Vol 20 (2023) - Issue 6

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Prohibited Restructuring Measures and Disguised Non-MarketConformity in Restructuring Plan

Synopsis
The Directive (EU) 2019/1023 on Restructuring and Insolvency of 20 June 20191 is of great importance to pre-insolvency restructurings in Europe. Its centrepiece is the preventive restructuring framework and, in this context, the restructuring plan. The drafting of restructuring plans and – to a certain degree – the conducting of restructuring undertakings in general is firmly in the hands of the debtor.3 In some situations, an accompanying decision by a national judicial or administrative authority is required in order for the debtor to succeed with its4 undertaking. This leads to a few complications. Some integral elements concerning the justification of restructuring plans by a judicial or administrative authority can only function effectively and properly, if the debtor acts in good faith. In cases where the debtor fails to do so, this poses challenges for the entire restructuring undertaking.