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IL DIRITTODELL’UNIONE EUROPEA

2/2016

In copertina:SEBASTIAN MÜNSTER, Cosmographie Universelle, 1544.

G. Giappichelli Editore – Torino

IL DIRITTODELL’UNIONE EUROPEA

Direttore ANTONIO TIZZANO

2/2016

© Copyright 2016 - Il Diritto dell’Unione EuropeaRegistrazione presso il Tribunale di Firenze al n. 3773 del 28.11.1988R.O.C. n. 25223 (già RNS n. 23 vol. 1 foglio 177 del 2/7/1982)

Direttore responsabile: Antonio Tizzano

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Fondata da:Alberto Predieri e Antonio Tizzano

Direttore:Antonio Tizzano

Comitato ScientificoRicardo Alonso García, Sergio Maria Carbone, Giorgio Gaja, Francis Ja-cobs, Jean-Paul Jacqué, Koen Lenaerts, Riccardo Luzzatto, Paolo Men-gozzi, Miguel Poiares Maduro, Joël Rideau, Vassilios Skouris, Giuseppe Tesauro, Christiaan Timmermans, Thomas Von Danwitz

RedazioneRoberto Adam, Roberto Baratta, Enzo Cannizzaro, Massimo Condinanzi, Luigi Daniele, Filippo Donati, Roberto Mastroianni, Giuseppe Morbidelli, Francesco Munari, Bruno Nascimbene, Luca Radicati di Brozolo, Lucia Serena Rossi

Coordinamento della RedazioneSusanna Fortunato

La Rivista pubblica articoli attinenti direttamente o indirettamente ai profili giuri-dico-istituzionali del processo d’integrazione europea.Gli articoli, redatti in italiano, francese, inglese o spagnolo, devono essere originali e inediti. La loro pubblicazione è subordinata ad una rigorosa selezione qualitati-va. A tal fine, i contributi vengono valutati, senza indicazione del nome dell’autore o altri riferimenti che ne consentano l’identificazione, da qualificati studiosi della materia, anche esterni alla redazione della Rivista. I revisori potranno indicare le modifiche ed integrazioni che giudicano necessarie; in questo caso, la pubblicazio-ne dell’articolo sarà subordinata al rispetto di tali indicazioni da parte dell’autore.L’accettazione del contributo impegna l’autore a non pubblicarlo altrove nella sua interezza o in singole parti, se non previo consenso scritto della direzione della Rivista e alle condizioni da essa stabilite.Gli articoli devono essere inviati tramite posta elettronica all’indirizzo mail della redazione ([email protected]) in formato word (est. doc), con carattere Times New Ro-man, corpo 12, interlinea singola, completi di un sommario e dell’apparato di note a piè pagina. Essi devono essere corredati dalla traduzione del titolo in inglese e da un breve (non più di 10 righe) abstract, ugualmente in inglese.

VII Il Diritto dell’Unione Europea Fasciolo 2| 2016

Il Diritto dell�’Unione EuropeaFascicolo 1| 2016

Fondato da:

Alberto Predieri e Antonio Tizzano

Direttore:Antonio Tizzano

Comitato scientificoRicardo Alonso García,

Sergio Maria Carbone, Giorgio Gaja, Francis Jacobs, Jean-Paul Jacqué, Koen Lenaerts, Riccardo Luzzatto,

Paolo Mengozzi, Miguel Poiares Maduro, Joël Rideau,

Vassilios, Skouris, Giuseppe Tesauro,

Christiaan Timmermans, Thomas Von Danwitz

RedazioneRoberto Adam, Roberto Baratta,

Enzo Cannizzaro, Massimo Condinanzi, Luigi Daniele, Filippo Donati, Roberto Mastroianni,

Giuseppe Morbidelli, Francesco Munari, Bruno Nascimbene,

Luca Radicati di Brozolo, Lucia Serena Rossi

Coordinamento della Redazione Susanna Fortunato

In memoria: Benedetto Conforti e Luigi Ferrari Bravo 191

S. RODIN, A Metacritique of the Court of Justice of the European Union 193

SAGGI e COMMENTI

A. LEANDRO, A First Critical Appraisal of the New European Insolvency Regulation 215

O. POLLICINO, Della sopravvivenza delle tradizioni costituzionali comuni alla Carta di Nizza: ovvero del mancato avverarsi di una (cronaca di una) morte annunciata (On the Survival of the Common Constitutional Traditions to the Nice Charter: or rather, on the Non-Materialization of a (Chronicle of a) Death Foretold) 253

A. RIZZO, Profili giuridico-istituzionali della politica di sicurezza e difesa comune dell�’Unione europea (Legal and Institutional Aspects of the Common Security and Defence Policy of the Euro-pean Union) 285

L.S. ROSSI, �“Stesso valore giuridico dei Trattati�”? Rango, primato ed effetti diretti della Carta dei diritti fondamentali dell�’Unio-ne europea (The �“Same Legal Value as the Treaties�”? Rank, Primacy and Direct Effects of the EU Charter of Fundamental Rights) 329

C. TOVO, Il Fondo europeo per gli inve-stimenti strategici: statuto giuridico, profili istituzionali e funzionamento (The European Fund for Strategic Investments: Legal Status, Institutional Aspects and Functioning) 357

VIII Il Diritto dell’Unione Europea Fasciolo 2| 2016

CONVEGNI

P. MENGOZZI, La responsabilità dello Stato per atti del potere giudiziario: dalla sen-tenza Köbler alla sentenza Ferreira da Sil-va e Brito (The Liability of the State for Acts of the Judiciary: from the Köbler Ruling to the Fer-reira da Silva e Brito Ruling) 401

NOTIZIE SUGLI AUTORI 417

Il Diritto dell’Unione Europea Fasciolo 2| 2016

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A First Critical Appraisal of the New European Insolvency Regulation Antonio Leandro

SUMMARY 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 coopera-tion. – 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.

I. 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.

1 [2001] OJ L 160/1. 2 [2015] OJ L 141/19. 3 COM (2012) 744 final of 12 December 2012. 4 On the revision process see S. BARIATTI, P.J. OMAR (eds.), The Grand Project: Reform of

the European Insolvency Regulation, Paper from the INSOL Europe Academic Forum and Academy of European Law Joint Insolvency Conference Trier, Germany, 18-19 March 2013 and the INSOL Europe Academic Forum Annual Conference Paris, France, 25-26 September 2013, Nottingham, 2014; see also S. BUFFORD, Revision of the European Union Regulation on Insolvency Proceedings – Recommendations, in Int. Insolvency Law Rev., 2012, p. 341; ID, Im-proving the Revision of the European Union Regulation on Insolvency, available on the web-site of the International Insolvency Institute at www.iiiglobal.org; H. EIDENMÜLLER, A New Framework for Business Restructuring in Europe: The EU Commission’s Proposals for a Re-form of the European Insolvency Regulation and Beyond, in Maastrich Journal Europ. Comp. Law, 2013, p. 133; P. FAZZINI, M. WINKLER, La proposta di modifica del regolamento sulle


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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 infor-mation 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 en-suring a smooth functioning of the internal market and its resilience in eco-nomic crises, having also regard to the case law of the Court of Justice mean-while 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 re-

procedure di insolvenza, in Dir. comm. int., 2013, p. 141; A. LEANDRO, Amending the European Insolvency Regulation to Strengthen Main Proceedings, in Riv. dir. int. priv. proc., 2014, p. 317.

5 See particularly judgments of 17 January 2006, C-1/04, Staubitz-Schreiber, [2006] E.C.R. I-701; 2 May 2006, C-341/04, Eurofood IFSC Ltd, [2006] E.C.R. I-3813; 12 February 2009, C-339/07, Seagon v. Deko Marty Belgium NV, [2009] E.C.R. I-767; 2 July 2009, C-111/08, SCT Industri, [2009] E.C.R. I-5655; 10 September 2009, C-292/08, German Graphics, [2009] E.C.R. I-8421; 21 January 2010, C-444/07, MG Probud Gdynia sp. z o.o., [2010] E.C.R. I-417; 20 Octo-ber 2011, C-396/09, Interedil, [2011] E.C.R. I-9915; 17 November 2011, C-112/10, Zaza, [2011] E.C.R. I-11525; 15 December 2011, C-191/10, Rastelli [2011] E.C.R. I-13209; 19 April 2012, C-213/10, F-Tex SIA, EU:C:2012:215; 5 July 2012, C-527/10, ERSTE Bank Hungary Nyrt, EU:C:2012:417; 8 November 2012, C-461/11, Ulf Kazimierz Radziejewski, EU:C:2012:704; 22 November 2012, C-116/11, Bank Handlowy w Warszawie SA, EU:C:2012:739; 19 September 2013, C-251/12, Grontimmo SA, EU:C:2013:566; 18 April 2013, C-247/12, Meliha Veli Mustafa, EU:C:2013:256; 16 January 2014, C-328/12, Schmid, EU:C:2014:6; 4 September 2014, C-327/13, Burgo Group, EU:C:2014:2158; 4 September 2014, C-157/13, Nickel & Goeldner Spedi-tion, EU:C:2014:2145; 4 December 2014, C-295/13, H, EU:C:2014:2410.

6 See the communications of the European Commission “Single Market Act II – Together for new growth” (COM(2012)573 final, 3 October 2012); “A new European approach to business failure and insolvency” (COM(2012)742 final, 12 December 2012) and “Reigniting the entrepre-neurial spirit in Europe” (COM(2012)795 final, 9 January 2013). Furthermore, on 12 March 2014 the Commission adopted the recommendation on a new approach to business failure and insolvency (2014/135/EU) with the view of encouraging «coherence between the national insol-vency frameworks in order to reduce divergences and inefficiencies which hamper the early re-structuring of viable companies in financial difficulties and the possibility of a second chance for honest entrepreneurs, and thereby to lower the cost of restructuring for both debtors and credi-tors». The recommendation adds that greater coherence and increased efficiency in the national insolvency rules «would maximise the returns to all types of creditors and investors and encour-age cross-border investment» and «would facilitate the restructuring of groups of companies irre-spective of where the members of the group are located in the Union» (Recital 11). Removing the barriers to effective restructuring of viable companies in financial difficulties contributes, in turn, «to saving jobs and also benefits the wider economy» (Recital 12).


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gime 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 sec-ond chance. In other words, the revision’s underlying policy consists in ex-tending Regulation 1346/2000 to proceedings aimed for entrepreneurs to re-tain 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 in-

stitutions, 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 profes-sional providers or consumers).

Moreover, Regulation 1346/2000 proved to be unable to reach objectives

7 The UNCITRAL Model Law was adopted on 15 December 1997 by resolution No. 52/58 of the UN General Assembly. A Guide to Enactment and Interpretation as well as guidelines on more detailed profiles (such as the cooperation among authorities involved in the proceed-ings and the group-of-companies insolvency) followed. All documents may be available at www.uncitral.org. On the Model Law see, among others, L. GHIA, Gli obiettivi della Guida legi-slativa sull’insolvenza dell’UNCITRAL, in Fallimento, 2005, p. 1229; ID., Norme UNCITRAL, in Il nuovo diritto fallimentare. Commentary edited by A. JORIO and coordinated by M. FABIANI, I, Bologna, 2006, p. 240; R.W. HARMER, UNCITRAL Model Law on Cross-border Insolvency, in Int. Insolvency Rev., 1997, p. 145; S. ISHAM, UNCITRAL’s Model Law on Cross-border Insolven-cy: a Workable Protection for Transnational Investment at last, in Brooklyn Journ. Int. Law, 2001, p. 1177; K. YAMAUCHI, The UNCITRAL Model Cross-Border Insolvency Law: The Stay of Proceedings and Adequate Protection, in Int. Insolvency Rev., 2004, p. 87; E.C. HOLLANDER, R.A. GRAHAM, UNCITRAL Model Law on Cross-Border Insolvency, in K. PANNEN (ed.), Europe-an Insolvency Regulation, Berlin, 2007, p. 687; L. PANZANI, L’insolvenza transfrontaliera. Le procedure d’insolvenza tra globalizzazione dell’economia e concorrenza di ordinamenti, in G. LO CASCIO (ed.), Codice commentato del fallimento, Milan, 2008, p. 1937.

8 [2001] OJ L125/15. 9 Directive 2001/24/EC has been amended – along with other measures – by Directive

2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms [2014] OJ L 173/90. Directive 2014/59 sets forth, inter alia, remarkable means to coordinate cross-border bank insolvency proceedings.


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that insolvency operators deem crucial, such as the defence of restructuring plans in the main proceedings when the opening of secondary proceedings is requested, the efficient coordination among proceedings opened against the same debtor, and the efficient administration of insolvency concerning mem-bers of a group of companies.

All the resulting amendments naturally are conceived of without overlook-ing rights and interests of creditors and third parties 10.

To summarize, the revision: a) takes in both proceedings aimed at giving the debtor a “second chance”

and those concerning individuals different from entrepreneurs or businessmen; b) strengthens the current jurisdictional framework in terms of certainty and clarity; c) improves the coordination among multiple proceedings opened against the same debtor, as well as the balancing of efficient insolvency ad-ministration in the main proceedings against the protection of local creditors; d) reinforces the publicity of the proceedings; e) deals with cross-border in-solvencies affecting a group of companies.

On the other hand, the revision slightly addresses the applicable law be-cause the current regime raises no significant criticism.

However, Artt. 11 (2) and 13 (2) are noteworthy because they allow managing, as regards contracts relating to immovable property and contracts of employment respectively, the effects of the insolvency laid down by the (local) lex contractus when the insolvency is handled abroad in the main proceedings.

In particular, pursuant to Art. 13 (2), the courts of the Member State where the debtor has an establishment – i.e. the place where the employee habitually carries out his work or has been engaged presumptively – retain jurisdiction to approve the termination or modification of employment contracts even if no secondary proceedings occur in that State, if such termination or modification were to require a court’s approval 11.

Art. 18 extends to pending arbitration proceedings the rule whereby the ef-fects of insolvency proceedings on a pending lawsuit concerning assets or rights included in the debtor’s insolvency estate must be governed by the law of the Member State where the lawsuit is pending. In other words, the law of the State where arbitration has its seat will apply 12.

10 Recital 10. 11 See also Recital 72. 12 Recital 73 stresses that Art. 18 «should not affect national rules on recognition and en-

forcement of arbitral awards», mainly governed for Member States by the well-known 1958 New York Convention.


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Finally, in order to reduce uncertainty as to the localisation of debtor’s as-sets 13, Regulation 2015/848 provides for a broader and more detailed defini-tion of the concept “Member State in which assets are situated”, which in-cludes among others registered shares in companies, financial instruments, cash held in credit institutions accounts and copyrights (Art. 2 No. 9). The ap-plication of rules whose functioning hinges on that concept should therefore benefit in terms of certainty and uniformity from such a wide definition.

That being said, the remainder of this article overviews the main novelties with a critical approach 14.

II. 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, reorganisa-tion 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 sub-ject 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 war-rant 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 “insol-vency 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).

13 See Court Just. 11 June 2015, C-649/13 Comité d’entreprise de Nortel Networks SA and others v Cosme Rogeau, EU:C:2015:384.

14 Among the first studies on the Regulation see R. BORK, R. MANGANO, European Cross-Border Insolvency Law, Oxford, 2015. See also the contributions to the ongoing debate The EU Regulation on Insolvency Proceedings (Recast) in the blog of the Italian Society of Inter-national Law (SIDIblog). An interesting questionnaire has been submitted to scholars and prac-titioners by the project Implementation of the new European Insolvency Regulation coordinated by S. BARIATTI, B. HESS AND P. OBERHAMMER (questionnaire and details available at http://insreg. mpi.lu). Part of this article develops the answers that the author submitted.

15 “Normal insolvency proceedings” are those that Directive 2014/59 (above No. 9) defines as «collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator or an administrator normally applicable to institutions un-der national law and either specific to those institutions or generally applicable to any natural or legal person» (Art. 2 (47)).


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In doing so, Annex A provides a clear-cut confine of the Regulation. Actu-ally, 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 loop-holes 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, composi-tions 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 An-nex A meet the requirements of Art. 1(2)(b) of the Brussels I Regulation (re-cast), but since Annex A is exhaustive, they will fall outside both of Regula-tions. 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” and are not listed in Annex A, such as the English schemes of arrangements, should fall under the Brussels I Regulation (recast).

The main consequences on the Regulation’s applicability on insolvency proceedings as above defined are threefold.

Firstly, appointment of a “liquidator” and debtor’s divestment no longer are grounds of applicability, due to the inclusion of proceedings that leave the debtor either in possession or in control of its affairs 18.

Secondly, the inclusion of proceedings having purposes different from liq-uidating suggested replacing the term “liquidator” with one better fitting tasks of administration. Therefore Regulation 2015/848 employs the term “insol-vency practitioner” (Art. 2(5)): Annex B lists those who represent insolvency practitioners according to the Member States.

Hereinafter we will refer to the insolvency practitioner appointed in the

16 See judgments Ulf Kazimierz Radziejewski (above No. 5), paras 23-24, and Meliha Veli Mustafa (above No. 5), para. 36.

17 Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and en-forcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1.

18 Recital 10.


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main proceedings as “main insolvency practitioner”, and to the one in second-ary proceedings as “secondary insolvency practitioner”.

Thirdly, since proceedings aiming for debtors to avert insolvency or cessa-tion of business fall within the Regulation, the requirement that a debtor be in-solvent no longer amounts to a ground of applicability, but only to a condition for opening the proceedings.

As with Regulation 1346/2000, all the conditions for opening the proceed-ings are determined by the lex concursus (Art. 7 (2) of Regulation 2015/848). Thus, the question of whether the insolvency amounts or not to such a condi-tion in respect of a specific proceeding will continue to depend on the law of the Member State where that proceeding is sought 19.

Should non-insolvency proceedings – listed in Annex A – be opened as main proceedings, the utmost consequence is that the court requested to open a secondary insolvency proceeding may assess the debtor’s insolvency, which is not permitted when the main proceedings are based on insolvency (Art. 34).

In doing so, Regulation 2015/848 marks the end of a rightfully defined “artificial approach” followed by Regulation 1346/2000 20, which includes (by means of its Annex A) pre-insolvency proceedings (such as the French procédure de sauvegarde), notwithstanding its scope is limited to insolvency proceedings according to Art. 1, but, at the same time, prevents the court in any case from examining the debtor’s insolvency when ruling on the opening of secondary insolvency proceedings.

Furthermore, Regulation 2015/848 also applies to proceedings addressing debtor’s “non-financial difficulties”.

That concept seems quite vague, but Recital 17 confines its meaning to real and serious threats «to the debtor’s actual or future ability to pay its debts as they fall due», and provides for certain guidelines to ascertain the threat’s essence 21.

Such a threat may result in the “likelihood of insolvency” that warrants the opening of pre-insolvency proceedings.

19 Insolvency factors may nevertheless be determined under different laws (for example, the lex contractus may be called on to assess the existence of a disputed debt).

20 G. MOSS, Master and Servant? Relationships between Main and Territorial Proceedings in Light of Bank Handlowy (Case C-116/11), in The Grand Project: Reform of the European Insolvency Regulation (above No. 4), p. 15.

21 Recital 17 states that «[t]he time frame relevant for the determination of such threat may extend to a period of several months or even longer in order to account for cases in which the debtor is faced with non-financial difficulties threatening the status of its business as a going concern and, in the medium term, its liquidity. This may be the case, for example, where the debtor has lost a contract which is of key importance to it».


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Regulation 2015/848 encompasses not judicial proceedings as well. The term “court” accordingly acquires such a wide meaning to include «body of a Member State empowered to open proceedings, to confirm such opening or to take decisions» within the proceedings 22.

On the other hand, as noted, the Regulation will apply to public proceed-ings only, i.e. proceedings allowing creditors to know of the proceedings and to lodge the claims therein 23. That fosters and ensures the proceedings’ collec-tive nature.

Consequently, confidential proceedings fall outside the Regulation 24. None-theless, if debtor and creditor were to start (confidential) negotiations, the debt-or might request the stay of individual enforcement proceedings, as long as the stay neither hampers the creditors nor affects proceedings which, failing the agreement, would cause the debtor’s divestment or its activity to relocate under control or supervision by a court (Art. 1 (1) (c)) 25.

Finally, a difference between “all-creditors-inclusive” and “not-all-cre-ditors-inclusive” proceedings has been implicitly introduced. Recital 14 clari-fies that “not-all-creditors-inclusive” proceedings should be proceedings aimed at rescuing the debtor, while those leading to a definitive cessation of debtor’s activities or to the liquidation of debtor’s assets should be “all-creditors-inclu-sive” necessarily.

III. 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 ad-ministration 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 – corre-sponds to the “principal place of business” in case of independent business-

22 See Recital 20 and Art. 2, No. 6. 23 Recital 12. 24 Recital 13. 25 See also Recital 11. 26 Recital 30.


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men 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 practic-es 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 Mem-ber 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 of-fice (along with those of COMI) are protected by the EU freedom of estab-lishment. 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 pro-cedural and substantive rules should be applied in case of insolvency – with-out 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 operate in relation to any transfer towards third countries and whatever be the time of transfer, but Regulation 2015/848, always on pre-sumptive basis, will not apply.

As for individuals exercising an independent business or professional pro-viders, the COMI will presumptively match the principal place of business, while, as regards any other individual (such as consumers), the habitual resi-dence. The presumption works as long as the principal place of business and the habitual residence have not been relocated outside the Member State of the court within six and three months, respectively, prior to the request to open the proceedings (Art. 3 (1)).

27 Recital 29. See Recital 5 as well. 28 Recital 31. Should State of registered office and State of COMI differ, Recital 24 follows

the Court of Justice (Burgo Group, above No. 5, paras 20-39), reminding that secondary pro-ceedings may be opened in the former when the company has an establishment therein.


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Despite such time requirements, all presumptions may be rebuttable on a case-by-case basis. Thus, in case of companies, and following a well-established case law of the Court of Justice, a comprehensive assessment of the circumstances may lead both courts and third parties to ascertain that com-pany’s actual centre of management and supervision is located outside the Member State of the registered office even when the relocation thereof meets the time requirement 29.

By the same token, in case of businessmen or professional providers the COMI may lie outside the place of business.

Finally, as for non-businessmen individuals, should the bulk of debtor’s as-sets be placed outside the habitual residence or it proved that the main reason for moving the assets was to endanger the creditors whose dealings with the debtor have occurred before the relocation, the presumption will not apply 30.

As far as the opening of secondary/territorial proceedings is concerned (i.e. proceedings opened in the Member State, different from that of the COMI, where the debtor has an establishment), the main novelty consists in expressly entitling public authorities which, under the law of that Member State, may request the opening of insolvency proceedings to request the opening of terri-torial proceedings (Art. 3 (4) (b) (ii)) 31, that is territorial-limited proceedings opened prior to the main ones.

The revision hence disregarded the condition of being creditor (or credi-tors’ representative) that the Court of Justice had required in the Zaza judg-ment for public authorities to request the opening of territorial proceedings 32, thereby also entitling authorities acting in the collective interest.

IV. Once requested to open the proceedings, the court will rule on jurisdic-tion 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 judg-ment 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 proceed-ings have been opened without a court’s decision (Art. 4 (2)).

29 Interedil, above No. 5. 30 Recital 30. 31 See also Recital 37. 32 In particular, the Court held that only public authorities having claims (or representing

creditors) are entitled to request the opening of territorial proceedings according to Art. 3 (4) of Regulation 1346/2000 (Zaza, above No. 5, paras 27-34).

33 Recital 27.


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The provision actually refers, on the one hand, to proceedings “opened” ir-respective 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 imme-diate judiciary activity or cases in which national law allows the court to ap-point 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 Regula-tion, 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 actu-ally belongs to the Member State of the establishment. Parties other than debt-or 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 delaying purposes.

The Regulation, as with its predecessor, lacks rules coordinating multiple pending requests and it is well known that the issue of which judgment in the case of multiple openings in different states prevails must be resolved in fa-vour of the first-rendered judgment 36.

In this scenario, the concept of ‘opening time’ – defined as «the time at which the judgment opening insolvency proceedings becomes effectives, re-

34 The appointment falls into the notion of “judgment opening insolvency proceedings” ac-cording to Art. 2, No. 7.

35 Recital 34. 36 See Eurofood, above No. 5, para. 49; Bank Handlowy, above No. 5, para. 51.


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gardless of whether the judgment is final or not» (Art. 2 (8)) – is of the utmost importance especially with respect to main proceedings, as the Regulation admits only one main proceeding.

Elements such as effectiveness and finality depend on the lex concursus, so that the “opening time” concept is to be appraised under national law. Since, according to Art. 7 and 35, the substantive scope of the lex concursus does not vary in this regard by reason of the proceedings’ nature, this time appraisal applies to main and secondary proceedings.

Therefore, even though the Regulation directly allows debtor and creditors to challenge the opening on jurisdictional grounds, the effects both of the re-quest of review and the review itself on the opening will be governed by the lex fori, so that the coordination among pending requests to opening the pro-ceeding and the defence against derailing or delaying tactics underlying a re-view claim, are problems far from being resolved uniformly.

V. 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 pro-ceedings’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 Regula-tion 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 recogni-tion/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 concursus according to Art. 4(2)(m). Judgments stemming from actions to set aside per-tain to the category of decisions «deriving directly from the insolvency pro-ceedings 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.

37 Such a legal framework concerns actions brought both by main and secondary insolven-cy practitioners. However, the secondary insolvency practitioner may claim in any Member State other than that of the opening «through the courts or out of court that moveable property was removed from the territory of the state of the opening of proceedings to the territory of that other Member State after the opening of the insolvency proceedings», and he may further bring


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Regulation 2015/848 replicates this framework. As for jurisdiction, it may prove fitting to remind the main principles en-

dorsed by the Court of Justice to better appreciate the novelty of the new Reg-ulation 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 estab-lishing 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 pro-ceedings.

The Court of Justice held that, although Regulation 1346/2000 provides no jurisdiction criteria for “ancillary actions”, nevertheless it covers actions ex-cluded from the Brussels I Regulation 39 whenever a jurisdictional issue arises in matters of insolvency. To this end, the Court acknowledged a vis attractiva in favour of the courts of the Member State where insolvency proceedings have been opened, thereby allowing them to rule on the “ancillary actions” as well.

The Court emphasised that vis attractiva strengthens the effet utile of Regu-lation 1346/2000, as it provides for a ground of jurisdiction that centralizes all ancillary actions before the court of the insolvency proceedings and, conse-quently, enhances the proceedings’effectiveness and efficiency.

Moreover, vis attractiva appears to be consistent with the scheme of inter-connection between jurisdiction, recognition and enforcement framed by Artt. 3 and 25 of Regulation 1346/2000. Art. 3 determines the Member State where insolvency proceedings may be opened, while Art. 25 sets forth the principle of mutual recognition of the judgments concerning the course and closure of proceedings rendered by the court with jurisdiction under Art. 3. Since Art.

any action «to set aside which is in the interests of the creditors» (Art. 18(2)). This provision exceptionally entitles the secondary insolvency practitioner to recover assets «of the proceed-ings» abroad, either by a claim lodged directly in the Member State where the assets are locat-ed, or by enforcing decisions rendered by the court of the insolvency proceedings, or lastly out of court.

38 Court Justice 22 February 1979, 133/78, Henri Gourdain v Franz Nadler, E.C.R. 733. 39 Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and en-

forcement of judgments in civil and commercial matters, [2001] OJ L12/1.


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25(1), as noted, extends the principle of mutual recognition to «judgments de-riving directly from the insolvency proceedings and which are closely linked with them», only the court identified by Art. 3 is empowered to issue such de-cisions 40.

From the foregoing description it follows that actions which qualify as an-cillary to insolvency proceedings are excluded from the Brussels I Regulation (and the Brussels I Regulation (recast)) and fall within Regulation 1346/2000 41. This means that actions lacking such characterization are covered by the first Regulation, as it «is intended to apply to all civil and commercial matters apart from certain well-defined matters» 42.

A so wide scope of the Brussels I Regulation leads the Court of Justice to say that the Regulation 1346/2000’s «must not be interpreted broadly» 43.

In this regard, the Court pays attention to the legal basis of the claim rather than to the procedural context which the action is part of. In other words, vis attractiva hinges more on the action’s basis in insolvency law than on its con-nection with insolvency proceedings 44.

Vis attractiva applies both to main and secondary proceedings 45, irrespec-tive of whether the defendant’s seat (or habitual residence) lies in or outside the EU. When dealing with an action to set aside brought in the COMI’s court against a person whose place of residence was located outside the EU, the Court of Justice held that the universal effect of main proceedings and the need to ensure certainty and uniformity to the jurisdiction criteria imply that the vis attractiva principle is not confined to ancillary disputes involving de-fendants domiciled or resident in a Member State 46.

40 According to the Court of Justice, the expression «even if [the judgments at stake] were handed down by another court» in Art. 25(1) means that the Member States may «determine the court with territorial and substantive jurisdiction, which does not necessarily have to be the court which opened the insolvency proceedings» (Deko Marty, above No. 5, para. 27).

41 See H, above No. 5, para. 31 et seq, also for references to the 2007 Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3).

42 F-Tex, above No. 5, para. 29. 43 Nickel & Goeldner Spedition, above No. 5 paras 22-23; and judgment of 11 June 2015,

C-649/13 Comité d’entreprise de Nortel Networks SA and others v Cosme Rogeau, not yet re-ported, para. 27.

44 See extensively F-Tex, above No. 5; Nickel & Goeldner Spedition, above No. 5; H, above No. 5; Comité d’entreprise de Nortel Networks, above No. 43.

45 Comité d’entreprise de Nortel Networks, above No. 43, para. 32. 46 Schmid, above No. 5; H, above No. 5.


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The Court of Justice remarked that Regulation 1346/2000 addresses not on-ly cross-border situations within the EU, and that the determination of juris-diction cannot be postponed until the time when the location of various as-pects of the proceedings in addition to the COMI, such as the residence of a potential defendant to an ancillary action, are known. In particular, the Court of Justice held that «to wait for knowledge of these matters would frustrate the objectives of improving the efficiency and effectiveness» of cross-border in-solvency proceedings 47.

That case law should eventually represent a guideline to better apply the provisions enshrined in Regulation 2015/848.

Furthermore, certain issues remaining not expressly governed need the support of the Court’s case law, and so does the correct interplay between Brussels I Regulation and Regulation 2015/848.

For instance, in H judgment the Court of Justice clarified that actions based on insolvency which, according to national law, «could theoretically be brought even if there were no insolvency proceedings», may fall within the Brussels I Regulation (and the Brussels I Regulation (recast)) when brought outside – and in the absence of – insolvency proceedings 48.

As noted above, proceedings based on general company law not designed exclusively for insolvency “situations” fall outside Regulation 2015/848 (Recital 16) because they are supposed to be non-based-on-insolvency-law proceedings, while general company law proceedings designed exclusively for insolvency “situations” should fall therein.

Even though Recital 16 seems limited to collective proceedings, rather than to cover “ancillary” actions, it reveals that marking differences among insol-vency “situations”, insolvency “proceedings” and insolvency-related actions is quite burdensome for the purposes of the Regulation when company law actions concerning insolvency “situations” may be brought either within or outside (or in absence of) an insolvency proceeding under national law.

Judgment in H helps finding the jurisdictional grounds in this respect: actions brought in presence of insolvency proceedings fall within the vis attractiva 49, while those purported in absence of should be brought before the

47 Schmid, above No. 5, para. 28. 48 H, above No. 5, paras 20-25. The Court dealt with § 64 (2) of the GmbHG under which

the managing director of an insolvent company must reimburse the payments that he made on behalf of the company after the insolvency thereof.

49 In the subsequent judgment 10 December 2015, C-594/14, Kornhaas v. Dithmar, EU:C:2015:806, the Court ruled on the same German provision but in the perspective of Art. 4 of Regulation 1346/2000, i.e. in the perspective of the applicable law. The Court held – in con-


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courts having jurisdiction under the Brussels I Regulation. Regulation 2015/848 faces up also to “ancillary” actions related to other

actions based on civil and commercial law. Art. 6 permits the insolvency prac-titioner (or the debtor in possession) to bring both claims in the court of the defendant’s domicile. That may be the case of actions for director’s liability based on insolvency law related to actions based on company or tort law.

Besides, in the case of co-defendants, the insolvency practitioner may file the action with the courts of the Member State where any of them is domiciled as long as those courts have jurisdiction under the Brussels I Regulation (recast).

That means that the jurisdiction stemming from the interplay between the two Regulations will be lacking if the jurisdiction pertains under the Brussels I Regulation to a court different from the domicile’s (as may happen in case of exclusive competences).

However, the consolidation cannot match the universal scope of the vis at-tractiva that, as noted above, the Court of Justice upheld in Ralph Schmid: Art. 6 (2) provides for jurisdiction insofar as the defendant is domiciled in a Member State.

Moreover, when making the example of avoidance actions, Recital 35 re-fers to actions «against defendant in other Member States».

It is debatable whether the EU legislator has wrongly or willingly omitted a reference to the domicile (that is, the correct provision could have been «against defendants domiciled in other Member States»).

The omission actually occurs with respect to other examples – actions for recovering advance payment of proceedings’costs – and emerges even in other linguistic versions. Thus, the idea of a mistake lacks basis.

The expression “defendants in other Member States” seems to mean that

sistency with H judgment – that § 64 of the GmbHG is a provision «covered by insolvency law» so that it pertains to the lex concursus for the purposes of Art. 4 (para. 17). In particular, § 64 (1) matches the purposes of Art. 4 to identify the persons obliged to open the proceedings (by penalising the managing director who fails to request the opening within three month from the insolvency), while § 64 (2) may be considered «at least similar to a rule laying down ‘the unforceability of legal acts detrimental to all creditors’» for the purposes of Art. 4 (2) (m) (Kornhaas, paras 19-20). This second characterization is arguable because § 64 (2) only com-pels the managing directors to reimburse the payments they make after the company compa-ny’s insolvency or after it has been established that the company is over-indebted. However, since the Court qualified the provision as an insolvency one with respect to an action brought within an insolvency proceeding and for the purposes thereof, it is debatable whether the Court would have reached the same result if the action had been brought in absence of proceedings. As a matter of fact, an action like that would fall under the Brussels I Regulation when being brought outside an insolvency proceeding, because it is no more “covered” by insolvency law, but pertains exclusively to company law.


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vis attractiva debars courts of Member States other than that of the insolvency proceedings from ruling on “ancillary” actions, irrespective of the defendant’s domicile. In other words, vis attractiva provides the court of the insolvency proceedings with an exclusive competence.

It appears that jurisdiction over co-defendants and vis attractiva differ as to the personal scope – notwithstanding both share the aim to strengthen the effi-ciency of the proceedings (especially as regards the recovery and the realisa-tion of assets abroad) – because of their different rationale.

The jurisdiction over co-defendants aims to coordinate courts of different Member States – whenever it is expedient to hear and determine the actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings –, while vis attractiva causes the ancillary action to reach its pur-poses (such as recovering a payment) wherever the defendant be domiciled.

It remains only to assess the real usefulness of the vis attractiva when the enforcement of the subsequent judgment is sought in a third country not ad-mitting the vis attractiva’s universal scope.

Actually, as it is undeniable that vis attractiva helps recover the “EU” debtor’s assets in a non-member State and, accordingly, serves proceed-ings’liquidating or restructuring purposes, so it is that these results depend on the enforcement of the ancillary judgment in that State and, accordingly, on the requirements concerning the competence of the court of origin established therein.

Be that as it may, the Court of Justice stressed that the defendant domiciled in a non-member State could have assets in a Member State, where the ancil-lary judgments presumptively will not find obstacles to be recognized and en-forced 50.

VI. As noted, Regulation 2015/848 intends to improve the balancing be-tween 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, alt-

50 Schmid, above No. 5, para. 38. As for the enforcement, Regulation 2015/848 refers to the Brussels I Regulation (recast), except for the grounds for refusal, which are established direct-ly. As a consequence, the enforcement will become easier due to the removal of the exequatur in the Brussels I Regulation (recast).

51 On the issue see A. LEANDRO, Amending the European Insolvency Regulation to Strengthen Main Proceedings, above No. 4.


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hough 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 proceed-ings» 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 ad-ministration 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 pro-vides 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, particular-ly 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 pro-ceedings are opened in different Member States where the national laws gov-erning the liquidation process diverge or lack provision for measures alterna-tive 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 in-solvency practitioner different options for better coordinating and implement-ing restructuring plans in both the proceedings.

Secondly, Regulation 2015/848 makes the opening of secondary proceed-ings conditional upon both the interests of local creditors and the objectives of the main proceedings and, accordingly, strengthens the main insolvency prac-titioner’s role in this regard.

52 In the Court of Justice’s words: «[a]lthough secondary proceedings are intended, inter alia, to protect local interests, they may also [...] serve other purposes, which is why they may be opened at the request of the liquidator in the main proceedings, when the efficient admin-istration of the estate so requires» (Bank Handlowy, above No. 5, para. 72).

53 Burgo Group, above No. 5, paras 52-67, with respect to winding-up insolvency proceed-ings.


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The court of the establishment will be enabled, on request of the main in-solvency practitioner, to refuse or to postpone the opening of secondary pro-ceedings whenever this is not necessary to protect the interest of local credi-tors.

In this regard, Art. 38 (1) binds the court requested to open the secondary proceedings to immediately give notice to the main insolvency practitioner (or the debtor in possession) in order to give it an opportunity to be heard: in do-ing so, the court may appraise what consequences the opening have on the main proceedings’administration.

As a result, on the one hand, the main insolvency practitioner could apply for the refusal or the postponement of the opening of secondary proceedings, while, on the other hand, the court of the establishment would be wholly aware of any rescue or reorganization options explored by the main insolven-cy practitioner, and it may properly assess the consequences of the opening.

Such awareness may lead the court either to refuse the opening or to select proceedings different from winding-up. This differs from the current regime, which allows for the alternative proceedings option for territorial proceedings only, i.e. prior to the opening of main proceedings.

In line with this new broadened role in evaluating the impact of secondary proceedings upon the centralized rescue or the estate administration, the main insolvency practitioner will be entitled to challenge the decision opening sec-ondary proceedings.

As regards the balancing between the protection of local creditors and the need not to open secondary proceedings, the main insolvency practitioner may undertake within the main proceedings, in respect of assets located in the Member State of the establishment, «that he will comply with the distribution and priority rights under national law that [local creditors] would have if sec-ondary proceedings were opened» (Art. 36(1)) 54.

This undertaking has to be approved by a qualified majority of known local creditors (the local rules concerning the adoption of restructuring plains will apply: Art. 36 (5)) and should remove the creditors’concern over seeing them-selves deprived of interests and preferential rights based on the local lex con-cursus by the opening of the sole main proceedings and by the applicability of the COMI’s lex concursus. At the same time, the undertaking should avoid the

54 Recital 43 suggests that assets and rights located in the Member State of the establish-ment should form a sub-category of the insolvency estate and, when distributing them or the proceeds resulting from their realisation, the insolvency practitioner in the main proceedings should comply with the priority rights that the local lex concursus gives to creditors (even lack-ing a secondary proceeding therein).


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opening of secondary proceedings that may adversely affect the outcome of the main insolvency proceedings, in particular where the latter are aimed at rescue and restructuring.

In stating so, Regulation 2015/848 introduces the so-called “synthetic sec-ondary proceedings”, a practice inaugurated in certain English administra-tions of group-of-companies insolvencies 55: such a practice may reduce the number of proceedings and, therefore, ameliorate both the cooperation be-tween (main) insolvency practitioners handling the proceedings related to the members of a group. Therefore, even the new regime concerning group-of-companies insolvency will benefits from “synthetic secondary proceedings” (see below).

Once the undertaking has been approved, the main insolvency practitioner may challenge on its basis the contrasting decision to open the secondary pro-ceedings: Art. 39 seems to include this scenario when stating, as ground of the review, that the court has ignored conditions and requirements of Art. 38.

In fact, the court of the establishment must assess whether the undertaking “adequately” protects the general interests of local creditors, but it should be confident that an approved undertaking presumptively does so. Nevertheless, the court may hold that even an approved undertaking does not really satisfy the interests of local creditors and, thus, that it may be more suitable opening the secondary proceedings. The main insolvency practitioner can hence chal-lenge the consequent opening judgment.

All the advantages of the undertaking depend mainly on the fact that local creditors and courts have knowledge of both the main proceedings and the given undertaking.

Regulation 2015/848 improves the system of information to foreign credi-tors and courts also to this purpose (see below).

Moreover, Art. 36 provides local creditors with certain means for the main insolvency practitioner to implement the undertaking correctly and effectively (they may: 1) challenge the distribution of assets which differ either from the terms of the undertaking or from the lex concursus of the establishment – para. 7; 2) apply to the court of the main proceedings for the insolvency practitioner to take any suitable measures to ensure compliance with the undertaking – pa-ra. 8; 3) in the same vein, apply to the court of the establishment to grant pro-visional or protective measures – para. 9).

55 See, among others, High Court, Chancery Division, 9 June 2006, Re Collins & Aikman III [2006] EWHC 1343 (Ch) available on the website of the British and Irish Legal Information Institute at www.bailii.org.


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Finally, Art. 36 (10) envisages the liability of the main insolvency practi-tioner for any damage caused to local creditors as a consequence of its non-compliance with the undertaking.

As opposite to the undertaking’s purposes, the main insolvency practitioner may want to request the opening of secondary proceedings if the interests in the main proceedings so need (Art. 37 (1) (a)). Here again, the insolvency practitioner may request the opening of non-liquidating proceedings.

Furthermore, the main insolvency practitioner may apply for the opening of proceedings other than those initially requested by local creditors (Art. 38 (4)) or for the conversion of earlier opened proceedings into other types (Art. 51). All these options are conditional upon the respect of the local lex concursus (especially as to requirements for opening different proceedings than those ini-tially opened) and must be appropriate to both the interests of local creditors and the coherence between main and secondary proceedings 56.

As other means to strike a balance between main proceedings’purposes and interests of local creditors, Regulation 2015/848 allows the court of establish-ment to stay the opening of secondary proceedings up to three months. The stay, requested by the main insolvency practitioner or the debtor in possession, should follow the stay of individual enforcement proceedings which the courts grants to facilitate ongoing negotiations between debtor and creditors, as long as «suitable means are in place to protect the interests of local creditors» (Art. 38 (3) and Recital (45)).

It is apparent that local creditors lack protection owing to the stay of indi-vidual and collective proceedings. Therefore, the court of the establishment may order protective measures during the stay of the opening, especially re-quiring the insolvency practitioner or the debtor in possession not to remove or dispose of any assets which are located in the Member State of the estab-lishment.

The main insolvency practitioner thus is deprived of the power to remove the assets abroad not only when other insolvency proceedings have been opened or contrary preservation measures have been granted following a re-quest for the opening in the State where the assets are located (Art. 21), but also when protective measures surround the stay of the opening.

In consistency with its purpose to serve the interest of main proceedings without undermining the creditors’ rights, the stay may be revoked either when the main insolvency practitioner infringes the prohibition on dispos-

56 Recital 48 emphasizes that any profile of the cooperation should underpin the “dominant role” of the main proceedings.


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al/removal of assets, or the negotiations between debtor and creditors have been disrupted or are unlikely to be concluded (Art. 38 (3)).

VII. Undoubtedly, the undertaking regime needs a practical implementa-tion 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 procee-dings. 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 compel-led 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 binding on the estate” (Art. 36 (6)).

As for the interaction between temporary stay and undertaking process, it seems that they may coexist.


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The stay may support the restructuring negotiations between debtor and creditors as much as the “negotiations” that creditors commence with one an-other to take a decision about the approval of the undertaking.

Anyway, undertaking, stay and evaluation of general interest of local credi-tors, are all measures that anticipate the opening of secondary proceedings. Having regard to Artt. 38 (2) (3) and 36, it is hard to conceive of an earlier opened secondary proceeding which is subsequently closed due to an under-taking: all of those measures occur in the time frame between the request and the decision to open a secondary proceeding.

VIII. 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 sin-gle 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 re-quest 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 Regula-tion 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 prin-ciple, the main burden of cooperation rests on the primacy of the main insol-vency 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, UN-CITRAL Model Law (Recital 48) 57.

57 Other examples are the European Communication and Cooperation Guidelines for


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For instance, the courts may coordinate with each other to appoint the in-solvency practitioners, while courts and insolvency practitioners may enter in-to protocols and agreements to facilitate cross-border cooperation and to coor-dinate 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, explor-ing 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 them should reflect the insolvency practition-ers’ strategy to take, or refrain from taking, certain steps or actions during the proceedings. As regards the liquidating process, protocols should contribute to the maximization of the estate’s value especially when the estate is complex or the debtor’s assets are intermingled.

Protocols basically may delineate means and best practices concerning: de-termination of assets, claims lodgement, claims verification, creditors’ classes, resolution of disputes, assets realisation and distribution of related proceeds, use and disposal of assets, business continuation, rescue and reorganization plans, monitoring of each proceedings’ costs.

The main novelty consists, though, in the rules applicable to the court-to-court cooperation even if the Court of Justice already emphasized in Bank Handlowy that (i) «the Regulation provides for a certain number of mandatory rules of coordination intended to ensure ... the need for unity in the Communi-ty», that (ii) «main proceedings have a dominant role in relation to the second-ary proceedings», and that (iii) the principle of sincere cooperation laid down in Art. 4(3) of the EU Treaty requires the court having jurisdiction to open secondary proceedings «to have regard to the objectives of the main proceed-ings and to take account of the scheme of the Regulation [1346/2000], which ... aims to ensure efficient and effective cross-border insolvency proceedings through mandatory coordination of the main and secondary proceedings guar-anteeing the priority of the main proceedings» 59.

Cross-Border Insolvency (CoCo Guidelines) (INSOL, 2007), the EU Cross-Border Insolvency Court-to-Court Principles (University of Leiden and University of Nottingham Law School, 2014), the ALI III Global Principles for Cooperation in International Insolvency Cases (Amer-ican Law Institute and International Insolvency Institute, 2012), the IBA Cross-Border Insol-vency Concordat (International Bar Association, 1995).

58 For a distinction between “operating protocol” and “distribution agreement” see J.L. WESTBROOK, International Judicial Negotiation, in Texas Int. Law Journ., 2003, p. 567, p. 572.

59 Bank Handlowy, above No. 5, paras 60 ff; see also Burgo Group, above No. 5, para. 60.


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These principles prove to be for courts a valuable “guideline” to manage the interplay with main proceedings after the opening of secondary proceed-ings.

Under Regulation 2015/848, courts are explicitly called on to cooperate with each other either when deciding on the opening or handling a previously opened proceeding (Art. 42). Courts may appoint a special independent person (or body) to this purpose.

The cooperation may result in the joint appointment of the insolvency prac-titioners, in exchanging information considered appropriate, in coordinating the administration and supervision of the debtor’s assets and affairs, in jointly organizing the conduct of hearings as well as in approving of protocols.

A cooperation is also expected between insolvency practitioners and courts (Art. 43) when the former, appointed in a proceeding, interface with courts re-quested, or which have decided, to open different proceedings: the coopera-tion’s means are akin to the court-to-court cooperation’s.

IX. Regulation 2015/848 gives the impression of setting out a maximum level of cooperation/coordination and imposing only a duty to try to com-municate/cooperate.

The first impression is firstly due to the provisions which requires the co-operation 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 initiati-ve; 2) presence of public bodies among the creditors which requires the appli-cation 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

60 See also Recital 49.


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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 agree-ment/protocol provides for.

Second, Art. 54 binds courts and insolvency practitioners to inform imme-diately 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 entitled to accept the lodgement), which may not be derogated. Accordingly, the con-tents of Art. 55 (which governs the procedure for lodging claims) should be “incorporated” in the agreement/protocol, as well as the standard claims form as a sort of annex.

Third, as noted above, insolvency practitioners must communicate taking care of confidential information (Art. 41(2)(a)).

Besides, insolvency practitioners may provide themselves by protocols/ agreements with more powers than those listed in Art. 41 only when proto-cols/agreements refer to group restructuring (see below, especially in relation to Art. 56).

As for the impression that Regulation 2015/848 compels to try to communicate/cooperate, it should be firstly noted that various crucial phases of the cooperation are postponed at the moment of entering into procotocols, agreements and other form of statements concerning the tasks of each insolvency practitioner. Therefore those phases are feasible on voluntary basis only.

Secondly, the communication is restricted to information which “may be relevant” to other proceedings: in other words, the insolvency practitioner A could assess on a case-by-case basis that no information needs to be communi-cated to the insolvency practitioner B.

Likewise, exploring “the possibility of restructuring” and ascertaining whether such possibility “exists” seem evalutations lying with each practitio-ner without a duty to share the final results with one another. Should the


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practitioners exchange opinions in this regard, any divergences about the possibility of restructuring might block the cooperation and, as the case may be, the restructuring itself.

Turning to the protocols 61, they have a legal basis in the Regulation as devices designed to attain each proceedings’purposes.

What is required for protocols – like all cooperation-devoted measures – is to “be not incompatible with” the lex concursus governing each proceedings, starting with the condition to be approved by a court.

All that eventually leads, on the one hand, to characterize protocols as procedural tools established by the Regulation, and, on the other, to find their governing rules in a cumulative application of the leges concursus of each proceedings.

In any case, since even protocols aim to reinforce the efficiency of an insolvency admnistration, and the efficiency represents a primary objective of the Regulation, the relevant leges concursus should be applied in such a way to facilitate conclusion and implementation of protocols for better reaching the effet utile of the Regulation.

Finally, the “undertaking regime” and the new rules on cooperation may initially be somewhat useless due to the transitory regime of Art. 84, even if the issue of opening secondary proceedings were to fall under the new Regula-tion.

Art. 84 provides 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 which have been opened beforehand. This rule makes no distinction between main and secondary proceedings.

Thus, no problem arises when main proceedings, opened under Regulation

61 Outside the Regulation, but against the background of UNCITRAL Model Law and re-lated Practice Guide on Cross-Border Insolvency Cooperation, opinions differ as to the proto-col’s nature. Scholars address the issue especially in relation to enterprise groups and irrespec-tive of persons involved in the cooperation (be only insolvency practitioners or/and courts). It is worth noting that even the UNCITRAL Practice Guide lacks a definition. Thus, certain au-thors deem that protocols give rise to a normative integration of the insolvency law (E. WAR-REN, J.L. WESTBROOK, Court-to-court negotiation, in American Bankruptcy Institute Journ., 2003, p. 28). Others suggest that protocols are private-international-law treaties in matters of insolvency (E.D. FLASCHEN, R.J. SILVERMAN, Cross-border Insolvency Cooperation Protocols, in Texas Journ. Int. Law Journ., 1998, pp. 587, 589). Some others qualify them as contracts entered into by insolvency practitioners and approved by the courts (A.V. SEXTON, Current problems and trends in the administration of transnational insolvencies involving enterprise groups: the mixed record of protocols, the UNCITRAL Model Insolvency Law, and the EU in-solvency regulation, in Chicago Journ. Int. Law, 2012, pp. 811, 818).


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1346/2000, are followed by a request to open secondary proceeding brought under Regulation 2015/848. In that case, the “undertaking regime”, the provi-sions allowing to avert or postpone the opening of secondary proceedings as well as those governing the cooperation may be applicable as rules which Regulation 2015/848 expressly devotes to “secondary insolvency proceed-ings” (Chapter III).

However, since certain main proceedings for which the undertaking regime has been tailored (such as rescue and restructuring proceedings) fall outside Regulation 1346/2000, the applicability of the new provisions to subsequent secondary proceedings may prove fruitless.

On the contrary, should territorial proceedings be opened under Regulation 1346/2000, the new rules on cooperation will not apply.

X. Member States are called on to establish publicly accessible electron-ic 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 proceed-ings 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 lodge-ments).

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 infor-mation 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


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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 tantum pre-sumption whereby being unaware or aware of the insolvency proceedings de-pends 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 ex-cused or not.

Certain protective rules concerning personal data have been inserted be-cause, as noted, Regulation 2015/848 will also apply to proceedings opened against persons not carrying out independent business or professional activity (Artt. 78-83).

In such cases, Recital 80 strikes a balance between data protection and creditors’ right to lodge the claims by calling Member States to ensure that the relevant information is given to creditors through individual notice and that claims of creditors not receiving the information should not be jeopardized by the proceedings.

Finally, the mandatory publicity regime may prevent the opening of paral-lel proceedings – for instance, foreign creditors who in detail know rules and features of the main proceeding may refrain from requesting the opening of secondary proceedings – or, should multiple proceedings be opened, sustain their coordination.

Nor overlooked should it be that publicity safeguards the EU market itself at least when the proceedings have effects in several Member States or they concern companies (or groups of companies) performing services, sales or dis-tribution throughout Europe.

XI. 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 sub-sidiary 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.

62 See Grontimmo SA, above No. 5, para. 30 ff.


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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 state-ments, consolidated financial statements and related reports of certain types of undertakings 63.

The new Regulation fills in the gap of Regulation 1346/2000, which pro-vides no specific basis to determine the jurisdiction in case of insolvency pro-ceedings 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 com-pany’s economic choices are or can be controlled by a parent company in an-other 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 posi-tion and task within the group 67. Moreover, should the company have one or more establishments outside the registered office, multiple proceedings con-cerning the same company could be opened.

Thus, the presumption of the coincidence between COMI and registered of-fice may be rebuttable, but in relation to each company. This may lead to find-ing that all of the companies have the COMI in the same State, but (again) not for the «mere fact that company’s economic choices are or can be controlled by a parent company».

Group consists, though, in an integrated (if not single) phenomenon whose

63 [2013] OJ L 182/19. 64 See M. VIRGÓS, E. SCHMIT, Report on the Convention on Insolvency Proceedings, Euro-

pean Council, doc No. 6500/96, 3 May 1996, para. 76. 65 See the UNCITRAL Legislative Guide on Insolvency Law. Part three: Treatment of en-

terprise groups in insolvency, available at www.uncitral.org. 66 Eurofood, above No. 5, para. 36. 67 It is well known the formula one company, one insolvency, one proceeding: C.G. PAU-

LUS, Group insolvencies – Some thoughts about new approaches, in Texas Int. Law Journ., 2007, pp. 819-820.


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economic features should be weighted up as much as the separate-legal-entity principle. In other words, an integrated phenomenon, such as that of the group, deserves specific rules for better handling the insolvency affecting one or more members (especially when companies are much intermingled one anoth-er, or the proceedings concern the parent, or the proceedings adversely affect other members in bonis or may be useful for others proceedings) without put-ting the separate-legal-entity principle in the shadow.

During the legislative process leading to the Regulation, Council and Par-liament dealt deeply with the “group” provisions of the Proposal so as to find a balance in this regard.

As noted below, this process resulted in a detailed and rather complex Chapter, which, on the one hand, sets forth a cooperation framework between insolvency practitioners and courts handling each proceeding and, on the oth-er, introduces the “coordination” proceeding which confers the cooperation and the coordination upon a single person (the coordinator).

Nevertheless, Regulation 2015/848 reminds that all group-of-companies-oriented rules do not prevent a court from opening main insolvency proceed-ings for several companies in a single State if it were to find a common COMI therein (Recital 53, which envisages the appointment of a single insolvency practitioner if the lex concursus so permits).

Should more proceedings be opened in different Member States, the new provisions call on the actors involved (insolvency practitioners and courts) to comply with the duties of cooperation and communication applicable when main and secondary insolvency proceedings are opened against the same debtor (Artt. 56-59), except for adding the condition whereby any measure must facilitate the effective administration of the involved proceedings and en-tail no conflict of interests.

Therefore, insolvency practitioners may enter into agreements and protocol to share rescue or restructuring plans (Art. 56). In this regard, they may com-municate to each other any information (in compliance with confidentiality), coordinate administration and supervision of the group members’ affairs, as-sess whether restructuring is possible and, accordingly, outline common pro-posals or plans 68.

Besides, insolvency practitioners have certain powers within proceedings

68 For cases of protocols related to insolvencies of commercial group of companies see the website of the International Insolvency Institute at www.iiiglobal.org. Traditionally, the first-in-time reported case is Maxwell Communication Corporation. As noted above, Directive 2014/59/EU establishes a framework of cooperation and coordination with respect to cross-border (group) bank insolvencies.


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other than those in which they have been appointed (Art. 60). They may be heard and request the stay (not exceeding three months) of measures related to the realisation of assets, provided that: a) a restructuring plan including all or some members subject to insolvency proceedings has been proposed and pre-sents reasonable chance of success, b) the stay serves the plain implementa-tion; c) the creditors involved in the proceedings for which the stay is request-ed would benefit from the plan; d) the proceedings at stake (including that where the insolvency practitioner requesting the stay has been appointed) are not subject to the coordination proceeding.

In spite of those powers, there is no hierarchy among insolvency practition-ers, not even between who handles the parent’s insolvency and those handling the subsidiaries’one.

The insolvency practitioners, though, may coordinate the administration/ supervision of the group members, the restructuring thereof as well as the allo-cation of their tasks by means of protocols/agreements. As noted above, accor-ding to Art. 56, these powers may even be increased without a clear-cut limit (except for the compatibility with the lex concursus applicable to each invol-ved proceeding).

Protocols/agreements could hence determine the hierarchy among insol-vency practitioners that Regulation 2015/848 decides to omit.

The so resulting-most-powered insolvency practitioner may more easily employ the measures listed in Art. 60 than in absence of protocols/agree-ments.

Lacking earlier protocols/agreements, an insolvency practitioner may nonetheless use such measures, but the risk to be challenged by other in-solvency practitioners (for failing the conditions of Art. 60) would be higher.

XII. An insolvency practitioner may request – to any court having jurisdic-tion 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 restructur-ing. 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 in-solvency proceedings (Recital (58)).


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It should be immediately noted that even the coordination proceeding en-tails no consolidation among the proceedings: for the sake of clarity, it is re-ferred to as “coordination” proceeding rather than as “insolvency proceeding”.

Here again, any efforts the legislative process made to reduce the draw-backs of a fragmented insolvency administration were useless against the sep-arate-legal-entity dogma. Recital 54 is illustrative in stating that the coordina-tion 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 con-cerning the members and an outline of the estimated costs (Art. 61). The par-ticipation 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 two-thirds of the insolvency practitioners may choose the court having exclusive jurisdiction to rule on the request. The choice-of-court agreement shall be made in writing or evidenced in writing (Art. 66).

The seized court, once satisfied that the coordination might facilitate the ef-fective administration of the insolvency proceedings relating to the members and no creditor be disadvantaged by the inclusion of a member in the coordi-nation proceeding, shall give notice as soon as possible of the request to the insolvency practitioners appointed in other proceedings (Art. 63).

All insolvency practitioners may so object before that court, within thirty days of the notice receipt, to either the inclusion of “its proceedings” within the coordination or the person proposed as a coordinator (Art. 64). The coor-dination proceedings and the coordinator’s power will have no effects upon the member for which the insolvency practitioner raises objection. (Artt. 64 (2) and 65).

On the other hand, if the objection were to address only the person pro-posed as a coordinator, the court may refrain from appointing that person and invite the objecting insolvency practitioner to submit a new proposal accord-


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ing to Art. 61 (3), i.e. a new request including all elements to convince the court of the coordination proceeding’s usefulness (Art. 67).

When opening the coordination proceeding, the court appoints the coordi-nator and decides on the coordination outline, the estimated costs as well as the related share in each member’s charge. (Art. 68).

As far as the coordinator is concerned, it should be selected among persons entitled to act as an insolvency practitioner under the law of a Member State (Art. 71). The provisions allows, hence, to appoint also a person who is not entitled according to the law of the seized court, but who is so under the law of a different Member State.

To avoid conflicts of interest, the coordinator should not be chosen among the insolvency practitioners appointed in the insolvency proceedings gathered in the coordination, nor may it replace them in their tasks.

By virtue of Art. 72, the coordinator’s tasks consist mainly of: i) recom-mending the conduct of each involved proceedings; ii) proposing a group co-ordination plan including measures to re-establish the economic performance and the financial soundness of the group (or part thereof), to settle intra-group disputes and to facilitate the conclusion of practitioner-to-practitioner agree-ments; iii) taking part in any insolvency proceedings and attending credi-tors’meetings; iv) mediating any dispute arising between insolvency practi-tioners; v) interfacing with national bodies and authorities to which it has to report its activity; vi) requesting information from any insolvency practition-ers which may be useful for the coordination; vii) applying for the stay (not exceeding six months) of the proceedings or the lift of an earlier stay (the co-ordinator will apply to the court opening the proceedings for which the stay is requested; that court will assess whether the stay is both necessary to ensure the proper implementation of the plan, and of the benefit of creditors in the proceedings being stayed).

Insolvency practitioners and coordinator are urged to cooperate with each other, in particular by sharing information that is relevant for the coordina-tion’s purposes (Art. 74).

Then again, since the insolvency practitioners primarily are bound by the rules applicable to the proceedings for which they have been appointed, they should ignore all the coordinator’s recommendations that infringe those rules.

Generally speaking, an insolvency practitioner is not obliged to meet (in whole or in part) the coordinator’s recommendation or the group coordination plan. In this case, the insolvency practitioner has only to notice the reason why it decides to ignore the recommendation to both the coordinator and per-sons/bodies to which it must report on its activity (Art. 70).


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The coordinator may rule on the subsequent-opt-in requests, viz. requests to partake in the coordination proceeding submitted by insolvency practition-ers which either initially object to the coordination or handle insolvency pro-ceedings opened when the coordination is pending. Art. 69 makes the subse-quent opt-in conditional upon the agreement of all insolvency practitioners which are involved in the coordination and the general criteria under which the coordination may be opened (facilitating the effective administration of the group’s insolvency and the “immunity” for the creditors’ financial position in other proceedings). The ascertainment of those conditions should take account of the stage that the coordination proceedings have meanwhile reached.

The coordinator decides on the request after ruling on the mentioned condi-tions. Its decision may be challenged before the court that has opened the co-ordination proceedings.

Finally, According to Art. 75, the coordinator loses its functions when act-ing to the detriment of the creditors or not complying with the obligations that Regulation 2015/848 provides for it. Protected creditors in this case are all those who have lodged the claim, irrespective of the proceedings. The court which has previously opened the coordination proceedings and appointed the coordinator logically rules on revocation thereof.

XIII. Undoubtably, the coordination proceedings should ameliorate the ad-ministration of multiple proceedings affecting the members as well as the re-structuring of entire corporate groups, especially the big and highly intermin-gled ones.

Lacking uniform procedural consolidation, the group coordination procee-dings 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) require-ments established by Regulation 2015/848 risk making the coordination use-less.

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.


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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 tran-sitory regime of Art. 84 may give rise to uncertainty. Indeed, the transitory re-gime 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 before-hand. Should the proceeding of a member fall within Regulation 1346/2000, whilst those of other members within the new Regulation, such proceedings (included those concerning the parent company) will not be coordinated under the foregoing provisions.

XIV. Financial and economic crisis throughout Europe require effective and efficient multiple-level answers that take account of increasing insolven-cies 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 in-solvency proceedings as a procedural sanction against debtors and emphasized the need to give the debtor a “second chance” in an environment of rescue ra-ther 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 insolven-cy falls under an in-court proceeding.


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Besides, an up-to-date approach on insolvency must give prominence to re-structuring 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 insolven-cy. 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 pro-ceedings in civil and commercial matters.

However, such high quality may not hide the weaknesses that undertaking regime, cooperation among multiple proceedings, and coordination proceed-ings have revealed.

ABSTRACT 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 effi-ciency 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.

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