Activities of Jytte GUTELAND related to 2016/0359(COD)
Legal basis opinions (0)
Amendments (18)
Amendment 87 #
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. TWithout prejudice to workers’ fundamental rights and freedoms, 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.
Amendment 112 #
Proposal for a directive
Recital 16
Recital 16
(16) The earlier the debtor can detect its financial difficulties and can take appropriate action, the higher the probability of avoiding an impending insolvency or, in case of a business whose viability is permanently impaired, the more orderly and efficient the winding-up process. Access to public, free and user- friendly information on the legal procedures for restructuring and insolvency is a first step for raising awareness among debtors and entrepreneurs and for avoiding cases of insolvency. Clear information on the available preventive restructuring procedures as well as early warning tools should therefore be put in place to incentivise debtors who start to experience financial problems to take early action and to empower the workers concerned to take an active role in the restructuring process. Possible early warning mechanisms should include accounting and monitoring duties for the debtor or the debtor's management as well as reporting duties under loan agreements. In addition, third parties with relevant information such as accountants, tax and social security authorities could be incentivised or obliged under national law to flag a negative development.
Amendment 134 #
Proposal for a directive
Recital 34
Recital 34
(34) Throughout the preventive restructuring procedures, workers should enjoy full labour law protection. In particular, this Directive is without prejudice to workers' rights guaranteed by Council Directive 98/59/EC68 , Council Directive 2001/23/EC69 , Directive 2002/14EC 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 . 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 principlebe required to 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 at the same level 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 137 #
Proposal for a directive
Recital 34 a (new)
Recital 34 a (new)
(34a) Workers and their representatives should be provided with all the documents and information regarding the proposed restructuring plan in order to allow them to undertake an in-depth assessment of the various scenarios. Furthermore, workers and their representatives should be allowed active involvement in all the consultation and approval phases for the definition of the plan and should be guaranteed access to expert advice in connection with the restructuring.
Amendment 158 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. Member States may extend the application of thshall define procedures referred to in point (b) of paragraph 1 applicable to over indebted natural persons who are not entrepreneurs.
Amendment 166 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) 'class formation' means the grouping of affected creditors and equity holders in a restructuring plan in such a way as to reflect the rights and seniority of the affected claims and interests, taking into account possible pre-existing entitlements, liens or inter-creditor agreements, and their treatment under the restructuring plan. For the purpose of adopting a restructuring plan, creditors should be divided into different classes of creditors, where, as a minimum, secured and unsecured claims should be treated in distinct classes, whilst workers should constitute a separate privileged class;
Amendment 180 #
Proposal for a directive
Article 2 – paragraph 1 – point 15 – introductory part
Article 2 – paragraph 1 – point 15 – introductory part
(15) 'practitioner in the field of restructuring' means any independent and neutral person or body appointed by a judicial or administrative authority to carry out one or more of the following tasks:
Amendment 181 #
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 restructuring plan or a plan to transfer viable parts of the business;
Amendment 183 #
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 transfer plan and report to a judicial or administrative authority;
Amendment 193 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 196 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Member States shall ensure that workers’ representatives can communicate concerns to debtors and entrepreneurs about the situation of the business. Member States shall also ensure that workers’ representatives are in a position to have recourse to an independent expert of their choice and are given access to relevant, up-to-date, clear and user-friendly information regarding the situation of the business and the different restructuring strategies being envisaged, including a transfer to worker ownership;
Amendment 197 #
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 insolvency or find solutions that are more satisfactory than liquidation of assets to help pay off creditors claims, protect jobs and maintain business activity.
Amendment 207 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Preventive restructuring frameworks shall be available on the application by debtors, by workers or by creditors with the agreement of debtors.
Amendment 271 #
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) all organisational aspects and possible consequences on employment levels, emanating from the restructuring plan, including the impact on subsidiaries and subcontractors, on working conditions and remuneration of workers;
Amendment 272 #
Proposal for a directive
Article 8 – paragraph 1 – point f – point iii b (new)
Article 8 – paragraph 1 – point f – point iii b (new)
(iiib) evidence that any negative impact will not affect occupational pension funds and schemes for retired and current workers;
Amendment 278 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Member States shall define the conditions under which creditors and workers may legitimately propose an alternative restructuring plan.
Amendment 282 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that any affected creditors have a right to vote on the adoption of a restructuring plan after having been duly informed about the procedure and its potential consequences. Member States may also grant such voting rights to affected equity holders, in accordance with Article 12(2).
Amendment 287 #
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. 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 own, and shall ensure that preferential rights are given to this class.