In one of our previous posts, we observed that the EU Court of Justice seems to be more lenient towards creditor protection measures in insolvency law than towards comparable measures in company law (see C‑594/14, Kornhaas). Moreover, the connecting factor for insolvency law (the so-called Centre of Main Interests, COMI) is not (entirely) freely selectable. Therefore, we concluded, Member States wishing to impose national requirements on non-domestic EU companies should make sure that these requirements are designed as rules of insolvency law.
A more detailed analysis of the Kornhaas judgment and its consequences for creditor protection mechanisms in both company and insolvency law can be found in G. Lindemans, “The Walls Have Fallen, Run for the Keep: Insolvency Law as the New Company Law for Third Parties”, ERPL 2016, vol. 5, 877-891, which was published earlier today.