Germany has notoriously broad voidability laws. As a rule of thumb, any payment by a third party has high voidability risks if the third party has no obligation to make the payment under the contract. Such payments qualify as incongruent (3 months hardening period, very few further requirements) and often qualify as gratuitous (4 years hardening period, without any further requirements). A recent decision of the German High Court has stirred hope that the Court may give some leeway to cash pool payments by group companies.

Der Bundestag hat am 8. November 2018 die von der Restrukturierungsbranche ersehnte gesetzliche Regelung zur Steuerbefreiung von Sanierungsgewinnen endlich auf den Weg gebracht. Es wird erwartet, dass auch der Bundesrat in Kürze seine Zustimmung erteilt.

Die Neuregelung:

The recently published report on the evaluation of the ESUG, the German law to facilitate the restructuring of companies, states that the changes introduced by the ESUG have been received positively overall, but that there is still room for improvement in many areas. Should the EU Restructuring Directive actually be adopted at the beginning of 2019, the legislator would have the opportunity to improve the ESUG legislation and implement the EU requirements for pre-insolvency restructuring proceedings in one bill.