Preventivno restukturiranje kao sredstvo izbegavanja pojave stečajnih razloga - nova tendencija zakonodavstva Evropske unije
Commentary on preventive restructuring of companies in financial difficulties under EU legislation

Summary/Abstract: A bona fide and economically prospective debtor, which is in financial difficulties, but until the bankruptcy proceedings occur and the bankruptcy proceedings are initiated, in the event of the consent of the majority of creditors, may initiate a preventive restructuring procedure, the consequences of which will extend to the dissenting creditors. By such regulation, it is possible to achieve the necessary unified legal will of the debtor and all creditors. Otherwise, different creditors would differently assess the economic position and prospects of the debtor, and such diversification would reduce the likelihood of successful implementation of preventive restructuring.Atthe same time, such a rule justifiably requires a balance of interests to be struck in favor of dissenting creditors, who are guaranteed a minimum of what they would receive if the preventive restructuring procedure was not initiated, which establishes the economic balance of interests of all entities. However, the guarantee given to dissenting creditors leads to interferencewith the freedom of entrepreneurial activity since only those measures can be implemented which do not create a risk of violation ofthe guaranteed right given to dissenting creditors. In practice, this means that these funds, which are guaranteed by dissenting creditors, cannot be used to undertake entrepreneurial restructuring because their result is uncertain and thus cannot be a basis for increasing the debtors' financial resources. However, in exceptional cases, European legislation provides for the possibility of adopting a restructuring plan without the consent of the majority of creditors in the event of obtaining the consent of the court. Nevertheless, the borrower is economically stimulated to obtain the factual approval of as many creditors as possible because creditors cannot be legally compelled to make new loans, which is usually required by the borrower. At the same time, preventive restructuring cannot be initiated without the consent of the debtor (at the initiative of most creditors).

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