A New Framework for Business Restructuring in Europe: Th e EU Commission’s Proposals for a Reform...

8/13/2019 A New Framework for Business Restructuring in Europe: Th e EU Commissions Proposals for a Reform of the Eur

1/18

Legal Developments

20 MJ 1 (2013) 133

A New Framework for Business Restructuring in Europe: Te EU Commissions

Proposals for a Reform of the European Insolvency Regulation and Beyond*

Horst Eidenmller**

1. INRODUCION

It is now more than 10 years since the European Insolvency Regulation (EIR) enteredinto orce. Te EIR provided, or the rst time, a governance ramework or cross-borderinsolvencies in Europe.1 Its guiding principle can be termed modied universalism:main insolvency proceedings are administered in the Member State in which the debtorsCentre o Main Interests (COMI) is located; territorial proceedings independent andsecondary can take place in all Member States in which the debtor has an establishment.Insolvency proceedings are subject to the principle o lex ori concursus; yet, there areimportant exceptions to this principle. Finally, the opening o insolvency proceedingsand other decisions taken in the course o such proceedings are automatically recognizedin all other Member States.

According to Article 46 o the EIR, the EU Commission is charged with presentinga report on the EIRs application no later than 1 June 2012 and every ve yearsthereafer. Te report shall be accompanied, i need be, by a proposal or adaptation othe Regulation. Te Commission presented its report on 12 December 2012.2On thesame date, it proposed a regulation amending the EIR.3Te Commissions amendment

* Tis paper is based on a presentation made at a conerence entitled Current Issues in CorporateInsolvency held at Oxord Universitys Faculty o Law on 11 January 2013. I would like to thank theconerence participants or their comments and suggestions and Philipp Reu and David Wil lard orexcellent research assistance.

** Proessor o Private Law, German, European, and International Company Law at Ludwig-Maximilians-University Munich and Proessor at Oxord University.

1 Scholarly debate has ocused on the question o whether the EIR only regulates intra-community cross-border insolvency issues, or whether it also governs the relationship o European Member States tonon-European states. Te report o M. Virgos and E. Schmit on the multinational insolvency treatythat preceded the EIR the treaty never entered into orce clearly states that non-European states donot all within the scope o the treaty. See M. Virgos and E . Schmit, Erluternder Bericht zu dem EU-

bereinkommen ber Insolvenzverahren, in H. Stoll (ed.), Vorschlge und Gutachten zur Umsetzungdes EU-bereinkommens ber Insolvenzverahren im deutschen Recht(Mohr Siebeck, bingen 1997),p. 32, 38. See also H. Eidenmller, Europische Verordnung ber Insolvenzverahren und zuknfigesdeutsches internationales Insolvenzrecht, 21 Praxis des Internationalen Privat- und Verahrensrechts(2001), p. 2, 4 w ith ur ther reerences.

2 Report rom the Commission to the European Parliament, the Council and the European Economicand Social Committee on the application o Council Regulation (EC) No. 1346/2000 o 29 May 2000 onInsolvency Proceedings, COM (2012) 743 nal.

3 Proposal or a Regulation o the European Parliament and o the Council amending Council Regulation(EC) No. 1346/2000 on insolvency proceedings, COM (2012) 744 nal. See also Commission StaffWorking Document, Impact Assessment, Accompanying the document Revision o Regulation


2/18

Legal Developments

134 20 MJ 1 (2013)

proposal must be seen against the backdrop o its views on how to approach uturebusiness ailures and insolvencies in Europe.4 Te Commissions views on this issue,

in turn, are part o its Entrepreneurship 2020 Action Plan, which was published on9 January 2013.5

Te Commissions amendment proposal is a careully drafed and well reasoneddocument. As such, it compares avourably with the Commissions slim Company LawAction Plan that was also published on 12 December 2012.6Based on sound researchand public consultations, and assisted by the advice o an expert group, the report on theEIRs application starts out by stating that () the Regulation is generally regarded asa successul instrument or the coordination o cross-border insolvency proceedings inthe Union.7Most observers probably would agree with this assessment. Te governanceramework established by the EIR or cross-border insolvencies represented a positive

step orward compared to the status quo ante, and, in practice, it has worked reasonablywell. Legal uncertainty associated with the COMI concept enshrined in Article 3(1)EIR has been reduced, i not resolved completely, by a series o important judgmentsrendered by the Court o Justice o the European Union (CJEU).8 Restructuringpractice has crafed some remarkably innovative tools to assist global restructurings.An example is a synthetic secondary proceeding, which avoids the ormal opening osuch a proceeding by promising local creditors that they will not are worse than i areal secondary proceeding had been opened.9Courts across Europe have accumulatedexpertise in handling a regulatory ramework that, when it entered into orce in 2002,

(EC) No. 1346/2000 on insolvency proceedings, SWD (2012) 416 nal; Commission Staff WorkingDocument, Executive Summary o the Impact Assessment, Accompanying the document Revision oRegulation (EC) No. 1346/2000 on insolvency proceedings, SWD (2012) 417 nal.

4 See Communication rom the Commission to the European Parliament, the Council and the EuropeanEconomic and Social Committee: A new European approach to business ailure and insolvency, COM(2012) 742 nal. Tis document also dates rom 12 December 2012.

5 Communication rom the Commission to the European Parliament, the Council, the EuropeanEconomic and Social Committee and the Committee o the Regions: Entrepreneurship 2020 ActionPlan Reigniting the entrepreneurial spirit in Europe, COM (2012) 795 nal.

6 Communication rom the Commission to the European Parliament, the Council, the EuropeanEconomic and Social Committee and the Committee o the Regions, Action Plan: European companylaw and corporate governance a modern legal ramework or more engaged shareholders andsustainable companies, COM (2012) 740/2. In airness to the Commission, it must be said that the

Company Law Action Plan is a politica l document and not a specic legislative proposal. Specic andwell-reasoned proposals will hopeul ly ollow.

7 COM (2012) 743 na l, p. 4.8 Case C-341/04 Euroood IFSC Ltd[2006] ECR I-3813; Case C-396/09 Interedil, Judgment o 20 October

2011, not yet offi cial ly reported, decision reported in 14 Neue Zeitschrif r das Recht der Insolvenz undSanierung(2011), p. 990; Case C-191/10 Rastelli Davide e. C., Judgment o 15 December 2011, not yetoffi cial ly reported, decision repor ted in 15 Neue Zeitschrif r das Recht der Insolvenz und Sanierung(2012), p. 147.

9 High Court o England and Wales (Ch), Collins & Aikman, EWHC (2006), p. 1343; Amtsgericht Kln(Court o rst instance Cologne), 8 Neue Zeitschrif r das Recht der Insolvenz und Sanierung (2005),p. 564.


3/18

Legal Developments

20 MJ 1 (2013) 135

required courts to apply rules and concepts novel to the jurisprudence and insolvencypractices in many Member States.

However, the assessment that the EIR is generally regarded to be a successulinstrument does not lead the Commission to conclude that nothing could or shouldbe changed. Tere is always room or improvement. In its amendment proposal, theCommission identies, in particular, the ollowing areas, which, in its view, requirechange:10 First, the Commission is o the view that the scope o the EIR should beextended. It is suggested that such an extended scope would include, inter alia, pre-insolvency and what the Commission calls hybrid proceedings (revised Article 1 EIR).Second, the Commission believes that the COMI concept has worked reasonably well.However, it suggests that the jurisdiction rules o the EIR should be claried and theprocedural ramework or determining jurisdiction improved. Hence, the Commission

suggests revisions to the EIR in order that the COMI concept be detailed on the basis o theexisting CJEU jurisprudence (revised Article 2(1) EIR). Further, Member States courtsceased o a request to open insolvency proceedings shall be put under a duty to examineex offi ciowhether they have jurisdiction (new Article 3b(1) EIR). Tird, the Commissionbelieves that the negative effect o secondary proceedings on the effi cient administrationo insolvency proceedings should be mitigated. In particular, the Commission suggeststhat courts be permitted to reuse the opening o secondary proceedings i this is notnecessary to protect the interests o local creditors (synthetic secondary proceedings,revised Article 18(1) and new Article 29a(2) EIR); also, the cooperation requirements areextended to the courts involved (new Articles 31a and 31b EIR). Fourth, the Commission

is o the opinion that the publicity o proceedings should be enhanced and the procedureor the lodging o claims be improved. Hence, it is suggested that the Member Statesbe required to publish the relevant court decisions in cross-border insolvency casesin a publicly accessible electronic register that is interconnected with the registers oother Member States (new Articles 20a, 20b, 20c and 20d and revised Articles 21 and22 EIR). In addition, the Commission suggests that standard orms or the lodging oclaims be introduced (revised Article 41 EIR). Fifh and nally, the EIR currently doesnot include rules on multiple insolvency proceedings relating to different members othe same group o companies. Te Commission proposes to enhance the coordinationo such proceedings by proposing, inter alia, that the liquidators and courts involved in

the different main proceedings must cooperate and communicate with each other (newArticles 42a, 42b and 42c EIR). Further, the Commission proposes to give the liquidatorsinvolved in such proceedings the procedural tools to request a stay o the other respectiveproceedings and to propose a rescue plan or the members o the group that are subjectto insolvency proceedings (new Article 42d EIR).

In the ollowing sections, I will critically review the Commissions proposals. Myocus will be on corporate insolvencies because these are central to the Commissions

10 COM (2012) 744 nal, p. 5 et seq.


4/18

Legal Developments

136 20 MJ 1 (2013)

proposals and its broader policy agenda o enhancing entrepreneurship in the EU. Insection 2 I will examine the regulatory objectives pursued by the Commission, and in

section 3 the regulatory roadmap that it proposes. Section 4 will address the envisagedreorm o the scope o the EIR. Section 5 will examine orum shopping and the COMIconcept, and section 6 the multiplicity o main and secondary proceedings and theircoordination. In a nal section, I will analyse the insolvency treatment proposed bythe Commission or corporate groups (section 7). Section 8 will summarize the mainndings o this essay.

2. REGULAORY OBJECIVES

A business in nancial distress should be kept alive only i it is economically viable. Abusiness is in nancial distress i it is insolvent on a balance sheet or cash ow basis.It is economically viable i its going concern value exceeds its liquidation value. Tesestatements all are received wisdom in bankruptcy scholarship.11Based on these criteria,the overwhelming majority o businesses in nancial distress should be liquidated.Tis is also true in a cross-border context. o be sure, businesses who engage in cross-border activities tend to be larger, and it might be suggested that larger businesses innancial distress exhibit a higher likelihood o their going concern value exceedingtheir liquidation value. However, we do not have empirical evidence to support thisproposition. Moreover, the evidence we do have suggests that, also in the cross-bordercontext, the overwhelming majority (~ 90%) o businesses in nancial distress should beliquidated and not saved and restructured.12

Te EU Commission clearly is o a different opinion, however. For example, the StaffWorking Document accompanying the reorm proposals presents the advantages obusiness rescue in an unconditional and unqualied way as i these advantages couldbe realized in each and every business bankruptcy: Te benets o business rescue canbe summarized as ollows: Maximization o asset value () Better recovery rates orcreditors ().13

Te lack o proper reection regarding the regulatory objectives pursued shows alsoat a different angle o the Commissions proposals. Te Commissions Communicationon A new European approach to business ailure and insolvency suggests that national

insolvency laws should be approximated, or example, with respect to the rulesproviding a second chance to entrepreneurs. However, this second chance, according

11 See, or example, H. Eidenmller, rading in imes o Crisis, 7 European Business Organization LawReview 1 (2006), p. 239, 241.

12 See, or example, the data on insolvencies and liquidations provided by the Amadeus database: https://amadeus.bvdino.com/version-2013228/home.serv?product=amadeusneo (last visited 5 March 2013),as well as (or Germany) the most recent data provided by 16 Zeitschrif r das gesamte Insolvenzrecht(2013), Issues No. 4 9, Beihefer Insolvenzreport.

13 SWD (2012) 416 nal, p. 11.


5/18

Legal Developments

20 MJ 1 (2013) 137

to the Commission, should be reserved or entrepreneurs in honest bankruptcies.14Distinguishing between honest and dishonest bankruptcies surely would involve a

diffi cult, act sensitive inquiry in practice. But my concern here is o a different character.Te Commissions proposed distinction is aimed at deciding who should get a secondchance as a business person, and who might get state support or such a chance. Withrespect to this issue, the proposed distinction arguably is a meaningul one. However,portions o the Commissions Communication suggest that it contemplates a muchbroader application o the proposed distinction: Action could be taken to differentiatemore between honest and dishonest bankruptcies.15Tis could be interpreted to suggestthat, in the Commissions view, the rescue/liquidation decision also should dependon whether the bankruptcy is honest or dishonest. However, or that decision, thesuggested distinction is completely irrelevant. Te rescue/liquidation decision should

be taken solely on the basis o the relationship between the going concern value o abusiness and its liquidation value.

In conclusion, it appears that the Commissions proposals are not based on soundregulatory objectives. Te Commission appears to lack a precise and economicallywell-ounded view as to when a business in nancial distress should be kept alive andrestructured. Moreover, the Commission suffers rom a misguided restructuringeuphoria that is not supported by the data on business ailure. Tis data suggests that theoverwhelming majority o businesses in nancial distress should be liquidated instead obeing kept alive and restructured.

3. REGULAORY ROAD MAP

Te Commissions ocus clearly is to update the existing EIR ramework. In thepreviously mentioned Communication on A new European approach to businessailure and insolvency, the Commission considers various areas in which, in its view,some harmonization o the substantive insolvency laws o the Member States couldproduce benets.16 Tese areas consist o the second chance or entrepreneurs inhonest bankruptcies (just discussed), shorter discharge periods that encourage asecond chance, a harmonization o the rules on the opening o (insolvency) proceedings,rights o creditors to initiate insolvency proceedings, the procedures in place to le and

veriy claims, and the promotion o restructuring plans. Te Commission expresses acertain sympathy or pursuing the path o harmonization as advocated by the EuropeanParliament.17 Ultimately, however, the Commission believes that the time is not ripe

14 COM (2012) 742 nal, p. 5.15 COM (2012) 742 nal, p. 5.16 See COM (2012) 742 nal, p. 5 et seq.17 Resolution o the European Parliament, 15/11/2011, Document 2001/2006(INI).


6/18

Legal Developments

138 20 MJ 1 (2013)

or such a step. In its view, more comparative analysis is needed in order to prepare theground or harmonizing substantive insolvency laws o the Member States:

Te approximation o national insolvency laws and procedures would () require an in-depthcomparative-law analysis o national insolvency laws and procedures which would enablethe Commission to identiy the precise areas in which procedural harmonization wouldbe necessary and easible, and not too intrusive to the national legislations and insolvencysystems.18

Clearly, the more that sound comparative analysis could inspire harmonization efforts,the better. However, it seems that the Commission overstates the lack o existingscholarship that can be used to guide sensible harmonization measures. In act, muchprogress has been made in this respect during the last decade.19 It appears that it is

instead the anticipated political diffi culties in getting the Member States to negotiateon crucial harmonization measures that has contributed to the Commissions reluctanceto pursue harmonization now, rather than a real lack o relevant scholarship. Tis is allthe more unortunate because there are certain issues where harmonization measures othe EU are clearly necessary or the effi cient administration o cross-border insolvencies.o mention just two such issues:

First, rescue or restructuring efforts should be undertaken as early as possible inorder to save the greatest possible going concern value.20Te Commission rightly pointsout that as between Member States there currently are signicant differences regardingthe deadlines a debtor must meet when the opening o insolvency proceedings is

mandatory.21However, the issue o a timely triggering o rescue or restructuring effortsis one that arises much earlier than the ling duties o which the Commission speaks. Inorder to get a corporations management to undertake rescue or restructuring efforts earlyon, proper incentives must be in place. Such incentives can come in the orm o liabilityrules. An example would be the wrongul trading remedy enshrined in Section 214 othe UK Insolvency Act 1986. A good case can be made or harmonizing Member Statesnational insolvency laws along these lines. Te current diversity regarding liability rulesin the various European jurisdictions provides strong incentives or the management odistressed companies to orum shop or a bankruptcy venue that would allow them to

18 SWD (2012) 416 nal, p. 44.19 See, or example, H. Eidenmller and E.-M. Kieninger (eds.) Te Future o Secured Credit in Europe (De

Gruyter, Berlin 2008); P.R. Wood,Maps o World Financial Law(6thedition, Sweet & Maxwell, London2008); P.R. Wood, Principles o International Insolvency (2ndedition, Sweet & Maxwell, London 2007);J.L. Westbrook et. al., A Global View o Business Insolvency Systems (Martinus Nijnhoff Publishers,Leiden 2010); B. McBryde et al. (eds.), Principles o European Insolvency Law(Kluwer, London, 2005);R. Goode, Principles o Corporate Insolvency Law (4th edition, Sweet & Maxwell, London 2011); M.Brouwer, Reorganization in US and European Bankruptcy Law, 22 European Journal o Law andEconomics5 (2006).

20 H. Eidenmller, 7 European Business Organization Law Review 1 (2006), p. 239, 241, 244 et seq.21 COM (2012) 742 nal, p. 6.


7/18

Legal Developments

20 MJ 1 (2013) 139

duck personal liability.22Te Commission should be reminded o the 2003 CompanyLaw Action Plan in which a harmonized European wrongul trading remedy was already

contemplated.23Second, an issue o paramount importance or the nancing o businesses and

restructuring efforts is the body o rules on security interests in moveable property. TeCommissions considerations have completely neglected to account or this critical issue.Te existence o such an interest should not depend on where the property is located.However, this is precisely the consequence o the situs rulethat determines the applicablesubstantive law with respect to security interests under the private international rulesystems o practically all Member States. o reduce the cost o credit, uniorm rules on aEuropean security interest in moveable property are clearly needed. 24

According to their own terms, the reorm proposals o the Commission or the

procedural ramework established by the EIR would apply only two years afer the reormregulation has entered into orce. Tis date is many years rom now. Viewed in this light,the call or greater comparative analysis to ground any harmonization efforts regardingthe substantive insolvency laws o the Member States should be seen as what it is: Wecannot expect such reorms to come in the decade. Tis is regrettable. Te Commissionis ar too cautious regarding the harmonization o substantive insolvency laws o theMember States given the urgent need or such reorms in certain areas. wo such issueshave been mentioned.

4. SCOPE OF HE EIR

In the last ve years, the scope o the EIR has moved to the centre stage o reormdiscussions, along with the issue o orum shopping (addressed in a later section). Tereorm debate concerns, rst, the application o Article 1 EIR and Annex A as they stand.More specically, the relationship between the criteria enshrined in Article 1 and a listingin Annex A must be considered unresolved.25Second, the insolvency laws o the MemberStates and restructuring practice have given certain proceedings much more weightthan they had at the time when the EIR was originally negotiated and nalized: Tis isthe case especially with respect to proceedings that do notlead to the appointment o a

22 See H. Eidenmller, 7 European Business Organization Law Review 1 (2006), p. 239, 244 et seq.23 COM (2003) 284 nal, p. 16.24 See H. Eidenmller, Secured Creditors in Insolvency Proceedings, in H. Eidenmller and E.-M.

Kieninger (eds.), Te Future o Secured Credit in Europe (De Gruyter, Berlin 2008), p. 273, 281 et seq.25 See B. Hess et al., External Evaluation o Regulation (EC) No 1346/2000 on Insolvency Proceedings,

http://ec.europa.eu/justice/civil/les/evaluation_insolvency_en.pd (last visited on 10 March 2013),p. 36 et seq. Te CJEU seems to take the position that a listing in Annex A conclusively establishesthat a proceeding alls within t he scope o the EIR, see Case C-116/11 Bank Handlowy and Adamiak,Judgment o 22 November 2012, not yet offi cial ly reported, decision reported in 32 Zeitschrif rWirtschafsrecht (2012), p. 2403, 2404.


8/18

Legal Developments

140 20 MJ 1 (2013)

liquidator (c. Article 1(1) EIR) and are purely debtor-in-possession (DIP) proceedings.In addition, currently outside the scope o the EIR are pre-insolvency proceedings

that attempt to resolve nancial diffi culties o a debtor (long) beore nancial distressbecomes acute on the basis o a debtors cash ow or balance sheet. A good example oa pre-insolvency DIP proceeding is the UK Scheme o Arrangement, which is regulatedby Sections 895 901 o the Companies Act 2006. Much scholarly controversy currentlyocuses on the question concerning the circumstances under which English courts havejurisdiction to sanction a scheme affecting a debtor company that has its registeredoffi ce outside the UK. A related question concerns the circumstances under which otherMember States may (or must) recognize the effects o such a scheme.26It has been arguedthat, under the Brussels I-Regulation,27English courts have jurisdiction to administer ascheme over the assets o a company having its registered offi ce in another Member State

only with respect to claims that contain a choice o jurisdiction clause pointing to theUK.28Further, it has been argued that only claims that are governed by English law maybe subject to a scheme.29

Against this background, the Commission proposes a signicant expansion o thescope o the EIR (revised Article 1 EIR). More specically, the Commission proposesthat pre-insolvency and so-called hybrid proceedings (a term used by the Commissionor DIP proceedings) should be included within the scope o the EIR. Te Commissionsmain justication or this move is that only with such a ramework could a universalrecognition o the effects o such proceedings throughout the EU be achieved and thehold-out problem mitigated.30 Te latter problem reers to the strategic incentive o

creditors in restructurings to hold back cooperation, id est, insist on ull payment orhold-out, relying on all the others to make the necessary concessions. 31Te Commissionalso seeks to clariy the relationship between Article 1 EIR and its Annex A. It rightlyconsiders it unortunate that there currently are conceivable situations (that have evenbecome realities) in which proceedings listed in Annex A do not satisy the materialcriteria provided in Article 1(1) EIR.32o solve this problem, the Commission suggests

26 High Court o England and Wales (Ch), Rodenstock, EWHC(2011), p. 1104; High Court o Englandand Wales (Ch), ele Columbus, EWHC (2010), p. 1944; Bundesgerichtsho (Federal Supreme Courto Germany), Equitable Lie, 15 Neue Zeitschrif r das Recht der Insolvenz und Sanierung (2012),p. 425; H. Eidenmller and . Frobenius, Die internationale Reichweite eines englischen Scheme o

Arrangement, 65 Wertpapiermitteilungen (2011), p. 1210; P. Mankowski, Anerkennung englischerSolvent Schemes o Arrangement in Deutschland, 65 Wertpapiermitteilungen (2011), p. 1201; C.G.Paulus, Das englische Scheme o Arrangement ein neues Angebot au dem europischen Markt rauergerichtliche Restruktur ierungen, 23 Zeitschrif r Wirtschafsrecht (2011), p. 1077.

27 Regulation (EC) No. 44/2001 o 22 December 2000 on jurisdiction and the recognition and enorcemento judgments in civil and commercial matters, OJ L 12/1.

28 H. Eidenmller and . Frobenius, 65 Wertpapiermitteilungen(2011), p. 1210, 1213 et seq.29 Ibid.30 COM (2012) 743 na l, p. 6.31 H. Eidenmller, Unternehmenssanierung zwischen Markt und Gesetz(Otto Schmidt, Kln 1999), p. 21.32 COM (2012) 743 nal, p. 67.


9/18

Legal Developments

20 MJ 1 (2013) 141

a new wording or Article 1(1) EIR that would clearly indicate that a listing in Annex Awould be suffi cient to bring a proceeding within the scope o the EIR. At the same time,

the Commission wishes to ensure that only those proceedings that ull the materialcriteria enshrined in Article 1(1) EIR should make it into Annex A. o this end, theCommission proposes a revised Article 45(2) EIR that reads as ollows:

In order to trigger an amendment o Annex A, Member States shall notiy theCommission o their national rules on insolvency proceedings which they want tohave included in Annex A, accompanied by a short description. Te Commission shallexamine whether the notied rules comply with the condition set out in Article 1 and,where this is the case, shall amend Annex A by way o delegated act.

Te Commissions plan to extend the scope o the EIR is problematic or variousreasons. First, as a purely practical matter, the Commission probably has overlooked the

act that by giving a Member State the initiative to include a particular proceeding inAnnex A under the revised Article 45(2), a Member State might rerain rom pursuingthis option i the status quo appears to hold more benets or them. Tis might especiallybe the case with respect to the proceeding o greatest controversy: the UK Scheme oArrangement. Afer all, i this proceeding were included in Annex A, orum shopperscould get access to it only i they manuactured a (new) COMI in the UK, and doingthis can be very costly. We have empirical evidence that strongly suggests that highcosts are a signicant actor limiting bankruptcy orum shopping in the EU.33Hence,even though a particular pre-insolvency or hybrid proceeding may satisy the materialcriteria enshrined in Article 1(1) revised EIR, it might not all within its scope because a

Member State may simply rerain rom making an application or such a proceeding tobe included in Annex A.Second, as a matter o legal terminology, hybrid is an odd word or characterizing

DIP proceedings. Te US Chapter 11, or example, is a paradigmatic DIP proceeding, andno US bankruptcy lawyer would characterize this proceeding other than a bankruptcyproceeding. It surely would surprise an American bankruptcy scholar to learn thatChapter 11 is a hybrid proceeding.

Tird, and most importantly, the Commission does not have a concept covering whenuniversal recognition o a proceeding isjustied, and which proceedings should properlybe included within the scope o the EIR. Te proposal put orward on 12 December 2012

and the accompanying documents contain many statements displaying the conusion othe Commission as to what justies including a proceeding within the scope o the EIR.o give just two examples: Te Commission alludes to the criterion o condentiality asone that distinguishes those proceedings that should all outside the scope o the EIRrom those insolvency proceedings that should be covered by it. But private, contractualproceedings are supposed to all within that scope () as rom the moment [they]

33 H. Eidenmller et al., Regulierungswettbewerb im Unternehmensinsolvenzrecht, 13 Neue Zeitschrifr das Recht der Insolvenz und Sanierung(2010), p. 545, 547 et seq.


10/18

Legal Developments

142 20 MJ 1 (2013)

become[s] public.34I this were to be taken literally, the test would appear to be nearlyimpossible to apply in practice. Further, the proposed revised Article 1 EIR retains the

criterion o collectivity as an important actor or a proceeding to be included withinthe scope o the EIR. However, at the same time, the Commission characterizes pre-insolvency proceedings as semi-collective proceedings, and these proceedings, aswe already have seen, are suggested to all within the scope o the EIR. 35 Hence, therelevance o the criterion o collectivity remains ambiguous.

A convincing reorm o Article 1 EIR would indeed make the criterion o collectivitythe one and only criterion or including a proceeding within the scope o the Regulation.Te distinctive eature o insolvency proceedings is that they address a multi-partyprisoners dilemma associated with nancial distress: there are not enough assetsavailable to satisy all creditors claims, and each creditor has a dominant strategy to

seek ull payment o his or her claim; this is despite the act that some cooperative action,or example, a debt rescheduling or a stay on enorcement efforts, would be in the interesto the creditors as a whole.36 Insolvency proceedings impose a collective contract onthe creditors that replicates a hypothetical bargain. Given high transaction costs and thestrategic incentives or the parties in nancial distress, this bargain is usually somethingthat creditors are in no position to conclude ad hoc. Hence, only ully collectiveproceedings should be considered to be insolvency proceedings within the meaning oArticle 1 EIR, and the regulation should be reormed accordingly. Only proceedingsthat bind all creditors o a debtor should justiy universal recognition o their effects,which is the consequence o Article 16 EIR. Te upshot o this is that proceedings like the

UK Scheme o Arrangement would not even be a potential candidate or a proceedingcovered by the EIR regardless o whether the UK initiates its inclusion in Annex A ornot.

5. FORUM SHOPPING / COMI CONCEP

Te topic that has probably received the greatest attention in the rst 10 years o theEIRs existence is its rules on international jurisdiction with respect to main insolvencyproceedings. According to Article 3(1) EIR, [t]he courts o the Member State within theterritory o which the centre o a debtors main interests is situated shall have jurisdiction

to open insolvency proceedings. In the case o a company or a legal person, the place othe registered offi ce shall be presumed the centre o its main interests in the absence oproo to the contrary. Te COMI concept establishes a act sensitive test that is diffi cultto apply in practice. In the early years o the EIR, English courts, in particular, tended

34 SWD (2012) 416 nal, p. 6.35 Ibid., p. 48.36 .H. Jackson, Te Logic and Limits o Bankruptcy Law (Harvard University Press, Cambridge MA

1986), p. 10 et seq.; H. Eidenmller, Unternehmenssanierung zwischen Markt und Gesetz, p. 17 et seq.


11/18

Legal Developments

20 MJ 1 (2013) 143

to give the COMI concept a airly broad reading especially in group settings. Tis broadreading posited that the COMI o a subsidiary could easily be ound at the place o the

registered offi ce o the holding company.37Te CJEU, in its jurisprudence on Article 3(1)EIR,38attempted to narrow the scope o Article 3(1) EIR by ocusing on more objectiveactors discernible by the parties, especially a companys creditors. In doing so, the CJEUcould rely on recital 4 o the EIR, which explicitly stipulates as a goal the curtailing oincentives or parties to engage in orum shopping. In addition, recital 13 o the EIRestablishes an interpretative guideline or the COMI concept, whereby COMI ()should correspond to the place where the debtor conducts the administration o hisinterests on a regular basis and is thereore ascertainable by third parties.

Despite these judicial attempts to curtail orum shopping, such orum shopping isa ubiquitous phenomenon in European restructuring practice.39 Scholars continue to

debate whether all kinds o orum shopping should be condemned, and whether, andunder what conditions, European law should recognize a doctrine o abuse o law thatcould be applied to disallow (certain) attempts to manuacture a new COMI or thepurposes o orum shopping.40 It has also been suggested that the COMI concept bereplaced by a concept that makes the place o a companys registered offi ce the singledecisive criterion.41Alternatively, it has been suggested that the presumption in avouro the registered offi ce enshrined in Article 3(1) EIR should be taken more seriously.42Such moves would signicantly reduce the legal uncertainty currently stemming romthe application o the COMI concept. Moreover, i a companys registered offi ce were thesingle decisive criterion, this would also ensure that main insolvency proceedings would

always be tied to a jurisdiction that, under the incorporation doctrine, also provides thecompany law applicable to the business that nds itsel in insolvency proceedings.Te European Commission is aware that orum shopping exists. However, its

assessment o orum shopping is biased. Essentially, the Commission attempts to drawa distinction between businesses and individuals. In the assessment o the Commission,

37 See, or example, High Court o England and Wales (Ch), Re BRAC Rent-A-Car International Inc, (2003)2 All ER 201; High Court o England and Wales (Ch),Re Daisytek-ISA Ltd and others, Bankruptcy andPersonal Insolvency Reports (2004), p. 30; High Court o England and Wales (Ch), Enron Directo SA(unreported).

38 Case C-341/04 Euroood IFSC Ltd; Case C-396/09 Interedil, decision reported in 14 Neue Zeitschrif

r das Recht der Insolvenz und Sanierung(2011), p. 990; Case C-191/10 Rastelli Davide e. C., decisionreported in 15 Neue Zeitschrif r das Recht der Insolvenz und Sanierung(2012), p. 147.

39 H. Eidenmller et al., 13 Neue Zeitschrif r das Recht der Insolvenz und Sanierung(2010), p. 545, 547et seq.

40 Eidenmller, Abuse o Law in the Context o European Insolvency Law, 6 European Company andFinancial Law Review 1 (2009), p. 1; P.M. Reu, aking Creditors or a Ride Insolvency ForumShopping and the Abuse o EU Law, 53 Seoul Law Journal3 (2012), p. 667.

41 H. Eidenmller, Free Choice in International Company Insolvency Law in Europe, 6 EuropeanBusiness Organization Law Review3 (2005), p. 423, 447.

42 J. Armour, Who Should Make Corporate Law? EC Legislation versus Regulatory Competition, 58CurrentLegal Problems(2005), p. 369, 408.


12/18

Legal Developments

144 20 MJ 1 (2013)

orum shopping with respect to businesses is (always) benecial. Te beneciary o suchrestructuring orum shopping efforts is the UK. Tis, so the Commission believes, is

because o () the exible regime or restructuring companies offered by English law() [that] attracts companies rom other European jurisdictions.43And yet, according tothe Commission, orum shopping with respect to individuals is a different matter. Here,the primary beneciary o insolvency tourism is France. Such insolvency tourism occursin practice because o the different discharge periods that various European jurisdictionshave in their insolvency laws. Forum shopping to obtain a shorter discharge periodharms an individuals creditors. According to the Commission, this is a consequencethat should be avoided: Bankruptcy tourism is problematic ().44

Tis simple distinction between good business orum shopping to the UK and badindividual orum shopping to France is overly simplistic. What needs to be examined

is not whether orum shopping actions are taken by businesses or individuals. Rather,the decisive actors are the various motives o orum shoppers and the effects o orumshopping actions on the assets available or distribution to the creditors.45 Forumshopping undertaken to increase the available assets or distribution to creditors isbenecial and should not be sanctioned. By contrast, orum shopping motivated purelyby distributive goals and undertaken to increase the asset share or the orum shopperhas no value-enhancing effects and is detrimental. Most likely, individual orumshopping, based on these criteria, almost always is undertaken or merely distributivemotives. For this reason, it is problematic. Business orum shopping, however, cannotbe categorized as always benecial, contrary to what the Commission wants observers

to believe. Indeed, there are cases o business orum shopping that are motivated byincreasing restructuring value. However, there are also cases where such orum shoppingis undertaken not or effi ciency reasons but rather to exploit non-adjusting creditorsor other third parties. A notable example is the Brochiercase, which led to a veritablejurisdiction battle between the English and German courts a couple o years ago.46Inaddition, the German Federal Supreme Court has already dealt with a case in whicha German limited liability company orum shopped to Spain in order to bury thecompany there and deraud its creditors.47Hence, a better approach to the problem oorum shopping would be to differentiate between different orms o orum shoppingand, more specically, between orum shopping undertaken or effi ciency purposes and

orum shopping undertaken or distributive reasons.

43 SWD (2012) 416 nal, p. 2122.44 SWD (2012) 417 nal, p. 5.45 H. Eidenmller, 6 European Company and Financial Law Review1 (2009), p. 1, 10.46 High Court o England and Wales (Ch), Hans Brochier Holdings Ltd v Exner, (2007) BCC 127 = EWHC

(2006), p. 2594; Amtsgericht Nrnberg (Court o rst instance Nuremberg), Hans Brochier Holdings, 10Neue Zeitschrif r das Recht der Insolvenz und Sanierung (2007), p. 185; Amtsgericht Nrnberg, HansBrochier Holdings, 10Neue Zeitschrif r das Recht der Insolvenz und Sanierung(2007), p. 186.

47 Bundesgerichtsho (Federal Supreme Court o Germany), 81 Die deutsche Rechtsprechung au demGebiete des Internationalen Privatrechts (2007), p. 722.


13/18

Legal Developments

20 MJ 1 (2013) 145

One way o accomplishing this would be to apply an abuse o law doctrine, aspreviously noted. COMI shifs undertaken or purely distributive reasons could be

considered abusive and hence irrelevant or the purposes o establishing internationaljurisdiction or main insolvency proceedings. An even better approach to address abusiveorum shopping would be to replace the COMI concept with the registered offi ce as thesingle decisive criterion or determining international jurisdiction with respect to maininsolvency proceedings, as noted above as well.48 Tis solution would not only bringnear-absolute certainty to the determination o international jurisdiction. It would alsoensure that the company law rules applicable to a specic business and the applicableinsolvency rules would always belong to the same jurisdiction. Tis would considerablyease the handling o insolvency proceedings and avoid unnecessary rictions associatedwith conicting insolvency and company law provisions. Finally, the proposed solution

would likely eliminate abusive COMI shifs because a change in a companys registeredoffi ce can, under the existing European legal ramework, only be undertaken on thebasis o the rules adopted by the Member States to implement the 10 th company lawdirective on cross-border mergers.49Tis directive contains important saeguards withrespect to the interests o a companys stakeholders, most notably its creditors.50Hence,changing the registered offi ce o a company would be possible only by observing certainprocedural saeguards that prevent abusive shifs rom occurring.

Unortunately, the Commission does not seek to pursue this route. It suggests thatthe EU retain the COMI concept, rene it slightly by incorporating major elements o theCJEU jurisprudence in Article 3(1) EIR, and make the Member States courts examine

ex offi ciowhether they have jurisdiction pursuant to Article 3 EIR in an internationalinsolvency case (rened Article 3b EIR).51For the oregoing reasons, this must be viewedas a distinctly second-best approach. Te ambiguity and uncertainty associated withthe application o the COMI concept in restructuring practice will remain with us inthe uture. It remains to be seen whether and how the Member States courts respondto abusive COMI shifs through the application o a European doctrine o abuse o law clearly this would not reduce the uncertainty associated with the COMI concept andmay even increase it. Moreover, the Commissions position is contradictory: on the onehand, it praises the COMI concept because it allegedly assures a genuine connection o

48 Clearly, the proposed solution would be assisted by a European-wide commercial (company) register.However, it also works on the basis o the current system o national registers o the Member States.

49 Directive 2005/56/EC o the European Parliament and the Counci l o 26 October 2005 on cross-bordermergers o limited liability companies, [2005] OJ L 310/1.

50 See Art icles 6(2)(c) and 7(1).51 Te Commission also suggests a new Article 3a EIR, whereby courts o the Member State, within which

insolvency proceedings have been opened pursuant to Article 3, shall have jurisdiction or any actionthat derives directly rom the insolvency proceedings and is closely linked with such proceedings.Tis new provision would codiy the so-called vis attractiva concursusprinciple. On this issue, see M.Prager and C. Keller, Der Vorschlag der Europischen Kommission zur Reorm der EuInsVO, 16 NeueZeitschrif r das Recht der Insolvenz und Sanierung (2013), p. 57, 59 et seq.


14/18

Legal Developments

146 20 MJ 1 (2013)

an insolvency proceeding to a particular jurisdiction.52Yet, on the other hand, it praisesbusiness orum shopping to the UK. But you cannot have it both ways: Te purpose

o the COMI concept is to establish a barrier against allorms o orum shopping. Bycontrast, making the registered offi ce the single decisive criterion or determininginternational jurisdiction with respect to main insolvency proceedings does allow ororum shopping, but it does so only i procedural saeguards regarding the interests o acompanys stakeholders are observed.

6. MULIPLICIY OF PROCEEDINGS

Te undamental policy issue regarding transnational bankruptcies is the question o

whether a universalist or territorialist approach should be adopted. Under universalism,there is just one proceeding over the assets o a debtor with world-wide effect, id est,regardless o the assets location. By contrast, territorialism implies a (potential)multiplicity o proceedings in all jurisdictions in which the debtor has assets, with the effecto each proceeding being limited to the respective jurisdictions.53On theoretical grounds,universalism is supported by much stronger (economic) arguments: it is associated withlower transaction costs, it acilitates restructurings, it prevents an international assetrace, and it does not skew investment decisions.54 In comparison to these advantages,the act that universalism burdens creditors to pursue claims in a oreign orm does notcarry much weight, especially given the decreasing costs o cross-border lings associatedwith developments in modern communication technologies. Nevertheless, the world-wide regulatory trend is not towards straightorward universalism, but rather towardswhat can be termed modied or mitigated universalism. Under such a system, thereis a single main insolvency proceeding with principally world-wide effect, but also thepossibility o territorial proceedings with local effect. Tis is the approach, or example,embodied by the UNCIRAL Model Law on Cross-Border Insolvency.55 It is also theapproach o the EIR.

Despite the compelling arguments in avour o universalism, the EuropeanCommission sticks to the existing approach in principle. However, it attempts to reducethe negative effect o territorial proceedings on restructuring value. As mentioned, theCommission introduces the possibility o synthetic secondary proceedings (rened

52 SWD (2012) 416 nal, p. 19.53 G. McCormack, Universalism in Insolvency Proceedings and the Common Law, 32 Oxord Journal

o Legal Studies 2 (2012), p. 325, 327; S. Franken, Cross-Border Insolvency Law: A ComparativeInstitutional Analysis, http://papers.ssrn.com/sol3/papers.cm?abstract_id=2047399 (last visited5 March 2013).

54 On the investment incentive effects o territorialism, see L.A. Bebchuk and A.. Guzman, An EconomicAnalysis o ransnational Bank ruptcies, 42Journal o Law & Economics2 (1999), p. 775, 793 et seq.

55 UNCIRAL Model Law on Cross-Border Insolvency (1997), www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model.html (last visited 27 February 2013).


15/18

Legal Developments

20 MJ 1 (2013) 147

Article 18(1) and new Article 29a(2) EIR) and quashes the liquidation restriction currentlyembodied in Article 3(3) EIR (rened Article 3(3) EIR). Moreover, the Commission

seeks to improve the coordination between main and secondary insolvency proceedingsby extending the cooperation and communication regime to the courts involved(revised Articles 31a and 31b EIR), and by explicitly allowing agreements or protocols aslegitimate orms o cooperation (revised Article 31(1) second sentence, new Article 31a(3)(d) EIR).56

Again, this is a distinctly second-best approach or addressing the centralregulatory problem in international bankruptcies. Synthetic secondary proceedingsare conditioned on an undertaking by the liquidator appointed in the main insolvencyproceeding that guarantees local creditors a treatment replicating their position underreal secondary proceedings. Synthetic secondary proceedings address some o the

problems associated with secondary proceedings such as higher transaction costs orproblems with respect to transnational restructurings. However, the condition justdescribed retains one o the underlying aws o territorialism, namely, that it mightskew investment decisions. Moreover, whenever the required undertaking is not given,the ull machinery o a main proceeding, coupled with a potential multiplicity osecondary proceedings, may be set in motion, with all the negative economic effects,or example, high transaction costs, this imposes on transnational restructurings.Agreeing to a bankruptcy contract in a complex transnational corporate restructuring,or example, is an extremely complicated and costly task, and the costs might even sky-rocket i disputes under such a contract arise and enorcement issues surace. Conict

regarding the cooperation duty specied in the EIR is all the more likely, since theregulation nowhere species the precise conditions in which a cooperation duty o theinvolved liquidators and/or courts would arise and the exact content o such a duty. Itis submitted that the correct standard would be the achievement o a Pareto-superioroutcome, id est, the possibility o enhancing the net value o the assets available ordistribution in all proceedings involved.57

Summing up the discussion, the Commission retains the modied universalistapproach o the EIR even though the arguments or straightorward universalism arecompelling. Te Commission seeks to improve the coordination between main andsecondary insolvency proceedings. But these efforts might prove counter-productive

since they could potentially impose higher transaction costs.

56 Such protocols or agreements are essentially bankruptcy contracts, see H. Eidenmller, Der nationaleund der internationale Insolvenzverwaltungsvertrag, 114 Zeitschrif r Zivilprozess (2001), p. 3, 5.

57 H. Eidenmller, Verahrenskoordination bei Konzerninsolvenzen, 169 Zeitschrif r das gesamteHandels- und Wirtschafsrecht (2005), p. 528, 533 et seq., 535.


16/18

Legal Developments

148 20 MJ 1 (2013)

7. REAMEN OF CORPORAE GROUPS

A nal topic o major concern to the European Commission and its reorm proposals isthe treatment o corporate groups in international insolvencies. Te current regulatoryramework does not contain rules on this issue. Moreover, English courts broad readingo Article 3(1) EIR in the early years o the EIR was primarily motivated by the concernto achieve an effi cient administration o multiple insolvencies in group settings. TeCommission thereore rightully believes that it is necessary to address this issue andprovide rules or inclusion in the EIR with respect to the handling o group insolvencies.When considering various policy options,58 the Commission does not considersubstantive consolidation as a possibility. Such consolidation is an option in the UnitedStates, where courts have allowed a pooling o assets and liabilities in group settings

under certain circumstances.59 It is unnecessary to criticize the Commission or notconsidering this option. Quite the contrary: substantive consolidation has detrimentaleconomic ex anteeffects, as the pricing o credit risks might become (extremely) diffi cult.Instead, the Commission proposes a model o procedural coordination, whereby thecommunication and cooperation regime in place with respect to main and secondaryinsolvency proceedings regarding the same debtor would be extended to multiple mainproceedings over the assets o distinct debtor companies that are all part o a corporategroup (new Articles 42a, 42b, 42c, and 42d EIR).

Again, this reorm proposal by the European Commission is a step orward.However, it alls short o what would be a much more effective orm o enhancing

the administration o group insolvencies. Tis more effective orm is proceduralconsolidation. Under procedural consolidation, one insolvency court would bedesignated in charge o the multiple (main) insolvency proceedings over the assets omultiple debtors within the group setting. Also, only one insolvency administratorwould be appointed with respect to these multiple proceedings. A proposal along theselines has just recently been put orward in a discussion paper o the Federal Ministry oJustice in Germany regarding group insolvencies in (purely) domestic settings.60It isclearly much more effective to coordinate a multiplicity o proceedings by having thesame individuals or institutions in charge o these proceedings, rather than providingor complicated and costly coordination mechanisms such as bankruptcy contracts.61

Tere are no convincing arguments as to why this reorm cannot or should not also

58 SWD (2012) 416 nal, p. 31 et seq.59 See, or example, U.S. Supreme Court, Sampsell v. Imperial Paper & Color Corp., 313 (1941) U.S. 215; or

urther case law c. C.J. abb, Te Law o Bankruptcy(2ndedition, Tomson Reuters, New York 2009),p. 242 et seq.

60 See 3a, 3b, 56b revised Insolvenzordnungbased on the discussion paper o the German Ministry oJustice, www.rws-verlag.de/leadmin/zbb-volltexte-3/20130103_DiskE_Konzerninsolvenzrecht_-_Versendung.pd (last visited 27 February 2013).

61 H. Eidenmller, 169 Zeitschrif r das ge samte Handels- und Wirtschafsrecht (2005), p. 528, 537.


17/18

Legal Developments

20 MJ 1 (2013) 149

be undertaken on the European level with respect to transnational bankruptcies.As an aside, I should like to add that the group concept used by the Commission is

also more restrictive than that used by the recent reorm proposal in Germany.62TeEuropean proposal restricts the coordination regime to group settings involving a parentcompany and at least one subsidiary company. In contrast, the German proposal alsocovers settings in which many companies operating on the same level are united by aunitary management on the basis o a contractual agreement. Also in the latter settings,cooperation and coordination o a multiplicity o insolvency proceedings involvingmany debtors can be benecial.

o conclude, the European Commission attempts to achieve progress with respectto the administration o cross-border insolvencies in group settings by extending theEIRs communication and coordination regime with respect to main and secondary

insolvency proceedings also to multiple main insolvency proceedings over many debtorsbound together in a corporate group. Tis is a step orward, but again, proceduralconsolidation would have been comparatively more easible and effi cient than theprocedural coordination proposed by the Commission.

8. SUMMARY

Based on a careul review o the EIRs application in practice during the 10 years since itentered into orce, the European Commission, on 12 December 2012, published a reportassessing that application and providing a proposal or the EIRs reorm. It is probablyair to characterize this proposal as a modest attempt to cautiously and careully improveupon the status quo. In many respects, the proposal, i enacted, would indeed bringprogress. At the same time, in other respects, it clearly alls short o what is both easibleand necessary to signicantly improve the international governance ramework ortransnational bankruptcies.

Tis essay has attempted to highlight some o the shortcomings o the Commissionsproposal. Te main ndings o the paper can be summarized as ollows:

(1) Te Commissions proposals are not based on sound regulatory objectives. Preservingbusinesses is not an end in itsel.

(2) Te Commission is too cautious regarding the harmonization o substantiveinsolvency laws o the Member States. Especially with respect to the duties o managerso companies in nancial distress and security rights in movables, harmonizationmeasures o the EU are necessary now.

62 Contrast Article 2(i) and (j) revised EIR with 3a, 4 o the revised Insolvenzordnungbased on thediscussion paper o the German Ministry o Justice.


18/18

Legal Developments

150 20 MJ 1 (2013)

(3) Te scope o the EIR should be restricted to (ully) collective proceedings. Tecollective nature o proceedings should be the one and only criterion or a proceeding

to all within the scope o the EIR.(4) Te COMI concept should be substituted by the registered offi ce. Tis would

signicantly improve legal certainty and, at the same time, encourage only benecialorum shopping that is welcomed by all stakeholders o a company.

(5) Te modied universalist approach o the EIR should be given up in avour ostraightorward universalism.

(6) Procedural consolidation with respect to multiple insolvency proceedings regardingmany debtors in a group setting is more effi cient than procedural coordinationproposed by the Commission.

Given the overly modest and unambitious nature o the EU Commissions proposals,these proposals hopeully will not become even more diluted in the course o thelegislative process at the European level. European businesses need an effi cient regulatorygovernance structure or transnational bankruptcies that will remedy signicantdeciencies in the current structure. Tey cannot wait another decade or progress tobe made in this regard.63And they need such a structure not only or intra-communitycross-border insolvencies but also with respect to non-European states something thatthe EIR couldprovide but does not do so currently.64

63 Unortunately, the reorm process is urther complicated by the peculiar position o the UK withrespect to itle V o Part Tree o the FEU. I the Commissions proposals are adopted, and the UKdoes not opt into the amending measure, it may nd itsel out o the EIR completely, i.e., even theexisting measure would no longer be binding upon or applicable to it, see COM (2012) 744 nal, p. 10.Tis would be a most undesirable consequence.

64 On this issue, see note 1 above. Unortunately, the EU Commission does not perceive any need toextend the scope o the EIR to cover the relationship with non-European states, see COM (2012) 743nal, p. 8.

A New Framework for Business Restructuring in Europe: Th e EU Commission’s Proposals for a Reform...

Documents

Transcript of A New Framework for Business Restructuring in Europe: Th e EU Commission’s Proposals for a Reform...