EUROPEAN PARLIAMENT
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|1999 | |2004 |
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Session document
FINAL
A5-0039/2000
{2/23/00}23 February 2000
*
REPORT
on the proposal for a Council regulation on insolvency proceedings
(9178/1999 – C5-0069/1999 – 1999/0806(CNS))
{JURI}Committee on Legal Affairs and the Internal Market
Rapporteur: Kurt Lechner
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|Symbols for procedures |Abbreviations for committees |
|---------------------------------------------+----------------------------------------------|
| * Consultation procedure | I. AFET Committee on Foreign |
|majority of the votes cast |Affairs, Human Rights, Common Security and |
| |Defence Policy |
| **I Cooperation procedure (first | |
|reading) | II. BUDG Committee on Budgets |
|majority of the votes cast | |
| | III. CONT Committee on Budgetary |
| **II Cooperation procedure (second |Control |
|reading) | |
|majority of the votes cast, to approve the | IV. LIBE Committee on Citizens' |
|common position |Freedoms and Rights, Justice and Home Affairs |
|majority of Parliament’s component Members, | |
|to reject or amend the common position | V. ECON Committee on Economic and |
| |Monetary Affairs |
| *** Assent procedure | |
|majority of Parliament’s component Members | VI. JURI Committee on Legal |
|except in cases covered by Articles 105, |Affairs and the Internal Market |
|107, 161 and 300 of the EC Treaty and | |
|Article 7 of the EU Treaty | VII. INDU Committee on Industry, |
| |External Trade, Research and Energy |
| ***I Codecision procedure (first | |
|reading) |VIII. EMPL Committee on Employment and |
|majority of the votes cast |Social Affairs |
| | |
|***II Codecision procedure (second | IX. ENVI Committee on the |
|reading) |Environment, Public Health and Consumer Policy|
|majority of the votes cast, to approve the | |
|common position | X. AGRI Committee on Agriculture |
|majority of Parliament’s component Members, |and Rural Development |
|to reject or amend the common position | |
| | XI. PECH Committee on Fisheries |
|***III Codecision procedure (third | |
|reading) | XII. REGI Committee on Regional |
|majority of the votes cast, to approve the |Policy, Transport and Tourism |
|joint text | |
| |XIII. CULT Committee on Culture, Youth,|
| |Education, the Media and Sport |
| | |
|(The type of procedure depends on the legal |XIV. DEVE Committee on Development and |
|basis proposed by the Commission) |Cooperation |
| | |
| | XV. AFCO Committee on Constitutional |
| |Affairs |
| | |
| |XVI. FEMM Committee on Women's Rights and|
| |Equal Opportunities |
| | |
| |XVII. PETI Committee on Petitions |
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CONTENTS
Page
Procedural page
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4
LEGISLATIVE PROPOSAL
......................................................................................................
5
DRAFT LEGISLATIVE RESOLUTION
.................................................................................... 8
EXPLANATORY STATEMENT
...............................................................................................
9
Opinion of the {LIBE}Committee on Citizens' Freedoms and Rights, Justice and Home Affairs
..................................................................................................................................................
11
Procedural page
By letter of 22 July 1999DT(d month yyyy)@DATE@ the Council consulted the European Parliament
pursuant to Article 61(c) and Article 67(1) of the EC Treaty on the proposal for a Council
regulation on insolvency proceedings (9178/1999 – 1999/0806(CNS)).
At the sitting of {15-10-1999}17 September 1999 the President of Parliament announced that she
had referred the proposal to the {REGI}Committee on Legal Affairs and the Internal Market as
the committee responsible and to the Committee on Citizens' Freedoms and Rights, Justice and
Home Affairs {AFET}for its opinion (C5-0069/1999).
The Committee on Legal Affairs and the Internal Market {REGI}appointed Kurt Lechner rapporteur
at its meeting of {24-11-1999}23 September 1999.
It considered the Council proposal and the draft report at its meetings of 11 January 2000 and
21 February 2000.
At the latter meeting it adopted the draft legislative resolution unanimously.
The following were present for the vote: Willi Rothley, acting chairman; Rainer Wieland,
vice-chairman; Kurt Lechner, rapporteur; Maria Berger, Charlotte Cederschiöld, Jean-Maurice
Dehousse, Janelly Fourtou, Evelyne Gebhardt, Gerhard Hager, Malcolm Harbour, Heidi Anneli
Hautala, The Lord Inglewood, Ioannis Koukiadis, Donald Neil MacCormick, Hans-Peter Mayer,
Manuel Medina Ortega, Claude Moraes, Astrid Thors, Feleknas Uca, Diana Paulette Wallis,
Joachim Wuermeling, Stefano Zappal`a and François Zimeray.
The opinion of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs is
{AFET}is is attached.
The report was tabled on 23 February 2000.
The deadline for tabling amendments will be indicated in the draft agenda for the relevant
part-session.
LEGISLATIVE PROPOSAL
Proposal for a Council regulation on insolvency proceedings (9178/1999 – C5-0069/1999 –
1999/0806(CNS))
The proposal is amended as follows:
Text proposed by the Council[1] Amendments by Parliament
(Amendment 111)
Recital 10
(10) This Regulation applies equally to all (10) This Regulation applies equally to all
proceedings, whether the debtor is a natural proceedings, whether the debtor is a natural
person or a legal person, a trader or an person or a legal person, a trader or an
individual. Insolvency proceedings concerning individual. Insolvency proceedings concerning
insurance undertakings, credit institutions, insurance undertakings, credit institutions,
investment undertakings holding funds or investment undertakings holding funds or
securities for third parties and collective securities for third parties and collective
investment undertakings are excluded from the investment undertakings are excluded from the
scope of this Regulation. Such undertakings are scope of this Regulation. Such undertakings are
not covered by the Regulation since they are not covered by the Regulation since they are
subject to special arrangements and, to some subject to special arrangements and, to some
extent, the national supervisory authorities have extent, the national supervisory authorities have
extremely wide-ranging powers of intervention. extremely wide-ranging powers of intervention.
With regard to insurance undertakings, however,
special arrangements exist only for the original
insurer (ceding company). In the case of
insolvency proceedings relating to a reinsurer,
therefore, the general rules laid down in this
regulation apply.
Justification:
Reinsurance unquestionably falls under the proposal for a regulation. However, this fact
cannot readily be perceived from the proposed text. It therefore makes sense to insert a
clarification in Recital 10
(Amendment 2 by Kurt Lechner)
Recital 13
(13) Insolvency proceedings may be opened in the (13) Insolvency proceedings may be opened in the
Member State where the debtor has the centre of Member State where the debtor has the centre of
his main interests. Main insolvency proceedings his main interests. Main insolvency proceedings
have universal scope, they aim at encompassing all have universal scope, they aim at encompassing
the debtor’s assets on a world-wide basis and at all the debtor’s assets on a world-wide basis,
affecting all creditors, wherever located. The while preserving the legal independence of legal
centre of main interests is taken as meaning a persons, and at affecting all creditors, wherever
place with which a debtor regularly has very close located. The centre of main interests is taken as
contacts, in which his manifold commercial meaning a place with which a debtor regularly has
interests are concentrated and in which the bulk very close contacts, in which his manifold
of his assets is for the most part situated. The commercial interests are concentrated and in
creditor is also very familiar with that place. which the bulk of his assets is for the most part
situated. The creditor is also very familiar with
that place.
Justification:
The amendment indicates the need for legal persons in insolvency proceedings to be
independent, which is not sufficiently apparent from the proposal for a regulation.
(Amendment 3)
Article 29
Right to request the opening of proceedings
The opening of secondary proceedings may be The opening of secondary proceedings may be requested
requested by: by:
(a) the liquidator in the main proceedings; (a) the liquidator in the main proceedings;
(b) any other person or authority empowered to (b) with the consent of the liquidator in the main
request the opening of insolvency proceedings proceedings, any other person or authority empowered
under the law of the Member State within the to request the opening of insolvency proceedings
territory of which the opening of secondary under the law of the Member State within the
proceedings is requested. territory of which the opening of secondary
proceedings is requested.
Justification:
The authorisation of secondary proceedings in addition to the main proceedings ought to be
restricted, inter alia in order to comply more fully with the principle of unitary proceedings
with the aim of ensuring that the European legal order is as uniform as possible. While it
should be recognised that there is a need to allow territorial insolvency proceedings before
the opening of the main proceedings, no such need exists after the latter have been opened.
Here the unitary nature of the main proceedings should prevail absolutely, unless the
liquidator in the main proceedings consents.
(Amendment 4)
Article 45
The Annexes to this Regulation may be amended by decision of the Council. Deleted.
Justification:
The annexes to the Regulation form part of it, and must be amended by means of the same
procedure as that by which they have been adopted (‘actus contrarius’).
(Amendment 5)
Article 45a (new)
Five years after the entry into force of this regulation, the Commission shall submit to the
Council, the European Parliament and the Economic and Social Committee a report on experience of
its implementation. This report shall, if appropriate, incorporate proposals for improving the
regulation.
Justification:
It remains to be seen in practice whether the individual provisions of the regulation can be
applied by courts and liquidators as they stand or whether they will make excessive demands on
the participants (for example ‘conversion’ as referred to in Article 37).
The regulation itself should therefore lay down that the Commission is to assess experience of
its implementation and propose improvements, and when it is to do so.
DRAFT LEGISLATIVE RESOLUTION
Legislative resolution of the European Parliament on the proposal for a Council regulation on
insolvency proceedings (9178/1999 – C5-0069/1999 – 1999/0806(CNS))
(Consultation procedure)
The European Parliament,
– having regard to the proposal from the Council (9178/1999)[2],
– having been consulted by the Council pursuant to Article 61(c) and Article 67(1) of the
EC Treaty (C5-0069/1999),
– having regard to Rule 67 of its Rules of Procedure,
– having regard to the report of the {JURI}Committee on Legal Affairs and the Internal
Market and the opinion of the Committee on Citizens' Freedoms and Rights, Justice and Home
Affairs (A5-0039/2000),
1. Approves the Council proposal as amended;
2. Calls on the Council to alter its proposal accordingly;
3. If the Council intends to depart from the text approved by Parliament, calls on the
Council to notify Parliament;
4. Asks to be consulted again if the Council intends to amend its proposal substantially;
5. Instructs its President to forward its position to the Council.
EXPLANATORY STATEMENT
I.
Assets and economic activities increasingly transcend national borders. However, the market is
not made up exclusively of economically successful individuals and businesses: regrettably,
but inevitably, failures also occur. This makes it necessary for Community law to include
provisions for dealing with cross-border problems relating to the assets of insolvent debtors.
It is also necessary to prevent assets from being moved from one Member State to another in
order to prevent their realisation (‘forum shopping’). Hitherto, such provisions have hardly
existed; in particular, there are no substantial multilateral agreements. However, the urgency
of the problem only makes the task of solving it more worthwhile and feasible.
The first draft of an agreement was produced 20 years ago, but did not lead to any result.
Starting in 1989, a working party drafted a new agreement, which was signed by all the Member
States except one in 1995 as an agreement pursuant to Article 220 of the EC Treaty (old
version).
In the spring of 1999, the European Parliament adopted a report on this agreement which was in
principle favourable and positive.[3]
On the basis of an initiative by Finland and Germany, a proposal for a Council regulation on
insolvency proceedings has now been submitted, which is based in substance on the 1995
agreement.
The initiative is extremely welcome. The proposed regulation represents a considerable
improvement, and could provide a legal framework for insolvency proceedings with cross-border
effect.
The proposal envisages that proceedings should be universal and unitary. This means a single
insolvency procedure in which all assets are liquidated and all creditors participate.
Provision is made for determining who is empowered to open insolvency proceedings, what
decisions are to be recognised and what law is applicable, thus replacing the provisions of
private international law of the individual states concerning conflict of laws with a uniform
European legal act.
The most important innovation in the regulation, and one which can be described as a
breakthrough, is to be found in Article 16(1): any judgment opening insolvency proceedings
handed down by a court of a Member State within whose jurisdiction ‘the centre of a debtor’s
main interests is situated’ ‘shall be recognised in all the other Member States from the time
that it becomes effective in the State of the opening of proceedings’. This renders
superfluous any further decisions on the recognition or enforceability of the judgment opening
the insolvency proceedings and even any further examination of the debtor’s insolvency in
secondary proceedings as referred to in Chapter III of the regulation (see III below).
The regulation does not apply to insurance undertakings, credit institutions and the like, as
it is intended that separate provisions should be adopted concerning them.
II.
However, in many respects the proposal departs from the principle of universality which is
inherent in the logic of the internal market and the creation of a uniform European legal
area. It does so partly by including special provisions on a number of significant legal
aspects, e.g. rights in rem, employment contracts, set-offs, reservation of title and rights
of challenge. In view of the substantively different laws of the Member States, inter alia as
regards the privileges of individual creditors in the insolvency, these departures from the
universality principle in favour of the territoriality principle are unavoidable. In these
cases, the insolvency proceedings are unitary, but in the course of them these various special
provisions have to be taken into account by the court. The aim is purely to resolve issues of
conflict of laws, while the substantive laws of the Member States, including their laws on
insolvency, remain unaltered. The special provisions have been drafted and coordinated with
care. They do not, therefore, seem to require any correction.
III.
A further departure from the principle that proceedings are universal and unitary lies in the
authorisation of territorial insolvency proceedings (secondary proceedings). These may be
opened in a Member State other than that where the debtor has the centre of his main
interests. They are permitted both as preliminary proceedings, i.e. before the opening of the
main proceedings, and as subsequent proceedings. Their effects are restricted to the assets of
the debtor situated within the territory of the State concerned, which is not the State where
the main proceedings are being, or would have to be, conducted. The relationship between the
main and secondary proceedings and the liquidators concerned is regulated, but seems
problematic. The admissibility of secondary proceedings should therefore be further
restricted, inter alia in order to comply more fully with the principle of unitary proceedings
with the aim of ensuring that the European legal order is as uniform as possible. While it
should be recognised that there is a need to allow territorial insolvency proceedings before
the main proceedings, no such need exists after the latter have been opened. Here the unitary
nature of the main proceedings should prevail absolutely, unless the liquidator in the main
proceedings consents to secondary proceedings (Amendment 3).
IV.
The relationship between main proceedings and territorial insolvency proceedings represents a
compromise which was the outcome of many years of discussion. It remains to be seen in
practice whether the individual provisions can be applied by courts and liquidators as they
stand or whether they will make excessive demands on the participants (for example
‘conversion’ as referred to in Article 37). The regulation itself should therefore lay down
that the Commission is to assess experience of its implementation and propose improvements,
and when it is to do so (Amendment 2).
EUROPEAN PARLIAMENT
{28/1/00}28 January 2000
OPINION
(Rule 162)
for the {JURI}Committee on Legal Affairs and the Internal Market
on the proposal for a Council Regulation on insolvency proceedings (9178/99 –
C5-0069/99 – 1999/0806(CNS)) (report by Kurt Lechner)
{LIBE}Committee on Citizens' Freedoms and Rights, Justice and Home
Affairs
Draftsman: Margot Keßler
PROCEDURE
At its meeting of 25 October {17-09-1999}1999 the {LIBE}Committee on Citizens' Freedoms and
Rights, Justice and Home Affairs appointed Margot Keßler draftsman.
It considered the draft opinion at its meetings of 27 September, 23 November, 29 November 1999
and 27 January 2000.
At the last meeting it adopted the following conclusions unanimously.
The following took part in the vote: Graham R. Watson, chairman; Robert J.E. Evans,
vice-chairman; Margot Keßler, draftsman; Maria Berger (for Olivier Duhamel), Christian von
Boetticher, Mogens Camre, Marco Cappato, Michael Cashman, Charlotte Cederschiöld, Carlos
Coelho, Thierry Cornillet, Giuseppe Di Lello Finuoli, Pernille Frahm, Evelyne Gebhardt (for
Elena Ornella Paciotti), Daniel J. Hannan, Adeline Hazan (for Joke Swiebel), Jorge Salvador
Hernandez Mollar, Anna Karamanou, Timothy Kirkhope, Ewa Klamt, Alain Krivine (Fodé Sylla),
Baroness Sarah Ludford, Hartmut Nassauer, Hubert Pirker, Gerhard Schmid, Martin Schulz, Anna
Terrón i Cusí, Maurizio Turco (for Frank Vanhecke) and Jan-Kees Wiebenga.
BACKGROUND
1. The issues involved
As a general rule, judgments in insolvency proceedings have full legal effect only in the
country where they are handed down. The legal effects in other countries of judgments in
insolvency proceedings handed down in a national court are governed only in part by bilateral
agreements and principally by national legislation.
Such regulation of cross-border effects at national level constitutes a problem to the extent
that insolvency judgments are frequently not recognised in foreign countries. Accordingly, the
liquidator of the insolvent debtor has no access to the debtor’s foreign assets. That means
that creditors must open insolvency or enforcement proceedings in one or more foreign
countries as well, and that gives the insolvent debtor time to transfer his assets and protect
them from the creditors’ attempts to gain access to his estate. The situation is also
unsatisfactory in so far as the absence of a uniform procedure prevents all creditors from
obtaining an equal measure of satisfaction, and the ranking of one and the same claim in the
insolvency proceedings may vary according to where the proceedings are opened. There can,
therefore, be no doubt as to the need for common international insolvency legislation.
2. The approach taken by the Regulation
In the establishment of cross‑border insolvency legislation, the logic of the single
market would support efforts being made as far as possible to provide for proceedings having
universal scope, i.e. restriction to one set of proceedings in which the entire assets of the
debtor could be seized and the claims of all the creditors dealt with. The Commission’s
original proposal, which dates back to the early 1960s, was based on that notion. However, it
was just that universal approach which the Member States deemed went too far and which
resulted in the proposal eventually foundering in the Council in 1984. The differences in the
laws on property, especially rights of lien, are considerable, as are the differences in
procedural law (with particular regard to the preferential rights of individual creditors).
Accordingly, it would have been impossible to make all claims subject to one legal system
without corresponding harmonisation measures. However, the Member States were not prepared to
undertake the corresponding extensive harmonisation.
This proposal, which essentially takes over the substance of the 1995 agreement on insolvency
proceedings that had been reached by the Member States at least on a political level, departs
from the principle of universality. Although the distribution of proceeds and the liquidation
of assets may be carried out in one set of proceedings, it is possible for several sets of
proceedings to run concurrently. In that event, precedence is taken by the main proceedings,
which cover both domestic and foreign assets. They therefore have cross-border effect.
Secondary proceedings may also be instituted in other countries. Their effect is, however,
territorially restricted, since they cover only the assets situated in that country.
The effects of the decision to open the main proceedings concern the other Member States only
in the event that the latter do not open any secondary insolvency proceedings themselves. The
creditors of the insolvent debtor may lodge their claims in all the proceedings – i.e. in the
main proceedings and in any secondary proceedings. However, where a creditor has obtained at
least partial satisfaction in one set of proceedings, account thereof is taken in the other
proceedings. As regards the issues of the conditions required for the opening of proceedings,
the conduct of the proceedings and the effects of the proceedings, they are totally subject to
the rules of the Member State in which the insolvency proceedings are to be, or have been,
opened. However, a large number of derogations are made from the principle that the law of the
State of the opening of proceedings shall be applicable in order to take account of the
differences in the various legal orders. Rights in rem (laws on property) and rights recorded
in a public register remain unaffected. Similarly unaffected is the right of creditors to
demand the set-off of their claims against the claims of the debtor, where such a set-off is
permitted by the law applicable to the insolvent debtor’s claim. The effects of insolvency
proceedings on a contract relating to immovable property are governed solely by the law of the
Member State within the territory of which the property is situated. Furthermore, special
rules apply to contracts of employment and to the legal status of parties to settlement or
payment systems or financial markets.
3. Evaluation
The substance of this proposal for a regulation is quite different from the original concept
of uniform, central insolvency proceedings, not only because secondary proceedings may be
opened in addition to the main proceedings but also because numerous derogations have been
made from the principle of the uniform application of the law of the State of the opening of
proceedings. There are, however, good grounds why that should be so. The legal orders of the
Member States vary too widely, and there is no political will to achieve wide-ranging
standardisation of procedural law and law on property. That is quite understandable if we bear
in mind the fact that national private law systems have evolved over centuries and that
persons carrying out legal transactions have every confidence in existing law. In the longer
term, radical changes, even those designed to bring about harmonisation, would also result in
major uncertainty, excessive recourse to the courts and a huge increase in the number of
proceedings opened. For some time at least, harmonisation would be achieved at the expense of
legal certainty. That would be totally unacceptable, particularly in sensitive areas such as
rights of lien. Thanks to extensive case-law, the substance and scope of the various national
rights of lien are to a large extent formalised. That aids the economy, which is dependent on
the reliability of the rights of lien. Any disturbance of that trust would have serious
consequences. Although it does not actually implement the principle of universality, this
proposal for a regulation does represent an improvement in the situation, since it provides
for at least the main insolvency proceedings to have cross-border effect. The decision to open
the main proceedings is automatically recognised in the other Member States. Provided that no
secondary proceedings have been brought in the other Member States, the liquidator in the main
proceedings enjoys all the powers entrusted to him under the legislation of the State of the
opening of proceedings, even in the other Member States, and he may, in particular, seize
assets forming part of the estate, even if they are situated in other Member States. That
solves the previous problems resulting from the failure to recognise insolvency judgments in
other countries, at least with regard to the liquidation of assets situated in countries which
do not have their own independent territorial insolvency proceedings. The justification for
making numerous derogations from the principle that the law of the State of the opening of
proceedings must be applied in the case of rights in rem, rights recorded in a public register
and the like resides in the differences between legal systems and must, therefore, be
accepted.
Unlike the main proceedings, secondary proceedings have merely domestic and no cross-border
effect. It is to be welcomed that the Regulation lays down provisions governing the
relationship between the main proceedings and the secondary proceedings, thereby securing an
improvement in the legal situation compared with the situation hitherto.
The admissibility of concurrent proceedings also helps creditors domiciled or habitually
resident in a Member State other than the State of the opening of proceedings to the extent
that they are not dependent on main proceedings in a foreign country. They may open secondary
proceedings in their own country, provided that the debtor has an establishment there. That
meets the requirements of local creditors in so far as they are not liable for any additional
costs or even losses arising from differences in language or legal systems. A universal
approach would undoubtedly have caused problems for creditors, since most of them would be
familiar neither with the language of the country in which the main proceedings were being
heard nor with the legislative provisions in force there.
The Regulation also lays down provisions designed to prevent potential inequalities of
treatment which might arise from the various schemes applied in the Member States for the
distribution of proceeds. Accordingly, a creditor may participate in several proceedings
simultaneously. Each creditor may lodge his claims in the main proceedings and in the
secondary proceedings. However, if a creditor has been granted a percentage of his claim in
one set of insolvency proceedings, he may participate in the distribution of total assets in
other proceedings only when creditors with the same standing have obtained the same proportion
of their claims. That seems to be a sensible and fair solution, one which is in the interests
of all the creditors. As regards the overall concept, this may be definitely welcomed. When
this Regulation enters into force, the smooth operation of the internal market will come
closer to being achieved, and a balance between the interests of the creditors involved will
be struck which will be faithful to the Community treaties while still respecting national
legal orders.
However, despite this generally positive assessment of the Regulation, a few minor amendments
seem to be called for.
Firstly, the concept of the ‘debtor’s centre of main interests’ needs to be defined more
strictly since it determines the country where the main proceedings are opened and, hence,
constitutes a key element in the Regulation. As things stand, the term is defined in the
recitals; however, in order to achieve maximum legal clarity, the definition should be
incorporated in the body of the Regulation, specifically in Article 2 thereof, where all the
other definitions are set out (Amendments 1 and 2).
Secondly, it would be sensible – as in the proposals for regulations on Brussels I, Brussels
II and the service of documents – to ascertain, after an appropriate interval, whether or not
the Regulation has proved successful in practice or what amendments are required. Since,
pursuant to Article 211 of the EC Treaty, it is the duty of the Commission to ensure the
proper application of the Regulation, the Commission should be required to draw up the
corresponding report and, where appropriate, propose amendments. However, given the complexity
of the proceedings, the five-year period laid down in Article 65 of the Brussels I
Regulation[4] and in Article 44 of the Brussels II Regulation[5] – not to mention the
three-year period laid down in Article 24 of the Regulation on the service of documents -
seems too brief for that purpose. On the other hand, should the Regulation demonstrate serious
shortcomings in practice, a ten-year period would be too long. Accordingly, the first report
should be submitted to the European Parliament, the Council and the Economic and Social
Committee seven years after the entry into force of the Regulation. In addition, the concept
should be taken over from Article 24 of the Regulation on the service of documents that
reports along the lines of the initial report should be submitted every five years thereafter.
A corresponding article – a new Article 44a – should therefore be inserted (Amendment 3).
Thirdly, and finally, it should be proposed that the task of amending the annexes be entrusted
to the Commission. Pursuant to the third indent of Article 202 of the EC Treaty, ‘the Council
shall confer on the Commission, in the acts which the Council adopts, powers for the
implementation of the rules which the Council lays down.’ There is no apparent reason in this
instance for the Council to depart from the rule whereby the Commission enjoys implementing
powers and to retain for itself the right to amend the annexes. On the contrary, it would
appear more logical for the power to amend the annexes to be conferred on the Commission and
for the Commission to be assisted by a regulatory committee in accordance with the procedure
laid down in Article 5 of the Council Decision of 28 June 1999 laying down the procedures for
the exercise of implementing powers conferred on the Commission (Amendment 4).
CONCLUSIONS
The {LIBE}Committee on Citizens' Freedoms and Rights, Justice and Home Affairs calls on the
{JURI}Committee on Legal Affairs and the Internal Market, as the committee responsible, to
incorporate the following amendments in its report:
Text proposed by the Commission Amendments by Parliament
(Amendment 1)
Thirteenth recital
Insolvency proceedings may be opened in the Member Insolvency proceedings may be opened in the
State where the debtor has the centre of his main Member State where the debtor has the centre of
interests. Main insolvency proceedings have his main interests. Main insolvency proceedings
universal scope, they aim at encompassing all the have universal scope, they aim at encompassing
debtor’s assets on a world-wide basis and at all the debtor’s assets on a world-wide basis and
affecting all creditors, wherever located. The at affecting all creditors, wherever located.
centre of main interests is taken as meaning a
place with which a debtor regularly has very close
contacts, in which his manifold commercial
interests are concentrated and in which the bulk
of his assets is for the most part situated. The
creditor is also very familiar with that place.
Justification
The ‘debtor’s centre of main interests’ is not a generally recognised term and therefore needs
to be properly defined. That definition belongs with the other definitions in Article 2 of the
Regulation.
(Amendment 2)
Article 2(i) (new)
‘centre of main interests’ shall mean the place where the debtor has his main commercial interests
and carries on other economic activities and with which he therefore has very close contacts.
Justification
See justification to Amendment 1.
(Amendment 3)
Article 44a (new)
The Commission shall submit a report on the application of this Regulation to the European
Parliament, the Council and the Economic and Social Committee no later than 7 years after its
entry into force and every 5 years thereafter. Where appropriate, proposals for the amendment of
the Regulation to cope with any changes in circumstances shall be annexed to that report.
Justification
Pursuant to Article 211 of the EC Treaty, it is the duty of the Commission to ensure
that the Regulation is properly implemented. Accordingly, it should be required to draw up an
appropriate report for submission to the other institutions, as provided for in the proposals
for regulations on Brussels I, Brussels II and the service of documents.
(Amendment 4)
Article 45
The Annexes to this Regulation may be amended by The Annexes to this Regulation shall be amended by
decision of the Council. the Commission, which shall be assisted by a
regulatory committee in accordance with the
procedure laid down in Article 5 of Council
Decision 1999/468/EC. The period referred to in
Article 5(6) shall be three months.
Justification
Pursuant to the third indent of Article 202 of the EC Treaty, ‘the Council shall confer on the
Commission, in the acts which the Council adopts, powers for the implementation of the rules
which the Council lays down.’ It would, therefore, seem more logical for the Commission to be
entrusted with the task of amending the annexes.
-------------------------------
[1] OJ C 221, 3.8.1999, p. 8.
[2] OJ C 221, 3.8.1999, p. 8
[3] Resolution on report A4-0234/99 (Malangré report) of 7.5.1999
[4] OJ C 376, 28.12.1999, p. 1.
[5] COM(99) 220 final – 99/0110 (CNS)