25.5.2023
EN
Official Journal of the European Union
C 184/37
4.4.
Furthermore, the EESC believes that providing investors with information and transparency on issues relating to avoidance actions, asset tracing, directors’ duties and liability, the sale of a company as a going concern through pre-pack proceedings, the insolvency trigger, a special insolvency regime for micro and small enterprises, the ranking of claims and creditors’ committees, are all very important.
4.5.
The EESC also welcomes the fact that the proposal introduces a special procedure to facilitate and speed up the winding down of microenterprises, allowing for a more cost-efficient insolvency process for such enterprises.
These arrangements also support the orderly winding down of ‘asset-less’ microenterprises, and address some Member States’ rejection of access to insolvency proceedings if the projected recovery value is below the judicial costs.
The EESC underlines that this covers approximately 90 % of insolvencies in the EU and therefore considers this procedure to be highly significant.
4.6.
However, while the EESC endorses this special procedure, we caution that the requirements for national courts to carry out these tasks, in line with Article 12 ff. of the directive, can lead to an overburdening of national judicial systems if they are made responsible for assessing whether a microenterprise is indeed insolvent and for conducting the necessary lengthy proceedings.
In our view, this would defeat in part the purpose of the proposed legislation.
In previous opinions (9), the EESC had stated that resorting systematically to the courts may not be the preferred option and the EESC recommended establishing new bodies which would assume responsibility for this task.
The effective involvement of independent insolvency practitioners has proved to be beneficial especially for poorly organised micro-entrepreneurs in simplified liquidation proceedings, and the EESC is of the view that engaging insolvency practitioners should be actively considered (10).
4.7.
The EESC also recommends that insolvency practitioners, in cases of legitimate interests, have direct and expeditious access to the national asset registers, regardless of the Member State where they have been appointed.
The EESC also points out that such registers have not yet been established in all Member States and urges the relevant authorities to rectify this situation quickly.
4.8.
In the interest of efficiency, the EESC welcomes the proposal for pre-pack proceedings, where the sale of the debtor’s business (or part of it) is prepared and negotiated before the formal opening of insolvency proceedings.
This makes it possible to execute the sale and obtain the proceeds shortly after opening the formal insolvency proceedings intended to liquidate a company.
However, the EESC warns against the proposal in Article 27 to oblige counterparties, e.g. suppliers to a business that is entering insolvency proceeding, to sign executory contracts, which are then assigned to the acquirer of the business without the consent of the counterparty.
This, in effect, binds them artificially to a contract partner they have never chosen nor vetted and curtails their entrepreneurial freedom.
This applies all the more to employees, whose freedom of occupation must not be violated by a forced change of employer.
The EESC therefore urges the Commission, the Parliament and the Council to revise this proposal.
In addition, the possibility of participation and monitoring by a creditors’ committee should also be strengthened in pre-pack proceedings.
4.9.
The EESC also points out that the directive does not, in fact, address the issue of convergence of the ranking of claims, nor does it provide a definition of insolvency grounds.
As these are a key requirement for harmonised insolvency proceedings, the EESC very much regrets that the Commission has not taken these further.
4.10.
Similarly, insolvency triggers are not sufficiently taken up by the proposal, despite claims to the contrary in the communication on the directive.
The proposal states that the two usual triggers in the Member States for opening standard insolvency proceedings are the cessation of payments test and the balance sheet test.
4.11.
With a view to simplifying insolvency proceedings, which the EESC supports in principle, the directive proposes that the inability to pay debts as they mature should be the criterion for opening simplified winding-up proceedings.
Instead of providing guidance on how to define the specific conditions under which this criterion is met, the proposal asks the Member States to define this point themselves, and foregoes the chance for coherence across the EU.
(9) (10)
Including EESC opinion on Business insolvency (OJ C 209, 30.6.2017, p. 21).
The World Bank, Principles for effective Insolvency and Creditor/debtor Regimes, revised Edition 2021, principles c6.1 and c19.6.