Abstract
A landmark achievement of the freshly adopted revision of the EU Insolvency Regulation (Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast)—hereinafter as “the recast Insolvency Regulation”, OJ L 141 of 5 June 2015, p. 19–72) is without any doubt the establishment of the EU-wide interconnection of national electronic insolvency registers. Once deployed in 2019, the system of interconnection will effectively enhance transparency concerning insolvency proceedings opened within the European Union. The European e-Justice Portal as a central public electronic access point will ensure, by means of a uniform multi-lingual search engine, that relevant data on debtors subject to insolvency proceedings are publicly available to existing or potential creditors, or third parties indirectly affected by those proceedings. The following article tries to make a first summary of the new regime, outlining the scope and structure of the system, putting its evolution in a historical perspective, and highlighting the major discussion points of the legislative procedure leading to its adoption.
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Notes
See Annex VI of the Impact Assessment accompanying the proposal for a Regulation amending the Insolvency Regulation, Commission staff working document, Strasbourg 12 December 2012, SWD(2012) 416 final—hereinafter as “Impact Assessment”.
Council Regulation (EC) No 1346/2000 on insolvency proceedings, OJ L 160 of 30 June 2000, p. 1–18—hereinafter as “the Insolvency Regulation”.
Moss/Fletcher/Isaacs [1], paragraph 8.298.
Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings Strasbourg, 12 December 2012 COM(2012) 743 final, p. 16.
Impact Assessment p. 25.
See Annex II of the Impact Assessment, p. 53.
European Parliament resolution of 15 November 2011 with recommendations to the Commission on insolvency proceedings in the context of EU company law (2011/2006(INI)), document no. P7_TA(2011)0484. The relevant recommendations can be found in Part 4 of the Annex to the resolution.
Hess/Oberhammer/Pfeiffer [2].
Evaluation Study pp. 382–383.
Directive 2012/17/EU of the European Parliament and of the Council of 13 June 2012 amending Council Directive 89/666/EEC and Directives 2005/56/EC and 2009/101/EC of the European Parliament and of the Council as regards the interconnection of central, commercial and companies registers, OJ L 156 of 16 June 2012, p. 1–9.
Impact Assessment p. 37.
See estimation with regard to costs on p. 41 of the Impact Assessment.
Proposal of the Commission for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1346/2000 on insolvency proceedings, Strasbourg 12 December 2012, COM(2012) 744 final.
Article 24(2) of the recast Insolvency Regulation.
Article 24(3) of the recast Insolvency Regulation.
E.g. the adopted Regulation dispensed with the idea of obligatory publication of (court) decisions, such as those of opening insolvency proceedings or of appointing the liquidator, since it was held satisfactory that the legally relevant information contained in such decisions are published. Another adjustment concerned the time limits for lodging claims and challenging decisions: namely, some Member States considered it technically demanding to calculate this information on a case-by-case basis, due to the specific circumstances such calculations may be influenced by. As a compromise it was agreed that this information may be provided in a general way, by adding hyperlinks to the European e-Justice Portal, which links contain self-explanatory information on the criteria for calculating those time limits (see recast Insolvency Regulation recital (77)).
In order to inform the public if the insolvency proceeding opened is a main, a secondary or a territorial one.
Article 5 of the recast Insolvency Regulation. In the original proposal of the Commission this piece of information should have been provided to the (known) creditors through individual notices by the court of opening; but finally this idea was rejected, since the co-legislators considered it more effective to include it in the publicly available system of interconnection.
See Article 46a of the 2012 Commission proposal.
See Article 20d of the 2012 Commission proposal, as well as point 3.1.4. of its explanatory memorandum.
Opinion of 27 March 2013 on the Commission proposal for a Regulation amending Council Regulation (EC) No 1346/2000 on insolvency proceedings, available at: https://secure.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2013/13-03-27_Insolvency_Proceedings_EN.pdf.
See paragraph 21 of the opinion.
Paragraphs 24 and 56 of the opinion.
Chapter VI of the recast Insolvency Regulation.
Member States which have registers containing data on personal insolvencies, but these are not accessible publicly on the internet, include e.g. Finland, Belgium, Ireland.
E.g. “debt adjustment proceedings” in Finland.
Such as the “collective debt settlement procedure” in Belgium.
E.g. United Kingdom, Slovenia.
Paragraphs (1) and (2) of Article 27 of the recast Insolvency Regulation.
With the language used in Art 27(3) and 27(4) “individuals exercising an independent business or professional activity when the insolvency proceedings are not related to that activity”.
Article 25 of the recast Insolvency Regulation.
Article 92(2)(b) of the recast Insolvency Regulation.
Article 26 of the recast Insolvency Regulation.
I would like to thank to Alexander Ivantchev for the valuable information given about the details of the e-justice pilot project.
Multiannual European e-Justice Action Plan 2009-2013, OJ C 75 of 31 March 2009, p. 1–12; Multiannual European e-Justice Action Plan 2014-2018, OJ C 182 of 14 June 2014, p. 2–13.
The interconnection is now available at: https://e-justice.europa.eu/content_interconnected_insolvency_registers_search-246-en.do.
References
Moss, G., Fletcher, I.F., Isaacs, S. (eds.): The EC Regulation on Insolvency Proceedings: A Commentary and Annotated Guide, 2 edn. Oxford University Press, Oxford (2009)
Hess, B., Oberhammer, P., Pfeiffer, Th.: Study for an external evaluation of Regulation (EC) No. 1346/2000 on Insolvency Proceedings 2012 (“Evaluation Study”). The study is available at the site of DG Justice under the following URL link: http://ec.europa.eu/justice/civil/document/index_en.htm
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This article is based on a presentation given at the ERA conference “Cross-border insolvency proceedings” on 19–20 March 2015 which was organised in cooperation with INSOL Europe Academic Forum.
The views expressed in this article are those of the author and do not in any way represent the views of the European Commission.
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Szirányi, P. EU-wide interconnection of insolvency registers. ERA Forum 16, 219–228 (2015). https://doi.org/10.1007/s12027-015-0393-0
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DOI: https://doi.org/10.1007/s12027-015-0393-0