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Odpowiedzi - Prawo Upadlosciowe
Odpowiedzi - Prawo Upadlosciowe
1. - Why is the European Union interested in establishing rules affecting the field of
insolvency?
because it wants to create a more uniform and effective framework for restructuring and
insolvency in the Member States. The aim is to make it easier for companies in financial
difficulty to restructure their liabilities and avoid unnecessary bankruptcy.
The aim of the Restructuring and Insolvency Directive is to create an effective legal
framework that enables companies in financial difficulty to restructure their liabilities,
prevent bankruptcy and preserve jobs and economic value.
The purpose of this Directive is to contribute to the proper functioning of the internal
market and to eliminate obstacles to the exercise of fundamental freedoms, such as the
free movement of capital and the freedom of establishment, which result from
differences between national laws and procedures relating to preventive restructuring,
insolvency, discharge of debt and business injunctions. .
An effective early restructuring framework will help companies avoid a long-term financial
crisis and regain their viability more quickly. This, in turn, can help preserve jobs and protect
the interests of creditors.
This framework should help prevent the loss of jobs, expertise and skills and ensure that
creditors get the maximum return on their investment - compared to what they would have
received had the company's assets been liquidated or had the second best alternative
scenario materialized had it not arisen. restructuring plan – as well as for owners and the
entire economy.
The directive focuses on three main aspects: preventive restructuring, preventive restructuring
and restructuring in insolvency proceedings.
7. - Are the tools provided for in the Directive intended for small and medium-sized
enterprises or are they better suited to larger companies?
8. - What criteria can national legislators use to define small and medium-sized
enterprises?
When defining SMEs, Member States could take due account of Directive 2013/34/EU
of the European Parliament and of the Council (5) or the Commission
Recommendation of 6 May 2003 concerning the definition of micro, small and
medium-sized enterprises.
The restructuring framework should be available before the debtor becomes insolvent under
national law, namely before it meets the conditions laid down in national law for being subject
to collective insolvency proceedings, which usually involve the removal of the debtor's assets
and the appointment of a liquidator.
11. - Can Member States introduce a viability test to give debtors access to preventive
restructuring frameworks? Under what conditions?
Member States should be able to introduce a viability test as a condition for access to
the preventive restructuring procedure provided for in this Directive. Such a test
should be carried out without prejudice to the debtor's assets and could take the form,
inter alia, of granting a temporary stay of enforcement actions or carrying out a test
without undue delay. However, the absence of damage should not prevent Member
States from requiring debtors to prove their viability at their own expense.
12. - Can debtors who are not in financial difficulties make use of preventive restructuring
frameworks?
No, To prevent abuse of the restructuring framework, the financial difficulties of the
debtor should indicate the likelihood of insolvency
13. - What tools does the Directive provide for to facilitate a successful outcome of the
restructuring framework?
To promote efficiency and reduce delays and costs, national preventive restructuring
frameworks should include flexible procedures. Differences between Member States
with regard to restructuring, insolvency and debt discharge proceedings translate into
additional costs for investors when assessing the risk of debtors falling into difficulty.
financial situation in one or more Member States, or the risks associated with investing
in viable companies in financial difficulty, as well as the costs associated with the
restructuring of companies whose establishments, creditors or assets are located in
other Member States. A particular example of this is the restructuring of international
groups of companies.
The costs and time of restructuring can be shortened through effective restructuring
procedures, early detection of financial difficulties and effective negotiations with
creditors.
16. - Restructuring only concerns the liabilities - debts.
Restructuring may concern both financial liabilities and other types of liabilities, such
as supplies and employee salaries.
18. - Does the stay of individual enforcement actions have to be general and affect all
claims?
The suspension of individual enforcement actions does not have to be general and
may only affect selected claims or categories of creditors.
19. - Is it always necessary for a judge and a restructuring expert to be involved in the
restructuring framework provided for in the Directive?
Member States should provide for the mandatory appointment of a restructuring supervisor
where: a judicial or administrative authority grants a general stay of individual enforcement
actions to the debtor, provided that in such cases the administrator is necessary to safeguard
the interests of the parties; the restructuring plan must be approved by a judicial or
administrative authority against the objections of the group of creditors; the debtor requests
it; or a majority of the creditors request it, provided that the creditors cover the supervisor's
costs and fees.
20. - During the period of negotiation of restructuring measures, is the debtor deprived of
possession of his assets?
The debtor is not always deprived of possession of assets during the period of
negotiation of restructuring measures. The directive aims to preserve the value of the
company and jobs, so the debtor can continue to manage its assets under the
supervision of a restructuring expert.
4. - Jeżeli firma nie jest rentowna, czy należy podjąć próbę restrukturyzacji?
11. - Czy państwa członkowskie mogą wprowadzić test rentowności, aby zapewnić dłużnikom
dostęp do ram restrukturyzacji zapobiegawczej? Pod jakimi warunkami?
12. - Czy dłużnicy, którzy nie mają trudności finansowych, mogą skorzystać z ram
restrukturyzacji zapobiegawczej?
13. - Jakie narzędzia przewiduje dyrektywa, aby ułatwić pomyślny wynik ram restrukturyzacji?
18. - Czy zawieszenie indywidualnych czynności egzekucyjnych musi mieć charakter ogólny i
wpływać na wszystkie roszczenia?
19. - Czy zawsze konieczne jest zaangażowanie sędziego i eksperta ds. restrukturyzacji w ramy
restrukturyzacji przewidziane w dyrektywie?