In April 2017, important changes were effected in connection with German insolvency law and the avoidance of certain antecedent transactions.
Case law had greatly increased the risk of insolvency administrators successfully clawing back assets from creditors of the insolvent entity, which the reforms now address.
For a clawback claim based on intent (Vorsatzanfechtung) to succeed, an insolvency administrator has to prove that:
- the debtor’s action was intended to disadvantage other creditors, and
- the recipient/beneficiary of the action knew of such intent.
The courts have in the past been quick to find the required debtor intent and creditor knowledge.
Before the reforms, it was generally possible for an insolvency receiver to invoke clawback due to intent with regard to any debtor action effected up to ten years before it filed for insolvency proceedings.
This ‘vulnerable’ period has now been reduced to four years prior to filing in relation to (i) a debtor granting security or (ii) receiving payment on an existing claim against the debtor - a so-called ‘coverage claw-back’ (Deckungsanfechtung).
Solvency and Creditor Knowledge
Before the reforms, it was possible for a receiver to show that the debtor intended to disadvantage other creditors by proving that the debtor was pending insolvency (drohend zahlungsunfähig), which was prima facie evidence of intent.
Knowledge of the recipient was assumed in circumstances where the recipient knew about the debtor’s pending insolvency. This in turn, could be proven prima facie if the creditor/recipient had any reason to suspect that the debtor was in financial difficulty, e.g. if the debtor had asked for a stay of payments, a payment plan or any other easing of payments.
Thus, suppliers were at great risk of clawback claims, if they decided to support a company via deferrals or other easing of payments. Young, growth-oriented companies can often be characterised as pending insolvency.
It is now necessary to prove that companies were actually insolvent at the time of the debtor’s action.
In connection with creditor knowledge, there is now no presumption of creditor knowledge in circumstances where a stay of payments, a payment plan or any other easing of payments was suggested to the relevant creditor by the debtor. Moreover, in such circumstances, it is now to be assumed prima facie that the creditor did not know of the debtor’s intent. Only if and when the insolvency administrator can positively contest the said prima facie assumption will a ‘clawback for intent’ claim succeed.
April’s reforms should make it harder to claw back any monies from third party creditors of an insolvent entity. However, it remains to be seen how they will be handled by the courts, and whether they will actually improve the position of creditors in insolvency proceedings.