There are two approaches to the development of insolvency law in the European Union. The first relates to the procedures insolvency law, and is represented by Regulation (EU) 2015/848, Recast which will apply, in general, from 27 June 2017. This Regulation repeals Regulation (EC) No 1348/2000 on the same subject. Its purpose is to coordinate insolvency proceedings by reinforcing the lex concursusand the recognition and enforcement of judgments handed down within its scope, although, as will be seen below, it makes progress in the restructuring and second chance mechanisms. Given its design numerus clausus, the modification of the procedures to which it applies requires an implementing regulation, the latest (EU) 2016/1792 of 29 September 2016, which replaces for Poland and Slovakia Annex A of Regulation (EC) No 1348/2000, still in force as we know. Spain, as opposed to the strict concept of insolvency declared in the Regulation of 2000, adds in its Recast, procedures for the approval of refinancing agreements; out-of-court payment agreements and public negotiation for the achievement of collective refinancing agreements; approved refinancing agreements and early settlement proposals. This opens up, together with other legal systems in the area, a new approach aimed at preserving the company insofar as it is viable. R. 2015/848 addresses this new area, including the restructuring of liabilities, an approach that is prioritised in the material aspect pursued by the new proposal for a Directive, insofar as it assumes that the liquidation of a viable company should be avoided and exceptional. The last milestone, in the area of jurisdictional conflicts, concerns the publication by the Commission in 2011 and 2013 of Recommendations aimed at reducing as far as possible the differences highlighted in the action of the European institutions.

However, this procedural approach proved to be insufficient and at the same time the need to harmonise the early restructuring mechanisms themselves and the second chance, very diverse in their very existence and modalities in the Member States. This was noted in the studies carried out by the Commission on the occasion of the Recast of R. 1348/2000. Consequently, in March 2014 the Commission published a new Recommendation focusing on debt restructuring and second chance mechanisms, which have since been formally prioritised in the EU's insolvency action. In it, the Commission announced a Commission initiative that came to light on 22 November (COM (2016) 723 final).

The second approach to the treatment of insolvency in Union law is therefore material and focused on the approximation of national laws. The fact that the Commission's initiative is aimed at a proposal for a directive and not a regulation highlights the difficulty of achieving major results. The proposal is indeed limited in terms of objectives and mechanisms, but it does present appropriate principles. Firstly, its subjective scope extends its context, in relation to the second chance, to natural persons. States are not obliged to extend this regime to consumers, who may, however, benefit from its debt remission mechanisms. Objectively, it is aimed at anticipating as far as possible the procedures aimed at facilitating debt restructuring plans, which is intended to create a genuine culture aimed at detecting the problems that may lead to insolvency, especially for entrepreneurs and young companies, regardless of the nature and purpose or line of business of the insolvent party. Aware that the objectives must be achieved through negotiation, it encourages the development of out-of-court procedures, such as mediation, seeking to promote the strength of the agreement on which the restructuring must be based. In particular, it reacts to the difficulty of distinguishing between viable and non-viable companies and to the difficult balance between the agents involved. Once a proposal has been negotiated, approval by the authorities will therefore be required, while at the same time a reasonable solution will be sought for creditors who disagree with the agreement, on the basis of rules of reasonableness regarding the treatment of previously agreed guarantees or privileges. In its entire context, the directive provides for the use of electronic means of communication.

The principles already point out that the regulation is essentially aimed at small and medium-sized entrepreneurs, rather than large companies.

In Spanish law, efforts have been made in recent years along these lines - as evidenced by the aforementioned annexes to Recast, 2015/848 (Laws 25/2015; 17/2024 and 14/2013) and although there are differences, for example in the deadlines set for the remission of debts, our legislation is along the same lines as the Proposal, in general terms. On these bases, the proposal incorporates the participation of workers, who will have a vote, in cross-border restructuring and second chance plans.

An important element of the future instrument is the importance given to the position of workers in agreements that modify the employment structure. In line with various directives such as Directive 2000/14 (Art. 32), the rights of collective bargaining and collective action are guaranteed, thereby maintaining full protection of workers' rights. For the same reason, other financial regulations are being amended.

A swift negotiation of this proposal is expected, which in Spain will be in line with the announced recast of the insolvency rules, by means of a Royal Legislative Decree that will have to be accompanied, in turn, by the implementation of Regulation 2015/848, a legislative action that is truly necessary.