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CERIL Lustrum Conference on Harmonisation of EU Insolvency Law

To celebrate its 5th anniversary as an independent non-profit think tank, the Conference on European Restructuring and Insolvency Law (CERIL) held its first lustrum with a conference on Thursday 20 and Friday 21 April 2023. The conference discussed the European Commission’s long-expected legislative proposal for a directive to harmonise certain aspects of insolvency law (EC Proposal), published in December 2022.

With over 90 attendees from some 20 jurisdictions coming to Leiden University, the Netherlands, the CERIL conference brought together representatives of the European Commission with leading European experts from practice, academia, legislative branches and the judiciary to review the EC Proposal. With presentations and discussions, the conference examined the potential of the proposed harmonisation as well as its foreseen impact on national restructuring and insolvency laws and their effects on legal practice. With the objective of harmonising ‘certain aspects of insolvency law’, the EC Proposal covers a variety of topics, including (i) avoidance actions, (ii) asset tracing, (iii) pre-pack proceedings, (iv) directors’ duty to file, (v) winding-up of insolvent micro-enterprises, (vi) creditors’ committees, and lastly (vii) measures enhancing the transparency of national insolvency laws. Upon adoption, the implementation of the proposed Directive will require a large number of amendments in Member States’ current insolvency regimes. Moreover, the conference also touched upon themes which are not included in the proposal, but could be on a next agenda, such as debts of the estate and ranking of claims.

CERIL is a unique independent non-profit, non-partisan think tank providing active contributions to the European restructuring and insolvency community. Its mission is the improvement of restructuring and insolvency laws and practices in Europe, the European Union, and in its Member States. CERIL represents an impressive array of approximately 90 lawyers and other restructuring and insolvency practitioners, law professors, and (insolvency) judges from over 30 European countries.

Setting the scene for harmonisation

The afternoon started with an opening address by the CERIL Chair Prof. Bob Wessels (the Netherlands), followed by keynote speaker Dr Ondřej Vondráček (European Commission). He discussed the background, objectives and scope of the EC Proposal, as well as relevant steps leading up to the EC Proposal. Noticeable was the economical-political background of the proposal, as being one of the measures to further the EU’s Capital Market Union. This speech was followed with a lively discussion with the audience on the EC Proposal.

The programme was interrupted by a surprise ceremony for Prof. Bob Wessels. Mayor Wouter Kolff of Dordrecht bestowed, on behalf of H.M. the King of the Netherlands, a royal decoration on Wessels. The Mayor praised Wessels for his achievements throughout his career and his contributions to the restructuring and insolvency landscape in the Netherlands, Europe, and beyond. At the end of the address, Wessels was appointed Officer of the Order of Orange-Nassau, whilst the mayor placed the insignia of the Order on his chest.

The conference continued with a panel on 'what is, what isn’t and what should be harmonised', chaired by Nora Wouters (Belgium). Ass. Prof. Tomáš Richter (Czech Republic), Prof. Christoph Paulus (Germany), Prof. Lorenzo Stanghellini (Italy), and Rita Gismondi (Italy) discussed whether selected topics should be harmonised. They discussed what the existing proposal typically lacks as well as topics ready for possible harmonisation in future. Items addressed were (i) a definition of 'insolvency' and 'insolvency proceedings, (ii) ranking of creditors’ claims, (iii) debts of the estate, and (iv) rules for professional conduct and behaviour for practitioners in insolvency proceedings. The first day was concluded by a panel presenting the results of a CERIL survey. In this session chaired by Prof. Elina Moustaira (Greece), Dr Paul Omar (United Kingdom) and Prof. Reinout Vriesendorp (the Netherlands) discussed the results of the survey on the reception of the EC Proposal and reflected on the next steps in the legislative process. The general tenor of the responses received was positive, although responses were mixed when examining the respective topics of the proposal.

At the end of the conference, to mark CERIL’s work in the past 5 years, the lustrum book 'CERIL Collection I' was presented. The first copies were presented by Prof. Bob Wessels to Justice Sacha Prechal (Court of Justice of the European Union, who also decided on the 'Heiploeg' case) and Giorgio Corno (founder member of CERIL, Italy).
At the end of the conference, to mark CERIL’s work in the past 5 years, the lustrum book 'CERIL Collection I' was presented. The first copies were presented by Prof. Bob Wessels to Justice Sacha Prechal (Court of Justice of the European Union, who also decided on the 'Heiploeg' case) and Giorgio Corno (founder member of CERIL, Italy).

Examining the EC Proposal

The second day started with a welcome address by Prof. Ignacio Tirado (CERIL Vice-Chair, Spain). He also introduced the first panel of the day, chaired by Catarina Serra (Portugal), on 'A European Regime for Pre-packs and MSMEs'. It involved a lively debate with Prof. Stephan Madaus (Germany), Dr Jennifer Gant (United Kingdom), and Dr Patryk Filipiak (Poland). The second panel was chaired by Prof. Joeri Vananroye (Belgium), which examined the impact of the EC Proposal on actors in insolvency proceedings. Panellists, all insolvency practitioners, were Jasper Berkenbosch (the Netherlands), Mylène Boché-Robinet (France), Kathlene Burke (United Kingdom), Prof. Carlos Mack-Castelletti (Italy), and Georg Wabl (Austria) discussing in particular the provisions on the creditor’s committee and the director’s duty to file for insolvency. The final panel reviewed the impact of the EC Proposal on the financing and restructuring market. In a session chaired by Prof. The Hon Lady Sarah Wolffe (Scotland), again practitioners (Ferdinand Hengst (the Netherlands), Ángel Alonso Hernández (Spain), Tom Vickers (United Kingdom), and Bas van Weert (the Netherlands)) reviewed specific provisions of the EC Proposal, including on the director’s duty to file, credit bidding and executory contracts.

This conference was organised with support from the Leiden Business & Law Research Network.

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