Changes from plenary report to adopted text

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RemovedRecital 47: (47) In order to protect creditors, this Directive strengthens the provisions concerning creditors’ committees, ensuring fair representation of all categories of creditors, including cross-border creditors, and increased transparency in the decision-making process. It is important to ensure a fair balance between the interests of the debtor and creditors in insolvency proceedings. Creditors’ committees allow for better involvement of creditors in insolvency proceedings, in particular when creditors would otherwise be inhibited from doing so individually, due to limited resources, economic significance of their claims or the lack of geographic proximity. Creditors’ committees can especially help cross-border creditors better exercise their rights and ensure their fair treatment. Member States should allow the establishment of a creditors’ committee once proceedings are opened. A creditors’ committee should be established only provided that creditors agree. Member States may also allow to establish it before proceedings are opened and after the filing for insolvency. In this case, however, Member States should provide that creditors agree to its continuation and composition at the general meeting.

RemovedRecital 49: (49) Member States should clarify the requirements, duties and procedures for the appointment of members of the creditors’ committee, as well as the functions attributed to the creditors’ committee. Member States should be given the option to decide whether the appointment should be done by the general meeting of creditors or by the court. To avoid undue delays in the set-up of the creditors’ committee, the members should be appointed expeditiously. Member States should cater for a fair representation of creditors in the committee and ensure that the participation in the creditors’ committee is not precluded to creditors whose claim is not yet admitted or to creditors that are resident in another Member State. Member States should ensure that creditors are fairly represented within the committee. Member States should make sure that workers can be represented in the creditors’ committee when they are creditors.

RemovedRecital 50: (50) Fair representation of creditors in the creditors’ committee is particularly important for workers who are creditors and for whom a delay in the payment of wages could pose an existential threat, as well as for unsecured creditors that are micro, small or medium-sized enterprises, which in the case of insolvency of a debtor which is a large enterprise, if not paid promptly, are also exposed to insolvency (domino effect). Proper representation in the creditors’ committee of such creditors could ensure that in the course of the distribution of the recovered proceeds they receive their parts more expeditiously.

RemovedRecital 51: (51) An important task of the creditors’ committee should be to verify that insolvency proceedings are conducted in a fair and unbiased way that protects creditors’ interests. The committee’s role in the monitoring of the fairness and integrity of the proceedings can only be performed effectively if the creditors’ committee and its members act independently from the insolvency practitioner and are accountable only to the creditors who established it. The members of the creditors’ committee should act in good faith when carrying out the functions of the committee. They should have the power to share relevant and necessary information to represented creditors and to receive information from them. Creditors, members of the creditors’ committee and any professionals employed by the creditors’ committee should maintain the confidentiality of all information obtained in connection with the committee’s activities.

RemovedRecital 52: (52) Member States should clarify the number of the members in the creditors’ committee and when and how the composition of the committee needs to be altered, which could happen if representatives are no longer able to act, including in the creditors’ best interests, or wish to withdraw. They should also clarify the conditions for the removal of members that have acted relentlessly against creditors’ interests or that have a conflict of interest.

RemovedRecital 54: (54) Member States should ensure that the court has the power to determine the working methods for the creditors’ committee, if they have not been established in the creditors’ committee’s protocol of working methods. The Commission should establish standard working methods that should facilitate the task of the creditors’ committee and reduce the need for courts to intervene in the case of missing working methods.

RemovedRecital 55: (55) The creditors’ committee should be granted sufficient rights to perform its functions efficiently and effectively. Member States should ensure that the creditors’ committee can interact with insolvency practitioners, courts, the debtor, external advisors and the creditors whom it represents, as necessary, to enable the committee to form and communicate a view on matters of direct interest and relevance to creditors, and for this view to be duly considered in proceedings. Member States should also empower the creditors’ committee to appoint a secretary, to request external consultations and to make decisions.

RemovedRecital 58: (58) To ensure an enhanced transparency of the key features of national insolvency proceedings and help especially cross-border creditors to estimate what would happen if their investments got involved in insolvency proceedings, investors and potential investors should be granted easy access to that information in a pre-defined, comparable and user-friendly format. A standardised key information factsheet should be prepared and made available to the public by Member States. This document would be key for potential investors to make a “glance-through” assessment of the insolvency proceedings rules in a given Member State. It should contain sufficient explanations to allow the reader to understand the information therein without having to resort to other documents. The key information factsheet should in particular include practical information on the insolvency trigger as well as on the steps to take to request the opening of insolvency proceedings or to lodge a claim. It should be prepared in a multilinguistic format.

RemovedRecital 59 a (new): (59a) This Directive should be without prejudice to the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure pursuant to Directive (EU) 2016/943 of the European Parliament and of the Council1a. / 1a Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets).

RemovedArticle 1 – paragraph 1 – introductory part: 1. In order to maximise legal certainty concerning the value of companies, to improve the efficiency of insolvency proceedings both in terms of cost and length, to improve predictability and to ensure a fair distribution of value among creditors, this Directive lays down common rules on:

RemovedArticle 1 – paragraph 1 – point e: deleted

RemovedArticle 2 – paragraph 1 – point a: (a) ‘insolvency practitioner’ means a person or body who has one or more of the functions listed in Article 2, point (5), of Regulation (EU) 2015/848 and in Article 2(1), point (12), of Directive (EU) 2019/1023;

RemovedArticle 2 – paragraph 1 – point b: (b) ‘court’ means:

RemovedArticle 2 – paragraph 1 – point b – point i (new): (i) for the purposes of Article 18a, Title IV, with the exception of Article 21, Title V and Title VII, with the exception of Article 59(5), a judicial body of a Member State or the authority of a Member State competent for insolvency proceedings;

RemovedArticle 2 – paragraph 1 – point b – point ii (new): (ii) for the purposes of all other articles, a judicial body of a Member State;

RemovedArticle 2 – paragraph 1 – point c: deleted

RemovedArticle 2 – paragraph 1 – point d: (d) ‘bank account registers ’ means centralised automated mechanisms, such as central registries or central electronic data retrieval systems, put in place in accordance with Article 16 (1) of Directive (EU) 2024/1640;

RemovedArticle 2 – paragraph 1 – point e: (e) ‘central beneficial ownership register’ means national central registers holding beneficial ownership information and the systems of interconnection of those registers as referred to in Article 10 of Directive (EU) 2024/1640;

RemovedArticle 2 – paragraph 1 – point e a (new): (ea) ‘bank account information’ means the information listed in Article 16(3) of Directive (EU) 2024/1640;

RemovedArticle 2 – paragraph 1 – point f: (f) ‘legal act’ means any human behaviour, producing a legal effect;

RemovedArticle 2 – paragraph 1 – point g: (g) ‘executory contract’ means a contract between a debtor and one or more counterparties under which the parties still have obligations to perform at the time of the opening of insolvency proceedings in the liquidation phase in Title IV, but does not include netting agreements;

RemovedArticle 2 – paragraph 1 – point h: (h) ‘best-interest-of-creditors test’ means the test whereby no creditor would be worse off under a liquidation in pre-pack proceedings than such a creditor would be if the normal ranking of liquidation priorities were applied in the event of a piecemeal liquidation or the sale of the business, or a part thereof, as a going concern;

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RemovedArticle 2 – paragraph 1 a (new): 1a. For the purposes of this Directive, the concepts of “insolvency” and “directors” are to be understood as defined by national law.

RemovedArticle 3 – title: Party closely related to the debtor

RemovedArticle 3 – paragraph -1 (new): -1. For the purposes of this Directive, parties closely related to the debtor shall include: / (a) where the debtor is a natural person: / (i) the spouse or partner of the debtor; / (ii) ascendants, descendants, and siblings of the debtor, or of the spouse or partner of the debtor, and the spouses or partners of these persons; / (iii) persons living in the household of the debtor; / (iv) persons who are working for the debtor under a contract of employment with access to non-public information on the affairs of the debtor; / (v) legal entities in which the debtor or one of the persons referred to in points (i) to (iv) of this subparagraph is a member of the management or supervisory bodies or performs duties which provide for access to non-public information on the affairs of the debtor; / (b) where the debtor is a legal entity: / (i) any member of the management or supervisory bodies of the debtor; / (ii) equity holders with a controlling interest in the debtor; / (iii) persons which perform functions similar to those performed by persons under point (i); / (iv) persons which are closely related in accordance with the second subparagraph to the persons listed in points (i), (ii) and (iii) of this subparagraph.

RemovedArticle 3 – paragraph 1 a (new): 1a. Paragraph -1 and paragraph 1, point (a), of this Article shall apply mutatis mutandis to the concept of persons closely related to parties which have benefitted from a void, voidable or unenforceable legal act as referred to in Article 11(2), second subparagraph.

RemovedArticle 3 a (new): Article 3a / National law and minimum harmonisation / 1. Member States may adopt or maintain laws which provide for a greater level of protection for the general body of creditors than that provided for under Titles II, IV and VII, provided that they comply with Union law. / 2. Member States may adopt or maintain laws which facilitate access by insolvency practitioners to bank account information held in their bank account registers, beneficial ownership information and national registers and databases to a greater extent than the rules provided for in Title III. / 3. Member States shall ensure that, when insolvent, microenterprises have access to insolvency proceedings in situations where the debtor has no assets or its assets are not sufficient to cover the cost of the proceedings or the cost for the involvement of the insolvency practitioner. / 4. Member States may adopt or maintain laws which establish simplified winding-up proceedings for microenterprises.

RemovedArticle 3 b (new): Article 3b / Protection of workers / This Directive is without prejudice to the application of national labour law and Union law with regard to workers’ rights, in particular Council Directives 98/59/EC1a and 2001/23/EC1b and Directives 2002/14/EC1c, 2009/38/EC1d, (EU) 2016/23411e and 2008/94/EC1f of the European Parliament and of the Council. / This Directive shall not prevent Member States from introducing or maintaining provisions relating to Title IV which provide for a greater level of protection for workers or their representatives. / 1a Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ L 225, 12.8.1998, p. 16, ELI: http://data.europa.eu/eli/dir/1998/59/oj). / 1b Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, 22.3.2001, p. 16, ELI: http://data.europa.eu/eli/dir/2001/23/oj). / 1c Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (OJ L 80, 23.3.2002, p. 29, ELI: http://data.europa.eu/eli/dir/2002/14/oj) . / 1d Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in…

RemovedArticle 4 – paragraph 1: Member States shall ensure that legal acts which have been perfected prior to the opening of insolvency proceedings to the detriment of the general body of creditors are void, voidable or unenforceable under the conditions laid down in Chapter 2 of this Title.

RemovedArticle 4 – paragraph 1 a (new): Member States may adopt or maintain rules that establish that, where a legal act requires registration in a public register for its perfection, the point in time from which the legal act is considered perfected can exceptionally be before the date on which the registration takes place.

RemovedArticle 5: deleted / (deleted) / (deleted)

RemovedArticle 6 – paragraph 1 – subparagraph 1 – introductory part: Member States shall ensure that detrimental legal acts benefitting a creditor or a group of creditors by satisfaction or collateralisation are void, voidable or unenforceable if they were perfected:

RemovedArticle 6 – paragraph 1 – subparagraph 1 – point a: (a) within three months prior to the submission of the request for the opening of insolvency proceedings, or, in the absence of a formal request, prior to the date of the resolution to commence insolvency proceedings, provided that the debtor was unable to pay its mature debts under national law; or

RemovedArticle 6 – paragraph 1 – subparagraph 1 – point b: (b) after the submission of the request or the date of the resolution referred to in point (a) and before the opening of insolvency proceedings.

RemovedArticle 6 – paragraph 2 – subparagraph 1 – introductory part: If a due claim of a creditor was satisfied or secured in the owed manner, Member States shall ensure that the legal act are void, voidable or unenforceable only if:

RemovedArticle 6 – paragraph 2 – subparagraph 1 – point b: (b) that creditor knew that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted or that, in the absence of a formal request, a resolution to commence insolvency proceedings had been made.

RemovedArticle 6 – paragraph 2 – subparagraph 2: The creditor’s knowledge referred to in the first subparagraph, point (b), shall be presumed if the creditor was a party closely related to the debtor. That presumption shall be rebuttable.

RemovedArticle 6 – paragraph 3 – subparagraph 1 – introductory part: By way of derogation from paragraphs 1 and 2, Member States shall ensure that the following legal acts cannot be void, voidable or unenforceable:

RemovedArticle 6 – paragraph 3 – subparagraph 1 – point a: (a) legal acts performed directly against fair consideration to the benefit of the debtor’s assets;

RemovedArticle 6 – paragraph 3 – subparagraph 1 – point c a (new): (ca) where relevant, in accordance with national law, legal acts the purpose of which is to satisfy or collateralise claims by social security authorities.

RemovedArticle 6 – paragraph 3 – subparagraph 1 – point c b (new): (cb) the entering into netting arrangements, including close-out netting, in financial markets, energy markets or other commodity markets as well as legal acts supporting the operation of such arrangements.

RemovedArticle 6 – paragraph 3 – subparagraph 2: Member States shall ensure that where payments on bills of exchange or cheques are concerned as referred to in the first subparagraph, point (b), the amount paid on the bill or cheque shall be restituted by the last endorser or, if the latter endorsed the bill on account of a third party, by such party if the last endorser or the third party knew that the debtor was unable to pay its mature debts or that a request for the opening of insolvency proceedings has been submitted at the moment of endorsing the bill or having it endorsed. This knowledge is presumed if the last endorser or the third party was a party closely related to the debtor. That presumption shall be rebuttable.

RemovedArticle 7 – paragraph 1: 1. Member States shall ensure that legal acts of the debtor against no or manifestly inadequate consideration are void, voidable or unenforceable where they were perfected within a time period of one year prior to the submission of the request for the opening of insolvency proceedings or, in the absence of a formal request, prior to the date on which a resolution to commence insolvency proceedings had been made. The payment of a third-party debt in a three-person relationship shall not be automatically considered as a legal act against no or manifestly inadequate consideration. / Member States may provide that the fact that the enrichment resulting from a void legal act is no longer the property of the party which benefited from that legal act can be invoked if that party was not aware of the circumstances on which the avoidance action is based.