52 Amendments of Maria ARENA related to 2016/0359(COD)
Amendment 21 #
Proposal for a directive
Recital 1
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 while contributing as fully as they would in the event of liquidation to satisfying the creditors’ claims; 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.
Amendment 26 #
Proposal for a directive
Recital 1
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 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. Preventive solutions, sometimes called ‘pre-pack’, are a feature of a growing trend in modern insolvency law towards favouring approaches which, unlike the traditional approach of liquidating a business which is in crisis, have the aim of restoring it to health or at least salvaging those of its units that are still economically viable. That practice is praiseworthy and often helps to preserve jobs.
Amendment 30 #
Proposal for a directive
Recital 2
Recital 2
(2) Restructuring should enable enterprises in financial difficulties to continue business in whole or in part, by changing the composition, conditions or structure of assets and liabilities or of their capital structure, including by sales of assets or parts of the business, if those operations, like the liquidation of assets, also contribute to the satisfaction of creditors’ claims. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should even maximise the total value to creditors in comparison with that which they would receive in the event of the liquidation of assets, owners and the economy as a whole and should prevent unnecessary job losses and losses of operations, knowledge and skills. They should also prevent the build-up of non- performing loans. In the restructuring process the rights of all parties involved should be protected, including those of workers. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.
Amendment 36 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) Workers’ representatives should be given a whistleblower role with regard to the state of health of their company. In addition, the use of expert evaluations as part of restructuring plans should be guaranteed and promoted, particularly evaluations relevant to buy-outs of companies by their employees.
Amendment 48 #
Proposal for a directive
Recital 6
Recital 6
(6) All these differences translate into additional costs for investors or banks when assessing the risks of debtors entering financial difficulties in one or more Member States or when assessing the risks associated with taking over viable operations run by undertakings in difficulty 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.
Amendment 59 #
Proposal for a directive
Recital 10
Recital 10
(10) Regulation (EU) 2015/848 of the European Parliament and of the Council62 deals with issues of jurisdiction, recognition and enforcement, applicable law and cooperation in cross-border insolvency proceedings as well as with the interconnection of insolvency registers. Its scope covers preventive procedures initiated by a public decision which promote the rescue of an economically viable debtor as well as procedures which give a second chance to entrepreneurs. However, Regulation (EU) 2015/848 does not tackle the discrepancies between those procedures in national law and does not concern confidential procedures. Furthermore, an instrument limited to cross-border insolvencies only would not remove all obstacles to free movement, nor would it be feasible for investors to determine in advance the cross-border or domestic nature of the future potential financial difficulties of the debtor. There is a need therefore to go beyond matters of judicial cooperation and to establish substantive minimum standards. __________________ 62 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ L 141, 5.6.2015, p. 19).
Amendment 61 #
Proposal for a directive
Recital 11
Recital 11
(11) It is necessary to lower the costs of restructuring for both debtors and creditors, who often bear those costs indirectly because of the reduction of their reimbursement. Therefore the differences which hamper the early restructuring of viable enterprises in financial difficulties and the possibility of a second chance for honest entrepreneurs should be reduced. That should bring greater transparency, legal certainty and predictability in the Union. Also, it should maximise the returns to all types of creditors and investors and encourage cross-border investment. Greater coherence should also facilitate the restructuring of groups of companies irrespective of where the members of the group are located in the Union.
Amendment 67 #
Proposal for a directive
Recital 12
Recital 12
(12) Removing the barriers to effective restructuring of viable enterprises in financial difficulties contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. In order to attain that objective and to preserve employment and operations, it is necessary to enable these procedures to be conducted in whole or in part in a confidential framework, which in particular requires the rights of workers to be specified better. Facilitating a second chance for entrepreneurs avoids their exclusion from the labour market and enables them to restart entrepreneurial activities, drawing lessons from past experience. Finally, reducing the length of restructuring procedures would result in higher recovery rates for creditors as the passing of time would normally only result in a further loss of value for the enterprise. Moreover, efficient insolvency frameworks would enable a better assessment of the risks involved in lending and borrowing decisions and smooth the adjustment for over-indebted enterprises, minimizing the economic and social costs involved in their deleveraging process.
Amendment 70 #
Proposal for a directive
Recital 13
Recital 13
(13) In particular small and medium sized enterprises 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 States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, mconfidential procedures which minimise loss of value, jobs and creditors’ dividends should be possible. Model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business.
Amendment 72 #
Proposal for a directive
Recital 13
Recital 13
(13) In particular small and medium sized enterprises 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 States. Small and medium enterprises, especially when facing financial difficulties, often do not have the resources to hire professional advice, therefore early warning tools should be put in place to alert debtors to the urgency to act. In order to help such enterprises restructure at low cost, model restructuring plans should also be developed nationally and made available online. Debtors should be able to use and adapt them to their own needs and to the specificities of their business. It should be possible for the debtor to find ad hoc and special solutions with third parties or creditors, either by reducing debts to all or most of the creditors or by surrendering whatever operations are viable, contributing to the satisfaction of creditors’ claims better than by means of the liquidation of assets, while preserving as many jobs as possible.
Amendment 81 #
Proposal for a directive
Recital 18
Recital 18
(18) To promote efficiency and reduce delays and costs, national preventive restructuring frameworks should include flexible procedures limiting the involvement of judicial or administrative authorities to where it is necessary and proportionate in order to safeguard the interests of creditors and other interested parties likely to be affected. To avoid unnecessary costs and reflect the early nature of the procedure, debtors should in principle be left in control of their assets and the day-to-day operation of their business. The appointment of a restructuring practitioner, whether a mediator supporting the negotiations of a restructuring plan or an insolvency practitioner supervising the actions of the debtor, should not be mandatory in every case, but made on a case-by-case basis depending on the circumstances of the case or on the debtor's specific needs. Furthermore, there should not necessarily be a court order for the opening of the restructuring process which may be informal as long as the rights of third parties are not affected. Nevertheless, a degree of supervision should be ensured when this is necessary to safeguard the legitimate interests of one or more creditors or another interested party. This may be the case, in particular, when a general stay of individual enforcement actions is granted by the judicial or administrative authority or where it appears necessary to impose a restructuring plan on dissenting classes of creditors or if all or part of the business is transferred to another undertaking.
Amendment 87 #
Proposal for a directive
Recital 20
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 as it could be realised by means of liquidation or would preserve the dividend creditors would receive, 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.
Amendment 97 #
Proposal for a directive
Recital 25
Recital 25
(25) To ensure that rights which are substantially similar are treated equitably and that restructuring plans can be adopted without unfairly prejudicing the rights of affected parties, affected parties should be treated in separate classes which reflect the class formation criteria under national law. As a minimum, secured and unsecured creditors should always be treated in separate classes. National law may provide that secured claims may be divided into secured and unsecured claims based on collateral valuation. National law may also stipulate specific rules supporting class formation where non-diversified or otherwise especially vulnerable creditors, such as workers or small suppliers, would benefit from such class formation. Workers should, at all events, be given preferential treatment and special consideration as potential buyers. National laws should in any case ensure that adequate treatment is given to matters of particular importance for class formation purposes, such as claims from connected parties, and should contain rules that deal with contingent claims and contested claims. The judicial or administrative authority should examine class formation when a restructuring plan is submitted for confirmation, but Member States could stipulate that such authorities may also examine class formation at an earlier stage should the proposer of the plan seek validation or guidance in advance.
Amendment 106 #
Proposal for a directive
Recital 29
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 or enable the viable parts of its business to be continued by another enterprise after its transfer. 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.
Amendment 113 #
Proposal for a directive
Recital 34
Recital 34
(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular,f this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68, Council Directive 2001/23/EC69, Directive 2002/14/EC of the European Parliament and of the Council70, Directive 2008/94/EC of the European Parliament and of the Council71 and Directive 2009/38/EC of the European Parliament and of the Council72, it shall lay down arrangements for the exercise of these rights which make it possible to safeguard jobs and economic activity, in particular the confidentiality necessary for that purpose, whilst guaranteeing the effective exercise of those rights. The obligations concerning the information and consultation of workers under national law implementing the above-mentioned Directives remain fully intact. This includes obligations to inform and consult workers' representatives on the decision to have recourse to a preventive restructuring framework in accordance with Directive 2002/14/EC. Given the need to ensure an appropriate level of protection of workers, Member States should in principle exempt workers' outstanding claims, as defined in Directive 2008/94/EC, from any stay of enforcement irrespective of the question whether these claims arise before or after the stay is granted. Such a stay should be permissible only for the amounts and for the period that the payment of such claims is effectively guaranteed by other means under national law. Where Member States extend the cover of the guarantee of payment of workers' outstanding claims established by Directive 2008/94/EC to preventive restructuring procedures set up by this Directive, the exemption of workers' claims from the stay of enforcement is no longer justified to the extent covered by that guarantee. Where under national law there are limitations to the liability of guarantee institutions, either in terms of the length of the guarantee or the amount paid to workers, workers should be able to enforce their claims for any shortfall against the employer even during the stay of enforcement period. __________________ 68 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12.08.1998, p. 16. 69 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ L 82, 22.03.2001, p. 16. 70 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23.3.2002, p. 29. 71 Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, OJ L 283, 28.10.2008, p. 36. 72 Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works council or a procedure in Community-scale undertakings and community-scale groups of undertakings for the purpose of informing and consulting employees, OJ L 122, 16.5.2009, p. 28.
Amendment 117 #
Proposal for a directive
Recital 35
Recital 35
(35) Where a restructuring plan entails a transfer of part of undertaking or business, workers' rights arising from a contract of employment or from an employment relationship, notably including the right to wages, should be safeguarded in accordance with Articles 3 and 4 of Directive 2001/23/EC, without prejudice to the specific rules applying in the event of insolvency proceedings under Article 5 of that Directive and in particular the possibilities allowed by Article 5(2) of that Directive. Furthermore, in addition and without prejudice to the rights to information and consultation, including on decisions likely to lead to substantial changes in work organisation or in contractual relations with a view to reaching an agreement on such decisions, which are guaranteed by Directive 2002/14/EC, under this Directive workers who are affected by the restructuring plan should have the right to vote on the plan. For the purposes of voting on the restructuring plan, Member States may decide to place workers in a class separate from other classes of creditors. Due account should be taken of the rulings handed down by the Court of Justice, as Advocate-General Mengozzi recently pointed out in his conclusions in Case C- 126/16.
Amendment 121 #
Proposal for a directive
Recital 37
Recital 37
(37) The different second chance possibilities in the Member States may incentivise over-indebted entrepreneurs to relocate to Member States in order to benefit from shorter discharge periods or more attractive conditions for discharge, leading to additional legal uncertainty and costs for the creditors when recovering their claims. Furthermore, the effects of bankruptcy, in particular the social stigma, legal consequences such as disqualifying entrepreneurs from taking up and pursuing entrepreneurial activity and the on-going inability to pay off debts constitute important disincentives for entrepreneurs seeking to set up a business or have a second chance, even if evidence shows that entrepreneurs who have gone bankrupt have more chance to be successful the second time. Steps should therefore be taken to reduce the negative effects of over-indebtedness and bankruptcy on entrepreneurs, in particular by allowing for a full discharge of debts after a certain period of time, by establishing a liability regime which both incentivises early and responsible action and punishes the failure to take such action, and by limiting the length of disqualification orders issued in connection with the debtor's over- indebtedness.
Amendment 126 #
Proposal for a directive
Recital 39
Recital 39
(39) It is necessary to maintain and enhance the transparency and predictability of the procedures in delivering outcomes that are favourable for the preservation of businesses and for giving entrepreneurs a second chance or that permit the efficient liquidation of non-viable enterprises. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. That reduction may in particular be secured by introducing, as a first step, confidential procedures which make it possible, in part by virtue of that confidentiality, to prepare the plan or the assignment without the loss of value which would occur if that intention were to be made public. Finally, given the enhanced cooperation mechanisms between courts and practitioners in cross- border cases set up by Regulation (EU) 2015/848 and applicable to public procedures, the professionalism of all actors involved needs to be brought to comparable high levels across the Union. To achieve these objectives, Member States should ensure that members of the judicial and administrative bodies are properly trained and have specialised knowledge and experience in insolvency matters. Such specialisation of members of the judiciary should allow making decisions with potentially significant economic and social impacts within a short period of time and should not mean that members of the judiciary have to deal exclusively with restructuring, insolvency and second chance matters. For example, the creation of specialised courts or chambers in accordance with national law governing the organisation of the judicial system could be an efficient way of achieving these objectives.
Amendment 134 #
Proposal for a directive
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
(a) preventive restructuring procedures available for debtors in financial difficulty when there is a likelihood of insolvency or where the procedures are being used to resolve a short-term problem, to reduce the amount owed to all or some of the creditors or to transfer all or part of the viable business to another enterprise on the basis of arrangements which afford creditors a dividend at least as large as that which they would have received in the event of liquidation;
Amendment 138 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'insolvency procedure' means a collective insolvency procedure opened by means of a public decision which entails a partial or total divestment of the debtor and the appointment of a liquidator;
Amendment 139 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) 'restructuring' means a procedure or measures, whether public or confidential, which make it possible to changinge the composition, conditions, or structure of a debtor's assets and liabilities or any other part of the debtor's capital structure, including share capital, or a combination of those elements, including sales of assets or all or parts of the business, with the objective of enabling the enterprise to continue in whole or in part;
Amendment 145 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
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, or whose transfer price is not enough to pay all the creditors in full, over the dissent of a minority of creditors or the dissent of a minority of creditors within each class or the dissent of the creditors who do not receive full payment of their claims;
Amendment 150 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point a
Article 2 – paragraph 1 – point 15 – point a
(a) to assist the debtor or the creditors in drafting or negotiating a viable restructuring or business wind-up plan;
Amendment 151 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – point b
Article 2 – paragraph 1 – point 15 – point b
(b) to supervise the activity of the debtor during the negotiations on a restructuring or business wind-up plan and report to a judicial or administrative authority;
Amendment 160 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Member States shall ensure that workers’ representatives are in a position to have recourse to an expert funded by the undertaking, giving access to relevant, up-to-date, clear, concise and user- friendly information regarding the situation of the business and the different restructuring policies being envisaged, including transfer to worker ownership;
Amendment 162 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that, where there is likelihood of insolvency, debtors in financial difficulty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvencor arrange for sustainable management by another undertaking and avoid insolvency or find a solution that is more satisfactory than liquidation of assets to help pay off creditors claims, protect jobs and sustain business activity.
Amendment 174 #
Proposal for a directive
Article 5 – paragraph 3 – point b a (new)
Article 5 – paragraph 3 – point b a (new)
(ba) where the plan provides for the transfer of all or part of an undertaking to another undertaking without keeping on the entire workforce.
Amendment 180 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Member States shall ensure that debtors who are negotiating a restructuring or business wind-up plan with their creditors may benefit from a stay of individual enforcement actions if and to the extent such a stay is necessary to support the negotiations of a restructuring plan.
Amendment 187 #
Proposal for a directive
Article 6 – paragraph 5 – point a
Article 6 – paragraph 5 – point a
(a) relevant progress has been made in the negotiations on the restructuring plan or transfer of a going concern to another undertaking under the conditions laid down in this Directive; et
Amendment 198 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States may derogate from paragraph 1 where the debtor becomes illiquid and therefore unable to pay his debts as they fall due during the stay period. In that case, Member States shall ensure that restructuring procedures are not automatically terminated and that, upon examining the prospects for achieving an agreement on a successful restructuring or going concern transfer plan within the period of the stay, a judicial or administrative authority may decide to defer the opening of insolvency procedure and keep in place the benefit of the stay of individual enforcement actions.
Amendment 201 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) a valuation of the present value of the debtor, following problem solving or business divestiture procedures, or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor;
Amendment 204 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii a (new)
Article 8 – paragraph 1 – point f – point iii a (new)
(iiia) the possibilities for selling businesses as going concerns, selling prices, or possible sale terms, the implications of those prices or terms for the dividends that creditors would receive compared with the dividend that a creditor would probably have received had the business in question been liquidated or the priority of creditors determined, and the consequences for workers, employment and activity, or for each stakeholder.
Amendment 210 #
Proposal for a directive
Article 8 – paragraph 1 – point g a (new)
Article 8 – paragraph 1 – point g a (new)
(ga) an assessment of the employability and the individual and collective skills of the employees affected by the plan.
Amendment 212 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. The rights and claims of employees shall not be affected by restructuring plans.
Amendment 215 #
Proposal for a directive
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. Member States shall ensure that workers’ representatives are able to appoint an expert of their choice, funded by the business, to give prior consideration to the causes and consequences for the viability of the business, employment, and pay, and that they are able to make proposals in the context of the information and consultation process (Directive 2002/14/EC).
Amendment 216 #
Proposal for a directive
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
3a. Member States shall ensure that their national legislation effectively guarantees the confidentiality of discussions, conversations, negotiations, or information sessions with persons who have entered into a confidentiality undertaking.
Amendment 217 #
Proposal for a directive
Article 8 – paragraph 3 b (new)
Article 8 – paragraph 3 b (new)
3b. The obligations of employers to inform and consult workers shall not be put into effect until a plan has been finalised.
Amendment 218 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that any affected creditorsthe procedures provided for in national law are such that any creditors affected by a waiver plan have a right to vote on the adoption of a restructuring plan. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).
Amendment 222 #
Proposal for a directive
Article 9 – paragraph 1 – subparagraph 1 a (new)
Article 9 – paragraph 1 – subparagraph 1 a (new)
Member States shall ensure that the procedures provided for in national law are such that any creditors affected by a plan to sell a business as a going concern to another business, and which would not be repaid in full, would have the right to raise objections in the jurisdiction called upon to authorise the sale.
Amendment 223 #
Proposal for a directive
Article 9 – paragraph 1 – subparagraph 1 b (new)
Article 9 – paragraph 1 – subparagraph 1 b (new)
Member States shall ensure that a debtor, having embarked on a confidential procedure, may at any time thereafter initiate a further procedure publicly, if it considers the latter to be necessary before the plan has been adopted or the sale has been authorised by the jurisdiction concerned.
Amendment 230 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States shall ensure that parties affected partiesby a waiver plan are treated in separate classes which reflect the class formation criteria. 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 may also provide that workers are treated in a separate class of their own.
Amendment 234 #
Proposal for a directive
Article 9 – paragraph 4
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 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. A sale plan shall be authorised by the competent jurisdiction under the national procedure allowing the sale to be authorised and effected.
Amendment 240 #
Proposal for a directive
Article 10 – paragraph 1 – subparagraph 1 a (new)
Article 10 – paragraph 1 – subparagraph 1 a (new)
Member States shall ensure that plans to sell a business as a going concern cannot become binding on the parties unless they are confirmed by a judicial or administrative authority under national law.
Amendment 241 #
Proposal for a directive
Article 10 – paragraph 1 – subparagraph 1 b (new)
Article 10 – paragraph 1 – subparagraph 1 b (new)
In each of the cases referred to in this paragraph, Member States shall ensure that the procedures provided for in national law are such that workers have the right to submit comments to, or raise objections before, the judicial or administrative authority called upon to rule on the confirmation of the plan.
Amendment 251 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall ensure that judicial or administrative authorities may refuse to confirm a restructuring plan involving the waiver of claims where that plan does not have a reasonable prospect of preventing the insolvency of the debtor and ensuring the viability of the business or where the debtor’s obligations to workers under existing Directives have not been fulfilled. Member States shall ensure that judicial or administrative authorities may refuse to authorise a sale plan where that plan is such that creditors have no reasonable prospect of being paid a dividend at least equivalent to the amount which they would have received if assets had been sold following a bankruptcy procedure or where the business continuing as a going concern does not offer guarantees as to the viability of the operations transferred.
Amendment 253 #
Proposal for a directive
Article 10 – paragraph 4
Article 10 – paragraph 4
4. Member States shall ensure that where a judicial or administrative authority is required to confirm a restructuring plan or authorise a sale plan in order for it to become binding, a decision is taken without undue delay after the request for confirmation has been filed and in any case no later than 30 days after the request is filed.
Amendment 257 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A liquidation value shall be determined by the judicial or administrative authority where a restructuring plan or a sale plan is challenged on the grounds of an alleged breach of the best interest of creditors test.
Amendment 258 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. An enterprise value shall be determined by the judicial or administrative authority on the basis of the value of the enterprise as a going concern and the value of the proceeds from the sale of its assets by the insolvency practitioner in an insolvency procedure in the following cases:
Amendment 259 #
Proposal for a directive
Article 13 – paragraph 2 – point b a (new)
Article 13 – paragraph 2 – point b a (new)
(ba) where a plan involves the transfer of all or part of a business.
Amendment 268 #
Proposal for a directive
Article 18 – paragraph 1 – point a
Article 18 – paragraph 1 – point a
(a) to take immediate steps to minimise the loss for creditors, workers, shareholders and other stakeholders, including employment and the interests and rights of workers;
Amendment 270 #
Proposal for a directive
Article 18 – paragraph 1 – point d a (new)
Article 18 – paragraph 1 – point d a (new)
(da) to fulfil, in the manner most compatible with confidentiality, the obligations arising from the directives granting rights to workers.
Amendment 272 #
Proposal for a directive
Article 18 – paragraph 1 a (new)
Article 18 – paragraph 1 a (new)