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Is Europe Welcoming the New Commission’s Proposal? – Corporate Finance Lab

With the publication of its Proposal for a Directive on the harmonisation of certain aspects of insolvency law in December 2022 (Proposal), the European Commission has moved into unchartered territory. The first responses have been divergent. Some commentators indicated that (part of) the Proposal is farfetched and at odds with currently well-functioning domestic insolvency legislation in EU Member States, whereas others had clearly hoped for more extensive proposals for harmonisation.

To explore the Proposal in further detail, the Conference on European Restructuring and Insolvency Law (CERIL) organises an international conference on 20 and 21 April 2023 in Leiden (the Netherlands). The CERIL Conference will bring together experts from practice, academia, and the bench who will assess the topics proposed for harmonisation. As input for the Conference itself, CERIL conducts a survey collecting views from across Europe on the reception of this new Proposal.

Commission Proposal to harmonise certain aspects of insolvency law

On 7 December 2022, the European Commission presented its long expected legislative proposal for a directive to harmonise certain aspects of insolvency law (COM/2022/702 final). With the aim to contribute to the development of a Capital Markets Union, the Commission has put forward this Proposal on corporate insolvency rules. More specifically, the Commission aims to make substantive insolvency regimes more coherent by reducing legal uncertainty. It also aims to promote cross-border investment.

With the objective of harmonising ‘certain aspects of insolvency law’, the Proposal covers a variety of more or less separate topics, including (i) avoidance actions, (ii) asset tracing, (iii) pre-pack proceedings, (iv) directors’ duty to file, (v) winding-up of insolvent micro-enterprises, (vi) creditors’ committees, and lastly (vii) measures enhancing the transparency of national insolvency laws.

Surveying European reception of the Proposal

The Proposal regards reform of several substantive topics of national insolvency regimes. Upon adoption, the implementation of the proposed Directive will require Member States to amend their current insolvency regimes.

With the publication of the Proposal, the trilogue with the Parliament and Council will commence. In addition, a legal debate will enfold on the proposed measures. To take stock of how the respective topics of the Proposal are welcomed across Europe, CERIL invites you to take part in a survey (circa 10 minutes), which is available here.

Discussing the Proposal: CERIL Conference

As a think tank, CERIL closely follows this EU development on harmonisation of insolvency law. CERIL is an independent non-profit, non-partisan, self-supporting organisation of approximately 90 lawyers and other restructuring and insolvency practitioners, law professors and (insolvency) judges committed to the improvement of restructuring and insolvency laws and practices in Europe.

This year, CERIL celebrates its 5th anniversary as an independent European think tank. This will be marked with the upcoming international conference on Thursday 20 and Friday 21 April 2023. During the conference also a lustrum book will be presented.

The first day will set the scene for harmonisation of EU insolvency law. This day will feature, among others, a keynote address by a Pal Szirányi, representing the European Commission. In addition, speakers from over ten European countries will review the scope of the Proposal and whether there is a need to consider further topics for harmonisation. The second day will focus on specific topics of the Proposal itself, including those dealing with pre-packs, MSMEs, duty to file, avoidance actions and creditors’ committees.

Click here for the full program and for registration.

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