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2021-12-doc11 Judicial cross-border cooperation goes digital!

On the first of December the European Commission published a proposal for a Regulation by the European parliament and the Council ‘… on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation’. See COM(2021) 759 final. One of the many acts is the EU Insolvency Regulation (2015/848; EIR 2015).

Recital 15 discloses that the idea is that for the purposes of ensuring the flexibility of judicial cooperation in certain crossborder judicial procedures, other means of communication could be more appropriate: ‘In particular, this may be appropriate for direct communication between courts under … Regulation (EU) 2015/848 … In such cases, less formal communication means, such as e-mail, could be used.’

It is proposed that Article 42(3) first sentence EIR 2015 is replaced by the following: ‘The cooperation referred to in paragraph 1 of this Article shall be implemented in accordance with Article 3 of Regulation (EU) …/… [this regulation]’. Article 3 concerns means of communication between competent authorities.

The second proposal is to replace Article 53 EIR 2015 (‘Right to lodge claims’) by ‘Any foreign creditor may lodge claims in insolvency proceedings by any means of communication, which are accepted by the law of the State of the opening of proceedings or by the electronic means of communication provided for in Article 5 of Regulation (EU) …/…[this Regulation]’. Article 5 concerns means of communication between natural or legal persons and competent authorities. It provides that written communication falling within the scope of the legal acts listed in Annex I (which includes the EIR 2015), may be carried out by (a) the European electronic access point or (b) national IT portals, where available. Representation by a lawyer or another legal professional shall not be mandatory for the sole purpose of lodging of claims.

A third and last proposal relates to Article 57(3) the first sentence, to be replaced by ‘The cooperation referred to in paragraph 1 of this Article shall be implemented in accordance with Article 3 of Regulation (EU) …/… [this regulation]’. This is no surprise as it mirrors Article 42(3) first sentence.

I will cover more detail when I will be working (Q2 and Q3 2022) on the fifth edition of Wessels International Insolvency Law Part II, see https://bobwessels.nl/blog/2021-12-doc1-book-on-international-insolvency-law-your-input-needed/