Frank Grell is a partner at Latham & Watkins who chairs the firm’s German Restructuring and Insolvency Practice. In this interview, he reflects on several successful applications of the German Insolvency Act (Insolvenzordnung) since the law was passed in 2012 and the continued shift towards a restructuring-based approach to large corporate insolvencies.

As a consequence of a recent amendment to the German insurance regulatory law, which entered into effect on 2 January 2014, infringements of certain compliance provisions applicable to insurance companies in Germany can constitute a criminal offence.

This is a two-part article on ways to restructure debt taken up by a German company. The first part looks at financings under English law, the second refers to German law-governed debt.

Part I – Financings governed by English law (restructuring through schemes of arrangement)

In recent years a number of German companies such as Tele Columbus, Rodenstock and Primacom have used English law scheme of arrangements to restructure their debt.

An element of the restructuring toolbox

In view of the impending Solvency II Directive (Directive 2009/138/EC), which will be fully applied as of 1 January 2016, and the considerable changes associated with the directive, the (German) insurance landscape will not remain in its current state.

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A. Bill of the “Law on shielding credit institutions and financial groups against risks and planning their restructuring and winding-up”

In a recent case decided by the Federal Court of Justice (judgment of 15 November 2012 – IX ZR 169 / 11), an energy supplier had entered into a contract with a customer “which should also terminate without notice if the customer makes an application for insolvency or where preliminary insolvency proceedings are initiated or opened based on an application by a creditor”. When the customer was forced to declare insolvency, the energy supplier and the customer’s insolvency administrator entered into a new energy-supply contract at higher rates, subject to a review of the legal position.

Under the new liability standard set out in section 64 sentence 3 of the GmbHG, which was introduced by the Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (MoMiG), the managing director of a company is liable for payments to shareholders which necessarily cause the insolvency of the company. The requirement for causality of the payment for insolvency and actual determination of insolvency were matters of dispute. The Federal Court of Justice (BGH) has now established clarity on both points (judgment of 9 October 2012 II ZR 298 / 11).

In einer vor wenigen Tagen veröffentlichten Entscheidung vom 14. November 2012 (2 Sa 837/10) hat das LAG Nürnberg sich mit den Anforderungen an die Insolvenzfestigkeit eines Contractual Trust Arrangements (CTA) beschäftigt. Im Ergebnis hat es dem streitgegenständlichen CTA die Insolvenzfestigkeit abgesprochen.

Hintergrund

The acquirer attempted to contractually transfer employees to a so-called "transitional company" (Transfergesellschaft) for a few hours only. The employees involved had previously signed five different employment offers presented by the acquirer, some of them limited, some unlimited in time. The acquirer subsequently accepted one of the offers, which was a fixed term contract.