On 20 May 2015, the European Commission published regulation (EU) 2015/848 on insolvency proceedings (recast) ("Regulation 2015/848") . This regulation repeals regulation (CE) 1346/2000 on insolvency proceedings, as amended, which originally came into force on 31 May 2002 ("Regulation 1346/2000").
This recast addresses some of the deficiencies contained in the earlier regulation in order to enhance the effective administration of cross-border insolvency proceedings within the European Union ("EU").
The structure of Regulation 2015/848 and Regulation 1346/2000 are fairly similar. The new regulation sets out the jurisdiction rules for the opening of insolvency proceedings in a member state of the EU (a "Member State" and collectively, the "Member States")2, provides for the rules on the determination of the law applicable to such proceedings, and reaffirms the principle of mandatory recognition of those proceedings in other Member States. Regulation 2015/848 also incorporates the case law of the European Court of Justice which had clarified some issues under Regulation 1346/2000 (in particular, the concept of "centre of main interests"). Finally, Regulation 2015/848 contains new rules regarding group insolvency proceedings in order to allow for the coordination of the insolvency proceedings initiated against entities belonging to the same group.
Most of the provisions of Regulation 2015/848 came into effect on 26 June 20173, with the exception of the rules regarding the establishment of national insolvency registers, which will apply as from 26 June 2018, and the creation of an EU interconnected system for the national registers, which will apply as from 26 June 2019. Nevertheless, Regulation 1346/2000 continues to apply to insolvency proceedings falling within its ambit, which were opened before 26 June 2017.
II. MAIN PROVISIONS
1. Scope of Regulation 2015/848
a. Geographical scope of Regulation 2015/848
Regulation 2015/848 applies only to insolvency proceedings opened against a debtor located in a Member State in accordance with the criteria set out in this regulation4.
b. Material scope of Regulation 2015/848
Annex A of Regulation 2015/848 ("Annex A") contains a list which indicates the types of national proceedings to which the regulation applies5. In order to prevent any abuse by the Member States in the interpretation of the content of Annex A, Regulation 2015/848 expressly states that this list is exhaustive6.
The scope of Regulation 2015/848 is extended to insolvency proceedings which promote the rescue of economically viable but distressed businesses and which give a second chance to entrepreneurs, i.e.:
- pre-insolvency proceedings which are aimed at the restructuring of a debtor in financial difficulty at a pre-insolvency stage; and
- hybrid proceedings aimed at a collective restructuring of debts where the existing management is left in place.
The scope of Regulation 2015/848 has been extended to proceedings triggered by situations where the debtor faces non-financial difficulties, provided that such difficulties give rise to a real and serious threat to the debtor's actual or future ability to pay its debts when they fall due.
Regulation 2015/848 may also apply to proceedings in which the debtor is not fully divested of its assets7 and which do not necessarily involve the appointment of an insolvency practitioner8 by the court.
Finally, insolvency proceedings under Regulation 2015/848 do not necessarily involve the intervention of a judicial authority. Therefore, the term "court" as used in this Regulation should, in specific cases, be given a broad meaning so as to encompass any person or body empowered by national law to open insolvency proceedings9.
c. Exclusion under Regulation 2015/848
The exclusions set out in Regulation 2015/848 are relatively similar to those provided in Regulation 1346/2000.
Accordingly, insolvency proceedings concerning insurance undertakings, credit institutions, investment firms and other firms, institutions or undertakings covered by directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions ("Directive 2001/24/EC"), and collective investment undertakings10 are excluded from the scope of this Regulation.
The only difference with Regulation 1346/2000 concerns investment firms. Under Regulation 1346/2000, investment undertakings holding funds or securities for third parties were excluded from the scope of the repealed regulation. The exclusion provided under Regulation 2015/848 is wider and concerns all the investment firms subject to Directive 2001/24/EC.
Finally, Regulation 2015/848 only applies to public proceedings, in order to protect the general interest of creditors. Consequently, Regulation 2015/848 does not apply to proceedings whose opening decision is not published.
2. Rules regarding the main insolvency proceedings
a. Clarification of the concept of "centre of main interests"
Regulation 2015/848 maintains the mechanism set out in Regulation 1346/2000, since it continues to refer to the concept of "centre of main interests" ("COMI") of the debtor to determine the territorial competence of the courts. Pursuant to article 3(1) of Regulation 2015/848, the COMI is presumed to be located, in the absence of proof to the contrary:
- for a company or a legal person, at the place of its registered office;
- for an individual exercising an independent business or professional activity, at the principal place of business of this individual; and
- for any other individual not included in the preceding indent (e.g., consumers), at the place of their habitual residence.
Consequently, the courts of the Member State within the territory of which a debtor's COMI is located will have jurisdiction to open insolvency proceedings (named "main insolvency proceedings").
These main insolvency proceedings have cross border effects, as they have a universal scope and aim at (i) encompassing all the debtor's assets and (ii) avoiding any forum-shopping.
In order to prevent any fraudulent or abusive forum shopping, Regulation 2015/848 provides that the presumption used for determining the COMI shall only apply if:
- in case of a company/legal person, the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings;
- in case of an individual exercising an independent business or professional activity, if the individual's principal place of business has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings; and
- in the case of any other individual, if their habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.
Moreover, Regulation 2015/848 obliges an EU court presented with a request to open insolvency proceedings to examine whether it has jurisdiction (i.e. the court should examine on its own motion whether the debtor's COMI is actually located in its jurisdiction).
b. Recognition of insolvency proceedings
Regulation 2015/848 maintains the principle of automatic recognition of judgments opening main insolvency proceedings in the other Member States, from the moment that they become effective in the Member State of the opening of such proceedings.
As the other Member States have no power to scrutinise that court's decision or to impose any formalities in that respect, the effects attributed to the proceedings by the law of the Member State in which the main proceedings were opened extend to their territory as long as no secondary proceedings are opened in any of those countries11.
However, the automatic recognition of insolvency proceedings opened in another Member State or the enforcement of a judgment handed down in the context of such proceedings will be defeated if the effects of such recognition or enforcement are manifestly contrary to the Member State's public policy, in particular its fundamental principles or the constitutional rights and liberties of the individuals.
c. Applicable law
The provisions of Regulation 1346/2000 concerning the law applicable to an insolvency proceeding have been maintained in Regulation 2015/848. Pursuant to article 7 of Regulation 2015/848, the effects of insolvency proceedings opened in a Member State are in principle governed by the law of that Member State (i.e. the lex concursus). Regulation 2015/848 also indicates that the law of the Member State where the insolvency proceedings are opened shall apply, among other things, to the respective powers of the debtor and the insolvency practitioner, the conditions under which set-offs may be invoked, and the rules governing the lodging, verification and admission of claims.
As was the case for Regulation 1346/2000, Regulation 2015/848 provides for specific exceptions to the abovementioned lex concursus rule.
In particular, Regulation 2015/848 maintains derogatory provisions for rights in rem. Therefore, the basis, validity and extent of rights in rem of creditors of the debtor in relation to tangible or intangible, moveable or immoveable assets and collection of indefinite assets as a whole which change from time to time, should normally be determined according to the lex situs and should not be affected by the opening of insolvency proceedings in another Member State.
The provisions on the rights in rem do not preclude actions for voidness, voidability or unenforceability of legal acts detrimental to the general body of creditors (which can concern foreign rights in rem), as these actions continue to be governed by the law of the Member State where the insolvency proceedings were opened. However, the rights in rem will not be affected by such actions if (i) these rights are subject to the law of a Member State other than that of the Member State of the opening of proceedings, and (ii) the law of that Member State does not allow any means of challenging these rights12.
Regulation 2015/848 contains a series of private international law rules aiming at locating the assets over which rights in rem have been created. In that respect, it includes new indications regarding the determination of the location of certain assets, such as:
- company registered shares (which are located in the Member State where the company has its registered address);
- financial instruments in registered form or recorded in an account (which are located in the Member State where the register or account is maintained);
- cash bank accounts (which are located in the Member State indicated in the accounts' IBAN or if there is no IBAN, the Member State where the credit institution maintaining the account has its central administration); and
- other claims against third parties (which are located in the Member State where the relevant debtor has its centre of main interests).
- Moreover, when a debtor disposes of registered assets, the validity of such disposal shall be governed by the law of the Member State where the assets are located or under whose authority the register is kept.
In addition, the rules applicable to the effects of insolvency proceedings on set-off are identical to those of Regulation 1346/200013.
d. New rules regarding closely linked actions
One of the innovations of Regulation 2015/848 is to introduce rules for the determination of the competent forum in respect of actions arising in the context of insolvency proceedings.
Article 6 of Regulation 2015/848 states that the courts of the Member State where the insolvency proceedings have been opened shall have jurisdiction for any action which derives directly from such proceedings and is closely linked with them.
The preamble to Regulation 2015/848 specifies that actions for the performance of obligations under a contract concluded by the debtor prior to the opening of proceedings are not deemed to derive directly from the proceedings.
Judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by the court of another Member State, shall also be recognised with no further formalities by another court.
3. Rules regarding the secondary proceedings
a. Opening of secondary proceedings
As this was already the case under Regulation 1346/2000, Regulation 2015/848 allows that secondary insolvency proceedings run in parallel with the main insolvency proceedings, in order to protect the diversity of interests. Secondary insolvency proceedings may be opened in the Member State where the debtor has an establishment but which is not the Member State where the COMI of the debtor is situated. The law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened.
In contrast to what was provided for under Regulation 1346/2000, the secondary insolvency proceedings do not have to be liquidation proceedings14 anymore and can allow for the restructuring of the debtor and the implementation of remedial actions when this is still possible.
The effects of secondary insolvency proceedings are limited to the assets located in the territory of the Member State of the opening of such proceedings. Regulation 2015/848 provides for rules to determine the location of the debtor's assets, which should apply when determining which assets belong to the main or secondary insolvency proceedings or to situations involving third parties' rights in rem15.
Despite their territorial limitation, the effects of the secondary proceedings are however recognised in the other Member States. In addition, any restrictions which would be imposed by these proceedings on creditors' rights over assets situated within the territory of another Member State (in particular, a stay of payment or a discharge of debt) will only be effective if the creditors who are concerned by such restrictions have given their consent thereto.
Regulation 2015/848 sets out two specific situations where the court having to decide on a request to open secondary insolvency proceedings should be able, at the request of the insolvency practitioner in the main insolvency proceedings, to postpone or refuse the opening of such proceedings.
First, the court seized of a request to open secondary insolvency should be able to refuse that request if it is satisfied that a unilateral undertaking from the insolvency practitioner of the main insolvency proceedings16 (i) adequately protects the general interests of local creditors in respect of the assets located in the Member State in which secondary insolvency proceedings could be opened, and (ii) certifies that when distributing those assets or the proceeds received as a result of their realisation, he will comply with the distribution and priority rights under national law that creditors would have if secondary insolvency proceedings were opened in that Member State.
Secondly, Regulation 2015/848 provides for the possibility that the court temporarily stays the opening of secondary insolvency proceedings, when a temporary stay of individual enforcement proceedings has been granted in the main insolvency proceedings, in order to preserve the efficiency of this order. The court should however only grant the temporary stay if it is satisfied that suitable measures are in place to protect the general interest of local creditors.
b. Obligation of cooperation
Another innovation of Regulation 2015/848 is to allow the insolvency practitioner in the main insolvency proceedings and the insolvency practitioner(s) in secondary insolvency proceedings concerning the same debtor to cooperate.
In particular, the insolvency practitioners shall (i) communicate as soon as possible to each other any information which may be relevant to the other proceedings, (ii) explore the possibility of restructuring the debtor and, where such a possibility exists, coordinate the elaboration and implementation of a restructuring plan, and (iii) coordinate the administration of the realisation or use of the debtor's assets and affairs.
In the same way, Regulation 2015/848 provides rules regarding cooperation between courts before which a request to open principal or secondary insolvency proceedings is pending, or which has opened such proceedings.
4. Group insolvency proceedings
Regulation 2015/848 lays down all new rules regarding the coordination of insolvency proceedings which relate to two or more members of the same group of companies. Regulation 2015/848 defines a group of companies as "a parent undertaking and all its subsidiary undertakings", while the "parent undertaking" is defined as an undertaking which controls one or more subsidiary undertakings17.
Group coordination proceedings may be requested before any court having jurisdiction over the insolvency proceedings of a member of the group, by an insolvency practitioner appointed in insolvency proceedings opened in relation to a member of the group.
Once the group coordination proceedings have been opened, the court shall (i) appoint a coordinator, (ii) decide on the outline of the coordination, and (iii) decide on the estimation of costs and the share of these costs to be paid by each of the relevant group members. The decision opening group coordination proceedings shall be brought to the notice of the participating insolvency practitioners and of the coordinator.
The coordinator is appointed for the purposes of (i) proposing a group coordination plan, and (ii) recommending a comprehensive set of measures to an integrated approach to the resolution of the group members' insolvencies. The coordinating powers may not include coercive measures.
An insolvency practitioner appointed in respect of any group member may object to (i) the inclusion within the group coordination proceedings of the insolvency proceedings in respect of which it has been appointed, or (ii) the person proposed as a coordinator. When an insolvency practitioner can defeat to the inclusion of the proceedings in respect of which it has been appointed in group coordination proceedings, by objecting thereto.
Various ways of cooperation are envisaged by Regulation 2015/848, including, among others:
- a duty of cooperation between courts of different Member States, by coordinating the appointment of insolvency practitioners;
- an obligation to cooperate and communicate with each other for the various insolvency practitioners and the courts involved in a main and secondary insolvency proceedings relating to the same debtor; and
- the duty for receivers to share pertinent information and to cooperate in setting up a rescue or reorganisation plan.
5. Registers of insolvency proceedings
In order to improve the provision of information to relevant creditors and courts and to prevent the opening of parallel insolvency proceedings, each Member State shall put in place a publicly accessible electronic insolvency register as from 26 June 2018. Those national insolvency registers shall include the mandatory information listed in article 24(2) of Regulation 2015/848, such as the date of the opening of the relevant insolvency proceeding, the court opening the insolvency proceeding and the case reference number, the type of insolvency proceeding referred to in Annex A that was opened, and the time limit for lodging claims.
In order to facilitate access to that information by creditors and courts domiciled or located in other Member States, the European Commission shall put in place an interconnected insolvency register system by 26 June 2019, based on the national insolvency registers, through a website and the European e-Justice Portal, which shall serve as a central public electronic access point to information in the system. The system shall provide a search service in all the official languages of the EU in order to make available the mandatory information and any other documents or information included in the insolvency registers which the Member States choose to make available through the European e-Justice Portal.
6. New rules regarding the procedure for lodging claims
As this was already the case under Regulation 1346/2000, Regulation 2015/848 provides a duty for courts (or the insolvency practitioners appointed by these courts) to inform all the known foreign creditors as soon as proceedings are opened. This information is made through the sending of an individual notice, which shall in particular include the deadlines for lodging the claims, the penalties laid down with regard to those time limits, the body or authority empowered to accept the lodgement of claims and any other measures laid down in relation to the insolvency proceedings. The notice shall also indicate whether creditors whose claims are preferential or secured in rem need to lodge their claims.
Article 55 of Regulation 2015/848 provides for the establishment of a European standard claim form to be established by the European Commission. The form shall bear the heading "Lodgement of claims" in all the official languages of the EU, and shall include information listed in this article. On 12 June 2017, the European Commission has adopted the Commission implementing regulation (EU) 2017/1105 establishing the forms referred to in Regulation 2015/84818.
The standard claims form shall be accompanied by copies of any supporting documents aiming at evidencing the existence and extent of the claim.
The information that shall be included in the standard claims form is overall very similar, yet more specific, than the information required by article 498 of the Luxembourg Commercial Code. For instance, information regarding the creditor must be more precise, and indicate the bank details and if any, an e-mail address and a personal identification number19. Information regarding the claim should specify, when applicable, the amount and nature (legal or contractual) of the interest.
Claims may be lodged in any official language of the EU. Nevertheless, the court, the insolvency practitioner or the debtor in possession may require the creditor to provide a translation in the official language of the Member State of the opening of proceedings or, if there are several official languages in that Member State, in the official language or one of the official languages of the place where insolvency proceedings have been opened, or in another language which that Member State has indicated it can accept.
It is still possible for a creditor to lodge its claim by means other than the standard form, but in such case the claim shall contain the information referred to in article 55 of Regulation 2015/848.
1 This regulation was published on 5 June 2015 in the Official Journal of the European Union, L141, pp. 19 ff. It has been amended since its publication.
2 Regulation 2015/848 does not apply to Denmark and continues to apply to the United Kingdom for the time being even if the process of withdrawal from the EU (the so-called "Brexit") has been initiated by that state. It cannot be anticipated at this stage if later agreements will be entered into between the United Kingdom and the EU in relation to Regulation 2015/848.
3 RCSL Circular 17/01 of 22 June 2017 on regulation (EU) 2015/848 of the European Parliament and the Council dated 20 May 2015 on insolvency proceedings specifies that the reference to Regulation 1346/2000 made in the law of 19 December 2002 on the Trade and Companies Register (the "RCSL") as well as company accounts and annual financial statements, as amended (the "2002 Law"), shall be understood as a reference to Regulation 2015/848, since the lawmaker has not amended the 2002 Law in that respect. Consequently, the RCSL will not deliver "negative certificates" (certificate de non-inscription d'une decision judiciaire) if an insolvency proceeding covered by Regulation 1346/2000 or Regulation 2015/848 has been opened.
4 The criteria applied for the location of a debtor are considered in section 2.a below.
5 The proceedings which were mentioned in Annex A of Regulation 1346/2000 for Luxembourg are maintained in Regulation 2015/848 (namely, (i) bankruptcy (faillite), (ii) judicial decisions regarding controlled management (gestion contrdlee), (iii) scheme of composition with the creditors (concordat preventif de faillite), (iv) proceedings of over-indebtedness (procedure de reglement collectif des dettes dans le cadre du surendettement), and (v) liquidation of a public notary (regime special de liquidation du notariat).
6 Recital 9 of Regulation 2015/848. The only way to add proceedings to, or to withdraw same from, Annex A is to Regulation 2015/848 amended in accordance with the EU legislative process. Accordingly, Member States should notify the European Commission of the proceedings to be included in Annex A and the European Commission will then ensure that the requirements contained in Regulation 2015/848 regarding the type of proceedings falling within its ambit are complied with before an amending regulation is adopted.
7 The debtor is then referred to as a "debtor in possession", as defined in article 2(3) of Regulation 2015/848.
8 As defined by article 2(5) of Regulation 2015/848. The persons admitted as insolvency practitioners for Luxembourg are listed in Annex B to Regulation 2015/848 (i.e. for Luxembourg, a bankruptcy trustee (curateur), an administrator (commissaire), a liquidator (liquidateur), the management board of the notary restructuring section (conseil de gerance de la section d'assainissement du notariat), and a liquidator within the framework of overindebtedness (liquidateur dans le cadre du surendettement).
9 Article 2(6) of Regulation 2015/848.
10 I.e. (i) undertakings for collective investment in transferable securities (UCITS) as defined in Directive 2009/65/EC of the European Parliament and of the Council, and (ii) alternative investment funds (AlFs) as defined in Directive 2011/61/EU of the European Parliament and of the Council.
11 Please refer to section 3 below.
12 The protection granted by Regulation 2015/848 to rights in rem applies in Luxembourg to financial collateral arrangements governed by the law of 5 August 2005 on financial collateral arrangements, as amended (e.g., pledges over financial instruments and claims). According to the case law, these arrangements are immunised against national or foreign bankruptcy and reorganisation measures, winding-up proceedings and other similar proceedings and attachments.
13 I.e. the possibility for a creditor to demand the set-off of its claims against the claims of the debtor is in principle not affected by the opening of insolvency proceedings against the debtor if such set-off is permitted under the law applicable to the insolvent debtor's claims.
14 Since this requirement no longer exists for secondary insolvency proceedings, all principal and secondary insolvency proceedings have been gathered in Annex A.
15 Please refer to section 2. c) (ii) above.
16 The insolvency practitioners need to ensure that their undertaking will not be broken, as they will be held liable in that set of circumstances for any damage caused to the local creditors of the Member State where the secondary insolvency proceedings could have been opened.
17 By reference to the directive 2013/34/EU of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC.
18 Official Journal of the European Union, L-160, 22 June 2017, p. 1-26.
19 In practice, such information is generally disclosed in the statements of claims in Luxembourg, even if this is not strictly required by the Luxembourg Commercial Code.