Under German law, company directors have a statutory duty to file for insolvency once the company has become insolvent or over-indebted. Company directors can be held personally liable for any payments they make after that point of time unless they prove that they exercised reasonable care, skill and diligence. After the German Federal Court of Justice (Bundesgerichtshof) clarified that standard terms and conditions of German D&O insurance contracts cover this directors’ liability, many D&O insurers have tried to find new ways to avoid their coverage.

In its decision of October 27, 2022 (IX ZR 145/21), the German Federal Court of Justice (BGH) ruled on a long-running dispute under German insolvency law. In its decision, the Court assumed that the insolvency administrator's right of realization under section 166 German Insolvency Code (InsO) does not extend to other rights.

Shareholders are among the many who have lost money in the multi-billion euro insolvency of the former DAX30 payment provider Wirecard and its allegedly fraudulent business practices. Wirecard had to file for insolvency after assets worth €1.9bn could not be found. Collectively, the shareholders claimed around €7bn in damages for intentional capital markets law violations by former Wirecard executives. Unsurprisingly, the shareholders are now trying to minimise their losses and secure at least partial payment on their claims from the insolvency estate.

Germany eases directors' duty to file for insolvency

November 14, 2022

AUTHORS Dr. Wolfram Prusko | Dr. Joachim Glckler | Dr. David Ehmke

With effect as of November 9, 2022, Germany eases directors' duty to file for insolvency. In response to global business uncertainty and the current energy crisis, Germany enacted the Law on the Temporary Adjustment of Restructuring and Insolvency Law Provisions to Mitigate the Impact of Crises (SanInsKG).

In brief

While the timing of competing English and German insolvency applications in Re Galapagos allowed for clear determination of jurisdiction under the UK Insolvency Regulation, there remains potential uncertainty as to how similar competing applications made following 31 December 2020 will be resolved in the post-Brexit environment.

Background

Following several insolvency cases of high-flying start-up companies, a helpful recent ruling by the Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) has specified the requirements for going concern forecasts for start-up companies. 

Background 

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.