Verordening 2000/1346 - Insolventieprocedures - Hoofdinhoud

Insolvency proceedings

This law lays down common rules for cross-border insolvency proceedings in European Union (EU) countries, except Denmark. It seeks to dissuade debtors from transferring assets or judicial proceedings from one country to another to improve their legal position.

ACT

Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.

SUMMARY

The law introduces a coherent system of legal rules to govern transnational insolvency procedures involving companies, traders or individuals. It permits coordinated measures to be taken concerning the assets of an insolvent debtor located in different EU countries. These rules relate to:

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  the court authorised to open insolvency proceedings;
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  the applicable law;
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  the recognition of legal decisions in insolvency cases;
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  the relationship between different insolvency proceedings opened in relation to the same debtor; and
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  the lodging of claims by foreign creditors.

Scope

The law applies to collective insolvency proceedings that entail the partial or total divestment of a debtor and the appointment of a liquidator. The national proceedings covered are listed in an annex to the law.

It does not apply to proceedings concerning insurance undertakings, credit institutions, investment undertakings that provide services involving the holding of funds or securities for third parties, or collective investment undertakings.

Main and secondary proceedings

The courts with jurisdiction to open main proceeding are those of the EU country where a debtor has his/her centre of main interests (i.e. where a company's registered office is based, in the absence of proof to the contrary). This proceeding has a global scope and is designed to cover a debtor's worldwide assets and to be of interest to creditors, wherever they may be.

Alongside the main proceeding, courts in another EU country may open a secondary proceeding if the debtor has economic operations in its territory but this is limited to the assets of the debtor located in that territory.

To ensure the debtor's estate is administered effectively, the law requires that main and secondary proceedings are coordinated. The liquidators appointed in each are obliged to cooperate closely, in particular by sharing information. The liquidator in the main proceeding can also intervene in the secondary proceedings, for example to propose a restructuring plan or request that the sale of assets be suspended.

Applicable law

As a general rule, the law of the EU country in which insolvency proceedings are opened is applicable. This rule is valid both for main and for secondary proceedings.

The law of the EU country where the proceedings are opened determines in particular:

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  the conditions for their opening, conduct and closure;
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  the definition of debtors and assets, the respective powers of the debtor and the liquidator and the effects of proceedings on contracts, individual creditors, claims, etc.

Exceptions

Provisions exist guaranteeing the security rights of third parties with respect to a debtor's tangible and intangible assets and the right of a seller based on reservation of title, such that these rights are not affected by the opening of the proceedings if the assets are located outside the country where insolvency proceedings have been opened.

Rights to real estate are governed solely by the law of the EU country where the property is situated. The liquidator's right to terminate employment contracts, the right of a creditor to demand a set-off and rights and obligations of parties to a payment system or to a financial market are also governed solely by the law of the EU country that is applicable to them.

Recognition of insolvency proceedings

If a court of an EU country decides to open insolvency proceedings, the law requires the decision to be recognised in all other EU countries.

The law also ensures that decisions closely linked to insolvency proceedings - such as actions to set aside detrimental acts (i.e. acts that are harmful to the creditors) - are recognised in the other country.

The effects of the decision are those provided for by the law of the country where proceedings are opened. Recognition can only be refused where its effects would be contrary to that country’s public policy.

Lodging of claims

The law gives every creditor resident in an EU country the right to lodge their claims in insolvency proceedings opened in another EU country.

This right also applies to tax authorities and social insurance institutions. Where several proceedings have been opened in relation to the debtor's assets, the law requires that the distribution of proceeds has to be coordinated between the different proceedings, to ensure all creditors receive equal treatment.

REFERENCES

Successive amendments and corrections to Regulation (EC) No 1346/2000 have been incorporated in the basic text. This consolidated version is for reference purposes only.

RELATED ACTS

Commission Recommendation 2014/135/EU of 12 March 2014 on a new approach to business failure and insolvency (Official Journal L 74, 14.3.2014, pp. 65-70).

This recommendation contains a series of principles for national insolvency procedures for businesses in financial difficulty. The emphasis is on encouraging viable businesses to restructure at an early stage so as to prevent insolvency. The Commission considers that reforming national insolvency rules would help keep viable firms in business and safeguard jobs and, at the same time, improve the environment for creditors who would be able to recover a higher proportion of their investment than if the debtor had gone bust.

Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee: A new European approach to business failure and insolvency (COM(2012) 742 final, 12.12.2012).

Last updated: 02.09.2014

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