LEGAL POSITION OF STATE AID IN INSOLVENCY PROCEEDINGS
DOI:
https://doi.org/10.30925/zpfsr.45.1.10Keywords:
state aid, private creditor test, economic continuity test, filing of claims, bankruptcy, pre-bankruptcy.Abstract
Article 11, paragraph 7 of the Bankruptcy Act (hereinafter referred to as the BA) stipulates that the procedures and measures in which creditors decide, which depart from the collective settlement of creditors by cashing in the debtor’s property and dividing the collected funds among creditors, are appropriately applied which govern the area of state aid. This is the only provision of the BA that deals with the topic of state aid in insolvency proceedings. The aforementioned provision explicitly implies that in all procedures and measures in which the debtor’s business continues (e.g., pre-bankruptcy proceedings or bankruptcy proceedings with the implementation of a bankruptcy plan), the rules of state aid take precedence over the rules of the BA. In addition, even though it is not explicitly prescribed by the BA, the state aid rules should also be applied appropriately in other insolvency proceedings in which the debtor’s business ceases (e.g., bankruptcy with liquidation). This conclusion is imposed because EU state aid law is directly applicable in national law. The paper starts with an analysis of the specificity of state aid in insolvency proceedings and a comparison of the goals and purposes of these legal areas. It then addresses the issue of proper reporting, examination, and settlement of claims for the return of state aid in insolvency proceedings. In the final part of the paper, instructions are given on how to properly apply rules of state aid in insolvency proceedings and not violate any of the rules of these two legal areas and achieve their goals and purposes, as well as de lege ferenda guidelines.
Additional Files
Published
How to Cite
Issue
Section
License
Copyright (c) 2024 Lidija Šimunović
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Collected Papers is an open access journal. Journal does not charge article processing charges (APC) to authors. It is licensed under CC BY-NC licence 4.0.
Collected Papers of the Law Faculty of the University of Rijeka" is an Open Access journal. Users are allowed to read, download, copy, redistribute, print, search and link to material, and alter, transform, or build upon the material, or use them for any other lawful purpose as long as they attribute the source in an appropriate manner according to the CC BY licence.
The papers published in "Collected Papers of the Law Faculty of the University of Rijeka" can be deposited and self-archived in the institutional and thematic repositories providing the link to the journal's web pages and HRČAK.
Upon acceptance of the manuscript for publication by this journal, the author can publish same manuscript in other journals only with the permission of the Editorial Board (secondary publication). A repeated publication should contain a notice as to where the manuscript was originally published.