2.3. I. Economic Interests mid Mandatory Requirements

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The Court in its case law on the freedoms has not as such recognised the objectives

of insolvency. Neither do any of the express exceptions in Article 30 EC or those

expressly provided for in relation to the other freedoms directly control the issue.

However, although the express exceptions are exhaustive, the Court has not closed

the list of exceptions under the rule of reason. If insolvency law's objectives are to be

recognised as taking precedence over the freedoms, it must be done under the 'rule

of reason' as developed in the case law.

The same basic distinction also underlies the question of equitable distribution'. The

economic account of insolvency law rejects any independent distributional policies

in insolvency law. Insolvency law is to keep intact the relative ranking of creditors as

established by non-insolvency law. Only to the extent necessary to achieve the

maximum value of the estate for the benefit of the creditors as a whole is a change of

pre-insolvency entitlements to be accepted. In contrast, in the open-ended account

(re-)distribution is seen as one of the essential functions of insolvency law. The

question is one of how to distribute the loss of business failure. The pre-insolvencv

entitlements present one possible distributional scheme but there is nothing inherent

to insolvency law which would preclude adjusting this scheme.

As indicated, both approaches are represented among the Member States, with the

United Kingdom and German law representing the economic and France the openended

a c c o u n t . " As Member States pursue these interests through the universal

application of their insolvency law, these interests must, insofar as the universal

application of insolvency law results in an obstacle to trade, be compatible with C om

munity law. In respect of both the question of deployment and distribution it must

be examined whether and to what extent these interests may justify the universal application

of the lex fori conciirsus.