Amending regulation (EC) NO.1346/2000 on insolvency proceedings - Solving deficiencies or attempt to rescue companies in difficulty?

• Author: Gabriela Fierbinteanu
• Position: PhD Candidate, research assistant, Faculty of Law, 'Nicolae Titulescu' University, Bucharest
• Pages: 7-14

LESIJ NO. XX, VOL. 2/2013

AMENDING REGULATION (EC) NO.1346/2000 ON INSOLVENCY

PROCEEDINGS - SOLVING DEFICIENCIES OR ATTEMPT TO

RESCUE COMPANIES IN DIFFICULTY?

Gabriela FIERBINEANU

Abstract

EC Insolvency Regulation claims, after more tha n 10 years, several changes imposed by some of the

issues raised by the practice of its application but also b y the need to p romote economic recovery for

enterprises in difficulty in the current economic crisis.

This paper analyzes the major segments of change a nd aims to determine whether thes e segments

provide a coherent answer for the practica l difficulties faced by the EC Regulation and whether extending its

scope by revising the definition of insolvency pr oceedings may offer better c hances of recovery for the

enterprises in difficulty.

Keywords: scope, insolvency pr oceedings, COMI, procedures publica tion, groups of

companies.

Introduction

Regulation no.1346/2000 on insolvency proceedings is no longer a subject of curiosity or

debate. It passed this phase lo ng ago during the years of application. The problems raised by the

practice during those years are not some abstract scientific notes but real questions having roots

in the economic reality.

The actual need to rescue enterprises during the current economic crisis claimed a new

approach of the Regulation and for this purpose, all existing debates generated mature ideas for

changing the face of the Regulation. As professor Űob Wessels observed in his article “Revision

of the EU Insolvency Regulation: What type of facelift?”

1, “The regulation has laid a basis for

cross-border insolvency solutions. Some parts in th e basis should be renewed, other parts should

be added to create a European house in which one can live with some comfort”.

This paper analyses the major segments of change by comparison with initial recitals and

aims to determine whether these segments provide a coherent answer for the practical difficulties

faced by the EC Regulation and whether extending its scope by revising the definition of

insolvency proceedings may offer better chances of recovery for the enterprises in difficulty.

The offer of the Regulation no 1346/2000 on insolvency proceedings

The Insolvency Regulation is the product of a hard and long negotiation process having in

mind that a body of substantive insolvency Law at EU level is not possible to be achieved because

of so many disparities between national insolvency laws. This reality was acknowledged also in

the eleven Recital of the Regulation, being also the reason for not forcing the obvious truth by

trying to introduce insolvency proceedings with universal scope in the entire Community.

 PhD Candidate, research assistant, Faculty of Law, “Nicolae Titulescu” University, Ű ucharest; Chief

of Insolvency Service, Trade Register Office Bucharest (e-mail: gabriela.fierbinteanu@gmail.com).

1 Wessels Űob, “Revision of the EU Insolvency Regulation: What type of facelift?”, article presented at

the űonference “The future of the European Insolvency Regulation”, 28 April 2011, Amsterdam, available at

www.eir-reform.eu.