REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings
Date: 2012-12-12
Institutions: European Commission
Subjects: access to information, claim, cross-border cooperation, financial solvency, judicial cooperation in civil matters in the EU, judicial proceedings, multinational enterprise, natural person

EUROPEAN 
COMMISSION 

Strasbourg, 12.12.2012  
COM(2012) 743 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

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

EN 

   EN 

 
 
 
 
 
  
 
TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

2. 

Introduction .................................................................................................................. 3 

Background .................................................................................................................. 3 

General Assessment of the application of the Regulation ........................................... 4 

Scope of the Regulation ............................................................................................... 4 

2.1. 

Proceedings covered by the Regulation ....................................................................... 4 

2.1.1.  Pre-insolvency and hybrid proceedings ....................................................................... 4 

2.1.2.  The insolvency of private individuals and self-employed persons .............................. 6 

2.2. 

2.3. 

3. 

3.1. 

3.2. 

3.3. 

4. 

4.1. 

4.2. 

5. 

6. 

7. 

8. 

9. 

Proceedings excluded from the scope, Article 1(2) ..................................................... 7 

Recognition of insolvency proceedings opened outside the EU or coordination 
between proceedings inside and outside the EU .......................................................... 8 

Jurisdiction for opening insolvency proceedings......................................................... 8 

Definition and determination of the debtor's centre of main interests (COMI) ........... 8 

Procedural framework for examining jurisdiction ....................................................... 9 

Insolvency-derived actions......................................................................................... 10 

Applicable Law .......................................................................................................... 10 

Scope of the general rule (Lex fori concursus) .......................................................... 10 

Exceptions to the lex fori principle ............................................................................ 11 

Recognition of judgments opening insolvency proceedings...................................... 12 

Coordination of main and secondary proceedings ..................................................... 13 

Group of companies ................................................................................................... 14 

Publication of and information on insolvency proceedings....................................... 15 

Lodgment of claims ................................................................................................... 15 

10. 

Conclusions ................................................................................................................ 16 

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

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

1. 

INTRODUCTION 

1.1. 

Background 

Council  Regulation  (EC)  No  1346/2000  on  insolvency  proceedings1  (the  "Regulation"  or 
"EIR") came into force in May 2002. The Regulation established a European framework for 
cross-border insolvency proceedings. It applies whenever the debtor has assets or creditors in 
more  than  one  Member  State,  irrespective  of  whether  he  is  a  natural  or  legal  person.  The 
Regulation  determines  which  court  has  jurisdiction  to  open  insolvency  proceedings  and 
ensures the recognition and enforcement of the ensuing decision throughout the Union. It also 
establishes  uniform  rules  on  applicable  law  and  provides  for  the  coordination  of  main  and 
secondary proceedings. 

The  Regulation  applies  in  all  Member  States  with  the  exception  of  Denmark  which  has  a 
special regime for judicial cooperation under the Treaty on the Functioning of the European 
Union.  

This  report  has  been  prepared  in  accordance  with  Article  46  of  the  Regulation.  It  aims  to 
present  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social 
Committee  an  assessment  of  the  application  of  the  Regulation.  This  report  has  taken  into 
account the following documents:  

• 

• 

• 

1 
2 

3 

4 

a comparative legal study on the evaluation of the Regulation in 26 Member States 
which was carried out by the Universities of Heidelberg and Vienna with the support 
of a network of national reporters2; 

a study for an impact assessment of an amendment of the Regulation carried out by a 
consortium of GHK and Milieu3;  

The results of a web-based public consultation which took place between March and 
June 20124. The Commission received a total of 134 replies from all Member States 
except  Bulgaria  and  Malta  with  the  UK  (21%),  Romania  (20%)  and  Italy  (12%) 
representing more than 50% of all respondents. Replies were received from a wide 

on 

the 

published 

OJ L 160, 30.6.2000, p.1. 
Hess/Oberhammer/Pfeiffer,  Study  for  an  evaluation  of  Regulation  (EC)  No  1346/2000  on  Insolvency 
Proceedings; 
at 
Europa 
http://ec.europa.eu/justice/civil/document/index_en.htm 
This 
http://ec.europa.eu/justice/civil/document/index_en.htm. 
A  statistical  overview  of  the  replies  received  through  the  IPM  tool  has  been  published  at 
http://ec.europa.eu/yourvoice/ipm/forms/dispatch?userstate=DisplayPublishedResults&form=Insolvenc
y. An analysis of all replies received has been prepared by GHK/Milieu and forms part of the impact 
assessment study referred to above. 

published 

JUSTICE 

JUSTICE 

Europa 

study 

DG 

DG 

site 

site 

the 

on 

of 

of 

at 

is 

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range  of  stakeholders  with  academics,  legal  practitioners  and  public  authorities 
providing the greatest number of replies. 

The application of the Regulation was also discussed with the European Judicial Network in 
civil and commercial matters. 

1.2. 

General Assessment of the application of the Regulation 

Based on the evaluation, the Commission concludes that the Regulation is generally regarded 
as a successful instrument for the coordination of cross-border insolvency proceedings in the 
Union. Its fundamental choices and underlying policies are largely supported by stakeholders. 
The case-law of the Court of Justice of the European Union (CJEU) clarified the Regulation's 
interpretation on a number of issues, thereby contributing to the uniform interpretation of the 
Regulation  by  national  courts.  This  assessment  is  supported  by  the  results  of  the  public 
consultation  where  a  majority  of  respondents  considered  that  the  Regulation  operates 
efficiently,  with  legal  practitioners,  public  authorities  and  academics  expressing  the  most 
positive views.  

However, a number of shortcomings of the Regulation have been identified by the evaluation 
study and the public consultation. Therefore, the Commission considers that there is a need to 
bring  forward  necessary  adaptations  to  meet  the  need  for  a  modern  and  business-friendly 
environment.  Essentially,  problems  have  been  identified  in  relation  to  the  scope  of  the 
Regulation,  the  rules  on  jurisdiction,  the  relation  between  main  and  secondary  proceedings, 
the  publicity  of  insolvency-related  decisions  and  the  lodging  of  claims.  In  addition,  the 
absence  of  specific  rules  for  the  insolvency  of  members  of  a  group  of  companies  has  been 
criticised. These issues are described in more detail below. 

2. 

SCOPE OF THE REGULATION 

2.1. 

Proceedings covered by the Regulation 

The  primary  objective  of  the  Regulation  is  to  ensure  that  a  decision  to  opening  insolvency 
proceedings  and  its  effects,  whether  in  relation  to  natural  or  legal  persons,  are  recognised 
throughout the Union. Article 1 (1) that sets out the criteria which national proceedings have 
to  fulfil  to  come  under  the  scope  of  the  Regulation  reflects  the  traditional  concept  of 
insolvency  proceedings,  because  it  presupposes  the  debtor's  insolvency  and  requires  the 
divestment of the debtor and the appointment of a liquidator. However, due to new trends and 
approaches in the Member States, the current scope of the Regulation no longer covers a wide 
range  of  national  proceedings  aiming  at  resolving  the  indebtedness  of  companies  and 
individuals.  

2.1.1.  Pre-insolvency and hybrid proceedings 

At present, many national insolvency laws in Europe provide for pre-insolvency and hybrid 
proceedings. Pre-insolvency proceedings can be characterised as quasi-collective proceedings 
under the supervision of a court or an administrative authority which give a debtor in financial 
difficulties  the  opportunity  to  restructure  at  a  pre-insolvency  stage  and  to  avoid  the 
commencement  of  insolvency  proceedings  in  the  traditional  sense.  Hybrid  proceedings  are 
proceedings in which the debtor retains some control over its assets and affairs albeit subject 
to the control or supervision by a court or an insolvency practitioner.  

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The  evaluation  study  concludes  that  15  Member  States  have  pre-insolvency  or  hybrid 
proceedings which are currently not listed in Annex A of the Regulation as set out in the table 
below. 

Table: Pre-insolvency and hybrid proceedings not included in Annex A of the Regulation 

Austria 

Belgium 

-  proceedings  under 
(Reorganisationsverfahren) 

the  Business  Reorganization  Act  of  1997 

-  Commercial  investigation  (Handelsonderzoek  /  enquête  commercial; 
Article 8 et seq. LCE (Loi relative à la continuation des entreprises) 

-  Appointment  of  a  mediator  (Aanstelling  ondernemingsbemiddelaar  / 
Désignation d’un médiateur d’entreprise; Art. 13 LCE) 

- Appointment of a mandataire de justice (Aanstelling gerechtsmandataris / 
Désignation d’un mandataire de justice; Art. 14 LCE) 

-  Out-of-court  agreement  (Minnelijk  akkoord  /  Accord  amiable;  Art.  15 
LCE) 

-  Judicial  reorganisation  by  way  of  individual  agreement  (Gerechtelijke 
reorganisatie  door  een  minnelijk  akkoord  /  Réorganisation  judiciaire  par 
accord amiable; Art. 43 LCE) 

-  Appointment  of  a  provisional  administrator  (Aanstelling  voorlopig 
bestuurder / Désignation d’un administrateur provisoire; Art. 28 LCE) 

Estonia 

-  Reorganisation  proceedings  for  legal  entities  (Estonian  Reorganisation 
Act) 

-  debt  adjustment  proceedings  for  natural  persons  (Debt  Restructuring  and 
Debt Protection Act) 

France 

- mandat ad hoc (L 611-3 Code de commerce) 

- conciliation proceedings (L 611-4 et seq. Code de commerce) 

- sauvegarde financière accélérée (SFA) 

Germany 

- protective shield proceedings (Schutzschirmverfahren, Section 270b InsO)5 

Greece 

Italy 

-  Procedure  of 
(diadikasia  eksigiansis,  διαδικασία 
εξυγίανσης; Articles 99 et seq. of the Greek Bankruptcy Code, as amended 
by Article 234 of the recent law no. 4072/2012) 

reorganization 

- accordo di ristrutturazione dei debiti (Art. 182 bis of the Italian Insolvency 
Act) 

5 

The current situation is unclear: As Annex A generally refers to proceedings of the Insolvency Act, the 
protection shield proceedings seem to be included. However, there is still an uncertainty whether these 
proceedings correspond to the definition of Article 1 (1) EIR. 

EN 

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- piano di risanamento attestato 

Latvia 

Malta 

- out-of court legal protection proceedings (provided in the Insolvency Law 
of 26 July 2010) 

-  Statutory  scheme  of  compromise  or  arrangement  (Rikostruzzjonijiet  ta’ 
Kumpaniji) 

- Company Recovery Procedure 

Netherlands 

- Schuldsaneringsregeling which applies to natural persons, Article 287a of 
the Dutch Bankruptcy Act 

Poland 

-  rehabilitation  proceeding  (Postępowanie  naprawcze;  Art.  492-521  of  the 
Bankruptcy and Rehabilitation Law) 

Romania 

- mandat ad-hoc (mandatul ad-hoc; Art. 7 et seq. Law No. 381/2009) 

-  concordat  préventif  (concordatul  preventiv;  Art. 13  et  seq.  Law  No. 
381/2009) 

- homologación de los acuerdos de refinanciación (4th Additional Provision 
of the Law No. 38/2011 amending the Spanish Insolvency Act) 

-  Debt  relief  proceedings  (skuldsanering;  Section  4  of  the  Law  on  debt 
relief) applicable to private individuals 

Spain 

Sweden 

UK 

- schemes of arrangement (Part 26 of the Companies Act 2006) 

The  main  problem  resulting  from  the  fact  that  a  substantial  number  of  pre-insolvency  and 
hybrid  proceedings  are  currently  not  covered  by  the  Regulation  is  that  their  effects  are  not 
recognised  throughout  the  EU.  As  a  consequence,  dissenting  creditors  may  seek  to  enforce 
their claims against assets of the debtor located in another Member State, which can thwart 
the efforts to rescue the company (so-called "holding-out" problem). Moreover, opportunities 
to rescue companies may be foregone because parties are unwilling to engage in the relevant 
procedures if their cross-border recognition is not ensured. It has therefore been recommended 
to address these problems in the revision of the Regulation. This view is shared by a majority 
of respondents to the public consultation (59%) which considered that the Regulation should 
cover pre-insolvency and hybrid proceedings. Views were mixed, however, on exactly which 
proceedings should be covered and in particularly where court oversight should be required. 

In  addition,  the  evaluation  study  has  identified  problems  in  relation  to  the  discrepancies 
between the procedures listed in the Annexes and the conditions laid down in Article 1 (1). 
These problems are illustrated by two references for preliminary rulings which are currently 
pending  at  the  CJEU.  The  first  case  raises  the  question  whether  the  Regulation  applies  to  a 
national  insolvency  procedure  which  is  not  listed  in  the  Annexes,  but  which  corresponds  to 
the  definition  of  Article  1(1).6  The  second  case  concerns  the  issue  whether  the  Regulation 
applies  to  national  procedures  which  are  listed  in  the  Annex,  but  do  not  correspond  to  the 

6 

CJEU, case C-461/11, Ulf Kaziemierz Radziejewski. 

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definition of Article 1(1).7 These cases show that there is currently some legal uncertainty as 
to which procedures are actually covered by the scope. 

A third problem identified relates to situations where national procedures which are listed in 
the Annexes are changed by the Member States without any notification of the modifications 
to the Commission. In these situations it is unclear whether the amended or new procedures of 
the Member States correspond to the definition of Article 1(1). 

2.1.2.  The insolvency of private individuals and self-employed persons 

The Regulation applies to national proceedings, regardless of whether they concern a natural 
or a legal person, a trader or an individual8. The evaluation study revealed that while many 
Member  States  have  notified  their  personal  insolvency  procedures  to  be  included  in  the 
Annexes9, a considerable number of personal insolvency procedures are currently not covered 
by  the  Regulation10.  This  situation  is  partly  because  the  proceedings  do  not  match  the 
Regulation's definition in Article 1(1), were only recently introduced or are not considered to 
fall within the scope of the Regulation by the respective Member State11. The latter contrasts 
with the results from the public consultation, in which a majority of respondents (59%) agreed 
that the Regulation should apply to private individuals and self-employed.  

The  diversity  of  national  laws  adds  to  complexity:  Some  Member  States  have  no  personal 
insolvency schemes at all. Other Member States have personal insolvency schemes that apply 
both to self-employed or sole traders and consumers. A third group has special schemes only 
for consumers and include self-employed and sole traders in company insolvencies, whereas a 
fourth group has separate schemes for consumers, self-employed and sole traders.  

The  Commission  finds  that  the  status  quo  is  a  problem  because  it  can  result  in  debtors 
remaining  liable  to  foreign  creditors.  In  particular,  an  honest  entrepreneur,  who  has  been 
discharged  from  its  debts  in  one  Member  State,  may  be  prevented  from  starting  a  new 
business or trading with another Member State. The problem can also discourage debtors who 
have benefitted from a debt discharge at home to live or seek employment in another Member 
State.  

2.2. 

Proceedings excluded from the scope, Article 1(2) 

The  Regulation  does  not  apply  to  insurance  undertakings,  credit  institutions,  investment 
undertakings,  which  provide  services  involving  the  holding  of  funds  or  securities  for  third 
parties, or to collective investment undertakings. These debtors are excluded from the scope 
because they are subject to special arrangements and, to some extent the national supervisory 
authorities  have  extremely  wide-ranging  powers  of  intervention12.  Cross-border  insolvency 
proceedings concerning insurance undertakings and credit institutions are governed by other 

7 
8 
9 

10 
11 
12 

CJEU, case C-116/11, Bank Handlowy. 
Recital 9 of the Regulation. 
AT, BE, CZ, CY, DE, LV, ML, NL, PL and – partly – FR, SI and UK. In eastern France (Bas-Rhin, 
Haut Rhin, Modeslle), the general insolvency law also applies to over-indebted private individuals. In 
the UK, some  of the procedures open to over-indebted natural persons are covered by the Regulation 
(bankruptcy,  individual  voluntary  arrangement,  trust  deeds,  sequestration),  while  others  (debt  relief 
orders, debt management plans) are not.  
EE, EL, FI, FR, LT, LU, SI, SE, UK. 
FR, LU.  
Cf. Recital 9. 

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instruments  of  Union  law13.  Like  the  Regulation,  these  instruments  provide  for  rules  on  the 
international jurisdiction over the adoption of reorganisation measures or the commencement 
of winding up proceedings, the applicable law and the recognition of the proceedings.  

It has been noted in academic writing that the absence of Union instrument governing cross-
border  insolvencies  for  collective  investment  undertakings  and  investment  firms  leaves  an 
undesirable gap in Union law. However, with respect to investment firms, that gap is likely to 
be  closed  soon  for  the  major  part  of  these  firms  when  the  amendments  of  Directive 
2001/24/EC foreseen in the recent proposal for a Directive on bank recovery and resolution14 
are adopted. As to collective investment undertakings, stakeholders reported that the current 
situation  had  not  created  problems  in  practice  since  insolvencies  of  collective  investment 
undertakings were quite rare.  

2.3. 

Recognition  of  insolvency  proceedings  opened  outside  the  EU  or  coordination 
between proceedings inside and outside the EU 

The  Regulation  applies  to  insolvency  proceedings  of  debtors  with  their  COMI  (Centre  Of 
Main Interest) in a Member State. Insolvency proceedings in which the COMI of the debtor 
lies outside the EU are outside its scope. Even where the COMI is within the EU, limitations 
of  the  scope  exist  with  regard  to  assets,  creditors  or  establishments  located  abroad.  In  such 
situations, the Regulation applies only partially, to the actors and assets located in a Member 
State. Issues outside the Regulation's scope are covered by national law.  

The impact assessment study notes that several Member States have enacted laws to govern 
aspects  of  cross-border  insolvencies  that  involve  states  outside  the  EU  since  the  Regulation 
was enacted. Romania, Poland, the UK, Slovenia and Greece adopted laws based on the 1997 
UNCITRAL  Model  Law.  Belgium,  Germany  and  Spain  introduced  laws  on  international 
insolvency  that  do  not  follow  the  UNCITRAL  approach  but  generally  cover  similar  topics. 
France and Italy have no specific laws in this area but their courts apply general principles of 
private international law.  

While  the  effects  of  the  international  dimension  of  insolvency  therefore  vary  depending  on 
which  Member  States  are  concerned,  the  Commission,  on  the  basis  of  the  evaluation  study, 
concludes  that  the  lack  of  harmonised  provisions  for  the  recognition  of  non-EU  insolvency 
proceedings  or  the  coordination  between  proceedings  inside  and  outside  the  EU  has  not 
caused  any  significant  problems  in  practice.  Views  of  the  respondents  to  the  public 
consultation  were  divided  on  whether  the  lack  of  provisions  for  the  recognition  or 
coordination  of  extra-EU  insolvency  proceedings  had  created  problems  with  44%  agreeing 
and 37% disagreeing. Some problems with the recognition of EU judgments or the powers of 
an  EU  liquidator  in  non-Member  States  such  as  Switzerland  were  reported.  Such  problems 
can, however, not be solved by a Union instrument but only by an international treaty. In this 
respect, it is worth noting that Switzerland has informally expressed an interest in elaborating 
a bilateral agreement with the EU on insolvency.  

13 

14 

Directive  2009/138/EC  on  the  taking  up  and  pursuit  of  the  business  of  insurance  and  re-insurance 
(Solvency II), OJ L 335, 17.12.2009, p. 1; Directive 2001/24/EC on the reorganisation and winding- up 
of credit institutions, OJ L 125, 5.5.2001, p. 15. 
Proposal of 6 June 2012 for a Directive of the European Parliament and of the Council establishing a 
framework  for  the  recovery  and  resolution  of  credit  institutions  and  investment  firms  and  amending 
Council  Directives  77/91/EEC  and  82/891/EC,  Directives  2001/24/EC,  2002/47/EC,  2004/25/EC, 
2005/56/EC, 2007/36/EC and 2011/35/EC and Regulation (EU) No 1093/2010, COM (2012) 280 final. 

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3. 

JURISDICTION FOR OPENING INSOLVENCY PROCEEDINGS 

3.1. 

Definition and determination of the debtor's centre of main interests (COMI) 

The concept of COMI is of paramount importance for the application of the Regulation. The 
Commission notes that there is general support of the concept of COMI as interpreted by the 
CJEU. This is in line with the results of the public consultation where a significant majority of 
respondents (77%) approved of the use of the COMI to locate the main proceedings. However 
51%  considered  that  the  interpretation  of  the  term  COMI  caused  practical  problems. 
Nevertheless, some felt clarifications given by the CJEU have been very helpful to achieve a 
more uniform application of the term. 

The  case-law  of  the  CJEU  clarified  the  concept  of  COMI  in  its  decision  Eurofood15  and 
Interedil16.  The  determination  of  COMI  requires  a  comprehensive  assessment  of  the 
circumstances  of  each  individual  case;  according  to  the  objective  approach  of  the  ECJ  the 
COMI  must  be  identified  by  reference  to  criteria  ascertainable  by  third  parties.  In  general, 
these  criteria  are  fulfilled  at  the  place  where  the  debtor  performs  his  business  activities  or 
where his main administration is located.  

For  companies  and  other  legal  persons,  Article  3  (1)  provides  a  rebuttable  presumption  in 
favour  of  the  place  of  registration.  The  case-law  of  the  CJEU  clarified  the  circumstances 
under  which  this  presumption  may  be  rebutted  in  a  manner  that  is  overall  considered  to  be 
appropriate.  However,  it  has  been  reported  that  in  many  Member  States  (AT,  BE,  CZ,  FR, 
DE, GR, IT, LU, NL, PL, RO, ES, SE, UK) the presumption was sometimes rebutted without 
carrying  out  the  comprehensive  analysis  required  by  the  CJEU.  It  is  unclear  whether  this  is 
due  to  a  lack  of  awareness  of  the  courts  of  the  CJEU  case-law  or  to  the  difficulties  of  the 
factual approach it requires.  

Although the Regulation covers the insolvency of natural persons irrespective of whether they 
are a trader or a consumer, the present wording of Article 3 (1) does not expressly address the 
COMI  of  individuals.  In  this  respect,  the  evaluation  study  revealed  inconsistencies  in  the 
practice of Member States. Some courts applied a presumption in  favour of the domicile of 
the debtor whereas other courts simply applied national concepts to the COMI of individuals.  

The determination of COMI is most difficult in cases where the debtor relocated its domicile 
prior  to  the  application  for  insolvency.  According  to  the  CJEU  case-law17,  the  decisive 
moment for determining the existence of the COMI is the filing of the application for opening 
main  proceedings.  If  the  debtor  moves  his  COMI  to  another  Member  State  afterwards,  the 
requested court retains jurisdiction. This case-law is largely respected by the courts. Problems 
can arise if the debtor transfers his COMI to another Member State prior to the application. 
The  evaluation  study  revealed  cases  of  evident  abusive  (temporary)  relocation  of  COMI  of 
individuals  for  the  sole  purpose  to  obtain  discharge  of  residual  debts.  The  issue  which  is 
sometimes terms as "bankruptcy tourism" is limited to a few regions in the Union with eastern 
France,  the  UK  and  Latvia  attracting  debtors  from  other  countries.  Especially  German  and 
Irish  debtors  tried  to  take  advantage  of  the  discharge  opportunities  of  English  law  which 
provides for a debt release within only one year.  

15 
16 
17 

CJEU, case C-341/04, Eurofood. 
CJEU, case C-396/09, Interedil.  
CJEU, case C-1/04 , Staubitz-Schreiber.  

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There  have  also  been  cases  where  companies  have  relocated  to  another  Member  State  than 
that  of  their  registered  office  in  order  to  benefit  from  more  sophisticated  restructuring 
mechanisms  there.  However,  such  relocations  cannot  per  se  be  regarded  as  abusive  or 
illegitimate.  First,  COMI  moves  of  companies  have  been  accepted  by  the  CJEU  as  a 
legitimate  exercise  of  the  freedom  of  establishment.  Thus,  the  Court  clarified  in  its  Centros 
decision  that  doing  business  in  a  Member  State  through  a  company  incorporated  in  another 
Member  State  is  covered  by  the  freedom  of  establishment  even  if  the  company's  registered 
seat  was  chosen  to  avoid  the  minimum  capital  requirement  of  the  Member  State  of  the 
company's  real  seat.  Moreover,  COMI  relocation  often  benefits  creditors  rather  than 
disadvantaging them. Often, relocations are even driven by the (senior) creditors in an attempt 
to rescue or restructure the company. There are several cases where COMI relocation to the 
UK  allowed  the  successful  restructuring  of  a  company  because  of  the  flexibility  which 
English insolvency law grants companies in this respect. 

3.2. 

Procedural framework for examining jurisdiction 

The  evaluation  study  highlights  several  significant  problems  with  regard  to  the  procedural 
framework  for  examining  the  jurisdiction  of  the  court  opening  insolvency  proceedings.  At 
present,  the  Regulation  does  not  expressly  address  this  issue  which  is  dealt  with  by  the 
procedural  laws  of  the  Member  States  and  general  principles  of  efficiency  and  non-
discrimination. However, the approaches of national courts to determining jurisdiction under 
Article 3 vary considerably throughout the Union. It does not seem to be clear for all courts 
that they are under an obligation to examine their jurisdiction ex officio and to expressly note 
the jurisdictional basis of their decision to open the proceedings in the decision opening the 
proceedings.  This  is  problematic  because  the  principle  of  mutual  trust  among  the  Member 
States  being  a  cornerstone  of  the  Regulation  requires  that  the  courts  of  the  Member  States 
carefully assess the COMI of the debtor since the decisions opening insolvency proceedings 
are recognized in other Member States without any power to scrutinise the court’s decision.  

With respect to the procedural framework, it has also been criticised that foreign creditors do 
not  always  have  a  right  to  challenge  the  decision  opening  insolvency  proceedings  and  that, 
even  where  they  are  formally  entitled  to  do  so,  they  are  not  informed  of  the  decision  in 
sufficient time to effectively exercise their right to challenge it.  

3.3. 

Insolvency-derived actions 

The delimitation between  the Brussels  I  Regulation18  and  the  Regulation  is  one  of  the  most 
controversial  issues  relating  to  cross-border  insolvencies.  The  dispute  concerns  the 
international jurisdiction (Article 3) and the recognition of foreign decisions (Article 25).  

According  to  the  case-law  of  the  CJEU,  judgments  on  civil  actions  are  to  be  qualified  as 
insolvency-specific  when  they  derive  directly  from  insolvency  proceedings  and  are  closely 
linked to them (vis attractiva concursus). However, this principle is codified only with respect 
to  recognition  (Article  25  EIR).  The  delimitation  formula  was  established  by  the  CJEU  in 
197919  in  relation  to  the  Brussels  Convention20  and  reiterated  by  the  CJEU  in  DekoMarty21 

18 

19 
20 

21 

Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil 
and commercial matters, OJ L 12, 16.1.2001, p.1. 
CJEU, case 133/78, Gourdain v. Nadler.  
1968 Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial 
matters (consolidated version in OJ C 27, 26.1.1998, p.1). 
Case C-339/07, Deko Marty.  

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with  respect  to  jurisdiction  under  the  Regulation.  The  CJEU  held  that  the  court  opening 
insolvency  proceedings  had  jurisdiction  for  avoidance  actions  brought  by  the  liquidator 
against a third party such as an action seeking to invalidate a transfer of shares effected in the 
context  of  insolvency  proceedings22  and  that  such  actions  were  excluded  from  the  scope  of 
The Brussels I Regulation.23 By contrast, the Court held that an action brought by a vendor on 
the basis of a reservation title against an insolvent purchaser24 and actio Pauliana based on a 
claim against third parties assigned by the liquidator to the sole creditor25 cannot be qualified 
as closely linked to the insolvency proceedings. 

44%  of  respondents  to  the  public  consultation  reported  no  problems  with  the  interaction 
between  the  Regulation  and  the  Brussels  I  Regulation  which  have  not  been  satisfactorily 
solved by case-law. Nevertheless, the Commission concludes that the absence of an express 
rule  on  jurisdiction  for  insolvency-derived  action  gives  rise  to  uncertainty  for  legal 
practitioners  not  well  versed  in  the  CJEU's  case  law.  In  addition,  the  fact  that  a  liquidator 
cannot  cumulate  an  insolvency-related  action  with  an  action  covered  by  the  Brussels  I 
Regulation has been criticised.  

4. 

APPLICABLE LAW 

4.1. 

Scope of the general rule (Lex fori concursus) 

A  majority  of  respondents  to  the  public  consultation  (55%)  agreed  to  the  Regulation’s 
provisions on applicable law are satisfactory while 32% disagreed. 

According to the evaluation study the general choice of law provision (lex fori concursus) in 
Article 4(1) of the Regulation is in line with general and well recognized principles of private 
international law according to which insolvency proceedings are governed by the law of the 
State  of  opening.  The  Commission  concludes  that  there  is  no  need  for  any  changes  or 
amendments with regard to this provision. 

to  qualification  or 
The  evaluation  study  refers 
characterization but considers that answering such questions is part of the responsibilities of 
the national court systems or, if necessary, the CJEU.  

to  questions  arising  with  regard 

4.2. 

Exceptions to the lex fori principle 

A majority of respondents to the public consultation (56%) agreed that the exceptions to the 
general  rule  on  applicable  law  are  justified  to  protect  legitimate  expectations  and  legal 
certainty.  

Article  5  provides  that  third  parties'  rights  in  rem  are  not  "affected"  by  the  opening  of 
insolvency  proceedings.  Almost  half  of  the  respondents  to  the  public  consultation  (49%) 
stated that the provision on rights in rem operates satisfactorily in practice while 26% felt that 
it does not. The evaluation study states that the application of Articles 5 and 7 have led to very 
little case law but identifies the following problems:  

22 
23 
24 
25 

Case C-111/08, SCT Industri . 
Case C-111/08, SCT Industri.  
Case C-292/08, German Graphics.  
Case C-213/10, F-Tex.  

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• 

• 

• 

The  main  issue  in  this  context  is  the  basic  understanding  of  Article  5.  In  the 
overwhelming  majority  of  Member  States  these  provisions  are  interpreted  as 
“substantive restriction rules” which means that the concerned rights in rem or 
reservation  of  title  cannot  be  affected  by  the  insolvency  provisions  neither  of 
the  opening  State  nor  of  the  State  where  the  assets  are  situated  unless 
secondary  proceedings  are  opened  in  the  latter  Member  State.  This  problem 
also  exists  with  respect  to  Article  7  (reservation  of  title).  With  respect  to 
Article 5, practical problems have arisen where claims secured by rights in rem 
are adjusted in reorganisation proceedings. It is questionable whether such an 
adjustment  of  the  secured  claim  “affects”  the  accessory  security  and  is 
therefore prohibited in the context of Article 5 EIR. 

The  localisation  of  intangible  assets  such  as  intellectual  property  rights  and 
bank  accounts  caused  difficulties  in  practice.  Especially  concerning  bank 
accounts hold with a local branch of a foreign bank it is questionable whether 
they are situated in the Member State of the bank’s branch or in the Member 
State where the bank has its central office and his COMI (Article 2(g)). 

The respective scopes of Article 5 and Article 4 (2) (i) are uncertain regarding 
the distribution of the proceeds in cases where assets underlying rights in rem 
are  alienated  or  where  the  liquidator  has  negligently  violated  the  rights  of  a 
secured  creditor.  In  this  context,  also  the  applicable  law  to  an  eventual  claim 
for damages against the liquidator is unclear. 

Concerning  Article  6  (set-off),  it  is  unclear  whether  this  provision  also  applies  if  the  “law 
applicable to the insolvent debtor’s claim” is the law of a non-Member State. A majority of 
National Reports in the context of the evaluation study confirmed the applicability of Article 
6 to such cases, but this issue is unclear in a significant number of Member States. It has also 
been criticised that the application of Article 6 to netting agreements is unclear and that the 
protection of netting agreements under Union law currently differs depending on whether the 
debtor's insolvency is governed by the Regulation or by the Directives on the reorganisation 
and winding-up of credit-institutions and insurance undertakings.  

The  evaluation  study  does  not  identify  any  specific  problems  with  regard  to  Article 9 
(payment systems and financial markets).  

Concerning Article 10 (contracts of employment), there have been a few complaints about the 
interplay  between  labour  law  and  insolvency  law,  in  particular  concerning  approval 
requirements for terminating or modifying employment contracts. In addition, the evaluation 
study states that different labour law standards may hinder an insolvency administrator to take 
the  same  actions  with  regard  to  employees  located  in  several  Member  States  and  that  this 
situation may complicate the restructuring of a company. However, this situation is inherent 
in  the  policy  choice  underlying  Article  10  which  the  evaluation  study  does  not  call  into 
question.  A  harmonization  of  certain  aspects  of  labour  law  could  mitigate  this  problem  but 
would be difficult to achieve since labour law is deeply rooted in national traditions and, at 
any rate, go beyond the scope of the revision of the Regulation. The study further addresses 
the  question  of  the  interplay  between  insolvency  law  and  guarantee  institutions  under 
Directive 2008/94/EC26 and concludes that any problems arising in this context would best be 

26 

Directive 2008/94/EC of the European Parliament and the Council on the protection of employees in the 
event of the insolvency of their employer, OJ 283, 28.10.2008, p. 36. 

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dealt  with  by  changes  to  the  national  laws  governing  these  institutions  or  to  national 
insolvency laws.  

The  evaluation  study  did  not  detect  an  urgent  need  for  any  amendments  to  Article  12 
(Community patents and trade-marks) which seems to be either of limited practical use or to 
work satisfactorily. 

Concerning  Article  13  (detrimental  acts),  some  administrators  complained  about  the 
complexity to take into account several legal systems in order to determine whether a claim 
can  be  set  aside.  However,  the  evaluation  study  finds  that  this  complexity  is  necessary  in 
order to achieve appropriate results with regards to the legitimate expectations of the parties. 
Alternative solutions proposed in legal literature, such as a mere protection against a change 
in COMI, would not address the issue in a satisfactory manner. Views regarding the provision 
on detrimental acts were rather closely divided. One third of respondents stated they operate 
satisfactorily, while 37% said they do not.  

Article  15  (effects  of  insolvency  proceedings  on  lawsuits  pending)  causes  no  serious 
problems. It seems that most or all Member State laws have a rule or tendency to provide for a 
priority of insolvency proceedings over individual litigation or proceedings. However, some 
uncertainty exists concerning the applicability of Article 15 to arbitration proceedings. 

While  the  Commission  takes  note  of  the  findings  of  the  evaluation  study  as  regards  the 
exceptions  to  the  lex  fori  principle,  it  considers  that  the  main  applicable  law  rules  of  the 
Regulation apply satisfactorily and do not require changes at this stage. 

5. 

RECOGNITION OF JUDGMENTS OPENING INSOLVENCY PROCEEDINGS 

The evaluation study finds that in most cases, courts of the Member States respected the prior 
opening of main proceedings in another Member State. There are, however, a few examples 
where courts did not comply with this obligation. It is not always clear when the opening of 
the proceedings “became effective”; in particular, this is true with respect to the appointment 
of a German “vorläufiger Insolvenzverwalter” which most, but not all courts of the Member 
States accepted as an "opening" of insolvency proceedings under the Regulation.  

The  application  of  the  public  policy  reservation  under  Article  26  of  the  Regulation  did  not 
cause  major  problems;  nevertheless,  there  are  a  few  cases  where  courts  of  Member  States 
referred to public policy considering not recognizing foreign main proceedings. 

Half  of  the  respondents  to  the  public  consultation  (51%)  agreed  that  the  definition  of  the 
decision ‘opening  insolvency proceedings’ should be amended to take into account national 
legal regimes where there is not an actual court opening the proceedings. 

6. 

COORDINATION OF MAIN AND SECONDARY PROCEEDINGS 

According to the evaluation study, secondary proceedings did not turn out to be the tool for 
the main liquidator described in Recital 19 of the Regulation – i.e. in cases "where the estate 
of the debtor is too complex to administer as a unit or where differences in the legal systems 
concerned are so great that difficulties may arise from the extension of effects deriving from 
the law of the State of opening". There seems to be only a relatively small number of cases 
where  it  was  the  main  liquidator  who  actually  applied  for  the  opening  of  secondary 

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proceedings. Rather, they were used (and abused) for different reasons, in particular, as a tool 
for the protection of local interests and as an instrument in jurisdictional conflicts where the 
opening of secondary proceedings was regarded as the second-best solution to the opening of 
main  proceedings  in  a  specific  Member  State.  The  evaluation  study  estimates  that 
disadvantages  of  secondary  proceedings  are  more  significant  than  their  advantages.  This  is 
already  true  where  the  secondary  liquidator  acts  in  a  cooperative  fashion,  but  is  even  more 
obvious where this is not the case. Views of the respondents to the public consultation on the 
benefits  of  secondary  proceedings  were  divided  with  36%  feeling  that  the  division  between 
main and secondary proceedings was helpful with 37% disagreeing.  

The following problems were noted in the evaluation study:  

The  fact  that  secondary  proceedings  must  be  winding-up  proceedings  is  an  impediment  to 
flexible and effective restructuring measures. 

The  absence  of  specific  rules  on  the  procedure  for  the  opening  of  secondary  proceedings  is 
problematic.  There  is  no  provision  allowing  the  competent  court  to  refuse  the  opening  of 
secondary proceedings in circumstances where such opening would not be in the interests of 
local  creditors.  There  is  also  no  express  provision  requiring  the  main  liquidator  to  be  heard 
before opening the proceedings.  

Moreover, it is unclear whether liquidators in all Member States can enter into undertakings 
guaranteeing the creditors who might apply for secondary proceedings that they will respect 
all preferential rights such creditors would enjoy in secondary proceedings in order to prevent 
them  from  actually  applying  for  such  secondary  proceedings  (or  to  prevent  the  court  for 
opening  them).  English  courts  and  practitioners  have  developed  such  an  approach,  but  it  is 
unclear  whether  liquidators  in  all  other  member  states  have  the  power  to  make  such  offers 
under their respective national insolvency law. 

The duties to cooperate and communicate information under Article 31 of the Regulation are 
rather  vague.  The  Regulation  does  not  provide  for  cooperation  duties  between  courts  or 
liquidators and courts. There are examples where courts or liquidators did not sufficiently act 
in  a  cooperative  manner.  These  findings  are  confirmed  by  the  results  of  the  public 
consultation  where  48%  of  the  respondents  were  dissatisfied  with  the  coordination  between 
main and secondary proceedings. 

Article  33(1)  which  allows  the  main  liquidator  to  request  a  stay  of  liquidation  in  the 
secondary  proceedings  is  not  sufficiently  clear  and  broad  with  respect  to  the  range  of 
measures the main liquidator’s application can refer to. The standard of Art 33(2) concerning 
the termination of the stay is not consistent with the one under Art 33(1).  

7. 

GROUP OF COMPANIES 

Although  a  large  number  of  cross-border  insolvencies  involve  group  of  companies,  the 
Regulation  does  not  contain  specific  rules  dealing  with  the  insolvency  of  a  multi-national 
enterprise group. The basic premise of the current Regulation is that insolvency proceedings 
relate to a single legal entity and that, in principle, separate proceedings must be opened for 
each individual member of the group. There is no compulsory coordination of the independent 
proceedings opened for a parent company and its subsidiaries with a view of facilitating the 
reorganization  of  these  companies  or  –  where  this  is  not  possible  –  to  coordinate  their 
liquidation.  Neither  the  liquidators  nor  the  courts  involved  in  the  different  proceedings 

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concerning  members  of  the  same  group  of  companies  are  under  a  duty  to  cooperate  and 
communicate.  While  liquidators  may  cooperate  on  a  voluntary  basis,  judges  are,  in  many 
Member  States,  prevented  from  cooperating  with  each  other  in  the  absence  of  a  legal  basis 
expressly authorizing them to do so.  

Case-law tried different ways to overcome the lack of specific provisions on group insolvency 
in practice:  

In the first years after the entry into force of the Regulation, some national courts interpreted 
the  Regulation's  rules  on  jurisdiction  broadly  so  as  to  bring  insolvency  proceedings  for  all 
members of the group, including those located in another Member State, before the court at 
the  parent  company's  registered  office.  The  courts  concerned  generally  justified  such  a 
consolidation  of  insolvency  proceedings  on  the  grounds  that  the  subsidiaries’  commercial 
decisions were controlled by the parent company27.  

The  2006  CJEU's  Eurofood  decision  considerably  reduced  the  scope  of  application  of  the 
possibility  for  such  procedural  consolidation  and  reinforced  the  rule  that  each  legal  entity 
should  be  treated  separately28.  According  to  the  Court,  control  of  corporate  direction  alone 
does  not  suffice  to  locate  the  centre  of  economic  interest  of  a  subsidiary  with  its  parent 
company,  rather  than  at  its  own  registered  address.  After  Eurofood  –  and  the  subsequent 
decision in the case  Interedil which reflects a more flexible approach - it is still possible to 
open  insolvency  proceedings  over  a  subsidiary  in  the  Member  State  where  the  parent 
company has its registered office, but only if the factors showing that the subsidiary's COMI 
is located at the seat of the parent company are objective and ascertainable by third parties. 
This  means  in  practice  that  courts  have  to  examine  a  complex  bundle  of  factors,  including 
whether  the  financing  of  a  subsidiary  is  taken  care  of  by  the  parent  company,  whether  the 
parent  company  controlled  the  operational  business  (e.g.  by  approving  purchases  above  a 
certain threshold) and the hiring of staff, whether certain functions (e.g. the management of 
the  IT  equipment  or  the  visual/business  identity)  were  centralised29.  Essentially,  these 
conditions will only be fulfilled in the case of very integrated companies. 

Another approach taken in practice is the appointment of the same insolvency practitioner in 
the proceedings of all members of the group involved, or of insolvency practitioners who have 
previously  worked  together  successfully  on  group  insolvencies30.  However,  this  possibility 
currently depends on the willingness of the respective insolvency practitioners and judges to 
cooperate. 

Overall, the Commission shares the finding of the evaluation study that the lack of a specific 
framework  for  group  insolvency  constitutes  in  certain  cases  an  obstacle  to  the  efficient 
administration  of  the  insolvency  of  members  of  a  group  of  companies31.  This  assessment  is 
supported  by  the  results  of  the  public  consultation:  Almost  half  of  the  respondents  to  the 
public  consultation  considered  that  the  Regulation  does  not  work  efficiently  for  the 
insolvency of a multinational group with more than two thirds of judges and academics taking 
that view. 

27 

28 
29 
30 
31 

This approach began in England and was adopted by courts in Member States such as France, Germany, 
Hungary and Italy.  
Case C-341/04 Eurofood, at para 30. 
See e.g. the decision of the High Court in Daisytek, 16.5.2003.  
E.g. Nortel.  
For  details  see  the  Impact  Assessment  accompanying  the  proposal  for  a  Regulation  amending  the 
Insolvency Regulation. 

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8. 

PUBLICATION OF AND INFORMATION ON INSOLVENCY PROCEEDINGS 

The Regulation contains provisions to help ensure the publicity and awareness of insolvency 
proceedings. Articles 21 and 22 of the Regulation provide that the liquidator may request that 
the  decisions  opening  insolvency  proceedings  and  appointing  him  be  published  in  another 
Member  State  and  registered  in  that  State's  public  registers.  Member  States  can  make  such 
publication and registration mandatory but they remain essentially discretionary measures. 

There  is  widespread  support  for  the  conclusion  that  the  failure  to  publish  the  opening  of 
proceedings  in  a  public  register  reduces  considerably  the  ability  of  creditors  to  know  of 
insolvency proceedings opened in another Member State. The lack of information on existing 
proceedings  has  also  resulted  in  unnecessary  concurrent  proceedings  being  launched  in 
different  Member  States.  Three  quarters  of  respondents  to  the  public  consultation  (75%) 
consider  that  the  absence  of  mandatory  publication  and  registration  of  the  decision  opening 
insolvency is a problem.  

The  impact  assessment  study  notes  that  a  range  of  problems  exists  even  if  publication  and 
registration  were  made  mandatory.  While  insolvency  proceedings  of  legal  entities  are 
registered in every Member State, insolvencies of individuals are only registered in some of 
them. Only 14 Member States publish decisions in an insolvency register accessible online to 
the  public32.  In  9  other  Member  States,  some  information  on  insolvency  is  available  in  an 
electronic  database,  e.g.  a  company  register  or  an  electronic  version  of  the  official  bulletin. 
Four  Member  States  do  not  have  information  on  insolvency  proceedings  available  in 
electronic  form  at  all,  which  makes  access  to  that  information  from  abroad  particularly 
difficult.  Even  where  electronic  registers  exist,  it  is  not  feasible  for  foreign  creditors  and 
courts  to  check  each  Member  States'  register  on  a  regular  basis.  As  one  of  the  measures 
implementing the E-Justice Action Plan of 2009, the Commission has set up a pilot project for 
the  interconnection  of  electronic  insolvency  registers.  However,  this  pilot  project  covers  to 
date  only  seven  Member  States.  A  majority  of  the  respondents  to  the  public  consultation 
considered  that  Member  States  should  be  required  to  register  the  opening  judgment  in  an 
insolvency register and that national insolvency registers should be interconnected. 

9. 

LODGMENT OF CLAIMS 

The evaluation study notes practical problems relating to certain aspects of the lodging claims 
in cross-border situations, in particular language barriers, costs, time-limits for lodging claims 
and a lack of information on the opening decision, the liquidator and the formalities of the lex 
fori concursus for the lodging of claims. Articles 39 to 42 of the Regulation only provide for 
minimum  rules  enabling  foreign  creditors  the  lodging  of  their  claims,  but  do  not  set  a 
comprehensive procedural framework. 

Pursuant  to  Article  42  (2)  of  the  Regulation,  the  creditor  may  be  required  to  provide  a 
translation  into  the  official  language(s)  of  the  State  of  the  opening  of  proceedings.  The 
evaluation  study  revealed  that  in  some  Member  States  requiring  the  translation  has  become 
the rule rather than the exception, thereby entailing additional costs and delays.  

This issue is related to the problem of procedural costs. National reporters generally criticized 
high  translation  costs  for  lodging  a  claim.  Moreover,  some  Member  States  require  the 
retaining of a local lawyer for lodging the  claim.  The  average cost of lodging a claim for a 

32 

AT, CZ, FI, DE, HU, LV, NL, PL, PT, RO, SI, SK, SE and – partly – the UK.  

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foreign creditor has been estimated at about € 2000 in a cross-border situation. Due to high 
costs,  creditors  may  choose  to  forgo  a  debt,  especially  when  it  involves  a  small  amount  of 
money.  This  problem  mainly  affects  small  and  medium-sized  businesses  as  well  as  private 
individuals.  

The evaluation study further notes difficulties resulting from the application of the law of the 
opening  of  proceedings,  in  particular  regarding  deadlines,  the  proof  of  claims,  the  specific 
procedures  of  lodging  claims.  Cases  have  been  reported  where  foreign  creditors  were  time-
barred  from  lodging  a  claim  because  deadlines  under  local  law  are  comparatively  short  and 
the liquidator had not informed the creditors prior to the expiry of that deadline. 

Almost half of the respondents to the public consultation (46%) expressed the view that there 
were  problems  with  the  lodging  of  claims  under  the  Regulation.  This  issue  is  of  particular 
concern for SMEs. 

10. 

CONCLUSIONS 

On the basis of the results of the evaluation referred to above, the Commission finds that, in 
general, the Regulation functions in sound and satisfactory manner. It has well implemented 
the  principle  of  mutual  recognition  for  the  cross-border  insolvency  proceedings,  and  has 
improved the coordination of such cases. 

Nevertheless, there are certain issues that will benefit from adaptations to the Regulation: The 
main amendments to be proposed by the Commission concern, first, the scope of application. 
The Commission suggests extending the scope of the Regulation by revising the definition of 
insolvency  proceedings  in  order  to  include  hybrid  and  pre-insolvency  proceedings  and 
insolvency proceedings for individuals, which are currently excluded. 

Regarding  the  jurisdiction,  the  Regulation  should  maintain  the  concept  of  COMI  as 
interpreted by the Court of Justice of the European Union but the the Commission proposes a 
revision adding language to clarify its meaning. It also clarifies the application of the COMI 
rule for individuals. The proposed revision inserts a rule on jurisdiction for related actions and 
the  procedural  framework  for  examining  the  jurisdiction  should  be  improved  to  limit  the 
potential for wrongful forum shopping. 

The Commission proposes improving the publication of insolvency proceedings in two ways: 
by making publication of decisions in another Member State mandatory; and by requiring that 
the  decisions  opening  and  closing  insolvency  proceedings  and  certain  other  decisions  be 
published  in  an  electronic  register,  publicly  accessible  on  the  internet.  The  electronic 
insolvency  registers  should  address  cross-border  insolvency  needs  but  will  obviously  also 
serve domestic users. 

The proposal to bring in new standard forms for the notice of proceedings and the lodging of 
claims will make it easier for foreign creditors to make claims. In addition, the deadlines for 
lodging claims must be long enough to allow them to lodge an effective claim. 

Finally, the Commission addresses the issue of group insolvency: the Commission proposes 
including specific rules in the Regulation to make handling the insolvency of members of a 
multi-national group of companies more efficient. Smoother cooperation between liquidators 
in different Member States should aid the rescue of the companies and maximise the value of 
their assets. 

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Further  matters  for  which  certain  problems  were  identified  in  the  evaluation,  such  as  the 
questions  of  extension  of  the  scope  outside  EU  and  of  the  applicable  law,  were  also 
considered.  However,  the  Commission  does  not  find  it  desirable  to  introduce  in  the 
Regulation  specific  provisions  concerning  the  recognition  of  and  coordination  with 
insolvency  proceedings  opened  outside  the  EU.  As  referred  above,  the  main  reason  is  that 
such provisions would be binding only in the territory of Member States and not in non-EU 
countries.  Therefore,  a  possible  elaboration  of  a  draft  international  convention  would  better 
achieve these objectives, and also ensure the Union's interests in reciprocal negotiations with 
the third countries. 

Moreover, the Commission does not propose amendments to the provisions of the Regulation 
concerning applicable law. The Commission finds that existing provisions apply sufficiently 
smoothly within the EU and the respective fields of the lex fori and the lex situ strike the right 
balance. Accordingly it is considered preferable to keep the current conflict of law rules, until 
the effects of possible changes on domestic insolvency law, company law and social law are 
further examined.  

EN 

18 

   EN