The Insolvency (EU Exit) (Scotland) (Amendment) Regulations 2019

Made: 13th March 2019

Coming into force in accordance with regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by paragraph 1(1) and (3) of schedule 2 and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 2018 and all other powers enabling them to do so.

In accordance with paragraph 1(7) of schedule 7 of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement

1

These Regulations may be cited as the Insolvency (EU Exit) (Scotland) (Amendment) Regulations 2019 and come into force on exit day.

PART 1 — Amendments to primary legislation

Amendment of the Insolvency Act 1986

2

• (1) The Insolvency Act 1986 is amended as follows.

• (2) In section 51 (power to appoint receiver)—

• (a) in subsection (1)(b) omit “other than the United Kingdom”, and

• (b) in subsection (6) at the end of the definition of “the EU Regulation” insert “ as that Regulation has effect in the law of the European Union ”.

Amendment of the Bankruptcy and Diligence etc. (Scotland) Act 2007

3

• (1) The Bankruptcy and Diligence etc. (Scotland) Act 2007 is amended as follows.

• (2) In section 45 (effect of floating charges on winding up)—

• (a) omit subsection (2),

• (b) in subsection (7)—

• (i) omit paragraph (a), and

• (ii) in paragraph (b), omit “in any other case,”, and

• (c) omit subsection (8).

Amendment of the Bankruptcy (Scotland) Act 2016

4

• (1) The Bankruptcy (Scotland) Act 2016 is amended as follows.

• (2) In section 2 (sequestration of estate of living debtor) omit subsection (1)(b)(ii) and (iii).

• (3) In section 5 (sequestration of estate of deceased debtor) omit paragraphs (c) and (d).

• (4) In section 6 (sequestration of other estates) omit subsections (3)(b)(i) and (ii), (4)(c)(i) and (ii) and (7)(b)(i) and (ii).

• (5) In section 11 (debtor application: provision of information)—

• (a) in subsection (1)(a), for “another member State” substitute “ a member State (other than Denmark) ”,

• (b) for subsection (1)(b) substitute—

(b) if the debtor's centre of main interests is situated in a member State (other than Denmark), whether or not the debtor possesses an establishment in the United Kingdom.

• (c) in subsection (2)(a), for “another member State” substitute “ a member State (other than Denmark) ”,

• (d) for subsection (2)(b) substitute—

(b) if the debtor's centre of main interests was situated in a member State (other than Denmark), whether or not the debtor possessed an establishment in the United Kingdom.

, and

• (e) omit subsection (3).

• (6) In section 12 (petition for sequestration of estate: provision of information)—

• (a) in subsection (1)(a), for “another member State” substitute “ a member State (other than Denmark) ”,

• (b) for subsection (1)(b) substitute—

(b) if the debtor's centre of main interests is situated in a member State (other than Denmark), whether or not the debtor possesses an establishment in the United Kingdom.

, and

• (c) omit subsection (2).

• (7) In section 13 (further provisions relating to presentation of petitions)—

• (a) in subsection (2), omit paragraph (b)(ii) and (iii),

• (b) in subsection (3), omit paragraph (b)(ii) and (iii), and

• (c) in subsection (4)—

• (i) after paragraph (b)(i), insert “ or ”, and

• (ii) omit paragraph (b)(iii) and (iv).

• (8) Omit sections 14A and 14B .

• (9) In section 15 (jurisdiction) omit subsection (9).

• (10) In section 16 (meaning of “apparent insolvency”) omit subsections (1)(d) and (7)(c).

• (11) In section 79(2) (provision supplementary to section 78 and interpretation of Part 5) omit the words “and to section 231”.

• (12) In section 128 (voting and drawing a dividend) omit subsections (4) to (7).

• (13) In section 129 (priority in distribution) omit subsection (8).

• (14) In section 170 (protected trust deeds - documents to be sent to creditors) omit subsection (1)(d)(v).

• (15) Omit sections 190 to 192, 207, 208 and 226.

• (16) In section 228(1) (interpretation)—

• (a) omit the following definitions—

• (i) “creditor”,

• (ii) “main proceedings”,

• (iii) “member State insolvency practitioner” ,

• (iv) “secondary proceedings” ,

• (v) “temporary administrator”, and

• (vi) “territorial proceedings”, and

• (b) in the definition of “the EU insolvency proceedings regulation” at the end insert “ as it forms part of domestic law on and after exit day ”.

• (17) Omit section 231 (proceedings under EU insolvency proceedings regulation: modified definition of estate).

• (18) In schedule 5 (information to be included in the sederunt book) omit paragraph 3A .

PART 2 — Amendments to secondary legislation

Amendment of the Bankruptcy Fees (Scotland) Regulations 2018

5

• (1) The Bankruptcy Fees (Scotland) Regulations 2018 are amended as follows.

• (2) In regulation 2 omit the definition of “member State insolvency practitioner”.

• (3) In Part 2 of the Table of Fees in the schedule (fees for other functions of the Accountant in Bankruptcy) omit item 21 (fee for conversion of a trust deed into sequestration).

Amendment of the Public Services Reform (Insolvency) (Scotland) Order 2016

6

In the Public Services Reform (Insolvency) (Scotland) Order 2016 omit article 15(6)(b) and the word “or” immediately preceding it.

Amendment of the Bankruptcy (Scotland) Regulations 2016

7

• (1) The Bankruptcy (Scotland) Regulations 2016 are amended as follows.

• (2) In schedule 1 (forms), in form 11 (statement of claim by creditor) omit note 4 (particulars of each debt: claim by Member State liquidator).

• (3) In schedule 2 (register of insolvencies), section B (protected trust deeds for creditors)—

• (a) after “Regulation (EU) 2015/848” insert “ (as it forms part of domestic law on and after exit day) ”, and

• (b) omit from “unless the granter” to “within the meaning of the said EU Regulation”.

Amendment of the Bankruptcy (Applications and Decisions) (Scotland) Regulations 2016

8

• (1) The Bankruptcy (Applications and Decisions) (Scotland) Regulations 2016 are amended as follows.

• (2) Omit regulation 17 (conversion of protected trust deed into bankruptcy).

• (3) In the schedule, omit forms 6 (conversion of protected trust deed into bankruptcy: section 190 application) and 7 (conversion of protected trust deed into bankruptcy: section 192 award).

Saving

9

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The amendments made by regulations 2 to 8 do not apply in respect of any insolvency proceedings and actions falling within Article 67(3)(c) of the withdrawal agreement.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signed

JAMIE HEPBURN — Authorised to sign by the Scottish Ministers — 2019-03-13

Explanatory note

(This note is not part of the Regulations)

Footnotes

[^f00001]: 2018 c.16.

[^f00002]: 1986 c.45. Relevant amendments have been made by S.S.I. 2011/140 and S.S.I. 2017/210.

[^f00003]: 2007 asp 3. Section 45 is not yet in force.

[^f00004]: 2016 asp 21. Relevant amendments have been made by S.S.I. 2017/210.

[^f00005]: Sections 14A and 14B were inserted by regulation 4(8) of the Insolvency (Regulation (EU) 2015/848) (Miscellaneous Amendments) (Scotland) Regulations 2017 (S.S.I. 2017/210).

[^f00006]: The definition of “member State insolvency practitioner” was inserted by regulation 4(21)(g) of S.S.I. 2017/210.

[^f00007]: The definition of “secondary proceedings” was substituted by regulation 4(21)(h) of S.S.I. 2017/210.

[^f00008]: Paragraph 3A was inserted by regulation 4(24) of S.S.I. 2017/210.

[^f00009]: S.S.I. 2018/127. A relevant amendment has been made by S.S.I. 2017/210.

[^f00010]: S.S.I. 2016/141. A relevant amendment has been made by S.S.I. 2017/210.

[^f00011]: S.S.I. 2016/397. Relevant amendments have been made by S.S.I. 2017/210.

[^f00012]: S.S.I. 2016/295. Relevant amendments have been made by S.S.I. 2017/210.

[^f00013]: OJ L 160, 30.06.2000, p.1 as last amended by Council Implementing Regulation (EU) 2016/1792 of 29 September 2016, OJL274, 11.10.2016, p.35.

[^f00014]: S.S.I. 2017/210.

[^f00015]: OJ L 141, 5.06.2015, p.19 as last amended by Regulation (EU) 2017/353 of the European Parliament and of the Council of 15 February 2017 O.J. L 57, 3.3.2017 p.19.

Editorial notes

[^c23636191]: 2018 c.16.

[^c23636201]: 1986 c.45. Relevant amendments have been made by S.S.I. 2011/140 and S.S.I. 2017/210.

[^c23636211]: 2007 asp 3. Section 45 is not yet in force.

[^c23636221]: 2016 asp 21. Relevant amendments have been made by S.S.I. 2017/210.

[^c23636231]: Sections 14A and 14B were inserted by regulation 4(8) of the Insolvency (Regulation (EU) 2015/848) (Miscellaneous Amendments) (Scotland) Regulations 2017 (S.S.I. 2017/210).

[^c23636241]: The definition of “member State insolvency practitioner” was inserted by regulation 4(21)(g) of S.S.I. 2017/210.

[^c23636251]: The definition of “secondary proceedings” was substituted by regulation 4(21)(h) of S.S.I. 2017/210.

[^c23636261]: Paragraph 3A was inserted by regulation 4(24) of S.S.I. 2017/210.

[^c23636271]: S.S.I. 2018/127. A relevant amendment has been made by S.S.I. 2017/210.

[^c23636281]: S.S.I. 2016/141. A relevant amendment has been made by S.S.I. 2017/210.

[^c23636291]: S.S.I. 2016/397. Relevant amendments have been made by S.S.I. 2017/210.

[^c23636301]: S.S.I. 2016/295. Relevant amendments have been made by S.S.I. 2017/210.

[^key-379a0cd445d1a052b6bd08dd2ca85d0b]: Reg. 1 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-759823fa074d17826eb491de5551f9ce]: Reg. 2 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-2674298f5b1ac2ab5ee844fb3830e65c]: Reg. 3 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-a27e0e9378bc79ede23ea30153392c95]: Reg. 4 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-7a24070b2e9c6563550b3a247f4b96b8]: Reg. 5 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-cc7cebb755b5846a81bb1589df81e35a]: Reg. 6 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-138e071df27308be6dacbaa4e96828ff]: Reg. 7 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-8d502990c1a19c08f7099430c8aae70f]: Reg. 8 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-6573e06688f8e2a77623e67fddd6bef5]: Reg. 9 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1

[^key-485915def4b65066fe42373ce5a724ca]: Reg. 9(1)(a) omitted (31.12.2020 immediately before IP completion day) by virtue of The Insolvency (Amendment) (EU Exit) (Scotland) Regulations 2020 (S.S.I. 2020/337), regs. 1, 2(2)(a)

[^key-723df363e7f79e980770f9e521d588b1]: Words in reg. 9(2) substituted (31.12.2020 immediately before IP completion day) by The Insolvency (Amendment) (EU Exit) (Scotland) Regulations 2020 (S.S.I. 2020/337), regs. 1, 2(2)(b)

[^key-276a0ed65d65fd8a34c316100e9fe0f9]: Reg. 9(3) omitted (31.12.2020 immediately before IP completion day) by virtue of The Insolvency (Amendment) (EU Exit) (Scotland) Regulations 2020 (S.S.I. 2020/337), regs. 1, 2(2)(c)