According to a ruling by the German Federal Court of Justice (BGH) on 5 May 2022, a passenger's claim for reimbursement due to a flight cancellation in insolvency needs to be established in the schedule of creditors, otherwise it remains a claim for air transport that cannot be enforced in insolvency proceedings if the flight was booked and paid for before the insolvency proceedings.
Background
Under German insolvency law, employees are generally protected from claw-back claims. The payment of wages is considered a "cash transaction" if the employer pays the salary within three months of the work being performed. A “cash transaction” can only be contested in limited circumstances. Where a third party pays the salary, the cash transaction privilege remains if it is not clear to the employee that a third party made the payment (s.142(2) and s.3 InsO).
A recent German Federal Court of Justice ruling shows that this protection has limits.
Federal Court of Justice, Judgment of 24 August 2021, Case No. X ZR 59/19 (BPatG) – Oscillating Drive
In the underlying case, the Federal Patent Court had dismissed the nullity actions of four separate plaintiffs against the German part of a European patent (judgment of 26 February 2019, case no. 3 Ni 29/17). All four plaintiffs appealed against this decision to the Federal Court of Justice.
Bundesgerichtshof, Urteil v. 24. August 2021, Az. X ZR 59/19 (BPatG) – Oszillationsantrieb
Im zugrundeliegenden Fall hatte das Bundespatentgericht die Nichtigkeitsklagen von insgesamt vier Klägern gegen den deutschen Teil eines Europäischen Patents abgewiesen (Urteil v. 26. Februar 2019, Az. 3 Ni 29/17). Alle vier Kläger legten hiergegen Berufung zum Bundesgerichtshof ein.
The German Federal Court of Justice (Bundesgerichtshof) recently changed its interpretation of the law regarding clawback claims, Vorsatzanfechtung (case of actio pauliana). Here, we outline how the Court's position on clawback claims has changed and what this could mean for future claims.
What are the existing legal provisions?
The German Federal Court of Justice was recently asked to decide whether a waiver in favour of company director had been validated by the preliminary insolvency administrator's consent.
Background
We summarise the background and outcomes of Case C-73/20 – Oeltrans, an important ruling for liquidators faced with the avoidance of a third party payment and a conflict of laws.
The facts
The German Federal Court of Justice (BGH) has ruled that a limited partner is not liable for debts incumbent on the insolvency estate incurred by an administrator in insolvency proceedings.
However, it was unclear who would be liable for debts incumbent on the insolvency estate pursuant to section 55(4) of the German Insolvency Act (the Act) incurred in preliminary insolvency proceedings. A recent BGH ruling on 28 January 2021 (IX ZR 54/20) now provides clarity.
Case summary
The COVID-19 pandemic in Germany is significantly affecting commercial landlords and tenants. The German legislator has taken various measures to mitigate the consequences of officially ordered business closures during lockdown and other pandemic-related adverse effects.
For the benefit of our clients and friends investing in European distressed opportunities, our European Network is sharing some current developments.
Recent Developments