Judges of Barcelona unify principles on certain points of insolvency law
International case law
European jurisprudence on universal and territorial procedures
Judgment of the Court of Justice of the European Union of April 18, 2024 (AIR BERLIN case)
The Austrian Supreme Court recently considered whether the knowledge of a debtor may be attributed to a third party in an avoidance action.
Background
Austria implemented Directive (EU) 2019/1023 on preventive restructuring frameworks with the Restructuring Regulation, which came into force on July 17, 2021, and introduced (further) judicial proceedings for preventive restructuring. Practice, however, has shown that the reorganization plan in insolvency proceedings and out-of-court restructuring remain the methods of choice in Austria.
The insolvency of the SIGNA Group is the largest ever insolvency in Austria with debts reportedly exceeding EUR14 billion.
Recently, the three largest holding companies of the group started debtor in possession restructuring proceedings which allowed management to continue the day-to-day running of the businesses during insolvency proceedings. Due to an error in the timing of the proceedings, the non-operationally active top holding company (SIGNA Holding) was forced to end self-administration.
The timing problem
Austria implemented the directive on preventive restructuring frameworks more than two years ago, in July 2021. In a first ruling on the proceedings, the Vienna Higher Regional Court has reaffirmed the prerequisites for entering preventive restructuring and clarified the checks to be carried out by the courts at the opening of the proceedings.
Decision
The Court held that:
Background
The impact of the opening of insolvency proceedings on options granted in combined contracts (for example, a lease contract containing a call option for the leased real estate) had been in dispute for a long time.
Decision
The Austrian Supreme Court held that call options granted in lease contracts where the option fee has been paid do not expire with the opening of insolvency proceedings, nor are they subject to the right of the insolvency administrator to terminate the lease contract.
The commercial judges of Madrid publish a guidefor the appointment of an expert on insolvency pre-pack
Public disclosure not required of appointment of expert in restructuring in the context of a pre-insolvency notice
Decision by Pontevedra Commercial Court No 3 on November 16, 2022
In the context of a pre-insolvency notice made on a confidential basis in which the debtor requests appointment of the expert in restructuring, Pontevedra Commercial Court took the view that the appointment does not have to be sent to the Public Insolvency Register to publicly disclose their identity.
No se exige publicidad del nombramiento del experto en reestructuración en el marco de una comunicación de negociaciones de carácter reservado
Auto del Juzgado de lo Mercantil núm. 3 de Pontevedra, de 16 de noviembre de 2022