• Posted 22-Nov-2016

New approach to business insolvency in Europe

The European Commission presented for the first time a set of European rules on business insolvency. Well-functioning insolvency and restructuring systems are key to supporting economic growth and job creation. This initiative will increase the opportunities for companies in financial difficulties to restructure early on so as to prevent bankruptcy and avoid laying off staff. It will ensure that entrepreneurs get a second chance at doing business after a bankruptcy. It will also lead to more effective and efficient insolvency procedures throughout the EU.

The proposed Directive focuses on three key elements:

  • Common principles on the use of early restructuring frameworks, which will help companies continue their activity and preserve jobs.
  • Rules to allow entrepreneurs to benefit from a second chance, as they will be fully discharged of their debt aftera maximum period of 3 years. Currently, half of Europeans say they would not start a business because of fear of failure.
  • Targeted measures for Member States to increase the efficiency of insolvency, restructuring and discharge procedures. This will reduce the excessive length and costs of procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates of unpaid debts.
  • The new rules will observe the following key principle to ensure insolvency and restructuring frameworks are consistent and efficient throughout the EU:
  • Companies in financial difficulties, especially SMEs, will have access to early warning tools to detect a deteriorating business situation and ensure restructuring at an early stage.
  • Flexible preventive restructuring frameworks will simplify lengthy, complex and costly court proceedings. Where necessary, national courts must be involved to safeguard the interests of stakeholders.
  • The debtor will benefit from a time-limited ''breathing space'' of a maximum of four months from enforcement action in order to facilitate negotiations and successful restructuring.
  • Dissenting minority creditors and shareholders will not be able to block restructuring plans but their legitimate interests will be safeguarded.
  • New financing will be specifically protected increasing the chances of a successful restructuring.
  • Throughout the preventive restructuring procedures, workers will enjoy full labour law protection in accordance with the existing EU legislation.
  • Training, specialisation of practitioners and courts, and the use of technology (e.g. online filing of claims, notifications to creditors) will improve the efficiency and length of insolvency, restructuring and second chance procedures.