If a third party (not obliged to do so) settles liabilities of the (future) insolvency debtor from its own resources, the question arises as to whether such payments may be avoidable under German insolvency law. At present, this question is repeatedly raised by the insolvency administrator in the context of a larger insolvency procedure in Berlin. Reason enough to take a closer look at the current case law.
The German Economy in December 2018 – Recession, anybody?
First of all, I wish all of you a Happy New Year and hope that you had a Merry Christmas with some time to lay back and relax after a year of relentless growth in Germany. The new year, though, does not paint a too glossy picture: Not all figures are in, but it seems that the economy stopped growing at the end of 2018. Also the sentiment-indicators are now facing south in sync and for months in a row and the DAX has reached “bear-territory” at the end of the year.
The German Economy in November 2018 – not so fast (into the abyss)…
The implicit forecast of my last monthly report, “southbound” (cf. here) has not really materialised in November. Although leading pundits reduced their forecast for German growth and the DAX did lose another roughly 200 points, exports remain rather strong, unemployment figures are unbelievably low, etc. Hence, also the decline takes some time. But see for yourself:
Final Act: § 3a EStG (“Sanierungserlass”) becomes law
After all the drama about the tax exemption for so-called “turnaround profits” (“Sanierungsgewinne“, (see more details here), the legislator – after a positive statement of the EU Commission last summer (cf. here) – is currently implementing the “reorganisation decree in legal form” (“Sanierungserlass in Gesetzesform“) within the framework of the so-called “Annual Tax Act 2018” (now referred to … more
The German economy in October 2018 – southbound
Yep, as predicted in my last monthly report, “(economic) autumn” (cf. here) has finally arrived in Germany. Amid political tensions after Chancellor Merkel announced here demise as leader of Germany’s conservative party, there is mounting evidence that the German economy has peaked somewhere in the previous months. But let’s have a closer look at the details:
ESUG evaluation – and now?
Five years after its entry into force in March 2012, the practical relevance of the “Act for the Further Facilitation of the Restructuring of Enterprises” (“Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen“, “ESUG“) has recently been evaluated, as required by the prior enactment. The more than 350-page final report of the team of experts consulted by the Federal Government comes to the conclusion that the insolvency practice has largely positively accepted the changes introduced by the ESUG and that a return to the earlier provisions does not seem to be indicated. However, the report proposes changes on individual issues. So far, so good – and not surprising. But what does this mean for the further development of the desired “turnaround culture” in Germany?
The German economy in September 2018 – the start of (economic) autumn?
Well, the German economy is currently doing well, when you look at the figures for exports, unemployment or industrial orders. However, from the perspective of inflation or industrial production it does not look to great. The outlook for the foreseeable future, however, seems to be rather measly, if you agree with our government. Hence, after a not-so-clear August (here), the September might prove to be the start of an economic autumn, as the following figures show:
Crisis management – when the going gets tough
Recently, the German automotive supplier SAM filed for insolvency (here). In addition to the usual suspects, a “classic” reason for a corporate crisis showed up: a fire in the production (here). Without production there is no turnover and without turnover there is no profit. A company hit by a fire can thus run through the crisis curve at a rapid pace. However, what can an entrepreneur do in such cases of WTSHT?
BGH on director’s payments reducing the insolvent estate
Today, the popular wisdom “they (only) go after the little guy” seems to apply to a limited extent only, at least in insolvency: Arcandor’s insolvency administrator, for example, holds the ex-management liable (here), as does Neckermann’s (here) and Air Berlin’s (here). However, even if “they” now go after the “big ones”, the perceived “little guys” do not get off scot-free, as the subsequently explained tightening in German jurisprudence on liability risks for managing directors in insolvency makes clear: