The harmonization of the european laws on insolvency

Author:Luminita Tuleasca
Position:Lecturer, Ph.D., Faculty of Law, Romanian-American University, Attorney-at-law, Bucharest Bar Association
Pages:144-161
SUMMARY

The harmonization of the European legislations on insolvency, in reference to the problems related to the substantive law of insolvency, represents a new stage, required by the European legislative process. The outline and analysis of the current problems of European, cross-border insolvency, of its causes and effects at the European Union level and, in particular, of the solutions proposed for... (see full summary)

 
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144 Lex ET Scientia. Juridical Series
LESIJ NO. XVIII, VOL. 1/2011
THE HARMONIZATION OF THE EUROPEAN LAWS
ON INSOLVENCY
Luminia TULEAŞC
Abstract
The harmonization of the European legislations on insolvency, in reference to the problems
related to the substantive law of insolvency, represents a new stage, required by the European
legislative process. The outline and analysis of the current problems of European, cross-border
insolvency, of its causes and effects at the European Union level and, in particular, of the
solutions proposed for the elimination of such problems, represents the concern of this paper. The
INSOL EUROPE Report - Academic Forum "The harmonization of the laws on the insolvency at
the European Union level" represents a first and important scientific step in this matter, and,
therefore, this European document represents the starting point for analysing the utility and the
means of harmonizing the European laws on insolvency, as a solution to the present difficulties
generated by the cross-border insolvency at the EU level, from the view of the Romanian law and
based on the Romanian experts opinions.
Keywords: cross-border insolvency, European laws harmonization, INSOL Europe
Report.
I. Introduction
1. As always, the reality represents the harshest test of the laws and, from this perspective,
the laws on cross-border insolvency could not be an exception.
The outline and analysis of the current problems regarding the European, cross-border
insolvency, of the causes and effects of the same at the EU level, but, in particular, of the solutions
proposed for their elimination, represents the main concern of this paper.
For the right approach of this topic, very actual in the specialized literature, is important to
present the current legislative context with a view to the relevant European laws, to the main
problems related to the cross-border insolvency and of the main cause of it: major regulatory
disparities in the insolvency matter, at the level of the EU member states.
The comparative law approach is an essential aspect of the insolvency: the admissibility
conditions for opening the insolvency procedure on which there are various regulations, as
above-mentioned, is a mandatory step supporting the need to harmonize the European laws in the
insolvency matter.
Of similar importance is also the outline of the practical aspects, of the cross-border
insolvency cases, of those involving Romanian legal entities and Romanian citizens, as well as
those settled by the competent courts of our country.

Lecturer, Ph.D., Faculty of Law, Romanian-American University, Attorney-at-law, Bucharest Bar Association;
The article has been drafted under the Research Grant offered by the INSOL Europe Academic Forum with the
generous sponsorship of Edwin Coe LLP.
Luminita Tuleasca
145
LESIJ NO. XVIII, VOL. 1/2011
And last, but not least, as the harmonization of the European insolvency laws have been
proven and accepted, it is useful to present and analyze the means for achieving such an objective,
from the perspective of the document that will comprise all the uniform norms in the matter of
insolvency and of the legal nature of the European legal instrument on insolvency.
The paper grounds on the Romanian and foreign specialized literature for grounding its
analyses, although it worth mentioning the fact that the number of the specialized studies on the
harmonization of the substantive laws on insolvency at the European level is quite limited.
II. The current legislative framework – European and national regulation on
cross-border insolvency
2. The extension of the trade companies’ activities beyond the borders of a state has
entailed, naturally, the reality of the cross-border insolvency.
The cross-border insolvency rises complex and multiple problems, the difficulties being
entailed by the legislative disparities, the substantive laws and procedural laws, by the conflict of
jurisdiction and state-related laws, where the debtor’s insolvency must be initiated, the conditions
for opening the insolvency proceedings, the law called forth for applying the insolvency, the
international effects of insolvency, a.s.o.
All these difficulties corroborated with the impact of these procedures on the proper
function of the internal markets have required the drafting of legislative instruments representing
uniform relevant instruments.
At the European level, the first and the most important step has been taken by means of the
Regulation (CE) no. 1346/May 29th 2000 regarding the insolvency proceedings, effective as of
May 31st, 2002 (hereinafter referred to as the Regulation)1, harmonizing the most important
aspects of the international insolvency: conflicts of jurisdiction and conflicts of laws, attempting to
harmonize the laws on companies in distress and the expedient settlement of the conflicts of laws
and jurisdiction in bankruptcy matter2.
In fact, the Regulation represents the first international conflict-solving objective
instrument in the insolvency matter having direct applicability in a large number of states: all the
member states of the European Union and of the European economic area, except for the
Denmark.
In our country, as a result of the transposition in the internal laws of the directly applicable
European laws, the cross-border insolvency is regulated by the Law no.637/2002 on the regulation
of the international private law relations in the insolvency law3.

1 Regulation (CE) no.1346 of 29 May 2000 on insolvency procedures, published in the OJEC L 160/1 on
30.06.2000, p.143-160; available in Romanian at:://www.just.ro/Portals/0/CooperareJudiciara/Legislatie
Comunitara/1346%20insolventa.pdf>> (last visited on December 10th 2010);
2 L.Idot, C.Saint-Alary-Houin, Procedures collectives-Droit communautaire en gestion, J.-Cl.Europe, Fsc.871
quoted in Michel Jeantin, Paul Le Cannu, Droit du Commerce International, 2e edition, Dalloz, Paris, 2000., no.
555, p.360; Daniela Claudia Muntean,
“Current developments in the bankruptcy laws” that has taken place in Dubrovnik-Croatia, during 16-18
November 2005>>, in R.D.C. no. 3/2006, p.174; I.Turcu, “Creation of the European bankruptcy law (II)”, R.D.C.
no. 4/2001, p.13 and following.; Bob Wessels, “Improving the operation of the EU Insolvency regulation”, Revista
Romana de Drept al Afacerilor (Romanian Business Law Magazine), Supplement, I/2007, p.22;
3 Law no.637 on 07.12.2002 on the regulation of the international private law relations in the insolvency field,
published in the Official Monitor, Part I no. 931 in 19.12.2002;

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