Groups of companies in the Recast European Insolvency Regulation: Around and about the “group”

• DOI: http://doi.org/10.1002/iir.1354
• Date: 01 December 2019
• Published date: 01 December 2019
• Author: Alexandre Soveral Martins

RESEARCH ARTICLE

Groups of companies in the Recast European

Insolvency Regulation: Around and about the

“group”

Alexandre de Soveral Martins

Faculty of Law, University of Coimbra,

Coimbra, Portugal

Correspondence

Alexandre de Soveral Martins, Auxiliary

Professor, Faculty of Law, University of

Coimbra, Coimbra, Portugal. Researcher,

Instituto Jurídico, Coimbra, Portugal

Email: soveralm@fd.uc.pt

Abstract

Regulation (EU) 2015/848 (Recast European Insolvency

Regulation/Recast EIR) contains a set of articles dedicated

to the insolvency proceedings relative to members of

groups of companies. No substantial consolidation or any

procedural nature is envisaged. Article 2(13) of Regulation

2015/848 clarifies that, for the purposes of the same, a

“group of companies”must be understood as “a parent

undertaking and all its subsidiary undertakings.”However,

many doubts arise when one goes deeper into that defini-

tion. The author deals with some of those problems and

gives some suggestions to overcome them.

1|INTRODUCTION: THE REASONS FOR A NEW

REGULATION

Regulation (EU) 2015/848 (Recast EIR) replaced Council Regulation CE 1346/2000 of 29 May (EIR

2000). The pretexts for the Recast EIR stemmed from a Proposal for a Regulation from the Commis-

sion in 2012,

1

in which one of the (five) reasons cited was precisely the absence of a framework for

groups of companies.

2

This was indeed one of the concerns which is reflected in the Recast EIR, as

the present article will demonstrate.

The Recast EIR explains what is meant by a “group of companies”:“a parent undertaking and all

its subsidiary undertakings”(Article 2(13)). Article 2(14) provides that a:

1

Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No. 1346/2000

on insolvency proceedings COM(2012) 744 final, Sec. 1.2.

2

Gabriel Moss and Tom Smith, “Commentary on Regulation 1346/2000 and Recast Regulation 205/848 on Insolvency

Proceedings,”in Gabriel Moss, Ian Fletcher and Stuart Isaacs (eds), The EU Regulation on Insolvency Proceedings (3rd edn)

(OUP, 2016), 312, considered it “[o]ne of the notable aspects of the [EIR 2000].”

DOI: 10.1002/iir.1354

© 2019 INSOL International and John Wiley & Sons, Ltd

Int Insolv Rev. 2019;

28:354–362.

354 wileyonlinelibrary.com/journal/iir