opinion parliamentary committee draft, 25 July 2023
On the proposal for a directive of the European Parliament and of the Council harmonising certain aspects of insolvency law
Document ECON-PA-752615 · (COM(2022)0702 – C90410/2022 – 2022/0408(COD))
Committee on Economic and Monetary Affairs · Rapporteur: René Repasi
AI:In short
This draft opinion amends the proposed directive on harmonising insolvency law, focusing on economic and monetary aspects. It calls for changes to rules on avoidance actions, pre-pack proceedings, creditors' committees, and simplified winding-up for microenterprises.
Position. The opinion proposes amendments to the directive, focusing on economic and monetary aspects, including changes to avoidance actions, pre-pack proceedings, creditors' committees, and simplified winding-up.
Key points
- Adds the Capital Markets Union and firm value to the directive's objectives, and stresses the need for minimum requirements including for employees.
- Calls for a harmonised tax environment to equalise debt and equity financing, in line with the DEBRA proposal.
- In avoidance actions, removes the 'should have known' standard for congruent coverages, requiring actual knowledge of insolvency.
- Exempts from avoidance legal acts performed directly against fair consideration, in particular wages, and adds social security claims to the exemption.
- In pre-pack sales, requires the monitor to reject offers from closely related parties if they do not satisfy the broader objectives of insolvency law, not just the best-interest-of-creditors test.
- Allows assignment of executory contracts without consent but requires consultation of employees; prohibits termination of employment contracts and contracts with employees.
- Requires that acquirers of a business take it free of debts unless they consent, but the debtor remains jointly liable; does not apply to employment contracts.
- Limits simplified winding-up to microenterprises with less than 20 creditors, and requires conditions like up-to-date accounting and payment of taxes for not appointing an insolvency practitioner.
- Adds a list of commercial transactions from the six months before the request to the debtor's statement, and clarifies security interests.
- Exempts employees' claims from the stay on enforcement actions unless guaranteed in preventive restructuring frameworks.
- Requires that employees' representatives are members of the creditors' committee, and deletes the article setting the number of members.
- Introduces a new article on data reporting, requiring the Commission to support harmonised data and publish annual reports on insolvency cases.
Who is affected
- Microenterprises with less than 20 creditors: simplified winding-up proceedings are available to them, with conditions for avoiding an insolvency practitioner.
- Employees: their wages are exempt from avoidance, their contracts are not terminated in pre-pack, and they get representation on creditors' committees.
- Creditors: their knowledge of insolvency must be actual, not constructive, for avoidance actions; they may request insolvency practitioner appointment in simplified proceedings.
- Acquirers of a debtor's business: they take it free of debts unless they consent, and they must consult employees on contract assignment.
Figures and deadlines
Written by AI from the full text · every figure comes from the text · ¶ opens the paragraph · 4 Sept 2026 · Report a problem
Full text
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Text 217 paragraphs
AMENDMENTS
The Committee on Economic and Monetary Affairs calls on the Committee on on Legal Affairs, as the committee responsible, to take the following into account:
Amendment 1
Proposal for a directive
Recital 1
| Text proposed by the Commission | Amendment |
|---|---|
| (1) The objective of this Directive is to contribute to the proper functioning of the internal market and remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures in the area of insolvency. | (1) The objective of this Directive is to contribute to the proper functioning of the internal market and the Capital Markets Union and remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws and procedures in the area of insolvency. |
Or. en
Amendment 2
Proposal for a directive
Recital 2
| Text proposed by the Commission | Amendment |
|---|---|
| (2) The wide differences in substantive insolvency laws acknowledged by Regulation (EU) 2015/848 of the European Parliament and of the Council32 create barriers to the internal market by reducing the attractiveness of cross-border investments, thus impacting the cross-border movement of capital within the Union and to and from third countries. | (2) The wide differences in substantive insolvency laws acknowledged by Regulation (EU) 2015/848 of the European Parliament and of the Council32 and the stark divergence in the quality of domestic insolvency procedures as measured by the World Bank32a create barriers to the internal market by reducing the attractiveness of cross-border investments, thus impacting the cross-border movement of capital within the Union and to and from third countries. It also means that harmonisation of certain aspects of insolvency law may require considerable changes in some Member States. |
| 32 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141 5.6.2015, p. 19). | 32 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141 5.6.2015, p. 19). |
| 32a https://subnational.doingbusiness.org/en/data/exploretopics/resolving-insolvency/what-measured |
Or. en
Read the rest (205 paragraphs)
Amendment 3
Proposal for a directive
Recital 3
| Text proposed by the Commission | Amendment |
|---|---|
| (3) Insolvency proceedings ensure the orderly winding down or restructuring of companies or entrepreneurs in financial and economic distress. These proceedings are key in financial investments, as they determine the final recovery value of such investments. Diverging rules among Member States have contributed to increasing legal uncertainty and unpredictability about insolvency proceedings’ outcome, so raising barriers especially for cross-border investments in the internal market. Large divergences in recovery value and time required to complete insolvency proceedings across the Union have negative repercussions on cost predictability for creditors and investors in cross-border situations in the internal market. | (3) Insolvency proceedings ensure the orderly winding down or restructuring of companies or entrepreneurs in financial and economic distress. These proceedings are key in financial investments, as they determine the final recovery value of such investments. Diverging rules among Member States have contributed to increasing legal uncertainty and unpredictability about the firms value and insolvency proceedings’ outcome, so raising barriers especially for cross-border investments in the internal market. Large divergences in recovery value and time required to complete insolvency proceedings across the Union have negative repercussions on cost predictability for creditors and investors in cross-border situations in the internal market. |
Or. en
Amendment 4
Proposal for a directive
Recital 4
| Text proposed by the Commission | Amendment |
|---|---|
| (4) The integration of the internal market in the area of insolvency laws pursued by this Directive is a key tool for a more efficient functioning of the capital markets in the European Union, including greater access to corporate financing. Therefore, it is necessary to set out minimum requirements in targeted areas of national insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, especially on cross-border insolvency proceedings. | (4) The integration of the internal market in the area of insolvency laws pursued by this Directive is a key tool for a more efficient functioning of the capital markets in the European Union, including greater access to corporate debt financing. Therefore, it is necessary to set out minimum requirements in targeted areas of national insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, especially on cross-border insolvency proceedings. This includes minimum requirements for employees. |
Or. en
Amendment 5
Proposal for a directive
Recital 4 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (4a) Harmonisation of insolvency proceedings is associated with lower costs of credit, increased access to credit, improved creditor recovery and more effective protection of workers. At the same time one of the goals when completing the Capital Market Union is to stimulate more equity financing, and figures on how more debt financing through better protection of creditor rights will impact equity financing, are inconclusive. It is therefore key to create a harmonised tax environment that places debt and equity financing on an equal footing in the EU in parallel with this Directive, in line with the goals of the DEBRA proposal. |
Or. en
Amendment 6
Proposal for a directive
Recital 8
| Text proposed by the Commission | Amendment |
|---|---|
| (8) In the context of avoidance actions, a distinction should be made between legal acts where the claim of the counterparty was due and enforceable and has been satisfied in the owed manner (congruent coverages) and those where performance was not entirely in accordance with the creditor’s claim (incongruent coverage). Incongruent coverages include, in particular, premature payments, the satisfaction with unusual means of payments, the subsequent collateralisation of a so far unsecured claim which was not already agreed upon in the original debt agreement, granting an extraordinary termination right or other amendments not provided for in the underlying contract, the waiver of legal defences or objections or the acknowledgement of disputable debts. In the case of congruent coverages, the avoidance ground of preferences can only be invoked if the creditor of the legal act that can be declared void knew, or should have known, at the time of the transaction that the debtor was insolvent. | (8) In the context of avoidance actions, a distinction should be made between legal acts where the claim of the counterparty was due and enforceable and has been satisfied in the owed manner (congruent coverages) and those where performance was not entirely in accordance with the creditor’s claim (incongruent coverage). Incongruent coverages include, in particular, premature payments, the satisfaction with unusual means of payments, the subsequent collateralisation of a so far unsecured claim which was not already agreed upon in the original debt agreement, granting an extraordinary termination right or other amendments not provided for in the underlying contract, the waiver of legal defences or objections or the acknowledgement of disputable debts. In the case of congruent coverages, the avoidance ground of preferences can only be invoked if the creditor of the legal act that can be declared void knew, at the time of the transaction that the debtor was insolvent. |
Or. en
Amendment 7
Proposal for a directive
Recital 9
| Text proposed by the Commission | Amendment |
|---|---|
| (9) Certain congruent coverages, namely legal acts that are performed directly against fair consideration to the benefit of the insolvency estate, should be exempted from the scope of legal acts that can be declared void. Those legal acts aim at supporting the ordinary daily activity of the debtor’s business. Legal acts falling under this exception should have a contractual basis, and require the direct exchange of the mutual performances, but not necessarily a simultaneous exchange of performances, as, in some cases, unavoidable delays may result from practical circumstances. However, this exemption should not cover the granting of credit. Furthermore, performance and counter-performance in those legal acts should have an equivalence in value. At the same time, the counter-performance should benefit the estate and not a third party. This exception should cover, in particular, prompt payment of commodities, wages, or service fees, in particular for legal or economic advisors; cash or card payment of goods necessary for the debtor’s daily activity; delivery of goods, products, or services against payment by return; creation of a security right against disbursement of the loan; prompt payment of public fees against consideration (e.g. admittance to public grounds or institutions). | (9) Certain congruent coverages, namely legal acts that are performed directly against fair consideration to the benefit of the insolvency estate, in particular wages, should be exempted from the scope of legal acts that can be declared void. Those legal acts aim at supporting the ordinary daily activity of the debtor’s business. Legal acts falling under this exception should have a contractual basis, and require the direct exchange of the mutual performances, but not necessarily a simultaneous exchange of performances, as, in some cases, unavoidable delays may result from practical circumstances. However, this exemption should not cover the granting of credit. Furthermore, performance and counter-performance in those legal acts should have an equivalence in value. At the same time, the counter-performance should benefit the estate and not a third party. This exception should cover, in particular, prompt payment of commodities, wages, or service fees, in particular for legal or economic advisors; cash or card payment of goods necessary for the debtor’s daily activity; delivery of goods, products, or services against payment by return; creation of a security right against disbursement of the loan; prompt payment of public fees against consideration (e.g. admittance to public grounds or institutions). |
Or. en
Amendment 8
Proposal for a directive
Recital 24
| Text proposed by the Commission | Amendment |
|---|---|
| (24) The pre-pack proceedings should ensure that the monitor appointed in the preparation phase might propose the best bid obtained during the sale process for authorisation by the court only if it declares that, in its view, piecemeal liquidation would not recover manifestly more value for creditors than the market price obtained for the business (or part thereof) as a going concern. The going-concern value is, as a rule, higher than the piecemeal liquidation value because it is based on the assumption that the business continues its activity with the minimum of disruption, has the confidence of financial creditors, shareholders and clients and continues to generate revenues. Therefore, the monitor’s declaration should not require a valuation being made in every case. The monitor should only reasonably conclude that the sale price is not significantly lower than the proceeds that could be recovered through a piecemeal liquidation. However, an increased scrutiny should be required from the monitor or the insolvency practitioner in cases where the only existing offer is made by a party who is closely related to the debtor. In such situations, the monitor or the insolvency practitioner should reject the offer if it does not satisfy the best-interest-of-creditors test. | (24) The pre-pack proceedings should ensure that the monitor appointed in the preparation phase might propose the best bid obtained during the sale process for authorisation by the court only if it declares that, in its view, piecemeal liquidation would not recover manifestly more value for creditors than the market price obtained for the business (or part thereof) as a going concern. The going-concern value is, as a rule, higher than the piecemeal liquidation value because it is based on the assumption that the business continues its activity with the minimum of disruption, has the confidence of financial creditors, shareholders and clients and continues to generate revenues. Therefore, the monitor’s declaration should not require a valuation being made in every case. The monitor should only reasonably conclude that the sale price is not significantly lower than the proceeds that could be recovered through a piecemeal liquidation. However, an increased scrutiny should be required from the monitor or the insolvency practitioner in cases where the only existing offer is made by a party who is closely related to the debtor. In such situations, the monitor or the insolvency practitioner should reject the offer if it does not satisfy the objectives of insolvency law. |
Or. en
Amendment 9
Proposal for a directive
Recital 28
| Text proposed by the Commission | Amendment |
|---|---|
| (28) The opening of insolvency proceedings should not result in the early termination of contracts under which the parties still have obligations to perform (executory contracts), which are necessary for the continuation of business operations. Such termination would unduly jeopardise the value of the business, or part thereof, to be sold in the pre-pack proceedings. It should, therefore, be ensured that those contracts are assigned to the acquirer of the business of the debtor or part thereof, even without the consent of the counterparty of the debtor to those contracts. Nonetheless, there are situations where the assignment of the executory contracts cannot be reasonably expected, such as when the acquirer is a competitor of the counterparty of the contract. Similarly, the court may come to the conclusion in an individual assessment of an executory contract that its termination would serve the interests of the business of the debtor better than its assignment, such as when the assignment of the contract would result in a disproportionate burden for the business. The court should not be allowed, however, to terminate executory contracts relating to licenses of intellectual and industrial property rights, as they are usually key components of the operations of the business being sold. | (28) The opening of insolvency proceedings should not result in the early termination of contracts under which the parties still have obligations to perform (executory contracts), which are necessary for the continuation of business operations. Such termination would unduly jeopardise the value of the business, or part thereof, to be sold in the pre-pack proceedings. It should, therefore, be ensured that those contracts are assigned to the acquirer of the business of the debtor or part thereof, after consultation of the counterparty of the debtor to those contracts. Nonetheless, there are situations where the assignment of the executory contracts cannot be allowed, such as when the acquirer is a competitor of the counterparty of the contract or when it binds employees to a contract partner they have not chosen. Similarly, the insolvency practitioner may come to the conclusion in an individual assessment of an executory contract that its termination would serve the interests of the business of the debtor better than its assignment, such as when the assignment of the contract would result in a disproportionate burden for the business. The insolvency practitioner should not be allowed, however, to terminate executory contracts relating to licenses of intellectual and industrial property rights, as they are usually key components of the operations of the business being sold. |
Or. en
Amendment 10
Proposal for a directive
Recital 50
| Text proposed by the Commission | Amendment |
|---|---|
| (50) Fair representation of creditors in the creditors’ committee is particularly important in relation to unsecured creditors that are micro, small or medium-sized enterprises, which in the case of insolvency of a debtor which is a large enterprise, if not paid promptly, are also exposed to insolvency (domino effect). Proper representation in the creditors’ committee of such creditors could ensure that in the course of the distribution of the recovered proceeds they receive their parts more expeditiously. | (50) Fair representation of creditors in the creditors’ committee is particularly important to employees, for whom the delay of wage payments regularly poses an existential threat, as well as to unsecured creditors that are micro, small or medium-sized enterprises, which in the case of insolvency of a debtor which is a large enterprise, if not paid promptly, are also exposed to insolvency (domino effect). Proper representation in the creditors’ committee of such creditors could ensure that in the course of the distribution of the recovered proceeds they receive their parts more expeditiously. |
Or. en
Amendment 11
Proposal for a directive
Recital 53
| Text proposed by the Commission | Amendment |
|---|---|
| (53) Members of the creditors’ committee retain discretion in the organisation of the work, as long as the working methods are lawful, transparent and effective. Member States should therefore require that the creditors’ committee set out the working methods, specifying how meetings should be run, who could attend and vote, and how the impartiality and the confidentiality of the work of the committee is ensured. These working methods should be allowed to also set out a role for employers’ representatives or transparency towards other creditors. Creditors should be able to participate and vote electronically or delegate the voting right to a third person, provided this person is duly authorised. This possibility would be particularly beneficial for creditors resident in other Member States. | (53) Members of the creditors’ committee retain discretion in the organisation of the work, as long as the working methods are lawful, transparent and effective. Member States should therefore require that the creditors’ committee set out the working methods, specifying how meetings should be run, who could attend and vote, and how the impartiality and the confidentiality of the work of the committee is ensured. These working methods should be allowed to also set out a role for employers’ and employees' representatives or transparency towards other creditors. Creditors should be able to participate and vote electronically or delegate the voting right to a third person, provided this person is duly authorised. This possibility would be particularly beneficial for creditors resident in other Member States. |
Or. en
Amendment 12
Proposal for a directive
Article 1 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 1a. The minimum standards laid down in this Directive aim to converge Member State’s insolvency law, in particular having regard to the following objectives: | |
| (a) maximization of [legal certainty about] a firm’s value; | |
| (b) improving efficiency of insolvency procedures both in terms of cost and length (especially for microenterprises); | |
| (c) improving predictability and fair distribution of value amongst creditors; | |
| (d) protecting employees and preserving jobs. |
Or. en
Amendment 13
Proposal for a directive
Article 6 – paragraph 2 – subparagraph 1 – point b
| Text proposed by the Commission | Amendment |
|---|---|
| (b) that creditor knew, or should have known, that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted. | (b) that creditor knew that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted. |
Or. en
Amendment 14
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 1 – point a
| Text proposed by the Commission | Amendment |
|---|---|
| (a) legal acts performed directly against fair consideration to the benefit of the insolvency estate; | (a) legal acts performed directly against fair consideration to the benefit of the insolvency estate, in particular wages; |
Or. en
Amendment 15
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 1 – point c a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) legal acts that serve as satisfaction or collateralisation of claims of social security authorites. |
Or. en
Amendment 16
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that where payments on bills of exchange or cheques are concerned as referred to in the first subparagraph, point (b), the amount paid on the bill or cheque shall be restituted by the last endorser or, if the latter endorsed the bill on account of a third party, by such party if the last endorser or the third party knew or should have known that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted at the moment of endorsing the bill or having it endorsed. This knowledge is presumed if the last endorser or the third party was a party closely related to the debtor. | Member States shall ensure that where payments on bills of exchange or cheques are concerned as referred to in the first subparagraph, point (b), the amount paid on the bill or cheque shall be restituted by the last endorser or, if the latter endorsed the bill on account of a third party, by such party if the last endorser or the third party knew that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted at the moment of endorsing the bill or having it endorsed. This knowledge is presumed if the last endorser or the third party was a party closely related to the debtor. |
Or. en
Amendment 17
Proposal for a directive
Article 8 – paragraph 1 – subparagraph 1 – point b
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the other party to the legal act knew or should have known of the debtor’s intent to cause a detriment to the general body of creditors. | (b) the other party to the legal act knew of the debtor’s intent to cause a detriment to the general body of creditors. |
Or. en
Amendment 18
Proposal for a directive
Article 11 – paragraph 2 – subparagraph 1 – point b
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the successor knew or should have known the circumstances on which the avoidance action is based. | (b) the successor knew the circumstances on which the avoidance action is based. |
Or. en
Amendment 19
Proposal for a directive
Article 19 – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Member States shall ensure that pre-pack proceedings are composed of the following two consecutive phases | 1. Member States shall introduce pre-pack proceedings in situations, where the debtor is in a situation of likelihood of insolvency or is insolvent in accordance with national law. Member States shall ensure that pre-pack proceedings are composed of the following two consecutive phases: |
Or. en
Amendment 20
Proposal for a directive
Article 22 – paragraph 2 – subparagraph 1 – point d a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (da) ensures participation of a committee of creditors. |
Or. en
Amendment 21
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that the acquirer of the debtor’s business or part thereof is assigned the executory contracts which are necessary for the continuation of the debtor’s business and the suspension of which would lead to a business standstill. The assignment shall not require the consent of the debtor’s counterparty or counterparties. | Member States shall ensure that the acquirer of the debtor’s business or part thereof is assigned the executory contracts which are necessary for the continuation of the debtor’s business. The assignment shall not require the consent of the debtor’s counterparty or counterparties. The assignment shall require the consultation of the debtor’s employees. |
Or. en
Amendment 22
Proposal for a directive
Article 27 – paragraph 2 – subparagraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that the court may decide to terminate the executory contracts referred to in paragraph 1, first subparagraph, provided that one of the following conditions applies: | Member States shall ensure that the insolvency practitioner may decide to terminate the executory contracts referred to in paragraph 1, first subparagraph, provided that one of the following conditions applies: |
Or. en
Amendment 23
Proposal for a directive
Article 27 – paragraph 3 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 3a. The provisions in this Article shall not apply to employment contracts. |
Or. en
Amendment 24
Proposal for a directive
Article 28 – paragraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that the acquirer acquires the debtor’s business or part thereof free of debts and liabilities, unless the acquirer expressly consents to bear the debts and the liabilities of the business or part thereof. | Member States shall ensure that the acquirer acquires the debtor’s business or part thereof free of debts and liabilities, unless the acquirer expressly consents to bear the debts and the liabilities of the business or part thereof. In this case the debtor remains jointly and severally liable with the acquirer. |
| This article is without prejudice to liabilities laid down by law and shall not apply to employment contracts. |
Or. en
Amendment 25
Proposal for a directive
Article 32 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. Where the offer made by a party closely related to the debtor is the only existing offer, Member States shall introduce additional safeguards for the authorisation and execution of the sale of the debtor’s business or part thereof. These safeguards shall at least include the duty for the monitor and the insolvency practitioner to reject the offer from the party closely related to the debtor if the offer does not satisfy the best-interest-of-creditors test. | 2. Where the offer made by a party closely related to the debtor is the only existing offer, Member States shall introduce additional safeguards for the authorisation and execution of the sale of the debtor’s business or part thereof. These safeguards shall at least include the duty for the monitor and the insolvency practitioner to reject the offer from the party closely related to the debtor if the offer does not satisfy the broader objectives of insolvency legislation as listed in Article 1(1a). |
Or. en
Amendment 26
Proposal for a directive
Article 38 – paragraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Member States shall ensure that microenterprises, when insolvent, have access to simplified winding-up proceedings that comply with the provisions laid down in this Title. | 1. Member States shall ensure that microenterprises, when insolvent, with less than 20 creditors at the moment of the request for opening an insolvency proceeding, have access to simplified winding-up proceedings that comply with the provisions laid down in this Title. |
Or. en
Amendment 27
Proposal for a directive
Article 38 – paragraph 2
| Text proposed by the Commission | Amendment |
|---|---|
| 2. A microenterprise shall be deemed insolvent for the purposes of simplified winding-up proceedings when it is generally unable to pay its debts as they mature. Member States shall set out the conditions under which a microenterprise is deemed to be generally unable to pay its debts as they mature and ensure that these conditions are clear, simple and easily ascertainable by the microenterprise concerned. | 2. A microenterprise shall be deemed insolvent for the purposes of simplified winding-up proceedings when it is generally unable to pay its debts as they mature or when its debts exceed its assets. Member States shall set out the conditions under which a microenterprise is deemed to be generally unable to pay its debts as they mature and ensure that these conditions are clear, simple and easily ascertainable by the microenterprise concerned. |
Or. en
Amendment 28
Proposal for a directive
Article 39 – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that in simplified winding-up proceedings an insolvency practitioner may only be appointed if both of the following conditions are met: | Member States shall ensure that in simplified winding-up proceedings the debtor, a creditor or a group of creditors may request that an insolvency practitioner is not appointed if the following conditions are met: |
Or. en
Amendment 29
Proposal for a directive
Article 39 – paragraph 1 – point a
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the debtor, a creditor or a group of creditors requests such an appointment; | (a) the microenterprise has a current balance sheet; |
Or. en
Amendment 30
Proposal for a directive
Article 39 – paragraph 1 – point b
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the costs of the intervention of the insolvency practitioner can be funded by the insolvency estate or by the party that requested the appointment. | (b) the microenterprise has an up-to-date accounting system; |
Or. en
Amendment 31
Proposal for a directive
Article 39 – paragraph 1 – point b a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (ba) the microenterprise has an asset list; | |
| (bb) the microenterprise has an up-to-date list of creditors; | |
| (bc) the microenterprise has met payments on taxes and social security contributions. |
Or. en
Amendment 32
Proposal for a directive
Article 39 – paragraph 1 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| The lack of funding by the insolvency estate or by the party that requested the appointment shall not constitute a reason for requesting that an insolvency practitioner is not appointed. |
Or. en
Amendment 33
Proposal for a directive
Article 41 – paragraph 4 – point e a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| (ea) a list with all commercial transactions in the period of six months preceding the request for the opening of simplified winding-up procedings; |
Or. en
Amendment 34
Proposal for a directive
Article 41 – paragraph 4 – point f
| Text proposed by the Commission | Amendment |
|---|---|
| (f) if security in rem or a reservation of title is alleged in respect of a certain claim and, if so, what assets are covered by the security interest. | (f) if security in rem or a reservation of title exists in respect of a certain claim and, if so, what assets are covered by the security interest. |
Or. en
Amendment 35
Proposal for a directive
Article 44 – paragraph 2 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| 2a. Paragraph 1 shall not apply to employees’ claims. By way of derogation from the first subparagraph, Member States may apply paragraph 1 to employees’ claims if, and to the extent that, Member States ensure that the payment of such claims is guaranteed in preventive restructuring frameworks at a similar level of protection. |
Or. en
Amendment 36
Proposal for a directive
Article 47 – paragraph 1 – point a
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the pursuit and enforcement of avoidance actions shall not be mandatory, but shall be left to the discretion of creditors or, when applicable, of the insolvency practitioner; | (a) the pursuit and enforcement of avoidance actions shall not be mandatory, but shall be left to the discretion of creditors or, when appointed, of the insolvency practitioner; |
Or. en
Amendment 37
Proposal for a directive
Article 49 – paragraph 1 – introductory part
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Member States shall ensure that in simplified winding-up proceedings once the insolvency estate has been established and the list of claims against the debtor has been determined, the competent authority: | 1. Member States shall ensure that in simplified winding-up proceedings once the insolvency estate has been established and the list of claims against the debtor has been determined, the competent authority, or, where appointed, the insolvency practitioner: |
Or. en
Amendment 38
Proposal for a directive
Article 49 – paragraph 3
| Text proposed by the Commission | Amendment |
|---|---|
| 3. Member States shall ensure that, where the competent authority proceeds with the realisation of the debtor’s assets as referred to in paragraph 1, point (a), the competent authority also specifies the means of realisation of the assets. Other means than the sale of the debtor’s assets through an electronic public auction may only be selected, if their use is deemed more appropriate in light of the nature of the assets or the circumstances of the proceedings. | 3. Member States shall ensure that, where the competent authority proceeds with the realisation of the debtor’s assets as referred to in paragraph 1, point (a), the competent authority, or, where appointed, the insolvency practitioner also specifies the means of realisation of the assets. Other means than the sale of the debtor’s assets through an electronic public auction may only be selected, if their use is deemed more appropriate in light of the nature of the assets or the circumstances of the proceedings. |
Or. en
Amendment 39
Proposal for a directive
Article 59 – paragraph 3
| Text proposed by the Commission | Amendment |
|---|---|
| 3. Member States shall ensure that the appointed members of the creditors’ committee fairly reflect the different interests of creditors or groups thereof. | 3. Member States shall ensure that the appointed members of the creditors’ committee fairly reflect the different interests of creditors or groups thereof. Member States shall ensure that also representatives of employees are members of the creditors’ committee. |
Or. en
Amendment 40
Proposal for a directive
Article 61
| Text proposed by the Commission | Amendment |
|---|---|
| Article 61 | deleted |
| Number of members | |
| Member States shall ensure that the number of members composing the creditors’ committee is at least 3 and does not exceed 7. |
Or. en
Amendment 41
Proposal for a directive
Article 63 – paragraph 2 – point a
| Text proposed by the Commission | Amendment |
|---|---|
| (a) eligibility to attend and participate in the creditors’ committee’s meetings;; | (a) eligibility to attend and participate in the creditors’ committee’s meetings; |
Or. en
Amendment 42
Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1
| Text proposed by the Commission | Amendment |
|---|---|
| Member States shall ensure that the creditors’ committee’s function is to ensure that in the conduct of the insolvency proceedings the creditors’ interests are protected and individual creditors are involved. | Member States shall ensure that the creditors’ committee’s function is to ensure that in the conduct of the insolvency proceedings the creditors’ interests are protected and individual creditors, as well as employees' or their representatives are involved. |
Or. en
Amendment 43
Proposal for a directive
Article 69 a (new)
| Text proposed by the Commission | Amendment |
|---|---|
| Article 69a | |
| Data reporting | |
| 1. The Commission, in consultation with the European Banking Authority, shall offer support to Member States to enhance and harmonise data reporting in order to allow for a regular assessment of the effectiveness of national insolvency proceedings. | |
| 2. Two years after entry into force and thereafter, the Commission shall, in cooperation with the European Banking Authority, draw up an annual report regular on insolvency cases under the relevant insolvency regulation so that the effectiveness of the system established can be assessed. |
Or. en