Suspension of the obligation to file for insolvency for companies using COVID 19 aid programmes

The Act on the Further Development of Reorganisation and Insolvency Law (SanInsFoG), which came into force on 1 January 2021, again suspended the obligation to file for insolvency for managers of companies that became insolvent and/or over-indebted as a result of the COVID 19 pandemic for the period from 1 January to 31 January 2021, provided that the company concerned filed an application for financial assistance under state aid programmes to mitigate the consequences of the COVID 19 pandemic in the period from November to December 2020.

If it was not possible to file an application within the relevant period for legal or factual reasons, the suspension of the obligation to file for insolvency shall also apply to such enterprises that fall within the group of eligible applicants under the terms of the state aid programme. However, insolvent companies for which there is obviously no prospect of obtaining the financial assistance requested or for which the assistance requested is insufficient to eliminate the ripeness for insolvency are obliged to file for insolvency without delay in the event of both insolvency and overindebtedness. The temporary suspension of the obligation to file for insolvency in January 2021 does not apply in this case.

The SanInsFoG also provides that – in deviation from the forecast period of twelve months stipulated in the version of the Insolvency Code valid from 1 January 2021 – a forecast period of only four months is decisive in the period from 1 January to 31 December 2021 for the going concern forecast, provided that the over-indebtedness of the company is attributable to the COVID 19 pandemic. The latter is legally presumed if the company was not insolvent on 31 December 2019, generated a positive result from ordinary business activities in the last financial year concluded before 1 January 2020, and the turnover from ordinary business activities in the calendar year 2020 fell by more than 30% compared to the previous year.

Finally, companies affected by the COVID 19 pandemic will have easier access to the protective shield proceedings for 2021 under the SanInsFoG.