What is the insolvency filing obligation?
Put very simply: The requirements for the obligation to file for insolvency in the case of a legal entity are met if insolvency (§ 17 InsO) or over-indebtedness (§ 19 InsO) has occurred. If these reasons for ins olvency exist and a company is aware of its own insolvency, it is obliged to file for insolvency. A petition for insolvency must then be filed with the insolvency court without delay, but within three weeks at the latest. It should be noted here that the period of three weeks may only be exhausted under certain conditions. In the case of over-indebtedness under insolvency law, however, the application must be filed no later than 6 weeks after the occurrence of over-indebtedness.
The obligation to file for insolvency under section 15a of the Insolvency Code (InsO) and section 42(2) of the Civil Code (BGB) is subject to liability and penalties. The obligation to file for insolvency was originally suspended until 30 September 2020 by the COVID-19 Insolvency Suspension Act (COVInsAG).
Since 01.10.2020, the obligation to file for insolvency has only been suspended to a limited extent. The rules on when an insolvency petition must generally be filed and therefore also when this obligation is suspended due to the pandemic apply regardless of the company form. An obligation to file for insolvency exists for all limited liability companies if the reasons for insolvency are insolvency and/or overindebtedness. The temporary suspension of the obligation to file for insolvency thus affects in particular the limited liability company (GmbH), including the entrepreneurial company (UG (haftungsbeschränkt)), the GmbH & Co. KG and the public limited company (AG).
To whom does the suspension of the obligation to file for insolvency apply?
The suspension of the obligation to file for insolvency in the period from 01.01.2021 to 30.04.2021 applies to all companies,
- have applied for Section 1 COVInsAG suspension of the obligation to file for insolvency in the period 01.11.2020 to 28.02.2021 (governmental assistance programmes to mitigate COVID-19 pandemic) or
- could have applied for assistance (prevention for legal or factual reasons).
ATTENTION: The temporary suspension of the obligation to file for insolvency does not apply if there was no prospect of obtaining the relief or if it would be insufficient to eliminate the insolvency ripeness.
Expiry of the protection period on 30.04.2021!
Since the suspension of the obligation to file for insolvency is limited until 30 April 2021, companies must again file for insolvency in good time in the event of over-indebtedness and insolvency from 1 May 2021. The pandemic-related exemption regulations valid until then will no longer apply from this date according to the current regulations.
Parallel to this, the discussion about a renewed extension of the suspension of the application obligation is already in full swing.
If you have any questions on how to deal with the current situation and the implications for your company, our specialists are at your disposal. Feel free to contact us!
DiLigens Lawyers & Insolvency Administrators
Magdeburger Allee 4, 99086 Erfurt
Tel: 0361-6588870
Mail: info@diligens-rechtsanwaelte.de