Activities of Philippe BOULLAND related to 2011/2006(INI)
Shadow opinions (1)
OPINION with recommendations to the Commission on insolvency proceedings in the context of EU company law
Amendments (23)
Amendment 5 #
Draft opinion
Paragraph 3
Paragraph 3
3. Is concerned, however,Emphasises that greater harmonisation may have a negatof insolvency proceedings will promote equality, give icompact on Member States’ competitiveness and, therefore, on potential employment opportunitiesnies less reason to engage in ‘insolvency tourism’ and reduce the risk of their being placed in insolvency in one country, thus affording employees greater protection;
Amendment 8 #
Draft opinion
Paragraph 4
Paragraph 4
4. Emphasises that employment law is chiefly the responsibility of the Member States and that any debate surrounding but, in relation to insolvency, points out nonethe lestablishment of common rules on insolvency must not include any reference to common rules os that, in the context of increasing globalisation and indeed of the economic crisis, the harmonisation of proceedings needs to be considered from an employment -law perspective;
Amendment 9 #
Motion for a resolution
Recital H a (new)
Recital H a (new)
Ha. whereas a legal framework should be established that better suits cases of companies being temporarily insolvent,
Amendment 13 #
Draft opinion
Paragraph 5
Paragraph 5
5. Notes with regret the increasing number of workers affected by insolvency proceedings which can be attributed to the economic crisis, and notes that systemically-relevant cross-border financial institutions play a crucial role in this area;
Amendment 20 #
Draft opinion
Paragraph 6
Paragraph 6
6. Takes the view that the objective of Directive 2008/94/EC has met its objective ofis to ensuringe a minimum degree of protection for employees in the event of insolvency, whilst maintaining adequate flexibility for Member States;
Amendment 20 #
Motion for a resolution
Annex – part 1 – point 1.1 – indent 2 a (new)
Annex – part 1 – point 1.1 – indent 2 a (new)
– all companies can start insolvency proceedings in cases where insolvency is temporary, in order to protect themselves;
Amendment 22 #
Draft opinion
Paragraph 6 a (new)
Paragraph 6 a (new)
6a. Considers the overly strict definition of insolvency – particularly with regard to temporary and final insolvency – to be regrettable in cases where the creditors are employees;
Amendment 23 #
Draft opinion
Paragraph 6 b (new)
Paragraph 6 b (new)
6b. Considers that the term ‘creditor’ needs to be defined in the light of Article 12(b) of Directive 2008/94/EC so as not to exclude those with a minority share in the company; calls, too, for the date on which the employer becomes insolvent to be taken into account in decisions to refuse or reduce the liability in cases where the employee, on his or her own or together with his or her close relatives, was the owner of an essential part of the employer’s undertaking or business and had a considerable influence on its activities;
Amendment 26 #
Motion for a resolution
Annex – part 1 – point 1.2 – indent -1 (new)
Annex – part 1 – point 1.2 – indent -1 (new)
Amendment 28 #
Draft opinion
Paragraph 7
Paragraph 7
7. Does not consider it necessary to set a minimum figure for the payments made by the guarantee institution at European levelConsiders it necessary to set a compensatory minimum figure for the payments made by the guarantee institution at national level, to be calculated on the basis of either the minimum wage in the country of origin of the contract of employment, or a monthly amount corresponding to the average wage paid over the last six months; considers, in any event, that the payment made by the guarantee fund must: (a) be in accordance with the principle of equality and non-discrimination; (b) exclude bonuses; (c) include social security contributions; (d) include benefits in kind; (e) be associated with provision for swift effective procedures in the event of disputes involving the guarantee institution; considers further that the concept of ‘outstanding claims’ will have to include redundancy payments which the debtor was unable to meet, that the ceiling for such payments must not be less than an amount calculated in accordance with the criteria set out above, and that it is also necessary to harmonise the timeframe for the relevant proceedings (maximum one year) and intervention by the guarantee funds to enable the payments to be made, as well as the period in which the sums in question are payable (a year prior to and a year following the opening of the proceedings, if the claim covers that period);
Amendment 28 #
Motion for a resolution
Annex – part 1 – point 1.4 – indent 2 a (new)
Annex – part 1 – point 1.4 – indent 2 a (new)
– when main insolvency proceedings are opened, the liquidator should be empowered for a period of six months to decide on the protection of assets with retroactive effect in cases where companies have moved capital;
Amendment 29 #
Motion for a resolution
Annex – part 1 – point 1.4 – indent 2 b (new)
Annex – part 1 – point 1.4 – indent 2 b (new)
– the liquidator must be empowered to use appropriate priority procedures to recover monies owing to companies, in advance of settlement with creditors and as an alternative to transfers of claims;
Amendment 31 #
Draft opinion
Paragraph 8
Paragraph 8
8. Highlights the changing nature of employment contracts across the EU and the diversity of such contracts within Member States; considers it counterproductivurrently impossible, therefore, to seek to define ‘employee’ at European level;
Amendment 35 #
Draft opinion
Paragraph 9
Paragraph 9
9. Notes that the Member States are competent to define ‘remuneration’ and ‘pay’, provided that they adhere to the general principles of equality and non- discrimination. between workers, with the result that any situation of insolvency potentially prejudicial to the latter should be taken into account for purposes of compensating them in accordance with the social objective of Directive 2008/94/EC and with threshold levels of compensation to be determined;
Amendment 36 #
Motion for a resolution
Annex – part 2 – point 2.4 – paragraph 1 a (new)
Annex – part 2 – point 2.4 – paragraph 1 a (new)
In the event of main and secondary insolvency proceedings being opened, it calls for the timeframes for these procedures to be harmonised and shortened.
Amendment 39 #
Draft opinion
Paragraph 9 a (new)
Paragraph 9 a (new)
9a. Calls for the transfer of information between the authorities responsible for managing business and company registers in all the Member States to be made compulsory, with a view to protecting employees’ rights;
Amendment 39 #
Motion for a resolution
Annex – part 4 – paragraph 1 a (new)
Annex – part 4 – paragraph 1 a (new)
Prior to the creation of an EU insolvency register, transfer of information between the authorities responsible for managing business and company registers in all the Member States should be made compulsory in order to afford creditors legal certainty.
Amendment 43 #
Draft opinion
Paragraph 9 b (new)
Paragraph 9 b (new)
9b. Calls on the guarantee institutions to act as guarantors in the case of insolvency proceedings opened in situations arising exclusively from delays experienced by company in relation to payments or debt collection;
Amendment 44 #
Draft opinion
Paragraph 9 c (new)
Paragraph 9 c (new)
9c. Demands that, when main insolvency proceedings are opened against an employer which is in debt, the liquidator be empowered for a period of six months to declare assets to be protected with retroactive effect in cases where companies have moved capital; also wants liquidators to be empowered to use appropriate priority procedures for the recovery of monies owing to companies, in advancer of settlement with creditors and as an alternative to transfers of claims;
Amendment 45 #
Draft opinion
Paragraph 9 d (new)
Paragraph 9 d (new)
9d. Considers that the concept of ‘abuse’ needs to be defined in accordance with the case law of the Court of Justice of the European Union as ‘any abusive practice that is prejudicial to a guarantee institution inasmuch as it artificially creates a pay claim and thus unlawfully triggers a liability for the institution’, having regard to the date on which an employer becomes insolvent;
Amendment 46 #
Draft opinion
Paragraph 9 e (new)
Paragraph 9 e (new)
9e. Calls for the timeframes for main and secondary proceedings to be harmonised and shortened in order to protect paid employees and afford them legal certainty;
Amendment 47 #
Draft opinion
Paragraph 9 f (new)
Paragraph 9 f (new)
9f. Calls for the dates for determining outstanding claims to be fixed on the basis that the date of the decision on the application to open insolvency proceedings is the date on which an employer becomes insolvent;
Amendment 48 #
Draft opinion
Paragraph 9 g (new)
Paragraph 9 g (new)
9g. Calls for the degree of harmonisation of insolvency proceedings to be not less than that provided for in Regulation No 1346/2000 and Directive 2008/94/EC;