The Insolvency Amendment (EU 2015/848) Regulations 2017

Made: 21st June 2017

Laid before Parliament: 23rd June 2017

Coming into force: 26th June 2017

The Secretary of State, being designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to insolvency[^f00001] makes the following Regulations in exercise of the powers conferred upon him by that section.

Citation and Commencement

1

These Regulations may be cited as the Insolvency Amendment (EU 2015/848) Regulations 2017 and come into force on 26th June 2017.

Amendments and extent

2

• (1) The Schedule has effect.

• (2) Any provision of these Regulations amending or applying an enactment has the same extent as the enactment amended or applied, except that—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) the amendments to that Act made by Part 4 of that Schedule apply to Scotland only.

Temporal application

3

• (1) These Regulations do not apply to proceedings opened before 26 June 2017.

• (2) The time at which proceedings are opened is to be determined in accordance with Article 2(8) of Regulation (EU) 2015/848 of the European Parliament and of the Council[^f00003].

Saving

4

The Insolvency Act 1986 as it applies to the instruments listed in regulation 4(2) of the Deregulation Act 2015 and Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) (Savings) Regulations 2017[^f00004] continues to apply to those instruments without the amendments made to the Insolvency Act 1986 by Parts 1 and 4 of the Schedule.

SCHEDULE

PART 1 — Amendments to the Insolvency Act 1986

1

The Insolvency Act 1986 is amended as follows.

2

In section 1 (those who may propose an arrangement) in subsection (5) for the words from “the EC Regulation” to the end substitute “Article 3 of the EU Regulation”[^f00005].

3

In section 106 (final account prior to dissolution) after subsection (4) insert—

(4A) Subsection (4B) applies where, immediately before the liquidator sends a copy of the account of the winding up to the registrar under subsection (3), there are EU insolvency proceedings open in respect of the company in one or more other member States. (4B) The liquidator must send to the registrar, with the copy of the account, a statement— (a) identifying those proceedings, (b) identifying the member State liquidator appointed in each of those proceedings, and (c) indicating, in relation to each of those member State liquidators, whether that member State liquidator consents to the company being dissolved.

4

In section 117 (High Court and county court jurisdiction) in subsection (7) for “the EC Regulation (jurisdiction under EC Regulation)” substitute “the EU Regulation (jurisdiction under EU Regulation)”[^f00006].

5

In section 120 (Court of Session and sheriff court jurisdiction) in subsection (6) for “the EC Regulation (jurisdiction under EC Regulation)” substitute “the EU Regulation (jurisdiction under EU Regulation)”[^f00007].

6

In section 124 (application for winding up)[^f00008] in subsection (1) for the words from “a liquidator” to “(within the meaning of Article 38 of the EC Regulation)” substitute “a member State liquidator appointed in proceedings by virtue of Article 3(1) of the EU Regulation or a temporary administrator (within the meaning of Article 52 of the EU Regulation)”.

7

In section 146 (final account)[^f00009] after subsection (5) insert—

(6) Subsection (7) applies where, immediately before the liquidator sends a copy of the account to the registrar under subsection (4) (or, where the liquidator sends a copy of the account to the court and the registrar on different days, immediately before the liquidator sends the first of those copies) there are EU insolvency proceedings open in respect of the company in one or more other member States. (7) The liquidator must send to the court and the registrar, with the copy of the account, a statement— (a) identifying those proceedings, (b) identifying the member State liquidator appointed in each of those proceedings, (c) indicating, in relation to each of those member State liquidators, whether that member State liquidator consents to the company being dissolved.

8

After section 146 insert—

(146A) (1) This section applies where— (a) the official receiver sends to the registrar of companies a notice that the winding up of a company by the court is complete, and (b) immediately before the official receiver sends the notice there are EU insolvency proceedings open in respect of the company in one or more other member States. (2) The official receiver must send to the registrar, with the notice, a statement— (a) identifying those proceedings, (b) identifying the member State liquidator appointed in each of those proceedings, and (c) indicating, in relation to each of those member State liquidators, whether that member State liquidator consents to the company being dissolved.

9

• (1) Section 201 (dissolution on voluntary winding up)[^f00010] is amended as follows.

• (2) In subsection (2)—

• (a) after “or the account and statement” insert “and any statement under section 106(4B),”;

• (b) at the end insert “(except where subsection (2A) applies)”.

• (3) After that subsection insert—

(2A) This subsection applies where a statement sent to the registrar under section 106(4B) indicates that a member State liquidator does not consent to the company being dissolved. (2B) Where subsection (2A) applies, the company is deemed to be dissolved at the end of the period of 3 months beginning with the date (if any) recorded in the register as the date on which the registrar was notified that— (a) all proceedings identified in the statement sent under section 106(4B) were closed, or (b) every member State liquidator appointed in those proceedings consented to the company being dissolved.

10

• (1) Section 202 (early dissolution: England and Wales)[^f00011] is amended as follows.

• (2) After subsection (2) insert—

(2A) Subsection (2B) applies where, immediately before the official receiver makes an application under subsection (2), there are EU insolvency proceedings open in respect of the company in one or more other member States. (2B) The official receiver must send to the registrar, with the application, a statement— (a) identifying those proceedings, (b) identifying the member State liquidator appointed in each of those proceedings, and (c) indicating, in relation to each of those member State liquidators, whether that member State liquidator consents to the company being dissolved.

• (3) In subsection (3) for “that application” substitute “an application under subsection (2)”.

• (4) In subsection (4) for “of this section” substitute “and send any statement under subsection (2B)”.

• (5) In subsection (5)—

• (a) in the first sentence—

• (i) after “under subsection (2)” insert “and any statement under subsection (2B)”,

• (ii) after “shall forthwith register it” insert “or them”, and

• (iii) at the end insert “(except where subsection (6) applies)”;

• (b) after the first sentence insert—

(6) This subsection applies where a statement under subsection (2B) indicates that a member State liquidator does not consent to the company being dissolved. (7) Where subsection (6) applies, the company is deemed to be dissolved at the end of the period of 3 months beginning with the date (if any) recorded in the register as the date on which the registrar was notified that— (a) all proceedings identified in the statement under subsection (2B) were closed, or (b) every member State liquidator appointed in those proceedings consented to the company being dissolved.

• (6) In that subsection the second sentence becomes subsection (8).

• (7) In that subsection, for “that period” substitute “the period in subsection (5) or (7)”.

11

In section 203 (consequence of notice under section 202), in subsection (3)(b) for "section 202(5)" substitute “section 202(8)”.

12

• (1) Section 205 (dissolution otherwise than under sections 202 to 204) is amended as follows.

• (2) In subsection (2)—

• (a) after “or the notice” insert “and any statement under section 146(7) or 146A(2)”, and

• (b) after “the registration” insert “of the final account or notice”.

• (3) After that subsection insert—

(2A) Subsection (2B) applies where a statement sent to the registrar under section 146(7) or 146A(2) indicates that a member State liquidator does not consent to the company being dissolved. (2B) The company is not dissolved at the end of the period mentioned in subsection (2) but is instead dissolved at the end of the period of 3 months beginning with the date (if any) recorded in the register as the date on which the registrar was notified that— (a) all proceedings identified in the statement under section 146(7) or 146A(2) were closed, or (b) every member State liquidator appointed in those proceedings consented to the company being dissolved.

13

In section 221 (winding up of unregistered companies)[^f00012] in subsection (4) for “EC Regulation” substitute “EU Regulation”.

14

In section 225 (company incorporated outside Great Britain may be wound up though dissolved)[^f00013] in subsection (2) for “EC Regulation” substitute “EU Regulation”.

15

In section 240 (“relevant time” under sections 238 and 239) in subsection (3)(d) for “Article 37 of the EC Regulation” substitute “Article 51 of the EU Regulation”.

16

In section 247 (meaning of “insolvency” and “go into liquidation”)[^f00014] in subsection (3)(b) for “Article 37 of the EC Regulation” substitute “Article 51 of the EU Regulation”.

17

In section 251 (expressions used generally) at the appropriate places insert the following definitions—

• “EU insolvency proceedings” means insolvency proceedings as defined in Article 2(4) of the EU Regulation;

• “member State liquidator” means a person falling within the definition of “insolvency practitioner” in Article 2(5) of the EU Regulation appointed in insolvency proceedings listed in Annex A to the EU Regulation;

18

In section 263I (debtors against whom an adjudicator may make a bankruptcy order)[^f00015] in subsections (1)(b) and (4) for “EC Regulation” substitute “EU Regulation”.

19

In section 264 (who may present a bankruptcy petition)[^f00016]—

• (a) in subsection (1)(ba) for “Article 38 of the EC Regulation” substitute “Article 52 of the EU Regulation”, and

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

(bb) by an insolvency practitioner (within the meaning of Article 2(5) of the EU Regulation) appointed in proceedings by virtue of Article 3(1) of the EU Regulation,

20

In section 265 (creditor’s petition: debtors against whom the court may make a bankruptcy order)[^f00017] in subsections (1)(b) and (4) for “EC Regulation” substitute “EU Regulation”.

21

In section 330 (final distribution)[^f00018] in subsection (6) for “Article 35 of the EC Regulation” (surplus in secondary proceedings to be transferred to main proceedings) substitute “Article 49 of the EU Regulation” (assets remaining in the secondary compulsory proceedings).

22

In section 387 (meaning of “the relevant date”)[^f00019] in subsections (3)(aa) and (ab) for “Article 37 of the EC Regulation” substitute “Article 51 of the EU Regulation”[^f00020].

23

In section 388 (meaning of “act as an insolvency practitioner”)[^f00021] in subsection (6) for “EC Regulation” substitute “EU Regulation”.

24

In section 411 (company insolvency rules)[^f00022] in subsections (1), (2A) and (2B) for “EC Regulation” in each place where it occurs substitute “EU Regulation”.

25

In section 412 (individual insolvency rules (England and Wales))[^f00023] in subsections (1), (2A) and (2B) for “EC Regulation” in each place where it occurs substitute “EU Regulation”.

26

In section 420 (insolvent partnerships)[^f00024] in subsections (1A) and (1B) for “EC Regulation” substitute “EU Regulation”.

27

In section 421 (insolvent estates of deceased persons)[^f00025] in subsections (1A) and (1B) for “EC Regulation” substitute “EU Regulation”.

28

In section 436 (expressions used generally)[^f00026] in subsection (1)—

• (a) omit the definition of “the EC Regulation”, and

• (b) at the appropriate place insert—

• “the EU Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings;

29

In section 436A (proceedings under EC Regulation: modified definition of property)[^f00027] including in the heading, for “EC Regulation” substitute “EU Regulation”.

30

• (1) Schedule B1 (administration)[^f00028] is amended as follows.

• (2) In paragraph 84—

• (a) after sub-paragraph (1) insert—

(1A) Sub-paragraph (1B) applies where, immediately before the administrator sends the notice, there are EU insolvency proceedings open in respect of the company in one or more other member States. (1B) The administrator must send to the registrar, with the notice, a statement— (a) identifying those proceedings, (b) identifying the member State liquidator appointed in each of those proceedings, and (c) indicating, in relation to each of those member State liquidators, whether that member State liquidator consents to the company being dissolved.

• (b) In sub-paragraph (3)—

• (i) after “sub-paragraph (1)” insert “and any statement under sub-paragraph (1B)”, and

• (ii) at the end insert “or them”.

• (3) In sub-paragraph (6) at the end, insert “(except where sub-paragraph (6A) applies)”.

• (4) After sub-paragraph (6) insert—

(6A) This sub-paragraph applies where a statement under sub-paragraph (1B) indicates that a member State liquidator does not consent to the company being dissolved. (6B) Where sub-paragraph (6A) applies, the company is deemed to be dissolved at the end of the period of three months beginning with the date (if any) recorded in the register as the date on which the registrar was notified that— (a) all proceedings identified in the statement under sub-paragraph (1B) were closed, or (b) every member State liquidator appointed in those proceedings consented to the company being dissolved.

• (5) In sub-paragraph (7)(a) and (c), after “sub-paragraph (6)” insert “or (6B)”.

31

In Schedule B1[^f00029] (administration) in paragraph 111(1B) for the words from “the EC Regulation” to the end substitute “Article 3 of the EU Regulation”.

PART 2 — Amendments to the Insolvency (England and Wales) Rules 2016

Amendments to the Insolvency Rules 2016

32

The Insolvency (England and Wales) Rules 2016[^f00030] are amended as follows.

Rule 1.2 (defined terms)

[Note: The note appearing after the definition of “document” should be replaced by: “[Note: EU Regulation is defined for the purposes of these Rules by section 436 of the Act as Regulation (EU) 2015/848 of the European Parliament and of the Council.]

33In rule 1.2(2)—ain the definition of “Article 1.2 undertaking” for “Council Regulation (EC) No. 1346/2000 (“the EC Regulations”)” substitute “Regulation (EU) 2015/848 of the European Parliament and of the Council” (“the EU Regulations”)” and for footnote “(a)” substitute “OJEU L141/19, 5.6.2015;”;bfor the definition of “main proceedings” substitute—“main proceedings” means proceedings opened in accordance with Article 3(1) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of that Regulation and which—in relation to England and Wales, are set out in Annex A to that Regulation under the heading “United Kingdom”; andin relation to another member State, are set out under the heading relating to that member State;cin the definition of “member State liquidator” for “a person falling within the definition of liquidator in Article 2(b)” substitute “a person falling within the definition of “insolvency practitioner” in Article 2(5)” and for the two references to the “EC Regulation” substitute the “EU Regulation”;din the definition of “non-EC proceedings” for that term substitute “non-EU proceedings”;efor the definition of “secondary proceedings” substitute—“secondary proceedings” means proceedings opened in accordance with Article 3(2) and (3) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of that Regulation and which—in relation to England and Wales, are set out are set out in Annex A to that Regulation under the heading "United Kingdom";and in relation to another member State are set out under the heading relating to that member State;ffor the definition of “territorial proceedings” substitute—“territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of that Regulation and which—in relation to England and Wales, are set out in Annex A to the EU Regulation under the heading "United Kingdom"; andin relation to another member State, are set out under the heading relating to that member State;

341Rule 1.20 (registrar of companies: covering notices) is amended as follows.2After paragraph (1)(n) insert—oan undertaking given under Article 36 of the EU Regulation..

Rule 2.14 (documents filed with the court to obtain a moratorium (paragraph 7(1) of Schedule A1))

35