Draft EU Directive proposed harmonising restructuring and insolvency

Draft EU Directive proposed harmonising restructuring and insolvency

We look at the new proposed EU Directive and how it will harmonise restructuring, insolvency and discharge procedures across all Member States, including its potential effect on the UK.

Original news

The European Commission is to introduce rules on business insolvency designed to increase opportunities for companies in financial difficulties to restructure early to prevent bankruptcy and avoid dismissing staff. They are further designed to ensure entrepreneurs have the opportunity to do business post-bankruptcy.

When must Member States comply with the new EU Directive?

On 22 November 2016, the European Commissioner proposed a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU (COM)(2016) 723 (the draft Harmonisation Directive).

The draft Harmonisation Directive is just at the proposal stage and must go through the European Commission's co-decision procedure, meaning further discussions and possible amendments from the European Council (comprised of Member States) and the European Parliament.

Once finalised, it will enter into force 20 days after publishing in the Official Journal (OJ) and Member States must implement provisions to comply with most provisions within two years from when it enters force (the requirements of Title IV of the draft Harmonisation Directive: training of judges and IPs, supervision and remuneration of practitioners and electronic communications, must be complied with within three years).

Does Brexit mean that the UK is exempt?

This will depend on when the draft Harmonisation Directive is finalised and published in the OJ and also on the timing of the UK's exit following a triggering of art 50 TEU.

Theresa May has stated that she intends to trigger art 50 TEU by 31 March 2017. Assuming art 50 TEU is triggered then, exit will occur at the earlier of either an exit agreement entering into force or two years after notice is given (unless all other EU Member States unanimously vote to extend). This means exit would

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