Supreme Court judges discuss European experience in implementing preventive restructuring

Justices of the Supreme Court took part in an international webinar organized by the EU project Pravo-Justice in cooperation with INSOL Europe 2025. The main topic of the event was to discuss the implementation of preventive restructuring in Ukraine and analyze the experience of EU member states in implementing Directive 2019/1023 of the European Parliament and of the EU Council on restructuring and insolvency.

Oleh Vaskovskyi, Secretary of the Bankruptcy Chamber of the Commercial Cassation Court of the Supreme Court, moderated one of the key panel discussions “Access to Preventive Restructuring Procedures”.

Europe continues to actively implement new approaches to insolvency resolution. Ukraine, following the European vector of development, has reformed its national legislation in this area. According to Oleh Vaskovskyi, the Code of Ukraine on Bankruptcy Procedures (CUBP), adopted in 2019, has become the main regulatory act governing insolvency. By the end of last year, the Verkhovna Rada of Ukraine adopted amendments to the Code that implemented the provisions of the EU Directive, which came into force on January 1, 2025.

According to the secretary of the specialized chamber of the CommCC of the Supreme Court, the preventive restructuring procedure has not yet been applied in Ukrainian courts, as evidenced by the monitoring of the status of applications. However, this mechanism is extremely important as it allows debtors to restore their solvency without initiating bankruptcy proceedings. In his opinion, for the effective implementation of this innovation, it is necessary to take into account the experience of other European countries that have already implemented the relevant provisions in their legal systems.

Leading international experts took part in the discussion, including judges and lawyers from Italy, Greece, Romania, the Netherlands, and France.

The following issues were discussed during the webinar:

• What challenges did the countries that were the first to implement preventive restructuring face?
• Do national approaches to defining the concepts of “threat of insolvency” and “insolvency” differ?
• To what extent are creditors interested in applying the new procedure?
• Did different jurisdictions have alternative out-of-court mechanisms for restoring solvency?

Special attention was paid to the issues of access to the preventive restructuring procedure. According to Oleh Vaskovskyi, legal entities and individual entrepreneurs can use this procedure in Ukraine, but it does not apply to banks, state-owned enterprises, government agencies and non-profit state-owned enterprises.

Mr. Vaskovskyi also noted that Ukraine used to have a pre-trial rehabilitation procedure, but it was abolished with the adoption of amendments to the CUBP. At the same time, some countries continue to use alternative mechanisms for out-of-court insolvency resolution, and their experience may be useful for Ukraine.

Justice Luciano Panzani (Italy), a representative of INSOL Europe's litigation practice, noted that Italian law has been amended in accordance with the EU Directive and described the Italian system, which has both judicial and out-of-court restructuring procedures. He emphasized the importance of creditors' participation in the restructuring process. The speaker also noted that there are three different types of restructuring proceedings in Italy. According to him, after the debtor files an application, the court appoints a restructuring manager who assists the debtor and checks the relevant data and the situation in the company. The plan can be changed, and after approval by the creditors, the court makes the final decision.

Stathis Potamitis and Vassilis Stergiou from POTAMITISVEKRIS, Greece, spoke about the procedures for cross-class approval of a preventive restructuring plan, which allow for the approval of restructuring agreements even without the consent of all classes of creditors. They also noted that Greek law already had similar mechanisms in place prior to the adoption of the EU Directive in 2020, so implementation was relatively easy.

CITR representative Paul-Dieter Cîrlănaru shared Romania's experience in implementing preventive restructuring and the challenges faced by the country in implementing the EU Directive. According to him, since 2021, Romania has introduced a system that allows most of the tools available under insolvency procedures to be applied to preventive measures. This means that companies have been able to restructure their debts even before insolvency. However, the key issue was determining the range of companies that could use this procedure. The legislation stipulates that a company should not be in bankruptcy proceedings, but in practice, courts often denied access to preventive restructuring to companies with significant debts, even if they continued to operate.

The speaker paid special attention to the issue of judicial practice in this area. Due to the low threshold for declaring a company insolvent (a debt of more than EUR 10 thousand that has not been paid within 60 days), the courts often questioned the possibility of applying preventive restructuring. There were situations when a company sought to use this procedure, but the courts rejected such applications, believing that the company was already actually insolvent. This problem has been repeatedly considered by the highest courts in Romania. At the same time, according to Paul-Dieter Cîrlănaru, the reform has nevertheless contributed to an increase in the number of companies that apply for restructuring at early stages. An important aspect was the introduction of an early warning mechanism for financial difficulties, although its effective application is currently hampered by bureaucratic obstacles.

The experience of the Netherlands in implementing the EU Directive on Preventive Restructuring was presented by Elsbeth de Vos, Judge of the Amsterdam High Court (Netherlands), who said that the Netherlands had partially implemented the Directive on January 1, 2021. According to her, the main criterion for access to the procedure is the viability of the company. She also emphasized the role of independent experts in the restructuring process.

Elsbeth de Vos noted that in the Netherlands, prior to the adoption of the EU Directive, there was no preventive restructuring procedure for companies. There was only a debt restructuring procedure for individuals. The Directive has not become a panacea, she added, and not all companies that apply for this procedure can be saved. The main criterion is the viability of the company.

Christophe Thevenot of Thevenot Partners (France) spoke about the French experience. Preventive restructuring procedures have existed in France since 1985. He said that about 50% of restructuring plans are successfully implemented. The main condition for access to the procedure is that the debtor is not in insolvency.

According to him, in France, the preventive restructuring procedure, which is called a “fuse,” was introduced in 2005. During this procedure, the debtor can propose a plan to its creditors, and this plan can last up to 10 years or even longer if the creditors agree to it.

Summing up, Oleh Vaskovskyi emphasized that participation in such events is important for improving the skills of judges and creating conditions for the effective application of new procedures. The judge expressed his gratitude to the international experts for the active dialogue and hope for further cooperation.

The event was also attended by judges of the Bankruptcy Chamber of the CommCC of the Supreme Court Valerii Kartere, Viacheslav Pieskov, Volodymyr Bilous, Head of the Department providing operation support to the Bankruptcy Chamber of the CommCC of the Supreme Court Svitlana Koltsova, Head of the Department for analytical assistance to judges of the Department for analytical and legal work of the CommCC of the Supreme Court Oksana Zahatska.