Certification under article 270b of the German Insolvency Statute (InsO)

The admission ticket to restructuring under insolvency protection proceedings

The introduction of the new so-called insolvency protection proceedings (“Schutzschirmverfahren” as per Article 270b of the German Insolvency Statute, or InsO) offers debtors the opportunity to conduct their own restructuring process in the period between filing for insolvency and opening of the insolvency proceedings. For a period of up to three months, the debtor can apply "insolvency protection proceedings" within the framework of debtor-in-possession management (i.e. in cases where the debtor is allowed to continue to manage their business without an appointed trustee), supervised by a provisional custodian, while enjoying protection from enforcement measures on the part of creditors. In this period, the debt-ridden company must develop a reorganisation plan that can be implemented later on as an insolvency plan.

For the said insolvency protection proceedings to be initiated, the debtor must submit a certificate issued by a tax consultant, chartered accountant / auditor, lawyer or another person with comparable qualifications (all with expertise in insolvency related matters), along with a statement of reasons, to confirm the debtor's imminent inability to pay debts or over-indebtedness only and to affirm that the pursued restructuring process has a reasonable prospect of success. If a company is already insolvent (incapable of paying debts), it cannot use the option of the insolvency protection proceedings.

Rödl & Partner's Operational Excellence & Restructuring Team

The Operational Excellence & Restructuring Team issues certificates within the framework of the insolvency protection proceedings under Article 270b InsO if appropriate requirements are met. In this context, the team verifies for a given company whether its inability to pay debts or over-indebtedness is only imminent and whether the restructuring process has a reasonable prospect of success.

The procedures involved include e.g.

Analysis of imminent inability to pay debts as opposed to actual inability to pay debts under IDW PS 800
Brief analysis of reasons for distress
Identification of apparent impediments to the restructuring process
Outlining of the mission statement for the company being restructured
Integrated restructuring / business planning for the current financial year and at least the following year (planning assumptions for the net assets, financial position and results of operations)

In addition, we offer assistance to custodians and courts in cases where it should be assessed whether a submitted certificate meets regulatory requirements.