Businesses' operations increasingly have cross-border repercussions. Consequently, they are being more closely regulated by European Union law.
To this end, a European regulation exists that governs public collective insolvency proceedings between EU Member States for the purposes of recovery, debt adjustment, restructuring and liquidation.
More specifically, this regulation governs:
- the territorial jurisdiction for opening insolvency proceedings;
- the actions that result directly from insolvency proceedings and that are closely related to them;
- the provisions on the recognition and enforcement of decisions handed down as part of these proceedings;
- the provisions regarding the law that applies to the insolvency proceedings.
In addition, it sets rules on the coordination of insolvency proceedings involving a single debtor or several members of a single group of companies.
When main insolvency proceedings have been brought against a legal person or company in a Member State other than the one in which its registered office is located, there is an option to open secondary insolvency proceedings in the Member State where its registered office is located if the debtor engages in business there.
The process of lodging the claim abroad is facilitated for the creditor.
Who is concerned
The creditor of an individual or company conducting business or having financial interests in an EU country other than the one in which they have their usual place of residence and against whom insolvency proceedings are brought.
The opening of one or more insolvency proceedings in an EU Member State – except for Denmark – in which all or a large portion of a debtor's creditors are located, and where:
- a debtor is completely or partially divested of their assets and an insolvency practitioner (e.g. a liquidator) is appointed;
- a debtor's assets and affairs are subject to control or supervision by a court; or
- the proceedings are suspended to enable negotiations between the debtor and their creditors.
'Preventive' insolvency proceedings provided for by national laws are covered in the different EU member states.
Proceedings are brought before the courts of the EU country in which the debtor's centre of main interests is located, for example:
- the location of the debtor's registered office, in the case of a company or legal person;
- the main location of business activity, in the case of a natural person exercising a liberal profession or engaged in any other business activity as a self-employed person;
- the usual place of residence, in the case of any other natural person.
If the debtor's place of operation is in an EU country other than the one in which the debtor's centre of main interests is located, that country may also open insolvency proceedings against the debtor. However, these 'secondary' insolvency proceedings are restricted to the assets located in that country.
The jurisdiction rules establish only international jurisdiction, that is, they specify the Member State whose courts may open insolvency proceedings.
In Luxembourg, this includes the following proceedings:
- controlled management;
- composition with creditors to avoid bankruptcy (by surrender of property);
- special liquidation scheme for notaries;
- collective debt settlement procedure in the case of over-indebtedness.
In general, the applicable law is the law of the country in which the proceedings are brought. This law determines the terms of the opening, conduct and closing of the proceedings. In particular, it determines the following aspects:
- the debtors against whom proceedings may be brought;
- the assets that are part of the insolvency estate;
- the creditors' rights after the closing of the proceedings;
- the attribution of the costs and fees of the proceedings.
Group insolvency proceedings
The regulation provides a special legal framework to address the insolvency of members of a group of companies. This framework includes:
- rules requiring the various insolvency practitioners and relevant courts to cooperate and communicate with one another;
- limited rights of standing for an insolvency practitioner in proceedings involving another member of the same group;
- a specific system for coordinating proceedings involving the same group of companies (insolvency proceedings for groups of companies).
Viewing the insolvency registers
To ensure that creditors and courts receive all necessary information and to avoid the opening of parallel proceedings, each EU country publishes information on cross-border insolvency cases in an online register that anyone can view. These registers are interconnected with the European e-Justice Portal and contain debtor-related information.
Luxembourg does not have any insolvency registers. Bankruptcy details are communicated by the courts rendering the bankruptcy order to the Trade and Companies Register (Registre de Commerce et des Sociétés - RCS), which adds this information to its database.
Searches can also be performed on the 'Bankruptcies' page of the Luxembourg Bar website by entering the company's name, the date of the bankruptcy ruling or the trustee's name.
How to proceed
Lodging a claim based on the EU Regulation
As soon as insolvency proceedings are opened in an EU Member State, the court with jurisdiction in that State, or the insolvency practitioner, immediately notifies all known foreign creditors of the proceedings.
Foreign creditors may lodge their claims in insolvency proceedings brought in another Member State through any means of filing that is provided for by the laws of the State where the proceedings are brought.
Representation by a lawyer or another legal professional is not required for the sole purpose of lodging claims.
Using the standardised forms that are available in all the official EU languages makes it easier to lodge a claim, but the use of these forms is optional.
Forms / Online services
Modèle de déclaration de créance en cas de faillite de l’employeur
Modèle de déclaration de créance pour les procédures d'insolvabilité transfrontalières