The EU approach to business failure and rescue: the conceptual framework

Abstract

The European Union's approach to resolving the complicated problem of cross-border insolvency and restructuring reflects the progress of broader goals in the EU's integration policy. The EIR Recast maintained an approach supporting procedural coordination rather than substantive harmonisation in the insolvency arena. However, the recent Preventive Restructuring Directive does attempt some harmonisation but yet, reflecting the complexity of this area of law it does not provide a true harmonising framework, giving significant choice to Member States. This chapter introduces a conceptual framework for the discussion of EU coordination and harmonisation in cross-border insolvency and rescue. Key concepts such as coordination, harmonisation, cooperation, and mutual trust are introduced as is the policy background in the Capital Markets Union Plan. This chapter will examine how the landscape of one doctrinal area, namely cross-border insolvency and rescue coordination reflects broader concepts of integration in the EU. This is an overarching theme within which the subsequent chapters of this monograph operate.