Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 1346/2000 on insolvency proceedings
Date: 2012-12-12
Institutions: European Commission
Subjects: access to information, cross-border cooperation, enforcement of ruling, financial solvency, group of companies, judicial cooperation in civil matters in the EU, judicial proceedings

EUROPEAN 
COMMISSION 

Strasbourg, 12.12.2012  
COM(2012) 744 final 

2012/0360 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 1346/2000 on insolvency proceedings 

{SWD(2012) 416 final} 
{SWD(2012) 417 final} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

General context 

This  proposal  is  amending  Council  Regulation  (EC)  No  1346/2000  of  29  May  2000  on 
insolvency proceedings (the "Insolvency Regulation" or "Regulation").  

The  Insolvency  Regulation  establishes  a  European  framework  for  cross-border  insolvency 
proceedings. The Regulation 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  for  opening  insolvency  proceedings:  Main 
proceedings have to be opened in the Member State where the debtor has its centre of main 
interests  (COMI)  and  the  effects  of  these  proceedings  are  recognised  EU-wide.  Secondary 
proceedings  can  be  opened  where  the  debtor  has  an  establishment;  the  effects  of  these 
proceedings are limited to the assets located in that State. The Regulation also contains rules 
on  applicable  law  and  certain  rules  on  the  coordination  of  main  and  secondary  insolvency 
proceedings.  The  Insolvency  Regulation  applies  to  all  Member  States  with  the  exception  of 
Denmark  which  does  not  participate  in  judicial  cooperation  under  the  Treaty  on  the 
Functioning of the European Union.  

Adopted in May 2000, the Insolvency Regulation applies since 31 May 2002. Ten years after 
its  entry  into  force,  the  Commission  has  reviewed  its  operation  in  practice  and  considers  it 
necessary to amend the instrument.  

1.2. 

Need for a revision of the Insolvency Regulation  

While the Insolvency Regulation is generally considered to operate successfully in facilitating 
cross-border  insolvency  proceedings  within  the  European  Union,  the  consultation  of 
stakeholders  and  legal  and  empirical  studies  commissioned  by  the  Commission  revealed  a 
range of problems in the application of the Regulation in practice. Moreover, the Regulation 
does not sufficiently reflect current EU priorities and national practices in insolvency law, in 
particular in promoting the rescue of enterprises in difficulties. Essentially, the evaluation of 
the Insolvency Regulation identified five main shortcomings: 

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• 

The Regulation's scope  does  not cover national procedures which provide for 
the  restructuring  of  a  company  at  a  pre-insolvency  stage  (“pre-insolvency 
proceedings”)  or  proceedings  which  leave  the  existing  management  in  place 
(“hybrid  proceedings”).  However,  such  proceedings  have  recently  been 
introduced in many Member States1 and are considered to increase the chances 
of  successful  restructuring  of  businesses.  In  addition,  a  number  of  personal 
insolvency proceedings are currently outside the Regulation's scope.  

There are difficulties in determining which Member State is competent to open 
insolvency  proceedings.  While  there  is  wide  support  for  granting  jurisdiction 
for  opening  main  insolvency  proceedings  to  the  Member  State  where  the 

1 

For an overview of national pre-insolvency and hybrid proceedings, see Section 2 of the Commission 
report  of  12.12.2012  on  the  evaluation  of  Council  Regulation  (EC)  No  1346/2000  on  insolvency 
proceedings.  

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debtor's COMI is located, there have been difficulties in applying the concept 
in  practice.  The  Regulation's  jurisdiction  rules  have  also  been  criticised  for 
allowing  forum  shopping  by  companies  and  natural  persons  through  abusive 
COMI-relocation. 

Problems have also been identified with respect to secondary proceedings. The 
opening  of  secondary  proceedings  can  hamper  the  efficient  administration  of 
the  debtor's  estate.  With the opening of secondary  proceedings, the liquidator 
in  the  main  proceedings  no  longer  has  control  over  the  assets  located  in  the 
other Member State which makes a sale of the debtor on a going concern2 basis 
more difficult. Moreover, secondary proceedings currently have to be winding-
up proceedings which constitutes an obstacle to the successful restructuring of 
a debtor.  

There are problems relating to the rules on publicity of insolvency proceedings 
and  the  lodging  of  claims.  There  is  currently  no  mandatory  publication  or 
registration  of  the  decisions  in  the  Member  States  where  a  proceeding  is 
opened, nor in Member States where there is an establishment. There is also no 
European Insolvency Register which would permit searches in several national 
insolvency 
registers.  However, 
proceedings  relies  to  a  significant  extent  on  the  publicity  of  the  relevant 
decisions relating to an insolvency procedure. Judges need to be aware whether 
proceedings  have  already  been  opened  in  another  Member  State;  creditors  or 
potential  creditors  need  to  be  aware  that  proceedings  have  commenced.  In 
addition, creditors, particularly small creditors and SMEs, face difficulties and 
costs in lodging claims under the Insolvency Regulation. 

the  good  functioning  of  cross-border 

Finally,  the  Regulation  does  not  contain  specific  rules  dealing  with  the 
insolvency  of  a  multi-national  enterprise  group  although  a  large  number  of 
cross-border  insolvencies  involve  groups  of  companies.  The  basic  premise  of 
the Insolvency Regulation is that separate proceedings must be opened for each 
individual  member  of  the  group  and  that  these  proceedings  are  entirely 
independent of each other. The lack of specific provisions for group insolvency 
often  diminishes  the  prospects  of  successful  restructuring  of  the  group  as  a 
whole and may lead to a break-up of the group in its constituting parts.  

The  detailed  evaluation  of  the  Regulation's  application  in  practice  is  set  out  in  the 
Commission's report which accompanies this proposal. An in-depth analysis of the problems 
of  the  current  Regulation  as  well  as  the  impacts  of  the  different  options  considered  for 
addressing  them  can  be  found  in  the  Commission's  Impact  Assessment  which  equally 
accompanies this proposal.  

The overall objective of the revision of the Insolvency Regulation is to improve the efficiency 
of the European framework for resolving cross-border insolvency cases in view of ensuring a 
smooth functioning of the internal market and its resilience in economic crises. This objective 
links  in  with  the  EU's  current  political  priorities  to  promote  economic  recovery  and 
sustainable growth, a higher investment rate and the preservation of employment, as set out in 

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'Going concern' is a concept used primarily in accounting which directs accountants to prepare financial 
statements  on  the  assumption  that  the  business  is  not  about  to  be  liquidated  over  the  next  12-months 
period. 

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the Europe 2020 strategy. The revision of the Regulation will contribute to ensuring a smooth 
development and the survival of businesses, as stated in the Small Business Act3. The revision 
is also one of the key actions listed in the Single Market Act II4.  

2. 

CONSULTATION AND IMPACT ASSESSMENT 

This proposal was preceded by a consultation of the interested public, Member States, other 
institutions  and  experts  on  the  existing  problems  of  the  current  Regulation  and  possible 
solutions  to  these  problems.  On  29  March  2012,  the  Commission  launched  a  public 
consultation to which a total of 134 answers were received. The Commission also took into 
account the results of an external study for the evaluation of the application of the Insolvency 
Regulation  carried  out  by  a  consortium  of  the  Universities  of  Heidelberg  and  Vienna. 
Empirical  data  on  the  impact  of  the  different  options  for  reform  were  collected  by  another 
external study carried out by a consortium of GHK and Milieu. Both studies will be published 
together with this proposal on the internet site of DG JUSTICE. Two meetings with national 
experts were held in April and October 2012. In addition, the Commission set up a group of 
private  experts  in  the  field  of  cross-border  insolvencies  which  met  five  times  from  May  to 
October 2012 and provided input on the problems, the options and the drafting of the revised 
Regulation. 

Views of stakeholders on the main elements of the reform can be summarised as follows:  

•  With  respect  to  the  extension  of  the  scope  of  the  Regulation,  a  significant 
majority  felt  that  the  Regulation  should  cover  pre-insolvency  and  hybrid 
proceedings.  Views  were  mixed  on  exactly  which  proceedings  should  be 
covered  and,  in  particular,  where  court  oversight  should  be  required.  A 
majority of respondents agreed that the Insolvency Regulation should apply to 
private individuals and self-employed.  

•  With respect to jurisdiction, three quarters of respondents approved of the use 
of  the  COMI  concept  to  locate  the  main  proceedings.  However  a  majority 
considered  that  the  interpretation  of  the  term  COMI  by  case-law  caused 
practical  problems.  Almost  half  of  the  respondents  indicated  evidence  of 
abusive relocation of COMI5.  

• 

As to the relation of main and secondary insolvency proceedings, almost half 
of  the  respondents  were  dissatisfied  with  the  coordination  between  main  and 
secondary proceedings. 

•  With  respect  to  publication  of  proceedings,  three  quarters  of  respondents 
agreed  that  the  absence  of  mandatory  publication  of  the  decision  opening 
insolvency  is  a  problem.  Almost  half  of  those  who  expressed  an  opinion 
considered there were problems with lodging claims.  

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COM(2008)394,25.6.2008. 
COM(2012) …… 
See  on  the  extent  of  this  problem,  Section  3.4.1  of  the  Commission's  Impact  Assessment  report 
accompanying this proposal.  

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Concerning group insolvency, almost half of respondents felt the EIR does not 
work  efficiently  for  the  insolvency  of  members  of  a  multinational  group  of 
companies.  

The Commission analysed the costs and benefits of the main aspects of the proposed reform 
in its Impact Assessment which accompanies this proposal.  

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Summary of the proposed action  

The elements of the proposed reform of the Insolvency Regulation can be summarised as 
follows: 

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Scope:  The  proposal  extends  the  scope  of  the  Regulation  by  revising  the 
definition of insolvency proceedings to include hybrid and pre-insolvency 
proceedings  as  well  as  debt  discharge  proceedings  and  other  insolvency 
proceedings for natural persons which currently do not fit the definition; 

Jurisdiction: The proposal clarifies the jurisdiction rules and improves the 
procedural framework for determining jurisdiction;  

Secondary  proceedings:  the  proposal  provides  for  a  more  efficient 
administration  of  insolvency  proceedings  by  enabling  the  court  to  refuse 
the opening of secondary proceedings if this is not necessary to protect the 
interests  of  local  creditors,  by  abolishing  the  requirement  that  secondary 
proceedings  must  be  winding-up  proceedings  and  by  improving  the 
cooperation  between  main  and  secondary  proceedings,  in  particular  by 
extending the cooperation requirements to the courts involved;  

Publicity  of  proceedings  and  lodging  of  claims:  The  proposal  requires 
Member  States  to  publish  the  relevant  court  decisions  in  cross-border 
insolvency  cases  in  a  publicly  accessible  electronic  register  and  provides 
for  the  interconnection  of  national  insolvency  registers.  It  also  introduces 
standard forms for the lodging of claims;  

Groups  of  companies:  The  proposal  provides  for  a  coordination  of  the 
insolvency proceedings concerning different members of the same group of 
companies by obliging the liquidators and courts involved in the different 
main  proceedings  to  cooperate  and  communicate  with  each  other;  in 
addition,  it  gives  the  liquidators  involved  in  such  proceedings  the 
procedural tools to request a stay of the respective other proceedings and to 
propose a rescue plan for the members of the group subject to insolvency 
proceedings.  

3.1.1. 

Scope of the Insolvency Regulation 

The  proposal  extends  the  scope  of  the  Insolvency  Regulation  by  amending  the  current 
definition  of  "insolvency  proceedings"  in  its  Article  1  (1).  In  this  respect,  it  is  proposed  to 
open the scope to proceedings which do not involve a liquidator but in which the assets and 
affairs of the debtor are subject to control or supervision by a court. This amendment would 

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allow  proceedings  where  the  debtor  remains  in  possession  without  a  liquidator  being 
appointed  to  benefit  from  the  EU-wide  recognition  of  the  effects  of  insolvency  proceedings 
which the Regulation brings about. It would also allow more personal insolvency procedures 
to be covered by the Regulation. In addition, it is proposed to make an express reference to 
proceedings for the adjustment of debts and to the purpose of rescue in order to include also 
those proceedings which enable the debtor to find an arrangement with his creditors at a pre-
insolvency  stage.  The  amendments  would  also  bring  the  Regulation  more  in  line  with  the 
approach taken by the UNCITRAL Model Law on cross-border insolvency6.  

While the extension of the Regulation's scope is important to ensure the efficient conduct of 
pre-insolvency  and  hybrid  proceedings  in  a  cross-border  context,  it  should  not  encompass 
insolvency  proceedings  which  are  confidential.  There  are  indeed  a  number  of  national  pre-
insolvency  proceedings  where  the  debtor  enters  into  negotiations  with  (certain)  creditors  in 
view of reaching an agreement on its refinancing or reorganisation but this information is not 
made  public.  These  proceedings  may  entail  a  moratorium  of  individual  enforcement 
proceedings or prevent creditors from filing for insolvency proceedings during a certain time 
period in order to give the debtor some "breathing space". While these proceedings may play 
an  important  role  in  some  Member  States,  their  contractual  and  confidential  nature  would 
make  it  difficult  to  recognise  their  effects  EU-wide  because  a  court  or  creditor  located  in 
another  Member  State  would  not  know  that  such  proceedings  are  pending.  This  does, 
however, not prevent such a procedure from being subsequently covered by the scope of the 
Insolvency Regulation as from the moment it becomes public.  

This  proposal  does  not  envisage  changing  the  existing  mechanism  according  to  which  the 
national  insolvency  procedures  covered  by  the  Regulation  are  listed  in  Annex  A  and  the 
Member States decide whether to notify a particular insolvency procedure to be included in 
that  Annex.  However,  the  proposal  introduces  a  procedure  by  which  the  Commission 
scrutinises whether a national insolvency procedure notified actually fulfils the conditions of 
the  revised  definition.  This  will  ensure  that  only  proceedings  which  fit  the  rules  of  the 
Regulation are listed in the Annex.  

3.1.2. 

Jurisdiction for opening insolvency proceedings 

The proposal retains the concept of the centre of main interest (COMI) because that concept 
ensures  that  the  case  will  be  handled  in  a  jurisdiction  with  which  the  debtor  has  a  genuine 
connection rather than in the one chosen by the incorporators. The COMI approach is also in 
line with international developments since it has been chosen as a jurisdictional standard by 
UNCITRAL in its Model Law on cross-border insolvency. In order to give guidance to legal 
practitioners in determining COMI, the proposal complements the definition of COMI; it also 
introduces  a  provision  determining  the  COMI  of  natural  persons.  In  addition,  a  new  recital 
clarifies  the  circumstances  in  which  the  presumption  that  the  COMI  of  a  legal  person  is 
located at the place of its registered office can be rebutted; the language of this recital is taken 
from the "Interedil" decision of the Court of Justice of the European Union7.  

The  proposal  also  improves  the  procedural  framework  for  determining  jurisdiction  for  the 
opening of proceedings. The proposal requires the court to examine its jurisdiction ex officio 
prior  to  opening  insolvency  proceedings  and  to  specify  in  its  decision  on  which  grounds  it 
based  its  jurisdiction.  Furthermore,  the  proposal  grants  all  foreign  creditors  a  right  to 
challenge  the  opening decision and ensures that these creditors are informed of  the opening 

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http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model.html 
Case C – 396/09, judgment of 20.10.2011.  

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decision in order to be able to effectively exercise their rights. These changes aim at ensuring 
that proceedings are only opened if the Member State concerned actually has jurisdiction. It 
should  therefore  reduce  the  cases  of  forum  shopping  through  abusive  and  non-genuine 
relocation of the COMI.  

Thirdly,  the  proposal  clarifies  that  the  courts  opening  insolvency  proceedings  also  have 
jurisdiction  for  actions  which  derive  directly  from  insolvency  proceedings  or  are  closely 
linked  with  them  such  as  avoidance  actions.  This  amendment  codifies  the  case-law  of  the 
CJEU in the "DekoMarty" decision8. Where such an action is related to another action against 
the same defendant which is based on general civil and commercial law, the proposal gives 
the liquidator the possibility to bring both actions in the courts of the defendant's domicile if 
these  courts  are  competent  pursuant  to  Regulation  (EC)  44/2001  of  22  December  2000  on 
jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  civil  and  commercial 
matters9 (as amended). This rule would allow a liquidator to bring, for example, an action for 
directors' liability based on insolvency law together with an action against that director based 
on tort law or company law in the same court.  

3.1.3. 

Secondary insolvency proceedings 

Several modifications are proposed with the aim of improving the efficient administration of 
the  debtor's  estate  in  situations  where  the  debtor  has  an  establishment  in  another  Member 
State.  

• 

The court seised with a request for opening secondary  proceedings should  be 
able,  if  so  requested  by  the  liquidator  in  the  main  proceedings,  to  refuse  the 
opening or to postpone the decision if such opening would not be necessary to 
protect the interests of local creditors. This could, for example, be the case if an 
investor made an offer to buy the company on a going-concern basis and that 
offer would give more to the local creditors than a liquidation of the company's 
assets. The opening of secondary proceedings should also not be necessary, if 
the liquidator of the main proceedings promises to the local creditors that they 
would be treated in the main proceedings as if secondary proceedings had been 
opened and that the rights they would have had in such a case with respect to 
the  determination  and  ranking  of  their  claims  would  be  respected  in  the 
distribution  of  the  assets.  The  practice  of  such  "synthetic  secondary 
proceedings"  has  been  developed  in  several  cross-border  insolvency  cases 
where  main  proceedings  were  opened  in  the  United  Kingdom  (notably  in  the 
insolvency  proceedings  concerning  Collins&Aikman,  MG  Rover  and  Nortel 
Networks).  The  English  courts  accepted  that  the  English  liquidators  were 
entitled to distribute part of the assets according to the law of the Member State 
where  the  establishment  was  located.  Since  such  a  practice  is  currently  not 
possible under the law of many Member States, the proposal introduces a rule 
of  substantive  law  enabling  the  liquidator  to  give  such  undertakings  to  local 
creditors with binding effect on the estate.  

• 

The  proposed  amendment  will  not  affect  the  possibility  of  the  liquidator  to 
request  the  opening  of  secondary  proceedings  where  this  would  facilitate  the 
administration of complex cases, for example where a considerable number of 

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Case C – 339/07, judgment of 12.2.2009.  
OJ L 12, 16.1.2001, p. 1. 

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employees have to be laid off in the State of the establishment. In such cases, 
the opening of local proceedings and the appointment of a local liquidator may 
still be useful to ensure an efficient administration of the debtor's estate.  

The  proposal  obliges  the  court  seised  with  a  request  to  open  secondary 
proceedings  to  hear  the  liquidator  of  the  main  proceedings  prior  to  taking  its 
decision.  This  amendment  aims  to  ensure  that  the  court  seised  with  a  request 
for  opening  secondary  proceedings  is  fully  aware  of  any  rescue  or 
reorganisation options explored by the liquidator and is able to properly assess 
the consequences of the opening of secondary proceedings. This obligation is 
complemented by the right of the liquidator to challenge the decision opening 
secondary proceedings.  

The  proposal  abolishes  the  current  requirement  that  secondary  proceedings 
have to be winding-up proceedings. Where secondary proceedings are opened, 
the  opening  court  can  choose  from  the  full  range  of  proceedings  available 
under  national  law  including  restructuring.  This  amendment  ensures  that  the 
opening of secondary proceedings does not automatically thwart the rescue or 
restructuring  of  a  debtor  as  a  whole.  This  amendment  should  be  without 
prejudice to the rules on the recovery of state aid and the jurisprudence of the 
Court  of  Justice  of  the  European  Union  on  recovery  from  insolvent 
companies10. 

In  addition,  the  proposal  improves  the  coordination  of  main  and  secondary 
proceedings  by  extending  the  obligation  to  cooperate,  which  currently  only 
applies  to  the  liquidators,  to  the  courts  involved  in  the  main  and  secondary 
proceedings.  Consequently,  courts  will  be  obliged 
to  cooperate  and 
communicate with each other; moreover, liquidators will have to cooperate and 
communicate  with  the  court  in  the  other  Member  State  involved  in  the 
proceedings.  Cooperation  between  courts  will  improve  the  coordination  of 
main  and  secondary  proceedings.  It  can  notably  be  crucial  to  ensure  a 
successful restructuring, e.g. concerning the approval of a protocol setting out a 
rescue plan. 

3.1.4.  Publicity of insolvency proceedings and lodging of claims 

The  proposal  provides  that  certain  minimum  information  relating  to  the  insolvency 
proceedings  have  to  be  published  in  an  electronic  register  available  to  the  public  free  of 
charge  via  the  internet.  This  obligation  concerns  the  court  opening  the  insolvency 
proceedings, the date of opening and – for main proceedings, the date of closing proceedings, 
the type of proceedings, the debtor, the liquidator appointed, the decision opening proceedings 
as  well  as  the  decision  appointing  the  liquidator,  if  different,  and  the  deadline  for  lodging 
claims. In light of the disparities in national legal systems as to the publication of insolvency 
proceedings and the different needs of creditors, the obligation to publish this information is 
limited  to  companies,  self-employed  and  independent  professionals;  it  does  not  extend  to 
insolvency proceedings relating to consumers. The proposal provides for the establishment of 
a system for the interconnection of national registers which will be accessed via the European 
e-justice portal. The Commission will determine minimum common criteria for searching the 
registers and for obtaining results which will be based on the information to be published in 

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Case C-454/09, judgment of 13.10.2011 (Commission v. Italy – 'New Interline'). 

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the insolvency registers by way of implementing act. The interconnection of national registers 
will ensure that a court seised with a request for opening insolvency proceedings will be able 
to  determine  whether  proceedings  relating  to  the  same  debtor  have  already  been  opened  in 
another Member State; it will also enable creditors to find out whether proceedings have been 
opened  concerning  the  same  debtor  and,  if  so,  which  powers  the  liquidator  has,  if  any.  For 
debtors which are companies, Member States will be able to build on the obligations arising 
from  Directive  2012/17/EU  of  13  June  2012  on  the  interconnection  of  central,  commercial 
and companies registers11. However, for the purpose of this Regulation, the mere information 
that  proceedings  have  been  opened  concerning  a  debtor  is  insufficient  for  the  purpose  of 
coordinating cross-border insolvency proceedings and enabling creditors to make use of their 
rights in relation to such proceedings. 

The proposal facilitates the lodging of claims for foreign creditors, particularly small creditors 
and SMEs, in three ways: First, it provides for two standard forms to be introduced by way of 
implementing act, one for  the notice  to be sent to creditors and  the  other for  the lodging of 
claims.  These  standard  forms  will  be  available  in  all  official  languages  of  the  European 
Union, thereby reducing translation costs. Second, the proposal gives foreign creditors at least 
45  days  following  publication  of  the  notice  of  opening  of  proceedings  in  the  insolvency 
register  to  lodge  their  claims,  irrespective  of  any  shorter  periods  applicable  under  national 
law.  They  will  also  have  to  be  informed  in  case  their  claim  is  contested  and  be  given  the 
possibility  to  supplement  the  evidence  provided  in  order  to  prove  their  claim.  Finally,  legal 
representation  will  not  be  mandatory  for  lodging  a  claim  in  a  foreign  jurisdiction,  thereby 
reducing costs for creditors.  

3.1.5. 

Insolvency of members of a group of companies 

The proposal creates a specific legal framework to deal with the insolvency of members of a 
group  of  companies  while  maintaining  the  entity-by-entity  approach  which  underlies  the 
current  Insolvency  Regulation.  The  proposal  introduces  an  obligation  to  coordinate 
insolvency  proceedings  relating  to  different  members  of  the  same  group  of  companies  by 
obliging the liquidators and the courts involved to cooperate with each other in a similar way 
as this is proposed in the context of main and secondary proceedings. Such cooperation could 
take different forms depending on the circumstances of the case. Liquidators should notably 
exchange relevant information and cooperate in the elaboration of a rescue or reorganisation 
plan where this is appropriate. The possibility to cooperate by way of protocols is explicitly 
mentioned in order to acknowledge the practical importance of these instruments and further 
promote  their  use.  Courts  should  cooperate,  in  particular,  by  exchanging  information, 
coordinating,  where  appropriate,  the  appointment  of  liquidators  which  can  cooperate  with 
each other, and approving protocols put before them by the liquidators.  

In addition, the proposal gives each liquidator standing in the proceedings concerning another 
member of the same group. In particular, the liquidator has a right to be heard in these other 
proceedings, to request a stay of the other proceedings and to propose a reorganisation plan in 
a way which would enable the respective creditors' committee or court to take a decision on it. 
The  liquidator  also  has  the  right  to  attend  the  meeting  of  creditors.  These  procedural  tools 
enable  the  liquidator  which  has  the  biggest  interest  in  the  successful  restructuring  of  all 
companies  concerned  to  officially  submit  his  reorganisation  plan  in  the  proceedings 
concerning  a  group  member,  even  if  the  liquidator  in  these  proceedings  is  unwilling  to 
cooperate or is opposed to the plan. 

11 

OJ L 156, 16.6.2012, p. 1. 

EN 

9 

   EN 

                                                 
In  providing  for  the  coordination  of  different  proceedings  relating  to  members  of  the  same 
group,  the  proposal  does  not  intend  to  prevent  the  existing  practice  in  relation  to  highly 
integrated groups of companies to determine that the centre of main interests of all members 
of the group is located in one and the same place and, consequently, to open proceedings only 
in a single jurisdiction.  

3.2. 

Legal Basis 

This proposal amends Regulation 1346/2000 which was based on Articles 61 (c) and 67 (1) of 
the Treaty establishing the European Community. Since the entry into force of the Treaty of 
Lisbon,  the  corresponding  legal  basis  is  Article  81  (2)  (a),  (c)  and  (f)  of  the  Treaty  on  the 
Functioning of the European Union.  

Title V of Part Three of the Treaty on the Functioning of the European Union is not applicable 
to  Denmark  by  reason  of  the  Protocol  on  the  position  of  Denmark  annexed  to  the  Treaties. 
Title V is also not applicable to the United Kingdom and Ireland, unless those two countries 
decide  otherwise,  in  accordance  with  the  relevant  rules  of  the  Protocol  on  their  position  in 
respect of the area of Freedom, Security and Justice. However, where a Commission proposal 
amends an existing act and the United Kingdom or Ireland do not exercise their right to opt 
into  the  amending  measure,  the  Council,  acting  on  a  proposal  from  the  Commission,  can 
determine that the non-participation of the respective country in the amended version of the 
existing measure makes the application of that measure inoperable for other Member States or 
the Union, in which case the period for making the notification is extended. If the respective 
country has not opted in at the expiry of the extended period,  the  existing measure shall no 
longer be binding upon or applicable to it.  

3.3. 

Subsidiarity and Proportionality 

The  different  elements  of  the  revision  of  the  Insolvency  Regulation  outlined  above  comply 
with  the  requirements  of  subsidiarity  and  proportionality.  As  to  subsidiarity,  the  proposed 
amendments  cannot  be  achieved  by  the  Member  States  alone  because  they  require  the 
modification of existing rules of the Insolvency Regulation relating to scope, jurisdiction for 
opening insolvency proceedings, provisions concerning secondary proceedings, publication of 
decisions and the lodging of claims. The modification of the Insolvency Regulation requires – 
by  definition  –  the  intervention  of  the  Union  legislator.  While  the  creation  of  electronic 
insolvency  registers  could  in  theory  be  achieved  by  the  Member  States  alone,  the 
interconnection of such registers requires action at Union level. Therefore, the objectives of 
the proposed action – to enable the interconnection of insolvency registers EU-wide – cannot 
sufficiently be achieved by the Member States alone but can be better achieved by action at 
Union level.  

As  to  proportionality,  the  content  and  form  of  the  proposed  action  does  not  exceed  what  is 
necessary to achieve the objectives of the Treaty. Moreover, the Impact Assessment attached 
to this proposal demonstrates that the benefits of each of the proposed amendments outweigh 
their costs and that they are therefore proportionate.  

3.4. 

Impact on fundamental rights 

As set out in detail in the Impact Assessment accompanying this proposal and in accordance 
with  the  Union's  strategy  for  the  effective  implementation  of  the  Charter  of  Fundamental 
Rights  of  the  European  Union,  all  elements  of  the  reform  respect  the  rights  set  out  in  the 
Charter of fundamental Rights. The amendments improve the situation of persons involved in 

EN 

10 

   EN 

cross-border  insolvencies  with  respect  to  their  right  to  property,  the  freedom  to  conduct 
business  and  the  right  to  engage  in  work,  the  freedom  of  movement  and  residence,  and  the 
right to an effective remedy. The proposed amendment to create publicly accessible electronic 
insolvency  registers  respects  the  right  of  protection  of  personal  data  in  a  way  which  is 
proportionate  to  the  objectives  because  measures  will  be  put  in  place  to  ensure  compliance 
with Directive 95/46/EC on data protection. 

4. 

BUDGETARY IMPLICATION  

The  proposal  would  have  limited  impact  on  the  EU  budget.  The  IT  application  for  the 
interconnection of the insolvency registers has already been developed and will be hosted on 
the e-Justice Portal. The implication on the EU budget over 2014-2020 will comprise only of 
hosting  and  maintenance  costs  of  the  IT  application.  In  total  these  costs  would  amount  to 
EUR 1 500 000  for the period 2014-2020 and would be covered by the financial envelope of 
the future  Justice programme12.  

12  

COM(2011)759 final 

EN 

11 

   EN 

 
                                                 
2012/0360 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 1346/2000 on insolvency proceedings 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular  Article  81 
thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee13,  

Acting in accordance with the ordinary legislative procedure, 

After consulting the European Data Protection Supervisor14, 

Whereas: 

(1) 

(2) 

(3) 

Council  Regulation  (EC)  No  1346/200015  established  a  European  framework  for  cross-border 
insolvency  proceedings.  It  determines  which  Member  State  has  jurisdiction  for  opening 
insolvency  proceedings,  establishes  uniform  rules  on  applicable  law  and  provides  for  the 
recognition and enforcement of insolvency-related decisions as well as for the coordination of 
main and secondary insolvency proceedings.  

The Commission's report on the application of Regulation (EC) No 1346/2000 of 12 December 
201216  concludes  that  the  Regulation  is  functioning  well  in  general  but  that  it  is  desirable  to 
improve  the  application  of  certain  of  its  provisions  in  order  to  enhance  the  effective 
administration of cross-border insolvency proceedings. 

The scope of Regulation (EC) No 1346/2000 should be extended to proceedings which promote 
the  rescue  of  an  economically  viable  debtor  in  order  to  help  sound  companies  to  survive  and 
give a second chance to entrepreneurs. It should notably extend to proceedings which provide 
for  the  restructuring  of  a  debtor  at  a  pre-insolvency  stage  or  which  leave  the  existing 
management in place. The Regulation should also cover those proceedings providing for a debt 

13 
14 
15 
16 

OJ C , , p. . 
OJ C , , p. 
OJ L 160, 30.6.2000, p.1. 
OJ C , , p. 

EN 

12 

   EN 

                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

discharge of consumers and self-employed persons which do not fulfil the criteria of the current 
instrument. 

The  rules  on  jurisdiction  for  opening  insolvency  proceedings  should  be  clarified  and  the 
procedural framework for determining jurisdiction should be improved. There should also be an 
explicit rule on jurisdiction for actions which are deriving directly from insolvency proceedings 
or are closely linked with them.  

In order to improve the effectiveness of the insolvency proceedings in cases where the debtor 
has an establishment in another Member State, the requirement that secondary proceedings must 
be winding-up proceedings should be abolished. Moreover, a court should be able to refuse the 
opening  of  secondary  proceedings  if  this  is  not  necessary  to  protect  the  interests  of  local 
creditors.  The  coordination  between  main  and  secondary  proceedings  should  be  improved,  in 
particular by requiring the courts involved to cooperate.  

In order to improve the information available to creditors and courts involved and to prevent the 
opening  of  parallel  insolvency  proceedings,  Member  States  should  be  required  to  publish 
relevant decisions in cross-border insolvency cases in a publicly accessible electronic register. 
Provision should be made for the interconnection of insolvency registers. Standard forms for the 
lodging of claims to facilitate the tasks of foreign creditors and reduce translation costs should 
be introduced. 

There should be specific rules dealing with the coordination of proceedings involving different 
members of the same group of companies. The liquidators and courts involved in the different 
insolvency  proceedings  should  be  obliged  to  cooperate  and  communicate  with  each  other.  In 
addition, any of the liquidators involved should have the procedural tools to propose a rescue 
plan  for  the  group  companies  subject  to  insolvency  proceedings  and  to  request,  where 
necessary,  a  stay  of  the  insolvency  proceedings  concerning  a  company  other  than  the  one  for 
which  they  were  appointed.  The  definition  of  the  term  "group  of  companies"  should  be 
understood as being limited to the context of insolvency and should not have any influence on 
the company aspects regarding groups. 

In order to enable a swift adaptation of the Regulation to relevant amendments of the domestic 
insolvency law which the Member States have notified, the power to adopt acts in accordance 
with  Article  290  of  the  Treaty  should  be  delegated  to  the  Commission  in  respect  of  the 
amendment  of  the  Annexes.  It  is  of  particular  importance  that  the  Commission  carry  out 
appropriate  consultations  during  its  preparatory  work,  including  at  expert  level.  The 
Commission,  when  preparing  and  drawing  up  delegated  acts,  should  ensure  a  simultaneous, 
timely and appropriate transmission of relevant documents  to  the European Parliament and to 
the Council. 

In order to ensure uniform conditions for the implementation of Regulation (EC) No 1346/2000, 
implementing  powers  should  be  conferred  on  the  Commission.  Those  powers  should  be 
exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of 
the  Council  of  16  February  2011  laying  down  the  rules  and  general  principles  concerning 
mechanisms  for  control  by  the  Member  States  of  the  Commission's  exercise  of  implementing 
powers17. 

17 

OJ L 55, 28.2.2011, p. 13. 

EN 

13 

   EN 

                                                 
(10)  Regulation (EC) No 1346/2000 should therefore be amended accordingly. 

(11)  The amendment of this Regulation should be without prejudice to the rules on the recovery of 
State aid from insolvent companies as interpreted by the case-law of the Court of Justice of the 
European Union (C-454/09 Commission v. Italy – 'New Interline'). Where the full recovery of 
the  amount  of  state  aid  is  not  possible  because  the  recovery  order  concerns  a  company  in 
insolvency proceedings, those proceedings should always be winding-up proceedings and lead 
to the definitive cessation of the beneficiary's activities and the liquidation of its assets. 

(12) 

In accordance with Article 1 and 2 of the Protocol on the position of the United Kingdom and 
Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European 
Union  and  the  Treaty  on  the  Functioning  of  the  European  Union,  [the  United  Kingdom  and 
Ireland  have  given  notice  of  their  wish  to  take  part  in  the  adoption  and  application  of  this 
Regulation]/[without  prejudice  to  Article  4  of  the  Protocol,  the  United  Kingdom  and  Ireland 
will not participate in the adoption of this Regulation and will not be bound by it or be subject 
to its application]. 

(13)  Denmark,  in  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed to the Treaty on European Union and the Treaty on the Functioning of the European 
Union, is not participating in the adoption of this Regulation, and is therefore not bound by it 
nor subject to its application. 

HAVE ADOPTED THIS REGULATION: 

Council Regulation (EC) No 1346/2000 is amended as follows: 

Article 1 

(1) 

(2) 

(3) 

In Recital 2, the reference to Article 65 is replaced by a reference to Article 81. 

In Recitals 3, 5, 8, 11, 12, 14 and 21, the term "Community" is replaced by "Union". 

Recital 4 is replaced by the following:  

"(4)  It is necessary for the proper functioning of the internal market 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 to the detriment of the general body 
of creditors (forum shopping)." 

(4) 

Recital 6 is replaced by the following: 

"(6)  This  Regulation  should  encompass  provisions  governing  jurisdiction  for  opening 
insolvency proceedings and proceedings which are deriving directly from the insolvency 
proceedings  and are closely connected  with them. This Regulation should also contain 
provisions  regarding  the  recognition  and  enforcement  of  judgments  issued  in  such 
proceedings  and  provisions  regarding  the  law  applicable  to  insolvency  proceedings.  In 
addition,  this  Regulation  should  contain  rules  on  the  coordination  of  insolvency 
proceedings which relate to the same debtor or to several members of the same group of 
companies."  

EN 

14 

   EN 

(5) 

Recital 7 is replaced by the following: 

"(7)  Proceedings  concerning  the  winding-up  of  insolvent  companies  or  other  legal  persons, 
judicial  arrangements,  compositions  and  analogous  proceedings  and  actions  related  to 
such proceedings are excluded from the scope of Council Regulation (EC) No 44/2001 
of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments 
in civil and commercial matters18. These proceedings should be covered by the present 
Regulation.  The  interpretation  of  this  Regulation  should  as  much  as  possible  avoid 
regulatory loopholes between the two instruments."  

(6) 

Recital 9 is replaced by the following: 

"(9)  This Regulation should apply to insolvency proceedings which fulfill the conditions set 
out in this Regulation, irrespective of whether the debtor is a natural person or a legal 
person, a trader or an individual. Those insolvency proceedings are listed exhaustively in 
Annex A. When a national procedure figures in Annex A, this Regulation should apply 
without  any  further  examination  by  the  courts  of  another  Member  State  regarding 
whether  the  conditions  set  out  in  this  Regulation  are  fulfilled.  Insolvency  proceedings 
concerning  insurance  undertakings,  credit  institutions,  investment  firms  to  the  extent 
these  are  covered  by  Directive  2001/24/EC  of  the  European  Parliament  and  of  the 
Council of 4 April 2001 on the reorganisation and winding-up of credit institutions19 (as 
amended) and collective investment undertakings should be excluded from the scope of 
this Regulation. Such undertakings should not be covered by this Regulation since they 
are subject to special arrangements and the national supervisory authorities have wide-
ranging powers of intervention." 

(7) 

The following recital 9a is inserted: 

"(9a) The scope of this Regulation should extend to proceedings which promote the rescue of 
an  economically  viable  debtor  in  order  to  help  sound  businesses  to  survive  and  give  a 
second chance to entrepreneurs. It should notably extend to proceedings which provide 
for the restructuring of a debtor at a pre-insolvency stage, proceedings which leave the 
existing  management  in  place  and  proceedings  providing  for  a  debt  discharge  of 
consumers and self-employed persons. Since these proceedings do not necessarily entail 
the appointment of a liquidator, they should be covered by this Regulation if they take 
place  under  the  control  or  supervision  of  a  court.  In  this  context,  the  term  "control" 
should  include  situations  where  the  court  only  intervenes  on  appeal  by  a  creditor  or 
interested party." 

(8) 

Recital 10 is replaced by the following:  

"(10) Insolvency  proceedings  do  not  necessarily  involve  the  intervention  of  a  judicial 
authority; the expression 'court' in this Regulation should be given a broad meaning and 
include a person or body empowered by national law to open insolvency proceedings. In 
order  for  this  Regulation  to  apply,  proceedings  (comprising  acts  and  formalities  set 
down in law) should not only have to comply with the provisions of this Regulation, but 

18 
19 

OJ L 12, 16.1.2001, p. 1. 
OJ L 125, 5.5.2001, p. 15.  

EN 

15 

   EN 

                                                 
they  should  also  be  officially  recognised  and  legally  effective  in  the  Member  State  in 
which the insolvency proceedings are opened." 

(9) 

A new recital 12a is inserted: 

(12a) Before opening insolvency proceedings, the competent court should examine ex officio 
whether the debtor's centre of main interests or establishment is actually located within 
its jurisdiction. Where the circumstances of the case give rise to doubts about the court's 
jurisdiction, the court should require the debtor to submit additional evidence to support 
his  assertions  and,  where  appropriate,  give  the  debtor's  creditors  the  opportunity  to 
present their views on the question of jurisdiction. In addition, creditors should have an 
effective remedy against the decision opening insolvency proceedings. 

(10) 

Recital 13 is deleted. 

(11) 

The following recitals 13a and 13b are inserted: 

(13a) The 'centre of main interests' of a company or other legal person should be presumed to 
be at the place of its registered office. It should be possible to rebut this presumption if 
the  company's  central  administration  is  located  in  another  Member  State  than  its 
registered office and a comprehensive assessment of all the relevant factors establishes, 
in  a  manner  that  is  ascertainable  by  third  parties,  that  the  company’s  actual  centre  of 
management  and  supervision  and  of  the  management  of  its  interests  is  located  in  that 
other  Member  State.  By  contrast,  it  should  not  be  possible  to  rebut  the  presumption 
where the bodies responsible for the management and supervision of a company are in 
the same place as its registered office and the management decisions are taken there in a 
manner ascertainable by third parties. 

(13b) The  courts  of  the  Member  State  opening  insolvency  proceedings  should  also  have 
jurisdiction  for  actions  which  derive  directly  from  the  insolvency  proceedings  and  are 
closely  linked  with  them,  such  as  avoidance  actions.  Where  such  an  action  is  related 
with another action based on general civil and commercial law, the liquidator should be 
able to bring both actions in the courts of the defendant's domicile if he considers it more 
efficient  to  bring  the  action  in  that  forum.  This  could,  for  example,  be  the  case  if  the 
liquidator wishes to combine an action for director's liability on the basis of insolvency 
law with an action based on company law or general tort law. 

(12) 

The following recitals 19a and 19b are inserted: 

(19a) Secondary  proceedings  may  also  hamper  the  efficient  administration  of  the  estate. 
Therefore,  the  court  opening  secondary  proceedings  should  be  able,  on  request  of  the 
liquidator,  to  postpone  or  refuse  the  opening  if  these  proceedings  are  not  necessary  to 
protect the interests of local creditors. This should notably be the case if the liquidator, 
by  an  undertaking  binding  on  the  estate,  agrees  to  treat  local  creditors  as  if  secondary 
proceedings  had  been  opened  and  to  apply  the  rules  of  ranking  of  the  Member  State 
where  the  opening  of  secondary  proceedings  has  been  requested  when  distributing  the 
assets located in that Member State. This Regulation should confer on the liquidator the 
possibility to give such undertakings. 

EN 

16 

   EN 

(19b) In  order  to  ensure  an  effective  protection  of  local  interests,  the  liquidator  of  the  main 
proceedings should not be able to realise or re-locate the assets situated in the Member 
State  where  an  establishment  is  located  in  an  abusive  manner,  in  particular,  with  the 
purpose  of  frustrating  the  possibility  that  such  interests  be  effectively  satisfied  if 
afterwards secondary proceedings were opened. 

(13) 

Recital 20 is replaced by the following: 

"(20) Main  insolvency  proceedings  and  secondary  proceedings  can  only  contribute  to  the 
effective  realisation  of  the  total  assets  if  all  the  concurrent  proceedings  pending  are 
coordinated.  The  main  condition  here  is  that  the  various  liquidators  and  the  courts 
involved  must  cooperate  closely,  in  particular  by  exchanging  a  sufficient  amount  of 
information. In order to ensure the dominant role of the main proceedings, the liquidator 
in  such  proceedings  should  be  given  several  possibilities  for  intervening  in  secondary 
insolvency proceedings which are pending at the same time. In particular, the liquidator 
should be able to propose a restructuring plan or composition or apply for a suspension 
of  the  realisation  of  the  assets  in  the  secondary  insolvency  proceedings.  In  their 
cooperation,  liquidators  and  courts  should  take  into  account  best  practices  for 
cooperation in cross-border insolvency cases as set out in principles and guidelines on 
communication  and  cooperation  adopted  by  European  and  international  associations 
active in the area of insolvency law." 

(14) 

The following recitals 20a and 20b are inserted: 

(20a) This  Regulation  should  ensure  the  efficient  administration  of  insolvency  proceedings 
relating to different companies forming part of a group of companies. Where insolvency 
proceedings  have  been  opened  for  several  companies  of  the  same  group,  these 
proceedings  should  be  properly  coordinated.  The  various  liquidators  and  the  courts 
involved should  therefore be  under the same obligation to cooperate and communicate 
with  each  other  as  those  involved  in  main  and  secondary  proceedings  relating  to  the 
same debtor. In addition, a liquidator appointed in proceedings relating to a member of a 
group  of  companies  should  have  standing  to  propose  a  rescue  plan  in  the  proceedings 
concerning  another  member  of  the  same  group  to  the  extent  such  a  tool  is  available 
under national insolvency law. 

(20b) The introduction of rules on the insolvency of groups of companies should not limit the 
possibility of a court to open insolvency proceedings for several companies belonging to 
the same group in a single jurisdiction if the court finds that the centre of main interests 
of  these  companies  is  located  in  a  single  Member  State.  In  such  situations,  the  court 
should  also  be  able  to  appoint,  if  appropriate,  the  same  liquidator  in  all  proceedings 
concerned. 

(15) 

A new Recital 21a is inserted: 

(21a) It  is  essential  that  creditors  who  have  their  habitual  residence,  domicile  or  registered 
office in the Union be informed about the opening of insolvency proceedings relating to 
their debtor's assets. In order to ensure a swift transmission of information to creditors, 
Regulation 1393/2007 of the European Parliament and of the Council of 13 November 
2007 on the on the service in the Member States of judicial and extrajudicial documents 

EN 

17 

   EN 

in  civil  and  commercial  matters20  should  not  apply  where  this  Regulation  refers  to  the 
obligation  to  inform  creditors.  The  use  of  standard  forms  available  in  all  official 
languages  of  the  Union  should  facilitate  the  task  of  creditors  when  lodging  claims  in 
proceedings opened in another Member State." 

(16) 

Recital 29 is replaced by the following:  

"(29) For  business  considerations,  the  main  content  of  the  decision  opening  the  proceedings 
should be published in another Member State at the request of the liquidator. If there is 
an establishment in the Member State concerned, such publication should be mandatory 
until such time as the system of interconnection of insolvency registers is established. In 
neither  case,  however,  should  publication  be  a  prior  condition  for  recognition  of  the 
foreign proceedings."  

(17) 

The following recital 29a is inserted: 

(29a) In order to improve the information of creditors and courts involved and to prevent the 
opening  of  parallel  insolvency  proceedings,  Member  States  should  be  required  to 
publish  relevant  information  in  cross-border  insolvency  cases  in  a  publicly  accessible 
electronic  register.  In  order  to  facilitate  access  to  that  information  for  creditors  and 
courts domiciled or located in other Member States, this Regulation should provide for 
the interconnection of insolvency registers. 

(18) 

Recital 31 is replaced by the following: 

"(31) This  Regulation  should  include  Annexes  specifying,  in  particular,  the  national 
insolvency proceedings which are covered by this Regulation. In order to enable a swift 
adaptation of the Regulation to relevant amendments of the domestic insolvency law of 
the Member States, the Commission should be empowered to adopt amendments to the 
annexes  by  way  of  delegated  acts  in  accordance  with  Article  290  of  the  Treaty  on  the 
Functioning of the European Union. Before adopting a delegated act amending the list of 
national  proceedings  in  the  Annexes,  the  Commission  should  verify  whether  the 
procedure  notified  fulfills  the  criteria  set  out  in  this  Regulation.  When  preparing  and 
drawing  up  delegated  acts,  the  Commission  should  ensure  a  simultaneous,  timely  and 
appropriate  transmission  of  relevant  documents  to  the  European  Parliament  and  to  the 
Council." 

(19) 

The following Recitals 31a, 31b and 31c are inserted: 

"(31a)In  order  to  ensure  uniform  conditions  for  the  implementation  of  Regulation  (EC)  No 
1346/2000,  implementing  powers  should  be  conferred  on  the  Commission.  Those 
powers  should  be  exercised  in  accordance  with  Regulation  (EU)  No  182/2011  of  the 
European Parliament and of the Council of 16 February 2011 laying down the rules and 
general  principles  concerning  mechanisms  for  control  by  the  Member  States  of  the 
Commission's exercise of implementing powers21. 

20 
21 

OJ L 324, 10.12.2007, p. 79. 
OJ L 55, 28.2.2011, p. 13. 

EN 

18 

   EN 

                                                 
(31b) This Regulation respects the fundamental rights and observes the principles recognised 
in  the  Charter  of  Fundamental  Rights  of  the  European  Union.  In  particular,  this 
Regulation  seeks  to  promote  the  application  of  Articles  8,  17  and  47  concerning, 
respectively,  the  protection  of  personal  data,  the  right  to  property  and  the  right  to  an 
effective remedy and to a fair trial. 

(31c) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 
on the protection of individuals with regard to the processing of personal data and on the 
free  movement  of  such  data22  and  Regulation  45/2001/EC  of  the  European  Parliament 
and of the Council of 18 December 2000 on the protection of individuals with regard to 
the processing of personal data by the Community institutions and bodies and on the free 
movement of such data23 apply to the processing of personal data within the framework 
of this Regulation." 

(20) 

In recitals 32 and 33, the words "Treaty establishing the European Community" are replaced 
by "Treaty on the Functioning of the European Union". 

(21) 

Articles 1 and 2 are replaced by the following 

"Article 1 
Scope  

1. 

This  Regulation  shall  apply  to  collective  judicial  or  administrative  proceedings,  including 
interim proceedings, which are based on a law relating to insolvency or adjustment of debt and 
in which, for the purpose of rescue, adjustment of debt, reorganisation or liquidation,  

(a) 

the debtor is totally or partially divested of his assets and a liquidator is appointed, or 

(b) 

the assets and affairs of the debtor are subject to control or supervision by a court. 

The proceedings referred to in this paragraph shall be listed in Annex A.  

2. 

This Regulation shall not apply to insolvency proceedings concerning  

(a) 

insurance undertakings,  

(b) 

credit institutions,  

(c) 

investment firms to the extent these are covered by Directive 2001/24/EC as amended, 
and  

(d) 

collective investment undertakings.  

22 
23 

OJ L 281, 23.11.1995, p. 31. 
OJ L 8, 12.1.2001, p. 1. 

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Article 2 
Definitions 

For the purposes of this Regulation: 

(a) 

"insolvency proceedings" means the proceedings listed in Annex A; 

(b) 

"liquidator" means  

(i) 

any person or body whose function is to administer or liquidate assets of which the 
debtor  has  been  divested  or  to  supervise  the  administration  of  his  affairs.  Those 
persons and bodies are listed in Annex C;  

(ii) 

in a case which does not involve the appointment of, or the transfer of the debtor's 
powers to, a liquidator, the debtor in possession.  

(c) 

"court"  means  in  all  articles  except  Article  3b(2)  the  judicial  body  or  any  other 
competent  body  of  a  Member  State  empowered  to  open  insolvency  proceedings,  to 
confirm such opening or to take decisions in the course of such proceedings; 

(d) 

"judgment opening insolvency proceedings" includes  

(i) 

the decision of any court to open insolvency proceedings or to confirm the opening 
of such proceedings, and  

(ii) 

the decision by a court appointing a provisional liquidator.  

(e) 

"the time of the opening of proceedings" means the time at which the judgment opening 
insolvency proceedings becomes effective, whether it is a final judgment or not; 

(f) 

"the Member State in which assets are situated" means, in the case of: 

(i) 

tangible  property, the Member  State  within the territory of which the property is 
situated, 

(ii)  property  and  rights  ownership  of  or  entitlement  to  which  must  be  entered  in  a 
public register, the Member State under the authority of which the register is kept, 

(iii)  registered shares in companies, the Member State within the territory of which the 

company having issued the shares has its registered office,  

(iv)  financial instruments, title to which is evidenced by entries in a register or account 
maintained  by  or  on  behalf  of  an  intermediary  ("book  entry  securities"),  the 
Member  State  in  which  the  register  or  account  in  which  the  entries  are  made  is 
maintained,  

(v) 

cash held in accounts with a credit institution, the Member State indicated in the 
account's IBAN,  

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(vi)  claims  against  third  parties  other  than  those  relating  to  assets  referred  to  in 
subparagraph  (v),  the  Member  State  within  the  territory  of  which  the  third  party 
required to meet them has the centre of his main interests, as determined in Article 
3(1); 

(g) 

(h) 

"establishment"  means  any  place  of  operations  where  the  debtor  carries  out  a  non-
transitory economic activity with human means and assets; 

"local  creditors"  means  the  creditors  whose  claims  against  the  debtor  arose  from  the 
operation of an establishment situated in a Member State other than the one where the 
debtor's centre of main interests is located;  

(i) 

"group of companies" means a number of companies consisting of parent and subsidiary 
companies;  

(j) 

"parent company" means a company which 

(i) 

has a majority of the shareholders' or members' voting rights in another company 
(a "subsidiary company"); or 

(ii) 

is a shareholder or member of the subsidiary company and has the right to 

(aa)  appoint  or  remove  a  majority  of  the  members  of  the  administrative, 

management or supervisory body of that subsidiary; or 

(bb)  exercise  a  dominant  influence  over  the  subsidiary  company  pursuant  to  a 
contract  entered  into with that subsidiary or to a provision in its articles of 
association." 

(22) 

In Article 3, paragraphs 1 and 3 are replaced by the following: 

"1. 

The  courts  of  the  Member  State  within  the  territory  of  which  the  centre  of  a  debtor's  main 
interests  is  situated  shall  have  jurisdiction  to  open  insolvency  proceedings  ("main 
proceedings"). The centre of main interests shall be the place where the debtor conducts the 
administration of his interests on a regular basis and which is ascertainable by third parties. 

In the case of a company or legal person, the place of the registered office shall be presumed 
to be the centre of its main interests in the absence of proof to the contrary. 

In  the  case  of  an  individual  exercising  an  independent  business  or  professional  activity,  the 
centre of main interests shall be that individual's principal place of business; in the case of any 
other  individual,  the  centre  of  main  interests  shall  be  the  place  of  the  individual's  habitual 
residence. 

3. 

Where  insolvency  proceedings  have  been  opened  in  accordance  with  paragraph  1,  any 
proceedings  opened  subsequently  in  accordance  with  paragraph  2  shall  be  secondary 
proceedings.  In  such  a  case,  the  relevant  time  for  assessing  whether  the  debtor  possesses  an 
establishment within the territory of another Member State shall be the date of the opening of 
the main proceedings." 

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(23) 

The following Articles 3a and 3b are inserted as follows: 

"Article 3a 

Jurisdiction for related actions 

1. 

2. 

3. 

1. 

2. 

3. 

The  courts  of  the  Member  State  within  the  territory  of  which  insolvency  proceedings  have 
been opened in accordance with Article 3 shall have jurisdiction for any action which derives 
directly from the insolvency proceedings and is closely linked with them. 

Where  an  action  referred  to  in  paragraph  1  is  related  to  an  action  in  civil  and  commercial 
matters against the same defendant, the liquidator may bring both actions in the courts of the 
Member State within the territory of which the defendant is domiciled, or, where the action is 
brought against several defendants, in the courts of the Member State within the territory of 
which any of them is domiciled, provided that that court has jurisdiction pursuant to the rules 
of Regulation (EC) No 44/2001.  

For  the  purpose  of  this  Article,  actions  are  deemed  to  be  related  where  they  are  so  closely 
connected  that  it  is  expedient  to  hear  and  determine  them  together  to  avoid  the  risk  of 
irreconcilable judgments resulting from separate proceedings.  

Article 3b 

Examination as to jurisdiction; right to judicial review 

The court seized of a request to open insolvency proceedings shall ex officio examine whether 
it has jurisdiction pursuant to  Article 3.  The  judgment opening insolvency proceedings shall 
specify the grounds on which the jurisdiction of the court is based, and, in particular, whether 
jurisdiction is based on Article 3(1) or (2).  

Where insolvency proceedings are opened in accordance with national law without a decision 
by  a  court,  the  liquidator  appointed  in  such  proceedings  shall  examine  whether  the  Member 
State in which the proceedings are pending has jurisdiction pursuant to Article 3. Where this is 
the  case,  the  liquidator  shall  specify  the  grounds  on  which  jurisdiction  is  based  and,  in 
particular, whether jurisdiction is based on Article 3(1) or (2).  

Any creditor or interested party who has his habitual residence, domicile or registered office in 
a  Member  State  other  than  the  State  of  the  opening  of  proceedings,  shall  have  the  right  to 
challenge the decision opening main proceedings. The court opening main proceedings or the 
liquidator shall inform such creditors insofar as they are known of the decision in due time in 
order to enable them to challenge it." 

(24) 

In Article 4 (2), point (m) is replaced by the following: 

(m) 

the rules relating to the voidness, voidability or unenforceability of legal acts detrimental 
to the general body of creditors." 

(25) 

The following Article 6a is inserted: 

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"Article 6a 
Netting agreements 

Netting  agreements  shall  be  governed  solely  by  the  law  of  the  contract  governing  such 
agreements." 

(26) 

The following Article 10a is inserted: 

"Article 10a 
Approval requirements under local law 

Where  the  law  of  the  Member  State  governing  the  effects  of  insolvency  proceedings  on  the 
contracts  referred  to  in  Articles  8  and  10  provides  that  a  contract  can  only  be  terminated  or 
modified  with  the  approval  of  the  court  opening  insolvency  proceedings  but  no  insolvency 
proceedings have been opened in that Member State, the court which opened the insolvency 
proceedings  shall  have  the  competence  to  approve  the  termination  or  modification  of  these 
contracts." 

(27) 

Article 15 shall be replaced by the following: 

"Article 15  
Effects of insolvency proceedings on lawsuits or arbitral proceedings pending 

The effects of insolvency proceedings on a pending lawsuit or arbitral proceeding concerning an asset 
or  a  right  of  which  the  debtor  has  been  divested  shall  be  governed  solely  by  the  law  of  the  Member 
State in which that lawsuit is pending or in which the arbitral proceedings have their seat." 

(28) 

Article 18 is amended as follows: 

(a) 

1. 

Article 18 paragraph 1 is replaced by the following: 

The  liquidator  appointed  by  a  court  which  has  jurisdiction  pursuant  to  Article  3(1)  may 
exercise all the powers conferred on him by the law of the State of the opening of proceedings 
in another Member State, as long as no other insolvency proceedings have been opened there 
nor any preservation measure to the contrary has been taken there further to a request for the 
opening  of  insolvency  proceedings  in  that  State.  Subject  to  Articles  5  and  7,  he  may  in 
particular remove the debtor's assets from the territory of the Member State in which they are 
situated. He may also give the undertaking that the distribution and priority rights which local 
creditors would have had if secondary proceedings had been opened will be respected in the 
main proceedings. Such an undertaking shall be subject to the form requirements, if any, of the 
State  of  the  opening  of  the  main  proceedings  and  shall  be  enforceable  and  binding  on  the 
estate." 

(b) 

In paragraph 3, the last sentence is replaced by the following:  

"Those powers may not include coercive measures, unless ordered by a court, or the right to 
rule on legal proceedings or disputes." 

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(29) 

The following Articles 20a, 20b, 20c and 20d are inserted: 

"Article 20a 
Establishment of insolvency registers 

Member States shall establish and maintain in their territory one or several registers in which 
the  following  information  is  made  available  to  the  public  on  the  internet  free  of  charge 
("insolvency registers"): 

(a) 

the date of the opening of insolvency proceedings; 

(b) 

the court opening insolvency proceedings and the case reference number, if any; 

(c) 

the type of insolvency proceedings opened; 

(d) 

the name and address of the debtor; 

(e) 

the name and address of the liquidator appointed in the proceedings, if any;  

(f) 

the time limit for lodging claims; 

(g) 

the decision opening insolvency proceedings;  

(h) 

the decision appointing the liquidator, if different from the decision referred to in 
point (g) of this paragraph; 

(i) 

the date of closing main proceedings.  

Article 20b 
Interconnection of insolvency registers 

1. 

2. 

The Commission shall establish a decentralised system for the interconnection of insolvency 
registers  by  means  of  implementing  act.  This  system  shall  be  composed  of  the  insolvency 
registers  and  the  European  e-Justice  Portal  which  shall  serve  as  central  public  electronic 
access point to information from the system. The system shall provide a search service in all 
the official languages of the Union in order to make available the information referred to in 
Article 20a.  

By means of implementing act in accordance with the procedure referred to in Article 45b (3), 
the Commission shall adopt the following by……[36 months after the entry into force of the 
Regulation]:  

– 

the  technical  specification  defining  the  methods  of  communication  and  information 
exchange by electronic means on the basis of the established interface specification for 
the system of interconnection of insolvency registers; 

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– 

– 

– 

– 

– 

the technical measures ensuring the minimum information technology security standards 
for communication and distribution of information within the system of interconnection 
of insolvency registers; 

minimum criteria for the search service provided by the European e-Justice Portal based 
on the information set out in Article 20a;  

minimum  criteria  for  the  presentation  of  the  results  of  such  searches  based  on  the 
information set out in Article 20a;  

the  modalities  and  the  technical  conditions  of  availability  of  services  provided  by  the 
system of interconnection; and 

a glossary containing a basic explanation of the national insolvency procedures listed in 
Annex A. 

Article 20c 
Costs of establishing and interconnecting insolvency registers 

1. 

2. 

The  establishment  and  future  development  of  the  system  of  interconnection  of  insolvency 
registers shall be financed from the general budget of the Union. 

Each Member State shall bear the costs of adjusting its domestic insolvency registers to make 
it interoperable with the European e-Justice Portal, as well as the costs to administer, operate 
and maintain that register. 

Article 20d 
Registration of insolvency proceedings 

Where  main  or  secondary  proceedings  are  opened  in  relation  to  a  company  or  legal  person  or  an 
individual  exercising  an  independent  business  or  professional  activity,  the  court  opening  insolvency 
proceedings shall ensure that the information referred to in Article 20a is published immediately in the 
insolvency register of the State of opening."  

(30) 

Articles 21 and 22 are replaced by the following: 

"Article 21 
Publication in another Member State  

1. 

Until such time as the system of interconnection of insolvency registers referred to in Article 
20b is established, the liquidator shall request that notice of the judgment opening insolvency 
proceedings  and,  where  appropriate,  the  decision  appointing  him,  be  published  in  any  other 
Member  State  where  an  establishment  of  the  debtor  is  located  in  accordance  with  the 
publication procedures provided for in that State. Such publication shall specify the liquidator 
appointed and whether the jurisdiction rule applied is that pursuant to Article 3(1) or (2). 

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2. 

The liquidator may request that the information referred to in the first paragraph of this Article 
be published in any other Member State where assets or creditors of the debtor are located in 
accordance with the procedure provided for in that State."  

(31) 

Article 22 is replaced by the following: 

"Article 22 
Registration in public registers of another Member State 

Until  such  time  as  the  system  of  interconnection  of  insolvency  registers  referred  to  in  Article  20b  is 
established, the liquidator shall request that the decisions referred to in Article 21 be published in the 
land  register,  trade  register  or  any  other  public  register  of  any  other  Member  State  where  an 
establishment of the debtor is located and this establishment has been entered into a public register of 
that Member State. The liquidator may request such publication in any other Member State." 

(32) 

Article 25 is replaced by the following: 

"Article 25 
Recognition and enforceability of other judgments 

1. 

Judgments handed down by a court whose judgment concerning the opening of proceedings is 
recognised  in  accordance  with  Article  16  and  which  concern  the  course  and  closure  of 
insolvency  proceedings,  and  compositions  approved  by  that  court  shall  also  be  recognised 
with no further formalities. Such judgments shall be enforced in accordance with Articles 32 
to 56, with the exception of Article 34(2), Regulation (EC) No 44/2001. 

The  first  subparagraph  shall  also  apply  to  judgments  deriving  directly  from  the  insolvency 
proceedings  and  which  are  closely  linked  with  them,  even  if  they  were  handed  down  by 
another court. 

The first subparagraph shall also apply to judgments relating to preservation measures taken 
after the request for the opening of insolvency proceedings or in connection with it. 

2. 

The  recognition  and  enforcement  of  judgments  other  than  those  referred  to  in  paragraph  1 
shall be governed by the Regulation referred to in paragraph 1 provided that the Regulation is 
applicable." 

(33) 

Article 27 is replaced by the following: 

"Article 27 
Opening of proceedings 

Where main proceedings have been opened by a court of a Member State and recognised in 
another  Member  State,  a  court  of  another  Member  State  which  has  jurisdiction  pursuant  to 
Article 3(2) may open secondary insolvency proceedings in accordance with the provisions set 
out in this Chapter. The effects of secondary proceedings shall be restricted to the assets of the 

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debtor  situated  within  the  territory  of  the  Member  State  where  those  proceedings  have  been 
opened." 

(34) 

The following Article 29a is inserted: 

"Article 29a 
Decision to open secondary proceedings  

1. 

2. 

3. 

4. 

The court seized of a request to open secondary proceedings shall immediately give notice to 
the liquidator in the main proceedings and give him an opportunity to be heard on the request.  

Upon request by the  liquidator  in the main proceedings, the court  referred to in  paragraph 1 
shall postpone the decision of opening or refuse to open secondary proceedings if the opening 
of  such  proceedings  is  not  necessary  to  protect  the  interests  of  local  creditors,  in  particular, 
when the liquidator in the main proceedings has given the undertaking referred to in Article 18 
(1) and complies with its terms.  

When  deciding  whether  to  open  secondary  proceedings,  the  court  referred  to  in  paragraph  1 
shall open the type of proceedings under its national law which is the most appropriate taking 
into account the interests of the local creditors, irrespective of whether any condition relating 
to the debtor's solvency are fulfilled.  

The  liquidator  in  the  main  proceedings  shall  be  notified  of  the  decision  to  open  secondary 
proceedings and shall have the right to challenge that decision." 

(35) 

Article 31 is replaced by the following: 

"Article 31 
Cooperation and communication between liquidators 

1. 

The liquidator in the main proceedings and the liquidators in the secondary proceedings shall 
cooperate  with  each  other  to  the  extent  such  cooperation  is  not  incompatible  with  the  rules 
applicable to each of the proceedings. Such cooperation may take the form of agreements or 
protocols. 

2. 

In particular, the liquidators shall:  

(a) 

(b) 

(c) 

immediately communicate to each other any information which may be relevant to 
the  other  proceedings,  in  particular  any  progress  made  in  lodging  and  verifying 
claims  and  all  measures  aimed  at  rescuing  or  restructuring  the  debtor  or  at 
terminating  the  proceedings,  provided  appropriate  arrangements  are  made  to 
protect confidential information; 

explore  the  possibility  of  restructuring  the  debtor  and,  where  such  possibility 
exists, coordinate the elaboration and implementation of a restructuring plan;  

coordinate  the  administration  of  the  realisation  or  use  of  the  debtor's  assets  and 
affairs; the liquidator in the secondary proceedings shall give the liquidator in the 

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main  proceedings  an  early  opportunity  to  submit  proposals  on  the  realisation  or 
use of the assets in the secondary proceedings." 

(36) 

The following Articles 31a and 31b are inserted: 

"Article 31a 
Cooperation and communication between courts 

1. 

2. 

In  order  to  facilitate  the  coordination  of  main  and  secondary  insolvency  proceedings 
concerning the same debtor, a court before which a request to open insolvency proceedings is 
pending  or  which  has  opened  such  proceedings  shall  cooperate  with  any  other  court  before 
which insolvency proceedings are pending or which has opened such proceedings to the extent 
such cooperation is not incompatible with the rules applicable to each of the proceedings. For 
this  purpose,  the  courts  may,  where  appropriate,  appoint  a  person  or  body  acting  on  its 
instructions.  

The  courts  referred  to  in  paragraph  1  may  communicate  directly  with,  or  to  request 
information or assistance directly from each other provided that such communication is free of 
charge  and  respects  the  procedural  rights  of  the  parties  to  the  proceedings  and  the 
confidentiality of information.  

3. 

Cooperation may be implemented by any appropriate means, including  

(a) 

communication of information by any means considered appropriate by the court;  

(b) 

coordination  of  the  administration  and  supervision  of  the  debtor's  assets  and 
affairs;  

(c) 

coordination of the conduct of hearings, 

(d) 

coordination in the approval of protocols. 

Article 31b 
Cooperation and communication between liquidators and courts 

1. 

In order to facilitate the coordination of main and secondary insolvency proceedings opened 
with respect to the same debtor,  

(a) 

(b) 

a liquidator in main proceedings shall cooperate and communicate with any court 
before  which  a  request  to  open  secondary  proceedings  is  pending  or  which  has 
opened such proceedings and 

a liquidator in secondary or territorial insolvency proceedings shall cooperate and 
communicate  with  the  court  before  which  a  request  to  open  main  proceedings  is 
pending or which has opened such proceedings, 

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2. 

The  cooperation  referred  to  in  paragraph  1  shall  be  implemented  by  any  appropriate  means 
including the means set out in Article 31a (3) to the extent these are not incompatible with the 
rules applicable to each of the proceedings." 

(37) 

Article 33 is amended as follows: 

(a) 

The title is replaced by the following  

"Stay of proceedings" 

(b) 

In paragraphs 1 and 2, the words "process of liquidation" are replaced by "proceedings".  

(38) 

Article 34 is replaced by the following:  

"Article 34 
Closure of main or secondary insolvency proceedings 

1. 

2. 

The closure of main proceedings shall not prevent the continuation of secondary proceedings 
which are still open at that point in time.  

Where  secondary  proceedings  concerning  a  legal  person  have  been  opened  in  the  Member 
State  of  that  person's  registered  office  and  the  closure  of  those  proceedings  entails  the 
dissolution  of  the  legal  person,  such  dissolution  shall  not  prevent  the  continuation  of  main 
proceedings which have been opened in another Member State." 

(39) 

In Article 35, the term "liquidation" is replaced by "realisation". 

(40) 

Article 37 is replaced by the following: 

"Article 37  
Conversion of earlier proceedings 

The  liquidator  in  the  main  proceedings  may  request  the  court  of  the  Member  State  where 
secondary proceedings have been opened to order the conversion of the secondary proceedings 
into another type of insolvency proceedings available under the law of that Member State." 

(41) 

Article 39 is replaced by the following:  

"Article 39 
Right to lodge claims 

Any creditor who has his habitual residence, domicile or registered office in a Member State other than 
the State of the opening of proceedings, including the tax authorities and social security authorities of 
Member States ("foreign creditor"), shall have the right to lodge claims in the insolvency proceedings 
by  any  means  of  communication,  including  electronic  means,  which  are  accepted  by  the  law  of  the 
State of opening. Representation by a lawyer or another legal professional shall not be mandatory for 
the lodging of claims." 

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(42) 

Article 40 is amended as follows: 

(a) 

In paragraph 2, the following sentence is added:  

"The notice shall also include a copy of the standard claims form referred to in Article 41 or a 
link to the publication of that form on the internet." 

(b)  The following paragraph 3 is inserted:  

"3. 

The information referred to in this Article shall be provided using the standard notice form to 
be established in accordance with the advisory procedure referred to in Article 45b(4) and to 
be published in the European e-Justice Portal by…..[24 months after the entry into force of the 
Regulation]. The form shall bear the heading "Notice of insolvency proceedings" in all official 
languages of the Union. It shall be transmitted in the official language or one of the official 
languages of the State of the opening of proceedings or in another language which that State 
has  indicated  it  can  accept  in  accordance  with  Article  41(3)  if  it  can  be  assumed  that  that 
language is easier to understand for the foreign creditors." 

(43) 

Article 41 is replaced by the following:  

"Article 41 
Procedure for lodging claims 

1. 

Any  known  foreign  creditor  shall  lodge  his  claim  using  the  standard  claims  form  to  be 
established in accordance with the advisory procedure referred to in Article 45b(4) and to be 
published  on  the  European  e-justice  portal  by  [24  months  after  the  entry  into  force  of  the 
Regulation]. The form shall bear the heading "Lodgment of claims" in all official languages of 
the Union. 

2. 

In the standard claims form, the creditor referred to in paragraph 1 shall indicate 

(a)  his name and address  

(b) 

the nature of the claim 

(c) 

the amount of the claim and the date on which it arose 

(d)  whether any preferential creditor status is claimed 

(e)  whether security in rem or a reservation of title is alleged in respect of the claim 
and if so, what assets are covered by the security interest he is invoking and 

(f)  whether any set-off is claimed and whether the amount claimed is net of set-off. 

The standard claims form shall be accompanied by copies of supporting documents, if any.  

3. 

Claims may be lodged in any official language of the Union. The creditor may be required to 
provide a translation into the official language or one of the official languages of the State of 
the opening of proceedings or into another language which that Member State has accepted. 

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Each Member State shall indicate at least one official language of the Union other than its own 
which it accepts for the purpose of the lodging of claims. 

4. 

5. 

Claims shall be lodged within the period stipulated by the law of the State of the opening of 
insolvency proceedings. In the case of a foreign creditor, that period shall not be less than 45 
days following the publication of the opening of proceedings in the insolvency register of the 
State of opening.  

Where the liquidator contests a claim lodged in accordance with this Article, he shall give the 
creditor the opportunity to provide additional evidence on the existence and the amount of the 
claim." 

(44) 

Article 42 is deleted. 

(45) 

the following Chapter IVa is inserted:  

INSOLVENCY OF MEMBERS OF A GROUP OF COMPANIES 

"CHAPTER IVA 

Article 42a 
Duty to cooperate and communicate information between liquidators 

1. 

Where  insolvency  proceedings  relate  to  two  or  more  members  of  a  group  of  companies,  a 
liquidator  appointed  in  proceedings  concerning  a  member  of  the  group  shall  cooperate  with 
any liquidator appointed in proceedings concerning another member of the same group to the 
extent  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 shall 

(a) 

(b) 

immediately communicate to each other any information which may be relevant to 
the  other  proceedings,  provided  appropriate  arrangements  are  made  to  protect 
confidential information;  

explore  the  possibilities  for  restructuring  the  group  and,  where  such  possibilities 
exist,  coordinate  with  respect  to  the  proposal  and  negotiation  of  a  coordinated 
restructuring plan; 

(c) 

coordinate the administration and supervision of the affairs of the group members 
subject to insolvency proceedings; 

The liquidators may agree to grant additional powers to the liquidator appointed in one of the 
proceedings  where  such  an  agreement  is  permitted  by  the  rules  applicable  to  each  of  the 
proceedings. 

EN 

31 

   EN 

Article 42b 
Communication and cooperation between courts  

1. 

2. 

3. 

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  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 on its instructions. 

The courts referred to in paragraph 1 may communicate directly with each other, or to request 
information or assistance directly from each other.  

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  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 and courts 

A  liquidator  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 such cooperation is appropriate to 
facilitate the coordination of the proceedings and is not incompatible with the rules applicable 
to them. In particular, the liquidator 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. 

Article 42d 
Powers of the liquidators and stay of proceedings 

1. 

A liquidator appointed in insolvency proceedings opened with respect to a member of a group 
of companies shall have the right  

EN 

32 

   EN 

(a) 

(b) 

(c) 

(d) 

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;  

to request a stay of the proceedings opened with respect to any other member of 
the same group;  

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  

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.  

2. 

The  court  having  opened  proceedings  referred  to  in  point  b)  of  paragraph  1  shall  stay  the 
proceedings in whole or in part if it is proven that such a stay would be to the benefit of the 
creditors in these proceedings. Such a stay may be ordered for up to three months and may be 
continued  or  renewed  for  the  same  period.  The  court  ordering  the  stay  may  require  the 
liquidator  to  take  any  suitable  measure  to  guarantee  the  interests  of  the  creditors  in  the 
proceedings."  

(46) 

A new Article 44a is inserted: 

"Article 44a 
Information on national insolvency law 

1. 

The Member States shall provide, within the framework of the European Judicial Network in 
civil and commercial matters established by Council Decision 2001/470/EC24, with a view to 
making the information available to the public, a description of their national insolvency law 
and procedures, in particular relating to the matters listed in Article 4(2). 

2. 

The Member States shall update that information regularly." 

(47) 

Article 45 is replaced by the following: 

"Article 45 
Amendment of the Annexes 

1. 

2. 

The Commission shall be empowered to adopt delegated acts to amend Annexes A and C in 
accordance with the procedure laid down in this Article and Article 45a.  

In order to trigger an amendment of Annex A, Member States shall notify the Commission of 
their national rules on insolvency proceedings which they want to have included in Annex A, 
accompanied by a short description. The Commission shall examine whether the notified rules 

24 

OJ L 174, 27.6.2001, p. 25. 

EN 

33 

   EN 

                                                 
comply with the conditions set out in Article 1 and, where this is the case, shall amend Annex 
A by way of delegated act." 

(48) 

The following Articles 45a and 45b are inserted: 

"Article 45a 
Exercise of the delegation  

1. 

2. 

3. 

4. 

5. 

The power to adopt delegated acts is conferred on the Commission subject to the conditions 
laid down in this Article. 

The  delegation  of  powers  referred  to  in  Article  45  shall  be  conferred  for  an  indeterminate 
period of time from the date of entry into force of this Regulation. 

The  delegation  of  powers  referred  to  in  Article  45  may  be  revoked  at  any  time  by  the 
European  Parliament  or  by  the  Council.  A  decision  of  revocation  shall  put  an  end  to  the 
delegation of the power specified in that decision. It shall take effect on the day following the 
publication  of  the  decision  in  the  Official  Journal  of  the  European  Union  or  at  a  later  date 
specified therein. It shall not affect the validity of any delegated acts already in force. 

As  soon  as  it  adopts  a  delegated  act,  the  Commission  shall  notify  it  simultaneously  to  the 
European Parliament and to the Council. 

A delegated act adopted pursuant to Article 45 shall enter into force if no objection has been 
expressed  by  the  European  Parliament  or  the  Council  within  a  period  of  two  months  after 
notification of that act to the European Parliament and the Council or if, before the expiry of 
that period, the European Parliament and the Council have both informed the Commission that 
they  will  not  object.  That  period  shall  be  extended  by  two  months  at  the  initiative  of  the 
European Parliament or the Council. 

Article 45b 
Power to adopt implementing acts 

1. 

The  power  to  adopt  implementing  acts  is  conferred  on  the  Commission  for  the  following 
purposes 

(a) 

to provide for the interconnection of insolvency registers as referred to in Article 
20b; and  

(b) 

to establish and subsequently amend the forms referred to in Articles 40 and 41.  

In  adopting  or  amending  the  implementing  acts  referred  to  in  paragraph  1,  the  Commission 
shall be assisted by a committee within the meaning of Regulation (EU) No 182/2011 of the 
European Parliament and of the Council.25  

When reference is made to this paragraph, Article 5 of Regulation 182/2011 shall apply. 

OJ L 55, 28.2.2011, p. 13. 

2. 

3. 

25 

EN 

34 

   EN 

                                                 
4. 

When reference is made to this paragraph, Article 4 of Regulation 182/2011 shall apply." 

(49) 

In  Article  46,  the  date  "1  June  2012"  shall  be  replaced  by  "…..[10  years  after  its  entry  into 
application]". 

(50) 

The following Article 46a shall be inserted: 

"Article 46a 
Data protection 

1. 

2. 

Member States shall apply the Directive 95/46/EC to the processing of personal data carried 
out in the Member States pursuant to this Regulation. 

Regulation (EC) No 45/2001 shall apply to the processing of personal data carried out by the 
Commission pursuant to this Regulation." 

(51) 

Annex B is deleted. 

Article 2 

This  Regulation  shall  enter  into  force  on  the  twentieth  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

It shall apply from …..[24 months after the entry into force of the Regulation] with the exception of the 
provision  concerning  information  on  national  insolvency  law  (Article  44a)  which  shall  apply  from 
…..[12 months after its entry into force] . 

This  Regulation  shall  be  binding  in  its  entirety  and  directly  applicable  in  the  Member  States  in 
accordance with the Treaties. 

Done at Strasbourg,  

For the European Parliament 
The President 

For the Council 
The President 

EN 

35 

   EN 

LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1. 

Title of the proposal/initiative  

Proposal  for a Regulation  of the  European parliament and of the  Council amending Council 
regulation (EC) N° 1346/2000 on insolvency proceedings 

1.2. 

Policy area(s) concerned in the ABM/ABB structure26  

Title 33 - Justice 

1.3. 

Nature of the proposal/initiative  

(cid:133) The proposal/initiative relates to a new action  

(cid:133) The proposal/initiative relates to a new action following a pilot project/preparatory action27  

(cid:190) The proposal/initiative relates to the extension of an existing action  

(cid:133) The proposal/initiative relates to an action redirected towards a new action  

1.4. 

Objectives 

1.4.1.  The Commission's multiannual strategic objective(s) targeted by the proposal/initiative  

Development of an area of Justice, Justice for Growth  

1.4.2. 

Specific objective(s) and ABM/ABB activity(ies) concerned  

Specific objective No.. 

Judicial Cooperation in Civil and Commercial matters  

ABM/ABB activity(ies) concerned 

33 03 

26 
27 

ABM: Activity-Based Management – ABB: Activity-Based Budgeting. 
As referred to in Article 49(6)(a) or (b) of the Financial Regulation. 

EN 

36 

   EN 

                                                 
1.4.3.  Expected result(s) and impact 

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted. 

Increased efficiency and transparency of cross-border insolvency procedures 

1.4.4. 

Indicators of results and impact  

Specify the indicators for monitoring implementation of the proposal/initiative. 

1.5. 

Grounds for the proposal/initiative  

1.5.1.  Requirement(s) to be met in the short or long term  

Revision of Regulation 1346/2000 on insolvency proceedings 

1.5.2.  Added value of EU involvement 

1.5.3.  Lessons learned from similar experiences in the past 

1.5.4.  Coherence and possible synergy with other relevant instruments 

EN 

37 

   EN 

 
 
 
 
 
 
 
 
1.6. 

Duration and financial impact  

(cid:133) Proposal/initiative of limited duration  

–  (cid:133)  Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY  

–  (cid:133)  Financial impact from YYYY to YYYY  

(cid:190) Proposal/initiative of unlimited duration 

–  Implementation with a start-up period from adoption of regulation 

–  followed by full-scale operation. 

1.7.  Management mode(s) envisaged28  

(cid:190) Centralised direct management by the Commission  

(cid:133) Centralised indirect management with the delegation of implementation tasks to: 

–  (cid:133)  executive agencies  

–  (cid:133)  bodies set up by the Communities29  

–  (cid:133)  national public-sector bodies/bodies with public-service mission  

–  (cid:133)  persons entrusted with the implementation of specific actions pursuant to Title V of the 
Treaty  on  European  Union  and  identified  in  the  relevant  basic  act  within  the  meaning  of 
Article 49 of the Financial Regulation  

(cid:133) Shared management with the Member States  

(cid:133) Decentralised management with third countries  

(cid:133) Joint management with international organisations (to be specified) 

If more than one management mode is indicated, please provide details in the "Comments" section. 

Comments  

Only  the  interconnection  of  insolvency  registers  (central  interconnection  part)  will  have  a  financial 
impact on the EU budget. 

The insolvency registers will be connected through the European e-Justice Portal which shall serve as 
central public electronic access point to information from the system (cf. Article 20b of the Proposal) 

28 

29 

Details  of  management  modes  and  references  to  the  Financial  Regulation  may  be  found  on  the  BudgWeb  site: 
http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html 
As referred to in Article 185 of the Financial Regulation. 

EN 

38 

   EN 

 
                                                 
2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

Specify frequency and conditions. 

2.2.  Management and control system  

2.2.1.  Risk(s) identified  

2.2.2.  Control method(s) envisaged  

2.3.  Measures to prevent fraud and irregularities  

Specify existing or envisaged prevention and protection measures. 

EN 

39 

   EN 

 
 
 
 
 
 
 
 
3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

3.1. 

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget  line(s) 
affected  

•  Existing expenditure budget lines  

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of  
expenditure

Contribution  

Number  
[Description………………………...……….] 

Diff./non-
diff. 
(30) 

from 
EFTA31 
countries 

from 
candidate 
countries32 

from third 
countries 

within the meaning 
of Article 18(1)(aa) 
of the Financial 
Regulation  

Heading of 
multiannual 
financial 
framework 

[33.0301] 

[3] 

[Justice Programme] 

•  New budget lines requested  

Diff/ 

NO 

NO 

NO 

NO 

In order of multiannual financial framework headings and budget lines. 

Budget line 

Type of 
expenditure

Contribution  

Number  
[Heading……………………………………..] 

Diff./non-
diff. 

[XX.YY.YY.YY] 

from 
EFTA 
countries 

from 
candidate 
countries 

from third 
countries 

within the meaning 
of Article 18(1)(aa) 
of the Financial 
Regulation  

YES/N
O 

YES/N
O 

YES/N
O 

YES/NO 

Heading of 
multiannual 
financial 
framework 

[3] 

30 
31 
32 

Diff. = Differentiated appropriations / Non-diff. = Non-Differentiated Appropriations 
EFTA: European Free Trade Association.  
Candidate countries and, where applicable, potential candidate countries from the Western Balkans. 

EN 

40 

   EN 

 
 
                                                 
3.2. 

Estimated impact on expenditure  

3.2.1. 

Summary of estimated impact on expenditure  

Heading of multiannual financial 
framework:  

Number 

[Heading 
…3………...……………………………………………………………….] 

EUR million (to 3 decimal places) 

DG: JUST 

(cid:121) Operational appropriations  

33.0301 

Number of budget line 

of 

Appropriations 
administrative 
 from the envelope for specific programmes34  
Number of budget line 

an 

TOTAL appropriations 
for DG JUST 

Year 
201433 

Year 
2015 

Year 
2016 

Year 
2017 

Years 2018, 2019, 2020 

TOTAL 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 
150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 
1.500.000 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

Commitments 

Payments 

Commitments 

Payments 

(1) 

(2) 

(1a) 

(2a) 

nature 

financed 

Commitments 

Payments 

(3) 

=1+1a 
+3 

=2+2a 

+3 

33 
34 

EN 

Year N is the year in which implementation of the proposal/initiative starts. 
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former "BA" lines), indirect 
research, direct research. 

41 

E

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
(cid:121) TOTAL operational appropriations  

Commitments 

Payments 

(cid:121)  TOTAL  appropriations  of  an  administrative  nature 
financed from the envelope for specific programmes  

(4) 

(5) 

(6) 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

1.500.000 

TOTAL appropriations  
under HEADING 3 
of the multiannual financial framework 

Commitments 

=4+ 6 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

Payments 

=5+ 6 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

If more than one heading is affected by the proposal / initiative: 

(cid:121) TOTAL operational appropriations  

Commitments 

Payments 

(cid:121)  TOTAL  appropriations  of  an  administrative  nature 
financed from the envelope for specific programmes  

(4) 

(5) 

(6) 

TOTAL appropriations  
under HEADINGS 1 to 4 
of the multiannual financial framework 
(Reference amount) 

Commitments 

=4+ 6 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

Payments 

=5+ 6 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

EN 

42 

E

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heading of multiannual financial 
framework:  

5 

" Administrative expenditure " – not applicable 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

… enter as many years as 
necessary to show the duration 
of the impact (see point 1.6)  

TOTAL 

EUR million (to 3 decimal places) 

DG: <…….> 

(cid:121) Human resources  
(cid:121) Other administrative expenditure  

TOTAL DG <…….> 

Appropriations  

TOTAL appropriations 
under HEADING 5 
of the multiannual financial framework  

(Total 
= Total payments) 

commitments 

Year 
N35 

Year 
N+1 

Year 
N+2 

Year 
N+3 

… enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

TOTAL 

EUR million (to 3 decimal places) 

TOTAL appropriations  
under HEADINGS 1 to 5 
of the multiannual financial framework  

Commitments 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

Payments 

150.000  150.000  200.000  200.000  250.000  250.000  300.000 

1.500.000 

35 

Year N is the year in which implementation of the proposal/initiative starts. 

EN 

43 

E

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.2.  Estimated impact on operational appropriations  

–  (cid:133)  The proposal/initiative does not require the use of operational appropriations  

–  (cid:190)  The proposal/initiative requires the use of operational appropriations, as explained below: 

Commitment appropriations in EUR million (to 3 decimal places) 

Indicate 
objectives 
and outputs  

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

… enter as many years as necessary to show 
the duration of the impact (see point 1.6) 

TOTAL 

OUTPUTS 

Type of 
output36 

(cid:216) 

Avera
ge 
cost  
of the 
output 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

r
e
b
m
u
N

s
t
u
p
t
u
o

f
o

Cost 

Total 
numbe
r of 
output
s 

Total  
cost 

SPECIFIC OBJECTIVE No 137 Judical Cooperation in Civil and Commercial matters 

214 300 

150 000 

150 000 

200 000 

200 000 

250 000 

250 000 

300 000 

1 500 000 

Maintenan
ce of the 
interconne
ction of 
insolven-
cy 
registries 

- Output 

- Output 

- Output 

Sub-total for specific objective N°1 

150 000

150 000

200 000

200 000 

250 000

250 000

300 000

1 500 000 

SPECIFIC OBJECTIVE No 2… 

- Output 

36 
37 

Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.). 
As described in Section 1.4.2. "Specific objective(s)…" 

EN 

44 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Sub-total for specific objective N°2 

TOTAL COST 

150 000

150 000

200 000

200 000 

250 000

250 000

300 000

1 500 000 

EN 

45 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2.3.  Estimated impact on appropriations of an administrative nature 

3.2.3.1.  Summary  

–  (cid:190)  The  proposal/initiative  does  not 

require 

the  use  of  administrative 

appropriations  

3.2.3.2.  Estimated requirements of human resources  

–  (cid:190)  The proposal/initiative does not require the use of human resources  

EN 

46 

   EN 

 
3.2.4.  Compatibility with the current multiannual financial framework  

–  (cid:190)  Proposal/initiative is compatible with the multiannual financial framework for the period 

2014-2020. 

3.2.5.  Third-party contributions  

(cid:190)The proposal/initiative does not provide for co-financing by third parties  

EN 

47 

   EN 

 
 
 
3.3. 

Estimated impact on revenue  

–  (cid:190)  Proposal/initiative has no financial impact on revenue. 

EN 

48 

   EN