After the Bavarian Minister of Justice had already proposed a suspension of the obligation for at timely insolvency filing in cases of natural disasters in the summer of 2016, the Ministerial Conference of the State Ministers of Justice now followed this proposal in November 2016. They agreed that the three-week insolvency application period of § 15a InsO does not take into account the special situation surrounding natural catastrophes. In the short time frame foreseen by § 15a InsO, it is often not possible to clarify as to whether the damage inflicted can not be offset by various compensations (e.g., by insurance companies).
This resolution, which on its own contains no legal weight, is linked to the suspension of the application for insolvency in the context of the last flood catastrophes in Germany (cf. here). Although it is to be welcomed in general, it raises further questions: since, according to the jurisprudence of the German Federal Court of Justice (BGH), transaction amid imminent insolvency are subject to avoidance actions under § 133 InsO (now rendered very easy by the jurisprudence), it might be difficult to get advisors who can assess the economic situation of those companies hit by the catastrophe. These companies probably have to engage advisors for the examination of claims and, if necessary, advice on the insolvency situation. The fees of such advisors might be subject to challenge if they ultimately come to the conclusion that a rescue of the company is not possible (see also “German playing field…“). As a consequence, the company would not be able to rely on qualified consultants in order to assess the possibility of a turnaround. To this extent, the hope is that any following legislative proposal will also cover this effect.
A further decision taken at in this context, according to which the “Justice Ministers ask the Federal Minister of Justice and Consumer Protection to consider how it can be ensured that promising turnaround efforts may not be hampered by a punishable early insolvency filing requirement.” at least points to a potential complete elimination of the application for insolvency. This would, of course, be a very far-reaching step. Hence, the results of the requested BMJV assessment remain to be closely observed.