Recast Regulation—key dates

This analysis will look at the upcoming key dates under the Recast Regulation on Insolvency and also provide links to the ‘INSOL Europe: European Insolvency Regulation Case Register’ plus details of how to access and search the register.

What are the key dates under the Recast Regulation?

Substantial reforms are made to the Regulation (EC) 1346/2000 on insolvency proceedings (the original regulation) under the Regulation (EU) 848/2015 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (the Recast Regulation).

The majority of the provisions are not effective until 26 June 2017—this is to allow Member States to familiarise themselves with the new provisions. The original regulation will continue to apply to proceedings opened before the Recast Regulation comes into force (Recast Regulation, art 84(2)).

The exceptions are:

  • 26 June 2016—the description of national insolvency law and procedures to be provided by each Member State
  • 26 June 2018—the establishment of national insolvency registers
  • 26 June 2019—the interconnection of national registers

What information must be provided by 26 June 2016?

This year, each Member State must provide the European Commission with a summary of its own national insolvency laws and procedures by 26 June 2016 (Recast Regulation, art 86). This information must be updated regularly and will be published by the European Commission. In particular, the information should cover the matters listed in Recast Regulation, art 7(2):

  • the debtors against which insolvency proceedings may be brought on account of their capacity
  • the assets which form part of the insolvency estate and the treatment of assets acquired by or devolving on the debtor after the opening of the insolvency proceedings
  • the respective powers of the debtor and the insolvency practitioner (IP)
  • the conditions under which set-offs may be invoked
  • the effects of insolvency proceedings on current contracts to which the debtor is party
  • the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of pending lawsuits
  • the claims which are to be lodged against the debtor's insolvency estate and the treatment of claims arising after the opening of insolvency proceedings
  • the rules governing the lodging, verification and admission of claims
  • the rules governing the distribution of proceeds from the realisation of assets, the ranking of claims and the rights of creditors who have obtained partial satisfaction after the opening of insolvency proceedings by virtue of a right in rem or through a set-off
  • the conditions for, and the effects of closure of, insolvency proceedings, in particular by composition
  • creditors' rights after the closure of insolvency proceedings
  • who is to bear the costs and expenses incurred in the insolvency proceedings
  • the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to the general body of creditors

What effect will the Brexit vote on 23 June 2016 have?

If the UK votes to remain in the EU, the new provisions of the Recast Regulation will apply from 26 June 2017 onwards.

If the UK votes to leave the EU on 23 June 2016, it is likely to take around two years before it actually leaves. As the UK would no longer be a Member State, neither the original regulation nor Recast Regulation would have direct effect. During the two-year window, the UK would negotiate to agree the terms of its withdrawal, which could in theory cover cross border insolvency issues (though this would need to be ratified by each Member State).

If the UK exits the EU without negotiating any insolvency recognition terms, insolvency proceedings opened in the UK would no longer benefit from automatic recognition in other Member States and insolvency proceedings opened in Member States would no longer benefit from automatic recognition in the UK. It seems likely this would damage the UK’s current status as being a destination of choice for cross-border insolvencies.

How can the 'INSOL Europe: European Insolvency Regulation Case Register' help me track cases?

With EC case law, decisions of the Court of Justice of the European Union (CJEU) bind all Member States, though where the CJEU has given limited guidance on a particular area, courts may look to decisions of other courts in the Member States for some guidance, although they will not be binding. The INSOL Europe Case Register contains summaries of over 500 judgments, from the CJEU to the first instance and appeal courts of the Member States, that consider a significant point relating to the original regulation.

The Case Register can be accessed by:

  • Lexis®PSL subscribers—by following this link: INSOL Europe Case Register
  • Lexis Library subscribers—from the ‘International cases’ tab in Lexis Library
  • INSOL Europe members—who will have received an email with their new username and password plus a link to the case register at www.insolvencycases.eu

For details of how to use and search the Case Register, see News Analysis: INSOL Europe: European Insolvency Regulation Case Register now available in Lexis®PSL.

Relevant Articles
Area of Interest