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21 Amendments of Heinz K. BECKER related to 2016/0359(COD)

Heinz K. BECKER

Proposal for a directive
Recital 1

(1) The objective of this Directive is 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 and procedures on preventive restructuring, insolvency and second chance. This Directive aims at removing such obstacles by ensuring that viable enterprises in financial difficulties have access to effective national preventive restructuring frameworks which enable them to continue operating; that creditors receive a maximised dividend; that honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time; and that the effectiveness of restructuring, insolvency and discharge procedures is improved, in particular with a view to shortening their length.

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 19

(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement could be general, that is to say affecting all creditors, or targeted towards individual creditors. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 20

(20) To ensure that the creditors do not suffer detriment, the stay should not be granted or, if granted, should not be prolonged or should be lifted when creditors are unfairly prejudiced by the stay of enforcement. In establishing whether there is unfair prejudice to creditors, judicial or administrative authorities may take into account whether the stay would preserve the overall value of the estate, whether the debtor acts in bad faith or with the intention of causing prejudice or generally acts against the legitimate expectations of the general body of creditors. A single creditor or a class of creditors would be unfairly prejudiced by the stay if for example their claims would be made substantially worse-off as a result of the stay than if the stay was not granted, or if the creditor is put more at a disadvantage than other creditors in a similar position.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 21

(21) Creditors to which the stay applies should also not be allowed to withhold performance, terminate, accelerate or in any other way modify executory contracts during the stay period, provided the debtor continues to comply with its existing obligations under such contracts. Early termination would endanger the ability of the business to continue operating during restructuring negotiations, especially when it concerns contracts for essential supplies such as gas, electricity, water, telecoms and card payment services. However, in order to protect the legitimate interests of creditors and to ensure the least disruption to the operation of creditors in the supply chain, the stay should only apply in respect of the claims which arose before the stay was granted. In order to achieve a successful restructuring, the debtor should pay in the ordinary course of business claims of and owed to creditors unaffected by the stay and the claims of creditors affected by the stay that arise after the stay is granted.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 22

(22) When a debtor enters an insolvency procedure, some suppliers may have contractual rights entitling them to terminate the supply contract solely on account of the insolvency (known as ipso facto clauses). The same may be true when a debtor applies for preventive restructuring measures. Where such clauses are invoked when the debtor is merely negotiating a restructuring plan or requesting a stay of enforcement or in connection with any event connected with the stay, early termination may have a negative impact on the debtor's business and the successful rescue of the business. Therefore, when the stay is granted by a judicial or administrative authority, it is necessary that creditors to which the stay applies are not allowed to invoke ipso facto clauses which make reference to negotiations on a restructuring plan or a stay or any similar event connected to the stay.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 23

(23) Creditors should have the right to challenge the stay once it has been granted by a judicial or administrative authority. When the stay is no longer necessary with a view to facilitating the adoption of a restructuring plan, for example because it is clear that there is a lack of support for the restructuring from a majority of creditors as required by national law, creditors should also be able to ask that stay be lifted.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 26

(26) Requisite majorities should be established by national law to ensure that a minority of affected parties in each class cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that parties have a say on the adoption of restructuring plans proportionate to the stakes they have in the business, the ~~required~~ majority should be based both on the ~~amount~~number of creditor class members with voting rights and on the majority of the total volume of the creditors' claims or equity holders' interests in any given class.

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 28

(28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 29

(29) While shareholders' or other equity holders' legitimate interests should be protected, Member States should ensure that shareholders cannot unreasonably block the adoption of restructuring plans which would bring the debtor back to viability. For example, the adoption of a restructuring plan should not be conditional on the agreement of the out-of-the-money equity holders, namely equity holders who, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied. Member States can deploy different means to achieve this goal, for example by not giving equity holders the right to vote on a restructuring plan. However, where equity holders have the right to vote on a restructuring plan, a judicial or administrative authority should be able to confirm the plan notwithstanding the dissent of one or more classes of equity holders, through a cross-class cram down mechanism. More classes of equity holders may be needed where different classes of shareholdings with different rights exist. Equity holders of small and medium enterprises who are not mere investors but are the owners of the firm and contribute to the firm in other ways such as managerial expertise may not have an incentive to restructure under such conditions. For this reason, the cross-class cram-down mechanism should remain optional for the plan proposer.deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Recital 32

(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan.

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 2 – paragraph 1 – point 4

~~4. ‘stay of individual enforcement actions' means a temporary suspension of the right to enforce a claim by a creditor against a debtor, ordered by a judicial or administrative authority;~~deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 2 – paragraph 1 – point 7

7. ‘cram-down of dissenting creditors' means the confirmation by a judicial or administrative authority of a restructuring plan that has the support of a majority in value of creditors or a majority in value in each and every class of creditors over the dissent of a minority of creditors or the dissent of a minority of creditors within each class;deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 2 – paragraph 1 – point 8

~~8. ‘a cross-class cram-down' means the confirmation by a judicial or administrative authority of a restructuring plan over the dissent of one or several affected classes of creditors;~~deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 6

~~[...]~~deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 7

~~[...]~~deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 9 – paragraph 4

(4) A restructuring plan shall be deemed to be adopted by affected parties, provided that a majority in the amount of their claims or interests and in terms of the number of members with voting rights is obtained in each and every class. Member States shall lay down the required majorities for the adoption of a restructuring plan, which shall be in any case not higher than 75% in the amount of claims or interests in each class.

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 11

Klassenübergreifender Cram-down (1) restructuring plan which is not approved by each and every class of affected parties may be confirmed by a judicial or administrative authority upon the proposal of a debtor or of a creditor with the debtor's agreement and become binding upon one or more dissenting classes where the restructuring plan: (a) 10(2); (b) class of affected creditors other than an equity-holder class and any other class which, upon a valuation of the enterprise, would not receive any payment or other consideration if the normal ranking of liquidation priorities were applied; (c) rule. (2) minimum number of affected classes required to approve the plan laid down in point (b) of paragraph (1).Artikel 11 deleted Member States shall ensure that a fulfils the conditions in Article has been approved by at least one complies with the absolute priority Member States may vary the

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 19 – paragraph 1

(1) Member States shall ensure that over-indebted entrepreneurs may be fully discharged of their debts in accordance with this Directive and that creditors can receive maximised dividends.

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 20 – paragraph 1 – point a

(a) the date on which the judicial or administrative authority decided on the application to open such a procedure, in the case of a procedure ending with the liquidation of an over-indebted entrepreneur' s assets; ordeleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 20 – paragraph 1 – point b

~~(b) the date on which implementation of the repayment plan started, in the case of a procedure which includes a repayment plan.~~deleted

2017/06/02
Committee: EMPL

Heinz K. BECKER

Proposal for a directive
Article 26 – paragraph 3

(3) Where practitioners in the field of restructuring, insolvency and second chance are appointed by the judicial or administrative authority, Member States shall ensure that the criteria concerning the manner in which the judicial or administrative authority selects such a practitioner are clear and transparent. In selecting a practitioner in the field of restructuring, insolvency and second chance for a particular case, due consideration shall be given to the practitioner's experience and expertise. ~~Where appropriate, the debtors and creditors shall be consulted in the selection of the practitioner.~~

2017/06/02
Committee: EMPL