The organisers of the Conference thank the following for their support Conference Sponsor Academic Forum SponsorConference Supporter Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili

Shareholder Loans at the Crossroads between Corporate and Insolvency Law Melissa Vanmeenen and Arie van Hoe, University of Antwerp

Overview I. Absence of harmonisation of Insolvency Law II. Regulatory competition & the Insolvency Regulation III. Regulatory competition & the freedom of establishment IV.The way forward for Insolvency Legislation in Europe

I. Absence of harmonisation of Insolvency Law (I) Insol Europe, Harmonisation of Insolvency Law at EU Level ‘identifies and reports situations (…) where disparities between national and restructuring laws create obstacles, competitive advantages and/or disadvantages or difficulties for companies with cross- border activities or ownership within the EU’ Solution: harmonisation

I. Absence of harmonisation of Insolvency Law (II) Shareholder loans: financing of a company with debt instead of equity Member States treat shareholder loans differently in case of insolvency – problematic in transnational context COMI: Germany Shareholder: Germany UK Limited: shell company

II. Regulatory competition & the Insolvency Regulation COMI: jurisdiction & applicable law –Place of registered office –but in the absence of proof to the contrary –strengthened by principle of mutual trust pseudo-foreign companies (Auslandgesellschaft, brass-plate companies): insolvency law of the Member State of activity: art. 4.2.i Insolvency Regulation (ranking of claims)

III. Regulatory competition & the freedom of establishment (I) What is certain? CJEU: Centros, Überseering, Inspire Art –Free choice of company law –Restrictions: non-discriminatory (i); justified by imperative requirements in the general interest (ii); suitable (iii); proportional (Gebhard) pseudo-foreign companies (Auslandgesellschaft, brass-plate companies): company law of the Member State of incorporation

III. Regulatory competition & the freedom of establishment (II) What is uncertain? Extension of Centros, Überseering, Inspire Art to Insolvency law?

III. Regulatory competition & the freedom of establishment (III) Our view –Functional approach legal rules: (national) distinction between company law and insolvency law is irrelevant If not: relabelling company law in insolvency law –Insolvency legislation must meet “Gebhard” test –Shareholder loans?

IV. The way forward for Insolvency Legislation in Europe Within existing framework Regulatory competition Future framework Harmonisation COMI

The organisers of the Conference thank the following for their support Conference Sponsor Academic Forum SponsorConference Supporter Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili

Keynote Speaker: The Future of the EIR Jean-Luc Vallens

Closing Address Dr Paul Omar, University of Sussex

The organisers of the Conference thank the following for their support Conference Sponsor Academic Forum SponsorConference Supporter Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili

The organisers of the Conference thank the following for their support Conference Sponsor Academic Forum SponsorConference Supporter Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili

The organisers of the Conference thank the following for their support Conference Sponsor Academic Forum SponsorConference Supporter Consiglio Nazionale dei Dottori Commercialisti e degli Esperti Contabili