In its meeting on Monday evening, 25 August 2020, the coalition committee of the coalition of CDU and SPD forming the Federal Government decided, among other things, under Top 3 point 8:
“The regulation on the suspension of the obligation to file for insolvency for the reason for filing for insolvency of over-indebtedness will continue to be suspended until 31.12.2020.”Coalition committee 25 August 2020
This means that the obligation to file for insolvency according to the COVInsAG (see here for more information) will remain suspended at least until the end of the year, but with a big BUT. The suspension should only apply to the ground for insolvency of “over-indebtedness” according to § 19 InsO. The previous suspension also applies to the ground for insolvency of “illiquidity” according to § 17 InsO. Even up to now, a company was obliged to file an application under the very debtor-friendly rules of the COVInsAG if “there is no prospect of eliminating an existing inability to pay”. However, the unlimited “revival” of § 17 InsO that is now planned naturally goes far beyond the previously applicable regulation, which also provides for a reversal of the burden of proof in favour of the debtor company.
Contrary to my own forecast (here, in German), this “reform of the reform” could indeed mean a hot (insolvency) autumn after all IF the coalition government does not provide the financial resources in time (i.e. by 1 October 2020) to maintain the liquidity of companies affected by Corona.
This amendment to the COVInsAG also removes the possibility of extending the regulations by ministerial decree (see Art. 1 § 4 COVInsAG, here, in German). The regulations must therefore go through the parliamentary legislative procedure. The question of how the “accompanying regulations”, in particular the current restrictions on the claw-back provisions, are to be dealt with, will be “interesting”.