ARTICLE 36 OF REGULATION 2015/848: CRISIS AND INSOLVENCY ‘NEGOTIATION LAW‘: SYNTHETIC SECONDARY PROCEEDINGS.
Article 36 of Regulation 2015/848 represents an important innovation in insolvency proceedings as its enforcement may have the effect of avoiding the opening of secondary proceedings. According to such an Article, the insolvency practitioner in the main proceedings may give an undertaking to the group of creditors. If the majority of them will approve it, the secondary proceedings will not be open.
In other words, ‘the undertaking‘ is a unilateral deed signed by the insolvency practitioner which has positive effects just upon the approval of the qualified majority of the creditors.
Art. 36 of Regulation 2015/848, as well as the protocols, is an important factor in what can be defined as the ‘crisis negotiation law‘ which is increasingly gaining ground within the European insolvency procedure system, as it ensures greater cooperation and better harmonization in handling insolvency proceedings.
In general, the undertaking of the insolvency practitioner ensures creditors that the number of their claims and the allocation of profits will be governed by local law, just as if secondary proceedings had been opened.
The undertaking, therefore, may avoid the simultaneous opening of secondary insolvency proceedings that are incompatible with the main proceedings and unnecessary for the interests of local creditors. Basically, the insolvency practitioner of the main proceedings, in order to guarantee the interests of the local creditors, gives the undertaking to handle them in the main proceedings as if the secondary proceedings had been opened.
The insolvency practitioner gives a unilateral undertaking to ensure that, with regards to the assets located in the Member State in which secondary proceedings could be opened, he will comply with the distribution and priority rights under national law that creditors would have if the insolvency proceedings were opened in that State.
Pursuant to Article 35 of Reg. 2015/848, the secondary proceedings shall be governed by the national law where the establishment is located. As a result, the undertaking simulates its opening and, in relation to local assets, complies with the lex fori consursus secondarii, thus derogating Article 7(i) of the Regulation, which identifies as the applicable law the law of the State of the opening of proceedings.
Four conditions are necessary to enable the undertaking to be operative: the appointment – even provisionally – of an insolvency practitioner of the proceedings, the existence of an establishment of the debtor in a Member State other than the one where the main proceedings have been opened, the existence of local creditors and the existence of local assets in the territory of the Member State where the debtor’s establishment is located.
The undertaking shall be made in the official language or one of the official languages of the Member State where the secondary procedure could have been opened and shall be made in writing.
The undertaking shall specify the factual assumptions on which it is based, the expected realization of the assets located in the Member State, and an analytical description of the possible options available.
For its approval, the affirmative vote of the known local creditors is required. The rules on qualified majority and voting that apply to the adoption of restructuring plans under the law of the Member State where secondary proceedings could have been opened shall also apply to the approval of the undertaking.
If approved, the undertaking has the effect of binding all the debtor’s estate. Once it is ratified, the insolvency practitioner may challenge the opening of secondary proceedings before the courts of the Member State in which they were initiated, on the ground that the requirements of Article 38 of the Regulation have been disregarded.
Specifically, Art. 38 of the Regulation requires the State court where the establishment is located to verify carefully that the undertaking adequately protects the interests of local creditors.
Approval of the undertaking does not preclude in itself the opening of secondary proceedings because the court may consider that the agreement reached between the insolvency practitioner and the creditors does not effectively protect the latter’s interests.
An interesting aspect of the undertaking is the fact that it is governed by the rules of different sources.
In its general aspects, it is governed by the law of the Regulation, while for other aspects the principal lex concursus and the secondary lex concursus apply alternately.
More specifically, the principle lex concursus regulates the formal requirements of the agreement, such as the requirement that it be in writing, while the secondary lex concursus determines the necessary majorities for the approval of the undertaking, which are the same as those established for the approval of restructuring plans.
The secondary lex concursus definitely plays a very important role in the undertaking because its purpose is to ensure maximum protection for creditors with regard to the distribution of assets and the amounts of claims.
The scope of the secondary lex concursus is not general as it is expressly regulated by Art. 36. If the undertaking was not given or the secondary procedure was not opened, everything governed by the secondary lex concursus would be governed by principal lex concursus.
Consequently, the approval of the undertaking excludes the application of the principal lex concursus on the matters submitted in a virtual manner to the secondary lex concursus, which will be the one to govern the interests of local creditors.
In particular, in the event that the secondary procedure was open, the lex concursus would be applicable under Article 35 without derogating the principal lex concursus.
In other words, the secondary lex concursus is applicable only in specific cases, whereas the principal lex concurus has a general scope as it also regulates the insolvency practitioner’s liability.
This article will be followed by other ones dealing with EU legislation on cross-border crisis management.
For more information on this, please contact: