2017年-德勤全球_A_guide_to_pre-insolvency_and_insolvency_proceedings_across_Europe_87页_2mb

Summary of Pre-Insolvency and Insolvency Proceedings in Europe

Core Content

This guide provides an overview of pre-insolvency and insolvency proceedings across 19 European countries, including 16 EU Member States and 3 non-EU Member States. It highlights the legal frameworks, procedures, and key developments in insolvency laws, particularly focusing on the Recast EU Insolvency Regulation (2015/848), which came into effect on 26 June 2017.

Main Provisions of the Recast Regulation

The Recast EU Insolvency Regulation (2015/848) aims to improve the functioning of cross-border insolvency proceedings by:

• Extending the scope to include hybrid and pre-insolvency proceedings.
• Codifying the determination of COMI (Center of Main Interests), which is the key factor in determining jurisdiction.
• Allowing secondary proceedings in Member States where the debtor has an establishment.
• Introducing group coordination proceedings to enhance the efficiency of insolvency processes for groups of companies.
• Enhancing transparency through the establishment of electronic insolvency registers.
• Improving the process for lodging claims by foreign creditors, ensuring a minimum period of 30 days for claims submission.

The regulation is directly applicable in the 27 EU Member States (excluding Denmark) and does not require national transposition, although it is only effective if supported by national legislation.

Key Information

Pre-Insolvency and Insolvency Regimes by Country

Main Changes in the Regulation

• COMI Determination: The COMI is now clearly defined, with a presumption that the registered office is the COMI unless proven otherwise.
• Secondary Proceedings: Courts may dismiss secondary proceedings if the main proceedings adequately protect local creditors.
• Group Coordination: A new framework for coordinating group insolvency proceedings, involving a coordinator and cooperation among courts and insolvency practitioners.
• Electronic Registers: Member States must maintain electronic insolvency registers, with interconnection expected from 2019.
• Claim Lodging: Foreign creditors have a minimum 30-day period to lodge claims, enhancing legal certainty and access to justice.

Challenges and Future Outlook

• Harmonization: Despite the regulation, insolvency laws remain divergent across Member States, creating challenges for cross-border coordination.
• Capital Market Development: The EU's capital markets are relatively underdeveloped compared to the US, and harmonization of insolvency laws could help promote investment and financial stability.
• Non-Performing Loans: Harmonization is seen as crucial for managing non-performing loans and supporting restructuring of distressed businesses.
• Gradual Approach: The European Commission proposes a partial and gradual harmonization of insolvency laws, focusing on common principles rather than full harmonization.

Deloitte Legal's Role

Deloitte Legal's Insolvency Group offers:

• Pan-European legal advice on insolvency and restructuring.
• Support for cross-border insolvency through cooperation with legal, financial, and tax experts.
• Services for distressed companies, including restructuring, asset recovery, and coordination of proceedings.
• Expertise in various jurisdictions, including Belgium, Bulgaria, and others, with a focus on providing practical and strategic guidance.

Conclusion

The guide underscores the importance of understanding the divergent legal regimes across European countries and highlights the Recast Regulation as a key step towards better cross-border coordination. However, the harmonization of insolvency laws remains a significant challenge and is essential for improving legal certainty, promoting investment, and supporting the recovery of distressed businesses. Deloitte Legal plays a vital role in navigating these complex legal landscapes and providing support to clients facing financial difficulties.