En octobre 2020, la Commission européenne a approuvé une mesure de recapitalisation d'environ 833 millions EUR, notifiée par la Suède et le Danemark, en faveur de SAS. Cette mesure était fondée sur l’Encadrement temporaire relatif aux aides d'État dans le contexte de la crise du COVID-19.

In October 2020, the European Commission approved a recapitalisation measure of approximately €833 million, notified by Sweden and Denmark, in favour of SAS. This measure was adopted under the State aid COVID-19 Temporary framework.

Ryanair challenged the Commission decision and secured its annulment by the General Court of the EU in May 2023 (Case T-238/21). In late 2022, SAS entered a collective insolvency proceeding. Following the annulment of the 2020 decision, the Commission approved again in November 2023 the recapitalisation measure.  

On 8 May 2024, the General Court of the EU annulled the Commission decision of 26 July 2021 approving restructuring aid to German airline Condor following an annulment action lodged by Ryanair. The Commission should have opened a formal procedure because of doubts about the compatibility of the aid. The General Court rejected Ryanair’s argument relating to the impact of the aid on its competitive position.

Background

The Eighth Circuit held that “avoidance actions [e.g., preferences, fraudulent transfers] can be sold as property of the [Chapter 7 debtor’s] estate.” In re Simply Essentials, LLC, 2023 WL 5341506, *1 (8th Cir. Aug. 21, 2023). On a direct appeal from the bankruptcy court, the court affirmed the bankruptcy court’s granting of the trustee’s motions to compromise and sell property under Bankruptcy Code §363(f). A creditor had objected, arguing unsuccessfully that “avoidance actions… are not part of the bankruptcy estate ….” Id.

The U.S. Court of Appeals for the Second Circuit quietly affirmed a bankruptcy court’s dismissal of an involuntary petition because the petitioners’ “claims were the subject of bona fide disputes within the meaning of” Bankruptcy Code (Code) §303(b)(1) (petitioner may not hold claim that is “the subject of a bona fide dispute as to liability or amount”). In re Navient Solutions, LLC, 2023 WL 3487051 (2d Cir. May 17, 2023).

On May 30, 2023, the U.S. Court of Appeals for the Second Circuit affirmed a bankruptcy court’s confirmation of a chapter 11 reorganization plan containing nonconsensual releases of direct claims against third-party non-debtors, including the debtor’s controlling owners, the Sacklers.

Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The Third Circuit said no when it held that a lessor’s pre-bankruptcy termination of the debtors’ lease and purchase option “was not a transfer under Bankruptcy Code §548(a) (1)(B).” In re Pazzo Pazzo Inc., 2022 WL 17690158 (3d Cir. Dec. 15, 2022). But the Seventh Circuit held that a chapter 11 debtor’s pre-bankruptcy “surrender of [two] … leases to [its landlord] could be regarded as a preferential [or fraudulent] transfer.” In re Great Lakes Quick Lube L.P., 816 F.3d 482 (7th Cir. 2016).

On 27 March 2023, the European Commission concluded that an Italian loan of EUR 400 million granted in 2019 in favour of Alitalia constituted illegal and incompatible aid that has to be reimbursed.

Alitalia has benefitted from numerous public support measures over the years. The airline found itself in a financial pickle and was declared bankrupt in May 2017. To ensure the continuity of its operations, the Italian State provided the airline with two loans, one of EUR 900 million granted in 2017 and the second of EUR 400 million in 2019.

Sometimes a debtor is liable for fraud that she did not personally commit,” held the U.S. Supreme Court on Feb. 22, 2023, when the debtor’s business partner had deceptively obtained money by fraud, thereby making the innocent partner liable for a nondischargeable debt under Bankruptcy Code (Code) §523(a)(2)(A) (“any debt from money “obtained by … fraud” not dischargeable and survives debtor’s bankruptcy). Bartenwerfer v. Buckley, 2023 WL 2144417 (Feb. 22, 2023).

"When a modification to a Chapter 11 reorganization plan materially and adversely affects the treatment of a class of claim or interest holders, those claim or interest holders are entitled to a new disclosure statement and another opportunity to vote.” In re America-CV Station Group, Inc., 2023 WL 109967 (11th Cir. Jan. 5, 2023). In this case, the U.S. Court of Appeals for the Eleventh Circuit just upended a hastily confirmed reorganization plan.