Business Insolvency – New EU Rules

The EU is giving reputable bankrupt entrepreneurs a second chance, and making it easier for viable enterprises in financial difficulties to access preventive restructuring frameworks at an early stage to prevent insolvency.

The Council formally adopted today the directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures. This decision marks the end of the legislative procedure.

The overall objective of the directive is to reduce the most significant barriers to the free flow of capital stemming from differences in member states’ restructuring and insolvency frameworks, and to enhance the rescue culture in the EU based on the principle of second chance. The new rules also aim to reduce the amount of non-performing loans (NPLs) on banks’ balance sheets and to prevent the accumulation of such NPLs in the future. In doing so, the proposal aims to strike an appropriate balance between the interests of the debtors and the creditors.

The key elements of the new rules include:

  • Early warning and access to information to help debtors detect circumstances that could give rise to a likelihood of insolvency and signal to them the need to act quickly.
  • Preventive restructuring frameworks: debtors will have access to a preventive restructuring framework that enables them to restructure, with a view to preventing insolvency and ensuring their viability, thereby protecting jobs and business activity. Those frameworks may be available also at the request of creditors and employees’ representatives.
  • Facilitating negotiations on preventive restructuring plans with the appointment, in certain cases, of a practitioner in the field of restructuring to help in drafting the plan.
  • Restructuring plans: the new rules foresee a number of elements that must be part of a plan, including a description of the economic situation, the affected parties and their classes, the terms of the plans, etc.
  • Stay of individual enforcement actions: debtors may benefit from a stay of individual enforcement actions to support the negotiations of a restructuring plan in a preventive restructuring framework. The initial duration of a stay of individual enforcement actions shall be limited to a maximum period of no more than four months.
  • Discharge of debt: over-indebted entrepreneurs will have access to at least one procedure that can lead to a full discharge of their debt after a maximum period of 3 years, under the conditions set out in the directive.

Next steps

This formal vote marks the end of the legislative process. The directive will now be formally signed and then published in the official journal. Member states will have two years (from the publication in the OJ) to implement the new provisions. However, in duly justified cases, they can ask the Commission for an additional year for implementation.

Background

The proposal was presented by the Commission on 22 November 2016. The new rules complement the 2015 Insolvency Regulation which focuses on resolving the conflicts of jurisdiction and laws in cross-border insolvency proceedings, and ensures the recognition of insolvency-related judgments across the EU.

The European Parliament formally voted on the directive on 28 March 2019.

Setting up a Company in the EU to become easier

EU company law is being updated to reflect the digital age. The Council today adopted a directive that facilitates and promotes the use of online tools in the contacts between companies and public authorities throughout their lifecycle.

The directive will provide improved online procedures, creating a modern and safe way for businesses to dismantle the obstacles involving setting up companies, registering their branches or filing documents, especially in cross border operations.

Ana Birchall, Minister of Justice, Vice Prime Minister for the implementation of Romania’s strategic partnerships, interim

The new rules ensure that:

  • companies are able to register limited liability companies, set up new branches and file documents in the business register fully online;
  • national model templates and information on national requirements are made available online and in a language broadly understood by the majority of cross-border users;
  • rules on fees for online formalities are transparent and applied in a non-discriminatory manner;
  • fees charged for the online registration of companies do not exceed the overall costs incurred by the member state concerned;
  • the ‘once-only’ principle applies, meaning that a company will only need to submit the same information to public authorities once;
  • documents submitted by companies are stored and exchanged by national registers in machine-readable and searchable formats;
  • more information about companies is made available to all interested parties free of charge in the business registers.

At the same time, the directive sets out the necessary safeguards against fraud and abuse in online procedures, including control of the identity and legal capacity of persons setting up the company and the possibility of requiring physical presence before a competent authority. It maintains the involvement of notaries or lawyers in company law procedures as long as these procedures can be completed fully online. It also foresees exchange of information between member states on disqualified directors in order to prevent fraudulent behaviour.

The directive does not harmonise substantive requirements for setting up companies or doing business across the EU.

Baker McKenzie Named Mainland Europe’s Strongest Law Brand

Leading Global law firm Baker McKenzie has been named Europe’s strongest law brand in the 2018 Acritas Mainland Europe Index.

The Firm received an overall score of 100 – nearly 30 points ahead of the firm that ranked second place – and ranked top for awareness, favourability, top level engagement, multi-jurisdictional deals, multi-jurisdictional litigation, high value usage and inbound usage. The Firm ranked number one in France and Russia, and placed high in Germany, Spain and Italy.

Constanze Ulmer-Eilfort, Baker McKenzie’s Chair of the EMEA region, said: “To be named the top legal brand in Europe is an outstanding endorsement of the work we do and is welcome validation from the European market of the progress we have made. We’ve built our business around investing in our client relationships and innovating to stay relevant to clients so we’re delighted that commitment has been recognised by senior legal buyers across Europe.”

Ranking is based on the responses of 448 senior legal buyers, based in Mainland Europe about their organization’s overall legal needs, and a further 311 senior legal buyers about their international needs in the key jurisdictions of France, Germany, Netherlands, Russia and Spain.

Esteban Raventós, a member of the Firm’s Global Executive Committee, said: “Brands are built upon trust, and in professional services trust is built through excellent service and expertise. We’re pleased to be recognised for the depth of our practice in mainland Europe and our unique ability to deliver global perspectives and local expertise simultaneously.”

The Firm’s European ranking follows Acritas naming Baker McKenzie the strongest global law firm brand in its Global Elite Law Firm Brand Index for the ninth year in a row. In the global survey, the Firm ranked at the top for each of the measures in the Acritas Index – awareness, favourability, consideration for multijurisdictional deals and for multijurisdictional litigation.

EU court advisor sides with Airbnb against French restrictions

The European Court of Justice Advocate General submitted an opinion Tuesday siding with Airbnb in a case challenging strict French rules.

The Prosecutor’s Office in Paris France filed an indictment for infringement of Hoguet law (real estate law) concerning real estate agents against Airbnb Ireland. Airbnb Ireland denies acting as a real estate agent and the Court of Justice agreed. The opinion found that Airbnb services fall within the scope of “information society services.” The AG rejected that the Irish company would be covered by the nation’s Hoguet Law because there was not proper notification of the intention to apply French law to the Irish company.

In a press release accompanying the opinion the court said that the AG found that Airbnb is a “service consisting in connecting potential guests with hosts offering short-term accommodation, via a electronic portal, in a situation in which the provider of that service does not exercise control over the essential procedures for the provision of those services, constitutes an information society service.”

The opinion is not binding on the court, but is likely to be adopted.

ECJ rules EU and Canada trade agreement follows EU laws

The European Court of Justice (ECJ) ruled on Tuesday that the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU follows EU laws. The court decision was requested by Belgium and was focused on the section of CETA that concerns resolution of investment disputes between investors and states.

CETA will establish a Investment Court System (ICS) to handle disputes between investors and states. The system will include a Tribunal, an Appellate Tribunal, and a multilateral investment tribunal. The Tribunal will include 15 members: five from Canada, five from EU member states and five from third countries.

Belgium filed the request for a decision from the ECJ because the ECJ has exclusive jurisdiction over the definitive interpretation of EU law. The ECJ found that CETA did not violate this principle as long as the CETA Tribunals do not attempt to interpret EU laws.

Belgium was also concerned that the Investor-State Dispute Settlement (ISDS) mechanism would violate the EU’s principle of equal treatment in regards to treatment of a suit raised by a Canadian investor against an EU enterprise. The ECJ found that the equal treatment provision is not violated for a non-EU investor making a suit against an EU member state. The ECJ also found that EU law permits annulment of a fine by an EU member state if the CETA Tribunal finds a defect.

The EU Charter of Fundamental Rights also gives the right of access to an independent tribunal, which Belgium believed may be violated by the establishment of the CETA Tribunal. The concern was based on the fees and costs associated with the Tribunal which may make it difficult for small enterprises to bring a claim. The Commission has committed to providing co-financing for small and medium-sized entities before the Tribunal. The ECJ found these commitments to be sufficient to meet EU law.

EU launches new infringement proceedings against Poland

The European Commission on Wednesday launched infringement proceedings against Poland by sending a Letter of Formal Notice regarding its new disciplinary regime for judges.

The notice alleges that the new regime “undermines the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control, as required by the Court of Justice of the European Union.” Poland has two months to reply.

The Commission alleges that Poland has failed to meet its obligations under Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights of the European Union, which preserve the right to “an effective remedy before an independent and impartial court.” The Commission alleges that Polish law “allows to subject ordinary court judges to disciplinary investigations, procedures and ultimately sanctions, on account of the content of their judicial decisions.”

In addition, the Commission alleges that Poland’s regime does not ensure that a court can decide in first instance on disciplinary proceedings against ordinary court judges, because it gives the power to the President of the Disciplinary Chamber to determine the disciplinary court of first instance to hear a given case, “on an ad-hoc basis and with an almost unfettered discretion.”

The Commission is also of the opinion that Poland has failed to fulfill its obligations under Article 267 of the Treaty on the Functioning of the European Union (TFEU), which ensures courts’ right to request preliminary rulings from the European Court of Justice.

The EU’s concern about Poland not adhering to EU’s principles on rule of law is increasing. Last December the European Court of Justice ruled that Poland must “immediately” suspend the national legislation which lowered the mandatory retirement age for its supreme court judges.

As GDPR looms, law firms do double duty on compliance

With just three weeks until the 25 May deadline, global firms are still grappling with the challenges presented by the new General Data Protection Regulation

For privacy and data security lawyers at global law firms, there’s never been a busier time.

Linklaters makes senior addition to its Milan office

Linklaters has made a senior addition to its Milan office, with the hire of corporate veteran Roberto Casati from Cleary Gottlieb Steen & Hamilton

Casati will join the magic circle firm as a partner next week, in a move that will bolster its office in the northern Italian business and financial hub.

Prior to joining Cleary in 2004, Casati was Italian senior partner at Allen & Overy (A&O) and one of three co-heads of the magic circle firm’s global corporate management committee.

That move made waves in the Italian legal market at the time, as he joined Cleary as its first partner based full-time in the city, with the deal putting him at the top of the US firm’s lockstep.

Casati advised on a raft of major deals while at Cleary. Months after joining from A&O he secured a headline mandate for the firm, advising Italian industrial group Finmeccanica on its £1bn purchase of GKN’s stake in AgustaWestland.

During the global financial crash in 2008, he co-led the firm’s team advising Italian bank UniCredit on its deal to secure up to €6.6bn of funding, while in 2013 he advised top Italian football club Inter Milan on its takeover by a consortium of Indonesian investors.

Casati told Legal Week: “Linklaters is a perfect platform and I think their Italian practice is excellent. I hope I can bring a good level of seniority to the offering.”

Last year, Linklaters deepened its Italian offering when it opened a lower cost legal centre in the southern Italian city of Lecce. Alongside Milan, the magic circle firm also has a base in Rome.

Other international firms to make inroads in the country last year include DWF, which opened a Milan office with the hire of a 16-strong team from local independent Pavia & Ansaldo. Herbert Smith Freehills is also set to open an office in Milan this year, on the back of the hire of Simmons & Simmons Italy dispute resolution and intellectual property head Laura Orlando.

However, a number of law firms have downsized their presence in Italy in recent years, with firms including AshurstSimmons & Simmons and McDermott Will & Emery all closing bases in Rome during the past three years.

Cleary Gottlieb Rome partner Giuseppe Scassellati-Sforzolini said: “We thank Roberto for his significant contributions to the development of our Italian corporate practice during the past 14 years, and wish him the best with his future endeavors.”

Europe

Firms still need the Euro vision

Loath as one is to shoehorn last June’s referendum vote into everything, the prospect of a hard Brexit is suddenly concentrating the minds of UK law firms.

We’re not going to see the wholesale shift of gravity to Frankfurt and Paris, but getting a balanced European offering that is sufficiently responsive to new trade structures has become a major headache for law firms.

For the moment, they’re still investing. Research for The Lawyer European 100 report – out this week – underlines how much Continental Europe is still a major draw for UK and US firms alike. Goodwin picked up much of KWM Paris; DLA Piper is frolicking in Scandinavia, and Germany top of everyone’s shopping list. Yes, it’s a congested market, but it’s a rich one. No wonder the US firms keep coming; Clydes launched there last year and Ince and Pinsents each opened second offices in 2016.

Many of City heavyweights have reversed out of lower-paying jurisdictions. But there is still room for the odd quirk in coverage. Linklaters is in Lisbon; Clifford Chance is still in Prague; A&O is in Bratislava. (I mourn the days when A&O had an outpost in Albania. Heady times.)

In their last promotions rounds, the largest 10 international firms in Europe collectively made up 125 new partners – an increase from 104 the previous year. But while many firms with a mature presence in key jurisdictions – either through merger or long-ago launches – are growing their talent organically, the lateral market is still febrile. Poaching the right partner is still the preferred way to do business fast.

This week we’re focusing on the key trends on the Continent as part of our European 100 2017 launch. Over this week we’ll be highlighting the firms you need to know about, their talent strategies, and their respective positioning to help you get a sense of activities across different jurisdictions. If you’re in the market for recruitment on the Continent, you’d better read it.

 

Munich

Olswang Munich partners opt against CMS merger

Olswang’s former intellectual (IP) litigation partner Thomas Lynker is among a group of lawyers to break away from the firm following its merger with CMS Cameron McKenna and Nabarro on 1 May to launch his own boutique in Munich.

The new firm, Taliens, has offices in Munich and Paris and will specialise in IP, tech and media, continuing the legacy of Olswang.

Lynker is joined in Munich by former Olswang counsel Monika Stoehr. Olwang partner Clara Steinitz and Jean-Frederic Gaultier will practice from the Paris office. The new firm will also have a presence in Spain through its association with Madrid-based firm Baylos.

The boutique’s key clients include Chinese conglomerates TCL and ZTE.

Lynker is one of a string of partner exits from the firm ahead of the merger on 1 May. He terminated his contract with Olswang Germany on 28 April, along with Paul Stevens, the former executive partner of CMS. On 30 April, Tobias Reker, Robert John Stephen, Robert Alan Heym and Uli Foerstl terminated their contracts with Olswang, with the latter joining IP law firm D Young & Co in Munich and Heym joining CMS.

It is thought that CMS will retain Reker, two associates and two patent engineers from Olswang’s Munich patent prosecution team. They will join the UK’s LLP instead of CMS Hasche Sigle Germany branch and will remain based in the Munich office until they are relocated to an office in the European Patent Office.

The news of the launch of Taliens ends speculation as to the fate of Olswang’s five-partner strong Munich base. Fieldfisher and Cooley were tipped to take over the Munich office but the talks fell flat.

In March, Dentons hired a five-lawyer patents team from Olswang ahead of the merger. The team is led by partner Justin Hill, whose move was announced at the end of last year. He had co-chaired Olswang’s patent prosecution practice in London.

CMS declined to comment.