For the European Commission, 2026 began with its plan, published in October 2025, to build a more sovereign and independent Europe. The work program, entitled “Europe’s Independence Moment”, addresses current and future challenges arising from threats to the continent’s security and democracy, geopolitical tensions, as well as the risks to the EU’s economy and industry.
The leading EU executives have the strong desire to boost competitiveness, harness the power of the EU’s Single Market, and simplify the full acquis of rules. We’re talking about cutting administrative burdens by at least 25% for businesses and 35% for SMEs, via simplification packages and a broad review of related rules. Proposals for simplification are foreseen across key sectors, however, the area of restructuring and insolvency has been spared (see https://bobwessels.nl/blog/2025-11-doc1-does-brussels-simplification-drive-affect-insolvency-and-restructuring-law/).
The crown jewel of the EU’s concern with insolvency is the Insolvency Regulation (EIR 2015). Its review is scheduled for mid-2027. So, it’s certainly time to start publishing wish lists.
On the threshold of the new year, the Conference on European Restructuring and Insolvency Law (CERIL) published a survey including a SWOT analysis and substantive evaluation of the functioning of the Insolvency Regulation. In general, it found there is broad support for the EU framework for cross-border insolvency among practitioners, judges and academics across the EU. There is equal strong support to avoid a substantive overhaul of the Regulation.
However, there is a wish list, that includes (i) improvement of the EIR 2015’s group coordination provisions as these have not been a suitable means to deal with groups, (ii) to solve the unaligned way that member states have – partially or not at all – integrated their national preventive restructuring frameworks into the Regulation, i.e. by including them (or not) in Annex A. CERIL’s survey also identified as a persistent problem (iii) the continuing uncertainty about the interaction of the EIR 2015 with other EU instruments, especially the Brussels Ibis Regulation, particularly concerning preventive restructuring frameworks and insolvency-related actions. Other items for review have been mentioned, including (iv) the system of applicable law where exceptions relating to rights in rem and retention of title hinder effective cross border restructurings and (v) the dis-functioning system of the use of undertakings under Article 36 of the EIR 2015.
The system of cooperation and communication in the EIR 2015 has been well developed. It is specifically worrying to read in the CERIL report that the respondents consider the use of this facility remains limited among judges and IPs and that it could be improved. I believe that improvement in this area will primarily lie in even better information and training. Are member states serious enough to ensure that IPs, in consultation with professional IP-associations, are suitably trained and have enough experience to perform their tasks with integrity? See also my blog of last July (https://bobwessels.nl/blog/2025-07-doc2-seven-suggestions-to-strengthen-the-eu-insolvency-regulation/) for similar and other review options.
It is always difficult to be certain that a user has the latest updated text of the Regulation and of the Annexes. Couldn’t the Commission (with or without the help of AI) introduce a convenient method for this? A revised, updated version was published mid-2025, while updated Annexes took effect on 6 November. Did you know?
The latest text of the EIR 2015 now includes the provision that Article 53 permits any foreign creditor to lodge claims by any means of communication accepted by the law of the forum or by the means of electronic communication provided for in Article 4 of Regulation (EU) 2023/2844 (concerning the digitalisation of judicial cooperation and amending certain acts in the field of judicial cooperation). Under Article 57(1), courts seized of insolvency proceedings for group members must cooperate where this facilitates the effective administration of the proceedings. An amended Article 57(3) provides that the cooperation referred to in Article 57(1) shall be implemented in accordance with Article 3 of the Regulation 2023/2844.
As of 6 November 2025, a new Annex A (listing insolvency proceedings) and Annex B (listing insolvency practitioners) have legal effect. These Annexes are an integral part of the EIR 2015. Recital 21 of the EIR 2015 provides: “… Insolvency practitioners who are appointed without the involvement of a judicial body should, under national law, be appropriately regulated and authorised to act in insolvency proceedings. The national regulatory framework should provide for proper arrangements to deal with potential conflicts of interest.” The recital therefore contains a rather weak invitation to regulate (with rules for professional and ethical conduct) non-court appointed insolvency practitioners. It leaves the elements that should be regulated open for guessing, and it is unclear whether the last sentence on conflicts of interest should only apply to non-court appointees or also to court-appointed insolvency practitioners. Moreover, it seems difficult to predict what exactly is meant by insolvency practitioners “… who are appointed without the involvement of a judicial body”. Appointed by a debtor, creditors, shareholders or as an assistant expert by the IP itself? Or is the recital pointing to the debtor-in-possession here?
Taking a look at Annex A, all EU member states now provide for recognition of no less than 138 national insolvency proceedings as coming under the regulation, with a wide variety of names in member states’ own languages. Per country these proceedings amount to three proceedings for Estonia, Latvia, Hungary, Finland, Portugal and Sweden, while Cyprus and Luxemburg have eight, Belgium and Malta nine, Ireland 10 and Italy has no less than 13 types of national insolvency proceeding!
Meanwhile, Annex B lists no fewer than 125 national names for “insolvency practitioners”, i.e. persons or bodies who are active in restructuring and insolvency according to the national law of the member state in which insolvency proceedings were opened. Mind you, Germany and Italy list 10 names, Austria and Malta nine, while Spain lists two names and Lithuania and Slovenia just one. One of my suggestions for reviewing the EIR 2015 is whether this system is sufficiently transparent and clear to fully contribute to the principle of mutual trust between the courts of EU member states.
Taken together, the topics identified above constitute a formidable agenda for the review of the EIR 2015. That agenda, however, will not develop in isolation. Its scope and direction will be influenced by parallel legislative initiatives at EU level, most notably the European Commission’s Proposal for a Directive harmonising certain aspects of insolvency law. That process started in December 2022 and has identified certain “aspects” of member states’ national laws that are ripe for harmonisation including rules relating to avoidance actions, asset tracing, pre‑pack liquidation sales, directors’ filing duties and creditor commissions. Again, “harmonisation” may be viewed as a positive spin on the EU’s attempt to “reduce fragmentation”. Publication of the final text of this Directive is expected in the first quarter of 2026.
The Directive will address several issues with a direct cross-border dimension, such as pre-packs, or may alter the function of existing conflict-of-laws rules under the EIR 2015. In particular, continued harmonisation in areas such as transaction avoidance may gradually reduce the practical relevance of certain exclusions to the “lex concursus”, the law of the state where proceedings have been opened, including Article 16 of the EIR 2015 on detrimental acts. Where substantive rules converge to a sufficient degree, the rationale for maintaining differentiated choice-of-law solutions weakens. The review process for the EIR 2015 should therefore assess whether such provisions ought to be amended, streamlined, or reconceptualised in light of increased convergence among national insolvency laws in the EU.
Beyond legislative developments, broader economic and societal trends are likely to affect cross-border insolvency and restructuring practice. These include growing demand from small and medium-sized enterprises for simplified and cost-efficient cross-border procedures; increased reliance on alternative dispute resolution and mediation in financially distressed situations; ongoing digitalisation of proceedings and documentation; the emerging use of artificial intelligence (AI) in insolvency administration and in judicial decision support; and the emerging use in restructuring practices of arrangements (restructuring support agreements (RSA) and liability management exercises (LME)) (EU’s buzzword for 2026), that secure the legal positions of certain parties through contractual arrangements well in advance of a restructuring process. Regarding this last point, should all affected parties in a restructuring be informed about these arrangements? Are such arrangements sustainable under the laws of member states and/or do they defy national safe harbour rules?
While these developments do not warrant immediate regulatory intervention, they provide important context for evaluating whether the existing framework remains fit for purpose.
A more structural challenge arises from the European Commission’s strategy, launched in mid-2025, to enhance EU competitiveness by addressing the fragmentation of national civil, commercial, and insolvency laws. A central element of this strategy is the proposed introduction of an optional EU-wide company form, the Innovative European Company (IEC). See my blog https://bobwessels.nl/blog/2025-01-doc1-towards-a-new-eu-wide-legal-statute-for-an-innovative-european-company/. Under this proposal, eligible start-up and scale-up companies would be able to operate across member states under a harmonised legal framework covering company law, insolvency procedures, and selected aspects of labour law and taxation, with a progressively expanding scope.
The proposed IEC would function as a so-called “28th regime”, offering an alternative to operating under 27 national legal systems, within the context of one uniform law (“lex concursus europaea”) as a dedicated European insolvency and restructuring framework.
Proponents argue that such a regime could reduce legal complexity, lower transaction costs, and facilitate cross-border growth and investment. Critics warn that it may introduce additional layers of complexity, create competitive distortions between companies operating under different regimes, and strain coherence with existing EU and national frameworks.
The year 2026, therefore, will go down in history as the second stage in the harmonization process of ‘certain aspects’ of national insolvency laws and for the creation of a whole new phenomenon, the 28th regime.
The European Commission’s drive for harmonisation started with the Preventive Restructuring Directive 2019/1023. In 2025, the last group of member states communicated that they had finalised their implementation processes for that directive (hence the revised Annexes). Publication of the text of the ‘certain aspects’ directive in the first quarter of 2026 marks the second stage in the harmonisation process. That directive mandates member states to implement its proposals within two years and nine months (!) after the date of publication. As mentioned above, 2026 also is the year for preparation of the review of the EIR 2015.
The last two subjects mainly require preparatory work (by member states, the Committee staff, and their advisors). Little of this is made public, so that the 28th regime will, of course, capture all the attention.
The debate certainly will influence the way in which European restructuring and insolvency operates in the near future.
References
*Thanks to Defne Taşman, PhD Researcher, University of Antwerp Faculty of Law, for the discussions we had on several of the topics mentioned.
CERIL Report: https://www.ceril.eu/news/reviewing-the-eir-2015
Latest version EIR 2015: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02015R0848-20251106
New Annexes A and B: https://eur-lex.europa.eu/legal-the content/EN/TXT/PDF/?uri=OJ:L_202502073.
Directive “certain aspects”: Final compromise (4 December 2025)
https://data.consilium.europa.eu/doc/document/ST-16061-2025-REV-1/en/pdf
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 January 6, 2026. See www.globalrestructuringreview.com.