Initially the obligation of a personal application for insolvency was basically suspended by the Act for the Temporary Suspension of a Personal Application for Insolvency [CovInsAG – Gesetz zur vorübergehenden Aussetzung der Insolvenzantragspflicht] until the 30th of September 2020.
This deadline was extended then until the 31st December 2020. However from the 1st October 2020 the suspension is applied only for insolvency caused by over-indebtedness. In case of illiquidity – instead – it leads as regular to the obligation to file the application for insolvency.
Special regulations until the 31st of January 2021
By a quick complement of the Act about the Development of Insolvency and reorganisation Law [SanInsFoG – Gesetz zur Fortentwicklung des Sanierungs- und Insolvenzrechts] – which was approved from the German parliament on the 17th December 2020 – was introduced the following special regulation:
From the 1st until the 31st of January 2021 the obligation of an application for insolvency is suspended for companies, which during the period between 1st November 2020 and 31st December 2020 filed an application for granting financial support within state aid programs for reducing the consequences of the COVID-19 pandemic. But this may not apply if there is no evident chance to receive the economical aid or the recovering support from the actual insolvency its not enough.
This regulation applies on the other hand if the reasons for insolvency are related to
over indebtedness or illiquidity.
More new regulations
Moreover other points were added to the Act for the Temporary Suspension of a Personal Application for Insolvency [CoVInsAG]:
the prognosis period for the insolvency-testing is shorten to four months between the 1st of January 2021 and the 31st of December 2021 if the over-indebtedness of the debtor is caused by the COVID-19 pandemic.
With the expiration of the suspension
Companies, to which the suspension of the insolvency application obligation expires until the 31st December 2020 or according to the special regulations until the 31st January 2021, must observe as follows:
In accordance with paragraph 15a of the Insolvency Statute (InsO) the insolvency application must be applied without culpable delay at the latest three weeks after the company becomes factually and materially insolvent or over-indebted.
The COVInsAG suspends only the obligation of the application required at the end of this period and doesn‘t inhibit the beginning of it.
If – for instance – the over-indebtedness already exists three weeks before the 1st of January 2021 the application should be made immediately on the 1st of January. Or rather for the companies, to which according to the special regulations have the expiration period on January 2021, they must already apply on the 1st of February 2021 if the reason for insolvency already exists since three weeks.
Basically it is important to notice that it is not always possible to exploit the three-week-period but only in case there are justified perspectives, which according to objective parameter aim to a successful reorganisation and continuation of the company within this period. Otherwise the application must be promptly made, or immediately when the suspension of the insolvency application obligation ends.
