The liquidator within the framework of the european insolvency regulation

Autore:Antonio Leandro
Pagine:257-265
RIEPILOGO

1. General overview of the liquidator’s tasks in the European Insolvency Regulation («EIR»): items in common between principal and secondary insolvency proceedings. - 2. The «main liquidator». - 3. ...and the «secondary liquidator ». - 4. Coordination and co-operation between the liquidators so as to achieve the primary aims of the EIR. - 5. Concluding remarks given the prospect of EIR revision.

 
ESTRATTO GRATUITO
ANTONIO LEANDRO
THE LIQUIDATOR WITHIN THE
FRAMEWORK OF THE EUROPEAN
INSOLVENCY REGULATION
Summary: 1. General overview of the liquidator’s tasks in the European Insolvency
Regulation («EIR»): items in common between principal and secondary insol-
vency proceedings. – 2. The «main liquidator». – 3. ...and the «secondary liqui-
dator». – 4. Coordination and co-operation between the liquidators so as to
achieve the primary aims of the EIR. – 5. Concluding remarks given the prospect
of EIR revision.
1. According to the European Insolvency Regulation («EIR»), the liqui-
dator is «any person or body whose function is to administer or liquidate as-
sets of which the debtor has been divested or to supervise the administration
of his affairs» (Article 2 (b))1.
It is worth bearing in mind that the EIR allows the opening of two kinds
of proceedings: the main proceedings, to be opened in the Member State
where the debtor has his centre of main interests («COMI»), and second-
ary proceedings, to be opened in a Member State where the debtor (whose
COMI is in another Member State) has an establishment2. Secondary pro-
ceedings may even be opened prior to main proceedings, in compliance with
Article 3, para. 4.
Given that the debtor may have only one COMI and several establish-
ments, the EIR allows for the coexistence, within a cross-border insolvency
phenomenon related to the same debtor, of one main proceedings and several
secondary proceedings.
1 The persons who carry out the function of liquidator (according to the law of the Member
States) are listed in Annex C to the EIR (updated from time to time by ad hoc EU Regulations).
Some Courts appoint more than one liquidator in the same proceedings given that a single function
does not necessarily mean that only one person may perform it. This practice would not seem to be
contrary to EIR provisions.
2 For a recent characterization of the EIR heads of jurisdiction, see European Court of Justice,
20 October 2011, C-396/09, Interedil, respectively paras. 41 ff. and 64. The judgment, not yet pub-
lished, is available on the ECJ website www.curia.europa.eu.

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