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2017-01-doc3 New Insolvency Regulation applies ‘after’ or ‘from’ 26 June 2017?

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Replacement, as yesterday’s 2017-01-doc2 encountered troubles opening it. This is the message:

On 26 June 2017 Regulation (EU) 2015/848 of the European Parliament and the Council of 20 May 2015 on insolvency proceedings (recast) (EIR Recast or EIR 2015), [2015] OJ L 141/19, will apply. The well known Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (EIR 2000), [2000] OJ L 160/1, in legal force since May 2002, will be repealed, see Article 91 EIR 2015. Date of entry into force. Article 92 EIR 2015 (‘Entry into force’) provides that the EIR Recast ‘… shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union’. The date of publication of the EIR 2015 was 26 June 2015 (OJ L 141/19), so the EIR 2015 enters into force on 26 June 2017. That’s, however, not for the full text.

Article 84(1) EIR 2015 provides that the provisions of the EIR 2015 shall apply only to insolvency proceedings ‘… opened after 26 June 2017’. There are three exceptions to this date:

(a) Article 86 (‘Information on national and Union insolvency law’), which shall apply from 26 June 2016;

(b) Article 24(1) (‘Establishment of insolvency registers’), which shall apply from 26 June 2018; and

(c) Article 25 (‘Interconnection of insolvency registers’), which shall apply from 26 June 2019.

For Article 86, see blog/2015-12-14-art-86-eir-recast-will-apply-per-26-june-2016. And precisely on the date of 26 June 2017? The application of the EIR 2015 is ‘after’ 26 June 2017 (Dutch: ‘na’; German: ‘ab dem’; French ‘a partir du’). What if insolvency proceedings, to which the EIR 2015 applies, are opened exact on the day of 26 June 2017 (which is possible, as it is a Monday)?

Based on the interpretation of Articles 25(2), 84(2) and 92(2) EIR 2015, Freitag (posted on: Conflict of laws.net, 14 July 2016) has argued that ‘from’ 26 June 2017 must be understood as ‘by’ or ‘on’ that date. He is right and this was formally confirmed late December 2016 by a Corrigendum to the EIR 2015, see [2016] OJ L 349/9, providing that the provisions of the EIR 2015 shall apply only to insolvency proceedings ‘… opened from 26 June 2017’.

The EIR 2000, however, continues to apply to insolvency proceedings which fall within its scope and which have been opened before 26 June 2017, see Articles 84(2) jo. Article 91 EIR Recast.