Regulation (EC) 1346/2000 on insolvency proceedings has been recasted by Regulation (EU) 2015/848 of 20 May 2015.

The revision aims to bring the current Regulation up to date in relation to the process that EU commenced towards a new approach on insolvency and business failure, which stresses the role of rescue and restructuring as crucial means to give the debtor a second chance.

All the resulting amendments naturally are conceived of with a view to strengthen the efficiency in a cross-border insolvency administration, without overlooking rights and interests of creditors and third parties.

This contribution provides a first critical overview of the main revision’s novelties so as to assess whether and to what extent Regulation 2015/848 may reach the objectives targeted by the EU legislator.

SOMMARIO:

I. Main purposes of the revision. - II. A broader scope resulting from the new European approach on insolvency. The aim to avoid regulatory loopholes with the Brussels I Regulation (recast). - III. Innovations in matters of jurisdiction. - IV. Examination as to jurisdiction. - V. The codified vis attractiva. - VI. Ensuring the dominance of the main proceedings. The undertaking regime. - VII. Critical remarks on the undertaking regime. - VIII. The reinforced framework of cooperation. - IX. Critical remarks on that framework. - X. Mandatory publicity regime. - XI. Facing the insolvency of a group of companies: the cooperation ... - XII. ... and the coordination proceeding. - XIII. Critical remarks on proceeding. - XIV. Concluding remarks. - NOTE

I. Main purposes of the revision.

Regulation (EC) 1346/2000 on insolvency proceedings [1] (“Regulation 1346/2000”) has been recasted by Regulation (EU) 2015/848 of 20 May 2015 [2] (“Regulation 2015/848”) at the end of a legislative process started in 2012 with a Proposal of the Commission [3], and marked by a strong interest of Council and Parliament [4]. Regulation 2015/848 came into force on 26 June 2015, but the bulk of its provisions will apply from 26 June 2017. The provisions concerning information on national insolvency laws apply from 26 June 2016, while those concerning the establishment and interconnection of insolvency registers will be operative from 2018 and 2019 respectively. The revision modifies Regulation 1346/2000 primarily with a view to ensuring a smooth functioning of the internal market and its resilience in economic crises, having also regard to the case law of the Court of Justice meanwhile developed around the same Regulation [5]. The new Regulation reflects the new European approach on insolvency and business failure [6], which parallels and fosters policies that certain Member States had earlier implemented in forging part of the national insolvency regime upon the 1997 UNCITRAL Model Law on Cross-Border Insolvency and related legislatives guides [7]. Following the new European approach on insolvency, the revision stresses the role of rescue and restructuring as crucial means to give the debtor a second chance. In other words, the revision’s underlying policy consists in extending Regulation 1346/2000 to proceedings aimed for entrepreneurs to retain business activity while coping with a crisis. Even Regulation 2015/848 does not apply to Denmark. Nor does it cover proceedings relating to insurance undertakings, credit institutions, collective investments firms, and all firms whose insolvency falls within Directive 2001/24/EC on the reorganisation and winding up of credit institutions [8]. Nevertheless, against the backdrop of the ongoing financial crisis, the above-mentioned new approach on insolvency also encompasses measures applicable to financial and credit institutions [9]. As the new approach includes non-entrepreneurial insolvency, because of its impact on EU’s interest and market, the revision also includes proceedings that address the insolvency of persons acting out of business (such as professional providers or consumers). Moreover, Regulation 1346/2000 [continua ..]

II. A broader scope resulting from the new European approach on insolvency. The aim to avoid regulatory loopholes with the Brussels I Regulation (recast).

Regulation 2015/848 applies to public collective proceedings, including interim and pre-insolvency proceedings, which are based on laws relating to insolvency and aim at rescue and restructuring, debt adjustment, reorganisation or liquidation. For such purposes, the debtor may be totally or partial divested of its assets and an insolvency practitioner be appointed, while assets and affairs are subject to control or supervision by a court. Certain included proceedings aim to face temporary crises or situation where there is only a likelihood of insolvency, i.e. situation not such as to warrant the opening of “normal” insolvency proceedings [15]. Those proceedings should aim at avoiding the debtor’s insolvency or the cessation of its activities (Art. 1). As a result, also non-based-on-insolvency proceedings qualify as “insolvency proceedings” for the purpose of Regulation 2015/848. Annex A lists the proceedings falling within Regulation 2015/848, whilst non-listed national procedures are excluded therefrom (Recital 9). In doing so, Annex A provides a clear-cut confine of the Regulation. Actually, so do Annexes A and B in respect of Regulation 1346/2000 according to the Court of Justice [16]. That wide range of insolvency proceedings should avert regulatory loopholes between Regulation 2015/848 and the Brussels I Regulation (recast) [17], which does not apply to «bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings» (Art. 1(2)(b)). It should be noted, though, that the «mere fact that a national procedure is not listed in Annex A [...] should not imply that it is covered» by the Brussels I Regulation (recast) (Recital 7 of Regulation 2015/848). Moreover, proceedings based on general company law not designed exclusively for insolvency “situations” fall outside Regulation 2015/848 (Recital 16). Therefore, it may be that national insolvency proceedings not listed in Annex A meet the requirements of Art. 1(2)(b) of the Brussels I Regulation (recast), but since Annex A is exhaustive, they will fall outside both of Regulations. In these cases, national law will apply. Otherwise, proceedings which meet the requirement of Art. 1 of Regulation 2015/848, but are based on general company law not designed exclusively for insolvency “situations” [continua ..]

III. Innovations in matters of jurisdiction.

The grounds of jurisdiction for opening the proceedings coincide with those of Regulation No. 1346/2000. However, as for the “centre of main interests” (“COMI”), Art. 3 enshrines, with certain adaptations, the contents of Recital 13 of Regulation 1346/2000, thereby defining the COMI as the «place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties». Recitals inspired to Eurofood and Interedil judgments have been inserted to further clarify concept and functioning of the COMI, especially in case of companies [26]. The COMI of individuals expressly – but on presumptive basis – corresponds to the “principal place of business” in case of independent businessmen or professional providers, and to the habitual residence in any other case (Art. 3 (1)). With the view to containing fraudulent or abusive forum shopping practices [27], such presumptions will only apply if the registered office/principal place of business/habitual residence has not been moved to another Member State within a relevant period prior to the request to open the proceedings. In particular, the presumption of the coincidence between registered office and COMI will not apply when the former has been moved to another Member State within three month before the request to open the main proceedings (Art. 3 (1)) [28]. That is to say that only transfers of registered office occurring prior to the three-month period presumptively determine transfers of COMI. Anyway, even in absence of presumptions, i.e. in case of within-three-month transfers of registered office, the court seized of the request to open the proceedings may assess on factual basis that the COMI lies in or outside its territory. In this regard, it should be borne in mind that relocations of registered office (along with those of COMI) are protected by the EU freedom of establishment. Thus, both the time-frame requirement and the court’s assessments should only target abusive forum shopping – by which the debtor purports to harm creditors and third parties who have legitimate expectation on what procedural and substantive rules should be applied in case of insolvency – without hampering the debtor’s choice as to where to carry out the activity. The provision addresses intra-EU transfers only. As a consequence, the presumption should [continua ..]

IV. Examination as to jurisdiction.

Once requested to open the proceedings, the court will rule on jurisdiction on its own motion, and then specify the ground on which the jurisdiction is based (Art. 4). In other words, the court is called on to clarify in the judgment whether it is the COMI’s or the establishment’s court and, accordingly, what type of proceedings (main or secondary) it has opened [33]. The same statements address the insolvency practitioners when proceedings have been opened without a court’s decision (Art. 4 (2)). The provision actually refers, on the one hand, to proceedings “opened” irrespective of a court’s decision, but on the other, to a “pending” request for opening. As a result, it seems to allude to proceedings not requiring an immediate judiciary activity or cases in which national law allows the court to appoint an insolvency practitioner without commencing a proceeding [34]. The judgment opening the proceedings may be challenged just on grounds of jurisdiction both from debtor and creditors (Art. 5): debtor and creditor may so appeal not only for lack of jurisdiction under any grounds of the Regulation, but also for a jurisdiction that has been declared on a wrong ground. As an example, the court might have opened the main proceedings, whilst it actually belongs to the Member State of the establishment. Parties other than debtor and creditors may challenge the opening on same ground if the lex fori so provides. Any consequence of the review is governed by the lex fori [35]. Recital 33 redundantly suggests that the court, after finding that COMI lies abroad, should not open main proceedings. Accordingly, a court not finding an establishment in its territory should not open secondary proceedings. No assessments are required about where COMI or establishment are really located, nor a fortiori may the court transfer the proceedings to courts having jurisdiction. Anyway, nothing in the Regulation prevents the reviewing judgment and the effects thereof from being recognized abroad under the principle of mutual recognition. It goes without saying that the main consequences of a review will unfold when different requests to open are pending in two or more Member States. In particular, problems arise as to the coordination between a request to open, pending in a State, and a review of an opening, pending in another State. That may encourage demands of review for derailing or [continua ..]

V. The codified vis attractiva.

Vis attractiva over “ancillary” proceedings finds an expressed provision in the new Regulation, which makes the example of the avoidance actions (Art. 6). Recital 35 refers also to actions concerning obligations that arise in the course of the insolvency proceedings, such as advance payment for proceedings’costs. Regulation 2015/848 to great extent codifies the Court of Justice’s case law in matters of «actions which derives directly from the insolvency proceedings and are closely linked with them». That case law filled in the gaps of Regulation 1346/2000. Actually, actions to set aside by virtue of insolvency and related judgments are subject to certain provisions addressing the applicable law and the recognition/enforcement of judgments. Actions to set aside belong to the category of measures devoted «to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors», that are governed by the lex concursusaccording to Art. 4(2)(m). Judgments stemming from actions to set aside pertain to the category of decisions «deriving directly from the insolvency proceedings and which are closely linked to them», which under Art. 25(1) enjoy the same regime of recognition and enforcement that applies to judgments opening the proceedings [37]. Regulation 2015/848 replicates this framework. As for jurisdiction, it may prove fitting to remind the main principles endorsed by the Court of Justice to better appreciate the novelty of the new Regulation and the interplay thereof with the Brussels I Regulation (recast). From the well-known Gourdain judgment onwards [38], the Court of Justice has constantly stressed that the Brussels I’s exception covers only actions and decisions which derive directly from the bankruptcy or winding-up and are closely connected with the proceedings aimed at realising the assets or establishing judicial supervision. In Deko Marty judgment, rendered under Regulation 1346/2000, the Court measured the jurisdiction of the court opening the main proceedings over an based-on-insolvency action to set aside brought by a liquidator against a third party with seat in a Member State different from that of the insolvency proceedings. The Court of Justice held that, although Regulation 1346/2000 provides no jurisdiction criteria for “ancillary actions”, nevertheless it covers actions excluded from [continua ..]

VI. Ensuring the dominance of the main proceedings. The undertaking regime.

As noted, Regulation 2015/848 intends to improve the balancing between efficient insolvency administration and protection of local creditors [51], who are those «whose claims against a debtor arose from or in connection with the operation of an establishment situated in a Member State» other than that of the COMI (Art. 2, No. 10). Even in the new Regulation’s framework, the secondary proceedings, although conceived of initially as a protection for local creditors, may prove to be useful tools for achieving the optimum insolvency management of the main proceedings, thereby acting as «auxiliary proceedings to the main proceedings» [52]. By the same token, Regulation 2015/848 stresses, on the one hand, that the opening of secondary proceedings serves the protection of local creditors and in certain complex cases the main proceedings’ purposes (Recital (40)), but, on the other hand, that secondary proceedings may «hamper the efficient administration of the insolvency estate» (Recital (41)). Regulation 1346/2000 lacks provisions that clearly bind the courts of the Member State of the establishment to weigh features and purposes of the main proceedings when ruling on the request to open a secondary proceeding. Moreover, it follows from the Court of Justice’s case law that such features and purposes may obstruct the opening of secondary proceedings for «criteria as to appropriateness» only insofar as the law of the establishment so provides [53]. The lack of coordination and sensitivity as to features and purposes of the main proceedings arises when local creditors seek the opening of secondary proceedings. This threatens the efficient insolvency administration, particularly when the main liquidator aims at restructuring without using the secondary proceedings that the local creditors conversely seek to open. The threat to the efficient insolvency administration intensifies when several secondary proceedings are opened in different Member States where the national laws governing the liquidation process diverge or lack provision for measures alternative to the liquidation. Unlike the current regime, Regulation 2015/848 firstly allows also the opening of non-liquidating secondary proceedings so as to give the main insolvency practitioner different options for better coordinating and implementing restructuring plans in both the [continua ..]

VII. Critical remarks on the undertaking regime.

Undoubtedly, the undertaking regime needs a practical implementation before assessing its usefulness. However, certain obstacles come into light at first glance. As for the creditors approval, even though Art. 36 (5) calls for the application of local provisions concerning the restructuring plan, there are doubts on the adherence of these rules to an unilateral act such as the undertaking, which seems not to be negotiable. Moreover, neither listed nor clear are the means to communicate the approval. General speaking, they lack uniformity, as does the formal validity regime except for the requirement of the written form. Possible other requirements provided for by the State of the main proceedings are in fact permitted. Nor the approval may be communicated to local creditors only, as Art. 37 (2) sets forth a time limit for requesting the opening of secondary proceedings which runs from the notice of the approval in relation to all those (persons or authority) that may file a request under the law of the State where the request is submitted in the instant case. There could be obstacles also for creditors to reach the approval whenever preferential rights stemming from the COMI’s lex concursus conflict with the pari passu ranking provided for by the local lex concursus in relation to one or more claims. More generally, the success of the “synthetic proceedings” depends on the discretionality of the court seized of the request to open the secondary pro­ce­e­d­in­gs. Effectively, Art. 38 (2) makes the “synthetic proceedings” con­di­tio­nal u­pon the local creditors’general interest irrespective of the undertaking. The as­sessement of creditors’interest pertains to the courts, which are not com­pel­led by the undertaking and have to look after the interest also of cre­di­tors not taking part to the approval. Nor easy will it be to determine involved assets as well as to resolve conflicts between priority rights: Art. 36 (2) provides a rule whereby the relevant point in time will be the moment at which the undertaking is “given”, but such a moment may be different from that of the creditors’approval. Actually, creditors should rely on the time of the approval rather than on that when the undertaking is given. After all, only an undertaking “given” and “approved” “shall be [continua ..]

VIII. The reinforced framework of cooperation.

It is well known that, since a debtor may have only one COMI and an indefinite number of establishments, Regulation 1346/2000 admits that a single main proceeding and several secondary proceedings may coexist against the same debtor. The coordination among such proceedings amounts to a crucial objective of the Regulation because the opening of more than one proceeding entails that the crisis covers more than one state. Accordingly, the EU interest in a smooth and efficient insolvency administration intensifies. Should secondary proceedings be opened, Regulation 2015/848 – like its predecessor – calls on the involved insolvency practitioners to cooperate with each other, but it expressly extends the cooperation regime to the courts (Artt. 41-43). The same commitment turns up with certain adaptations when the request of opening is still pending. Many aspects of that regime are governed by the Regulation irrespective of the insolvency practitioners’ roles, tasks and powers stemming from the lex concursus. The insolvency practitioners hold in the Regulation (as they do in Regulation 1346/2000) a distinct position with respect to the cooperation requirement as a result of scope and purposes of the proceedings, as well as of the general aim to ensure the dominant role of the main proceedings. As a matter of principle, the main burden of cooperation rests on the primacy of the main insolvency practitioner. Courts and insolvency practitioners are also required to take account of principles and guidelines adopted by European and international organizations active in the area of insolvency law, such as the UNCITRAL Practice Guide on Cross-Border Insolvency Cooperation adopted in support of Art. 27, UNCITRAL Model Law (Recital 48) [57]. For instance, the courts may coordinate with each other to appoint the insolvency practitioners, while courts and insolvency practitioners may enter into protocols and agreements to facilitate cross-border cooperation and to coordinate the administration and supervision of the debtor’s assets and affairs. In particular, by virtue of Art. 41, insolvency practitioners are entitled to enter into agreements or protocols for better exchanging information, exploring the possibility of restructuring and coordinating the administration of the assets (or the realisation thereof). Agreements and protocols may vary in form (written or oral) and scope (generic or detailed) [58]. Both of [continua ..]

IX. Critical remarks on that framework.

Regulation 2015/848 gives the impression of setting out a maximum level of cooperation/coordination and imposing only a duty to try to com­municate/cooperate. The first impression is firstly due to the provisions which requires the cooperation to comply with «the rules applicable to the respective proceedings» as a sort of caveat for insolvency practitioners and courts (Artt. 41, 42 and 43) [60]. Thus, courts and practitioners are urged to scrupulously look after the proceedings’rules before concluding agreements, protocols or whatsoever they have in mind to implement the cooperation. Examples matching the caveat could be: 1) mandatory participation of public authorities during the proceedings which prevents (in whole or in part) one practitioner from entering into protocols or agreements on its own ini­tia­ti­ve; 2) presence of public bodies among the creditors which requires the ap­pli­ca­tion of special rules for the approval of restructuring plans; 3) substantive prio­rity rules which contrast with the claims’ranking that practitioners agree on in the protocols. Actually, that caveat is somewhat redundant. For instance, whenever the cooperation addresses the realisation of assets, all the practitioners must comply already with the leges concursus due to Art. 21 (3) already. More explicitly, Art. 21 (3) binds insolvency practitioners to comply with the law of the Member State where the assets are situated, which will coincide with the lex fori concursus whenever the assets lie in the State of the proceedings. Moreover, should protocols or agreements infringe national rules on confidential information, the cooperation would be wrongful not as much for breach of national laws as for not meeting the uniform condition established by Art. 41(2)(a) in the same matters. In addition, certain uniform provisions restrict means/contents of the cooperation. First, Art. 49 compels the secondary insolvency practitioner to transfer possible remaining assets to the main one irrespective of what the agreement/protocol provides for. Second, Art. 54 binds courts and insolvency practitioners to inform immediately the known foreign creditors: such duty applies irrespective of possible arrangements in the agreement/protocol. The same provision lists minimum mandatory information (time limits, penalties, bodies and authorities [continua ..]

X. Mandatory publicity regime.

Member States are called on to establish publicly accessible electronic registers containing information on cross-border insolvency cases (Art. 24). Moreover, all national registers will be interconnected with each other through the European e-Justice Portal (Art. 25). The advantages of this mandatory regime are apparent. Creditors and third parties will benefit from having knowledge of: 1) the ground of jurisdiction on which the proceedings have been opened (so as to challenge the opening or infer the universal/territorial scope of the proceedings therefrom); 2) the time when the proceedings have been opened or closed (so as to determine whether/when proceedings have effects); 3) the type of proceedings (so as to assess their liquidating or restructuring purposes); 4) the name of debtor and insolvency practitioner (so as to figure on the person against whom recover their claim or, in case of multiple proceedings, with whom concur in meeting the claim); 4) the time limits for lodging the claim and related penalties (so as to assess the consequences of delayed lodgements). The publicity regime will enhance the participation of foreign creditors particularly, i.e. those who have the habitual residence, domicile or registered office in a Member State different from that of the proceedings, including tax authorities and social security authorities of Member States (Art. 2, No. 12). Their right to lodge claims – enshrined in Art. 53, to which a duty of information corresponds under Art. 54 – will be further facilitated by using a standard form, which is deferred to an implementing act of the Commission (Artt. 55 and 88). The new regime also assists those who honour obligations for the benefit of the debtor [62]. As with Art. 24 of Regulation 1346/2000, Art. 31 of Regulation 2015/838 discharges only persons who honour the obligations in a Member State due to the unawareness of an insolvency proceeding opened in another Member State. In this regard, the provision establishes a iuris tantumpresumption whereby being unaware or aware of the insolvency proceedings depends on having honoured the obligation before or after the judgment opening the proceedings has been published according to Art. 28. A mandatory regime of publicity plainly will make it easier for the third parties’ignorance to be excused or not. Certain protective rules concerning personal data have been inserted because, as noted, Regulation [continua ..]

XI. Facing the insolvency of a group of companies: the cooperation ...

The revision also addresses the insolvency proceedings relating to members of a group of companies by introducing detailed provisions that strive to ensure the efficiency of the insolvency administration. Since “group of companies” means a «parent undertaking and all its subsidiary undertakings» according to Art. 2 (No. 13) and “parent undertaking” qualifies as an «undertaking which either directly or indirectly controls one or more subsidiary undertakings» according to Art. 2 (No. 14), the notion of “group” may include both small groups and groups of individual enterprises for the purposes of Regulation 2015/848. Art. 2 (No. 14) presumptively characterizes as a “parent undertaking” an undertaking which prepares consolidated financial statements in accordance with Directive 2013/34/EU of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings [63]. The new Regulation fills in the gap of Regulation 1346/2000, which provides no specific basis to determine the jurisdiction in case of insolvency proceedings concerning members of a group [64]. In doing so, Regulation 2015/848 draws inspiration from the UNCITRAL Model Law and the Legislative and Practice Guides thereof [65]. The compliance with the separate-legal-entity principle, applicable to each company, explains why Regulation 1346/2000 lacks expressed rules in the matters. The Court of Justice’s words are illustrative: «the mere fact that company’s economic choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption [of the coincidence between COMI and registered office with respect to the controlled company] laid down by the Regulation» [66]. That is to say that the Member State where each company has its registered office retains jurisdiction to open main proceedings, and that there could be as many proceedings as the members of the group are, irrespective of their position and task within the group [67]. Moreover, should the company have one or more establishments outside the registered office, multiple proceedings concerning the same company could be opened. Thus, the presumption of the coincidence between COMI and registered office may be rebuttable, but in relation to each company. This may lead to finding that all of the companies have the [continua ..]

XII. ... and the coordination proceeding.

An insolvency practitioner may request – to any court having jurisdiction over the insolvency proceedings of a member – the opening of a «group coordination proceeding» (Artt. 61-77). The Regulation theoretically allows to commence coordination proceedings even if multiple insolvency proceedings have been opened in respect of the same member. The coordination proceeding aims to further facilitate the group restructuring. It must have a generally positive impact for the creditors (Recital 57) and should be worth the costs: that means that costs of the coordination should be sustainable and adequate having regard to the purposes of each involved insolvency proceedings (Recital (58)). It should be immediately noted that even the coordination proceeding entails no consolidation among the proceedings: for the sake of clarity, it is referred to as “coordination” proceeding rather than as “insolvency proceeding”. Here again, any efforts the legislative process made to reduce the drawbacks of a fragmented insolvency administration were useless against the separate-legal-entity dogma. Recital 54 is illustrative in stating that the coordination proceeding «should strive to ensure the efficiency of the coordination, whilst at the same time respecting each member’s separate legal personality». Nevertheless, should different proceedings be opened in the same State against the group’s companies because their COMI is located therein, the lex concursus could permit a consolidation among them. The request to open a consolidation proceeding should include a proposal on the person who will act as a ‘coordinator’, an outline of the coordination plan, the list of all insolvency practitioners appointed in the proceedings concerning the members and an outline of the estimated costs (Art. 61). The participation of other insolvency practitioners (and, hence, other proceedings) rests on a voluntary basis (see the regime of the “objections” enshrined in Artt. 64, 65 and 67 – even applicable as regards the proposed coordinator – and that of subsequent “opt-in” (Art. 69 (a)). If multiple insolvency practitioners apply for a coordination proceeding – and, thus, multiple courts are requested to open the proceeding –, then Art. 62 gives priority to the first-seized court: the others must decline jurisdiction. However, at least [continua ..]

XIII. Critical remarks on proceeding.

Undoubtably, the coordination proceedings should ameliorate the ad­mi­nistration of multiple proceedings affecting the members as well as the re­struc­­turing of entire corporate groups, especially the big and highly inter­min­gled ones. Lacking uniform procedural consolidation, the group coordination pro­cee­dings seems a good alternative way to better handle an insolvency distressing a group. Moreover, since the insolvency practitioners may choose the court having jurisdiction to open the coordination proceedings, coordination proceedings and “central” insolvency proceedings (namely that of the parent company) may well overlap for the sake of an efficient insolvency administration. Conversely, all the conditions and (substantive and procedural) re­qui­re­ments established by Regulation 2015/848 risk making the coordination u­s­e­l­e­s­s. Those conditions/requirements naturally reflect the primary aim to strike a balance between the efficiency of a group insolvency administration and the separate-legal-entity principle, as do the opt-out/in regime and the non-binding value of the coordinator’s decisions. Yet, they represent the weakness of the coordination proceedings. Attention to costs, to conflicts of interests, to creditors and third parties’ position in each proceedings further explains why the legal framework of the coordination proceedings stems from a compromise and, thus, proves quite complex. Once again, the success of the coordination will principally depend on the will of each insolvency practitioner initially to opt in and cooperate with the coordinator afterwards. For these reasons, the EU legislator could have provided for a binding role of the coordinator at least when all of the insolvency practitioners opt in and they all enter into a choice-of-court agreement to open the coordination proceeding. Finally, the interaction between the group-of-companies rules and the transitory regime of Art. 84 may give rise to uncertainty. Indeed, the transitory regime may reveal its major drawbacks just as to the group of companies. As noted above, Art. 84 states that Regulation 2015/848 will apply only to insolvency proceedings opened after 26 June 2017, whilst Regulation 1346/2000 shall continue to apply to proceedings that have been opened beforehand. Should the proceeding of a member fall within Regulation 1346/2000, whilst those of other [continua ..]

XIV. Concluding remarks.

Financial and economic crisis throughout Europe require effective and efficient multiple-level answers that take account of increasing insolvencies and comparable situations affecting persons and companies that act in more than one state. EU had to decide what efficiency and effectiveness mean in respect of these situations, which also involve – and result from – the activity of persons different from entrepreneurs or businessmen. Studies and legislative processes marked the mistake of perceiving the insolvency proceedings as a procedural sanction against debtors and emphasized the need to give the debtor a “second chance” in an environment of rescue rather than liquidation. Alongside the idea of a “second chance”, the need to face insolvencies and comparable situations smoothly and quickly presses debtors and creditors. Nevertheless, the need of smoothness and quickness may not outweigh that of certainty and clarity, to which any device at disposal of insolvency actors is inspired and that represents a feature of the right to a fair trial when insolvency falls under an in-court proceeding. Besides, an up-to-date approach on insolvency must give prominence to restructuring proceedings as proceedings through which “parties” to a financial crisis/insolvency reach reciprocally satisfying outcomes. From the foregoing analysis, one infers that Regulation 2015/848 should give a high-quality answer to the challenges of the new approach on insolvency. Nor should be underestimated its positive contribute – with the support of the Court of Justice – to lead ahead the EU private international law towards an uniform system lacking regulatory loopholes as regards actions and proceedings in civil and commercial matters. However, such high quality may not hide the weaknesses that undertaking regime, cooperation among multiple proceedings, and coordination proceedings have revealed.

NOTE