Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 22

This paper critically examines security rights in the context of Directive (EU) 2019/1023 on preventive restructuring frameworks, discharge of debt and measures to increase the efficiency of restructuring, insolvency and discharge of debt procedures. This Directive has been variously referred to as the Restructuring Directive or the Preventive Restructuring Directive. EU Member States are expected to implement Directive 2019/1023 by July 2021 though they may request a one year extension from the European Commission1.

Across the European Union, insolvency –financial distress where individuals or companies are unable to pay their debts– has led to business closures, individual bankruptcy and significant job losses. Reducing insolvencies benefits the whole EU economy as insolvency hinders economic growth and leads to social problems for Member States and their citizens.

In some respects, and to use sporting parlance, the Directive is intended to be a “game-changer”, bringing about business rescue for financially distressed businesses. In other respects the Directive builds incrementally on existing EU initiatives in the restructuring and insolvency field and, in particular, on the 2014 European Commission Recommendation on a New Approach to Business Failure and Insolvency2. The 2014 recommendation was not legally binding and was considered by the Commission to be only partially implemented in EU Member States3. The 2019 instrument provides significantly more detail and also adds legal teeth4.

It should be however, that the Directive, in its main features, draws on a body of national and international reform efforts in the restructuring and insolvency field. Many EU Member States have reformed their laws so as to implement best practices existing in other jurisdictions5, including but not limited to Chapter 11 of the US Bankruptcy Code6. Professor Paulus has spoken of

an almost feverish hectic (sic) among most of the European states to outdo the others in amending their laws […] Each one of these jurisdictions is striving for improvement; thereby, however, always keeping in mind the status of the “competitors” laws and, thus, restricting the competition to a field which is located on a solid block of numerous commonalities and uniformity7.

The Directive introduces:

• a new “restructuring” moratorium on the enforcement of claims against a company that is based on the existing debtor retaining control of its business (“debtor-in-possession”);

• a new flexible “restructuring plan” procedure with provision for “cram-down” of creditors across classes though a court still has to approve the restructuring plan;

• provision for new financing of the debtor that may impact adversely on existing creditors.

In these three respects however, the Directive may weaken the position of a security rights holder or at least put this position into question. This paper will contain separate sections looking at these three possible adverse impacts. This will be followed by a conclusion that brings together the discussion and assesses the impact of the Directive on the choices faced by EU Member States.

First however, it is necessary to consider what is meant by security rights.