Now it’s official – the SanInsFoG came into force (at least in its most important parts) on January 1, 2021. And already, the first reform is just around the corner: the pandemic-related further extension of the “COVInsAG”. After the smoke has cleared from the trench warfare over the design of this next “reform of the century”, which after a decade of discussion has finally given birth to something like a “pre-insolvency restructuring mechanism”, I will (as already promised at the end of last year, here) take a more in-depth look at specific aspects of this reform work in a small series.
In a decision from November 2020, the German Federal Court of Justice (“Bundesgerichtshof“, “BGH“) explicitly opposed the view predominantly held by the Higher Regional Court Düsseldorf (most recently still: OLG Düsseldorf, judgment 26.06.2020 – 4 U 134/18, in German) and classified the claim for damages against the managing director pursuant to § 64 Sentence 1 GmbHG (German Act on Limited Liability Companies) as a statutory liability claim for damages within the meaning of the insurance conditions.
The German legislator’s frenzy went into overdrive on 17 December 2020:
Before the Lockdown 2.0, the German German economy – after bottoming out in May (cf. here) – rebounding in June (cf. here), July (cf. here) and August (here) – somewhat climaxed in September 2020 (here) – as proven with the October figures (here). The hard lockdown seems to have taken a toll at the German economy already in November 2020. But, let’s look into the German economy in some more detail:
Before the Lockdown 2.0, the German German economy – after bottoming out in May (cf. here) – rebounding in June (cf. here), July (cf. here) and August (here) – somewhat climaxed in September 2020 (here). The question, hence, is whether in anticipation of the new Lockdown in Germany (which finally came into force only on 2 November 2020 but was heavily discussed since mid-October) already put a break on the rising economy in October. So, let’s look into the German economy in some more detail:
After the German legislator had only reformed the German Money Laundering Act in 2017 due to European requirements, he must now hurry again, because the EU has given it only until the end of the year 2020 to implement renewed tightening of the regulations against money laundering (see for the previous fundamental reform of 2017 here). Thus, the German Bundestag has already on 20 November 2020 – relatively unnoticed by the public – debated in first reading on the “Draft Act to improve the criminal law fight against money laundering”. The law contains at least a paradigm shift, which should make the new provison of § 261 StGB (Strafgesetzbuch, the German Criminal Code) also “interesting” for the German Michel:
Again, unfortunately, close to the eleventh hour of October I am able to review the fate of the German economy in September. And, again, the German German economy – after bottoming out in May (cf. here) – started its rebound in June (cf. here), the rebound gaining momentum in July (cf. here) and August (here) and continued its upward trend in September 2020. But, hey, let’s look into the German economy in some more detail:
Hey, great that I may still experience this in my life-time! Almost ten years after my “Plädoyer für ein vorinsolvenzliches Sanierungsverfahren” (ZInsO 2011, 57, here, in German) and a good four years after my (rather rhetorical) question “Bedingt Sanierungsbereit?” (ZInsO 2016, 1778, here, in German), the has government (finally) finally presented the draft of the “Act on the Further Development of Reorganisation Law” (“Sanierungsrechtsfortentwicklungsgesetz – SanInsFoG“), which at least takes into account a large part of the reform proposals suggested in the two articles (and not only by me!). Thus, after many detours (only to mention “ESUG“, cf. here) – and driven by the European Union – the German legislator has finally warmed up to functioning mechanisms for corporate restructuring outside of insolvency. And, even if not all that glitters in the draft is gold, it is a BIG step in the right direction, as the following initial analysis shows:
The laws enacted by the legislator at the end of March 2020 to mitigate the consequences of the corona virus pandemic (“Corona Consequences Mitigation Act” („Corona-Folgen-Abmilderungsgesetz“), see here for details) were limited in time and would have mostly expired at the end of September 2020. In view of the ongoing pandemic, some of the relevant regulations have now been readjusted, but extended in total at least until the end of 2020.