Sources of bankruptcy and restructuring law in Poland
12 marca 2019

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Sources of bankruptcy and restructuring law in Poland

 

Since the 1st May 2004 Poland has been a member State of the European Union. For the above mentioned reason there are cumulatively two legal systems in force on its territory. First, the Community legal system having priority of application. Second, the national legal system. The latter consists mainly of the 28th February 2003 Bankruptcy Law Act defining the rules for the collective satisfaction of creditors by liquidating the insolvent debtor's assets and the 15th May 2015 Restructuring Law Act setting out the terms of the arrangement between the insolvent (or threatened by insolvency) debtor and the creditors.

In the years 2003-2015, the legislator introduced - in one Act - a regulation consisting in the possibility of a court order or bankruptcy involving the liquidation of bankrupt assets or bankruptcy with the possibility of concluding an arrangement.

One cannot escape the fact that many European countries have recently also decided to modernize their own bankruptcy and restructuring laws. Significant changes in this regard took place in Germany, Spain, Austria, Switzerland, Italy, Greece, England, the Czech Republic, etc. The amendment of the law in Poland thus corresponds to a general European trend related to the economic crisis that began at the end of the first decade XXI century.

Other legal acts also occasionally refer to bankruptcy and restructuring.

In the European Union law system the most important legal act is Regulation (EC) 2015/848 of the European Parliament and of the Council of 20th May 2015 on insolvency proceedings. It should be explained that this regulation is an act of secondary law (created by the institutions of the European Union on the basis of an authorization granted by the Member States in the treaties). The Regulation is directly applicable to the citizens of the Member States and their organizations and does not require implementation by the national law into internal order.

It is worth noting the Commission's recommendation of 12 March 2014 on a new approach to failure in business and insolvency (2014/135 / EC). As set out in recital 1, the objective of the recommendation is' to ensure that profitable companies in financial difficulties, irrespective of where they are located in the Union, have access to national insolvency frameworks that allow for restructuring at an early stage to prevent their insolvency, thus ensuring the maximization of total value for creditors, employees, owners and for the entire economy. The recommendation also aims to allow honest entrepreneurs who have been declared bankrupt to take a second chance within the Union. Another document that should also be mentioned is the European Parliament resolution of 15 November 2011 with recommendations to the Commission on insolvency proceedings in the context of company law in the EU.

There is a work is in progress on a draft of a directive of the European Parliament and Council on a preventive framework for restructuring, a second chance policy and measures to increase the effectiveness of restructuring procedures, insolvency. In practice, this means unification of restructuring at the community level. The Restructuring Law will fall to the rank of an act implementing the directive. On 22th November 2016, the European Commission presented a proposal for a new directive that aims to put in place an effective framework for preventive restructuring across Europe to ensure that honest entrepreneurs get a second chance and improve their insolvency proceedings. http://ec.europa.eu/information_society/newsroom/image/document/2016-48/proposal_40046.pdf. The main objective of the project is to introduce an effective preventive restructuring framework, "preventive" in the Member States. The aim of creating such a framework is to encourage entrepreneurs to early restructuring in order to maximize the value of satisfying creditors. The project met with a generally positive opinion, among others, of the European Central Bank of 7th June 2017 on the proposal for a directive of the European Parliament and of the Council on the legal framework for preventive restructuring, second chances and measures to increase the effectiveness of restructuring, bankruptcy and redemption proceedings and amending Directive 2012/30/EC.

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