Is your company in a crisis? Are you already illiquid or facing impending illiquidity? We show you what you should bear in mind as an entrepreneur / managing director.
If insolvency proceedings are opened as a result of your company’s crisis, the insolvency administrator appointed by the court is generally obliged to assert claims for compensation for prohibited payments within the meaning of § 15b InsO against the managing director.
All payments made from the company’s assets after the company has become insolvent give rise to liability. Liability under § 15b InsO begins when the company becomes illiquid within the meaning of § 17 InsO or over-indebted within the meaning of § 19 InsO.
Only in exceptional cases are individual payments exempt from liability and privileged.
Below we would like to provide you with an overview of the most important updates:
A. What payments are allowed?
As a general rule, after the onset of illiquidity, no further payments may be made from the company’s assets. An exception is made for so-called privileged payments. These are payments that:
- are made in the ordinary course of business (in particular to maintain business operations)
- within the filing period under § 15a InsO and
- to permanently eliminate the insolvency or to prepare an insolvency petition with the diligence of a prudent and conscientious business manager
or
- with the consent of the insolvency administrator.
No immediate consideration is required for this. Thus, payments for labor and services, energy supplies, or telecommunications services can be made if they are necessary to maintain operations.
B. Until when can you make privileged payments?
The privilege applies only until the end of the period within which the insolvency petition must be filed. Payments made after this period are deemed incompatible with the diligence of a prudent and conscientious business manager and generally result in liability for the managing director.
Exceptions may include, for example, emergency management measures to protect perishable goods or to prevent further damage.
C.What you should do
- Involving an advisor early
When illiquidity is impending and when payments are privileged cannot be determined precisely in the individual case. Bring in an advisor early who can inform you comprehensively. Only an advisor can reliably tell you which payments may still be made and when you are exposing yourself to liability risks. In a crisis in particular, it is all the more important to meet deadlines and to make every payment with care.
Did you know? Legal fees can be covered under Bridging Aid III Plus (Überbrückungshilfe III Plus). Contact us so that we can handle the application and the rescue of your company together with you.
- Communication
It may be difficult to admit that the company is in crisis. However, only early and open communication with creditors and advisors can help you save your company from insolvency.
D. What you should avoid
- Denying the crisis
Do not deny your company’s crisis. Only active countermeasures can still save your company now. Waiting will not improve your economic situation.
- Missing the insolvency filing deadline
It is important that you never miss the deadline for filing for insolvency. From this point on, you are personally liable for payments made and even commit a criminal offense.
- Taking full risk
You need to be careful, especially in a crisis. If in doubt, do not make any payments without first discussing them with a competent crisis advisor. You not only become personally liable but can even be prosecuted for preferential treatment of creditors and delayed filing for insolvency. Any mistake can have serious economic and criminal consequences for you personally
E. What we do for you
In an economic crisis, swift action is generally necessary. Legal advice is essential due to the time pressure and the many liability issues that arise. We help you protect yourself against liability risks and show you ways out of financial distress. We also handle your defense, both in and out of court.
If you need support, please contact us.
