In April, the EU published Directive (EU) 2026/799 concerning the harmonisation of certain aspects of insolvency law (CAD 2026/799). Its goal is to lay down common rules in all member states on: (a) avoidance actions; (b) tracing of assets belonging to insolvency estates; (c) pre-pack proceedings; (d) duty of directors to submit a request for the opening of insolvency proceedings; (e) creditors’ committees, and (f) key information factsheets. The European Commission aims to remove obstacles that result from differences between national insolvency laws. It is necessary to lay down minimum requirements in targeted areas concerning insolvency proceedings; that is of utmost importance to foreign investors and benefits “… the efficiency and length of such proceedings, especially in the case of cross-border insolvency proceedings” (recital 3, second line). See my blog at https://bobwessels.nl/blog/2026-06-doc4-the-new-eu-insolvency-harmonisation-directive-a-birds-eye-view/.
Harmonisation is a laudable goal, but what is the approach when a specific issue has cross-border implications? Consider a Belgian company channelling economic benefits to German or Polish beneficiaries to the detriment of creditors; the tracing of assets from the Netherlands involving assets located in the UK, Greece, or Dubai; or the appointment of a creditors’ committee that includes a creditor from Finland or Spain. These are the kind of questions I am thinking about.
Directive 2026/799 itself incorporates only a few elements of the Insolvency Regulation (EIR 2015) into its text. For instance, recital 19 refers to insolvency practitioners performing their duties in relation to avoidance actions and asset tracing. They can access information held in public data registers, including insolvency registers pursuant to the EIR 2015. Recital 19, too, makes a reference to the Business Registers Interconnection System (BRIS) referred to in Directive (EU) 2017/1132. This BRIS system is the interconnection of EU member states’ business registers to enable cross-border access to company information and electronic data exchange between registers. It serves as a single search point via the European e-Justice Portal for citizens, businesses, and public administrations to find company information across EU countries and allows data exchange between registers on foreign branches and cross-border mergers. The types of accessible company information typically include its legal form, seat, legal representatives, annual accounts, and other public company data. Recitals 82 and 83 refer to rules of interest around processing of personal data for the purposes of Directive 2026/799.
The core content of the Insolvency Registers Interconnection system (IRI) established under the EIR 2015 is a decentralised EU-wide system that interconnects national insolvency registers with the European e-Justice Portal to enable cross-border search and access to insolvency information.
The pre-pack proceeding includes a preparation phase (Articles 23 – 27 CAD 2026/799) and a liquidation phase (Article 28 – 32 CAD 2026/799). Recital 31 states that the liquidation phase should be carried out by means of insolvency proceedings included in Annex A to the EIR other than preventive restructuring procedures. The general reference to Annex A raises the problem that Annex A provides a list of all insolvency proceedings (within the meaning of Article 2(4) EIR 2015) known to a member state, without it being possible to determine (for all listed proceedings in their own original languages) which are “preventive restructuring proceedings” and which are not.
As indicated, Directive 2026/799 includes a few elements of the EIR 2015 in its text. In the area of cross-border insolvency, the regulation includes rules for international jurisdiction of the courts, rules on applicable law and rules for recognition and enforcement of judgments. It will certainly be the case that there will be a cross-border element in matters of avoidance actions, asset tracing and recovery and pre-packs – within other member states and/or also third (non-EU) states.
Under the present system, it may be presumed (where the rules to be implemented are changing national insolvency laws) that Directive 2026/799 as a minimum-harmonisation measure does not replace the EIR 2015’s cross-border jurisdiction and conflict-of-laws framework. However, some of the matters covered by the directive do not fit neatly within the categories recognised by the EIR system, creating uncertainty about which cross-border rules apply. The system itself has no extra-EU-territorial effect, so presently, for instance, avoidance judgments are not universally enforceable outside the EU. The Directive leaves this area to the discretion of member states. There is a lurking danger here that what the directive seeks to avert—namely, the removal of obstacles resulting from differences between national insolvency laws—will lead to equally divergent approaches in cases involving parties from outside the EU.
Regarding one specific topic, the rules applying to directors (Articles 40 – 43 CAD 2066/799), recital 60 invites member states to introduce civil liability rules for directors. To the extent that the Directive 2026/799 does not provide for specific rules, the recital continues that “… all other aspects of civil liability, such as the calculation of damages or the burden of proof, should be governed by national law.” But what if a director resides in a different state than the state in which the pre-pack proceedings originated? There are – in the recitals – no references to, for example, EU’s private international law rules concerning the law applicable to contractual and non-contractual obligations or those regarding jurisdiction and recognition and enforcement of judgments in civil and commercial matters. So, it is unclear which private international law rules apply in, for instance, cases of avoidance action or asset tracing. The Directive’s title seems to have been taken very literally: “harmonisation” of insolvency law appears to refer solely to the harmonisation of “national” insolvency law. The absence of references to existing private international law instruments—or any indication that these should indeed be considered (for instance, during the review of the Insolvency Regulation in 2026/2027)—is certainly unsatisfactory.
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on October 2, 2026. See www.globalrestructuringreview.com.