Browse by title

You are looking at 1 - 10 of 40 items :

  • European Law x
  • Finance and Banking Law x
Clear All
You do not have access to this content

Andreas Heinzmann and Valerio Scollo

For those of us who were born in the 1970s and the 1980s, a geographic Europe without a European Economic Area is inconceivable. Our generation has been studying the acquis communautaire together with the constitutional law of the Member State where they attended university. Those who were born in the 1990s, who are entering the legal profession now, have received their pocket money and their first pay cheque in euros. Yet, the Brexit referendum in 2016 has shaken our common beliefs. Is the European Union (EU) a project European citizens need? Is it possible to maintain political stability, peace and prosperity without it? Brexit seemed to represent, at the time, the potential follow-up to Grexit and the forerunner to Italexit. After three years of self-destructive actions by the British government, the firm and united reaction of the rest of Europe has shown the world that the EU is here to stay. Until Brexit, the UK and the English practitioners were at the forefront in interpreting and making the EU financial regulations familiar to market participants. They were the point of reference. Today we still read the EU policies and laws on financial services through the lenses of English law and practice. Yet Brexit has started a process that will likely change the status quo. Brexit pushed and will push more and more practitioners in a post-Brexit EU to challenge themselves, and to find new paradigms.

You do not have access to this content

Edited by Federico Fabbrini and Marco Ventoruzzo

This comprehensive Research Handbook analyses and explains the EU’s complex system of economic governance from a legal point of view and looks ahead to the challenges it faces and how these can be resolved. Bringing together contributions from leading academics and top lawyers from EU institutions, this Research Handbook is the first to cover all aspects of the Eurozone’s legal ecosystem, and offers an up-to-date and in depth assessment of the norms and procedures that underpin the EU’s economic, monetary, banking, and capital markets unions.
You do not have access to this content

Edited by Gianni Lo Schiavo

The European Banking Union and the Role of Law offers a comprehensive and unique examination of the European Banking Union’s (EBU) impact on existing legal disciplines and assesses the role of law in shaping the EBU framework.
You do not have access to this content

Napoleon Xanthoulis

This chapter examines the provision of emergency financial support to credit institutions in light of the European Banking Union (EBU). Emergency liquidity provision can be regarded as an integral component of both EBU pillars, namely the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM).2 The first sets up a common supervisory system for credit institutions. The second introduces a procedure for the orderly winding-up of credit institutions.

You do not have access to this content

Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 4 deals with Avoidance and adjustment actions. It considers the power of IPs to challenge transactions that were entered into prior to the commencement of the insolvency proceedings and to seek to have them avoided. If this is done and the action is successful, the creditors will usually receive a larger pay-out from the insolvent estate. All Member States include some rules on the avoidance of these kinds of transactions. While many of the respective rules in Member States have common features, the various Member States have different approaches to a number of the types of transactions that are subject to possible avoidance. There are divergent approaches in relation to several matters, including the conditions that must be proved for avoidance; the time period in which transactions must fall for them to be avoided; whether the knowledge of either the debtor or the beneficiary of the transaction is important; the time limit in bringing proceedings; and the effects of avoidance. The divergence in approach is exacerbated by the fact that the operation of article 13 of the Insolvency Regulation, which can be relied on by defendants to resist avoidance actions, seems to be unclear, as manifested by recent case law of the Court of Justice of the European Union (CJEU). The Report considers what options are available to the EU to deal with this issue, including the possibility of the full harmonization of avoidance rules.
You do not have access to this content

Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 6 considers the EC Recommendation on a new approach to business failure and insolvency. The Recommendation encourages Member States to ‘put in place a framework that enables the efficient restructuring of viable enterprises in financial difficulty’ and to provide for ‘minimum standards on … preventive restructuring frameworks’. The chapter addresses in narrative form the main features of the Recommendation and their implementation in Member States. From the study, it appears that modern restructuring procedures already exist in most, if not all, Member States and that European insolvency law has gone through a significant transformation over the past decade or so. But difficulties across the EU remain in that there are some countries where such procedures are outdated at best, or completely lacking. In other cases, the procedures may be cumbersome and inefficient and have the effect of transferring wealth to out-of-the money creditors and shareholders. Other inefficiencies include prolonging the life of financially unviable enterprises. This has detrimental consequences for healthy competitors and the overall soundness of the economy. It hinders achievement of the objective of putting assets to their most effective use. There are other countries with a multiplicity of procedures that may lead to a restructuring outcome. The overall result may be complexity in the law and a number of potentially conflicting options for a debtor to contemplate in a particular case since some but not all the options may be covered by the recast Insolvency Regulation and therefore entitled to the benefit of automatic EU-wide recognition under the Regulation. In short, there appears to be the incomplete and inconsistent implementation of the Recommendation.
You do not have access to this content

Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 8 deals with Consumer over-indebtedness. This issue is of major significance, both to individual Member States and the European Commission, particularly following the global financial crisis. The EC Recommendation sees the goal of providing a fresh start as relevant to consumer debtors, as well as entrepreneurs. Over-indebtedness, as it relates to the private individual or household, is a tricky concept in that there is no one accepted or standard definition. However, what is clear is that it encompasses financial difficulty in terms of an inability or ongoing difficulty to meet outstanding financial commitments, whether household bills or credit instalments. There are a number of procedures, across the EU, which are available to consumer debtors, from bankruptcy and debt settlement procedures, to the informal arrangement. These may or may not incorporate some form of payment plan, whereby a consumer is committed to repaying a proportion of outstanding debt over a period of time. As with the entrepreneur, an integral element to fresh start is the availability of discharge from debt, where there is distinct advantage in allowing discharge without the need in principle to re-apply to a court after a short period. One area of potential concern that emerges lies in the debts that are excluded from discharge: consideration should be given to encouraging common practice across Member States, keeping the categories of non-dischargeable debts to a minimum, for example, the social responsibilities of maintenance and child support, student loans and debts that arise from criminal activities, such as fines. Another is the length and use of the payment plan, which may do little more than lock the debtor into a period of debt repayment which leads to non-productivity, and potentially exacerbates detriment such as financial exclusion. The study shows that whilst there is generally some similarity in approach to consumer over-indebtedness, divergence is in evidence, for example, in eligibility for procedures and differing conditions for debt discharge. There are active reform initiatives across many Member States, and it is as yet too early to assess the extent to which such reform will be successful. Indeed, further research would be useful, for example, in terms of the impact of consumer over-indebtedness procedures on the supply of personal credit, and the extent to which non-discharge of certain debts precludes fresh start for debtors and their families. Further study of the existence and impact of civil society organizations which represent consumers and/or provide debt advice would also be of benefit.
This content is available to you

Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 1 deals with Directors’ liability and disqualification imposed when their company ends up in insolvency. Liability can take various forms across Member States. In some Member States, the duties that directors owe when their company is solvent shift in nature when their company is near to being insolvent or actually insolvent and if directors do not fulfil their duties they can be held liable for breach of duty. In the vast majority of other states, directors are held liable if they do not file for insolvency proceedings within a prescribed period from the point where they know or ought to know that their company is insolvent. In some states, directors may be liable if they do not take action to stop their company’s slide into insolvency or act to prevent its insolvent position worsening. The liability of directors could be civil and/or criminal. There are a number of obstacles to bringing proceedings against miscreant directors. From the data obtained the following are the most frequent: the directors are impecunious and not worth pursuing; proceedings are costly; and the time delay in getting a hearing of proceedings can be substantial. There is some opinion, but far from unanimous, that the difference in approach in Member States can lead to significant problems. All but a couple of Member States have some form of disqualification process for directors and it is generally seen as an important element in the monitoring and control of directors. The approach taken to disqualification differs across the EU, and is reflected in the time periods prescribed for disqualification, the reasons for making a disqualification order and whether there are other consequences, besides disqualification from acting as a director, emanating from the handing down of an order of disqualification. A problem that exists with breaches of duties and disqualification is that neither are clearly seen as fitting within either company law or insolvency law where the directors’ company is in financial difficulty and ends up subject to insolvency proceedings, so they are matters that can ‘fall between the cracks’ as there is confusion in knowing how they should be addressed.
You do not have access to this content

European Insolvency Law

Reform and Harmonization

Gerard McCormack, Andrew Keay and Sarah Brown

Critically analysing the substantive law of insolvency in the EU countries as a whole, this book carries out horizontal cross-cutting analysis of the data gathered from a study of national insolvency laws. It selects particular areas for detailed discussion and considers the pros and cons of particular legislative solutions.
You do not have access to this content

Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 2 deals with the Institutional framework. This framework is crucial in the operation of a properly functioning insolvency system. The chapter considers in particular the role played by insolvency practitioners (IPs). The IP has a central role in the effective and efficient implementation of insolvency law, including certain powers over debtors and their assets, with a duty to protect the value of those assets, as well as the interests of creditors and other stakeholders, and to ensure impartial application of the law. The IP is the link between the court, creditors and the debtor. It is fundamentally important that IPs are appropriately qualified and display appropriate standards of competence, expertise, integrity and professionalism in the conduct of the proceedings. The study has shown that qualification and licensing standards vary considerably across EU countries but because of the principle of mutual recognition of insolvency proceedings in the Regulation on Insolvency Proceedings 1346/2000 and recast Insolvency Regulation 2015/848, the issue of incompetent or poorly qualified IPs in one Member State has potential ramifications in other Member States. A number of international and European standard setting bodies have worked on a set of principles laying down parameters for the qualifications and training of IPs and formulating guidelines for the performance of their functions. While sometimes formulated at a high level of generality, there is a considerable degree of commonality about the nature of these standards and guidelines. It may be that the European Commission could leverage the work of these other organizations with a view to formulating a common European framework.