Directive (EU) 2026/799 on harmonising certain aspects of insolvency law (CAD 2026/799) lays down common rules on creditors’ committees. For an overview of the other ‘aspects’ the directive covers, see https://bobwessels.nl/blog/2026-06-doc2-certain-aspects-directive-2026-799-a-patchwork-without-cross-border-rules/.
Globally, it is commonly held that the interests of relevant creditors may be best served by coordinating their response to a debtor in financial difficulty through the establishment of at least one representative committee of creditors. The establishment of such a committee generally serves two goals: (a) the active participation of creditors in insolvency proceedings, and (b) to ensure fairness and integrity of proceedings. A creditors’ committee can also contribute significantly to the supervision of the insolvency practitioner or debtor in possession the activity of, considering the progress and quality of their work while, at the same time, avoiding wasteful interferences.
Organising a creditors’ committee in practice is not without some complexities and may be rather time-consuming and costly. For these reasons, jurisdictions like Austria, Germany, Hungary, Italy, Netherlands, Poland and Sweden only allow for the establishment of one committee, which may be optional in smaller cases (Austria, France, Germany). Only a few jurisdictions do not allow for such a committee at all, for instance Latvia, while some like France provide for more than one committee in one case.
The principal rule for establishing a creditors’ committee is expressed in Article 44(1) of the CAD 2026/799, where is it said that member states shall ensure that a creditors’ committee is established after the opening of insolvency proceedings. This happens if the general meeting of creditors so decides or requests or, where national law does not provide for a general meeting of creditors, if creditors so request in accordance with national law. The committee’s composition must, as far as possible, fairly reflect the different interests of creditors, including “cross-border” creditors. Its functions include monitoring, information, consultation and participation in major decisions, without subordinating the insolvency practitioner’s role.
Under the rules of the Directive, member states may not establish a creditors’ committee in “smaller” cases. Article 44(3) of the CAD 2026/799 says member states may provide that a creditors’ committee is not established where, “due to circumstances related to the nature and scope of the debtor’s business, they determine that the burdens of its establishment would outweigh the benefits.” The criteria that member states must include in their legislation for when that option may be exercised include (a) the low economic relevance of the insolvency estate, (b) low number of creditors, (c) the small size of the debtor or (d) “the negative effect on the financial situation of the debtor caused by possible delays in the establishment of a creditors’ committee”. These criteria must be clearly set out in the member states’ national law.
Why is a “creditors’ committee” necessary? The Directive provides, as justification, in recital 64, paragraph 1, that: “It is important to ensure that creditors are appropriately involved in insolvency proceedings so that their interests can be adequately considered”. The reason, according to recital 64, paragraph 2, is that creditors’ committees allow for better involvement of creditors in insolvency proceedings, where creditors would otherwise be prevented from doing so individually due to (a) limited resources, (b) the economic significance of their claims, or (c) the lack of geographic proximity.
The Directive contains several options for member states concerning when creditors’ committees might or might not be established. One of them is Article 1(5) of the CAD 2026/799, which provides that Title VI on creditors’ committees shall apply only “to debtors that are legal persons”. The justification is that the legislative creditors’ committee mechanism is made available because of the institutional complexity of legal persons as a debtor. These are not well aligned with the simpler context of natural-person business insolvency.
Another option is Article 1(6) of the CAD 2026/799, providing that member states may decide to apply Title VI only to debtors that are “large undertakings” within the meaning of Article 3(4) of Directive 2013/34/EU on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings. To clarify: paragraph 4, Article 3 of this Directive (“categories of undertakings and groups”) provides that large undertakings shall be undertakings which on their balance sheet dates exceed at least two of the three following criteria: (a) balance sheet total of €20,000,000; (b) net turnover of €40,000,000, and (c) an average number of employees during the financial year of 250.
A few words on when member states can establish a creditors’ committee. Member states shall ensure that a creditors’ committee is established after the opening of insolvency proceedings, but Article 44(2) contains an option for them to provide that a creditors’ committee can be established before the opening of insolvency proceedings in accordance with national law. Establishing the creditors’ committee “after” the opening of insolvency proceedings is the common approach in member states, e.g. under the German Gläubigerausschuss rules, the Italian comitato dei creditori framework or the Dutch schuldeiserscommissie. But a creditors’ committee “before” the opening of insolvency proceedings?
To understand the division, it must be clear what an “insolvency proceeding” means in Article 44(1). Does the term include “preventive restructuring frameworks” like the StaRUG for Germany and WHOA process in the Netherlands?
The answer begins with Article 1(2) of the CAD 2026/799, which provides that titles II (avoidance actions), III (asset tracing) and VI (creditors’ committees) apply to collective proceedings, as defined in Article 2 (point (1)) of the recast Insolvency Regulation (EIR 2015) “… which are based on laws relating to insolvency, with the exception of preventive restructuring procedures”.
The term “preventive restructuring procedures” is not defined, neither in CAD 2026/799, nor in the EIR 2015. The term “restructuring” itself, however, has been defined. To get a grip on the phenomenon, Article 2(1)(1) of the Preventive Restructuring Directive (PRD 2019/1023) defines “restructuring” and provides that it “… means measures aimed at restructuring the debtor’s business that include changing the composition, conditions or structure of a debtor’s assets and liabilities or any other part of the debtor’s capital structure, such as sales of assets or parts of the business and, where so provided under national law, the sale of the business as a going concern, as well as any necessary operational changes, or a combination of those elements”.
The idea seems to be that the avoidance regime, the asset tracing mechanism and the creditors’ committee architecture operate within formal insolvency proceedings, but not within the preventive frameworks established under the national implementation rules of the basis of PRD 2019/1023. Is a distinction being made between “insolvency” and “restructuring”? Or is “restructuring” a part of “insolvency law”, and is “preventive restructuring” merely excluded from the mentioned topics for pragmatic reasons?
As a reminder, under the EIR 2015 “collective proceedings” are covered by the recast regulation. These collective proceedings “… should include all or a significant part of the creditors” to whom a debtor owes “… all or a substantial proportion’ of the debtor’s outstanding debts provided that the claims of those creditors who are not involved in such proceedings remain unaffected” (see recital 14). Is the conclusion therefore that “public” restructuring plans, listed in Annex A are “insolvency proceedings”, and should have a creditor’s committee? Or are these restructuring frameworks excluded from having a creditors’ committee on the basis of the uncertain drafting of Article 1(2) of the CAD 2026/799?
The question also remains what is meant in Article 44(2) of the CAD 2026/799, that member states may provide that a creditors’ committee can be established “before” the opening of insolvency proceedings in accordance with national law? Does it mean that, in a case where a restructuring plan fails and leads to an “insolvency proceeding”, its established creditors committee should be aligned with the rules of Title VI? In formal liquidation proceedings one may expect that the composition of a committee should change because of the differences in interest to take into account. In recital 64, subparagraph 6, we read that member states are not prevented from extending the application of the provisions concerning the establishment of creditors’ committees to preventive restructuring proceedings. The recital is meaningless, as if a member state wishes to provide for a creditors’ committees in a preventive restructuring case it can regulate for it. Given the restrained role of the legislator regarding the design of the preventive restructuring framework, it is also not obvious to vest such a power in member states. Probably the term “before” relates to something else.
Combining Article 44(2) and the option in recital 64, subparagraph 6, the option of pre-opening establishment of a creditors’ committee seems to allows for committees to be established during an interim period prior to formal opening, such as between the filing of a request for the opening of insolvency proceedings and the formal opening of proceedings, which can take several weeks. Member states who already have the “before” opening facility may use Article 44(2) and may codify the existing pre-opening creditor involvement. The legislative option leaves open the possibility that a member state may decline.
A last remark. Article 45(3) is clear: “Member States shall ensure that cross-border creditors are eligible for appointment to creditors’ committees”.
What’s a cross-border creditor? Does “cross-border” include creditors with their COMI outside of the EU? Recital 67, subparagraph 3, comes to the rescue by providing that member states should ensure that creditors are fairly represented within creditors’ committees and that “cross-border creditors that are resident in a Member State other than that in which the insolvency proceedings are opened are not precluded from participating in creditors’ committees”. If this is indeed the intention, this recital should have been included in Article 45 itself. Or is “cross-border” popular jargon for “foreign” creditor in the meaning of Article 2(12) of the EIR 2015, where “foreign creditor” means a creditor which has its habitual residence, domicile or registered office in a member state other than the state of the opening of proceedings, including the tax authorities and social security authorities of member states. I would have preferred this definition (or an amended one) to be included in the text of the Directive.
Member states still have close to three years to figure out the queries raised. In the meantime, confusion continues – often as a result of the EU leaving terms that touch the core of the Directive such as “insolvency”, “harmonisation” and “preventive restructuring”, undefined.
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 June 19, 2026. See www.globalrestructuringreview.com.