Restructuring and insolvency in Germany: overview

A Q&A guide to restructuring and insolvency law in Germany.

The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform.

To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool.

This Q&A is part of the global guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-guide.

Contents

Forms of security

1. What are the most common forms of security granted over immovable and movable property? What formalities must the security documents, the secured creditor or the debtor comply with? What is the effect of non-compliance with these formalities?

Immovable property

Common forms of security and formalities. The most common forms of security over immovable property are:

  • Land charge (Grundschuld). This is a real property lien. The land charge holder does not become the owner of the property, but has a claim against the property owner for foreclosure (Zwangsvollstreckung). Foreclosure takes the form of a sale by public auction (Zwangsversteigerung) or judicial receivership (Zwangsverwaltung). The land charge holder will receive payment out of the sales proceeds or out of judicial receivership. A security land charge (Sicherungsgrundschuld) is the most common form of security over immovable property.

  • Mortgage (Hypothek). This is similar to a land charge, but it is less flexible. A mortgage is always accessory to the secured claim.

To create security over immovable property, all of the following are required:

  • The parties' agreements must be recorded by a German notary public.

  • An agreement relating to the security (in the case of a mortgage).

  • Registration of the security in the Land Register (Grundbuch).

Security over immovable property is not valid until it is recorded in the Land Register. Before recording the security interest, the parties are bound by the agreement only if it was recorded by a notary public or was submitted to the Land Register Office (Grundbuchamt).

Effects of non-compliance. The security is void if it is not registered in the Land Register.

Movable property

Common forms of security and formalities. The most common forms of security over movable property are:

  • Retention of title (Eigentumsvorbehalt). A seller can reserve title to products under a purchase agreement, to the effect that the purchaser only acquires title when the purchase price has been paid (see Question 3).

  • Security assignment (Sicherungsübereignung). This involves the securing party assigning personal property to the secured party as security for a claim. The advantage of a security assignment is that the securing party does not have to deliver the property to the secured party and can therefore continue to use the property.

  • Pledge right (Pfandrecht). This entitles the pledgee to satisfy a claim against the pledgor or a third party by selling the pledged property. The disadvantage of a pledge right is that the pledgor can no longer use the property, as the pledgee must hold the pledged property in his possession.

There are generally no specific requirements for creating security over movable property. However, a written agreement is recommended for evidentiary purposes.

The property must be accurately identified, in order to rule out any risk of confusion (for example, in a purchaser's warehouse). A lack of accurate identification frequently renders security interests invalid.

Effects of non-compliance. Non-compliance with formalities does not make the security void, although failure to accurately identify the property may render a security interest invalid (see above). A valid agreement is also necessary (this agreement can be oral).

 

Creditor and contributory ranking

2. Where do creditors and contributories rank on a debtor's insolvency?

In regular insolvency proceedings, the priority of payments is as follows:

  • Owners. Any assets not forming part of the insolvency estate must be surrendered to the entitled parties.

  • Secured creditors (movable assets and claims) . If a creditor holds a security interest in an asset or a claim, the insolvency administrator is generally entitled to sell such asset to a third party, or to collect such claim (section 166, German Insolvency Code). The insolvency administrator is generally paid a standard fee of 9% of the proceeds of the sale of the respective sold asset (sections 170 and 171, German Insolvency Code). The insolvency administrator must disburse the proceeds (after deduction of his fees) to the secured creditor (sections 50 and 51, German Insolvency Code) up to a maximum of the secured claim. The secured creditor bears the risk that the proceeds collected (after deduction of fees) will not fully cover his insolvency claim. Any remaining surplus after full payment of the secured claim will accrue to the insolvency estate.

    Additionally, there is legal debate about whether a secured subordinated creditor (for example, a shareholder with his claim for repayment of the shareholder loan), can make use of his security, or not.

  • Secured creditors (immovable property). A creditor who is secured with an immovable property by land charge or mortgage has a claim for foreclosure (Zwangsvollstreckung) (section 49, German Insolvency Code) (see Question 1, Immovable property). However, an insolvency administrator and a creditor will frequently agree on sharing the proceeds between the insolvency estate and creditors, if the creditor waives his land charge or mortgage, and if the insolvency administrator sells the immovable property to an investor.

  • Costs of insolvency proceedings. These costs include court fees for the insolvency proceedings, and the remuneration earned and the expenses incurred by the provisional insolvency administrator, the insolvency administrator and the members of the creditors' committee (section 54, German Insolvency Code). Costs of the insolvency proceedings rank in higher priority to all other debts, including those owed to employees. See Question 5, Insolvency pay.

  • Insolvency estate creditors. These are, for example, claims resulting from new contracts signed by the insolvency administrator with third parties, such as suppliers (section 55, German Insolvency Code).

  • Insolvency creditors. All unsecured creditors who registered their claims in writing with the insolvency administrator and whose claims have seen no objection by the insolvency administrator or another insolvency creditor. Insolvency creditors receive payment on a pro rata basis. In most cases, payments are low. Employees are also insolvency creditors with their unsecured claims for payment of wages. See Question 5, Insolvency pay.

  • Subordinated creditors. If all claims of all insolvency creditors have been fully paid (which is extremely rare), subordinated creditors will be paid (section 39, German Insolvency Code). Subordinated claims are, for example:

    • claims for payment of interest that accrued after the opening of the insolvency proceedings;

    • general claims for the repayment of shareholder loans. Exceptions to this are claims of a shareholder who holds 10% or less of the company's registered capital, unless the shareholder is a managing director, or if a creditor acquired shares of the company for restructuring purposes after the company has become illiquid or over-indebted (see Question 7) (or illiquidity was imminent).

  • Claims subordinated by agreement. These claims are paid only after subordinated claims have been paid.

  • Shareholders. Any remaining surplus is distributed to the shareholders.

 

Unpaid debts and recovery

3. Can trade creditors use any mechanisms to secure unpaid debts? Are there any legal or practical limits on the operation of these mechanisms?

Retention of title (Eigentumsvorbehalt)

Retention of title is the mechanism most frequently used to secure unpaid debts. It prevents title to the sold goods from transferring to the purchaser before the purchaser has paid the full purchase price. If the insolvency administrator does not wish to perform the purchase agreement and pay the purchase price, the seller can demand surrender of the goods, or claim damages as insolvency creditor.

Prolonged retention of title (verlängerter Eigentumsvorbehalt)

Retention of title is frequently combined with advance assignment clauses. The advance assignment clauses extend the seller's retention of title to payments due to the purchaser if the purchaser resells the goods. For example, if the purchaser sells the goods to a third party, the purchaser's claim for payment of the purchase price against the third party is, under the advance assignment clause, assigned as security to the seller that has reserved title.

In a purchaser's insolvency, a seller cannot demand surrender of the purchaser's claim for payment of the purchase price against the third party. However, the seller's claims are satisfied in advance out of the proceeds of the purchaser's claim for payment of the purchase price against the third party (see Question 2, secured creditors).

 
4. Can creditors invoke any procedures (other than the formal rescue or insolvency procedures described in Questions 6 and 7) to recover their debt? Is there a mandatory set-off of mutual debts on insolvency?

Collection action and injunction

A creditor can file a collection action against the debtor in a civil court. Under certain circumstances, the creditor can apply for an injunction against the debtor in a civil court. If the court enters judgment in favour of the creditor, the creditor can enforce a judgment against the debtor with the assistance of the bailiff. However, this does not apply if preliminary insolvency proceedings or insolvency proceedings have begun (sections 21 and 89, German Insolvency Code).

Set-off

A creditor has a right of set-off, if that right already existed at the time the insolvency proceedings were opened (section 94, German Insolvency Code). Set-off is not permitted if the creditor acquired his claim from another creditor only after the insolvency proceedings began (section 96, German Insolvency Code). Set-off is also not permitted if the creditor acquired the opportunity to set off his claim by a transaction subject to challenge of a pre-insolvency transaction (section 96, German Insolvency Code).

There is no mandatory or automatic set-off of mutual claims. Set-off must be declared. Such declaration is also possible after the opening of insolvency proceedings.

Creditor protection proceedings

Currently, there are no pre-insolvency creditor protection proceedings (such as schemes of arrangement) under German law, and German law does not provide for any other statutory non-insolvency restructuring proceedings.

However, there is the possibility to restructure bonds outside of insolvency proceedings under the German Bond Act 2009.

Moreover, there is an ongoing discussion with regard to the adoption of an out of insolvency restructuring proceeding and it seems more likely than not, that such a proceeding will be created by legislature within the next few years (see Question 14).

 

State support

5. Is state support for distressed businesses available?

State subsidies

Distressed businesses can receive state subsidies (subject to EU state aid control). State-owned banks can extend loans to businesses to help them out of financial difficulties if both:

  • The causes of a business's crisis are known.

  • A plan to overcome the crisis has already been developed.

Reduced working hours

If a company reduces an employee's working hours, the employee's reduced pay from the company can be supplemented by reduced working hour pay from the relevant Federal Agency for Employment, under certain circumstances. Reduced working hour pay is limited to six months.

Insolvency pay

In certain circumstances, the Federal Agency for Employment pays employees' salaries for the last three months before the opening of the insolvency proceedings (insolvency pay). Insolvency pay is intended to both:

  • Protect employees from a loss of their salaries in the event of insolvency.

  • Restore the insolvent company's cash flow, to facilitate a restructuring of the company.

Insolvency pay is due and payable only after opening of the insolvency proceedings. Therefore, it is often pre-financed by a bank that purchases the salary claims.

 

Rescue and insolvency procedures

6. What are the main rescue/reorganisation procedures in your jurisdiction?

There is no formal out of insolvency restructuring proceeding (apart from bond restructuring) yet, such as a scheme of arrangement. This may change within the next few years as there is ongoing political discussion about enacting a law with an out of insolvency restructuring proceeding (see Question 14).

Non-insolvency restructuring

Non-insolvency restructuring can take many different forms.

Non-insolvency restructuring is only permitted as long as no obligation to file an insolvency petition has occurred. Some examples include:

  • Negotiation of payment deferments. In many cases, it is necessary to negotiate payment deferments and partial waivers with creditors. Negotiations are frequently informal. Non-insolvency restructuring must not be limited to finance measures but also extended to operational measures.

  • Trustee relationship. In some cases, a trustee relationship can be an alternative to insolvency. A trustee relationship requires a contract (such as a trust agreement or a restructuring agreement). In a trustee relationship, the shares of the company in crisis are transferred to a trustee. The trustee holds the shares for both the (old) shareholders and the creditors (typically banks).

The creditors defer payment of their claims and receive rights of their own, such as:

  • Rights to disclosure.

  • Rights to participate in any exit proceeds.

As a general rule, the shares are sold to the highest bidder in a structured M&A process. The trust/restructuring agreement will stipulate the following:

  • The dates of share sales.

  • Any applicable minimum sales prices.

  • The supervision of the trustee.

  • The distribution of proceeds (such as a cascade model, waterfall and so on).

The proceeds from a successful restructuring primarily flow to the creditors. The (old) shareholders may share in restructuring proceeds by collecting surplus proceeds or retaining minority shares, and through share retransfers or call options.

Restructuring bond debts. It is possible to restructure bonds outside of insolvency proceedings under the German Bond Act 2009.

Protective shield proceeding (preparation of restructuring)

See Question 7, Protective shield proceeding (preparation of restructuring).

Insolvency plan proceeding (Insolvenzplanverfahren)

See Question 7, Insolvency plan proceeding (Insolvenzplanverfahren).

 
7. What are the main insolvency procedures in your jurisdiction?

Insolvency proceeding

Objective. The objective of a regular insolvency proceeding is to liquidate the debtor's assets in an orderly fashion and to pay all creditors equally (section 1, German Insolvency Code). The debtor's assets are sold and the proceeds are distributed to the creditors.

Initiation. To initiate an insolvency proceeding, an insolvency petition must be filed with the insolvency court (section 13, German Insolvency Code). The petition can be filed by:

  • The debtor (section 13, German Insolvency Code).

  • In the case of legal entities (for example, a limited liability company (Gesellschaft mit beschränkter Haftung) (GmbH) or stock corporation (Aktiengesellschaft) (AG)), each officer or director (for example, the managing director or a management board member) individually (section 15, German Insolvency Code).

  • If a legal entity has no managing director or management board, by any shareholder or, in case of a stock corporation, any member of the supervisory board (section 15, German Insolvency Code).

  • A creditor, provided that the creditor has a legal interest in the opening of an insolvency proceeding (sections 13 and 14, German Insolvency Code). The creditor must submit prima facie evidence of his claim and the grounds for the opening of the insolvency proceeding.

If there are grounds to open the insolvency proceeding (see below, Substantive tests), the managing directors of legal entities must file an insolvency petition (section 15a, German Insolvency Code). This must be done without undue delay, but in any case no later than three weeks from the occurrence of circumstances providing grounds for the opening of an insolvency proceeding (section 15a, German Insolvency Code). Any person who fails to comply with this obligation is subject to criminal prosecution (which can result in a monetary fine or imprisonment) (section 15a, German Insolvency Code) and is personally liable towards the insolvency estate for payments made by the legal entity to third parties (with limited exceptions) (Question 9).

An insolvency proceeding can be opened in relation to the assets of any natural person or legal entity (including a GmbH, AG, general partnership (offene Handelsgesellschaft) and limited partnership (Kommanditgesellschaft)).

In most cases, the insolvency court initially appoints a preliminary insolvency administrator (sections 21 and 22, German Insolvency Code). If so, the insolvency court will usually only open an insolvency proceeding about two to three months after the appointment of the preliminary insolvency administrator. This is because insolvency pay may apply and be pre-financed (see Question 5, Insolvency pay).

The insolvency petition can be withdrawn until the insolvency proceeding is opened or the insolvency petition is denied by a final court (where the decision cannot be appealed) (section 13, German Insolvency Code).

If the debtor has filed an insolvency petition and its illiquidity is only imminent, and it has applied for personal management but the insolvency court views the requirements for personal management to not be satisfied, the insolvency court must notify the debtor and provide an opportunity for the debtor to withdraw the petition before a decision is made regarding the opening of an insolvency proceeding (section 270a, German Insolvency Code).

Substantive tests. The insolvency court will open an insolvency proceeding if the debtor's assets are expected to cover the costs of the insolvency proceeding or if a third party advances funds sufficient to cover the costs, and if one of the following grounds applies:

  • Illiquidity (section 17, German Insolvency Code). A debtor is illiquid if he is unable to meet his payment obligations when due. The following are not taken into consideration:

    • minor cash flow shortages. This occurs if the shortfall is less than 10% (that is, the cash available covers at least 90% of the obligations due) and if there is no apparent trend towards a larger cash flow shortage;

    • short-term payment problems. This occurs if the shortfall is more than the 10% cash flow shortage (see above), but is resolved within a maximum period of three weeks.

      Payment obligations not yet due are not taken into consideration when reviewing whether the company is illiquid. Payment obligations are not yet due if they involve deferred obligations or obligations for which existing payment deadlines have not yet passed; or are due under civil law but the creditor consented to deferred payment at least de facto (that is, with or without intent to be legally bound). Whether a creditor consented to deferred payment of his claim must not be assumed without careful consideration.

      A debtor company is generally assumed to be illiquid if it has already stopped making payments.

  • Imminent illiquidity (section 18, German Insolvency Code). A debtor can file an insolvency petition if illiquidity is imminent. In this exceptional case, failure to file an insolvency petition is not subject to criminal prosecution.

  • Over-indebtedness (section 19, German Insolvency Code). If a legal entity is involved, over-indebtedness can be grounds on which to open an insolvency proceeding. Over-indebtedness occurs if assets no longer cover liabilities, unless the circumstances indicate that the company is more likely to survive than not (section 19, German Insolvency Code). A probability of more than 50% is required for a company's financial strength to be sufficient for its survival (Positive Fortführungsprognose). The company is "more likely to survive than not" if a forecast shows that the company's financial strength is likely to be sufficient for its survival. The time period to be examined usually covers the current fiscal year and the subsequent fiscal year. The forecast for this period must be made on the basis of cash flow and earnings projections, based on facts, made in accordance with accepted business management principles.

Consents and approvals. The insolvency court decides whether to open an insolvency proceeding and whether to appoint an insolvency administrator.

Under certain conditions, the insolvency court has to appoint a preliminary creditors' committee and provide the committee with the opportunity to state its position regarding the proposed insolvency administrator before he is appointed (unless this would result in a substantial adverse change in the debtor's financial position). If the preliminary creditors' committee makes a unanimous proposal for an insolvency administrator, the insolvency court can only ignore this if such person is not suitable to serve as an insolvency administrator.

The creditors can vote for a new insolvency administrator at the first creditors' assembly (section 57, German Insolvency Code), but this rarely happens. The new insolvency administrator must be approved by a majority (in terms of the number of creditors and the amounts of their claims).

Particularly important legal acts of the insolvency administrator (for example, a sale of the business as a whole) are subject to the consent of the creditors' committee (or, if no creditors' committee has been created, the creditors' assembly) (section 160, German Insolvency Code). If the insolvency administrator carries out important legal acts without the requisite consent, these acts still have legal effect.

At the creditors' assembly, the creditors can decide whether to shut down the company or carry on the company's business on a temporary basis (section 157, German Insolvency Code).

Supervision and control. The insolvency court supervises the insolvency administrator (section 58, German Insolvency Code). In practice, insolvency courts are reluctant to exercise their supervisory authorities. The creditors' assembly has a right to disclosure and to receive reports from the insolvency administrator (section 79, German Insolvency Code).

Supervision and control also depends on whether or not the insolvency proceeding is preliminary. In preliminary insolvency proceedings, the insolvency administrator generally has fewer powers and authorities than an insolvency administrator. A preliminary insolvency administrator generally only has the right to approve or reject asset transfers by the debtor, but no authority to manage or dispose of the debtor's assets.

However, the major decisions affecting a subsequent insolvency proceeding are in many cases already made during the preliminary insolvency proceeding. For example, the preliminary insolvency administrator often negotiates an agreement for the sale of the business with a prospective purchaser during the preliminary insolvency proceeding, in order to save time. The insolvency court usually later appoints the same person as insolvency administrator, but is not obliged to do so. The insolvency administrator then signs the purchase agreement.

The insolvency court can decide not to appoint an insolvency administrator and instead order the company to manage and dispose of the insolvency estate under the supervision of a custodian (personal management) (section 270, German Insolvency Code). If so, the company directors continue to have full authority to manage the company. In this case, the insolvency court appoints a custodian in lieu of an insolvency administrator, but in general, this custodian has only supervisory authority.

Personal management is ordered on application, provided there are no known circumstances which are likely to disadvantage the creditors.

Protection from creditors. The protections available depend on whether or not the proceedings are preliminary:

  • Preliminary insolvency proceeding. The insolvency court usually orders that any asset transfers by the debtor are invalid unless approved by the preliminary insolvency administrator (section 21, German Insolvency Code). In addition, the insolvency court usually prohibits or terminates any foreclosure proceeding against the debtor.

  • Insolvency proceeding. Creditors cannot foreclose on a debtor's assets during an insolvency proceeding (section 89, German Insolvency Code). Creditors can enforce their insolvency claims only in accordance with the provisions governing insolvency proceedings (section 87, German Insolvency Code).

Length of procedure. For medium-sized or large companies, the average length of insolvency proceedings is four to eight years, but the period is not defined by law. Preliminary insolvency proceedings (before the formal opening of insolvency proceedings) usually last about three months, due to insolvency pay (see Question 5, Insolvency pay).

Conclusion. Insolvency proceedings have several effects:

  • Authority to manage and dispose of assets. When insolvency proceedings are opened, the authority to manage and dispose of the assets of the insolvency estate generally transfers to the insolvency administrator (sections 80 and 81, German Insolvency Code). The only exception applies in the case of personal management, where the debtor retains the authority to manage and dispose of assets (section 270, German Insolvency Code).

  • Survival of the company. The company is dissolved when insolvency proceedings are opened, but it does not cease to exist and the shares survive. The shareholders can continue to adopt resolutions. However, they cannot influence the insolvency administrator.

  • Employment agreements. Employment agreements continue to be effective when insolvency proceedings are opened. However, the insolvency administrator and the employees can terminate employment agreements at the end of each month, on three months' prior notice (unless a shorter notice period applies), regardless of any:

    • agreed contract term;

    • exclusion of the right to terminate without cause.

      Employees' salary claims that accrued before opening of the insolvency proceedings are insolvency claims.

  • Insolvency pay. In certain circumstances, the Federal Agency for Employment pays insolvency pay (see Question 5, Insolvency pay). The insolvency estate must pay salaries for a certain time period after the opening of insolvency proceedings.

  • Transfer of employment agreements. If the insolvency administrator sells the company as a whole (asset deal), the company's employment agreements transfer to the purchaser (section 613a, German Civil Code). Another possibility is to use the assistance of employment services companies and job training companies.

  • Bilateral contracts. A business partner of the debtor cannot terminate bilateral contracts on the grounds that insolvency proceedings have been opened. However, a business partner can demand pre-payment.

After the insolvency administrator has distributed the available assets to the creditors, the insolvency court will conclude the insolvency proceeding.

If the company no longer has any assets, the company will cease to exist as soon as the extinction of the company is recorded in the Commercial Register (Handelsregister). The company cannot continue operations because it ceased to exist.

If the debtor is a natural person, he will still be obliged to pay all unpaid debts due to the insolvency creditors. This is unless he is discharged of his obligations not performed by way of the insolvency proceedings (discharge of residual debts) (sections 286, 300 German Civil Code), or unless there is an insolvency plan with discharging effect.

Protective shield proceeding (preparation of restructuring)

Objective. The objective of a protective shield proceeding (section 270b, German Insolvency Code) is to give the debtor an opportunity to develop an insolvency plan to be implemented in a subsequent insolvency plan proceeding, while enjoying protection from foreclosure from creditors. A protective shield proceeding allows for the development and submission of an insolvency plan (see below, Insolvency plan proceeding ( Insolvenzplanverfahren)). Protective shield proceedings are comparable to preliminary insolvency proceedings (see above).

Initiation. Only the debtor can apply for a protective shield proceeding. In addition to the application, the debtor must submit a statement of reasons for the application from a person experienced in insolvency matters. This person does not need to be an insolvency administrator or lawyer. The statement must confirm:

  • The debtor's imminent illiquidity or the debtor's over-indebtedness.

  • That the debtor is not already illiquid.

  • That the envisaged restructuring has prospects of success.

A protective shield proceeding also requires the debtor to file an application for personal management. In this case, the company retains the authority to manage and dispose of assets (section 270, German Insolvency Code).

Substantive tests. An application can be filed if the debtor's illiquidity is imminent or if the debtor is over-indebted. However, the debtor will be unable to file an application if it is already illiquid (see below, Insolvency proceeding: substantive tests).

Consents and approvals. The insolvency court decides whether to:

  • Set the debtor a deadline for developing and submitting an insolvency plan, although the insolvency plan can also be submitted after expiry of the deadline and after the opening of insolvency proceedings.

  • Appoint a preliminary custodian. The insolvency court can appoint a preliminary custodian other than the one proposed by the debtor, but only if the proposed person is not suitable to serve as custodian.

The insolvency court must revoke the protective shield proceeding before the deadline for developing and submitting an insolvency plan expires if one of the following applies:

  • The envisaged restructuring no longer has prospects of success.

  • The provisional creditors' committee requests that the order be revoked.

  • A creditor applies for cancellation, no preliminary creditors' committee has been appointed and there are known circumstances that make it likely that the deadline will be detrimental to the creditors.

Supervision and control. During a protective shield proceeding, the company will manage and dispose of the insolvency estate under the supervision of a preliminary custodian. The insolvency court supervises the preliminary custodian. In practice, insolvency courts are reluctant to exercise their supervisory authorities. The members of the preliminary creditors' committee assist and supervise the debtor in the management of the company.

Protection from creditors. On receiving an application, the insolvency court will terminate any foreclosure proceeding against the debtor.

Length of proceeding. On receiving the application, the insolvency court will set a deadline for the submission of an insolvency plan. The time period for submitting the insolvency plan must not exceed three months.

Under certain circumstances (see above, Consents and approvals), the insolvency court can revoke the protective shield proceeding before the deadline for developing and submitting an insolvency plan expires.

Conclusion. The company retains the authority to manage and dispose of the assets. The company does not cease to exist. On receiving a debtor's application, the insolvency court will also order that the debtor can enter into engagements with effect for the insolvency estate. This is important because liabilities of the insolvency estate must be fully paid in the ensuing insolvency proceeding (see Question 2, insolvency estate creditors).

After revoking the protective shield proceeding, or after the deadline for developing and submitting an insolvency plan has expired, the insolvency court will decide whether to open an insolvency proceeding.

If the insolvency court decides to open an insolvency proceeding, this can take the form of either a regular insolvency proceeding (see Question 7) or an insolvency plan proceeding (see below, Insolvency plan proceeding ( Insolvenzplanverfahren)) (with or without personal management).

The insolvency court is not bound by the debtor's proposals. However, if the debtor succeeds in developing and submitting an insolvency plan (or, at least, a draft insolvency plan) before the deadline, it is likely that the insolvency court will open insolvency proceedings:

  • With personal management.

  • In the form of an insolvency plan proceeding.

Insolvency plan proceeding (Insolvenzplanverfahren)

Objective. An insolvency plan proceeding is a special type of insolvency proceeding. An insolvency plan can provide alternatives to the provisions of the German Insolvency Code for:

  • Satisfaction of secured creditors and insolvency creditors.

  • Disposition of the insolvency estate, and its distribution to the relevant parties.

  • Insolvency procedure.

  • Debtor's liability subsequent to the termination of the insolvency proceedings.

If the debtor is not a natural person, the share rights and membership rights of those persons with a participating interest in the debtor can be included in the insolvency plan (section 217, German Insolvency Code).

The objective of an insolvency plan proceeding is to find the best solution for all parties involved and to make that solution binding on all parties, without being subject to the rigid provisions applicable to regular insolvency proceedings (see Question 8, Insolvency proceeding).

An insolvency plan proceeding aims for payments to creditors that are higher than they would receive in a regular insolvency proceeding. Insolvency creditors can also receive payment sooner, depending on the terms of the insolvency plan.

An insolvency plan proceeding allows for:

  • Shares of the insolvent company to be transferred to third parties.

  • Debt-equity swaps, including capitalisation measures.

An insolvency plan proceeding is particularly suitable if the company is to be preserved as a legal entity. Preservation of the legal entity is sensible if the insolvent company holds favourable contracts or admissions that a purchaser could not easily procure in an asset deal, such as a favourable long-term lease agreement, or a securities exchange admission.

Initiation. The procedure is initiated when the debtor or the insolvency administrator submits a draft insolvency plan to the insolvency court (section 218, German Insolvency Code). Although it is not compulsory, it is sensible if the debtor informally discusses the draft insolvency plan with the most important creditors before submitting it to the insolvency court. If possible, the debtor should also file an application for personal management (see Question 7, Insolvency proceeding: Initiation).

In some cases, it is recommended that the debtor submits a draft insolvency plan to the insolvency court at the time the insolvency petition is filed (pre-packaged insolvency plan).

It is also possible to submit an insolvency plan during or after a protective shield proceeding. A protective shield proceeding is no prerequisite for an insolvency plan.

Creditors cannot submit an insolvency plan to the insolvency court. Creditors can, at a creditors' assembly, with a majority of the claims represented, request the insolvency administrator to develop an insolvency plan (section 157, German Insolvency Code).

Substantive tests. The substantive tests are the same as for a regular insolvency proceeding because an insolvency plan can only be approved by creditors after an insolvency proceeding has been opened (see Question 7, Insolvency proceeding: Substantive tests).

Consents and approvals. The following consents and approvals apply:

  • The insolvency court first reviews whether the draft insolvency plan complies with applicable law (section 231, German Insolvency Code).

  • The creditors then vote on the insolvency plan (section 235, German Insolvency Code). The insolvency plan is subject to the creditors' consent and must be approved by a majority (in terms of the number of creditors and the amounts of their claims) of each creditor group. If one or more groups do not approve the plan, constructive approval can apply within narrowly defined limits.

  • The insolvency court approves the insolvency plan.

  • Shareholders cannot prevent the transfer of the company's shares if the transfer is made under an insolvency plan or implemented due to capital measures.

  • Individual creditors cannot delay an insolvency plan proceeding by filing appeals. If the insolvency plan places the creditor in a position less favourable than the position he would have been in the event of an insolvency proceeding and the insolvency plan makes funds available to compensate the creditor, this creditor must file a separate legal action to determine whether he is entitled to payment of these funds.

Supervision and control. The insolvency plan can provide that settlement of the creditors' claims in accordance with the insolvency plan is subject to supervision by the insolvency administrator (sections 260 and 261, German Insolvency Code), or, if there is personal management, by the custodian (section 284 (2), German Insolvency Code).

Protection from creditors. This is the same as in a regular insolvency proceeding (see Question 7, Insolvency proceeding: Protection from creditors).

Length of procedure. An insolvency plan proceeding can be concluded more quickly than a regular insolvency proceeding. An insolvency plan proceeding can last from a few months to a few years.

Conclusion. In terms of paying off creditors, insolvency plan proceedings often provide for creditors to receive payment for a certain quota of their insolvency claims. In terms of the company's restructuring, an insolvency plan can provide for an investor and/or an existing shareholder to make funds available to the company for restructuring purposes or to pay creditors, and for that investor to receive shares of the company (for example, by share transfer or capitalisation measures).

An insolvency proceeding is concluded when the insolvency plan is confirmed by a final decision of the insolvency court. The insolvency plan can provide that the settlement of the creditors' claims in accordance with the insolvency plan is to be monitored by the insolvency administrator even after the insolvency proceeding has been terminated. The company can continue to operate as normal, if shareholders resolve accordingly, which will usually happen. Otherwise, liquidation outside of insolvency proceedings will occur (for example, by selling assets, paying debts).

Employment agreements, insolvency pay and bilateral contracts. The same considerations apply as for regular insolvency proceedings (see Question 7, Insolvency proceeding, Conclusion).

 

Stakeholders' roles

8. Which stakeholders have the most significant role in the outcome of a restructuring or insolvency procedure? Can stakeholders or commercial/policy issues influence the outcome of the procedure?

Stakeholders

Normally, the insolvency administrator, who is appointed by the insolvency court, is the key player in an insolvency proceeding. Generally, only creditors can have certain co-determination rights. Shareholders do not have any co-determination rights in a regular insolvency proceeding. Employees generally have very little influence.

Influence on outcome of procedure

Stakeholders can have a practical influence on the type of procedure used:

  • Protective shield proceeding. Since a protective shield proceeding can only be applied for by the debtor, the debtor has the most significant influence on the initiation of a protective shield proceeding.

  • Insolvency plan proceeding. If there is an insolvency plan proceeding, it is usually the debtor who will submit a draft insolvency plan. However, creditors have the most significant influence because they will vote on the insolvency plan. The chances that creditors will approve the insolvency plan will increase, if the debtor informally discusses the draft insolvency plan with the most important creditors and amends it accordingly.

  • Insolvency proceeding. Insolvency proceedings are usually governed by the insolvency administrator. The insolvency court is competent to decide who will become insolvency administrator. In most cases, the insolvency court will appoint an insolvency administrator who performed well in previous insolvency cases and who is well known to the insolvency court. Although the debtor can suggest an insolvency administrator, the insolvency court is not obliged to follow such a proposal. If the preliminary creditors' committee makes a unanimous proposal for an insolvency administrator, the insolvency court can only ignore this if the person is not suitable to serve as an insolvency administrator. Creditors also have the right to elect a new insolvency administrator in the first creditors' assembly but this rarely happens.

 

Liability

9. Can a director, partner, parent entity (domestic or foreign) or other party be held liable for an insolvent debtor's debts?

Director

If a company is insolvent, its managing director is generally not liable for the company's debts (either towards the insolvency estate or towards the creditors).

However, there are numerous liability risks for a managing director:

  • Suretyship, guarantee, or other contractual obligation. A managing director is liable for a company's obligations towards the insolvency estate and/or the creditors if (and as far as) he assumed personal liability contractually, for example, under a suretyship contract, or a guarantee.

  • Liability for payments made after illiquidity or over-indebtedness. A managing director of a company is under a duty to prevent payments by an insolvent company. A managing director will be liable towards the insolvency estate for any payments made by the company to third parties after the company has become illiquid or over-indebted (section 64, German Limited Liability Companies Act; section 92, German Stock Corporation Act). The insolvency administrator can bring a claim against the managing director to recover the money paid. In the event of insolvency, this liability risk often materialises. Payments made by the company can add up to high amounts. The background for this liability is that on illiquidity or over-indebtedness, the managing director must file an insolvency petition without undue delay (at the latest, three weeks after the commencement of illiquidity or over-indebtedness). The liability for payments made after illiquidity or over-indebtedness is subject to limited exceptions (for example, if payment is absolutely necessary to prevent major losses or to pay tax obligations or employees' social security premiums).

  • Liability for payments to shareholders resulting in illiquidity or over-indebtedness. A managing director is liable to the insolvency estate for payments made to shareholders if the payments would necessarily result in the company being illiquid.

  • Delayed filing of insolvency petition. If a managing director fails to file an insolvency petition without undue delay, he is liable for both payments made after illiquidity or over-indebtedness and any decreases in insolvency quotas.

  • Preservation of capital. A managing director is liable towards the insolvency estate for unlawful repayments of capital. Exceptions apply if payment is made under a profit transfer agreement covered by a collectible claim for performance or repayment against the shareholder or made in respect of repayment of a shareholder loan.

  • Duties of care. A managing director is liable towards the insolvency estate if he fails to act with due care in managing the company's affairs. For example, a managing director must:

    • comply with applicable laws and the provisions of the memorandum and articles of association (Satzung);

    • ensure the proper organisation of the company, including compliance of the company with applicable laws;

    • carefully prepare all business decisions (business judgment rule).

  • Embezzlement. A managing director is liable to the insolvency estate for any embezzlement of the company's assets. He is also liable if he misappropriates any assets included in the insolvency estate after the company's illiquidity becomes imminent or the company becomes illiquid or over-indebted.

  • Tort. A managing director can be liable to the insolvency estate and/or creditors for intentional damage contrary to public policy. A person who, in a manner contrary to public policy, intentionally inflicts damage on another person or company is liable to the other person or company to make compensation for the damage.

  • Tax debts. A managing director is liable to the tax authorities for any failure of the company to settle tax obligations when due, if he acted wilfully or through gross negligence.

  • Employees' share of social security premiums. A managing director is liable to the social insurance authorities for any failure of the company to pay employees' share of social security premiums. Social security premiums are shared by the employee and the employer. Nevertheless, the employer has to make direct payment of the employees' share. A managing director is not liable for non-payment of the employers' share.

  • Deception regarding illiquidity. A managing director is liable towards a contract partner if the contract partner (for example, a supplier) is deceived about the company's illiquidity.

Partner

The partners (for example, of a general partnership, or of a non-trading partnership under the German Civil Code) are personally liable for all of the partnership's obligations, unless partners' liability is lawfully limited (such as for a limited partner in a limited partnership and in a limited professional liability partnership).

Parent entity (domestic or foreign)

If a subsidiary (for example, a limited liability company or a stock corporation) is insolvent, the parent entity (domestic or foreign) is, in general, not liable for its subsidiary's debts. However, there are some exceptions with liability risks for a shareholder:

  • No statutory limitation of liability. A shareholder is liable for all of the company's obligations, if the liability of shareholders is not limited by law. Liability of shareholders is not limited by law, for example, in the case of a general partnership, a non-trading partnership under the German Civil Code, or a limited partnership for its general partner.

  • Suretyship, guarantee, "hard" letter of comfort, or other contractual obligation. A shareholder is liable for a company's obligations if and as far as he assumed liability contractually (for example, under a suretyship contract, a guarantee, or a "hard" letter of comfort (that is, a letter of comfort that is legally binding)).

  • Capital contributions. A shareholder is liable for the payment of capital contributions. A shareholder must pay the nominal capital for his share.

  • Preservation of capital. Shareholders are liable if either:

    • in the case of a stock corporation, paid capital contributions are repaid to them; or

    • in the case of a limited liability company, assets necessary for the preservation of the registered share capital (Stammkapital) are distributed.

  • Intercompany agreements (control and/or profit and loss transfer agreements). If there is an intercompany agreement (control and/or profit and loss transfer agreement), the controlling party is liable towards the insolvency estate of the controlled company for any net losses of the controlled company prior to opening of insolvency proceedings. These agreements usually automatically terminate if one of the parties becomes insolvent (with exceptions in cases of personal management). The controlling party is also liable for any net losses of the controlled company prior to opening of insolvency proceedings if the financial statements are missing or void. A financial statement is void if it infringes on provisions protecting creditors of the company (for example, valuation rules). If a financial statement is missing or void, the insolvency administrator will prepare a new financial statement. Usually, this new financial statement will show higher losses than the void financial statement. Based on the new financial statement, the insolvency administrator will calculate the (usually higher) net losses to be paid by the controlling party.

  • Setting aside transactions. A shareholder can be liable towards the insolvency administrator according to the provisions of pre-insolvency transactions, especially for repayments of shareholder loans within one year before the insolvency petition (see Question 10).

  • Tort. Anyone, including a shareholder and a parent entity, can be liable for intentional damage contrary to public policy. Anyone who, in a manner contrary to public policy, intentionally inflicts damage on another person or company is liable to the other person or company to make compensation for the damage. A shareholder is, for example, liable for interventions jeopardising the existence of the company (existenzvernichtender Eingriff). If the intervention results in the company's insolvency, there must be a substantial removal of assets in disregard of the interests of creditors.

Other party

Liability risks for other parties include:

  • Suretyship, guarantee, or other contractual obligation. A third party is liable for a company's obligations if and as far as it assumed liability contractually (for example, under a suretyship contract, or a guarantee).

  • Setting aside transactions. A third party can be liable towards the insolvency administrator, according to the provisions of pre-insolvency transactions (see Question 10).

  • De facto managing director. A third party can be liable towards the insolvency estate in the same way as a managing director if the third party acts as a de facto managing director. Only natural persons can be de facto directors. A person will be considered to be a de facto managing director if, for example, the person acts like a managing director of the company while representing the company externally.

  • Members of the preliminary creditors' committee. The members of the preliminary creditors' committee:

    • will be liable for damages to the creditors if they wrongfully violate their duties under the German Insolvency Code (section 71, German Insolvency Code);

    • must support and monitor the insolvency administrator's execution of his office. This includes requesting information on the progress of business affairs, inspecting the books and business documents, and verifying the monetary transactions and the available cash (section 69, German Insolvency Code).

  • Preliminary insolvency administrator. A preliminary insolvency administrator will be liable to damages for all parties to the insolvency proceedings if he wrongfully violates the duties incumbent on him under the German Insolvency Code. He shall ensure the careful action of a proper and diligent insolvency administrator (section 60, German Insolvency Code). If a debt incumbent on the insolvency estate created by a legal transaction of the insolvency administrator cannot be fully satisfied from the insolvency estate, the insolvency administrator shall be held liable to damages for the insolvency estate creditor. This shall not apply if the insolvency administrator, in creating such debt, could not be aware of the probable insufficiency of the insolvency estate for payment (section 60, German Insolvency Code).

  • Tort. Anybody can be liable for intentional damage contrary to public policy. A person who, in a manner contrary to public policy, intentionally inflicts damage on another person or company is liable to the other person or company to make compensation for the damage.

 

Setting aside transactions

10. Can an insolvent debtor's pre-insolvency transactions be set aside? If so, who can challenge these transactions, when and in what circumstances? Are third parties' rights affected?

Challenging pre-insolvency transactions

An insolvency administrator can challenge pre-insolvency transactions.

The laws governing the voidability of pre-insolvency transactions are intended to ensure that all creditors receive equal treatment. The objective is to reverse any asset transfers detrimental to all insolvency creditors.

Insolvency administrator' s authority. The insolvency administrator (or, in case of personal management, the custodian) is competent to challenge pre-insolvency transactions. The insolvency administrator can file a legal action (for example, a collection action) in a civil court.

Detrimental legal act. Generally, a challenge of pre-insolvency transactions requires, amongst others, a legal act that was detrimental to creditors (section 129, German Insolvency Code). A legal act is detrimental if creditors would have received greater payments on their claims than if the legal act had not taken place.

Examples of voidable pre-insolvency transactions. The insolvency administrator can challenge any of the following transactions, without limitation:

  • Payments of due obligations made within three months of the insolvency petition, if the recipient knew that the company was illiquid (congruent coverage) (section 130, German Insolvency Code).

  • Payments made within three months of the insolvency petition without entitlement of the creditor to such payment, or to the kind or date of such payment, if the creditor was aware of the disadvantage to the insolvency creditors arising from such payment on its date (incongruent coverage) (section 131, German Insolvency Code).

  • Payments that the company made to repay a shareholder loan (or equivalent claim) within one year before the insolvency petition (section 135, German Insolvency Code).

  • A shareholder, who provided a security or was liable as guarantor, is required to return to the insolvency administrator the benefit which the company granted to the third party, if the company paid back a loan to the third party within one year before the insolvency petition (section 135, German Insolvency Code).

  • Any unpaid services that the company rendered up to four years before the insolvency petition (gratuitous benefit) (section 134, German Insolvency Code).

  • Payments made within ten years before the insolvency petition with the intent to cause detriment to creditors, provided that special subjective elements are satisfied (wilful disadvantage) (section 133, German Insolvency Code) and subject to an overall assessment. Subjective elements for such wilful disadvantage are as follows:

    • if the other party knew of the debtor's imminent insolvency, and that the payment constituted a disadvantage for the creditors;

    • payments without entitlement of the creditor to such payment, or to the kind or date of such payment (incongruent coverage), depending on the type, extent and time lag of incongruent coverage;

    • foreclosure enforcement measures;

    • debtor's declaration of inability to pay;

    • payments in instalments (which are not common).

    Subjective elements against wilful disadvantage are:

    • situations that fall under a cash transaction exception (see below);

    • where there has been a long time lag between payment and insolvency petition;

    • where there is a non insolvency restructuring in place which is sustainable.

Cash transaction exception. Payments by the debtor where he benefited directly from an equitable consideration can only be contested under the conditions of wilful disadvantage (sections 142 and 133, German Insolvency Code), or of incongruent coverage (sections 142, 131, German Insolvency Code). For example, a fair purchase agreement, that is, an exchange of equivalent consideration concurrently or with only a minor time delay, cannot be challenged. However, this exception does not apply if the transaction is intended to cause detriment to creditors, for example if assets are sold below market value.

Foreign creditors. Foreign creditors are generally not preferred. In certain cases, foreign creditors are in a better position due to the applicable law under the rules of private international law in conjunction with the protection of confidence under Regulation (EC) 1346/2000 in respect of Regulation (EU) 2015/848 regarding securities and setting aside transactions.

Limitation. The limitation period for challenging pre-insolvency transactions expires at the earliest at the end of the third calendar year after the opening of the insolvency proceedings (section 146, German Insolvency Code and sections 195 and 199, German Civil Code).

Third parties' rights

Generally, an insolvency administrator can only challenge a pre-insolvency transaction in relation to the recipient of the payment or services. The insolvency administrator can only challenge a pre-insolvency transaction in relation to a recipient's legal successor in exceptional cases (for example, if the legal successor knew at the time of the purchase of the circumstances providing grounds for challenging the recipient's purchase) (section 145, German Insolvency Code).

 

Carrying on business during insolvency

11. In what circumstances can a debtor continue to carry on business during rescue or insolvency proceedings? In particular, who has the authority to supervise or carry on the debtor's business during the process and what restrictions apply?

Circumstances

Insolvency proceeding. When an insolvency proceeding is opened, the insolvency administrator can, among other things, continue to run the business, sell the assets (and the business) of the insolvency estate, and litigate disputes (sections 80 and 81, German Insolvency Code). The managing directors of the company remain in office, but no longer have any powers or authority with respect to the insolvency estate.

The creditors can, in a creditors' assembly, decide whether the business will be carried on, shut down, or sold to an investor. The insolvency administrator must comply with the creditors' decision (section 157, German Insolvency Code). Nevertheless, the insolvency administrator cannot continue running the business if there are no funds to pay the employees. In such a case, the creditors are, by operation of law and de facto, precluded from deciding that the business will continue.

Personal management. If the insolvency court grants an application for personal management, the managing directors are competent to act for the company under supervision of a custodian (Sachwalter) (section 270, German Insolvency Code) (rather than an insolvency administrator).

Authority/supervision

See above, Circumstances.

Intellectual property licences

The continuation of an intellectual property licence depends on which party to the licence agreement is insolvent:

  • Insolvency of the licensee. The licence agreement will initially continue to be effective. However, the insolvency administrator has a statutory right to choose whether or not to continue to perform agreements (section 103, German Insolvency Code). The insolvency administrator also has a choice whether or not to perform licence agreements. The choice of performance cannot be excluded in the licence agreement.

  • Insolvency of the licensor. The licence agreement likewise initially continues to be effective. The insolvency administrator can choose whether or not to continue performing the licence agreement. The choice of performance cannot be excluded in the licence agreement (except for narrowly defined exceptions). Therefore, the current law is not favourable to licensees.

 

Additional finance

12. Can a debtor that is subject to insolvency proceedings obtain additional finance both as a legal and as a practical matter (for example, debtor-in-possession financing or equivalent)? Is special priority given to the repayment of this finance?

If a lender (for example, a bank) agrees, it is possible for an insolvency administrator to obtain additional financing for the insolvency estate. The lender will be an insolvency estate creditor. Usually, the claim for repayment of the loan will be secured additionally. Generally, such financing can only be obtained from banks that have been involved with the company before.

An insolvency administrator is personally liable towards the creditor, if a debt incumbent on the insolvency estate created by a legal act of the insolvency administrator cannot be fully satisfied from the insolvency estate, except if the insolvency administrator, in creating such debt, could not be aware of the probable insufficiency of the insolvency estate for performance.

If a supplier agrees, it is possible for an insolvency administrator to generate liquidity in a business by processing stocks and selling products to customers. Usually, a supplier who agrees, is a secured creditor.

 

Multinational cases

13. What are the rules that govern a local court's recognition of concurrent foreign restructuring or insolvency procedures for a local debtor? Are there any international treaties or EU legislation governing this situation? What are the procedures for foreign creditors to submit claims in a local restructuring or insolvency process?

Recognition

The principle of universality applies in insolvency proceedings. Therefore, insolvency proceedings relate to all of the debtor's assets (regardless of their location) and apportion the assets among all creditors (regardless of their residence) under uniform liability rules. Insolvency proceedings in other jurisdictions are therefore automatically recognised in Germany (with a public policy exception).

Concurrent proceedings

German courts co-operate in relation to publication and registration obligations in concurrent proceedings.

International treaties

Regulation (EC) 1346/2000 on insolvency proceedings (Insolvency Regulation) applies in cross-border cases opened until 25 June 2017. For insolvency proceedings opened on 26 June 2017 or later, Regulation (EU) 2015/848 will apply.

The reformed Insolvency Regulation (EC) 1346/2000 was revised in order to improve the efficiency of the European framework for resolving cross-border insolvency cases.

The reformed Regulation (EU) 2015/848 includes:

  • An extension to the scope of the Regulation by revising the definition of "insolvency proceedings" to include:

    • hybrid proceedings and pre-insolvency proceedings;

    • debt discharge proceedings; and

    • other insolvency proceedings for natural persons that did not fit into the definition of Regulation (EC) 1346/2000.

  • A definition of a debtor's centre of main interests (COMI), including a suspect period of three months for companies and self-employed individuals, and six months for consumers.

  • Clarifying the jurisdiction rules and improving the procedural framework for determining jurisdiction, particularly by reviewing the debtor's COMI ex officio, the right of appeal for creditors to check the COMI and international jurisdiction for procedures closely related to insolvency proceedings.

  • Provisions to co-ordinate insolvency proceedings concerning different members of the same group of companies.

  • Provisions for a more efficient administration of insolvency proceedings by:

    • enabling the court to refuse the opening of secondary proceedings where it is not necessary to protect the interests of local creditors;

    • the co-operation of insolvency courts and insolvency administrators.

  • A publicly accessible electronic register for insolvency proceedings opened in the member states.

The Regulation applies whenever the debtor has assets or creditors in more than one member state in order to clarify the jurisdiction rules and improve the procedural framework for determining jurisdiction. The main proceedings must be opened in the member state where the debtor has its COMI (which has been interpreted by case law to date). The effects of the proceedings are recognised throughout the EU.

Secondary proceedings can be opened where the debtor has an establishment, but the effects of these proceedings are limited to the assets located in that state.

Procedures for foreign creditors

Foreign creditors can participate in German insolvency proceedings in the same way as German creditors do.

 

Reform

14. Are there any proposals for reform?

Setting aside transactions

There is a draft bill of the federal German Government, dated 16 December 2015 for a law amending the regulations concerning actions to set aside wilful disadvantages. The German Federal Court of Justice had extended "wilful disadvantage" too far, and the repayment of revenues generated over several years can lead to subsequent insolvencies, causing widespread uncertainty for financial planning. The draft bill aims to address this issue. The current period of ten years will, under certain circumstances, be reduced to four years. Other amendments will also be made. The law is expected to come into force towards the end of 2016 or in early 2017.

German group insolvency law

There is a draft bill of the federal German Government, dated 30 January 2014 for a law facilitating the management of corporate group insolvencies. This is intended to prevent corporate groups from uncontrollably falling apart in insolvency and preserves the chances of restructuring. The draft bill creates a new group venue for corporate group insolvencies and generally relies on co-ordination and co-operation. The draft bill is still under discussion.

Under the current law, separate insolvency courts can be competent for several group companies. If several affiliates of a group are insolvent, it is possible that a different insolvency administrator will be appointed for each of them. This creates a risk that different insolvency administrators can pursue different strategies or even work in opposition to one another.

Out of insolvency restructuring proceeding

The European Commission recommended to its member states to introduce the possibility of an out of insolvency restructuring proceeding (2014/135/EU). Political discussion in Germany about a law with an out of insolvency restructuring proceeding is still ongoing. There has not been any proposal by the Federal Ministry of Justice yet. The authors do not expect a law on out of insolvency restructuring proceedings to come into force before 2017.

European law

On 12 March 2014, the European Commission recommended several aspects to harmonise national insolvency law throughout the member states of the EU (C (2014)1500). According to the recommendation:

  • The national law should allow restructuring without formal insolvency proceedings (although a plan to restructure the debtor should be confirmed by a court).

  • Entrepreneurs should have the chance for a fresh start after three years.

However, under Article 288 (5) of the Treaty on the Functioning of the European Union, EU recommendations and opinions have no binding force.

Additionally, the EU has plans to foster the harmonisation of national insolvency law in order to support the emergence of a pan-European capital market and the free flow of capital in the EU.

 

Online resources

German Insolvency Code (German version)

W www.gesetze-im-internet.de/inso/BJNR286600994.html

Description. Website maintained by the German ministry of justice and by juris. This website is up-to-date.

German Insolvency Code (English version)

W www.gesetze-im-internet.de/englisch_inso/englisch_inso.html

Description. Website maintained by the German ministry of justice and by juris. This website is up-to-date. English translation is for guidance only.



Contributor profiles

Georg Streit

Heuking Kühn Lüer Wojtek

T +49 89 54031 227
F +49 89 54031 527
E g.streit@heuking.de
W www.heuking.de

Professional qualifications. Germany, 1998

Areas of practice. Restructuring; corporate/M&A.

Recent transactions

  • Advising shareholders of distressed companies.

  • Advising private equity firms in connection with restructurings of the liabilities of portfolio companies.

  • Advising in protective shield proceedings and insolvency plan proceedings.

  • Advising financial investors interested in acquiring distressed companies, and strategic buyers.

Recent transactions. Advising automotive supplier Neumayer Tekfor in protective shield proceedings and insolvency plan proceedings

Languages. German, English

Professional associations/memberships

  • Lecturer for Insolvency Law and Corporate Restructurings at University of Mannheim (since 2003), Honorary Professor (2009).

  • Center for Insolvency Law and Restructurings of the University of Mannheim (ZIS).

  • Gesellschaft für Restrukturierung - TMA Deutschland e.V.

Publications

  • Arranging and implementing restructurings, Interview in INDat-Report, February 2014.

  • Protective shield proceedings in practice, newsletter 2/2012, 9th Handelsblatt Jahrestagung Restrukturierung, page 7.

  • Successful restructuring – Most suitable before insolvency, Der Betrieb Nr. 13, 02 April 2010, pages 31-32.

Fabian Bürk

Heuking Kühn Lüer Wojtek

T +49 89 54031 227
F +49 89 54031 527
E f.buerk@heuking.de
W www.heuking.de

Professional qualifications. Germany, 2005

Areas of practice. Restructuring; corporate/M&A.

Recent transactions

  • Advising shareholders of distressed companies.
  • Advising managing directors against claims of insolvency administrators.
  • Advising automotive supplier Neumayer Tekfor in protective shield proceedings and insolvency plan proceedings.

Languages. German, English

Professional associations/memberships

  • Work Group on Insolvency Law and Restructurings of the German Bar Association.
  • International Bar Association (IBA).

Publications

  • Insolvency-proof nature of licenses in the insolvency of the licensor, newsletter June, 2012, practice group IP, Media & Technology, page 17 ff., Streit/Bürk.
  • Altered circumstances for distressed M&A by ESUG, Newsletter April 2012, Practice Group Corporate/M&A, page 2 ff., Streit/Bürk.
  • Management director's liability in insolvency, Der Betrieb 2008, page 742 ff., Streit/Bürk.

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