The coronavirus (COVID-19) outbreak has widespread and significant implications for the financing situation of companies. Mandatory emergency measures, such as closure orders, have cut off entire sectors from revenue and cash flows with severe consequences for corporate liquidity. In addition, deteriorating market conditions are putting additional pressure on companies and their ability to service their debt.

The first bank resolution under the new European bank resolution regime is currently taking place in Austria: the Austrian Financial Market Authority (FMA), the official government regulator for banks, funds and financial institutions, is busy with the resolution of HETA Asset Resolution AG (HETA - formerly Hypo Alpe-Adria Bank International AG).

In an August 2014 Alert,¹ we reported that (most of) the Banking Recovery and Resolution Directive (‘BRRD’)2 that was adopted on 15 May 2014 was required to be implemented by the EU Member States through local legislation by 1 January 2015.

In three similar decisions of 17 March 2015[1] the Austrian Supreme Court (“OGH”) clarified how insolvency proceedings may affect an already pending arbitration.

Financial Assistance (1)

[UPDATE] Which government support schemes are in place? 

The Federal Government has set up a fund of initially EUR 4 billion by establishing financing companies. With the third 3rd COVID-19 Act, which was passed in the National Council on 03 April, the Federal Government is increasing the fund's resources to up to EUR 28 billion.

An additional financial aid package of up to EUR 34 billion shall consist of

Background

Voting rights in Austrian restructuring proceedings (which require the approval of more than half the creditors holding more than half of the company's debt) are often contested, as the company's assets are liquidated if the creditors vote against the proposed restructuring or debt cut.

Secured creditors may only participate in the vote with the unsecured part of their claim and must file an application for the right to vote. It was unclear whether such an application for a voting right for a specific amount could subsequently be changed.

In a recent ruling, the Austrian Supreme Court has defined de facto managing directors and their obligations and liabilities in connection to wrongful trading.

The decision

The key takeaways from the ruling are:

Austria is gearing up to implement the EU Directive on Restructuring and Insolvency (known as the Restructuring Directive). We anticipate that the Restructuring Regulation (ReO) will enter into force on 17 July 2021.

The core element of the Restructuring Directive (and of the implementing law) is the promotion of a new restructuring procedure, to avoid the need for formal insolvency proceedings.

The restructuring proceedings

Austria is moving forward with plans to implement the directive on preventive restructuring frameworks. The draft new law implementing the changes was published in February 2021.

The focus of the draft law is to introduce preventive restructuring proceedings. This will provide a structure for pre-insolvency restructuring to allow for the cram-down of dissenting creditors provided certain conditions are met.

Key points of the current draft

Worum geht es?

Das derzeit in der Begutachtungsphase befindliche Restrukturierungs- und Insolvenz Richtlinie-Umsetzungsgesetz (RIRL-UG) soll, wie auch der Name schon andeutet, die EU-Richtlinie über Restrukturierung und Insolvenz (kurz zumeist nur Restrukturierungsrichtlinie genannt) in Österreich umsetzen.

Kernelement der Restrukturierungsrichtlinie und damit auch des geplanten Umsetzungsgesetzes, das Restrukturierungsordnung (ReO) heißen soll, ist eine dem Insolvenzverfahren vorgelagerte präventive Restrukturierung.