Directive (EU) 2026/799: targeted harmonisation of insolvency law in the EU

I.                    Background

On 30 March 2026, the EU Parliament and the Council adopted Directive (EU) 2026/799 on the harmonisation of certain aspects of insolvency law (“Directive”) proposed by the EU Commission in 2022.

Based on Article 114 TFEU, the Directive forms part of the broader Capital Markets Union agenda and addresses long-standing divergences between national insolvency regimes. These differences (particularly regarding recovery rates, duration of proceedings and creditor treatment) have been identified as key obstacles to cross-border investment and legal certainty within the internal market.

Rather than introducing a fully harmonised insolvency regime, the Directive adopts a targeted minimum harmonisation approach, concentrating on specific areas—such as avoidance actions, pre-pack proceedings, directors’ duty to file for insolvency, creditor committees and asset tracing—that are considered to have a decisive impact on efficiency, predictability and value recovery.

Crucially, the Directive does not seek to standardise national insolvency frameworks in a rigid or exhaustive manner. It operates by defining a set of core requirements, leaving Member States with discretion as to how these are implemented within their domestic systems.

II.                  Scope

The Directive applies to collective insolvency proceedings within the meaning of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, while excluding preventive restructuring frameworks and certain regulated sectors such insurance undertakings, credit institutions, investment firms and other firms, institutions or undertakings covered by Directive 2001/24/EC of the European Parliament and of the Council and collective investment.

Its intervention is deliberately selective. It introduces common rules in a limited number of areas where divergences have proven particularly detrimental to market integration, without altering the core structure of national insolvency laws.

III.                Key features

The central pillars of the Directive are :

1. The introduction of harmonised rules on avoidance actions. It establishes minimum look-back periods and conditions under which transactions detrimental to creditors may be declared void, voidable or unenforceable. The framework distinguishes between preferential transactions, transactions at undervalue and intentionally fraudulent acts, while also strengthening presumptions, especially in relation to closely connected parties;

2. The enhancement of asset tracing capabilities. Insolvency practitioners will benefit, through designated authorities, from access to bank account registers, beneficial ownership registers and national databases, including on a cross-border basis;

3. The introduction of an EU framework for pre-pack sales. These procedures allow for the preparation of a business sale prior to the formal opening of insolvency proceedings, followed by a swift execution phase. The process is supervised by an independent monitor and must comply with requirements of transparency, competitiveness and fairness;

4. The impositions of clear obligations on directors in situations of insolvency. In principle, directors must file for insolvency within a maximum period of three months after becoming aware—or when they should reasonably have become aware—of the company’s insolvency. Failure to do so may trigger civil liability for the deterioration of the company’s recovery value, reinforcing the duty to act in the interest of creditors at an early stage; and

5. The improvement of the creditor involvement by requiring Member States to provide for the possibility of establishing creditor committees. These bodies are intended to enhance participation, oversight and representation of creditor interests, particularly in cross-border situations, while ensuring that their functioning remains proportionate and efficient;

6. The introduction of standardised information tools designed to improve transparency. Member States will be required to publish key information sheets describing the essential features of their insolvency regimes. This is expected to facilitate risk assessment and investment decisions, especially for cross-border investors.

The Directive remains an instrument of minimum harmonisation, leaving Member States considerable discretion in its implementation. However, in the areas it addresses, it introduces binding standards that are likely to require significant adjustments in several national systems,

The Directive was published in the Official Journal of the EU on 1 April 2026 and entered into force on 21 April 2026, i.e. on the twentieth day following its publication. Member States must transpose it by 22 January 2029, with certain technical provisions extending to mid-2029.

IV.                Conclusion

The Directive represents a significant step towards a more coherent and efficient EU insolvency framework. By addressing key sources of legal fragmentation, it enhances predictability, strengthens creditor protection and supports the functioning of the internal market.

While its scope remains targeted, its practical implications are substantial and it is likely to play a central role in shaping the future landscape of EU insolvency law and in advancing the objectives of the Capital Markets Union.

Sources : Directive - UE - 2026/799 - FR - EUR-Lex

For more information, please contact:

Guillaume Bouton – Consuel – g.bouton@janson.be

Wafa Lachguer – Associate -  w.lachguer@janson.be