The events in the last few years have had significant and lasting impacts on business in general and restructuring in particular, with the latter referring to the various options available for firms experiencing difficulties. European economies, hit by both the upheavals caused by the health crisis and geopolitical tensions, have also been affected by the various support policies adopted by governments.
During this period, the construction of insolvency regimes across Member States has evolved towards an increasingly integrated Europe. The most significant development since the last edition of our European Insolvency Guide in 2017 has been the adoption of Directive (EU) 2019 / 1023 on preventive restructuring frameworks, discharge of debt and disqualifications. This directive is the first European text to substantially modify internal standards in this area. European law already took an interest in the rules governing distressed companies in the past by coordinating the application of national laws to reduce the risk of friction between them. At the time, European Union law was concerned with coordinating rules on conflicts of laws but did not harmonise the treatment of difficulties encountered by companies, which was still determined exclusively by national laws. Indeed, Regulation (EU) 2015 / 848 only addressed rules on conflicts of law, enabling the identification of the Member State in which proceedings should be opened, the law that should be applied and how the coexistence of parallel proceedings (secondary insolvency proceedings) should be organised.
Thus, the 2019 directive represents a new stage in the harmonisation of national laws. It seeks to contribute to the smooth operation of the internal market and to the removal of obstacles to the exercise of fundamental freedoms (particularly the free movement of capital and the freedom of establishment) caused by discrepancies between national insolvency laws and procedures. The transposition of this directive has led, or will lead, to more or less profound modifications of the rules applicable in each Member State or even constitute, in some cases, a genuine paradigm shift in the philosophy of national insolvency law.
This harmonisation, which started in 2019, is continuing with a new draft directive (Directive 2022 / 0408, an initial version of which was published by the European Commission on 7 December 2022). The aim is to harmonise the laws of the Member States on a number of complementary aspects in order to facilitate cross-border investments and continue to improve the operations of the single market by further reducing the discrepancies between the different national insolvency laws.
In this context, we believe that looking beyond national markets when it comes to restructuring has become necessary more than ever. Hence, we are delighted to share with you an updated version of our European Insolvency Guide, with 23 contributions written by our teams across Europe. The professionals in the Deloitte network are following, with the utmost attention, these crucial developments which will shape not only the insolvency law of tomorrow but also, and more broadly, the new reflexes to be adopted in the context of any economic activity in Europe.
Our recognised practitioners can bring together effective multi-jurisdictional teams to assist you with complex cross-border issues and, more generally, to help you with your projects in all situations you may face — as a debtor, creditor, partner, shareholder or manager of a company experiencing difficulties.
If you have any questions about this Guide or the services offered by Deloitte Legal, please contact our teams.
Key contacts
Urs Sturzenegger
Partner, Legal
Petra Spring
Senior Manager, Tax & Legal
