2019 No. 146

Exiting The European Union

Insolvency

The Insolvency (Amendment) (EU Exit) Regulations 2019

Made30th January 2019

Coming into force in accordance with regulation 1(2) and (3)

The Secretary of State makes these Regulations in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 M1 and section 2(2) of the European Communities Act 1972 M2.

The Secretary of State is designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to insolvency M3 and the protection of employees in the event of the insolvency of their employers M4.

In accordance with paragraph 1(1) of Schedule 7 to the European Union (Withdrawal) Act 2018 and paragraph 2(2) of Schedule 2 to the European Communities Act 1972 a draft of this instrument has been laid before, and approved by a resolution of, each House of Parliament.

Annotations:

Marginal Citations

2018 c. 16.

1978 c. 68. Section 2(2) was amended by section 27 of the Legislative and Regulatory Reform Act 2006 (c. 51) and by section 3 and the Schedule to `the European Union (Amendment) Act 2008 (c. 7).

The Secretary of State is designated by the European Communities (Designation) (No. 3) Order 2001 S.I. 2001/3495.

The Secretary of State is designated by the European Communities (Designation) (No. 2) Order 2005 S.I. 2005/1971.

Citation and commencementI11

1

These Regulations may be cited as the Insolvency (Amendment) (EU Exit) Regulations 2019.

2

The following provisions of these Regulations come into force on the day after these Regulations are made—

a

regulation 2 as it relates—

i

to paragraph 177 of the Schedule, and

ii

Part 12 of the Schedule,

b

paragraph 177 of the Schedule, and

c

Part 12 of the Schedule.

3

The remainder of these Regulations come into force on exit day.

AmendmentsI2 I2372

The Schedule has effect.

Extent and applicationI33

Any provision of these Regulations amending or applying an enactment has the same extent as the enactment amended or applied, except that—

F4a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

the amendments made to F5the Insolvency Act 1986 by Part 7 of the Schedule apply to Scotland only.

Temporal application and savingsI44

1

F6... Nothing in these Regulations affects—

F7a

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

b

the saving for the existing law in article 3 of the Insolvency Amendment (EU 2015/848) Regulations 2017 M5.

F82

The amendments made by these Regulations do not apply in respect of any insolvency proceedings and actions falling within Article 67(3)(c) of the withdrawal agreement.

F93

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F104

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F115

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F125

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Kelly Tolhurst Minister for Small Business, Consumer and Corporate Responsibility Department for Business, Energy & Industrial Strategy

SCHEDULE

Regulation 2

PART 1Amendment of retained direct EU legislation

Amendments to the EU Insolvency RegulationI51

Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings is amended as follows.

I62

1

Article 1 is amended as follows.

2

For the heading substitute “ Application and jurisdiction ”.

3

For paragraph 1 substitute—

1
The grounds for jurisdiction to open insolvency proceedings set out in paragraph 1B are in addition to any grounds for jurisdiction to open such proceedings which apply in the laws of any part of the United Kingdom.
1A
There is jurisdiction to open insolvency proceedings listed in paragraph 1B where the proceedings are opened for the purposes of rescue, adjustment of debt, reorganisation or liquidation and—
a
the centre of the debtor's main interests is in the United Kingdom; or
b
the centre of the debtor's main interests is in a Member State and there is an establishment in the United Kingdom.
1B
The proceedings referred to in paragraph 1 are—
a
winding up by or subject to the supervision of the court;
b
creditors' voluntary winding up with confirmation by the court;
c
administration, including appointments made by filing prescribed documents with the court;
d
voluntary arrangements under insolvency legislation; and
e
bankruptcy or sequestration.

4

In paragraph 2 for “Directive 2001/24/EC” substitute “ the Credit Institutions (Reorganisation and Winding up) Regulations 2004 ”.M6

I73

In Article 2—

a

insert the following paragraph—

1A
“Member State” means a state which is a member of the EU other than Denmark;

b

omit paragraphs (1) and (3);

c

in paragraph (4) for “listed in Annex A” substitute “ listed in Article 1(1B) which there is jurisdiction to open under Article 1(1A) and includes interim proceedings ”;

d

in paragraph (6)—

i

omit point (i); and

ii

in point (ii) omit “in all other articles,” and “of a Member State”;

e

omit paragraph (9);

f

in paragraph (10) omit “main”;

g

omit paragraphs (11) to (14).

I84

1

Article 3 is amended as follows.

2

For the heading “International jurisdiction” substitute “ Centre of main interests ”.

3

In paragraph 1—

a

in the first sub-paragraph omit the first sentence;

b

in the second sub-paragraph for “to another Member State” substitute “ from the United Kingdom to a Member State or to the United Kingdom from a Member State ”;

c

in the third sub-paragraph for “to another Member State” substitute “ from the United Kingdom to a Member State or to the United Kingdom from a Member State ”;

d

in the fourth sub-paragraph for “to another Member State” substitute “ from the United Kingdom to a Member State or to the United Kingdom from a Member State ”;

4

Omit paragraphs 2 to 4.

I95

1

Article 4 is amended as follows.

2

In paragraph 1—

a

in the first sentence for “Article 3” substitute “ Article 1(1A) (a) or (b) ”; and

b

for the second sentence substitute “ Where there is jurisdiction to open insolvency proceedings on either of the grounds specified in Article 1(1A)(a) or (b), the judgment opening such proceedings must state which of those grounds is applicable. ”.

3

In paragraph 2—

a

in the first sentence—

i

omit “in accordance with national law” and “Member States may entrust”;

ii

for the words from “to examine” to the end of the sentence substitute “ must examine the grounds on which there is jurisdiction to open the proceedings under Article 1(1A). ”; and

b

for the second sentence substitute “ Where this is the case and there is jurisdiction to open insolvency proceedings on either of the grounds specified in Article 1(1A)(a) or (b), the insolvency practitioner must specify in the decision opening the proceedings which of those grounds is applicable. ”.

I106

1

Article 5 is amended as follows.

2

In the heading omit “main”.

3

In paragraph 1—

a

omit “main” after “the decision opening”; and

b

for “grounds of international jurisdiction” substitute “ the grounds of jurisdiction under Article 1(1A)(a) ”.

4

In paragraph 2—

a

omit “main” after “the decision opening”;

b

omit “international”;

c

after “jurisdiction” insert “ under Article 1(1A)(a) ”; and

d

for “national law so provides” substitute “ the relevant law (other than this Regulation) of the part of the United Kingdom in which the matter is being determined so provides ”.

I11F37

Omit Articles 6 to 83.

I128

In Article 84 omit—

a

the second sentence of paragraph 1, and

b

paragraph 2.

I139

In Article 85—

a

omit paragraphs 1 and 2;

b

in paragraph 3—

i

in point (a) omit “in any Member State”; and

ii

for “that Member State” substitute “ the United Kingdom ”.

I1410

Omit Articles 86 to 90.

I1511

In Article 91 omit the second sentence.

I1612

In Article 92 omit point (c).

I1713

Omit the sentence immediately following Article 92 which begins “This Regulation shall be binding”.

I1814

Omit Annex A.

I1915

In Annex B omit all the entries other than those for the United Kingdom.

PART 2Amendments to the Insolvency Act 1986

I2016

The Insolvency Act 1986 M7 is amended as follows.

I2117

In section 1 in subsection (4) M8—

a

in paragraph (b) omit “other than the United Kingdom”; and

b

in paragraph (c) for “other than Denmark” substitute “ (other than Denmark) or in the United Kingdom ”.

I2218

In section 106 omit subsections (4A) and (4B) M9.

I2319

In section 117 omit subsection (7) M10.

I2420

In section 120 omit subsection (6).

I2521

In section 124 in subsection (1) omit the words from “or by a member State liquidator” to “Article 52 of the EU Regulation)”M11.

I2622

In section 146 omit subsections (6) and (7) M12.

I2723

Omit section 146A M13.

I2824

1

Section 201 is amended as follows M14.

2

In subsection (2) omit—

a

“and any statement under section 106(4B),”; and

b

“(except where subsection (2A) applies)”.

3

Omit subsections (2A) and (2B).

I2925

1

Section 202 is amended as follows M15.

2

Omit subsections (2A) and (2B).

3

In subsection (4) omit “and send any statement under subsection (2B)”.

4

In subsection (5)—

a

omit “and any statement under subsection (2B)”;

b

after “shall forthwith register it” omit “or them”; and

c

omit “(except where subsection (6) applies)”.

5

Omit subsections (6) and (7).

6

In subsection (8) omit “or (7)”.

I3026

1

Section 205 is amended as follows M16.

2

In subsection (2) omit “and any statement under section 146(7) or 146A(2)”.

3

Omit subsections (2A) and (2B).

I3127

In section 225 omit subsection (2).

I3228

In section 240 in subsection (3)(d) omit the words from “either following” to “Article 51 of the EU Regulation or”.

I3329

In section 247 M17 in subsection (3) omit paragraph (b) and the “, or” preceding it.

I3430

In section 251 omit the definitions of “EU insolvency proceedings” and “member State liquidator”M18.

I3531

1

Section 263I is amended as follows.

2

In subsection (1)—

a

after paragraph (a) insert—

ab
the centre of the debtor's main interests is in a member State (other than Denmark) and the debtor has an establishment in England and Wales, or

b

in paragraph (b) omit the words from the beginning of the paragraph to “the EU Regulation, but”.

3

After subsection (4) insert—

5
In this section “establishment” has the same meaning as in Article 2(10) of the EU Regulation.

I3632

In section 264 in subsection (1) omit paragraphs (ba) and (bb) M19.

I3733

1

Section 265 is amended as follows.

2

In subsection (1)—

a

after paragraph (a) insert—

ab
the centre of the debtor's main interests is in a member State (other than Denmark) and the debtor has an establishment in England and Wales, or

b

in paragraph (b) omit the words from the beginning of the paragraph to “the EU Regulation, but”.

3

After subsection (4) insert—

5
In this section “establishment” has the same meaning as in Article 2(10) of the EU Regulation.

I3834

In section 330 M20 omit subsection (6).

I3935

In section 387 M21 in subsection (3)—

a

omit paragraphs (aa) and (ab);

b

in paragraph (b) omit “, (aa) or (ab)”;

c

in paragraph (ba) omit “, (aa), (ab)”;

d

in paragraph (c) omit “, (aa), (ab)”.

I4036

In section 388 M22 omit subsection (6).

I4137

In section 411 in subsection (2B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence ”.

I4238

In section 412 in subsection (2B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence ”.

I4339

In section 420 in subsection (1B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence ”.

I4440

In section 421 in subsection (1B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence ”.

I4541

After section 422 insert—

422AMeaning of “relevant offence”
In this Part “relevant offence” means a criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day.

I4642

In section 436 in the definition of “the EU Regulation” at the end insert “ as it forms part of domestic law on and after exit day ”.

I4743

Omit section 436A M23.

I4844

In Schedule B1 M24—

a

in paragraph 84 M25—

i

omit sub-paragraphs (1A) and (1B);

ii

in sub-paragraph (3) omit “and any statement under sub-paragraph (1B)” and at the end omit “or them”;

iii

in sub-paragraph (6) omit “(except where sub-paragraph (6A) applies)”;

iv

omit sub-paragraphs (6A) and (6B); and

v

in sub-paragraph (7)(a) and (c) omit “or (6B)”;

b

in paragraph 111 M26—

i

in sub-paragraph (1A)(b) omit “other than the United Kingdom”; and

ii

in sub-paragraph (1A)(c) for “other than Denmark” substitute “ (other than Denmark) or in the United Kingdom ”.

PART 3Administration under old Part 2 of the Insolvency Act 1986

I4945

1

Part 2 of the Insolvency Act 1986 as it had effect immediately before the coming into force of section 248 of the Enterprise Act 2002 and in so far as it continues to have effect is amended as follows M27.

2

In section 8 for “Article 3 of the EC Regulation” substitute “ Article 1 of the EU Regulation ”.

PART 4Amendments to the Insolvency (England and Wales) Rules 2016

I5046

The Insolvency (England and Wales) Rules 2016 M28 are amended as follows.

I5147

In rule 1.2(2)—

a

omit the following definitions—

i

“main proceedings”,

ii

“member State liquidator”,

iii

“non-EU proceedings”',

iv

“secondary proceedings”,

v

“temporary administrator”,

vi

“territorial proceedings”;

b

insert in the appropriate places—

“COMI proceedings” means insolvency proceedings in England and Wales to which the EU Regulation applies where the centre of the debtor's main interests is in the United Kingdom;
“establishment” has the same meaning as in Article 2(10) of the EU Regulation;
“establishment proceedings” means insolvency proceedings in England and Wales to which the EU Regulation applies where the debtor has an establishment in the United Kingdom;

I5248

1

Rule 1.7 is amended as follows M29.

2

For the heading substitute “ Reasons for stating whether proceedings are or will be COMI proceedings, establishment proceedings etc. ”.

3

In the opening words for “main, secondary or territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ” and after “must include” insert “ as applicable ”.

4

In paragraph (a)—

a

at the end of sub-paragraph (ii) omit “or”;

b

after sub-paragraph (ii) insert—

iia
the place where there is an establishment within the jurisdiction, or

c

in sub-paragraph (iii) for “non-EU proceedings” substitute “ proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

5

For sub-paragraph (b) substitute—

b
for a debtor—
i
the centre of main interests, or
ii
the place where there is an establishment within the jurisdiction.

I5349

In rule 1.20 delete paragraph (1)(o).

I5450

In rule 2.3 in paragraph (1) for sub-paragraph (q) substitute—

q
whether the proceedings will be COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply with reasons;

I5551

In rule 2.14 in paragraph (2A) M30 for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I5652

In rule 2.25 in paragraph (2A) M31 for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I5753

In rule 2.38 M32 in paragraph (2) in sub-paragraph (d) for “main, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I5854

In rule 3.3 in paragraph (2) in sub-paragraph (h) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I5955

In rule 3.6 in paragraph (3) in sub-paragraph (f) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I6056

In rule 3.8 omit paragraph (3)(c).

I6157

In rule 3.10 in sub-paragraph (b) omit “(including the United Kingdom)” and “other than the United Kingdom”.

I6258

In rule 3.12 omit paragraph (1)(g).

I6359

In rule 3.13 in paragraph (1)—

a

in sub-paragraph (h) after “EU Regulation” insert “ as it has effect in the law of the United Kingdom ”; and

b

in sub-paragraph (i) for “main, secondary or territorial proceedings” substitute “ COMI proceedings or establishment proceedings ”.

I6460

In rule 3.16 in paragraph (2) in sub-paragraph (k) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I6561

In rule 3.17 in paragraph (1) in sub-paragraph (k) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I6662

In rule 3.21 in paragraph (1) in sub-paragraph (i) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I6763

In rule 3.23 in paragraph (1) in sub-paragraph (i) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I6864

In rule 3.24 in paragraph (1) in sub-paragraph (h) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I6965

In rule 3.25 in paragraph (2) in sub-paragraph (i) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I7066

In rule 3.35 in paragraph (1) in sub-paragraph (m) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I7167

In rule 3.51 in paragraph (2) in sub-paragraph (g) omit “costs referred to in Articles 30 or 59 of the EU Regulation and”.

I7268

In rule 3.63 in paragraph (4) omit sub-paragraph (d).

I7369

In rule 3.68 in paragraph (2) omit sub-paragraph (g).

I7470

In rule 6.42 in paragraph (4)(f) omit “costs referred to in Articles 30 or 59 of the EU Regulation and”.

I7571

In rule 7.5 in paragraph (1) in sub-paragraph (n) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I7672

In rule 7.6 in paragraph (8) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I7773

In rule 7.9 in paragraph (3)—

a

insert after sub-paragraph (b) “ or ”, and

b

omit sub-paragraph (d) and the “or” preceding it.

I7874

In rule 7.17 omit paragraph (2)(b) and the “or” preceding it.

I7975

In rule 7.18 in sub-paragraph (c) —

a

insert “ or ” before “contributory”, and

b

omit “or member State liquidator”.

I8076

In rule 7.20 in paragraph (1) in sub-paragraph (g) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8177

In rule 7.26 in paragraph (1) in sub-paragraph (n) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8278

In rule 7.28 in paragraph (6) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8379

In rule 7.29 omit paragraph (6).

I8480

In rule 7.32 in paragraph (1) sub-paragraph (h) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8581

In rule 7.33—

a

after paragraph (1)(f) insert “ or ”;

b

omit paragraph (1)(g); and

c

in paragraph (2)(f) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8682

In rule 7.35 in paragraph (1) in sub-paragraph (e)(ii) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8783

In rule 7.108 in paragraph (4) in sub-paragraph (m) omit “costs referred to in Articles 30 or 59 of the EU Regulation and”.

I8884

In rule 8.3 in paragraph (q) for “main, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I8985

In rule 8.19 in paragraph (1A) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I9086

In rule 10.7 in paragraph (1) for sub-paragraph (d) substitute—

d
whether—
i
the centre of the debtor's main interests is within the United Kingdom or is within a member State;
ii
the centre of the debtor's main interests is neither within the United Kingdom nor a member State;
iii
the debtor has an establishment within the United Kingdom;
iv
the debtor carries on business as an Article 1.2 undertaking;

I9187

In rule 10.8 in paragraph (1) in sub-paragraph (g) for “another” substitute “ the UK or a ”.

I9288

In rule 10.12 in paragraph (4)—

a

at the end of sub-paragraph (a) insert “ and ”; and

b

omit sub-paragraph (c) and the “and” preceding it.

I9389

In rule 10.14 omit paragraph (3).

I9490

In rule 10.19—

a

in paragraph (1) omit the words from “or a member State liquidator” to “in relation to the debtor”;

b

in paragraph (2) in sub-paragraph (f) omit the words “or member State liquidator”.

I9591

In rule 10.29—

a

in paragraph (2) in sub-paragraph (a) omit the words from “or a member State liquidator” to “in relation to the debtor”; and

b

in paragraph (6) in sub-paragraph (d) omit the words from “or a member State liquidator” to “in relation to the debtor”.

I9692

In rule 10.31 in paragraph (1) for sub-paragraph (e)(i) substitute—

i
that the court, being satisfied that the EU Regulation as it has effect in the law of the United Kingdom applies, declares that the proceedings are COMI proceedings or establishment proceedings, or

I9793

In rule 10.41 in paragraph (2) for sub-paragraph (d)(i) substitute—

i
that the adjudicator, being satisfied that the EU Regulation as it has effect in the law of the United Kingdom applies, declares that the proceedings are COMI proceedings or establishment proceedings, or

I9894

In rule 10.49—

a

in paragraph (1)—

i

at the end of sub-paragraph (b) insert “ or ”; and

ii

omit sub-paragraph (d) and the “or” preceding it; and

b

in paragraph (2) in sub-paragraph (f) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I9995

In rule 10.51 in paragraph (1) in sub-paragraph (e)(ii) for “main, secondary, territorial or non-EU proceedings” substitute “ COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I10096

In rule 10.149 in sub-paragraph (n) omit the words “costs referred to in Article 30 of the EU Regulation and”.

I10197

In rule 12.15 in paragraph (2) omit “including any member State liquidator”.

I10298

In rule 14.16 omit paragraph (3).

I10399

In rule 14.32 omit paragraph (4).

I104100

In rule 15.11 in the table in paragraph (1) omit the entry for “Main proceedings in another member State”.

I105101

In rule 15.28 in paragraph (3) omit sub-paragraph (b) and the “or” preceding it.

I106102

Omit rule 15.30.

I107103

In rule 15.31—

a

in paragraph (7) omit the words from “; and for this purpose” to the end; and

b

in paragraph (9) in the opening words omit “or member State liquidator”.

I108104

Omit rules 21.1 to 21.3 M33.

I109105

In rule 21.4 for paragraph (3)(e) substitute—

e
a statement whether the proceedings will be COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply and the reasons for so stating.

I110106

Omit rules 21.6 to 21.17.

I111107

In Schedule 4 in the table of requirements for service in paragraph 6 omit the entry relating to rule 21.2 (application for conversion into winding up/ bankruptcy under EU Regulation).

PART 5Other amendments: England and Wales

The Administration of Insolvent Estates of Deceased Persons Order 1986I112108

1

The Administration of Insolvent Estates of Deceased Persons Order 1986 M34 is amended as follows.

2

In Schedule 1 in Part 2—

a

in paragraph 1A renumber the two subsections to be inserted in section 265 of the Insolvency Act 1986 as subsections (6) and (7);

b

in the first line of the inserted subsection (7) for “subsection (5)” substitute “ subsection (6) ”; and

c

in paragraph 2 in sub-paragraph (a) in the subsection (1) to be substituted for that subsection in section 266 of the Insolvency Act 1986 omit paragraph (a).

The Land Registration Rules 2003I113109

In the Land Registration Rules 2003 M35 omit rule 171.

The Civil Proceedings Fees Order 2008I114110

1

The Civil Proceedings Fees Order 2008 M36 is amended as follows.

2

In the Table in Schedule 1 omit the entry for fee 3.6.

PART 6Other amendments: England, Wales and Scotland

The Pension Protection Fund (Entry Rules) Regulations 2005I115111

1

The Pension Protection Fund (Entry Rules) Regulations 2005 M37 are amended as follows.

2

In regulation 1—

a

in paragraph (3) omit the definitions of “establishment” and “the Insolvency Regulation”; and

b

omit paragraph (7).

3

In regulation 7—

a

in paragraph (1) for “paragraphs (2), (4) and (5)” substitute “ paragraphs (2) and (4) ”; and

b

omit paragraphs (5) and (6).

4

In regulation 7A—

a

in paragraph (2) for “paragraphs (3), (5) and (6)” substitute “ paragraphs (3) and (5) ”, and

b

omit paragraphs (6) and (7).

The Cross-Border Insolvency Regulations 2006I116112

The Cross-Border Insolvency Regulations 2006 M38 are amended as follows.

I117113

Schedule 1 is amended as follows.

I118114

In article 1 in paragraph 3(b) omit “, other than the United Kingdom,”.

I119115

In article 2—

a

in paragraph (a)(i)—

i

after “and made by or under” insert “ the EU Insolvency Regulation, ”, and

ii

after “or by or under that” insert “ Regulation or ”;

b

in paragraph (a)(ii) —

i

after “and made by or under” insert “ the EU Insolvency Regulation, ”, and

ii

after “or by or under” insert “ that Regulation or ”.

c

in paragraph (d) at the end of the definition of “the EU Insolvency Regulation” insert “ as that Regulation forms part of domestic law on and after exit day ”.

I120116

Omit article 3.

I121117

In article 16—

a

after paragraph 2 insert—

2A
Where the EU Insolvency Regulation applies the centre of the debtor's main interests is to be determined in accordance with that Regulation.

b

for paragraph 3 substitute—

3
Subject to paragraph 2A, in the absence of proof to the contrary, the debtor's registered office, or habitual residence in the case of an individual, is presumed to be the centre of the debtor's main interests.

I122118

Schedule 2 is amended as follows.

I123119

In paragraph 1 in sub-paragraph (1) M39 omit the definitions of “main proceedings”, “member State liquidator”, “secondary proceedings” and “territorial proceedings”.

I124120

In paragraph 4 omit sub-paragraph (2).

I125121

In paragraph 6 omit sub-paragraph (2)(b) and the “and” preceding it.

I126122

In paragraph 21 omit sub-paragraph (2)(e).

I127123

In paragraph 25 omit sub-paragraph (1)(e).

I128124

In paragraph 26 omit sub-paragraph (3)(c).

I129125

In paragraph 46 omit sub-paragraph (1)(f).

I130126

Schedule 3 is amended as follows.

I131127

In paragraph 1 in sub-paragraph (1) omit the definitions of “main proceedings” and “member State liquidator”.

I132128

In paragraph 6 omit sub-paragraph (1)(e).

I133129

In paragraph 7 omit sub-paragraph (3)(c).

I134130

In paragraph 9 omit sub-paragraph (1)(f).

I135131

Schedule 5 is amended as follows.

I136132

In Form ML6 omit paragraph 5 (statement of service on the member State liquidator).

PART 7Amendments to the Insolvency Act 1986 applying to Scotland only

I137133

The Insolvency Act 1986 is amended as follows M40.

F13134

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14135

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15136

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I138137

In section 204 omit subsections (4A) to (4E).

F16138

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2PART 8AAmendments to the Insolvency (Scotland) (Receivership and Winding up) Rules 2018

Annotations:

Amendments (Textual)

Sch. Pts. 8A, 8B inserted (31.12.2020) by The Insolvency (Amendment) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1459), reg. 1(2), Sch. para. 6; 2020 c. 1, Sch. 5 para. 1(1)

137A

The Insolvency (Scotland) (Receivership and Winding up) Rules 2018 are amended as follows.

137B

1

In rule 1.2(1)—

a

omit the following definitions—

i

“local creditor”,

ii

“main proceedings”,

iii

“member State liquidator”,

iv

“non-EU proceedings”,

v

“secondary proceedings”,

vi

“temporary administrator”,

vii

“territorial proceedings”;

b

in the note in square brackets which explains the definition of “EU Regulation” omit the words after “section 436”;

c

insert in the appropriate places—

“COMI proceedings” means insolvency proceedings in Scotland to which the EU Regulation applies where the centre of the debtor’s main interests is in the United Kingdom;

“establishment” has the same meaning as in Article 2(10) of the EU Regulation;

“establishment proceedings” means insolvency proceedings in Scotland to which the EU Regulation applies where the debtor has an establishment in the United Kingdom;

137C

1

Rule 1.8 is amended as follows.

2

For the heading substitute “Reasons for stating whether proceedings are or will be COMI proceedings, establishment proceedings etc.”.

3

In the opening words, for “main, secondary or territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply” and after “must include” insert “as applicable”.

4

After paragraph (b) insert—

ba
the place where there is an establishment within the jurisdiction; or

5

In paragraph (c) for “non-EU proceedings” substitute “proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137D

In rule 1.17 omit paragraph (2)(i).

137E

In rule 5.4—

a

after paragraph (1)(f) insert “or”;

b

omit paragraph (1)(g);

c

omit paragraph (1)(h).

137F

In rule 7.16 omit paragraph (3)(k).

137G

In rule 7.28 in paragraph (3)(a) omit “including any costs referred to in Article 30 and 59 of the EU Regulation”.

137H

In rule 7.31 omit paragraph (14).

137I

In rule 8.11 in the table in paragraph (1) omit the entry for “main proceedings in another Member State”.

137J

Omit rule 8.30.

137K

In rule 8.31—

a

in paragraph (5) omit the words from “; and for this purpose” to the end; and

b

in paragraph (7) in the opening words omit “or member State liquidator”.

137L

Omit rules 11.1 to 11.3.

137M

In rule 11.4 for paragraph (3)(e) substitute—

e
a statement whether the proceedings will be COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply and the reasons for so stating.

137N

Omit rules 11.6 to 11.17.

F2PART 8BAmendments to the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018

137O

The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 are amended as follows.

137P

In rule 1.2(1)—

a

omit the following definitions—

i

“local creditor”,

ii

“main proceedings”,

iii

“member State liquidator”,

iv

“non-EU proceedings”,

v

“secondary proceedings”,

vi

“territorial proceedings”;

b

insert in the appropriate places—

“COMI proceedings” means insolvency proceedings in Scotland to which the EU Regulation applies where the centre of the debtor’s main interests is in the United Kingdom;

“establishment” has the same meaning as in Article 2(10) of the EU Regulation;

“establishment proceedings” means insolvency proceedings in Scotland to which the EU Regulation applies where the debtor has an establishment in the United Kingdom;

137Q

1

Rule 1.8 is amended as follows.

2

For the heading substitute “Reasons for stating whether proceedings are or will be COMI proceedings, establishment proceedings etc.”.

3

In the opening words for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

4

In paragraph (b) omit the word “or”.

5

After paragraph (b) insert—

ba
the place where there is an establishment within the jurisdiction, or

6

In paragraph (c) for “non-EU proceedings” substitute “proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137R

In rule 1.17 omit paragraph (1)(i).

137S

In rule 2.3 in the table in paragraph (1), in the second column of the entry for “Type of insolvency proceedings”, for “whether the insolvency proceedings will be main, secondary, territorial or non-EU insolvency proceedings with reasons;” substitute—

whether the proceedings will be COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply with reasons;

137T

In rule 2.13 in paragraph (5) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137U

In rule 2.24 in paragraph (3) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137V

In rule 2.37 in paragraph (2) in sub-paragraph (d) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137W

In rule 3.6 omit paragraph (c).

137X

In rule 3.8 in paragraph (b) omit “(including the United Kingdom)” and “other than the United Kingdom”.

137Y

In rule 3.10 omit paragraph (g).

137Z

In rule 3.11 in paragraph (1)—

a

in sub-paragraph (g) after “EU Regulation” insert “as it has effect in the law of the United Kingdom”; and

b

in sub-paragraph (h) for “main, secondary or territorial proceedings” substitute “COMI proceedings or establishment proceedings”.

137ZA

In rule 3.16 in paragraph (2) in sub-paragraph (k) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZB

In rule 3.17 in paragraph (1) in sub-paragraph (k) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZC

In rule 3.21 in paragraph (1) in sub-paragraph (k) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZD

In rule 3.23 in paragraph (1) in sub-paragraph (i) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZE

In rule 3.24 in paragraph (1) in sub-paragraph (h) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZF

In rule 3.25 in paragraph (2) in sub-paragraph (i) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZG

In rule 3.35 in paragraph (1) in sub-paragraph (m) for “main, secondary, territorial or non-EU proceedings” substitute “COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply”.

137ZH

In rule 3.51 in paragraph (2) in sub-paragraph (g) omit “costs referred to in Articles 30 or 59 of the EU Regulation and”.

137ZI

In rule 3.63 in paragraph (4) omit sub-paragraph (d).

137ZJ

In rule 3.68 in paragraph (2) omit sub-paragraph (g).

137ZK

In rule 3.105 in paragraph (3) omit sub-paragraph (k).

137ZL

In rule 3.117 omit paragraph (11).

137ZM

In rule 5.11 in the table in paragraph (1) omit the entry for “main proceedings in another member State”.

137ZN

Omit rule 5.27.

137ZO

In rule 5.28—

a

in paragraph (7) omit the words from “and for this purpose” to the end; and

b

in paragraph (9) in the opening words omit “or member State liquidator”.

137ZP

Omit Part 7 (the EU Regulation).

F1PART 8Amendments to the Insolvency (Scotland) Rules 1986

Annotations:

Amendments (Textual)

Sch. Pt. 8 omitted (31.12.2020) by virtue of The Insolvency (Amendment) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1459), reg. 1(2), Sch. para. 5; 2020 c. 1, Sch. 5 para. 1(1)

F1139

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1140

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1141

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1142

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1143

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1144

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1145

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1146

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1147

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1148

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1149

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1150

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1151

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1152

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1153

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1154

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1155

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1156

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1157

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1158

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1159

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1160

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 9Amendments to the Insolvency (Northern Ireland) Order 1989 and the Insolvency Rules (Northern Ireland) 1991

Amendments to the Insolvency (Northern Ireland) Order 1989I139161

The Insolvency (Northern Ireland) Order 1989 M41 is amended as follows.

I140162

In Article 2(2) in the definition of “the EU Regulation” at the end insert “ as it forms part of domestic law on and after exit day ”M42 .

I141163

In Article 2(2) omit the definitions of “EU insolvency proceedings” and “member State liquidator”M43.

I142164

Omit Article 2A M44.

I143165

In Article 3 omit paragraph (6).

I144166

In Article 6 in paragraph (3) omit sub-paragraph (b) and the “or” preceding it.

I145167

In Article 14 in paragraph (4)—

a

in sub-paragraph (b) omit “other than the United Kingdom”; and

b

in sub-paragraph (c) after “interests” insert “ either ” and after “Denmark” insert “ or in the United Kingdom ”.

I146168

In Article 80 omit paragraphs (3A) and (3B) M45.

I147169

In Article 104 in paragraph (1) omit the words from “or by a member State liquidator” to “Article 52 of the EU Regulation)”M46.

I148170

In Article 124 omit paragraphs (6) and (7) M47.

I149171

Omit Article 124A M48.

I150172

1

Article 166 is amended as follows M49.

2

In paragraph (2) omit “and any statement under Article 80(3B)” and “(except where paragraph (2A) applies)”.

3

Omit paragraphs (2A) and (2B).

I151173

1

Article 167 is amended as follows M50.

2

Omit paragraphs (1A) and (1B).

3

In paragraph (2) for “an application under paragraph (1)” substitute “ that application ”.

4

In paragraph (3) omit “and to send any statement under paragraph (1B)”.

5

In paragraph (4)—

a

omit “and any statement under paragraph (1B)” and “or them”;

b

for “subject to paragraph (5)” substitute “ subject to paragraph (7) ”; and

c

omit “(except where paragraph (5) applies)”.

6

Omit paragraphs (5) and (6).

7

In paragraph (7) for “the period in paragraph (4) or (6)” substitute “ that period ”.

I152174

1

Article 169 M51 is amended as follows.

2

In paragraph (1) omit “and any statement under Article 124(7) or 124A(2)” and “of the final account or notice”.

3

Omit paragraphs (1A) and (1B).

I153175

In Article 204 M52 in paragraph (3)(d) omit the words from “either following” to “Article 51 of the EU Regulation or”.

I154176

In Article 238 in paragraph (1) omit sub-paragraphs (ba) and (bb) M53.

I155177

For Article 239 substitute—

Conditions to be satisfied in respect of debtor239
1
A bankruptcy petition may be presented to the High Court under Article 238(1)(a) or (b) only if—
a
the centre of the debtor's main interests is in Northern Ireland,
b
the centre of the debtor's main interests is in a member State of the European Union which has adopted the EU Regulation and the debtor has an establishment in Northern Ireland, or
c
the centre of the debtor's main interests is not in a member State of the European Union which has adopted the EU Regulation, but the test in paragraph (2) is met.
2
The test is that—
a
the debtor is domiciled in Northern Ireland, or
b
the debtor is personally present in Northern Ireland on the day on which the petition is presented, or
c
at any time in the period of three years ending with the day on which the petition is presented, the debtor—
i
has been ordinarily resident, or has had a place of residence, in Northern Ireland, or
ii
has carried on business in Northern Ireland.
3
The reference in paragraph (2) to the debtor carrying on business includes—
a
the carrying on of business by a firm or partnership of which the debtor is a member, and
b
the carrying on of business by an agent or manager for the debtor or for such a firm or partnership.
4
In this Article—
a
references to the centre of the debtor's main interests have the same meaning as in Article 3 of the EU Regulation, and
b
“establishment” has the same meaning as in Article 2(10) of the EU Regulation.

I156178

1

Article 239 M54 (as substituted by paragraph 177) is amended as follows.

2

In paragraph (1)—

a

in sub-paragraph (b) after “European Union” insert “ other than Denmark ” and omit the words “which has adopted the EU Regulation”; and

b

in sub-paragraph (c) omit the words from the beginning of the paragraph to “the EU Regulation, but”.

I157179

In Article 303 omit paragraph (6) M55.

I158180

In Article 347 in paragraph (3) M56—

a

omit sub-paragraphs (aa) and (ab);

b

in sub-paragraph (b) omit “, (aa) or (ab)”;

c

in sub-paragraph (ba) omit “, (aa), (ab)”;

d

in sub-paragraph (c) omit “ (aa), (ab),”.

I159181

In Article 359 M57 in paragraph (2B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence (see Article 366A) ”.

I160182

In Article 364 M58 in paragraph (1B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence (see Article 366A) ”.

I161183

In Article 365 M59 in paragraph (1B) for the words from “an offence” to the end of the sentence substitute “ a new relevant offence (see Article 366A) ”.

I162184

After Article 366 insert—

Meaning of “relevant offence”366A
In Articles 359(2B), 364(1B) and 365(1B), a “relevant offence” is a criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than £100 a day.

I163185

In Schedule B1—

a

in paragraph 1—

i

in sub-paragraph (1A)(b) omit “other than the United Kingdom”;

ii

in sub-paragraph (1A)(c) after “interests” insert “ either ” and after “Denmark” insert “ or in the United Kingdom ”;

b

in paragraph 85 M60—

i

omit sub-paragraphs (1A) and (1B);

ii

in sub-paragraph (3) omit “and any statement under sub-paragraph (1B)” and at the end omit “or them”;

iii

in sub-paragraph (6) omit “(except where sub-paragraph (6A) applies)”;

iv

omit sub-paragraphs (6A) and (6B); and

v

in sub-paragraphs (7)(a) and (c) omit “or (6B)”.

Amendments to the Insolvency Rules (Northern Ireland) 1991I164186

The Insolvency Rules (Northern Ireland) 1991 M61 are amended as follows.

I165187

In Rule 0.2 (Interpretation)—

a

omit the following definitions—

i

“main proceedings”,

ii

“Member State liquidator”,

iii

“secondary proceedings”,

iv

“temporary administrator”,

v

“territorial proceedings”;

b

insert in the appropriate places—

“COMI proceedings” means insolvency proceedings in Northern Ireland to which the EU Regulation applies where the centre of the debtor's main interests is in the United Kingdom;

“establishment proceedings” means insolvency proceedings in Northern Ireland to which the EU Regulation applies where the debtor has an establishment in the United Kingdom;

c

in the definition of “establishment” for “Article 2(h) of the EC Regulation” substitute “ Article 2(10) of the EU Regulation ”.

I166188

In Rule 1.03 in paragraph (2) for sub-paragraph (q) substitute—

q
whether the proceedings will be COMI proceedings, establishment proceedings, or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply with reasons.

I167189

In Rule 1.09 in paragraph (1A) M63 for the words “main, secondary, territorial” substitute “ COMI proceedings, establishment proceedings ”.

I168190

In Rule 1.24 in paragraph (2)(ca) for the words “whether the proceedings are main proceedings, secondary proceedings or territorial proceedings;” substitute “ whether the proceedings are COMI proceedings, establishment proceedings, or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply; ”M64 .

I169191

Omit Rules 1.31 to 1.33 (Chapter 7) M65.

I170192

Omit Rule 1.34 (Chapter 8) M66.

I171193

In Rule 1.39 in paragraph (2)(c) for the words “main, secondary, territorial” substitute “ COMI proceedings, establishment proceedings ”M67 .

I172194

In Rule 2.001 in paragraph (d) omit the reference to Chapters 14 and 15.

I173195

In Rule 2.004 in paragraph (4) for the words from “main” to the second “proceedings” substitute “ COMI proceedings or establishment proceedings ”.

I174196

In Rule 2.006 omit paragraph (3)(c).

I175197

In Rule 2.012 omit paragraph (1)(g).

I176198

In Rule 2.034 for paragraph (2)(p)(ii) substitute—

ii
if so, whether the proceedings will be COMI proceedings, establishment proceedings, or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply with reasons; and

I177199

In Rule 2.039 omit—

a

paragraph (1)(a)(ii) and the “or” preceding it, and

b

paragraphs (8) to (11).

I178200

In Rule 2.068 in paragraph (1)(f) omit the words “costs referred to in Articles 30 or 59 of the EU Regulations and”M68.

I179201

In Rule 2.096 omit paragraph (2)(a)(ii) and the “and” preceding it.

I180202

In Rule 2.097 omit paragraph (4).

I181203

In Rule 2.099 in paragraph (1) omit the words from “and” to the end of the sentence.

I182204

In Rule 2.121 omit paragraph (2).

I183205

Omit Rules 2.131 to 2.133 (Chapter 14) M69.

I184206

Omit Rules 2.134 to 2.143 (Chapter 15) M70.

I185207

In Rule 4.007 omit paragraph (4)(ea).

I186208

In Rule 4.010 omit paragraph (3A).

I187209

In Rule 4.012—

a

in paragraph (8) omit the words from “(i)” to “whether”; and

b

for the words “main proceedings or territorial proceedings” substitute “ COMI proceedings, establishment proceedings, or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply ”.

I188210

In Rule 4.024 omit paragraph (6).

I189211

In Rule 4.027 omit paragraph (1)(g).

I190212

In Rule 4.073 M71—

a

omit paragraph (1)(a)(ii) and the “or” preceding it; and

b

omit paragraphs (8) to (10).

I191213

In Rule 4.228 in paragraph (3) sub-paragraph (m) omit the words “costs referred to in Articles 30 or 59 of the EU Regulation and”M72.

I192214

In Rule 5.04 in paragraph (2)(r) for the words “main proceedings or territorial proceedings” substitute “ COMI proceedings or establishment proceedings ”.

I193215

Omit Rules 5.61 to 5.64 (Chapter 13) M73.

I194216

In Rule 6.007 in paragraph (1) in sub-paragraph (f) for “another” substitute “ the UK or a ”.

I195217

In Rule 6.013 omit paragraph (5).

I196218

In Rule 6.027 in paragraph (2)(c) omit the wording in the second set of brackets.

I197219

In Rule 6.049 M74—

a

in paragraph (1)(d) omit “or” at the end of the sentence; and

b

omit paragraph (1)(e).

I198220

In Rule 6.090 omit paragraphs (8) to (10).

I199221

In Rule 6.113 omit paragraph (3).

I200222

In Rule 6.222 in paragraph (1) sub-paragraph (m) omit the words “insert costs referred to in Articles 30 or 59 of the EU Regulation and”M75.

I201223

Omit Rules 6.231 and 6.232 (Chapter 26).

I202224

In Rule 7.08A omit “including any member State liquidator”.

I203225

In Rule 7.56 in paragraph (2) for the words in sub-paragraph (e) substitute “ whether the proceedings will be COMI proceedings or establishment proceedings. ”M76 .

I204226

Omit Rule 7.57.

I205227

Omit Rule 7.58 (Chapter 11).

I206228

Omit Rule 8.8.

I207229

In Rule 11.01 omit paragraph (3).

I208230

In Rule 11.02 omit paragraph (1)(b) and the “and” preceding it.

I209231

In Rule 11.03 omit paragraph (4).

I210232

In Rule 11.06 omit paragraph (1)(b) and the “and” preceding it.

I211233

In Rule 12.13 omit paragraph (5).

I212234

In Rule 12.19 omit paragraph (3A).

PART 10Other amendments: Northern Ireland

The Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005I213235

1

The Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 M77 are amended as follows.

2

In regulation 1—

a

in paragraph (2) omit the definitions of “establishment” and “the Insolvency Regulation”, and

b

omit paragraph (4A).

3

In regulation 7—

a

in paragraph (1) for “paragraphs (2), (4) and (5)” substitute “ paragraphs (2) and (4) ”, and

b

omit paragraphs (5) and (6).

4

In regulation 7A—

a

in paragraph (2) for “paragraphs (3), (5) and (6)” substitute “ paragraphs (3) and (5) ”, and

b

omit paragraphs (6) and (7).

The Cross-Border Insolvency Regulations (Northern Ireland) 2007I214236

The Cross-Border Insolvency Regulations (Northern Ireland) 2007 M78 are amended as follows.

I215237

Schedule 1 is amended as follows.

I216238

In article 1 in paragraph 3(b) omit “, other than the United Kingdom,”.

I217239

In article 2—

a

in sub-paragraph (b) at the end of the definition of “the EU Insolvency Regulation” insert “ as that Regulation forms part of domestic law on and after exit day ”; and

b

in sub-paragraph (k)—

i

after “made by or under” insert “ the EU Insolvency Regulation and ”, and

ii

after “or by or under that” insert “ Regulation or ”.

I218240

Omit article 3.

I219241

In article 16—

a

after paragraph 2 insert—

2A
Where the EU Insolvency Regulation applies the centre of the debtor's main interests is to be determined in accordance with that Regulation.

b

for paragraph 3 substitute—

3
Subject to paragraph 2A, in the absence of proof to the contrary, the debtor's registered office, or habitual residence in the case of an individual, is presumed to be the centre of the debtor's main interests.

I220242

Schedule 2 is amended as follows.

I221243

In paragraph 1 in sub-paragraph (1) omit the definitions of “main proceedings”, “member State liquidator”, “secondary proceedings” and “territorial proceedings”.

I222244

In paragraph 4 omit sub-paragraph (2).

I223245

In paragraph 6 omit sub-paragraph (2)(b) and the “and” preceding it.

I224246

In paragraph 21 omit sub-paragraph (2)(e).

I225247

In paragraph 25 omit sub-paragraph (1)(e).

I226248

In paragraph 26 omit sub-paragraph (3)(c).

I227249

In paragraph 44 omit sub-paragraph (1)(f).

I228250

Omit paragraph 53.

I229251

Schedule 4 is amended as follows.

I230252

In Form ML6 omit paragraph 5 (statement of service on the member State liquidator).

PART 11Amendments to the Employment Rights Act 1996 and the Pension Schemes Act 1993

Amendments to the Employment Rights Act 1996I231253

1

The Employment Rights Act 1996 M79 is amended as follows.

2

In section 166 M80—

a

in subsection (5)—

i

in paragraph (a) for “(6) or (8A)” substitute “ (6), (8ZA) or (8A) ”;

ii

in paragraph (b) for “(7) or (8A)”substitute “ (7), (8ZA) or (8A) ”;

iii

in paragraph (c) for “(8) or (8A)” substitute “ (8), (8ZA) or (8A) ”;

iv

in paragraph (d) for “(8A)” substitute “ (8ZA) or (8A) ”;

b

after subsection (8) insert—

8ZA
This subsection is satisfied in the case of an employer if—
a
the employer is a legal person,
b
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
c
any of the following has decided to open the proceedings—
i
a court,
ii
a meeting of creditors, or
iii
the creditors by a decision procedure.

c

in subsection (8B) for “subsection (8A)” substitute “ this section ”.

3

In section 183 M81—

a

in subsection (1)—

i

in paragraph (a) for “(2) or (4A)” substitute “ (2), (4ZA) or (4A) ”;

ii

in paragraph (b) for “(3) or (4A)” substitute “ (3), (4ZA) or (4A) ”;

iii

in paragraph (c) for “(4) or (4A)” substitute “ (4), (4ZA) or (4A) ”;

iv

in paragraph (d) for “(4A)” substitute “ (4ZA) or (4A) ”;

b

after subsection (4) insert—

4ZA
This subsection is satisfied in the case of an employer if—
a
the employer is a legal person,
b
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
c
any of the following has decided to open the proceedings—
i
a court,
ii
a meeting of creditors, or
iii
the creditors by a decision procedure.

c

in subsection (4B) for “subsection (4A)” substitute “ this section ”.

Amendments to the Pension Schemes Act 1993I232254

1

The Pension Schemes Act 1993 M82 is amended as follows—

2

In section 123 M83—

a

for subsection (1)(d) substitute—

d
subsection (2A) or (2ZA) is satisfied.

b

after subsection (2) insert—

2ZA
This subsection is satisfied in the case of an employer if—
a
the employer is a legal person,
b
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
c
any of the following has decided to open the proceedings—
i
a court,
ii
a meeting of creditors, or
iii
the creditors by a decision procedure.

c

in subsection (2B) for “subsection (2A)” substitute “ this section ”.

PART 12Amendments to the Employment Rights (Northern Ireland) Order 1996 and the Pension Schemes (Northern Ireland) Act 1993

Amendments to the Employment Rights (Northern Ireland) Order 1996I233255

1

The Employment Rights (Northern Ireland) Order 1996 M84 is amended as follows.

2

In Article 201 (applications for payments) M85—

a

in paragraph (5)—

i

in sub-paragraph (a) after “(6)” insert “ or (8A) ”;

ii

in sub-paragraph (b) after “(7)” insert “ or (8A) ” and at the end of that sub-paragraph omit “and”;

iii

in sub-paragraph (c) after “(8)” insert “ or (8A) ”; and

iv

at the end of sub-paragraph (c) insert—

, and
d
where the employer is not any of the above, if (but only if) paragraph (8A) is satisfied.

b

after paragraph (8) insert—

8A
This paragraph is satisfied in the case of an employer if—
a
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a member State, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
b
the competent authority has—
i
decided to open the proceedings, or
ii
established that the employer's undertaking or business has been definitively closed down and the available assets of the employer are insufficient to warrant the opening of the proceedings.
8B
For the purposes of paragraph (8A)—
a
“liquidator or a person performing a similar task” includes the official receiver or an administrator, trustee in bankruptcy, judicial factor, supervisor of a voluntary arrangement, or a person performing a similar task;
b
“competent authority” includes—
i
a court,
ii
a meeting of creditors,
iii
a creditors' committee,
iv
the creditors by a decision procedure, and
v
an authority of a member State empowered to open insolvency proceedings, to confirm the opening of such proceedings or to take decisions in the course of such proceedings.
8C
An employee may apply under this Article only if the employee worked or habitually worked in Northern Ireland in that employment to which the application relates.

3

In Article 228 M86—

a

in paragraph (1)—

i

in sub-paragraph (a) after “(2)” insert “ or (4A) ”;

ii

in sub-paragraph (b) after “(3)” insert “ or (4A) ” and at the end of that sub-paragraph omit “and”;

iii

in sub-paragraph (c) after “(4)” insert “ or (4A) ”; and

iv

at the end of sub-paragraph (c) insert—

, and
d
where the employer is not any of the above, if (but only if) paragraph (4A) is satisfied.

b

after paragraph (4) insert—

4A
This paragraph is satisfied in the case of an employer if—
a
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a member State, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
b
the competent authority has—
i
decided to open the proceedings, or
ii
established that the employer's undertaking or business has been definitively closed down and the available assets of the employer are insufficient to warrant the opening of the proceedings.
4B
For the purposes of paragraph (4A)—
a
“liquidator or a person performing a similar task” includes the official receiver or an administrator, trustee in bankruptcy, judicial factor, supervisor of a voluntary arrangement, or a person performing a similar task;
b
“competent authority” includes—
i
a court,
ii
a meeting of creditors,
iii
a creditors' committee,
iv
the creditors by a decision procedure, and
v
an authority of a member State empowered to open insolvency proceedings, to confirm the opening of such proceedings or to take decisions in the course of such proceedings.
4C
An employee may apply under Article 227 (employee's rights on insolvency of employer) only if the employee worked or habitually worked in Northern Ireland in that employment to which the application relates.

Amendments to the Pension Schemes (Northern Ireland) Act 1993I234256

1

The Pension Schemes (Northern Ireland) Act 1993 M87 is amended as follows.

2

In section 119 M88—

a

in subsection (1)—

i

in paragraph (b) after “Insolvency (Northern Ireland) Order 1989;” omit “or”; and

ii

at the end of paragraph (c) insert—

; or
d
subsection (1A) is satisfied.

b

after subsection (1) insert—

1A
This subsection is satisfied if—
a
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a member State; and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task; and
b
the competent authority has—
i
decided to open the proceedings; or
ii
established that the employer's undertaking or business has been definitively closed down and the available assets of the employer are insufficient to warrant the opening of the proceedings.
1B
For the purposes of subsection (1A)—
a
“liquidator or person performing a similar task” includes the official receiver or an administrator, trustee in bankruptcy, judicial factor, supervisor of a voluntary arrangement, or person performing a similar task;
b
“competent authority” includes—
i
a court,
ii
a meeting of creditors,
iii
a creditors' committee,
iv
the creditors by a decision procedure, and
v
an authority of a member State empowered to open insolvency proceedings, to confirm the opening of such proceedings or to take decisions in the course of such proceedings.
1C
An application under section 120 may only be made in respect of a worker who worked or habitually worked in Northern Ireland in that employment to which the application relates.

PART 13Further amendments to the Employment Rights (Northern Ireland) Order 1996 and the Pension Schemes (Northern Ireland) Act 1993

Amendments to the Employment Rights (Northern Ireland) Order 1996I235257

1

The Employment Rights (Northern Ireland) Order 1996 is amended as follows.

2

In Article 201 (as amended by paragraph 255(2))—

a

in paragraph (5)—

i

in sub-paragraph (a) for “(6) or (8A)” substitute “ (6), (8ZA) or (8A) ”;

ii

in sub-paragraph (b) for “(7) or (8A)” substitute “ (7), (8ZA) or (8A) ”;

iii

in sub-paragraph (c) for “(8) or (8A)” substitute “ (8), (8ZA) or (8A) ”;

iv

in sub-paragraph (d) for “(8A)” substitute “ (8ZA) or (8A) ”;

b

after paragraph (8) insert—

8ZA
This paragraph is satisfied in the case of an employer if—
a
the employer is a legal person,
b
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
c
any of the following has decided to open the proceedings—
i
a court,
ii
a meeting of creditors, or
iii
the creditors by a decision procedure.

c

in paragraph (8B) for “paragraph (8A)” substitute “ this Article ”.

3

In Article 228 (as amended by paragraph 255(3))—

a

in paragraph (1)—

i

in sub-paragraph (a) for “(2) or (4A)” substitute “ (2), (4ZA) or (4A) ”;

ii

in sub-paragraph (b) for “(3) or (4A)” substitute “ (3), (4ZA) or (4A) ”;

iii

in sub-paragraph (c) for “(4) or (4A)” substitute “ (4), (4ZA) or (4A) ”;

iv

in sub-paragraph (d) for “(4A)” substitute “ (4ZA) or (4A) ”;

b

after paragraph (4) insert—

4ZA
This paragraph is satisfied in the case of an employer if—
a
the employer is a legal person,
b
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
c
any of the following has decided to open the proceedings—
i
a court,
ii
a meeting of creditors, or
iii
the creditors by a decision procedure.

c

in paragraph (4B) for “paragraph (4A)” substitute “ this Article ”.

Amendments to the Pension Schemes (Northern Ireland) Act 1993I236258

1

The Pension Schemes (Northern Ireland) Act 1993 is amended as follows.

2

In section 119 (as amended by paragraph 256(2))—

a

in subsection (1)(d) for “(1A)” substitute “ (1ZA) or (1A) ”;

b

after subsection (1) insert—

1ZA
This subsection is satisfied in the case of an employer if—
a
the employer is a legal person,
b
a request has been made for the first opening of collective proceedings—
i
based on the insolvency of the employer, as provided for under the law of any part of the United Kingdom, and
ii
involving the partial or total divestment of the employer's assets and the appointment of a liquidator or a person performing a similar task, and
c
any of the following has decided to open the proceedings—
i
a court,
ii
a meeting of creditors, or
iii
the creditors by a decision procedure.

c

in subsection (1B) for “subsection (1A)” substitute “ this section ”.

(This note is not part of the Regulations)

These Regulations are made in exercise of the powers in section 8(1) of the European Union (Withdrawal) Act 2018 (c. 16) in order to address failures of retained EU law to operate effectively and other deficiencies (in particular under section 8(2)(b) to (d)) arising from the withdrawal of the United Kingdom from the European Union. These Regulations make amendments to legislation in the field of cross-border insolvency. These Regulations also contain minor amendments to the Insolvency (Northern Ireland) Order 1989 and to employment legislation in Northern Ireland bringing that legislation into line with EU law. These amendments are made under section 2(2) of the European Communities Act 1972 (c. 21) (“the ECA”) and come into force on the day after these Regulations are made.

The EU Regulation on insolvency proceedings ((EU) 2015/848) (“the EUIR”) determines in which member State main insolvency proceedings may be opened and provides that decisions opening proceedings are to be recognised in other member States. Main proceedings may only be opened in the state where the centre of the debtor's main interests, or COMI, is located. Secondary proceedings may be brought in a state where the debtor has an establishment. The EUIR makes other provisions to facilitate the operation of cross-border insolvency proceedings including for co-operation between courts and insolvency practitioners.

These Regulations address the deficiencies that will arise from the absence of mutual application of the EUIR. It is not appropriate to continue to apply the EUIR unilaterally in respect of EU proceedings when member States will not apply the Regulation to UK proceedings. There is however a saving and transitional provision in regulations 4 and 5 which continues to apply the EUIR, the previous EU insolvency regulation and the associated domestic law where main proceedings have been opened before exit day. The court may decide not to apply these Regulations in the circumstances set out in regulation 5.

Part 1 amends the EUIR. It retains the jurisdictional test based on COMI as an additional test of jurisdiction. The restrictions on opening insolvency proceedings where the COMI is in a member State are removed. The majority of the EUIR, which is based on mutual application between member States, is omitted. This Part extends to the whole of the United Kingdom.

Parts 2 and 3 make consequential amendments to the Insolvency Act 1986 (c. 45). These Parts extend to England and Wales and Scotland, with a few exceptions set out in regulation 3(a).

Part 4 amend the Insolvency (England and Wales) Rules 2016. These amendments are consequential on the amendments made to the EUIR by Part 1. These Rules govern the conduct of corporate and personal insolvency proceedings under the Insolvency Act 1986 in England and Wales.

Parts 5 and 6 make further consequential amendments. These include amendments to the Cross-Border Insolvency Regulation 2006 which will apply after exit day to new cross-border proceedings previously within the EUIR. Parts 5 and 6 extend to England and Wales and Scotland.

Part 7 makes consequential amendments to a number of sections of the Insolvency Act 1986 as those sections are in force in Scotland. These sections were amended by the Small Business, Enterprise and Employment Act 2015. Those amendments have been commenced for England and Wales but have not yet been commenced for Scotland. Hence different versions of those sections are in force in England and Wales and in Scotland. Part 7 only applies to Scotland.

Part 8 amends the Insolvency (Scotland) Rules 1986 as they provide for corporate insolvency proceedings in Scotland. These amendments are consequential on the amendments to the EUIR. Part 8 only applies to Scotland.

Part 9 makes amendments to the Insolvency Northern Ireland Order 1989 and the Insolvency Rules (Northern Ireland) 1991 covering both corporate and personal insolvency. These amendments are consequential on the amendments to the EUIR. Paragraph 177 amends the existing law on bankruptcy to provide for jurisdiction where the debtor has an establishment in Northern Ireland. This brings the jurisdictional tests into line with the EUIR. The amendment is made under section 2(2) of the ECA and comes into force the day after the Regulations are made. Part 10 makes a consequential amendment to the Pension Protection Fund (Entry Rules) Regulations (Northern Ireland) 2005 and to the Cross-Border Insolvency Regulations (Northern Ireland) 2007. Parts 9 and 10 only extend to Northern Ireland.

Part 11 makes amendments to the Employment Rights Act 1996 (c. 18) and the Pension Schemes Act 1993 (c. 48). The relevant provisions provide for payment to employees of outstanding sums owed to them in defined circumstances where their employer becomes insolvent. Part 11 applies to England and Wales and Scotland.

Part 12 makes amendments to Articles 201 and 228 of the Employment Rights (Northern Ireland) Order 1996 and section 119 of the Pension Schemes (Northern Ireland) Act 1993 to bring those provisions into line with Directive 2008/94 EC of the European Parliament and the Council on the protection of employees in the event of the insolvency. These provisions provide for payment to employees of certain sums owed to them and unpaid pensions contributions in circumstances where their employer becomes insolvent. These amendments are made under section 2(2) ECA and come into force the day after the Regulations are made. They only extend to Northern Ireland.

Part 13 makes further amendments to Articles 201 and 228 of the Employment Rights (Northern Ireland) Order 1996 and section 119 of the Pension Schemes (Northern Ireland) Act 1993 to ensure those provisions operate effectively after the withdrawal of the United Kingdom from the European Union. These amendments apply to Northern Ireland and are equivalent to those made by Part 11 for England and Wales and Scotland.

In accordance with the Government Better Regulation principles, a proportionate analysis of costs and benefit has been completed. This analysis has found that the overall impact on business will likely be less than £5m per year. An Explanatory Memorandum is also available with these Regulations on www.legislation.gov.uk. Copies have been placed in the Libraries of both Houses of Parliament.

The Insolvency (Amendment) (EU Exit) Regulations 2019

Citation and commencementI11

1

2

a

i

ii

b

c

3

AmendmentsI2I2372

Extent and applicationI33

F4a

b

Temporal application and savingsI44

1

F7a

b

F82

F93

F104

F115

F125

SCHEDULE

PART 1Amendment of retained direct EU legislation

Amendments to the EU Insolvency RegulationI51

I62

1

2

3

1

1A

a

b

1B

a

b

c

d

e

4

I73

a

1A

b

c

d

i

ii

e

f

g

I84

1

2

3

a

b

c

d

4

I95

1

2

a

b

3

a

i

ii

b

I106

1

2

3

a

b

4

a

b

AmendmentsI2 I2372