Local view for "http://purl.org/linkedpolitics/eu/plenary/2000-03-01-Speech-3-199"
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"en.20000301.14.3-199"2
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"Mr President, ladies and gentlemen – and still so many of you here shortly before midnight! In the European internal market, not only do enterprises undertake cross-border economic activities; increasingly they also have assets and branches in several different countries. However, there are losers, as well as winners in the internal market. This is regrettable, but no doubt inevitable. So far there has been little or no regulation of the problems that arise in the event of bankruptcy. For example, what effect does the opening of insolvency proceedings in one Member State have on assets located in another Member State?
In my view, and that expressed in the report, as well as in that of the Committee on Legal Affairs, there are question marks over this. The principle of universality, which, ideally, is inherent in the logic of the internal market and the creation of a uniform legal framework, is thereby interrupted in a way that is not factually irrefutable, unlike in the case of the above-mentioned special provisions. In any event, the same applies to the kind of concurrent proceedings – and this is very important – which are to be instituted following the opening of the main proceedings. In such cases, insolvency proceedings will already have been initiated in respect of the subsidiary at the time of the opening of proceedings in respect of the centre of main interests. For this reason, it is proposed in my report that in cases of this kind, when main proceedings are already under way, further proceedings in the form of concurrent proceedings should only be permitted with the consent of the administrator of the main proceedings.
This qualification would constitute another important step in the direction of a closed, uniform, European legal system. As a matter of fact, the opinions of the Committee on Economic and Monetary Affairs and the Committee on Employment and Social Affairs also took this line, and other opinions are against having more than one set of proceedings. They would create additional complications and delimitation problems. It is not so much the facts of the matter that have given rise to this proposal, as the pressures attending the search for a unanimous compromise. I believe Parliament should shift its emphasis here and would therefore urge those who have tabled amendments on this point to give it further thought.
Further proposals concern clarifications, for example with regard to safeguarding the independence of legal persons and other matters. On a final note, I would like to say a word of thanks to Finland and Germany, who are to be commended for initiating the proposal. This regulation lays down all conflict of law provisions in insolvency law in a compact, conclusive and binding manner, as a European legal norm, whilst upholding national systems of law in the matter. This represents a breakthrough and could be held up as an example in my view. Hence I would urge the Council to adopt the regulation as quickly as possible, taking Parliament’s proposals into account.
How do matters stand with regard to the debtor’s power of disposal? Is he able to successfully transfer assets, even after the opening of insolvency proceedings; forum shopping as it were? There are neither international law agreements worth mentioning nor European solutions. An agreement was drawn up in 1995, but it did not enter into force. This regulation will mean that these problems will now be regulated by a European legal norm in a comprehensive and conclusive manner, and what is more, it will be directly binding.
In my view, the regulation can be described as a big hit and an important step towards unitary and uniform European conflict of laws in matters of insolvency. With this regulation, the competent court of law and applicable law are determined in accordance with the State in which the debtor has the centre of his main interests. Fundamentally, it is this
that determines the opening of the insolvency proceedings, the liquidation of the total assets, including those abroad, as well as the participation of foreign creditors, the handling of the procedure and the winding up thereof. The opening of procedures has a direct Europe-wide effect, but the decisions taken at a later stage also have a direct effect, with no need for special acknowledgement procedures in other Member States.
The regulation is based on the principle of universality and uniformity underlying the procedure. In principle, the debtor’s total assets should be liquidated in one insolvency procedure, which all creditors – domestic as well as foreign – participate in and receive an equal measure of satisfaction from, i.e. it operates on a cross-border basis. In view of the differing national systems of law, for example with regard to security rights or contracts of employment, this principle of universality cannot, however, be upheld throughout. This would infringe the rights of third parties in an inadmissible manner.
Accordingly, there are a number of significant legal aspects in respect of which special provisions allow for observance of the national law in force in the respective locality. In particular, this applies to rights in rem, immoveable property, rights recorded in public registers, legal institutions such as the reservation of title, set-offs, rights of challenge, and last but not least, contracts of employment. Although these special provisions are irrefutable, the regulation also allows for one or more further insolvency procedures to be conducted in respect of a subsidiary located in another country. Such procedures are then conducted as concurrent or secondary proceedings – termed territorial insolvency procedures – the effect of which, however, is confined to the territory of the country concerned."@en1
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"lex concursus"1
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