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Activities of Sander LOONES related to 2016/0359(COD)

Shadow opinions (1)

2016/11/22
Committee: ECON
Dossiers: 2016/0359(COD)
Documents: PDF(332 KB) DOC(140 KB)

Amendments (23)

Proposal for a directive
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. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should maximise the total value to creditors, owners and the economy as a whole and should prevent unnecessary job losses and losses of knowledge and skills. They should also prevent the build-up of non-performing loans, which today represent a challenge to several national banking systems. In the restructuring process the rights of all parties involved should be protected. At the same time, non-viable businesses with no prospect of survival should be liquidated as quickly as possible.

2017/09/19
Committee: ECON

Proposal for a directive
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~~could thus be beneficial for a well- functioning single market in general and for a working Capital Markets Union in particular, but it is essential to leave sufficient flexibility to Member States that have already introduced well-functioning restructuring, insolvency and second chance regimes.

2017/09/19
Committee: ECON

Proposal for a directive
Recital 15

(15) Consumer over-indebtedness is a matter of great economic and social concern and is closely related to the reduction of debt overhang. Furthermore, ~~it is often not possible to draw~~while in some jurisdictions a clear distinction is made between the consumer and business debts of an entrepreneur~~. A~~, in other jurisdictions making this distinction is more difficult and not common practice. In these jurisdictions, a second chance regime for entrepreneurs ~~would~~might not be effective if the entrepreneur had to go through separate procedures, with different access conditions and discharge periods, to discharge his business personal debts and his non-business personal debts. For these reasons, although this Directive does not include binding rules on consumer over- indebtedness, Member States should be able to also apply the discharge provisions to consumers.

2017/09/19
Committee: ECON

Proposal for a directive
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. 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. 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~~ and tax authorities could be incentivised or obliged under national law to flag ~~a negative development~~to entrepreneurs any worrying developments concerning their business debts or the viability of their business as soon as possible.

2017/09/19
Committee: ECON

Proposal for a directive
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~~as such a requirement may not always be relevant, necessary, useful or in the interest of the debtor, especially in straightforward cases with few creditors involved, and may impose a disproportionately high administrative burden on some jurisdictions. Instead, it should be made on a case-by-case basis depending on the specific 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.

2017/09/19
Committee: ECON

Proposal for a directive
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 and by limiting the length of disqualification orders issued in connection with the debtor's over-indebtedness. In addition, Member States should ensure that second chance entrepreneurs have access to up-to-date information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the set-up of a new business.

2017/09/19
Committee: ECON

Proposal for a directive
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, whether these entail restructuring or liquidation, with integrity. Practitioners should also adhere to voluntary codes of conduct aiming at ensuring an appropriate level of qualification and training, 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.

2017/09/19
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 15 a (new)

(15a) 'viable' means able to provide an appropriate projected return on capital after having covered all its costs including depreciation and financial charges.

2017/09/19
Committee: ECON

Proposal for a directive
Article 3 – paragraph 2 a (new)

2a. Member States shall communicate to the Commission on a yearly basis the information to be provided under paragraph 2.

2017/09/19
Committee: ECON

Proposal for a directive
Article 3 – paragraph 2 b (new)

2b. The Commission shall publish the information to be provided under paragraph 2 and received according to paragraph 2a in a user-friendly way on its website.

2017/09/19
Committee: ECON

Proposal for a directive
Article 3 – paragraph 3

3. Member States may limit the access provided for in paragraphs 1 and 2 to ~~small and medium sized enterprises or to~~ entrepreneurs.

2017/09/19
Committee: ECON

Proposal for a directive
Article 3 – paragraph 3 a (new)

3a. Member States may ensure that accountants and tax authorities have sufficient legal or non-legal means to be able to flag to entrepreneurs any worrying developments concerning their business debts or the viability of their business as soon as possible.

2017/09/19
Committee: ECON

Proposal for a directive
Article 5 – paragraph 3 – introductory part

3. Member States may require the appointment by a judicial or administrative authority of a practitioner in the field of restructuring in the following cases:

2017/09/19
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – introductory part

1. By way of derogation from Articles 19, 20 and 21, Member States ~~may~~shall maintain or introduce provisions restricting access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods ~~in certain~~where the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts, and may maintain or introduce provisions restricting access to discharge or laying down longer periods for obtaining a full discharge or longer disqualification periods in other well- defined circumstances and where such limitations are justified by a general interest, in particular where:

2017/09/19
Committee: ECON

Proposal for a directive
Article 22 – paragraph 1 – point a

~~(a) the over-indebted entrepreneur acted dishonestly or in bad faith towards the creditors when becoming indebted or during the collection of the debts;~~deleted

2017/09/19
Committee: ECON

Proposal for a directive
Article 23 – paragraph 1

1. Member States ~~shall~~may ensure that, where an over-indebted entrepreneur has professional debts incurred in the course of his or her trade, business, craft or profession as well as personal debts incurred outside those activities, all debts are treated in a single procedure for the purposes of obtaining a discharge.

2017/09/19
Committee: ECON

Proposal for a directive
Article 25 – paragraph 1 a (new)

1a. The Commission shall facilitate the sharing of best practices between Member States in view of improving the quality of training across the Union, including by means of networking and the exchange of experiences and capacity building tools.

2017/09/19
Committee: ECON

Proposal for a directive
Article 25 – paragraph 2

2. Member States shall encourage, by any means which they consider appropriate, the development of, and adherence to, minimum professional standards pertaining to training, professional qualifications and voluntary codes of conduct by practitioners in the field of restructuring, insolvency and second chance, as well as other effective oversight mechanisms concerning the provisions of such services.

2017/09/19
Committee: ECON

Proposal for a directive
Article 27 a (new)

Article 27a Information available to second chance entrepreneurs 1. Member States shall ensure that second chance entrepreneurs have access to relevant, up-to-date, clear, concise and user-friendly information about the availability of administrative, legal, business or financial support tailored to them and any means available to them to facilitate the set-up of a new business. 2. Member States shall communicate to the Commission on a yearly basis the information to be provided under paragraph 1. 3. The Commission shall publish the information to be provided under paragraph 1 and received according to paragraph 2 in a user-friendly way on its website.

2017/09/19
Committee: ECON

Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g a (new)

(ga) the number of debtors who, after having undergone a procedure referred to in points (a) (ii) and (iii), launched a new business;

2017/09/19
Committee: ECON

Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g b (new)

(gb) for debtors who launched a new business after having undergone a procedure referred to in points (a) (ii) and (iii), the average time between the end of the procedure and the launch of the new business;

2017/09/19
Committee: ECON

Proposal for a directive
Article 29 – paragraph 1 – subparagraph 1 – point g c (new)

(gc) the work carried out by each practitioner, including with respect to data referred to in points (a), (b), (c), (d) and (e) of this paragraph;

2017/09/19
Committee: ECON

Proposal for a directive
Article 29 – paragraph 3

3. Member States shall compile statistics from the aggregate data referred to in paragraphs 1 and 2 for full calendar years ending on 31 December of each year, starting with data collected for the first full calendar year following [the date of start of application of implementing measures]. These statistics shall be communicated to the Commission on the basis of a standard data communication form annually, by 31 March of the calendar year following the year for which data is collected. Member States shall make these statistics publicly available and present them by means of a user-friendly website.

2017/09/19
Committee: ECON