(45)

The following Chapter is inserted: ‘CHAPTER IVa INSOLVENCY OF MEMBERS OF A GROUP OF COMPANIES Article 42a Duty to cooperate and communicate information between liquidators insolvency representatives 1. Where insolvency proceedings relate to two or more members of a group of companies, a liquidator an insolvency representative appointed in proceedings concerning a member of the group shall cooperate with any liquidator insolvency representative appointed in proceedings concerning another member of the same group to the extent that such cooperation is appropriate to facilitate the effective administration of the proceedings, is not incompatible with the rules applicable to such proceedings and does not entail any conflict of interests. That cooperation may take the form of agreements or protocols. 2. In the exercise of the cooperation referred to in paragraph 1, the liquidators insolvency representatives shall (a) immediately communicate to each other any information which may be relevant to the other proceedings, provided that appropriate arrangements are made to protect confidential information; (b) explore the possibilities for restructuring the group members subject to insolvency proceedings and, where such possibilities exist, coordinate with respect to the proposal and negotiation of a coordinated restructuring plan; [Am. 53] (c) coordinate the administration and supervision of the affairs of the group members subject to insolvency proceedings. The liquidators insolvency representatives may agree to grant additional powers to the liquidator insolvency representative appointed in one of the proceedings where such an agreement is permitted by the rules applicable to each of the proceedings. Article 42b Communication and cooperation between courts 1. Where insolvency proceedings relate to two or more members of a group of companies, a court before which a request to open proceedings concerning a member of the group is pending or which has opened such proceedings shall cooperate with any other court before which a request to open proceedings concerning another member of the same group is pending or which has opened such proceedings to the extent that such cooperation is appropriate to facilitate the effective administration of the proceedings and is not incompatible with the rules applicable to them. For this purpose, the courts may, where appropriate, appoint a person or body acting to act on its instructions , provided that this is not incompatible with the rules applicable to the proceedings . [Am. 54] 2. The courts referred to in paragraph 1 may communicate directly with each other, or request information or assistance directly from each other. 3. Cooperation shall take place by any appropriate means, including (a) communication of information by any means considered appropriate by the court provided that such communication shall be free of charge and shall respect the procedural rights of the parties to the proceedings and the confidentiality of information; (b) coordination of the administration and supervision of the assets and affairs of the members of the group; (c) coordination of the conduct of hearings; (d) coordination in the approval of protocols. Article 42c Cooperation and communication between liquidators insolvency representatives and courts A liquidator An insolvency representative appointed in insolvency proceedings concerning a member of a group of companies shall cooperate and communicate with any court before which a request for the opening of proceedings with respect to another member of the same group of companies is pending or which has opened such proceedings, to the extent that such cooperation is appropriate to facilitate the coordination of the proceedings, and is not incompatible with the rules applicable to them and does not entail any conflict of interests . In particular, the liquidator insolvency representative may request information from that court concerning the proceedings regarding the other member of the group or request assistance concerning the proceedings in which he has been appointed. [Am. 55] Article 42d Powers of the liquidators insolvency representatives and stay of proceedings 1. A liquidator An insolvency representative appointed in insolvency proceedings opened with respect to a member of a group of companies shall have the right (a) to be heard and to participate, in particular by attending creditors' meetings, in any of the proceedings opened with respect to any other member of the same group; and (b) to request , for a period of up to two months, a stay of the proceedings opened with respect to any other member of the same group. [Am. 56] (c) to propose a rescue plan, a composition or a comparable measure for all or some members of the group for which insolvency proceedings have been opened and to introduce it into any of the proceedings opened with respect to another member of the same group in accordance with law applicable to those proceedings; and [Am. 57] (d) to request any additional procedural measures under the law referred to in point c) which may be necessary to promote rescue, including the conversion of proceedings. [Am. 58] 2. The court which opened proceedings referred to in point (b) of paragraph 1 shall stay those proceedings in whole or in part if it is proven the insolvency representative provides sufficient evidence that such a stay would be to the benefit of the creditors in those proceedings. Such a stay may be ordered for up to three two monthsand may be continued or renewed for the same period. The court ordering the stay may require the liquidator insolvency representative to take any suitable measure to guarantee the interests of the creditors in the proceedings. [Am. 59] Article 42da Opening of group coordination proceedings 1. Group coordination proceedings may be brought by an insolvency representative in any court having jurisdiction over the insolvency proceedings of a member of the group, provided that: (a) insolvency proceedings with respect to that member of the group are pending; and (b) the members of the group having their centre of main interests in the Member State of the court seised to open the group coordination proceedings perform crucial functions within the group. 2. Where more than one court is seised to open group coordination proceedings, the group coordination proceedings shall be opened in the Member State where the most crucial functions within the group are performed. To that extent, the courts seised shall communicate and cooperate with each other in accordance with Article 42b. Where the most crucial functions cannot be determined, the first court seised may open group coordination proceedings provided that the conditions for opening such proceedings are satisfied. 3. Where group coordination proceedings have been opened, the right of insolvency representatives to request a stay of the proceedings in accordance with point (b) of Article 42d(1) shall be subject to the approval of the coordinator. Existing stays shall remain in force and effect, subject to the coordinator’s power to request the cessation of any such stay. [Am. 60] Article 42db Tasks and rights of the coordinator 1. The court opening group coordination proceedings shall appoint a coordinator. The coordinator shall be independent of the group members and their creditors and shall have the task of: (a) identifying and outlining procedural and substantive recommendations for the coordinated conduct of the insolvency proceedings; (b) mediating in disputes arising between two or more insolvency representatives of group members; and (c) presenting a group coordination plan that identifies, describes and recommends a comprehensive set of measures appropriate to an integrated approach to the resolution of the group members’ insolvencies. In particular, the plan may entail recommendations on (i) the measures to be taken in order to re-establish the economic performance and financial soundness of the group or any part of it; (ii) the settlement of intra-group disputes, in particular with respect to intra-group transactions and avoidance actions; (iii) agreements between the insolvency representatives of the insolvent group members. 2. The coordinator shall have the right: (a) to be heard and to participate, in particular by attending creditors' meetings, in any of the proceedings opened with respect to any member of the group; (b) to present and explain a group coordination plan approved in accordance with Article 42dc(3); (c) to request information from any insolvency representative that is or might be of use for the purpose of identifying and outlining strategies and measures in order to coordinate the proceedings; and (d) to request a stay for a period of up to three months of the proceedings opened with respect to any other member of the group and to request the cessation of any such stay. [Am. 61] Article 42dc Court approval of group coordination plans 1. Insolvency representatives appointed for insolvency proceedings that would be affected by the implementation of a group coordination plan may comment on the draft of the group coordination plan within a period of not more than one month set by the coordinator when submitting the plan. 2. The draft plan submitted for court approval shall be accompanied by: (a) a representation of the coordinator as to how paragraph 1 has been complied with; (b) the comments received from the insolvency representatives as at the time of submission of the draft plan; and (c) a reasoned statement by the coordinator as to how the comments have, or have not, been reflected in the draft plan. 3. The court shall approve the plan if it is satisfied that the coordinator has complied with the formal requirements of paragraph 2 of this Article and of point (c) of Article 42db(1). [Am. 62] Article 42dd Relation between group coordination proceedings and insolvency proceedings 1. When conducting their insolvency proceedings, insolvency representatives shall have a duty to consider the recommendations of the coordinator and the group coordination plan. Where an insolvency representative intends to deviate from measures or actions proposed in the group coordination plan, he shall explain the reasons for such deviation at the creditors’ meeting or to any other body to which he is accountable under the laws of the relevant Member State. 2. Non-compliance with paragraph 1 shall be treated as a breach of the duties of the insolvency representative under the laws of the relevant Member State. [Am. 63] Article 42de Coordinator’s liability The coordinator shall perform his duties with due care. He shall be responsible vis-à-vis the estates of the insolvency proceedings covered by the group coordination proceedings for damage reasonably attributable to breaches of those duties. His liability shall be established in accordance with the law of the Member State where the coordination proceedings were opened. [Am. 64] Article 42df Costs 1. The laws of the Member States shall make provision for the court fees and the remuneration of the coordinator. 2. The costs in the group coordination proceedings shall be borne pro rata by the group members in relation to which insolvency proceedings had been opened at the time of the opening of the coordination proceedings. The share to be borne by each group member shall be calculated with reference to the share of the asset value of such member in the consolidated assets of all the members of the group in relation to which insolvency proceedings had been opened.’ [Am. 65]