While in other jurisdictions creditors of an insolvent company may swap their debts into equity, creditors in Austria are still confronted with a “take it or leave it” approach as to the proposed quota payment to unsecured creditors. The recent insolvencies of large Austrian companies show the inadequacy of Austrian insolvency law in that respect.
Financial crisis just arrives
Introduction
On October 20 2010 insolvency proceedings were opened against A-TEC Industries AG, the Austrian holding company of industrial group A-TEC. With outstanding debt of around €650 million (including contingent claims), this insolvency is set to be the third-largest insolvency in Austria to date. Claims included around €300 million of bond debt (two convertible bonds and a corporate bond) issued by the company.
When your business first begins to have financial difficulties, you should take action quickly to increase its stability. You have options such as refinancing and consolidating, or you can look to insolvency or liquidation proceedings.
First, assess your business's true financial situation. You may need to review the bookkeeping or talk to an accountant about your profits, losses, and debts. Be realistic about how much you can improve the finances and in how long of a time period. If you are already having trouble paying the bills, then you need to act fast.
As a general rule, lodging an appeal against a judgment no longer suspends its enforceability. This should accelerate the recovery of outstanding debt in Belgium.
Recovering outstanding debt in Belgium can feel like a long-winded and sometimes frustrating job. A creditor who obtained a judgment against a defaulting debtor is often confronted with an appeal by that debtor, lodged with the only intention to put the enforcement of this judgment on a back burner. Most courts of appeal built up a large backlog as a result of the massive workload of among others these dilatory appeals.
The Belgian Constitutional Court declared netting arrangements in insolvency proceedings, which are explicitly allowed under the Belgian Financial Collateral Law of 15 December 2004, unconstitutional where such netting arrangements apply to non-merchants. Despite the numerous criticisms on this decision, a legislative proposal was drafted on 13 September 2011 in order to explicitly exclude non-merchants from the application of the Belgian Financial Collateral Law.
Through its decision of 27 November 2008, the Belgian Constitutional Court declared netting arrangements in insolvency proceedings, which are explicitly allowed under the Belgian Financial Collateral Law of 15 December 2004, unconstitutional where such netting arrangements apply to non-merchants. Despite the numerous criticisms about this decision, the amended Belgian Financial Collateral Law, entered into force on 10 November 2011, now explicitly excludes non-merchants from its scope.
Tax treatment in the hands of the creditor
The waiver of debt results in the accounting ‘loss’ of a receivable. Such loss, however, is not automatically tax deductible in the hands of the creditor.
The deductibility of such loss may be prohibited, either because it is deemed not to be incurred to retain or increase taxable income (‘general deduction criterion’), or because it is deemed to be an ‘abnormal or benevolent advantage’ granted to the debtor (‘anti-abuse rule’).
New restructuring legislation was recently adopted in Belgium and comes into force on 1 April 2009. The Act of 31 January 2009 on the continuity of undertakings (the Act on Continuity) aims to replace the existing judicial composition procedure (concordat judiciaire/ gerechtelijk akkoord) with a more effective and flexible restructuring instrument.
The key features of the Act on Continuity are:
Entry into force on 1 April 2009 of the new Act on the continuity of companies
The Act of 31 January 2009 on the continuity of companies (Loi relative à la continuité des enterprises/Wet betreffende de continuïteit van de ondernemingen, the "Act") entered into force on 1 April 2009.