After the work of the Senate and the proposed amendments, the shield design 4.0. returned to the Sejm, which rejected most of the amendments, leaving the draft practically in its original wording.
At the moment, the bill will be addressed to the President of the Republic of Poland, who will decide to refer it to further scrutiny or to sign, and then the entry into force of the new regulations is already a matter of the coming days.
This means that debtors will soon be able to take advantage of new solutions, with preparatory measures, such as inventory development and work on preliminary arrangement proposals, practically now.
The amendments tabled by the Senate were expected to formalise the new, simplified restructuring procedure. However, they were all rejected by the Sejm.
Perhaps indirectly, the reason for not taking them into account was that the content of the proposed provisions was not consistent with the original provisions of the project, inter alia, due to the concepts used and certain provisions directly transferred from other types of restructuring proceedings.
Such changes could cause considerable difficulties in interpreting and practical application of the new type of procedure.
The amendments proposed by the Senate include:
- - the introduction of a condition that the debtor has previously submitted contractual proposals and a list of claims before the opening notice,
- - introduction of an obligation to draw up a restructuring plan by the supervisor within the time limit 14 days after opening,
- - introducing the possibility of changing the supervisor at the request of creditors,
- - Limiting the possibility of opening systemic proceedings within 12 months after the agreement has been refused or the simplified restructuring procedure has been terminated.
Leaving the draft rules on simplified restructuring procedures has the effect that the new procedure will indeed remain a significantly facilitated way to open and carry out restructuring.
However, it is also understandable that this raises some concerns about the protection of the interests of creditors, particularly in the context of the position held by creditors in other types of proceedings.
In the case of a simplified restructuring procedure, the key objective is to enable the debtor to take swift and effective action to avoid any worsening of the crisis in the bankruptcy enterprise.
The title of the bill itself has also been changed. The new version of the title already states that the Act also concerns restructuring proceedings, now the title of the Act reads:
„Act on the payment of interest on bank loans granted to entrepreneurs affected by the effects COVID-19 and the simplified procedure for approval of the arrangement in relation to the application COVID-19”
The simplified restructuring procedure is to be based on the applicable procedure for the approval of the system, but with the introduction of significant modifications, the new procedure is likely to gain much more popularity than the occasional application of the approval procedure.
Key elements of the proposed solution:
- - initiating restructuring proceedings on the basis of a unilateral declaration by the debtor, the date of initiation will be the date of the notice in the Court and Economic Monitor;
- - as from the date of the notice, the enforcement proceedings relating to claims covered by the arrangement shall be suspended, the suspension of enforcement shall also cover claims secured by the forfeiture;
- - the responsibility of the members of the Management Board shall be excluded on similar terms as in the case of a request for bankruptcy or a request for restructuring proceedings;
- the collection of votes relating to arrangement proposals from creditors will take place as in the case of the agreement approval procedure, but the arrangement supervisor will be able to convene a meeting of creditors that can be held using electronic means of communication (e.g. Skype, Zoom, etc.);
- Within 4 months from the opening of proceedings, the debtor should apply to the court for approval of the arrangement, otherwise the procedure will be terminated by law.
Author:
Leszek Dutkiewicz, partner of Russell Bedford Poland. Associated with the company from 2011. Director of RBP office in Katowice. In years 2008 – 2011 worked for leading consulting companies (Ernst&Young, KPMG, BDO) providing tax advisory services.
He specializes in tax and economic law, primarily in international tax law, tax proceedings, VAT and transaction prices. Author of a publication on tax, civil and international law issues. Lecturer in tax law training. He has legal education, in 2008 graduated from the Faculty of Law and Administration of the Jagiellonian University.