Parties who are closely related to the debtor, such as relatives, where the debtor is a natural person, or, where the debtor is a legal entity, those fulfilling decisive roles in relation to the debtor, are usually at an advantage with regard to information concerning the financial situation of the debtor. In order to prevent abuse of such positions, additional safeguards should be established. Consequently, in the context of avoidance actions, when the other party involved in a void, voidable or unenforceable legal act is a party closely related to the debtor, legal presumptions should be introduced about that party’s knowledge of the circumstances on which the avoidance actions were based. Those presumptions should be rebuttable and should aim to reverse the burden of proof to the benefit of the insolvency estate. Where the party which has benefited from a void, voidable or unenforceable legal act has since transferred the benefit obtained to a third party, the point in time for determining whether those parties are closely related should be the time of the transfer.
Text as published in the Official Journal, reproduced verbatim (including any typographical quirks of the source). For the authentic version, see EUR-Lex.
