Activities of Paloma LÓPEZ BERMEJO related to 2016/0359(COD)
Shadow opinions (2)
OPINION 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
OPINION 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
Amendments (48)
Amendment 18 #
Proposal for a directive
Recital -1 a (new)
Recital -1 a (new)
(–1) All workers should have the right to protection of their claims in the event of the insolvency of their employer, as set out in the European Social Charter.
Amendment 68 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) All workers should have the right to protection of their claims in the event of the insolvency of their employer, as set out in the European Social Charter;
Amendment 78 #
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, aA 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.
Amendment 90 #
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, aA 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.
Amendment 116 #
Proposal for a directive
Recital 46 a (new)
Recital 46 a (new)
(46a) Under no circumstances should workers bear the burden of restructuring, insolvency and discharge procedures, and the debts owing to them (such as unpaid wages) should always be recovered first. In order to guarantee the continuity of production and employment and to better fight tactical or fraudulent practices by management, workers should also be informed and consulted at the initial stage of restructuring, insolvency and discharge procedures.
Amendment 131 #
Proposal for a directive
Recital 46 a (new)
Recital 46 a (new)
(46a) Under no circumstances should workers bear the burden of restructuring, insolvency and discharge procedures, and the debts owing to them (such as unpaid wages) should always be recovered in full and without delay. In order to guarantee the continuity of production and employment and to better fight tactical or fraudulent practices by management, workers should also be informed and consulted at the initial stage of restructuring, insolvency and discharge procedures.
Amendment 154 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Preventive restructuring frameworks may consist of one or more procedures or measures, duly negotiated and consulted with workers’ representatives, who shall retain all rights of collective bargaining and industrial action. Preventive restructuring frameworks shall provide for procedures or measures destined to the recovery of the indebted firm by workers, in accordance with the relevant national law.
Amendment 157 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Member States shallmay put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate sowhile ensuring that rights of any affected parties are safeguarded.
Amendment 159 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Preventive restructuring frameworks shall be available on the application by debtors, or byby workers or by other creditors with the agreement of debtors.
Amendment 162 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The appointment by a judicial or administrative authority of a practitioner in the field of restructuring shall not be mandatory in every case.
Amendment 163 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
Amendment 163 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Preventive restructuring frameworks may consist of one or more procedures or measures, duly negotiated and consulted with workers’ representatives, who shall retain all rights of collective bargaining and industrial action. It shall also provide for procedures or measures destined to the recovery of the indebted firm by workers, according to the relevant national law.
Amendment 164 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Member States shallmay put in place provisions limiting the involvement of a judicial or administrative authority to where it is necessary and proportionate so, while ensuring that rights of any affected parties are safeguarded.
Amendment 166 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Preventive restructuring frameworks shall be available on the application by debtors, or byby workers or by other creditors with the agreement of debtors.
Amendment 168 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
Amendment 176 #
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 means that 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/EC.
Amendment 176 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a. Member States shall ensure that a creditors' committee is established. The committee shall include representatives of the main creditors and other stakeholders, including workers. The members of the creditors' committee shall support and monitor the insolvency administrator's execution of his office. They shall demand information on the progress of business affairs, have the books and business documents inspected and the monetary transactions and the available cash verified.
Amendment 181 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Member States shall limit the duration of the stay of individual enforcement actions to a maximum period of no more than four month70 days.
Amendment 184 #
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 means that 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/EC.
Amendment 187 #
Proposal for a directive
Article 6 – paragraph 7
Article 6 – paragraph 7
7. The total duration of the stay of individual enforcement actions, including extensions and renewals, shall not exceed twelve month100 days.
Amendment 190 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors, with the exception of workers, in accordance with Article 6(3).
Amendment 197 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. A general stay covering all creditors shall prevent the opening of insolvency procedures at the request of one or more creditors, with the exception of workers according to article 6.3.
Amendment 202 #
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 or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor, including a description of any assets, debts and their location; this shall include a relation of the financial obligations and flows with the business' parent companies and subsidiaries in order to estimate the financial capacity of the debtor's economic group when joint responsibility may arise;
Amendment 202 #
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 or the debtor's business as well as a reasoned statement on the causes and the extent of the financial difficulties of the debtor, including a detailed description of any assets, debts and their location; this shall include a relation of the financial obligations and flows with the business’ parent companies and subsidiaries in order to estimate the financial capacity of the debtors’ business group when joint responsibility may arise;
Amendment 207 #
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. Such an opinion or reasoned statement shall be the subject of validation by an external expert.
Amendment 209 #
Proposal for a directive
Article 8 – paragraph 1 – point g a (new)
Article 8 – paragraph 1 – point g a (new)
(ga) Workers’ claims or other rights shall be treated taking into account that any financial claims by workers shall have full priority.
Amendment 211 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Workers’ claims or other rights shall not be affected by restructuring plans, which shall take into account that any financial claims by workers shall take full priority.
Amendment 219 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
Amendment 221 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that any affected creditors, including workers, 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 227 #
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 may alsoshall provide that workers are treated in a separate class of their own.
Amendment 227 #
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 guarantee the priority of their claims
Amendment 232 #
Proposal for a directive
Article 9 – paragraph 6 a (new)
Article 9 – paragraph 6 a (new)
6a. Member States shall guarantee that in the case of lack of collaboration of other creditors, the workers’ restructuring plan may be presented to the competent administration or court and adopted without the consent of non-cooperative creditors.
Amendment 238 #
Proposal for a directive
Article 9 – paragraph 6 a (new)
Article 9 – paragraph 6 a (new)
6a. Member States shall guarantee that in the case of lack of collaboration of other creditors, the worker’s restructuring plan may be presented to the competent administration or court and adopted without the consent of non-cooperative creditors.
Amendment 239 #
Proposal for a directive
Article 10 – paragraph 2 – point c a (new)
Article 10 – paragraph 2 – point c a (new)
(ca) workers’ representatives have been informed and consulted.
Amendment 247 #
Proposal for a directive
Article 10 – paragraph 2 – point c a (new)
Article 10 – paragraph 2 – point c a (new)
(ca) workers’ representatives have been informed and consulted.
Amendment 249 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article 12a Workers Member States shall ensure the rights of workers are not undermined by the restructuring process and that there is independent supervision of compliance with relevant national and Union legislation, including those set out in the present directive. Those rights shall include, in particular: (i) the right to collective bargaining and industrial action; (ii) the right to information and consultation of workers and workers' representatives, including notably access to information on any procedure which could have an impact on employment and/or the ability of workers to recover their wages and any future payments, including occupational pensions. Members States shall also ensure that workers are everywhere treated as a preferential and secure class of creditors.
Amendment 264 #
Proposal for a directive
Article 18 – paragraph 1 – point d a (new)
Article 18 – paragraph 1 – point d a (new)
(da) not to reduce intentionally the value of the company's net assets below the level necessary to discharge accrued liabilities to workers;
Amendment 276 #
Proposal for a directive
Article 19 – paragraph 1
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, while guaranteeing the payment of all claims by workers.
Amendment 278 #
Proposal for a directive
Article 25 – paragraph 2
Article 25 – paragraph 2
2. Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct bysure that practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services, comply with statutory codes of conduct, which shall include at least relevant provisions on: training, qualification, licensing, registration, personal liability, insurance and good repute.
Amendment 283 #
Proposal for a directive
Article 28 – paragraph 1 – point c
Article 28 – paragraph 1 – point c
(c) notifications to creditors and workers' representatives;
Amendment 286 #
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 job losses and the impact on workers' conditions of restructuring agreements and insolvency procedures;
Amendment 288 #
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 fraudulent restructuring and insolvency procedures and the functioning of enforcement mechanisms in place;
Amendment 292 #
Proposal for a directive
Article 30 a (new)
Article 30 a (new)
Amendment 293 #
Proposal for a directive
Article 28 – paragraph 1 – point c
Article 28 – paragraph 1 – point c
(c) notifications to creditors, including workers' representatives;
Amendment 295 #
Proposal for a directive
Article 31 – paragraph 1 – point a a (new)
Article 31 – paragraph 1 – point a a (new)
(aa) Directive 2008/94/EC concerning the protection of employees in the event of insolvency of an employer
Amendment 297 #
Proposal for a directive
Article 31 – paragraph 2
Article 31 – paragraph 2
2. This Directive shall be without prejudice to workers' rights guaranteed by Directives 98/59/EC, 2001/23/EC, 2002/14EC, 2008/94/EC and 2009/38/EC and the European Charter of Fundamental Rights.
Amendment 297 #
Proposal for a directive
Article 29 – paragraph 4
Article 29 – paragraph 4
4. The Commission shall establish the communication form referred to in paragraph 3 by way of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 30(2)delegated acts.
Amendment 298 #
Proposal for a directive
Article 30 a (new)
Article 30 a (new)