De Europese Commissie heeft plannen om het insolventierecht, nu een lappendeken per EU-land, verder te harmoniseren. Daartoe is een internetconsultatie gestart waaraan iedere belangstellende kan meedoen.
Consultation on a new European approach to business failure and insolvency
The Commission adopted in December 2012 measures to modernise insolvency rules in the EU: A Proposal for a Regulation amending the Council Regulation (EC) No 1346/2000 on insolvency proceedings and a Communication “A new European approach to business failure and insolvency”.
Insolvencies are a fact of life in a dynamic, modern economy. Around half of enterprises do not survive the first 5 years of their existence, meaning that an average of 200,000 firms are going bankrupt across the EU each year, resulting in direct job losses of 1.7 million every year. Around a quarter of these bankruptcies have a cross-border element.
It is therefore essential to have modern laws and efficient procedures in place to help businesses, which have sufficient economic substance to overcome financial difficulties and to give a “second chance” to honest entrepreneurs. Procedures should be speedy and efficient, in the interest of both debtors and creditors, and should help safeguard jobs, help suppliers to keep their customers, and owners to retain value in viable companies. Giving honest entrepreneurs a second chance to restart viable businesses and safeguarding employment are key elements of the new European approach to business failure and insolvency. This approach aims to give a solid boost to European business in the internal market.
The European Parliament Resolution of November 2011 with recommendations to the Commission on insolvency proceedings in the context of EU company law has identified situations where disparities between national insolvency and restructuring laws create obstacles, competitive disadvantages or difficulties for companies with cross-border activities or ownership within the EU. Such disparities could constitute obstacles to a successful restructuring of insolvent companies as a going concern. The Parliament Resolution asked for harmonisation of some aspects of national insolvency law. The main benefits expected from such harmonisation could be summarised as follows: Protecting the value of the assets of the estate, thereby returning greater value to creditors and shareholders; reducing the costs of the administration of the estate; increasing predictability on the parts of creditors and shareholders, thereby encouraging the provision of increased working capital, reducing the migration of financially troubled companies to other jurisdictions (so-called “forum shopping”); and offering benefits in other respects, such as the preservation of employment.
The Commission Communication of December 2012 highlights certain areas where differences between domestic insolvency laws may hamper the establishment of an efficient insolvency legal framework in the internal market. It seeks to identify the issues on which the new European approach to business failure and insolvency should focus so as to develop a rescue and recovery culture across the Member States. It also outlines certain benefits which the approximation of specific areas of national insolvency law could bring.
As stated in the Communication, the Commission intends to deepen its analysis of the impact arising from differences between national insolvency laws. To this end, a public consultation is launched to seek views from stakeholders on areas where approximation of national insolvency law could bring benefits.
Your answers to this questionnaire will help the Commission to determine in which areas of insolvency law there is a specific need for Union action and what would be the most suitable course of such action.