The reform of insolvency law (ESUG): What can you do as a creditor?

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The new insolvency law offers for Company Many advantages - but not only: Even as a creditor, you now have more say - for example, through your participation in the creditors' committee.

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Reinhard Schinkel 58Is Reinhard Schinkel according to Handelsblatt one of Germany's best tax advisors and specialist author for tax law.


From the author:




Protection from the creditors

In the course of self-management, you can now break down unlucrative contracts in order to gain a little liquidity or to continue or expand already existing lucrative contracts.

During this period (a maximum of three months), you are protected against the creditor's enforcement. Within the framework of this protective screen, you can promote the rehabilitation in peace.

Own management by the creditors' committee

The second way to self-administration would be, as already stated, that the constituent creditors' committee requests or approves self-government before the court. Then the court has to follow this recommendation, as obviously no creditor disadvantage will occur.

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Conclusion: Self-administration generally does Sense, because on the one hand process costs are saved and on the other hand you are the economic expert in your business area. On the other hand, if you are a creditor, participation in the creditors' committee offers several advantages.

What advantages does the creditors' committee offer?

In addition to the proposal for self-administration, the creditors' committee may also make a proposal to the court as the insolvency administrator. So you have it in your hands who should save your claims to the greatest extent possible. Maybe you know a very capable person who is best suited for this job.

The provisional creditor committee even has the power to deselect a provisional insolvency administrator. Decisions of the bankruptcy court can be revised in this way.

Convert demand into participation

Another new feature is that you can convert your claims into a stake in the company during the crisis. This means that if renovation is successful, there is even a chance to achieve positive added value.

Should the reorganization fail and the company goes into bankruptcy, you also do not have to fear that a subsequent claim will be made. If the conversion of the claim into a business participation is confirmed by court, no additional claims may be made (§254 Abs. 4 InsO).

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Further rights for creditors

Incidentally, if you continue to have business relationships with the debtor during the "protective shield procedure" and the bankruptcy procedure follows despite your best efforts, the liabilities that were established during this time are usually so-called bulk liabilities that are primarily satisfied in the bankruptcy procedure.

Conclusion: The first stage of the bankruptcy reform puts the main focus on the possible restructuring of companies and at the same time strengthens the rights of creditors. Should your business be in financial distress, the early application for self-administration helps to bring about a successful restructuring.

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  1. F. Eberhard Ostermayer

    Dear Mr. Schinkel,

    I happen to come across your informative website. Maybe your visitors could be interested in following articles. We help creditors in the process of insolvency to take their interests by providing them free of charge in the creditors' committee. Below is our PM on this topic. Sincerely
    F. Eberhard Ostermayer General publicly appointed sworn auctioneer

    Creditor rights in insolvency proceedings

    Creditors and insolvency administrators are in competition. The creditor aims at realizing his demand in a timely manner. The efforts of the insolvency administrator are aimed at enriching the mass, on simply implementable recovery and restructuring measures and from the economic interest of the insolvency administrator, to cover their own costs and fees.

    The amendment to the insolvency law (ESUG 01.03.2012), which came into effect on 2012, represents a turnaround. It is linked to a strengthening of creditor rights. Creditors can get involved in the procedure earlier and thus have a decisive influence. For example, it is now possible by unanimous decision to appoint the person of the liquidator and to perform other extensive control functions. This requires participation in the provisional creditors' committee. The influence and control of the insolvency administration is possible only through the creditors' committee.

    The profile of requirements to the members in the creditors' committee is largely congruent with that of the general, publicly appointed, sworn auctioneer. He is sworn to his independence in the proceedings, committed to secrecy against third parties and must thus in a special way to protect the rights of all parties involved in the proceedings. He is entitled to the utilization of contractual and legal liens (legal definition according to § 383 BGB). This includes the insolvency estate. The valuation and recovery of bankruptcy assets has always been one of his main tasks. Thus, he has special expertise in the procedure in the commercial settlement under the conditions of bankruptcy. He knows the appropriate national and international sales channels and can thus contribute to the avoidance of insolvency goods. For that reason alone, he is suitable for safeguarding the interests of the creditors and, as a member of the creditors' committee, can contribute valuable contributions to the insolvency proceedings.

    Through his previous work, he knows the insolvency administrator industry. This is helpful when it comes to naming the best administrator for the procedure. Proper selection of a suitable liquidator can significantly influence the process.

    Another aspect is the avoidance of liability and process risks. Unlike the assignment of own permanent employees (duty of care of the employer), the exemption from liability can be contractually regulated. The principles of internal damage compensation do not apply to commissioned third parties. In the past, there have been spectacular cases of fraud and infidelity by insolvency administrators. (see Steinwachs / Vallendar, The creditors' committee in the insolvency of the corporate client, S. 184). In such cases, the insolvency administrator's professional liability does not apply. Then the members of the creditors' committee and their claims become the focus of the subsequent insolvency administrator and are prosecuted with great intensity (see Steinwachs / Vallendar, p.240). As a result, there may be a significant amount of time spent on potential follow-up, which would lead to a loss of employment when permanent employees are employed by the creditors' committee.

    In contrast to the law firm usually employed, there is no conflict of interests. Although the lawyer as a creditor committee member is not obliged to silence himself against his client (BGH by 22.4.1981 VIII ZR 34 / 80, ZIP 1981, 1001), he may, in his capacity as a lawyer, obtain the information obtained during his activity as a member of the Credit Committee in the interests of the interests of the creditor population, which are to be predominantly to be safeguarded, not in conjunction with his client to the detriment of the other creditors (cf. Steinwachs / Vallendar, p. 20). This means: If your lawyer's office is working for you in the creditors' committee, she can no longer exercise your rights in this insolvency proceedings for reasons of collision of interests!

    The issue of bank secrecy and compliance is important for credit institutions. The compliance departments of the credit institutions must also avoid too close proximity between the bank and customers, even under the pressure of the BaFin, in order to avoid possible dependencies and conflicts of interest (Steinwachs / Vallendar, S. 33). For bank employees, the obligation to maintain secrecy and compliance with the rules of compli- ance is prohibited. It is therefore inadmissible to use the knowledge acquired in the creditor committee indoors. Through its involvement it is ensured that this knowledge can not reach other areas of the credit institution. In addition, there is the latent risk that bank secrecy will be violated by employees sent to the creditors' committee.

    Turning on the auctioneer saves the human resources of the company. The work in the creditors' committee often has to be done during leisure time. As a result, there is an internal pressure to justify the compensation claims of the permanent employees who are turned down to the creditors' committee.

    Moreover, the creditor does not incur any direct costs, other than a possible premium for liability insurance. In accordance with § 73 InsO and §§ 17, 18 InsVV, the members of the creditors' committee generally receive an hourly rate of € 35 € to 95 € plus VAT per hour and reimbursement of their expenses from the bulk. If the creditor can not represent his rights in the insolvency proceedings, there is the risk that another creditor with his specific interests will become active at the expense of the bulk of the proceedings.

    The auctioneer, who is entitled to the right to use the Pfandrechts, now has a new task to be stimulated by previous clients from the lending sector. If creditors have no time to become active in insolvency proceedings themselves, avoid personal liability, or lack the necessary knowledge and human capacity, then they can provide free and effective assistance.

    We offer credit institutions, leasing companies, wholesalers, hauliers, landlords to use our know-how by representing them in the creditors' committee. For further information, please visit www.glä

    Author: F. Eberhard Ostermayer
    General publicly appointed, sworn auctioneer

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