- The so-called EU Restructuring Directive, known also as Second Chance Directive is still within implementation procedure in Poland.
- The EU law, especially ECJ judgements provided an option for a direct effect of directives, so as to motivate Member States to timely implement EU directives
- Conditions that are need to be met to use the direct effect – laid down especially in the case Van Duyn v. Home Office (case 41-74):
- The directive has not been implemented;
- The time (deadline) for implementation has passed,
- The directive grants rights towards individuals (also companies);
- The provisions of the directive are unconditional and sufficiently clear and precise.
- The EU Restructuring Directive, in our view, grants rights towards companies in distress. Especially, those rights can be:
- Automatic stay also with regard to secured claims (Article 6 Para 2 of the Directive);
- Specific rights of shareholders (Article 12);
- Protection of new financing (Article17)
- However we still believe that Polish Parliament will soon implement (transpose) the EU Restructuring Directive into Polish legal landscape.
Author: Paweł Kuglarz; Mateusz Kaliński, LL.M.; Tatara & Partners;