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Analítico de Monografia
80477
WOLF, Annika, e outro
The evolution of European insolvency law from regulatory competition to harmonization / Annika Wolf, Heikki Marjosola
In: The transformation of economic law : essays in honour of Hans-W. Micklitz / edited by Lucila de Almeida.. [et al.] ; with the assistance of Evgenia Ralli. - 1ª ed. - Oxford : Hart Publishing, 2021. - p. 193-205 ; 24 cm. - ISBN 978-1-5099-4679-2.
DIREITO COMUNITÁRIO, DIREITO ECONÓMICO, DIREITO DA CONCORRÊNCIA, HARMONIZAÇÃO DE LEGISLAÇÕES, INSOLVÊNCIA
Whether companies operate within a national or a European marketplace, a proportion of them will inevitably be unable to meet their financial obligations and will ultimately fail. The Europeanisation of national economies has increased the likelihood of cross-border insolvency proceedings in Europe. Achieving predict ability; certainty and transparency in such multinational proceedings in Europe, and dealing with a debtor in default with the least possible delay and expense to the benefit of all stakeholders, are issues that have been addressed by the European institutions. The European legislator has issued two regulations: the European Insolvency Regulation (EIR, 2000) and a revision of it (EIR recast, 2015). In 2016, the European Commission published an ambitious proposal for a directive on preventive restructuring proceedings (Directive Proposal) to further accelerate harmonisation in this area of law, which has much impact to achieve a common market. This contribution discusses the evolution of EU insolvency law. Insolvency law will here be understood broadly as covering all kinds of insolvency rules ranging from early intervention measures (before serious financial distress has materialised), to timely restructuring (ensuring the preservation of viable business operations in the face of financial trouble), to the liquidation of assets, and to giving a second chance via debt discharge. EU insolvency law is developing from what is still essentially a private international law model towards a more harmonised approach. However, even if the Directive Proposal admittedly represents a significant change of course, it leaves certain key areas of private law untouched. The project, therefore, bears many of the hallmarks of what Hans Micklitz has termed European Regulatory Private Law. The current approach to EU insolvency law is one that accommodates the private law pluralism of national private legal orders but also builds on a distinct normative model making far fewer compromises when it comes to the ongoing process of Europeanisation. Following this introduction, Section I of the contribution reviews the evolution of EU insolvency law. Section II outlines the current economic state of the EU. This is particularly important in order to rationalise the nature of the proposed legislative intervention by the Directive Proposal. Section III focuses particularly on the Commission’s strong commitment to ensuring that viable businesses in financial distress have access to coherent insolvency frameworks across all Member States and the possibility of restructuring at an early stage. The contribution concludes with an evaluation of whether the Directive will achieve its goals. The paper’s focus is appropriate to honour Hans Micklitz in recognition of his many contributions to scholarship in private law, and is an acknowledgement of his interests and pursuits. Beyond personal mentorship and encouragement, Hans Micklitz has provided us with insight and wisdom to contemplate the multifaceted nature of regulation in European law. Over his distinguished career, he has devoted much effort and applied his unique skills to teaching and scholarship in different areas of law. Hans Micklitz has inspired us as he has inspired cohorts of legal scholars and professionals. Our understanding of European law now is, and will always remain, inextricably tied to his important work.