Recently I have been appointed as member of a group of experts that will assist the European Commission in the preparation of a potential legislative proposal containing minimum standards for a harmonised restructuring and insolvency law in the EU. Virtually this position is a follow up of the consultancy position I held since mid 2012, advising the European Commission in matters of rescue and insolvency, including the preparation of the legislative texts for the revision of the EU Insolvency Regulation (now European Insolvency Regulation 2015/848, into legal effect as per 26 June 2017) and the drafting of the March 2014 Recommendation on a New Approach to Business Failure and Insolvency.
The next three years or so issues to be addressed will include:
(i) the legal nature of this proposal and its scope (in view of the objective of facilitating the free movement of capital in the internal market, of establishing a Capital Markets Union, of improving the enforcement of claims in insolvency and of giving natural persons a second chance), including the instrument’s alignment with the European Insolvency Regulation 2015/848);
(ii) the creation of common definitions, principles and rules in the area of (a) preventive restructuring procedures (in essence the follow-up to the Commission’s Recommendation of March 2014), (b) of formal insolvency procedures (e.g. filing of claims, conditions for accessing the procedures, avoidance actions, ranking of claims), and (c) of connected areas, such as the qualifications of insolvency practitioners and the duties, liabilities and disqualifications of directors in the vicinity of insolvency;
(iii) the establishment of common principles and rules in the area of insolvency of natural persons with a view to giving honest debtors a second chance, and
(iv) the creation of special rules for small and medium sized enterprises (SMEs) as debtors and as creditors with a view to reducing their costs and facilitating their access to restructuring and insolvency procedures.
A consultant to the Commission act independently and in confidence. Declarations to that effect will be posted on the Commission’s site.