LA LEGGE APPLICABILE ALLA DETERMINAZIONE DELLA GRADAZIONE DEI CREDITI NELLE PROCEDURE DI INSOLVENZA INTRA-UE. LA QUESTIONE DEI CREDITI MUNITI DI GARANZIE E PRIVILEGI

The admitted rights position in insolvency proceedings is one of the central issues in all insolvency disciplines. However, Regulation (EU) No 2015/848 of the European Parliament and of the Council on cross-border insolvency proceedings in the European Union does not contain a clear answer to the problem of the conflict of laws applicable to insolvency proceedings. Against this background, the contribution offers an analysis concerning the question of the law applicable to the determination of the degree of claims in intra-EU insolvency proceedings. First, it focuses on the general criterion laid down in Article 7 of the Regulation. According to this Article, the applicable law is the law of the State of the opening of proceedings (lex concursus). Secondly, it considers the exceptions to this general criterion, i.e. the rules applicable to certain subjective legal situations considered to be "particularly important". Such exceptions concern the law applicable to claims secured in rem and the law applicable to claims with privileges, pre-emptions et alia. The paper questions the highly fragmented framework defined by the Regulation with respect to rights admitted to insolvency proceedings, underlying that it opens up the risk of forum shopping. It is therefore argued that the key solution would be to promote a gradual harmonisation of insolvency law at EU level in order to pursue the ambitious goal of "a single set of insolvency proceedings with universal validity throughout the Union".