Activities of Evelyn REGNER related to 2016/0359(COD)
Legal basis opinions (0)
Amendments (25)
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 92 #
Proposal for a directive
Recital 3
Recital 3
(3) There are differences between the Member States as regards the range of the procedures available to debtors in financial difficulties in order to restructure their business. Some Member States have a limited range of procedures meaning that businesses are only able to restructure at a relatively late stage, in the context of insolvency procedures. In other Member States, restructuring is possible at an earlier stage but the procedures available are not as effective as they could be or are very formal, in particular limiting the use of out- of-court processes. Preventive solutions are a growing trend in modern insolvency law. The trend goes towards favouring approaches that, unlike the traditional approach of liquidating a business in crisis, have the aim of restoring it to health or, at least, saving those of its units which are still economically viable. That practice is praiseworthy and often helps to maintain jobs or reduce avoidable job losses. Similarly, national rules giving entrepreneurs a second chance, in particular by granting them discharge from the debts they have incurred in the course of their business, vary between Member States in respect of the length of the discharge period and the conditions for granting such a discharge.
Amendment 106 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Creditors and workers should be allowed to propose an alternative restructuring plan. Member States should define the conditions under which they may legitimately propose such a plan.
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 127 #
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 should also provide that workers are part of a separate class, and it should ensure that a preferential right is attributed to this class. Member States 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. 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 133 #
Proposal for a directive
Recital 32
Recital 32
(32) Interested affected parties should have the possibility to appeal a decision on the confirmation of a restructuring plan. However, in order to ensure the effectiveness of the plan, to reduce uncertainty and to avoid unjustifiable delays, appeals should not have suspensive effects on the implementation of a restructuring plan. Where it is established that minority creditors have suffered unjustifiable detriment under the plan, Member States should consider, as an alternative to setting aside the plan, the provision of monetary compensation to the respective dissenting creditors payable by the debtor or the creditors who voted in favour of the plan, with the exception of the workers' class.
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 138 #
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 Directivehile it should only be possible to apply Article 5 of that Directive in case of insolvency but not in case of a restructuring plan. 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 it and their approval should be binding for the confirmation of 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 and should ensure that this class is given a preferential right.
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 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 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 232 #
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/ECthe same level.
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.
Amendment 293 #
Proposal for a directive
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5a. Member States shall ensure that, if the plan includes decisions likely to lead to substantial changes in work organisation or in contractual relations, workers who are affected by the restructuring plan shall have the right to vote on it and their approval shall be compulsory for confirmation of the plan.
Amendment 301 #
Proposal for a directive
Article 10 – paragraph 1 – point b b (new)
Article 10 – paragraph 1 – point b b (new)
(bb) restructuring plans which are subject to counter-proposals from the class of workers or other creditors;
Amendment 329 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States may afford grantors of new or interim financing the right to receive payment with priority in the context of subsequent liquidation procedures in relation to other creditrank new financing and interim financing seniors that would otherwise have superior or equal claims to money or assets. In such cases, Member States shall rank new financing and interim financing at least senior to the claims of ordinary unsecured creditoro the claims of ordinary unsecured creditors, but they shall never rank them senior to the claims of the workers' class.
Amendment 331 #
Amendment 335 #
Proposal for a directive
Article 18 – paragraph 1 – point b
Article 18 – paragraph 1 – point b
(b) to have due regard to the interests of creditors, workers and other stakeholders;