Data Protection

Chapter VI is a new chapter in the EIR. Its presence signals the importance that data protection law has gained in Europe since the adoption of the Data Protection Directive 95/46/EC (DPD) and Regulation 45/2001. Although the DPD is not—though it comes close to—a maximum harmonisation directive, its implementation by Member States by the end of 1998 increased data protection standards on national levels as well. Yet the concrete reason that led to the addition of this Chapter is the expanded scope of the EIR as far as the exchange and publication of personal data is concerned. The expansion and thus the enhanced need for data protection is due in particular to the provision made in the recast EIR for newly established interconnected national insolvency registers, accessible via the European e-Justice Portal. This provision has been made at a time when data protection law is increasingly recognised as a ‘stand-alone’ subject, emancipated from privacy law, as expressed indirectly also by the popularisation of the ‘data protection’ nomenclature originating in the German term ‘Datenschutz’. This has clear implications for private and commercial law, including insolvency law.

Insolvency Proceedings of Members of a Group of Companies

For the purposes of points (b) and (c), all or some of the insolvency practitioners referred to in paragraph 1 may agree to grant additional powers to an insolvency practitioner appointed in one of the proceedings where such an agreement is permitted by the rules applicable to each of the proceedings. They may also agree on the allocation of certain tasks amongst them, where such allocation of tasks is permitted by the rules applicable to each of the proceedings.

Secondary Insolvency Proceedings

Where main insolvency proceedings have been opened by a court of a Member State and recognised in another Member State, a court of that other Member State which has jurisdiction pursuant to Article 3(2) may open secondary insolvency proceedings in accordance with the provisions set out in this Chapter. Where the main insolvency proceedings required that the debtor be insolvent, the debtor’s insolvency shall not be re-examined in the Member State in which secondary insolvency proceedings may be opened. The effects of secondary insolvency proceedings shall be restricted to the assets of the debtor situated within the territory of the Member State in which those proceedings have been opened.

Provision Of Information For Creditors And Lodgement Of Their Claims

Any foreign creditor may lodge claims in insolvency proceedings by any means of communication, which are accepted by the law of the State of the opening of proceedings. Representation by a lawyer or another legal professional shall not be mandatory for the sole purpose of lodging of claims.

Recognition of Insolvency Proceedings

Article 19 is a key provision of the Insolvency Regulation. It sets out the fundamental principle of the immediate and automatic recognition of judgments opening insolvency proceedings.

General Provisions

Where the proceedings referred to in this paragraph may be commenced in situations where there is only a likelihood of insolvency, their purpose shall be to avoid the debtor’s insolvency or the cessation of the debtor’s business activities.

Transitional and Final Provisions

Article 84 should be read together with Article 91 of the recast EIR. Article 91 provides for the repeal of the EIR 2000. The effect of Article 84(2) is that, notwithstanding this repeal provision, the EIR 2000 will continue to apply to insolvency proceedings opened ‘before’ 26 June 2017. This is subject to the obvious (but nevertheless important) proviso that the only kinds of proceedings that will be subject to the EIR 2000 during this interim period are ones capable of falling within the scope of the EIR 2000. This should be determined by consulting Annex A of the EIR 2000, which contains an exhaustive list of Member State proceedings to which the EIR 2000 applies. As to when proceedings should be considered ‘opened’, this should presumably be determined by the application of Article 2(f) of the EIR 2000, which defines ‘the time of the opening of proceedings’ for the purposes of that Regulation.