In early February, the latest version of the draft amending restructuring law was published. The modified version of the project is the result of comments made during the opinion and the work of the European Committee. Legislative work continues, initially expected to be completed in 2023. Below is an overview of the selected modifications that appeared in the project relative to its original version.
New date of entry into force of the Act
Originally, the authors of the project assumed long, because 18-monthly vacatio legis. According to the new version of the project, the rules will enter into force 1 March 2024 and that some regulations will apply after the end 14 days after the announcement.
Designation of supervisor/manager
The legislator plans to modify the court's appointment by taking into account the particularities of the case in addition to the number of cases in which the restructuring adviser acts as an overseer, administrator or administrator, his experience and additional qualifications. The purpose of the amendment is to properly dispose of matters for supervisors who deal with the particularity. An analogous modification concerns the appointment of the administrator by the court.
Liability for damage and involvement of the mediator
The supervisor and the administrator will continue to be responsible for the damage caused by improper performance of their duties. However, the legislator plans to mobilise and assist supervisors and managers to assist the debtor and creditors in their negotiations to conclude the agreement.
The supervisor and the manager will also be able to engage in the negotiations of the mediator, after obtaining the consent of the debtor, with whom he will enter into an agreement on his behalf. This will improve the negotiating capacity of debtors with creditors and allow for the negotiation of better conditions for both parties.
If the debtor considers the presence of the mediator unnecessary, he may not consent to it. This will safeguard the interests of both parties.
New elements of the restructuring plan
It is planned to extend the elements of the restructuring plan to include new permanent elements:
- a summary of the assets and liabilities of the debtor, together with an indication of the value of the assets and a description of the economic situation of the debtor and the position of his employees;
- information on creditors who will be covered by the arrangement together with the amount of their claims and an indication of the groups to which they belong, if such a breakdown is provided for;
- information on the shareholders or shareholders of the debtor, together with an indication of their shares or shares;
- the name of the overseer or administrator.
The current mandatory element of the plan, i.e. the full description and review of the planned restructuring measures will be clarified by indicating that it should specify the employment effects of, inter alia, the planned redundancies, the change in the organisation of work.
Moreover, in the case of debtors who will seek public aid, the restructuring plan will contain additional necessary elements which are part of the plan drawn up for the purposes of applying for restructuring aid.
It was proposed to introduce official models of the restructuring plan - such models of the restructuring plan, adapted to the needs of small and medium-sized entrepreneurs, will be made available by the Minister of Justice on the BIP website. This can be a helpful tool, especially for those entrepreneurs who prepare their restructuring plan themselves.
New rules for dividing creditors into groups
The current rules indicate the possibility of dividing creditors into groups, for example the legislator has calculated them 4 types. The new version does not provide for such a specification, but the requirement for compliance with the criteria for the legal relationship between creditors and debtors resulting from the obligations covered by the arrangement proposals has been added. They are to be objective, unambiguous and economically or legally justified.
New are also proposed regulations providing for and ordering the approval of the division of creditors into groups by the court.
In the event of refusal to approve the division of the court in the operative part of the order, the provisions shall indicate weaknesses and proposals for changes in the division which will allow the approval of groups of creditors.
The legitimately approved division, as well as the division into groups which take account of the proposed amendments, will be binding on the court which will issue the order on this matter.
The court's approval of the division into groups will allow for the proper qualification of creditors at an earlier stage, which will allow for the possibility of avoiding later qualification errors. This reduces the risk of failure of restructuring due to weaknesses in the distribution of creditors by group.
Conclusion on the adoption of the Agreement
The Supervisor of the Agreement as the organiser of the meeting of creditors will be required to state in the minutes of the Assembly that the arrangement was adopted together with the basis for its adoption or indication that it was not adopted and the content of the arrangement.
The Commissioner-Judge will not be able to revoke the resolution of the creditors' assembly on the adoption of the agreement. In addition, the body that will chair the Assembly of Creditors will be required to announce whether or not the agreement is accepted.
Debtor or creditor within the time limit two weeks after the notice, he will be able to apply to the court for a declaration of acceptance and approval of the arrangement.
Decommissioning of PZU by decision of the debtor
The amendment is also worth considering a provision that will regulate matters discontinuance of proceedings to approve the arrangement. After first that is the date on which the debtor submits a declaration of resignation from the proceedings. Such a declaration may be submitted until the request for approval of the arrangement has been submitted to the court. second it is not possible to apply to the court for approval within the time limit 4 months after the arrangement day.
Where an application for approval of the arrangement is submitted to the court, the procedure for approval of the arrangement shall be terminated at the time of the final decision. return of that application and final rejection or rejection of that application or final discontinuance of proceedings the examination of that application or the final approval of the agreement or the final refusal of approval of the agreement.
The introduction of such regulations should help to shorten the procedure and to set a specific point in its termination.