Insolvency and reorganisation law

A strong team

We are four in insolvency law specialised lawyers/specialist lawyers and also draw on the entire expertise of our law firm, which focuses on commercial law. In addition, certified insolvency clerks and accountants support us in the daily handling of a large number of insolvency proceedings. It is precisely the fact that we have insolvency accounting "in-house" that enables us to act at short notice and not just react. We have the personnel and technical skills to handle even complex proceedings.

In regular insolvency proceedings, we are appointed by the competent insolvency court as provisional and final insolvency administrator. The regular insolvency proceedings are divided into the preliminary proceedings, which in the vast majority of cases cover a period of up to three months, and the opened proceedings, which can last several years. The preliminary proceedings primarily serve to secure the assets, to examine the existing inventory and possible security interests that individual creditors have, as well as a continuation of the business, which in most cases is mass-preserving. The opened proceedings, on the other hand, serve primarily to realise the existing assets, to assert justified own claims out of court and in court and to defend against unjustified third-party claims. This stage of the proceedings can last for several years.

The duration of the proceedings is influenced by exogenous factors over which even we have no or only very little influence, despite the speed of our actions to which you are accustomed. Example: In the context of a construction company that has become insolvent, the insolvency proceedings usually take five years or more due to longer warranty periods and the associated retention of funds by customers or even guarantees.

Even if the continuation of a company is the desired and preferred option, we also have the experience and the decision-making power to liquidate and wind up companies and business areas without a continuation perspective.

The main difference between regular insolvency proceedings and self-administration proceedings is the function of the management. In self-administration, the management is the responsibility of the company's directors, who are advised on insolvency law by an authorised representative. Here we are available to you as a partner and also as a (provisional) administrator. You benefit from our expertise in effective restructuring in a wide range of business areas and from our extensive qualifications in insolvency law. Self-administration offers companies great opportunities - but also entails risks. As managing director and board member, for example, you are exposed to extended liability risks. We use the entire spectrum from the development of far-reaching and long-term effective reorganisation concepts to the efficient and full implementation of insolvency law. This gives you security and freedom of action.

If we are appointed as (provisional) administrator in self-administration proceedings, we monitor compliance with the insolvency law requirements by the self-administrating company and its bodies for the protection of the creditors, but at the same time we also contribute to the restructuring in this function.

In regular insolvency proceedings, entrepreneurial action often remains in the hands of the managing director in the preliminary proceedings, whereby we, as preliminary insolvency administrator, approve the various actions. However, our actions are also determined by the development of restructuring concepts. Here, too, it is very often the case that the managing directors remain in a responsible position in the company and often take over the company's fortunes again themselves.

In order to achieve the goal of the best possible satisfaction of creditors, we often use a temporary continuation of the company. This applies in particular in provisional proceedings. We assume entrepreneurial responsibility, act together with the managing director and ensure that the specifics of insolvency law are observed.

Experience shows that without a continuation of operations, the goal of long-term continuation or takeover options for the insolvent company cannot be achieved. For this reason, however, we always simultaneously examine which long-term options exist in addition to the continuation of operations. Here we are often supported by the expertise of our colleagues in our own law firm who, for example, negotiate with trade unions and works councils in order to achieve a restructuring that is as socially acceptable as possible in terms of securing jobs in the long term. In the process, we work out the necessary operative restructuring measures, discuss personally with individual interested parties who are prepared to continue the company in the long term. We structure and draft the contracts. Here, too, the focus is on transparent and clear language, short concise words and clear rules.

Various options are available to achieve the desirable goal of preserving the company in the long term. A widespread option is the sale of the company as a whole to a newly founded company or to another company. In essence, the sale means the following: In this process, assets of the company or a part of the business are transferred to another legal entity (e.g. investor, rescue company) by way of a so-called asset deal. The business operations of the new company are relieved of the old liabilities, as these usually remain with the insolvent company.

The balance sheet of the insolvency debtor then often looks as follows: On the assets side is the purchase price agreed in the asset deal and a few other items that were not also sold. On the liabilities side are the liabilities of the insolvency debtor, be they insolvency claims, subordinated claims, or claims of creditors entitled to separate satisfaction. The balance sheet of the acquiring company, insofar as it is a newly founded company, is as follows: the assets side contains the former assets of the insolvency debtor, the liabilities side is primarily the liability from the assumed purchase price obligation.

The advantage of the transferred restructuring is, on the one hand, the speed of the procedure. The implementation can usually take place immediately after the opening of the insolvency proceedings or within a few days. The agreement only requires the approval of the creditors' meeting. Secondly, the legal entity taking over does not assume the old liabilities, in particular no warranty claims. Exceptions may exist in the area of employees, according to which a transfer of business may exist under § 613a BGB. We will inform you about this individually and will be happy to point out the various risks in the employee sector.

The disadvantage of the transferred reorganisation is, on the one hand, that possible contracts that the other legal entity would like to continue, be it licence, leasing or service contracts, must be concluded anew.

The insolvency plan procedure is a type of insolvency procedure that differs from the standard procedure, in which individual, "tailor-made" arrangements can be made for the solution of the company crisis. This means, for example, that the legal entity can be preserved and the focus can be on restructuring the insolvent company.

Ultimately, this is an agreement between the insolvent company and all its creditors. The creditors must be convinced that they will be better off with an insolvency plan procedure than if the company were broken up. The parties can reach agreements that deviate from the standard insolvency proceedings, in particular with regard to the preservation and continuation of the company. The outlined continuation of the company takes place on the basis of a restructuring concept. The insolvency court must confirm the insolvency plan after it has been accepted by the creditors. Once it has become legally effective, the insolvency proceedings are cancelled. As a result - contrary to a transferred restructuring - the asset side of the debtor is left substantial, while the liability side is reduced through a coordinated reduction of liabilities. The insolvency plan therefore significantly "relieves" the company of debt.

The procedure therefore offers opportunities for all parties involved: the debtor company is given the chance to realign itself and make a "fresh economic start" and the creditors are given the chance of better satisfaction of their claims and future cooperation with the realigned company.

The disadvantage of the insolvency plan procedure compared to the transferred restructuring lies in particular in the longer term. It may well take six months for the insolvency plan to become legally effective. In our opinion, an insolvency plan makes sense if either not enough capital can be raised to buy out the assets or if, in particular, the various licence and service agreements cannot otherwise be taken over due to certain exclusion clauses.