On 11 May 2022, the Dáil and Seanad approved Ireland's opt-in to a regulation amending the Annexes to the European Insolvency Regulation, 2015/848 (EIR Recast). Regulation 2021/2260 (Amending Regulation) which replaces Annex A and B to EIR Recast came into force in January 2022.
EIR Recast provides for the recognition and enforcement of cross border insolvency proceedings between EU member states. Annexes A and B set out the scope of EIR Recast, listing the national insolvency proceedings and national insolvency practitioners, as notified by member states, to which the regulation applies. Under EIR Recast, national proceedings qualify as insolvency proceedings for the purpose of the regulation if they are listed in Annex A. Likewise, an insolvency practitioner for the purposes of the regulation are those persons and bodies listed in Annex B.
The Amending Regulation was introduced to expand the scope of the application of EIR Recast. It was necessitated following the notification by eight member states, including the Netherlands and Germany of changes in their national insolvency laws which introduced new insolvency proceedings and new insolvency practitioners. It also removes the UK listings from the Annexes, because of Brexit.
Although an EU Regulation does not require transposition into Irish law, Ireland is not bound by EU measures in civil justice co-operation unless it opts in to the measure following approval by the Oireachtas. This is because Ireland has an opt-out from EU legislation adopted in the areas of freedom, security and justice under Protocol No 21 on the position of the UK and Ireland in respect of the area of freedom, security and justice (Protocol). Ireland can however, under Article 3 of the Protocol, notify the European Council of its wish to take part in a proposed measure, pre-adoption. Or post-adoption, under Article 4, Ireland can notify its intention that it wishes to accept the measure.
Under the Protocol, regulations amending the Annexes to EIR Recast each require a fresh opt in by Ireland, authorised by both houses of the Oireachtas under the Irish Constitution. Ireland has previously opted in to other such amending regulations.
In May 2022, exercising its discretion under Article 4 of the Protocol, both Houses of the Oireachtas approved Ireland's opting in to the Amending Regulation. The approval by the Oireachtas is positive as it aligns Ireland's application of the Annexes with other member states.