COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE A new European approach to business failure and insolvency
Date: 2012-12-12
Institutions: European Commission
Subjects: aid to undertakings, cessation of trading, claim, entrepreneur, financial solvency, industrial restructuring, judicial proceedings

EUROPEAN 
COMMISSION 

Strasbourg, 12.12.2012  
COM(2012) 742 final 

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

A new European approach to business failure and insolvency 

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

A new European approach to business failure and insolvency 

1. 

INTRODUCTION: JUSTICE FOR GROWTH 

As Europe is facing a severe economic and social crisis, the European Union is taking action 
to  promote  economic  recovery,  boost  investment  and  safeguard  employment.  It  is  a  high 
political priority to take measures to create sustainable growth and prosperity1. 

The debt crisis has a direct effect on people, jobs and businesses. The economic crisis has led 
to  an  increase  in  the  number  of  failing  businesses.  From  2009-2011,  an  average  of  200 000 
firms went bankrupt per year in the EU. About one-quarter of these bankruptcies have a cross-
border element. About 50 % of all new businesses do not survive the first five years of their 
life. 1.7 million jobs are estimated to be lost due to insolvencies every year.  

Growth  has  been  put  at  the  heart  of  the  Commission’s  agenda  on  justice  (‘Justice  for 
Growth’), in line with the growth strategy Europe 2020, the Annual Growth Survey and the 
recently  adopted  Single  Market  Act  II.2  Modernising  the  EU’s  insolvency  rules  to  facilitate 
the survival of businesses and present a second chance for enterpreneurs has been identified 
as  a  key  action  to  improve  the  functioning  of  the  internal  market.  The  2009  Stockholm 
Programme for the European area of justice3 highlighted the importance of insolvency rules in 
supporting economic activity. 

The  European  response  should  be  to  create  an  efficient  system  to  restore  and  reorganise 
business  so  that  they  can  survive  the  financial  crises,  operate  more  efficiently  and  when 
necessary, make a fresh start. This applies not only to large multi-national companies, but to 
the  20  million  small  companies  that  are  the  backbone  of  Europe’s  economy.  The  effective 
handling of insolvency cases is an important issue for the European economy and sustainable 
growth. 

The  EU  Regulation  on  insolvency  proceedings4  was  adopted  to  deal  with  issues  of  cross-
border  insolvency  through  the  proper  recognition  and  coordination  of  national  insolvency 
proceedings  and  in  order  to  avoid  incentives  for  the  parties  to  transfer  assets  or  judicial 
proceedings  from  one  Member  State  to  another,  seeking  to  obtain  a  more  favourable  legal 
position  (forum  shopping).  As  its  scope  is  cross-border,  the  Regulation  however  did  not 
harmonise insolvency  laws  used  for national  insolvency cases. Thus, differences in national 
laws  remain,  and  as  a  consequence,  economic  activities  may  be  lost,  creditors  recover  less 
than  they  otherwise  would,  and  creditors  from  different  Member  States  are  not  treated 
equally. The Commission is currently proposing the modernisation of the EU Regulation on 
insolvency proceedings but the changes proposed concern only cross-border cases.  

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See  President  Barroso's  letter  to  EP  President  in  the  framework  of  the  State  of  Union  address  on  12 
September 2012. 
COM(2012) 573. 
OJ C 115, 4.5.2010, p. 1. 
Council Regulation (EC) no 1346/2000 on insolvency proceedings, OJ L 160, 30.6.2000, p. 1. 

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Modern  insolvency  law  in  the  Member  States  should  help  sound  companies  to  survive  and 
encourage entrepreneurs to get a second chance. It should ensure that procedures are speedy 
and  efficient,  in  the  interest  of  both  debtors  and  creditors,  and  should  help  safeguard  jobs, 
help suppliers to keep their customers, and owners to retain value in viable companies. 

To  achieve  the  Europe  2020  objectives,  we  need  to  focus  on  the  general  objective  of 
improving the efficiency of justice in the EU. Efficient justice systems can greatly contribute 
to  reducing  risks  and  legal  uncertainties  and  encouraging  cross-border  business,  trade  and 
investment.  In  its  experience  with  the  Member  States  under  an  economic  recovery 
programme,  the  Commission  has  identified  the  key  role  of  judicial  reforms.  Reforms  of 
national  insolvency  law  are  an  important  tool  to  promote  economic  recovery.  The  2012 
European  Semester  reflected  the  impact  of  justice  systems  on  the  economy  by  making 
recommendations to certain Member States relating to efficient insolvency proceedings. The 
challenge  is  to  address  adequately  and  swiftly  the  debtor’s  financial  difficulties  while 
protecting the creditor’s legitimate interests and ensuring access to justice to all parties. 

During the last twenty years, the single market has been developed as an area without barriers. 
If  a  company  is  in  trouble  financially,  it  should  be  just  as  easy  to  get  help  cross-border  as 
domestically. The creation of a level playing field of national insolvency laws should lead to 
greater  confidence  in  the systems of other Member States for companies, entrepreneurs and 
private  individuals  willing  to  operate  in  the  internal  market.  Efficient  insolvency  rules  also 
improve  access  to  credit,  which  encourages  investment.  Creditors  are  more  likely  to  lend 
when they are confident that they will be able to collect their loans. Greater compatibility of 
the  rules  on  insolvency  proceedings  can  therefore  improve  the  functioning  of  the  internal 
market.  Although  diversity  is  part  of  legitimate  regulatory  competition  based  on  national 
political choices, it generally leads to the problem of forum shopping5. 

Giving  entrepreneurs  a  second  chance  to  restart  viable  businesses  and  safeguarding 
employment  are  key  elements  of  the  new  European  approach  to  business  failure  and 
insolvency.  This  approach  aims  to  give  a  solid  boost  to  European  business  in  the  internal 
market.  The  proposal  to  update  the  EU  Regulation  on  insolvency  proceedings  in  the  cross- 
border  context,  adopted  in  parallell  to  this  Communication,  is  already  based  on  this  new 
approach.  It  will  also  be  supported  by  the  forthcoming  European  Entrepreneurship  Action 
Plan. 

This  Communication  highlights  those  areas  where  differences  between  domestic  insolvency 
laws have the greatest potential to hamper the establishment of an efficient insolvency legal 
framework in the internal market. It seeks to identify the issues, on which the new European 
approach  to  business  failure  and  insolvency  should  focus  so  as  to  develop  the  rescue  and 
recovery culture across the Member States. 

2. 

SHAPING  THE  NEW  APPROACH  TO  INSOLVENCY:  THE  NEED  TO  CREATE  A  MORE 
BUSINESS FRIENDLY ENVIRONMENT 

A lot of research and analysis has already been carried out by both the European Parliament 
and the Commission relating to national insolvency laws.  

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The problematic is described in more detail in the Impact Assessment, accompanying the Revision of 
Regulation (EC) No 1346/2000 on insolvency proceedings, COM(2012) 744. 

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In  November  2011,  the  European  Parliament  adopted  a  Resolution  on  insolvency 
proceedings.6 It called, first, for the revision of the Insolvency Regulation and the proposed 
revision  responds  to  this  call.  The  European  Parliament  also  recommended  harmonising 
specific  aspects  of  national  insolvency  law  and  company  law.  A  study7  commissioned  by  it 
had shown that disparities between national insolvency laws can create obstacles, competitive 
advantages and/or disadvantages and difficulties for companies with cross-border activities or 
ownership within the EU. The study found that harmonising insolvency processes across the 
EU  Member  States  would  increase  the  efficiency  of  the  insolvency  and  business 
reorganisation process. In turn, this would increase the return to creditors if a decision is taken 
to  liquidate  the  assets  or  improve  the  prospects  for  reorganisation  by  encouraging  more 
creditors  to  support  plans  for  restructuring.  Together  this  would  increase  confidence  of  the 
commercial and financial sectors in the efficiency of the EU’s financial infrastructure. 

Based  on  the  study,  the  European  Parliament  concluded  that  ‘there  are  certain  areas  of 
insolvency  law  where  harmonisation  is  worthwhile  and  achievable’.  However  any  further 
consideration of reforming insolvency law will have to take into account the impact on other 
important areas of law. 

The Commission has recently studied business dynamics8. The study revealed no evidence of 
impact of the  type  of legal system (common  law/civil  law)  on  the level of entrepreneurship 
(firm  birth  rate,  total  entrepreneurial  activity,  firm  survival  rate).  This  means  that  efficient 
bankruptcy procedures are not determined by the type or focus of legal system, but by specific 
provisions  like  out-of-court  settlements,  fast-track  procedures  for  SMEs,  an  early  warning 
system  and  other  provisions  that  significantly  affect  the  efficiency  of  the  system.  The  best 
performing  countries  have  an  efficient  legal  framework  for  bankruptcy  and  early  warning 
systems.  The  study  shows  that  almost  all  countries  considered  to  have  a  very  efficient 
bankruptcy legal system are also considered to have highly efficient early warning tools. 

An important issue to support an effective second chance9 is the ‘time to discharge’, which is 
the time from when a company is bankrupt (liquidation) and when it can restart its business. 
A discharge is often regarded as crucial for the opportunity to restart. Currently, the discharge 
time varies greatly from country to country. In some countries, honest business bankruptcies 
are  automatically  granted  a  discharge  immediately  after  liquidation  is  finished.  In  some, 
bankrupted  companies  have  to  apply  for  a  discharge;  and  in  others,  bankrupted  companies 
cannot obtain discharge. 

An additional reflection concerning the question of ‘second chance’ refers to the business re-
start of a formerly bankrupt/failed entrepreneur. In many European countries, there is a policy 
commitment  to  address  the  issue  of  business  failure  and  promote  second  chance.  Member 

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EP  resolution  of  15.11.2011  with  recommendations  to  the  Commission  on  insolvency  proceedings  in 
the context of EU company law. 
‘Harmonisation  of  insolvency  law  at  EU  level’,  European  Parliament  2010,  PE  419.633.  This  was 
followed  by  the  study  "harmonisation  of  insolvency  law  at  EU  level  with  respect  to  opening  of 
proceedings, claims filing and verification and reorganisation plans" EP 2011, PE 432.766 
‘Business  dynamics:  start-ups,  business  transfers  and  bankruptcy,  European  Commission,  DG 
Enterprise and Industry, January 2011. This report contains a study on the economic impact of legal and 
administrative procedures for bankruptcy and opportunities for a second chance after bankruptcy in 33 
European  countries  (27  EU  Member  States  plus  Iceland,  Norway,  Croatia,  Turkey,  Serbia  and 
Montenegro). 
See  ‘A  second  chance  for  entrepreneurs:  prevention  of  bankruptcy,  simplification  of  bankruptcy 
procedures  and  support  for  a  fresh  start’,  Report  of  the  Expert  Group,  European  Commission,  DG 
Enterprise and Industry, January 2011. 

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States  have  put  forward  plans  to  reform  their  national  insolvency  legislation  in  order  to 
support entrepreneurs looking for a second chance. Most national legislation does not seem to 
make  it  easy  for  re-starters.  This  leads  to  fewer  re-starters,  despite  the  fact  that  failed 
entrepreneurs have a strong inclination to go back into business. 

The May 2011 Competitiveness Council called for specific measures to be taken. The Council 
‘invites  Member  States  to  promote  a  second  chance  for  entrepreneurs  by  limiting,  when 
possible, the discharge time and debt settlement for honest entrepreneurs after bankruptcy to a 
maximum of three years by 2013’10. 

3. 

AREAS  IN  NATIONAL  INSOLVENCY  LAW  WHERE  APPROXIMATION  COULD  BRING 
BENEFITS 

On the basis of an analysis of the above findings, the Commission has identified a number of 
areas  where  differences  in  national  insolvency  laws  can  create  legal  uncertainty  and  an 
‘unfriendly’  business  environment.  This  creates  a  less  favourable  climate  for  cross-border 
investment. 

3.1. 

Second chance for entrepreneurs in honest bankruptcies11 

Principle  II  of  the  Commission’s  ‘A  Small  Business  Act  for  Europe’12  is  aimed  at  the 
promotion of a second chance for honest entrepreneurs13. The ‘honest’ failure is a case where 
the business failure was through no obvious fault of the owner or the manager, i.e. honest and 
above-board, contrary to cases where the bankruptcy was fraudulent or irresponsible. It calls 
for exchanges of best practice between Member States. 

Lengthy  and  costly  bankruptcy  procedures  are  a  major  limitation  to  an  effective  second 
chance. In addition, honest bankrupt entrepreneurs are usually subject to the same limitations 
as fraudulent entrepreneurs. This not only means a risk that failed honest entrepreneurs face 
the  social  stigma  attached  to  bankruptcy,  but  there  are  also  legal  and  administrative 
impediments to re-starting a business. Difficulties in finding financing for a new venture are 
considered as the main problem for re-starters. But it should be kept in mind that those that 
attempt to re-start, learn from their mistakes and usually experience faster growth than newly 
established companies. 

Action  could  be  taken  to  differentiate  more  between  honest  and  dishonest  bankruptcies. 
Insolvency  regimes  could  differentiate  between  debtors  who  have  acted  honestly  in  their 
conduct  or  business  giving  rise  to  the  indebtedness,  and  those  who  have  acted  dishonestly, 
and  could  for  example  contain  a  provision  that  wilful  or  irresponsible  non-compliance  with 
legal  obligations  by  a  debtor  be  subject  to  civil  penalties  and,  where  appropriate,  criminal 
liability. Any supportive programmes for starting up a new business should be available only 
to  honest  bankrupts  without  treating  those  businesses  however  differently  from  the  non-
bankrupt businesses.  

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Council of the European Union document 10975/11. 
There  is  a  clear  need  to  distinguish  ‘honest’  failures  from  fraudulent  ones  and  to  clearly  avoid 
encouraging the latter. 
COM(2008)  394  final.  This  had  been  preceded  by  a  Communication  on  ‘Overcoming  the  stigma  of 
business failure — for a second chance policy’, COM(2007) 584final.  
Principle  II:  ‘Ensure  that  honest  entrepreneurs  who  have  faced  bankruptcy  quickly  get  a  second 
chance’. 

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The following measures should be considered as the most significant to be taken in order to 
reinforce second chance: 

•  Separate liquidation proceedings for honest and dishonest entrepreneurs; 
•  Frame and apply ‘fast-track’ liquidation proceedings for honest bankruptcy. 

3.2. 

Discharge periods that do not encourage a second chance 

Discharge  is  also  key  for  second  chance:  a  three-year  discharge  and  debt  settlement  period 
should be a reasonable upper limit for an honest entrepreneur and as automatic as possible. It 
is crucial that entrepreneurship does not end up as a ‘life sentence’ if things go wrong14. 

Member  States  agreed  on  the  need  to  harmonise  the  ‘time  to  discharge’  to  less  than  three 
years  in  the  May  2011  Competitiveness  Council  conclusions,  following  the  launch  of  the 
Review of the Small Business Act for Europe15. 

Shortening and aligning the ‘time to discharge’ would be an important step towards creating a 
friendlier  and  more  innovative  business  environment,  allowing  European  enterprises  to 
operate  on  a  level  playing  field.  It  could  be  a  first  step  towards  a  wider  approximation  of 
national bankruptcy laws. 

3.3. 

Varying  chances  for  restructuring  due  to  different  rules  on  the  opening  of 
proceedings 

There are significant differences between the criteria for opening insolvency proceedings. In 
certain  Member  States,  insolvency  proceedings  may  be  opened  only  for  debtors  that  are 
already  affected  by  financial  difficulties  and  are  insolvent.  In  others,  proceedings  can  be 
opened  for  solvent  companies  that  anticipate  insolvency  in  the  imminent  future.  Further 
differences  may  be  found  in  insolvency  tests  (like  the  liquidity  test)  adopted  in  the  laws  of 
Member States. Evidently, the differences between insolvency tests mean that companies in a 
similar  financial  condition  may  meet  an  insolvency  test  in  one  Member  State  but  not  in 
another. As a consequence, companies may have unequal chances to resort to informal out-of-
court restructuring in order to resolve financial difficulties and avoid insolvency proceedings 
that involve partial or total divestment of a debtor and the appointment of a liquidator. 

Another problem relates to the rules on mandatory filing of insolvency. There are significant 
differences  between  Member  States  regarding  the  deadlines  a  debtor  must  meet  when  the 
opening of insolvency proceedings is mandatory. In some Member States, the debtor has two 
weeks after becoming insolvent to file for bankruptcy, in some the debtor must file within two 
months from the date it becomes aware of the insolvency situation. In others, the debtor must 
file for bankruptcy at the latest 45 days following cessation of payments. 

The  length  of  the  timeframe  may  impact  a  debtor’s  ability  to  solve  financial  difficulties. 
While overly tight deadlines may adversely affect this ability, long deadlines may delay the 
granting of relief under insolvency proceedings and undermine the efficiency of proceedings 
for all creditors. 

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This was also a recommendation in the above-mentioned report of the expert group on second chance. 
COM(2011) 78 final. 

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3.4. 

Unfulfilled expectations of creditors for different categories of debtors 

The  laws  of  Member  States  differ  in  the  possibilities  granted  to  creditors  to  commence 
insolvency  proceedings  against  debtors  and  in  relation  to  the  various  categories  of  debtors. 
These differences may be difficult to reconcile with the legitimate expectations of creditors. 
Creditors expect to be able to impose insolvency proceedings on their debtors and, instead of 
resorting to individual enforcement action, may instigate collective insolvency proceedings. 

Another  area  in  which  approximation  may  be  needed  is  the  capacity  to  commence 
proceedings  against  a  debtor.  All  Member  States  have  systems  allowing  a  debtor  (a  natural 
person or a public or private legal entity) that carries on a business activity, a creditor and the 
state to apply to the courts to initiate insolvency proceedings against a debtor. However, some 
jurisdictions  limit  the  ability  of  a  creditor  to  start  insolvency  proceedings  by  adding  special 
conditions. Any limitations on the creditor's ability to commence insolvency proceedings may 
lead to situations where a creditor is treated differently when it comes to opening main and 
secondary proceedings against the same debtor. 

3.5. 

Uncertainty for creditors relating to procedures to file and verify claims 

In  order  to  reduce  uncertainty  and  create  equal  treatment  among  creditors  in  the  Member 
States, further approximation of the rules on filing and verifying claims should be considered, 
such as the procedures, time limits, penalties and consequences for failure to comply and the 
information to be provided to creditors. 

The  transparency  and  efficiency  of  the  claims  filing  and  verification  process  impact 
significantly on creditors’ ability to obtain a satisfactory outcome of bankruptcy proceedings. 
The laws of Member States regulate this area differently. The differences found include the 
time limits for filing claims and asserting rights, availability and access to information about 
the  process  and  the  consequences  of  delayed  filing  of  claims.  Frequently,  the  time  limit  for 
filing claims is laid down in the bankruptcy decision. Failure to meet the time limit can also 
have different consequences in difference Member States. In some, a creditor who missed the 
time  limit  may  lose  its  rights  to  advance  and  obtain  a  satisfactory  outcome  of  its  claim  in 
bankruptcy proceedings, whereas in other Member States it does not. 

Foreign  creditors  are  more  likely  than  domestic  creditors  to  be  impacted  by  the  significant 
differences between the laws of Member States, given the potentially severe consequences of 
failure  to  observe  the  rules  governing  the  process.  These  include  losing  their  right  to 
participate in distributions. 

3.6. 

Promoting restructuring plans 

The  rules  regulating  restructuring  plans  (including  contents  and  related  procedural  issues) 
have  a  crucial  role  in  creating  the  conditions  for  successful  restructuring  in  insolvency 
proceedings. Rigid and impracticable rules may hinder the chances of adopting a restructuring 
plan, leaving no alternative but to wind up a company. The legal framework for restructuring 
plans  adopted  in  Member  States  differ  significantly.  The  main  differences  concern 
identification  of  the  parties  that  can  act  as  promoters  of  the  plan  and  also  the  adoption, 
modification and verification of plans. 

While  the  laws  of  Member  States  generally  accept  that  it  is  up  to  the  debtor  to  propose  a 
restructuring  plan,  the  rules  on  whether  creditors  may  propose  the  plan  or  influence  its 
preparation  vary.  There  are  also  major  differences  in  the  rules  regarding  the  procedure  for 

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adopting  the  plan,  including  whether  creditors  are  divided  into  categories  and  required 
majorities.  In  certain  Member  States,  they  are  not  divided  into  categories.  The  laws  of  the 
Member  States  contain  different  rules  on  the  required  majorities  for  approving  a  plan.  The 
laws of the Member States also differ on the standards applied by the courts when reviewing 
the plan. Under some laws, the courts have wide discretionary powers, under other laws, these 
powers are rather more limited. 

4. 

SPECIAL NEEDS OF SMES TO PROMOTE SECOND CHANCE 

The  EU  pays  special  attention  to  the  situation  faced  by  SMEs  and  to  giving  them  a  second 
chance.  The  Commission  considers  that  support  for  SMEs  to  tackle  economic  difficulties 
should be granted for16: 

•  Prevention; 
•  Post-bankruptcy and second chance; 
•  Out-of-court settlements; 
• 
In-court procedures. 

Restructuring can be extremely costly for SMEs, so much so that often only bankruptcy is a 
viable option. Solutions should be found to lower restructuring costs for SMEs. Capped fees 
can be a solution. Alternative procedures should be put in place to make adequate solutions 
available  for  all  types  of  SMEs.  Procedures  should  be  proportionate  to  the  size  of  the 
business.  Out-of-court  procedures  should  be  open  to  all  types  of  debtors,  regardless  of  the 
available funds. While the average time taken of out of court settlements is relatively short, 
the rate of success in achieving settlements is above 50% in most EU Member States. Even 
though  out-of-court  settlements  and  pre-  insolvency  proceedings  are  recently  introduced 
mechanisms, they are increasingly used by SME's in the EU.  

SMEs can also be affected by economic difficulties as creditors. Certain SME representatives 
consider  that  micro  businesses  as  creditors  lose  an  unreasonable  proportion  of  their 
outstanding claim in insolvency proceedings due to lengthy proceedings and national priority 
rules. It is worth exploring what could be done to improve the status of SMEs as creditors. 

5. 

STEPS TO BE TAKEN 

The  Commission,  as  a  first  step,  proposes  the  modernisation  of  the  EU  Regulation  on 
insolvency proceedings. In addition, it intends to adopt a European Entrepreneurship Action 
Plan  which  would  include  action  to  promote  efficient  bankruptcy  procedures  and  offering 
second chance . 

As  a  further  step  the  Commission  is  reflecting  on  ways  forward  to  tackle  problems  arising 
from  the  disparities  between  national  insolvency  laws.  Individual  action  at  national  level 
cannot  adequately  address  the  challenges  posed  by  the  transnational  aspects  of  the  internal 
market. Action could usefully be taken to diminish uncertainty and to create a more business-
friendly  environment.  The  challenge  is  to  address  adequately  and  quickly  the  debtor’s 
financial  difficulties  alongside  the  creditor’s  interests,  while  facilitating  the  rescue  and 
restructuring of businesses. 

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‘A second chance for entrepreneurs: prevention of bankruptcy, simplification of bankruptcy procedures 
and support for a fresh start’, see above footnote 9. 

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The  Commission  will  continue  the  approach  started  under  the  previous  European  Semester 
cycle,  in  the  context  of  which  some  Member  States  have  already  reformed  their  domestic 
insolvency  laws.  Country-specific  recommendations  inviting  the  Member  States  to  update 
their insolvency laws could therefore be issued where necessary. 

Furthermore,  the  Commission  intends  to  deepen  its  analysis  of  the  impact  arising  from 
differences  between  national  insolvency  laws  on  the  functioning  of  the  internal  market.  To 
this  end,  it  will  enter  into  a  dialogue  with  the  European  Parliament  and  the  Council  on  the 
basis of this Communication. Moreover, the Commission will launch a public consultation so 
as to receive views from stakeholders on the issues identified in this Communication and any 
other concerns as well as on possible solutions and policy options.  

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