(2) These rules shall come into force on the date of their publication in the Official Gazette. Visit our YouTube page here. Member States should also be able to decide on the choice of the equivalent means by which the original claim could be satisfied in full. It is also necessary to reduce the excessive length of insolvency procedures in many Member States, which results in legal uncertainty for creditors and investors and low recovery rates. 1. (1) Article 169 is amended as follows. For more information see the EUR-Lex public statement on re-use. 2. 3. Member States shall put in place appropriate oversight and regulatory mechanisms to ensure that the work of practitioners is effectively supervised, with a view to ensuring that their services are provided in an effective and competent way, and, in relation to the parties involved, are provided impartially and independently. In rule 3.63 in paragraph (4) omit sub-paragraph (d). 4. Furthermore, the obstacles stemming from long disqualification orders linked to an entrepreneur's insolvency or over-indebtedness inhibit entrepreneurship. 2. In procedures that do not include a repayment plan, the discharge period should start, at the latest, from the date when a decision to open the procedure is taken by a judicial or administrative authority, or the date of the establishment of the insolvency estate. Moreover, reducing the length of restructuring procedures would result in higher recovery rates for creditors as the passing of time would normally only result in a further loss of value of the debtor or the debtor's business. Member States should be able to protect a dissenting class of affected creditors by ensuring that it is treated at least as favourably as any other class of the same rank and more favourably than any more junior class. 4. Member States shall ensure that insolvent entrepreneurs who have complied with their obligations, where such obligations exist under national law, are discharged of their debt on expiry of the discharge period without the need to apply to a judicial or administrative authority to open a procedure additional to those referred to in paragraph 1. NO. 2. Facilitating a discharge of debt for entrepreneurs would help to avoid their exclusion from the labour market and enable them to restart entrepreneurial activities, drawing lessons from past experience. Member States that exclude equity holders from voting should not be required to apply the absolute priority rule in the relationship between creditors and equity holders. In order to avoid restructuring frameworks being misused, the financial difficulties of the debtor should indicate a likelihood of insolvency and the restructuring plan should be capable of preventing the insolvency of the debtor and ensuring the viability of the business. Member States may restrict the application of point (a) of paragraph 1 to legal persons. This is the original version (as it was originally made). The availability of effective preventive restructuring frameworks would ensure that action is taken before enterprises default on their loans, thereby helping to reduce the risk of loans becoming non-performing in cyclical downturns and mitigating the adverse impact on the financial sector. Insolvency practitioners as defined in Regulation (EU) 2015/848 should be included in the scope of this Directive. Examples of such means could include a purpose-built system for the electronic transmission of such documents or the use of email, without preventing Member States from being able to put in place features to ensure the security of electronic transmissions, such as electronic signature, or trust services, such as electronic registered delivery services, in accordance with Regulation (EU) No 910/2014 of the European Parliament and of the Council (17). Member States may maintain or introduce a viability test under national law, provided that such a test has the purpose of excluding debtors that do not have a prospect of viability, and that it can be carried out without detriment to the debtors' assets. Member States may put in place provisions limiting the involvement of a judicial or administrative authority in a preventive restructuring framework to where it is necessary and proportionate while ensuring that rights of any affected parties and relevant stakeholders are safeguarded. 4. Member States may maintain or introduce provisions derogating from the first subparagraph where they are necessary in order to achieve the aims of the restructuring plan and where the restructuring plan does not unfairly prejudice the rights or interests of any affected parties. They aim to make the Statutory Instrument accessible to readers who are not legally qualified and accompany any Statutory Instrument or Draft Statutory Instrument laid before Parliament from June 2004 onwards. 7. In the case of a cross-class cram-down, Member States should ensure that dissenting classes of affected creditors are not unfairly prejudiced under the proposed plan and Member States should provide sufficient protection for such dissenting classes. Confirmation is particularly necessary where: there are dissenting affected parties; the restructuring plan contains provisions on new financing; or the plan involves a loss of more than 25 % of the work force. However, the absence of detriment should not prevent Member States from requiring debtors to prove their viability at their own cost. The stability of financial markets relies heavily on financial collateral arrangements, in particular, when collateral security is provided in connection with the participation in designated systems or in central bank operations and when margins are provided to central counterparties. 178. ★ Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restr uctur ing frameworks, on discharge of debt and disqualif ications, and on measures to increase the eff iciency of procedures concer ning restr uctur ing, insolvency and The Commission shall facilitate the sharing of best practices between Member States with a view to improving the quality of training across the Union, including by means of the exchange of experiences and capacity building tools. Read about our achievements last year here; DIFC is one of the world’s top financial centres, and the leading financial hub for the Middle East, Africa and South Asia ; Download the DIFC Connect Mobile App for IOS and Android devices; Watch our expert-led business webinars today. Member States should make information about early warning tools available online, for example on a dedicated website or webpage. Where the company experiences financial difficulties, directors should take steps to minimise losses and to avoid insolvency, such as: seeking professional advice, including on restructuring and insolvency, for instance by making use of early warning tools where applicable; protecting the assets of the company so as to maximise value and avoid loss of key assets; considering the structure and functions of the business to examine viability and reduce expenditure; refraining from committing the company to the types of transaction that might be subject to avoidance unless there is an appropriate business justification; continuing to trade in circumstances where it is appropriate to do so in order to maximise going-concern value; holding negotiations with creditors and entering preventive restructuring procedures. In Rule 7.08A omit “including any member State liquidator”. Therefore, in such cases, it is necessary to provide that creditors are not allowed to invoke ipso facto clauses which make reference to negotiations on a restructuring plan or a stay or any similar event connected to the stay. 238.In article 1 in paragraph 3(b) omit “, other than... 239.In article 2— (a) in sub-paragraph (b) at the end... 241.In article 16— (a) after paragraph 2 insert— Where the EU Insolvency Regulation applies the centre of the... 243.In paragraph 1 in sub-paragraph (1) omit the definitions of... 244.In paragraph 4 omit sub-paragraph (2). In such cases, Member States shall ensure that a judicial or administrative authority can decide to keep in place the benefit of the stay of individual enforcement actions, if, taking into account the circumstances of the case, the opening of insolvency proceedings which could end in the liquidation of the debtor would not be in the general interest of creditors. 222.In Rule 6.222 in paragraph (1) sub-paragraph (m) omit the... 223.Omit Rules 6.231 and 6.232 (Chapter 26). In the case of other payments and disbursements and the protection of the payment of workers' wages, such a starting point could also be the granting of the stay or the opening of the preventive restructuring procedure. Practitioners in procedures concerning restructuring, insolvency and discharge of debt. On 7 June 2017, the European Central Bank delivered an opinion (23). Member States should also be allowed to provide for a minimum period during which the stay cannot be lifted. 7. Having regard to the opinion of the European Economic and Social Committee (1). ‘Essential executory contracts’ shall be understood to mean executory contracts which are necessary for the continuation of the day-to-day operations of the business, including contracts concerning supplies, the suspension of which would lead to the debtor's activities coming to a standstill. Member States should have discretion in implementing the concept of ‘payment in full’, including in relation to the timing of the payment, as long as the principal of the claim and, in the case of secured creditors, the value of the collateral are protected. 1. Member States shall consider making the check-list available in at least one other language, in particular in a language used in international business. To further reduce the length of procedures, to facilitate better participation of creditors in procedures concerning restructuring, insolvency and discharge of debt and to ensure similar conditions among creditors irrespective of where they are located in the Union, Member States should put in place provisions enabling debtors, creditors, practitioners and judicial and administrative authorities to use electronic means of communication. Member States in which entrepreneurs are allowed to continue their business on their own account during insolvency proceedings should not be prevented from providing that such entrepreneurs can be made subject to new insolvency proceedings, where such continued business becomes insolvent. Member States shall ensure that the conditions under which a restructuring plan can be confirmed by a judicial or administrative authority are clearly specified and include at least the following: the restructuring plan has been adopted in accordance with Article 9; creditors with sufficient commonality of interest in the same class are treated equally, and in a manner proportionate to their claim; notification of the restructuring plan has been given in accordance with national law to all affected parties; where there are dissenting creditors, the restructuring plan satisfies the best-interest-of-creditors test; where applicable, any new financing is necessary to implement the restructuring plan and does not unfairly prejudice the interests of creditors. Member States should not be prevented from providing additional derogations in well-defined circumstances and when duly justified. Some Member States have a limited range of procedures that allow the restructuring of businesses only at a relatively late stage, in the context of insolvency procedures. In particular, this Directive should be without prejudice to workers' rights guaranteed by Council Directives 98/59/EC (12) and 2001/23/EC (13), and Directives 2002/14/EC (14), 2008/94/EC (15) and 2009/38/EC (16) of the European Parliament and of the Council. (1) Part 2 of the Insolvency Act 1986 as it... PART 4 Amendments to the Insolvency (England and Wales) Rules 2016. Member States may provide that debtors that are SMEs can opt not to treat affected parties in separate classes. the need to avoid deliberate or grossly negligent conduct that threatens the viability of the business. The corporate affairs ministry has notified the Insolvency and Bankruptcy Rules, 2019. Some of the most significant changes relate to decision-making. Where Member States choose to implement this Directive by means of one or more procedures or measures which do not fulfil the conditions for notification under Annex A to Regulation (EU) 2015/848, the total duration of the stay under such procedures shall be limited to no more than four months if the centre of main interests of the debtor has been transferred from another Member State within a three-month period prior to the filing of a request for the opening of preventive restructuring proceedings. 1. (1) These rules may be called the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019. This could be the case for a significant number of master agreements widely used in the financial, energy and commodity markets, both by non-financial and financial counterparties. Equity holders of SMEs that are not mere investors, but are the owners of the enterprise and contribute to the enterprise in other ways, such as managerial expertise, might not have an incentive to restructure under such conditions. Laid before Parliament. Enterprises, and in particular SMEs, which represent 99 % of all businesses in the Union, should benefit from a more coherent approach at Union level. By way of derogation from the first subparagraph, Member States may apply paragraph 2 to workers' claims if, and to the extent that, Member States ensure that the payment of such claims is guaranteed in preventive restructuring frameworks at a similar level of protection. 1. A debtor should be able to benefit from a temporary stay of individual enforcement actions, whether granted by a judicial or administrative authority or by operation of law, with the aim of supporting the negotiations on a restructuring plan, in order to be able to continue operating or at least to preserve the value of its estate during the negotiations. The Rules shall … The Adjudicating Authority [Address]From [Name and address of the guarantor]In the matter of [name of the guarantor] Member States may exclude from the application of paragraph 1 transactions that are carried out after the debtor has become unable to pay its debts as they fall due. For example, Member States should be able to decide how to deal with creditors that have been notified correctly but that did not participate in the procedures. The preventive restructuring framework provided for under this Directive may consist of one or more procedures, measures or provisions, some of which may take place out of court, without prejudice to any other restructuring frameworks under national law. Member States shall adopt and publish, by 17 July 2021, the laws, regulations and administrative provisions necessary to comply with this Directive, with the exception of the provisions necessary to comply with points (a), (b) and (c) of Article 28 which shall be adopted and published by 17 July 2024 and the provisions necessary to comply with point (d) of Article 28 which shall be adopted and published by 17 July 2026. 1. 2. Member States shall ensure that, where there is a likelihood of insolvency, debtors have access to a preventive restructuring framework that enables them to restructure, with a view to preventing insolvency and ensuring their viability, without prejudice to other solutions for avoiding insolvency, thereby protecting jobs and maintaining business activity. Accordingly, where there are only two classes of creditors, the consent of at least one class should be deemed to be sufficient, if the other conditions for the application of a cross-class cram-down are met. The Whole Member States should be able to decide whether a short interim stay pending a judicial or administrative authority's decision on access to the preventive restructuring framework is subject to the time limits under this Directive. In paragraph 7 omit sub-paragraph (3)(c). Member States shall ensure that an appeal against a decision to confirm or reject a restructuring plan taken by an administrative authority is brought before a judicial authority. For instance, a mere reference to the judicial or administrative authority should be sufficient as information. Clear, up-to-date, concise and user-friendly information on the available preventive restructuring procedures as well as one or more early warning tools should therefore be put in place to incentivise debtors that start to experience financial difficulties to take early action. Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. Without prejudice to Article 17, Member States shall ensure that, in the event of any subsequent insolvency of the debtor, transactions that are reasonable and immediately necessary for the implementation of a restructuring plan, and that are carried out in accordance with the restructuring plan confirmed by a judicial or administrative authority, are not declared void, voidable or unenforceable on the ground that such transactions are detrimental to the general body of creditors, unless other additional grounds laid down by national law are present. As a minimum, in the case of any subsequent insolvency of the debtor: new financing and interim financing shall not be declared void, voidable or unenforceable; and. Member States shall ensure that debtors and employees' representatives have access to relevant and up-to-date information about the availability of early warning tools as well as of the procedures and measures concerning restructuring and discharge of debt. Where Member States opt to carry out a valuation of the debtor as a going concern, the going-concern value should take into account the debtor's business in the longer term, as opposed to the liquidation value. 3. 1. In order to provide for a fair balance between the rights of the debtor and those of creditors, a stay of individual enforcement actions should apply for a maximum period of up to four months. Where this Directive is implemented by means of more than one procedure within a restructuring framework, the debtor should have access to all rights and safeguards provided for by this Directive with the aim of achieving an effective restructuring. 1. Such arrangements reduce systemic risks especially in derivatives markets. 2. RECEIVERSHIP. 188.In Rule 1.03 in paragraph (2) for sub-paragraph (q) substitute—... 189.In Rule 1.09 in paragraph (1A) for the words “main,... 190.In Rule 1.24 in paragraph (2)(ca) for the words “whether... 193.In Rule 1.39 in paragraph (2)(c) for the words “main,... 194.In Rule 2.001 in paragraph (d) omit the reference to... 195.In Rule 2.004 in paragraph (4) for the words from... 198.In Rule 2.034 for paragraph (2)(p)(ii) substitute—. Rule: 1.Short title and commencement. Steps should therefore be taken to reduce the negative effects of over-indebtedness or insolvency on entrepreneurs, in particular by allowing for a full discharge of debt after a certain period of time and by limiting the length of disqualification orders issued in connection with a debtor's over-indebtedness or insolvency. Member States may provide that this paragraph also applies to non-essential executory contracts. While compliance with the best-interests-of-creditors test should be examined by a judicial or administrative authority only if the restructuring plan is challenged on that ground in order to avoid a valuation being made in every case, Member States should be able to provide that other conditions for confirmation can be examined ex officio. Personal and professional debts that cannot be reasonably separated, for example where an asset is used in the course of the professional activity of the entrepreneur as well as outside that activity, should be treated in a single procedure. A discharge of debt should be available in procedures that include a repayment plan, a realisation of assets, or a combination of both. 3. By way of derogation from Article 22, Member States may provide for longer or indefinite disqualification periods where the insolvent entrepreneur is a member of a profession: to which specific ethical rules or specific rules on reputation or expertise apply, and the entrepreneur has infringed those rules; or. It should be possible for any amendments to the plan to be proposed or voted on by the parties, on their own initiative or at the request of the judicial authority. The Ministry of Corporate Affairs had notified the Insolvency and Bankruptcy Rules, 2019 recently with the purpose of giving a general structure for insolvency and liquidation actions of systemically significant Financial Service Providers (FSPs) other than banks. Member States should ensure that information about the authorities or bodies exercising oversight over practitioners is publicly available. A higher degree of harmonisation in the field of restructuring, insolvency, discharge of debt and disqualifications is thus indispensable for a well-functioning internal market in general and for a working Capital Markets Union in particular, as well as for the resilience of European economies, including for the preservation and creation of jobs. 1st July 2019. 2. The form should provide a shortlist of the main outcomes of procedures that are common to all Member States. In addition, early warning tools should be put in place to warn debtors of the urgent need to act, taking into account the limited resources of SMEs for hiring experts. Member States could also provide for compensation for monetary losses for the party whose appeal was upheld. For example, Member States might need to derogate from the obligation to convene a general meeting of shareholders or from the normal time periods, for cases where urgent action is to be taken by the management to safeguard the assets of the company, for instance through requesting a stay of individual enforcement actions and when there is a serious and sudden loss of subscribed capital and a likelihood of insolvency. The first subparagraph shall not apply to contracts for the supply of goods, services or energy necessary for the operation of the debtor's business, unless such contracts take the form of a position traded on an exchange or other market, such that it can be substituted at any time at current market value. D. L.—33004/99 vlk/kj.k EXTRAORDINARY Hkkx II—[k.M 3 —mi&[k.M (i) PART II—Section 3—Sub-section (i) izkf/dkj ls izdkf'kr PUBLISHED BY AUTHORITY la- 672] ubZ fnYyh] 'kqØokj] uoEcj 15] 2019@dkfrZd 24] 1941 No. For the purpose of assisting the parties with negotiating and drafting a restructuring plan, Member States should provide for the mandatory appointment of a practitioner in the field of restructuring where: a judicial or administrative authority grants the debtor a general stay of individual enforcement actions, provided that in such case a practitioner is needed to safeguard the interests of the parties; the restructuring plan needs to be confirmed by a judicial or administrative authority by means of a cross-class cram-down; it was requested by the debtor; or it is requested by a majority of creditors provided that the creditors cover the costs and fees of the practitioner. As a minimum, secured and unsecured creditors should always be treated in separate classes. Without prejudice to paragraphs 4 and 5, Member States shall ensure that a stay of individual enforcement actions can cover all types of claims, including secured claims and preferential claims. In section 204 omit subsections (4A) to (4E). Member States shall ensure that new financing and interim financing are adequately protected. The additional costs for entrepreneurs stemming from the need to relocate to another Member State in order to benefit from a discharge of debt should also be reduced. 5. As the value of financial instruments given as collateral security may be very volatile, it is crucial to realise their value quickly before it goes down. Those mechanisms shall also include measures for the accountability of practitioners who have failed in their duties. 200 provisions and might take some time to download. Deemed Consent The 2018 Rules introduce 'deemed consent' for proposals to creditors to Scottish corporate insolvency processes. Member States may extend the application of the procedures referred to in point (b) of paragraph 1 to insolvent natural persons who are not entrepreneurs. In rule 21.4 for paragraph (3)(e) substitute—. Certain restrictions should also apply to procedures not covered by that Regulation. No changes have been applied to the text. Having regard to the opinion of the Committee of the Regions (2). Append an asterisk (, Other sites managed by the Publications Office, http://data.europa.eu/eli/dir/2019/1023/oj, Portal of the Publications Office of the EU. Member States may also provide that preventive restructuring frameworks provided for under this Directive are available at the request of creditors and employees' representatives, subject to the agreement of the debtor. Member States shall collect and aggregate the data referred to in paragraphs 1, 2, 4 and, where applicable, paragraph 3, for full calendar years ending on 31 December of each year, starting with the first full calendar year following the date of application of implementing acts referred to in paragraph 7. may also experience some issues with your browser, such as an alert box that a script is taking a Member States should be able to choose which of the above-mentioned protection mechanisms they put in place. Therefore, if Member States decide to exempt the claims of workers from the preventive restructuring framework, workers should not be considered as affected parties. Member States may limit the number of times within a certain period a debtor can access a preventive restructuring framework as provided for under this Directive. An ex ante control mechanism for interim financing or other transactions could be exercised by a practitioner in the field of restructuring, by a creditor's committee or by a judicial or administrative authority. 16.The Insolvency Act 1986 is amended as follows. long time to run. Member States shall break down the data referred to in points (a) to (c) of paragraph 1 and, where applicable and available, the data referred to in paragraph 3 by: the size of the debtors that are not natural persons; whether debtors subject to procedures concerning restructuring or insolvency are natural or legal persons; and. The Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019 [FSP Rules] are applicable to categories of financial services providers (FSPs) as notified by the Central Govt in terms of section 227. Valuation by the judicial or administrative authority. 3. To achieve those objectives, Member States should ensure that members of the judicial and administrative authorities dealing with procedures concerning preventive restructuring, insolvency and discharge of debt are suitably trained and have the necessary expertise for their responsibilities. Member States should be able to provide for limited exceptions to this rule. Firstly, there are the new Insolvency Rules 2017. The success of a restructuring plan often depends on whether financial assistance is extended to the debtor to support, firstly, the operation of the business during restructuring negotiations and, secondly, the implementation of the restructuring plan after its confirmation. Executory contracts are, for example, lease and licence agreements, long-term supply contracts and franchise agreements. The Ministry of Corporate Affairs (MCA) has notified the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority) Rules, 2019 (Rules) today to provide a generic framework for insolvency and liquidation proceedings of systemically important Financial Service Providers (FSPs) other than banks. Member States may require that that statement of reasons be made or validated either by an external expert or by the practitioner in the field of restructuring if such a practitioner is appointed. This Directive should not prevent Member States from providing that practitioners are chosen by a debtor, by creditors or by a creditors' committee from a list or a pool that is pre-approved by a judicial or administrative authority. Such arrangements might therefore be exempt from restrictions that insolvency laws impose on executory contracts. 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