Every insolvency practitioner knows the moment. The company’s accounts show cash that is no longer there, a property that was transferred to a spouse eighteen months ago, a debt owed by a connected company that has just been written off, and a director who cannot remember where any of it went. The law has always provided ways of finding out. What it has not provided, until now, is a way of finding out quickly, across borders, and without the person who hid the assets being told that somebody is looking. Directive (EU) 2026/799, adopted on 30 March 2026, changes that. Its chapters on avoidance actions, pre-pack sales, directors’ duties and creditors’ committees will attract most of the commentary. Its chapter on asset tracing, which will give the Irish courts direct access to bank account and ownership registers at home and in every other Member State, may in practice matter more. This article explains the Directive, the powers the Irish courts already have, and how the two will work together.
What the Directive does
The Directive harmonises certain aspects of insolvency law rather than insolvency law itself. It leaves to national law the definition of insolvency, the threshold for opening proceedings, the ranking of creditors and the procedures by which a company is wound up, and it does not apply to banks, insurers or other regulated entities, or to individuals who are not entrepreneurs. Within those limits it sets minimum standards in five areas. Member States must transpose it by 22 January 2029.1
The first is avoidance actions, the means by which a liquidator claws back transactions that stripped the company before it failed. The Directive requires every Member State to allow the avoidance of preferences perfected within three months before the request to open proceedings, where the debtor was unable to pay its debts as they fell due, of transactions for no or manifestly inadequate consideration within twelve months, and of transactions intended to harm the general body of creditors, where the counterparty knew of the intention, within two years, and it sets a limitation period of three years from the opening of proceedings for claims arising from avoidance.2 Those are floors, not ceilings. Irish law already reaches further in several respects, with the two year look back for unfair preferences to connected persons under section 604 of the Companies Act 2014, the power under section 608 to order the return of assets disposed of in fraud of the company or its creditors without any time limit, and the long standing jurisdiction, now in section 74 of the Land and Conveyancing Law Reform Act 2009, to set aside a conveyance made with intent to defraud a creditor.3 Ireland may keep its longer periods, and the Directive’s contribution here is to ensure that the same minimum remedies exist in every Member State in which the assets may have ended up.
The second is the pre-pack, a two phase procedure in which the sale of the business or its assets is prepared under the supervision of an independent monitor before insolvency proceedings are opened and completed immediately afterwards, with a competitive and transparent sale process, disclosure of any connection between the buyer and the debtor, and a public auction, if one is held, lasting no more than three months.4 Irish law has no equivalent outside receivership, and this will be new. The third is a duty on directors to request the opening of insolvency proceedings within three months of becoming aware, or of the point at which they ought reasonably to have become aware, that the company is insolvent, with personal liability for the loss caused to creditors by failing to do so.5 That duty will sit alongside section 224A of the Companies Act 2014, which already requires directors who have reasonable cause to believe the company cannot pay its debts to have regard to the interests of creditors, and it will sharpen the question, discussed elsewhere on these pages, of when a board must act. The fourth is the creditors’ committee, established at the creditors’ request and fairly reflecting their different interests, which resembles the committee of inspection the Irish courts already know. The fifth is the subject of the rest of this article.
The asset tracing chapter
Title III of the Directive requires each Member State to designate courts or administrative authorities with the power to search its centralised bank account register at the request of an insolvency practitioner, where the search is necessary to identify and trace assets belonging to the insolvency estate, including assets that may be the subject of avoidance actions.6 The register in question is the one every Member State was required to establish under the anti money laundering directives, holding the identity of every holder, authorised signatory and beneficial owner of every bank and payment account and safe deposit box in the State. Ireland’s version is the central mechanism operated by the Central Bank under regulations made in 2022, to which credit institutions report account holders, beneficial owners, IBANs and opening and closing dates, and to which, until now, access has been confined to the Financial Intelligence Unit and the authorities concerned with money laundering and crime.7 From 2029 a designated Irish court will be able to search it directly and immediately, on a case by case basis, through staff specifically appointed for the purpose, and every search will be logged and the log kept for five years.8
The same access runs across the Union. The bank account registers of the Member States are being interconnected through a single access point, the system known as BARIS, under the 2024 anti money laundering directive, and the Directive requires that the designated courts be able to search the registers of other Member States through it.9 A liquidator in Dublin who suspects that money was moved to an account in Lisbon or Vilnius will no longer need to guess at the bank, instruct a lawyer in the other country and apply to a foreign court for an order that may take a year. The Irish court can run the search. The Directive also provides that practitioners appointed in one Member State must have access to the national asset registers of every other Member State, the land and property registers listed in the Annex among them, on terms no less favourable than those applying to domestic practitioners, and that they may bring claims and appear before the courts of every other Member State on the same footing.10
Two further provisions deserve attention. The Directive requires that insolvency practitioners have timely access to beneficial ownership information from the interconnected central registers, and, in words that will be welcome to anyone who has tried to look behind a chain of companies, that the entity and its beneficial owner are not alerted to the search.11 Since the Court of Justice curtailed public access to beneficial ownership registers in 2022, access has depended on showing a legitimate interest, and the Directive puts the practitioner’s interest beyond argument. And the Directive leaves it to each Member State to decide whether the designated body is a court or an administrative authority. In Ireland, where the winding up of a company is supervised by the High Court and the liquidator is its officer, the natural candidate is the court itself, and the result would be that an application in the course of a winding up could produce, within days, a list of every account in the State and in the Union held in the name of the company, its directors or the persons to whom its assets were transferred.
What the Irish courts can already do
None of this arrives in a vacuum. The Irish courts have long possessed, and have been using with increasing energy, a set of powers for finding assets that have been put out of sight, and the Directive will add to them rather than replace them. The first and oldest is the examination on oath. Under section 671 of the Companies Act 2014 the court may summon any officer of a company in liquidation, any person known or suspected to have its property or to owe it money, and any person able to give information about its dealings or affairs, and examine that person on oath, orally or by written questions, and require the production of records. A person who does not attend is in contempt, and the court may order the arrest of one who appears likely to abscond.12 The examination is private, it is conducted by the liquidator, and the witness has no right to see the questions in advance. It is the means by which the director who cannot remember is given the opportunity, under oath, to try.
The second is the freezing order with disclosure attached. The Mareva injunction restrains a defendant from dissipating assets pending judgment, and since Bennett Enterprises Inc v Lipton the Irish courts have granted it on a worldwide basis and have coupled it with an order requiring the defendant to disclose, on affidavit, the nature, value and location of all of his assets wherever situated.13 The disclosure order is the point. A defendant who swears a false affidavit of assets has committed perjury and contempt, and a defendant who swears a true one has told the plaintiff where to look. The third is the order against the innocent third party. Where a bank, an accountant or an agent has become mixed up in the wrongdoing of another, however innocently, the court will order it to disclose what it knows, in Ireland under the Norwich Pharmacal jurisdiction as adopted in Megaleasing UK Ltd v Barrett, and the order can be sought before proceedings are issued and without notice to the wrongdoer.14 The fourth is the search order, the Anton Piller order, which permits the plaintiff’s solicitors to enter premises and seize documents and devices before they can be destroyed, granted in Ireland on the strict conditions set out in Microsoft Corporation v Brightpoint Ireland Ltd.15
Behind those court orders stand the ordinary tools of the trade. The folio and the Registry of Deeds search will show what land has been transferred and when. The Companies Registration Office will show what companies a person has been a director or shareholder of and what charges have been registered. The Register of Beneficial Ownership, on proof of a legitimate interest, will show who stands behind them. Discovery, including discovery against non parties, will produce the bank statements. The judgment creditor who is not yet in insolvency has the examination of the debtor as to his means under Order 42 of the Rules of the Superior Courts, the garnishee order over debts owed to him, the judgment mortgage over his land and, across the Union, the European Account Preservation Order, which allows a creditor with a judgment to freeze bank accounts in another Member State and, where the account is not known, to ask the court to obtain the account information from the authorities of that State.16 And in the winding up itself the liquidator has sections 604 and 608, the power to set aside preferences and to recover property disposed of in fraud of creditors, and the Official Assignee in bankruptcy has the equivalent powers under the Bankruptcy Act 1988.
Hide and seek, and how the game is changing
The person who hides assets relies on three things. The first is that nobody knows where to look. Money moved through three accounts in two countries, a property put into a spouse’s name, a company dissolved and its business carried on through another, are each designed to defeat not the law but the search. The second is time. The longer the liquidator takes to find the asset, the more likely it is to have been spent, sold on to a purchaser for value, or moved again, and the closer the limitation period comes. The third is cost. A liquidator with a modest estate cannot afford to instruct lawyers in four jurisdictions on the chance that something is there, and the person who hid the money knows it.
The Directive goes to all three. Where to look is answered by the register search, which turns a question that used to be put to the debtor into one put to the Central Bank, and which reaches every account in the Union rather than the ones the debtor chooses to admit. Time is answered by the words direct and immediate, which are the Directive’s own, and by the requirement that beneficial ownership information be available without the owner being told. Cost is answered by the fact that the search is made by the Irish court on the liquidator’s application, with no foreign lawyer, no letter of request and no foreign fee. What the Directive does not do is dispense with the examination, the freezing order and the avoidance action. It tells the liquidator where the money is. The existing powers are still what gets it back.
There are limits, and clients on both sides should understand them. The access is for insolvency practitioners in insolvency proceedings. A judgment creditor pursuing a solvent but unwilling debtor outside insolvency gains nothing from it directly, and will continue to rely on the examination as to means, the preservation order and the freezing injunction, though a creditor who can bring the debtor into bankruptcy or liquidation will find the register waiting. The access is to registers, which record who holds an account and not what passed through it, so the bank statements will still have to be obtained by discovery or by order once the account is found. And the Directive covers bank and payment accounts, beneficial ownership and the registers listed in its Annex. It does not reach cash, cryptoassets held in self custody, or property in jurisdictions outside the Union, where the liquidator will still need the recognition of the Irish proceedings and the assistance of a foreign court.
What it means in practice
For creditors and liquidators the message is that the balance is shifting. A transaction that stripped a company in the two years before it failed is now exposed to avoidance in every Member State, a search for the proceeds can be run from Dublin, and the person who received them can be examined on oath about what became of them. The strategy for recovering assets from an insolvent debtor should be planned on the assumption that the register search will be available for any liquidation still open in 2029, and the papers in the meantime should be assembled so that the search, when it comes, is aimed. For directors and their advisers the message is the same from the other side. The transfer to a spouse, the sale at an undervalue to a connected company, the payment of one creditor ahead of the rest in the final months, each of which could once be made in the hope that nobody would find it, will from 2029 be found by a court that can see every account in the Union, and will be reversed under provisions that now exist in every Member State. The three month duty to file, and the personal liability that attaches to ignoring it, mean that the period in which such transactions were made will itself be the subject of scrutiny.
For anyone who has already played hide and seek, the practical advice is simple and it is the advice we give in every such case. The assets will be found. The question is whether they are found by the liquidator, with the costs, the adverse findings and the possible restriction or disqualification that follow, or disclosed by the person who hid them, in a negotiation that can still be had. The Directive has not changed the law on that choice. It has shortened the time in which it can be made.
Ireland has until 22 January 2029 to transpose the Directive, and the designation of the courts or authorities that will have access to the registers must be notified to the Commission by April of that year. The firm will follow the transposition and will return to the subject when the Irish measures are published.
This article is for general information only and does not constitute legal advice. The Directive had not been transposed into Irish law at the date of writing, and the powers it confers will depend on the terms of the Irish implementing measures. Advice should be taken on the facts of any particular case.
Notes
- Directive (EU) 2026/799 of the European Parliament and of the Council of 30 March 2026 harmonising certain aspects of insolvency law, OJ L, 1 April 2026, Articles 1, 2 and 4; transposition by 22 January 2029. ↩
- Directive (EU) 2026/799, Articles 7 to 10. ↩
- Companies Act 2014, sections 604 and 608; Land and Conveyancing Law Reform Act 2009, section 74. ↩
- Directive (EU) 2026/799, Articles 23 to 35. ↩
- Directive (EU) 2026/799, Articles 40 to 43; Companies Act 2014, section 224A. ↩
- Directive (EU) 2026/799, Articles 14 to 16. ↩
- European Union (Anti-Money Laundering: Central Mechanism for Information on Safe-Deposit Boxes and Bank and Payment Accounts) Regulations 2022 (S.I. No. 46 of 2022); Directive (EU) 2024/1640, Article 16. ↩
- Directive (EU) 2026/799, Articles 16 and 17. ↩
- Directive (EU) 2024/1640 of the European Parliament and of the Council of 31 May 2024, Articles 16 and 17 (bank account registers and their interconnection); Directive (EU) 2026/799, Article 16. ↩
- Directive (EU) 2026/799, Articles 19 and 20 and Annex. ↩
- Directive (EU) 2026/799, Article 18; Joined Cases C-37/20 and C-601/20 WM and Sovim SA v Luxembourg Business Registers, judgment of 22 November 2022. ↩
- Companies Act 2014, section 671. ↩
- Bennett Enterprises Inc v Lipton [1999] 2 IR 221; O’Mahony v Horgan [1995] 2 IR 411. ↩
- Megaleasing UK Ltd v Barrett [1993] ILRM 497; Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. ↩
- Microsoft Corporation v Brightpoint Ireland Ltd [2001] 1 ILRM 540. ↩
- Rules of the Superior Courts, Order 42, rule 36; Regulation (EU) No 655/2014 establishing a European Account Preservation Order procedure, Article 14. ↩