Showcase of a store selling items from store closures
Photo: Gero Breloer / AP
Much changed in the corona crisis - also in the case of bankruptcies.
The federal government temporarily suspended the application requirement for insolvent companies.
If associations and entrepreneurs now warn against going back to orderly conditions with insolvency law, it sounds dramatic.
The German Trade Association (HDE) speaks of a "steep increase in bankruptcies in retail".
The chairman of the German Travel Association, Norbert Fiebig, is particularly clear: “If the suspension of the obligation to file for insolvency is not extended until the end of the year, all the assistance given so far has been in vain.
Politicians cannot want that. ”And the head of the German Hotel and Restaurant Association Dehoga is calling for an exception until September 30, 2021 for those businesses that have not yet received any state aid.
All of these logical-sounding demands have a flaw: after the grand coalition had suspended the obligation to file for bankruptcy for all companies at an early stage of the pandemic, since the beginning of the year companies that are over-indebted or insolvent must also report this to the bankruptcy court.
There is only an exception for companies that are still pending disbursement of the state aid planned since November 1, 2020.
They did not have to make their bankruptcy public until the end of April, but could leave creditors, suppliers and customers in the dark about their economically disastrous situation.
Formally, this rule also expired at the beginning of May, but the SPD was still fighting for an extension.
The death of thousands of companies or the artificial survival of zombie companies?
But the question of whether the obligation to file for insolvency should now be finally suspended has turned into a dispute between legal politicians from the SPD and the Union.
In the slipstream of the debate about the Climate Protection Act and the new freedoms for those who have been vaccinated, the politicians of the coalition are insisting.
They accuse the other side of killing thousands of companies if they are Social Democrats, or the artificial survival of zombie companies if they come from the Union.
Federal Minister of Justice Christine Lambrecht, SPD
Photo: BERND VON JUTRCZENKA / AFP
Last week, Federal Justice Minister Christine Lambrecht (SPD) explored whether the Union side would extend the suspension. Otherwise the bankruptcy protection threatened to expire on Friday, April 30th. But neither the CDU-led Federal Ministry of Economics nor the Union MPs wanted an extension of the exemption. "In view of the repeated exposures that the advancing pandemic has made necessary since spring 2020, companies now need more legal clarity again," said the legal policy spokesman for the Union parliamentary group, Jan-Marco Luczak, the "Handelsblatt".
Justice Minister Lambrecht brushed the sails. In response to a request from SPIEGEL, its spokesman sent a simple sentence: "The BMJV is currently not working on an extension of the suspension of the obligation to file for bankruptcy." Because the SPD deputies did not want to give up. They tried it with Minister of Economic Affairs Peter Altmaier (CDU) - probably in vain.
When the April 30 deadline had already passed, the legal policy spokesman for the SPD parliamentary group, Johannes Fechner, gave the coalition partner an ultimatum. By this Tuesday noon, the Union should ultimately explain whether it will stick to its stance or give in. An end to the suspension is "incomprehensible, because now many companies that have bravely fought their way through the crisis have to file for bankruptcy just because state aid has not yet been paid out," explained Fechner.
Thousands of jobs are at stake, said the comrade. Anyone who calls these companies zombies is acting "cynically". Fechner recalled the warning voices from business associations such as Dehoga and HDE that many of their members had not yet received government aid. With this, Fechner set a point against Altmaier and his corona funds, which the SPD saw too slowly. The suspension of the obligation to file for bankruptcy should be extended by two months.
But the Union let the ultimatum of the SPD pass. "We want to extend the suspension of the obligation to file for insolvency, but we are no longer counting on the approval of the Union," Fechner told SPIEGEL. On Tuesday the Union informed him that it wanted to examine the criteria according to which the group of companies concerned was determined. "This is a hypocritical diversionary maneuver, because it is precisely these criteria and the group of companies that we have regulated in lengthy consultations with the Union in precisely that bankruptcy suspension law that we now wanted to extend by two months," said Fechner.
The Union argues that the obligation to file for insolvency in the event of impending insolvency has been in effect for the vast majority of companies for months - and yet few insolvency applications are being filed.
In any case, it is only exposed to those who have not yet received state support.
"Banks often cancel loans, suppliers convert their conditions to prepayment."
Lucas Flöther, insolvency administrator
Insolvency administrators like Detlef Specovius consider the chaos of the filing obligation to be homemade.
"In the meantime," says the specialist who, for example, was in charge of the restructuring of the fashion chain Esprit, "hardly any managing director can see whether he has to declare his impending bankruptcy or not."
"Storm in a glass of water"
Lucas Flöther, insolvency administrator and restructuring expert (»Air Berlin«, »Condor«, »Mäc Geiz«) holds the debate about a further suspension of the notification requirement for »a storm in a water glass«. It is a widespread myth that one has not yet had to file for bankruptcy. “The rules were armed again a long time ago. Now it's just about a small number of companies, «says Flöther. He thinks it makes perfect sense that companies that are waiting for state bridging aid continue to not have to file for bankruptcy. “The Ministry of Economic Affairs doesn't make things easy for such companies. Some companies have been waiting months for the payment due to sometimes massive delays, «says Flöther. The companies could first file for bankruptcy and then withdraw it.Such an application is in a certain way a "point of no return". "Banks then often cancel loans and suppliers convert their terms to prepayment," says Flöther.
The SPD is now pressing for an extension of this exception - although there are now hardly any companies that have not received any aid from the federal government, although they are entitled to them. For insolvency administrator Specovius, madness. Although he does not anticipate the large wave of bankruptcies feared by the Social Democrats, he does expect later upheavals.
This could occur if managing directors find in a few weeks that their company is not starting up again as it did before the pandemic - and the appointed insolvency administrator or restructuring expert then determines that they should have reported their own imminent bankruptcy months ago. Simply because the exception rule did not apply. “In this case, the managing director made the delay in bankruptcy a criminal offense. Whether or not he understood the complicated rules, «says Specovius. Tax advisors could also be jointly responsible in such cases. In this case, ignorance would not protect against punishment.