liquidator • COMI – inclusion of some wording from the Eurofood and Interedil judgments into the EIR, some clarification of rules on natural persons  but no major changes in the definition alone • ex officio examination of jurisdiction under Article 3; obligation to include grounds for jurisdiction in the opening decision • right of foreign creditors and interested parties to challenge the opening decision on jurisdiction grounds

13. Draft amendingregulation – secondaryproceedings • secondary proceedings will be no longer limited to winding-up proceedings – type of proceedings to be decided according to the interests of local creditors • possibility of postponment of the opening of secondary proceedings on request of the liqudator in main proceedings • „synthetic secondary proceedings” – creditors from a secondary jurisdiction may be satisfied in main proceedings as if secondary proceedings had been opened  a way to avoid the opening of secondary proceedings while maintaining the position of local creditors • more detailed rules on communication and cooperation between courts and liquidators

14. Draft amendingregulation – groups of companies • cooperation similar to the coordination between main and secondary proceedings but on a somewhat lower level • cooperation and communication between courts and liquidators • rights of the liquidator in insolvency proceedings against other companies belonging to the same group • right to participate and be heard • right to propose restructuring measures • right to request a stay of proceedings

15. Draft amendingregulation – insolvencyregisters and information • minimum common features for national insolvency registers • availability free of charge on the internet • contents: main information on the opening, conduct and closure of insolvency proceedings • interconnection between national insolvency registers on the EU level • European e-Justice Portal as central access point • unified search engine in all official languages • information on national insolvency laws to be made available via the European Judicial Network

16. Draft amendingregulation – lodgement of claims • standard forms to be provided on the European e-Justice Portal • each Member State to indicate at least one language (other than its official language) which it will accept for the purposes of lodgement of claims  in practice lodgements in English will be probably possible across the whole EU

17. Sources • Proposal for a Regulation amending Council Regulation (EC) No 1346/2000 on insolvency proceedings, COM(2012) 744 final http://ec.europa.eu/justice/civil/files/insolvency-regulation_en.pdf • accompanying documents: http://ec.europa.eu/justice/newsroom/civil/news/121212_en.htm • Hess/Oberhammer/Pfeiffer, Study for an evaluation of Regulation (EC) No 1346/2000 on Insolvency Proceedings; to be published at http://ec.europa.eu/justice/civil/document/index_en.htm

18. Additionalreading – olderdocuments • Revision of the European Insolvency Regulation, proposals by INSOL Europe, 2012: www.insol-europe.org/download/file_/6856 • Presentations from the conference „The Future of the European Insolvency Regulation”, Amsterdam 28 April 2011, http://www.eir-reform.eu/presentations in particular: • Bob Wessels, Revision of the EU InsolvencyRegulation: What type of facelift? • Glenn Flannery, Shortcomings and proposals for reform • G. Moss, Ch. Paulus, The EIR – The Case for Urgent Reform, 2005, reproduced at http://www.eir-reform.eu/uploads/papers/Reforms%20EC.pdf