Vol 23 (2026) - Issue 5

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The Fundamental GDPR Tension in Cross-Border Insolvency: Irreconcilable Frameworks or Solvable Problem?

Synopsis
Cross-border insolvency proceedings conducted under Regulation (EU) 2015/848 (the 'EIR Recast') and the General Data Protection Regulation (EU) 2016/679 ('GDPR') operate from structurally opposed normative premises. The EIR Recast demands maximum transparency, mandatory information sharing between insolvency practitioners and courts across Member States, and broad disclosure to creditors. GDPR demands the opposite: minimum necessary disclosure, purpose limitation, and robust data subject rights. Neither instrument explicitly yields to the other. This article analyses the points of irreconcilable tension, identifies the principal data protection risks arising in proceedings where the debtor and creditors are natural persons, and evaluates the practical compliance framework available to case handlers – insolvency practitioners, courts, and state supervision authorities – operating in the current legal vacuum. It concludes that full compliance is presently aspirational rather than achievable, and that the path to resolution lies not in amending GDPR but in targeted regulatory guidance and a structural reform of the EIR's cooperation architecture.