Una riflessione da aziendalista sull’emersione anticipata della crisi: quadro attuale e sviluppi futuri

Alberto Quagli

Proposal for a Directive of the European Parliament and of the Council harmonising certain aspects of insolvency law

Data pubblicazione
08 gennaio 2023

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This initiative, announced in September 2020, is part of the Commission’s priority to advance the Capital Markets Union (CMU), a key project to further financial and economic integration in the European Union.

The lack of harmonised insolvency regimes has long been identified as one of the key obstacles to the freedom of capital movement in the EU and to greater integration of the EU’s capital markets. In 2015, the European Parliament, the Council, the Commission and the European Central Bank (ECB) jointly identified insolvency law as a key area for achieving a ‘true’ CMU2. This has also been the consistent view of international institutions, such as the International Monetary Fund (IMF) and numerous think tanks. In 2019, the IMF identified insolvency practices as one of ‘the three key barriers to greater capital market integration in Europe’, alongside transparency and regulatory quality. The ECB has repeatedly stressed the need “to address the major shortcomings and divergence between insolvency frameworks [..] beyond the draft Directive on Insolvency, Restructuring and Second Chance since ‘more efficient and harmonised insolvency laws [alongside other measures] can improve certainty for investors, reduce costs and facilitate cross-border investments, while also making risk capital more attractive and accessible to companies.

Insolvency rules are fragmented along national lines. As a result, they deliver different outcomes across Member States, and in particular they have different degrees of efficiency in terms of the time it takes to liquidate a company and the value that can eventually be recovered. In some Member States, this leads to lengthy insolvency procedures and a low average recovery value in liquidation cases. Differences in national regimes also create legal uncertainty as regards the outcomes of insolvency proceedings and lead to higher information and learning costs for cross-border creditors compared to those who only operate domestically.