25 Amendments of Karima DELLI related to 2016/0359(COD)
Amendment 29 #
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. Preventive restructuring frameworks should above all enable the enterprises to restructure at an early stage and to avoid their insolvency. Those frameworks should prevent job losses and loss of knowledge and skills and 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. 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.
Amendment 46 #
Proposal for a directive
Recital 5
Recital 5
(5) Excessive length of restructuring, insolvency and discharge procedures in several Member States is an important factor triggering longstanding damage for the workers concerned, low recovery rates and deterring investors from making business in jurisdictions where procedures risk taking too long.
Amendment 56 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
Amendment 63 #
Proposal for a directive
Recital 11
Recital 11
(11) It is necessary to lower the costs of restructuring for both debtors and creditors. 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 prioritise the protection of the workers concerned and their claims by ensuring absolute priority to their class claims, 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 66 #
Proposal for a directive
Recital 12
Recital 12
(12) RIf well combined, removing the barriers to effective restructuring of viable enterprises in financial difficulties while protecting workers could contributes to minimising job losses, losses for creditors in the supply chain, preserves know-how and skills and hence benefits the wider economy. 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 71 #
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, as well as workers representatives 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.
Amendment 76 #
Proposal for a directive
Recital 16
Recital 16
(16) The earlier the debtor and the workers concerned can detect itscompanies' 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 and to empower the workers concerned in order that they are able 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 83 #
Proposal for a directive
Recital 19
Recital 19
(19) A debtor should be able to request the judicial or administrative authority for a temporary stay of individual enforcement actions which should also suspend the obligation to file for opening of insolvency procedures where such actions may adversely affect negotiations and hamper the prospects of a restructuring of the debtor's business. The stay of enforcement cshould not be general, that is to say affecting all creditors, or targeted towards individual creditorsas the workers, as a class, should be ensured absolute priority. In order to provide for a fair balance between the rights of the debtor and of creditors, the stay should be granted for a period of no more than four months. Complex restructurings may, however, require more time. Member States may decide that in such cases, extensions of this period may be granted by the judicial or administrative authority, providing there is evidence that negotiations on the restructuring plan are progressing and that creditors are not unfairly prejudiced. If further extensions are granted, the judicial or administrative authority should be satisfied that there is a strong likelihood that a restructuring plan will be adopted. Member States should ensure that any request to extend the initial duration of the stay is made within a reasonable deadline so as to allow the judiciary or administrative authorities to deliver a decision within due time. Where a judicial or administrative authority does not take a decision on the extension of a stay of enforcement before it lapses, the stay should cease to have effects on the day the stay period expires. In the interest of legal certainty, the total period of the stay should be limited to twelve months.
Amendment 100 #
Proposal for a directive
Recital 26
Recital 26
(26) Requisite majorities should be established by national law to ensure that a minority of affected parties in each class cannot obstruct the adoption of restructuring plan which does not unfairly reduce their rights and interests. Without a majority rule binding dissenting secured creditors, early restructuring would not be possible in many cases, for example where a financial restructuring is needed but the business is otherwise viable. To ensure that parties have a say on the adoption of restructuring plans proportionate to the stakes they have in the business, the required majority should be based on the amount of the creditors' claims or equity holders' interests in any given class. Workers as a class should be exempt from this provision.
Amendment 104 #
Proposal for a directive
Recital 28
Recital 28
(28) While a restructuring plan should always be deemed adopted if the required majority in each affected class supports the plan, a restructuring plan which is not supported by the required majority in each affected class may still be confirmed by a judicial or administrative authority provided that it is supported by at least one affected class of creditors and that dissenting classes are not unfairly prejudiced under the proposed plan (the cross-class cram-down mechanism). In particular, the plan should abide by the absolute priority rule which ensures that a dissenting class of creditors is paid in full before a more junior class can receive any distribution or keep any interest under the restructuring plan. The absolute priority rule serves as a basis for the value to be allocated among the creditors in restructuring. As a corollary to the absolute priority rule, no class of creditors can receive or keep under the restructuring plan economic values or benefits exceeding the full amount of the claims or interests of such class. The absolute priority rule makes it possible to determine, when compared to the capital structure of the enterprise under restructuring, the value allocation that parties are to receive under the restructuring plan on the basis of the value of the enterprise as a going concern. The cross-class cram-down mechanism should not apply to workers because they are in a more vulnerable class and should therefore not be able to be simply overruled.
Amendment 108 #
Proposal for a directive
Recital 31
Recital 31
(31) The success of a restructuring plan may often depend on whether there are financial resources in place to support first the operation of the business during restructuring negotiations and second the implementation of the restructuring plan after its confirmation. New financing or interim financing should therefore be exempt from avoidance actions which seek to declare such financing void, voidable or unenforceable as an act detrimental to the general body of creditors in the context of subsequent insolvency procedures. National insolvency laws providing for avoidance actions if and when the debtor becomes eventually insolvent or stipulating that new lenders may incur civil, administrative or criminal sanctions for extending credit to debtors in financial difficulties are jeopardising the availability of financing necessary for the successful negotiation and implementation of a restructuring plan. As opposed to new financing which should be confirmed by a judicial or administrative authority as part of a restructuring plan, when interim financing is extended the parties do not know whether the plan will be eventually confirmed or not. Limiting the protection of interim finance to cases where the plan is adopted by creditors or confirmed by a judicial or administrative authority would discourage the provision of interim finance. To avoid potential abuses, only financing that is reasonably and immediately necessary for the continued operation or survival of the debtor's business or the preservation or enhancement of the value of that business pending the confirmation of that plan should be protected. Protection from avoidance actions and protection from personal liability are minimum guarantees granted to interim financing and new financing. However, encouraging new lenders to take the enhanced risk of investing in a viable debtor in financial difficulties may require further incentives such as for example giving such financing priority at least over unsecured claims in subsequent insolvency procedures.
Amendment 115 #
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 toshould place workers in a class separate from other classes of creditors.
Amendment 118 #
Proposal for a directive
Recital 35 a (new)
Recital 35 a (new)
(35a) Any proposed restructuring operation should be fully explained to workers' representatives who should be given such information about the proposed restructuring as to enable them to undertake an in-depth assessment and to prepare for consultations, where appropriate1 a. __________________ 1a(P7_TA(2013)0005 Information and consultation of workers, anticipation and management of restructuring)
Amendment 133 #
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, including when there is a likelihood of insolvency;
Amendment 153 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall ensure that debtors and, entrepreneurs as well as workers and their representatives have access to early warning tools which can detect a deteriorating business development and signal to the debtor or the entrepreneur the need to act as a matter of urgency.
Amendment 155 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Member States shall ensure that debtors and, entrepreneurs as well as workers and their representatives have access to relevant up-to-date, clear, concise and user- friendly information about the availability of early warning tools and any means available to them to restructure at an early stage or to obtain a discharge of personal debt.
Amendment 182 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Member States shall ensure that a stay of individual enforcement actions may be ordered in respect of all types of creditors, including secured and preferential creditors but not including workers. The stay may be general, covering all creditors, or limited, covering one or more individual creditors, in accordance with national law.
Amendment 205 #
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 impact on all types of pensions of retired and current workers.
Amendment 228 #
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 StatesExcept in duly justified circumstances, Member States shall provide that workers are treated as a separate preferential class and may also provide that retired workers are treated in a separate class of their own.
Amendment 232 #
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 and that the class of workers obtains the majority. 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.
Amendment 237 #
Proposal for a directive
Article 9 – paragraph 6
Article 9 – paragraph 6
6. With the exemption of the class of workers, where the necessary majority is not reached in one or more dissenting voting classes, the plan may still be confirmed if it complies with the cross- class cram-down requirements set out in Article 11.
Amendment 248 #
Proposal for a directive
Article 10 – paragraph 2 – point c a (new)
Article 10 – paragraph 2 – point c a (new)
(ca) it has been approved by the class of workers.
Amendment 255 #
Proposal for a directive
Article 11 – paragraph 1 – point b a (new)
Article 11 – paragraph 1 – point b a (new)
(ba) has been approved by the class of workers;
Amendment 263 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
Amendment 265 #
Proposal for a directive
Article 17 – paragraph 2 – point c
Article 17 – paragraph 2 – point c
(c) the payment of worker wages for work already carried out; and any other payments resulting from contractual obligations with the workers;