Activities of António MARINHO E PINTO related to 2016/0359(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU PDF (1 MB) DOC (245 KB)
Amendments (28)
Amendment 88 #
Proposal for a directive
Recital 1
Recital 1
1. The objective of this Directive is to contribute to the proper functioning of the internal market and 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 honest over indebted entrepreneurs have a second chance after a full discharge of debt after a reasonable period of time;
Amendment 95 #
Proposal for a directive
Recital 6
Recital 6
6. All these differences translate into additional costs for investors when assessing the risks of debtors entering financial difficulties in one or more Member States and the costs of restructuring companies having establishments, creditors or assets in other Member States, such as is most clearly the case of restructuring international groups of companies. Many investors mention uncertainty about insolvency rules or the risk of lengthy or complex insolvency procedures in another country as a main reason for not investing or not entering into a business relationship with a counterpart outside their own country. This legal uncertainty acts as a disincentive for cross-border investment, which harms the proper functioning of the internal market.
Amendment 96 #
Proposal for a directive
Recital 7
Recital 7
7. Those differences lead to uneven conditions for access to credit and to uneven recovery rates in the Member States. A higher degree of harmonisation in the field of restructuring, insolvency and second chance is thus indispensable for a well-functioning single market in general and for a working Capital Markets Union in particular. At the same time, a greater level of harmonisation would contribute even more towards common European commercial legislation.
Amendment 101 #
Proposal for a directive
Recital 13
Recital 13
13. In particular small and medium sized enterprises, which represent 99% of all businesses in the EU, should benefit from a more coherent approach at Union level, since they do not have the necessary resources to cope with high restructuring costs and to take advantage of the more efficient restructuring procedures in some Member Statare disproportionately more likely to be taken into liquidation rather than restructuring and they have to bear costs that are twice as high as those faced by larger companies for cross- border procedures, compared with domestic procedures. Small and medium enterprises, especially when facing financial difficulties, often do not have the necessary resources to hire professional advice,cope with high restructuring costs and take advantage of theref more early warning tools should be put fficient restructuring place to alert debtors to the urgency to actrocedures in some Member States. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available onlineelectronically. Debtors should be able to use and adapt them to their own needs and to the specificities of their business. Taking into account their limited resources for hiring professional experts, early warning tools should be put in place to warn debtors of the urgent need to act quickly.
Amendment 145 #
Proposal for a directive
Recital 40
Recital 40
40. Member States should also ensure that the practitioners in the field of restructuring, insolvency and second chance which are appointed by judicial or administrative authorities are properly trained and supervised in the carrying out of their tasks, that they are appointed in a transparent manner with due regard to the need to ensure efficient procedures and that they perform their tasks with integrity. Practitioners, with a view to the main objective of restoring the viability of the business. Practitioners should be rescuers not liquidators and they should also adhere to voluntarya codes of conduct aiming at ensurprofessional conduct with the aim of guaranteeing an appropriate level of qualification and training, and ensuring the transparency of the duties of such practitioners and the rules for determining their remuneration, the taking up of professional indemnity insurance cover and the establishment of oversight and regulatory mechanisms which should include an appropriate and effective regime for sanctioning those who have failed in their duties. Such standards may be attained without the need in principle to create new professions or qualifications.
Amendment 146 #
Proposal for a directive
Recital 42
Recital 42
42. It is important to gather reliable data on the performance of restructuring, insolvency and discharge procedures in order to monitor the implementation and application of this Directive. Therefore Member States should intensify their efforts to collect and, aggregate data that isand supply this data to the Commission, whereby it should be sufficiently granular to enable an accurate assessment of how the Directive works in practice.
Amendment 147 #
Proposal for a directive
Recital 44 a (new)
Recital 44 a (new)
44a. The Commission shall review the application of this Directive and shall present a report to the European Parliament and the Council, possibly accompanied by a proposal for new legislative acts to strengthen the legal framework on restructuring, insolvency, discharge and second chance procedures. The assessment should not focus solely on the material recovery rate but also on solvency and restoring viability. Particular attention should be paid to the impact on SMEs.
Amendment 160 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'insolvency procedure' means a collective insolvency procedure which entails a partial or total divestment of the debtor and the appointment of a liquidaton insolvency practitioner;
Amendment 163 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
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 debtoror group of creditors against a debtor or group of debtors, ordered by a judicial or administrative authority;
Amendment 175 #
Proposal for a directive
Article 2 – paragraph 1 – point 11
Article 2 – paragraph 1 – point 11
(11) 'new financing' means any new funds, including the provision of credit, whether provided by an existing or a new creditor, that are necessary to implement a restructuring plan that are agreed upon in that restructuring plan and confirmed subsequently by a judicial or administrative authority;
Amendment 176 #
Proposal for a directive
Article 2 – paragraph 1 – point 12
Article 2 – paragraph 1 – point 12
(12) 'interim financing' means any funds, including the provision of credit, whether provided by an existing or new creditor, that is reasonably and immediately necessary for the debtor's business to continue operating or to survive, or to preserve or enhance the value of that business pending the confirmation of a restructuring plan;
Amendment 182 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point a a (new)
Article 2 – paragraph 1 – point 15 – point a a (new)
(aa) ‘repayment plan’ means a programme of payments of specified amounts on specified dates by a debtor to creditors as part of a restructuring plan;
Amendment 184 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point b a (new)
Article 2 – paragraph 1 – point 15 – point b a (new)
(ba) 'viable' means able to provide an appropriate projected return on capital after having covered all its costs, including depreciation and financial charges.
Amendment 188 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall ensure that debtors and entrepreneurs have access todevelop early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur, the entrepreneur and the employees’ representative or the employees themselves, where they have no representative, the need to act as a matter of urgency.
Amendment 231 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Paragraph 2 shall not apply to workers' outstanding claims except if and to the extent that Member States ensure by other meanpossible rights to compensation. Employees’ wages and other benefits tshat the payment of such claims is guaranteed at a level of protection at least equivalent to that provided for under the relevant national law transposing Directive 2008/94/ECll be paid promptly and in full.
Amendment 235 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Member States shall limit tThe duration of the stay of individual enforcement actions to a maximum period of no more thanshall be fixed by agreement between the parties directly involved at between two and six months, which may be extended four monthsan identical period.
Amendment 239 #
Proposal for a directive
Article 6 – paragraph 5 – point b a (new)
Article 6 – paragraph 5 – point b a (new)
(ba) the obligation for the debtor to file for insolvency under national law arose during the period of the stay of individual enforcement actions.
Amendment 249 #
Proposal for a directive
Article 6 – paragraph 9
Article 6 – paragraph 9
9. Member States shall ensure that, where the judicial or administrative authority may determine that an individual creditor or a single class of creditors is or would be unfairly prejudiced by a stay of individual enforcement actions, and as a consequence the judicial or administrative authority may decide not to grant the stay of individual enforcement actions or may lift a stay of individual enforcement actions already granted in respect of that creditor or class of creditors, at the request of the creditors concerned.
Amendment 258 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Member States shall ensure that, during the stay period, creditors to which the stay applies may not withhold performance or terminate, accelerate or in any other way modify executory contracts to the detriment of the debtor forin respect of debts that came into existence prior to the stay. Member States may limit the application of this provision to essential contracts which are necessary for the continuation of the day-to-day operation of the business.
Amendment 262 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Member States shall ensure that nothing prevents the debtor from paying in the ordinary course of business claims of or owed to unaffected creditors and the claims of affected creditors that arise after the stay is granted and which continue to arise throughoutt any time during the period of the stay.
Amendment 264 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Member States shall require restructuring plans submitted forto be confirmationed by a judicial or administrative authority toand shall guarantee that plans are notified for assessment to employees’ representatives or to the debtors’ employees themselves, where they have no representative, for their opinion. Restructuring plans shall contain at least the following information:
Amendment 274 #
Proposal for a directive
Article 8 – paragraph 1 – point g
Article 8 – paragraph 1 – point g
(g) an opinion or reasoned statement by the person responsible for proposing the restructuring plan which explains why the business is viable, how implementing the proposed plan is likely to result in the debtor avoiding insolvency and restore its long-term viability, and states any anticipated necessary pre-conditions for its success. Member States may provide for the option to seek validation for such an opinion or reasoned statement from an external expert, such as an insolvency practitioner or professional.
Amendment 279 #
Proposal for a directive
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. Member States shall ensure that the entitlements and claims of employees are not affected by the restructuring plans and that occupational pension funds or schemes remain intact, since they do not form part of the business’s property that is covered by the restructuring plans.
Amendment 285 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States shall ensure that affected parties are treated in separate classes which reflect the class formation criteria under national law. Classes shall be formed in such a way that each class comprises claims or interests with rights that are sufficiently similar to justify considering the members of the class a homogenous group with commonality of interest. As a minimum, secured and unsecured claims shall be treated in separate classes for the purposes of adopting a restructuring plan. Member States mayshall also provide that workers are treated in a separate class of their ownfor employees and equity holders to be treated in separate classes of their own, as preferential creditors, including in respect of any debts owed to the State. Employees’ representatives shall be informed and consulted, shall be able to propose alternative solutions that guarantee the maintenance of jobs, and shall be able to request intervention by an external expert who would draw up alternative proposals, with the same status and consideration as any other plan or proposal.
Amendment 353 #
Proposal for a directive
Article 22 – paragraph 4 a (new)
Article 22 – paragraph 4 a (new)
4a. With regard to paragraph 1(a), the Commission shall provide guidelines for Member States to establish a set of criteria in order to define what constitutes dishonest action or bad faith in this context.
Amendment 370 #
Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g a (new)
Article 29 – paragraph 1 – subparagraph 1 – point g a (new)
(ga) the number of debtors who, after having undergone a procedure referred to in point (a)(iii), launched a new business;
Amendment 372 #
Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g b (new)
Article 29 – paragraph 1 – subparagraph 1 – point g b (new)
(gb) the number of job losses, transfer of part or whole of the business, and impact of restructuring agreements on the employment situation;
Amendment 381 #
Proposal for a directive
Article 33 – paragraph 1
Article 33 – paragraph 1
No later than [5 years from the date of start of application of implementing measures] and every 7 years thereafter, the Commission shall review the application of this Directive and shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, including on whether additional measureaccompanied, if possible, by a proposal for new legislative acts to consolidate and strengthen the legal framework on restructuring, insolvency and second chance should be considered. That review shall not focus solely on the material recovery rate but also on solvency and restoring viability. Particular attention shall be paid to the impact on SMEs.