This blog is published as a companion piece to the eight-part video Lecture Series on the European Insolvency Regulation (EIR 2015) by Prof. Em. Bob Wessels and Defne Taşman.
Since the videos were recorded in late February 2026, important legislative developments have taken place in European insolvency law, including the adoption of Directive (EU) 2026/799 harmonising certain aspects of insolvency law. To ensure that viewers remain fully up to date with recent developments and with the future evolution of the European insolvency framework, this blog provides a concise overview of this new instrument.
This blog should be read together with Video 8 of the Lecture Series (“The Road to the 2027 Review: Achievements & Fault Lines”), in which we discuss the future development of European insolvency law and possible reforms of the EIR 2015.
Video 8 of the Lecture Series can be viewed here: www.naciil.org/online-course/. The series is kindly sponsored by the Netherlands Association for Comparative and International Insolvency Law (NACIIL).
On April 1, 2026 Directive (EU) 2026/799 of the European Parliament and the Council of 30 March 2026 harmonising certain aspects of insolvency law was published (OJ L 1.4.2026). Article 1(1) of the Certain Aspects Directive (CAD 2026/799) leaves no doubt that the Directive ‘… lays down common rules 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; (f) key information factsheets.’
The core objective of the Directive ‘… is to contribute to the proper functioning of the internal market … and to remove obstacles to the exercise of fundamental freedoms, such as the free movement of capital and freedom of establishment, which result from differences between national laws in the area of insolvency law’ (see recital 1). To have the EU internal market function more smoothly, insolvency outcomes should be more predictable, comparable and transparent across Member States. The integration of the internal market in insolvency law should also enable greater access to corporate financing. For that reason ‘… it is necessary to lay down minimum requirements in targeted areas concerning insolvency proceedings, which have a significant impact on the efficiency and length of such proceedings, especially in the case of cross-border insolvency proceedings’ (recital3, second line).
Below is a short overview of each of these six topics, laid down in separate Titles.
1 Avoidance actions
The CAD 2026/799 introduces common categories and basic parameters for avoidance (“claw‑back”) actions, without fully codifying a uniform law of transactions avoidance. It focusses on three main types of detrimental acts performed prior to the opening of insolvency proceedings, all to protect the general body of creditors rather than individual parties. These types are:
– Preferential transactions: payments or security granted to a particular creditor that improve that creditor’s position in comparison with those of others in the run‑up to insolvency, where the debtor was already insolvent or became insolvent because of the transaction.
– Transactions at an undervalue: dealings for no consideration or for consideration manifestly below market value, such as gratuitous transfers, asset sales at a steep discount without a rational business reason, or disproportionate releases of claims.
– Transactions with intent to prejudice creditors: acts done with the deliberate intention of harming creditors, including collusive schemes to extract assets from the debtor’s estate.
For each category, the directive establishes minimum look‑back periods counted from the moment of opening of proceedings, within which relevant transactions can be challenged. It also introduces a rebuttable presumption of knowledge (or awareness of detriment) when the counterparty is closely connected to the debtor—such as group entities, controlling shareholders, or close relatives in the case of natural persons—which shifts the evidential burden in many insider transactions.Limitation periods to bring avoidance actions may not exceed three years from the opening of proceedings, ensuring that the insolvency estate’s recovery actions are exercised within a reasonably short and predictable window.
2 Asset tracing
Rules regarding asset tracing seek to equip insolvency practitioners (IPs) with more effective tools to locate and secure a debtor’s assets, in particular financial assets scattered across different EU Member States. The directive grants IPs direct access, under defined conditions, to national centralised bank account registers or data retrieval systems. These typically contain information about bank accounts and certain financial instruments held in the Member State.
Cross‑border access is facilitated through an interconnection of these registers at EU level, commonly described as building on or integrated within the BARIS (Bank Account Register Interconnection System) infrastructure. Access is case‑specific, limited to the needs of the specific insolvency proceeding, and subject to strict safeguards in terms of data protection, purpose limitation, and logging of queries. Member States must ensure effective, timely access to beneficial-ownership information through interconnected national registers and to specified national asset registers and databases (e.g., vehicles, real estate and securities records). Procedural aspects, such as language and verification of access conditions, are governed by the law of the Member State hosting the register or database.
3 Pre‑pack proceedings
CAD 2026/799 formally recognises pre-pack proceedings. They are available for debtors that are likely to become insolvent in accordance with national law. The system includes a two‑phase mechanism to preserve going‑concern value by arranging a sale before the formal opening of liquidation or similar proceedings. The aim is to minimise value erosion between the moment of filing of a petition and the eventual sale of the business, especially where speed is critical to retaining contracts, employees, and operational integrity. The distinct stages for a pre-pack are:
– Preparation phase: a confidential phase in which the debtor, under the supervision of a court‑appointed monitor (or similar figure), identifies potential purchasers and negotiates the terms of a going‑concern sale of the business or its core assets. This phase precedes the formal opening of insolvency proceedings. It is, however, anchored in court oversight to ensure transparency ex post and mitigate “insider deal” concerns.
– Liquidation phase: after the court opens formal insolvency proceedings, the pre‑negotiated sale is rapidly executed, usually within a very short time frame, based on the terms agreed in the preparation phase.
The liquidation phase should be carried out by means of an “insolvency proceeding” (other than a “preventive restructuring proceeding”) within the meaning of the Insolvency Regulation 2015 and shall constitute a “bankruptcy or analogous proceeding” within the meaning of Article 5(1) of the Transfer of Undertakings Directive 2001/23/EC. Thus, the CAD 2026/799 codifies the case law of the CJEU, including Smallsteps (2017) and Heiploeg (2022), thereby confirming that the “bankruptcy exception” in the Tupe-Directive 2001/23 applies to this proceeding.
The CAD 2026/799 sets minimum safeguards, including: (1) requirements of adequate marketing or competitive bidding, (2) independent valuation, and (3) court or creditor involvement at key decision points, to ensure that the sale price and purchaser selection protect the interests of the general creditor body. The directive further provides that essential executory contracts may be transferred to the purchaser without the need for individual counterparty consent, subject to overriding protections of workers’ rights and certain categories of contracts where EU or national law restricts assignment (for example in regulated sectors).
4 Directors’ duty to file for insolvency
The directive harmonises the timing obligation for corporate directors to react once the company is insolvent, while leaving the precise definition of insolvency to national law. Directors must request the opening of insolvency proceedings within a maximum period of three months from the moment they become aware, or should have become aware, that the company is insolvent under the applicable national test (balance sheet, cash‑flow, or combined).
Failure to comply may trigger civil liability towards creditors for damages caused by the delayed filing, with Member States obliged to provide for effective enforcement mechanisms. The CAD 2026/799 also allows Member States to treat functionally equivalent measures as compliance, for example where a director, instead of filing immediately, takes steps under a preventive restructuring framework or makes a public notification that enables creditors to initiate insolvency proceedings themselves. Stricter national rules—such as shorter filing deadlines or broader wrongful trading concepts—are expressly permitted to coexist with the directive’s baseline.
5 Creditors’ committees
To improve creditor participation and oversight, the directive requires Member States to provide for creditors’ committees in insolvency proceedings. While a creditors’ committee should be sufficiently large to ensure a diversity of views and interests of the creditors, it should also be relatively limited in size to be able to perform its tasks effectively and in a timely manner. The threshold for “sufficiently large” (e.g. large enterprises or cases with substantial total liabilities) can be calibrated nationally, but the basic obligation is to ensure that major cases benefit from structured creditor representation.
The rules in the CAD 2026/799 focus on four elements:
1 Establishment and mandate: where the threshold is met, a creditors’ committee must be established unless clearly unnecessary, with defined powers to supervise the insolvency practitioner, access information, and issue non‑binding opinions on key decisions such as asset disposals and litigation strategies.
2 Composition: committees must represent different categories of creditors fairly (for example secured, unsecured, institutional, trade, and, where relevant, public creditors), avoiding dominance by a single type of stakeholder.
3 Information rights: IPs must provide regular, meaningful information to the committee, subject to confidentiality rules and commercial sensitivity, enabling informed reactions to proposed actions.
4 Liability of members: committee members act in the interest of the general body of creditors, not just their own claims, and may incur personal liability only in cases of gross negligence or intentional misconduct, to avoid chilling participation.
In general, the CAD 2026/799 aims to make large‑case practice more predictable and improve confidence in cross‑border restructurings and liquidations.
6 Transparency
EU Member States must ensure that concise, user‑friendly summaries of their national insolvency frameworks—covering, for example, the types of proceedings available, ranking of claims, and main actors—are made available via the European e‑Justice Portal. This transparency measure is aimed at reducing information asymmetries for cross‑border creditors and investors, without harmonising those underlying national rules. Accordingly, each Member State must publish a concise, non-technical key-information factsheet covering core features of national insolvency law, including opening conditions, claims processes, ranking and distribution rules, and average reported durations. Factsheets must be provided in an EU language and will be made publicly accessible on the e-Justice Portal in English, French, German and the original national language.
Overall: The Directive’s specific implementation system
Beyond the six specific aspects mentioned above, the CAD 2026/799 includes a careful system of implementing the aspects mentioned into a Member States’ national legal system. Two of these aspects should be mentioned here:
1 Options for Member States: the CAD 2026/799 offers options for Member States. There are over thirty of them, but the degree to which Member States are given freedom clearly differs by policy area. Such ‘options’ for Member States included in an EU instrument, such as a directive, are certainly not new. The PRD 2019/1023 has become notorious for it.
With so many options to implement the PRD 2019/1023’s text into national legislation, could this lead (in the words of Bork and Mangano) to ‘… actually disharmonising’ restructuring law? See my blog https://bobwessels.nl/blog/2022-11-doc2-second-ed-of-bork-mangano-european-cross-border-insolvency-law/.
Taking into account that many national Member States – often for unclear reasons – firmly want to stick to their own powers and national specificities of insolvency law, it is not surprising that some paint a doomsday scenario: the PRD 2019/1023 focuses on harmonisation, but may eventually turn into legislative fragmentation or in the EU into a kind of (geographical) regional ‘mini’-alignment.
As a checklist for legislators, with a reference to the CAD 2026/799, the following list may be valuable (all liability is excluded). We regard as options, formulated in that Member States ‘may exclude’(Article 1(4), ‘may decide’ (Article 1(6), ‘may adopt’ (Article 4(1), (2), (3) and (5), or Members States ‘may provide’ (Articles 6, 10(3), 13, 21(1), 23(2), 24(3, three times !), 24(4), 26, 27(2), 29(2), 29(4), 30(2), (3) and (4), 32, 33, 35(2), 36(2), (3) and (4), 37(1), (2), 38(2), 39(3), 41(1), (2) and (3), 42(3), 44(2)(3), 45(2), 48(1), (3), 50(2), 52(1) and 52(4).
Without a doubt, the subject of pre-pack proceedings, Articles 21 – 39, contains the most options, over twenty, followed at a distance by creditors’ committees, Articles 44 – 50, with five. Under the other topics their number is very modest (or nil, as with Tracing assets belonging to an insolvency estate, Article 14 – 20). Incidentally, this accounting table evidently says nothing yet about the weight or intrusiveness of the option in question, nor about the question of which (political) interests were the deciding factor in including such an option.
2 Without prejudice provisions; the term ‘without prejudice’ generally means that the rights and obligations in a relevant part of legal text are not affected. In the recitals (eight) and the provisions of the text of the CAD 2026/799 (fourteen) clauses and stipulations with ‘without prejudice’ are assembled.
The CAD 2026/799 also protects a sort of ‘iron stock’ of national subjects, by providing (in recital 35) that the provisions of this Directive regarding pre-pack proceedings (Articles 21 – 39) do not replace national substantive rules, ‘… in particular those on the ranking of creditors’ claims, the distribution of proceeds, the nature, scope and form of creditors’ participation, or the remuneration of the insolvency practitioner’.
The CAD 2026/799 offers ‘targeted’ harmonisation. The Directive’s objective is also ‘integrated’ with other European and national rules, particularly by the method of working with the (non-)applicability of certain titles of the Directive and where the possibility of options for Member States has been opened. Where, in addition, reservations can be made to protect other parts of law (via ‘without prejudices’ provisions), it is clear that at a European level this creates a multi-coloured palette of national laws of the Member States. This raises the question of whether these options indeed (recital 1) ‘contribute to the proper functioning of the internal market’, and ‘remove obstacles’, which result from ‘differences between national laws in the area of insolvency’, from the chosen perspective (recital 2) of cross-border investors. Are the identified obstacles, which result from these differences in national insolvency laws not partly replaced by others?