The EC Regulation No 1346 on insolvency proceedings allows for the coexistence of different proceedings with respect to the same debtor. This triggers certain problems in terms of efficiency of the insolvency administration within the European Judicial Space, thus menacing the effet utile of the Regulation. The article focuses on such problems, explaining the shortcomings which affect the Regulation and wondering whether the ECJ case-law managed a solution for them. As a matter of principle, preventing the opening of secondary proceedings seems in several cases to be a suitable means for protecting the main proceedings’ purposes. However, at the same time, not opening secondary proceedings could hamper the interests of local creditors, which rely on it to safeguard their rights on the grounds of the local lex concursus. The author addresses the main aspects of this tension. The Regulation is under revision as result of a Proposal of the European Commission, which, inter alia, aims to strike a balance between the aforesaid interests at odds. The author, hence, carries out a critical appraisal of the envisaged amendments having also regard to the recent reactions of the other European Institutions.
Amending the European Insolvency Regulation to Strengthen Main Proceedings
LEANDRO, Antonio
2014-01-01
Abstract
The EC Regulation No 1346 on insolvency proceedings allows for the coexistence of different proceedings with respect to the same debtor. This triggers certain problems in terms of efficiency of the insolvency administration within the European Judicial Space, thus menacing the effet utile of the Regulation. The article focuses on such problems, explaining the shortcomings which affect the Regulation and wondering whether the ECJ case-law managed a solution for them. As a matter of principle, preventing the opening of secondary proceedings seems in several cases to be a suitable means for protecting the main proceedings’ purposes. However, at the same time, not opening secondary proceedings could hamper the interests of local creditors, which rely on it to safeguard their rights on the grounds of the local lex concursus. The author addresses the main aspects of this tension. The Regulation is under revision as result of a Proposal of the European Commission, which, inter alia, aims to strike a balance between the aforesaid interests at odds. The author, hence, carries out a critical appraisal of the envisaged amendments having also regard to the recent reactions of the other European Institutions.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
