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
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
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;