With the German Act on the Development of Restructuring and Insolvency Law (Gesetz zur Fortentwicklung des Sanierungs- und Insolvenzrechts (SanlnsFoG)), which already has entered into force on 1st January 2021, the new German Act on a Legal Framework for the Stabilisation and Restructuring of Businesses (Unternehmensstabilisierungs- und -restrukturierungsgesetz – StaRUG)) for the first time under German law now offers the legal option to implement measures on preventive restructuring. Furthermore, single provisions in the German Insolvency Statute (Insolvenzordnung) in relevant areas for legal practise such as the duty to file for the opening of insolvency proceedings (Insolvenzantragspflicht) and the responsibility for payments made during the period of material insolvency (Masseschmälerungshaftung) have been amended. The new legal regime serves to transpose the Directive (EU) 2019/1023 of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).

Amongst other aspects, the StaRUG leads to a paradigm shift in German law because under certain conditions it opens the possibility to intervene in contractual rights of third parties in order to grant an exception to the requirement to obtain the affected contracting party´s or secured creditor´s consent in the context of reorganisations performed outside the framework of formal insolvency proceedings. The preventive restructuring instruments provided by the StaRUG are available beginning at the moment of the imminent illiquidity in the meaning of § 18 InsO, thus causing a possible overlap in the scopes of application of both Acts leading for the debtor to a right to choose between a petition for the opening of insolvency proceedings or a preventive restructuring pursuant to the StaRUG. On the occasion of the promulgation of the SanlnsFoG, the forecast period in order to evaluate the event of imminent illiquidity has been fixed to a general period of 24 month which applies in most cases.

Contrary to the Directive (EU) 2019/1023, the StaRUG contains also rules applicable to corporate groups. Due to the fact that in nowadays´ economy, corporate groups represent a common and widely spread form to organise entrepreneurial activities, without any doubt such rules make sense, and the approach of a transposition exceeding the Directive´s requirements seems to be well intentioned. However, due to the following reasons the rules on corporate groups provided by the StaRUG appear to be not well thought-out and hardly compatible with the systematic framework of the European acquis communautaire and its rules concerning jurisdiction as well as conflicts of laws.

For example, § 2 para. 4 StaRUG enables to intervene in securities granted by an Affiliated Enterprise in the meaning of §§ 15 et seq. of the German Stock Corporation Act to the debtor´s third-party creditor. Despite the fact that § 2 para. 4 StaRUG constitutes a mere provision of substantive law, but no conflict of laws provision, comparable to a disguised conflict of law rule, in an excessive manner and contrary to the systematic legal framework, it regulates also the law applicable to such corporate groups issues. Because when defining the legal term of the affiliated enterprises and when imposing compulsory redemptions on third-party securities granted by different affiliates of a corporate group, it provides for the application of German law even in the events the Center of Main Interests (COMI) of the affiliate granting the security is located outside Germany, this affiliated company has not been incorporated under German law, or the parties of the contract have chosen another law than the German one with regard o the contractual rights and duties concerning the granting of the security. However, regardless of the legal question if single provisions of the StaRUG may be classified as belonging to the lex societatis (what for instance lays at hand with regard to the intervention in membership rights on the ocassion of a compulsory debt to equity swap or the shift of the administrators´ duties outside formal insolvency proceedings), as belonging to the lex contractus (what due to the application of the Rome-I regulation lays beyond doubt with regard to contractual agreements on the rights and obligations in contracts of suretyship or a letter of intent) or as belonging to the lex concursus (at least for public preventive restructuring frameworks, this classification is supported by Art. 1 lit c) EIR that enables the inclusion of such public preventive frameworks in its scope of application as well as the collective nature of the instruments provided by the Directive (EU) 2019/1023), such legislative behaviour of the German legislator is undefendible from a legal point ov view and constitutes an evident breach of the rules on international jurisdiction in the Brusels-1a regulation as well as the EIR, because pursuant to the legal doctrine of the ECJ, even with regard to instruments that can be classified as insolvency law, latter does not grant any possibility to determine a common COMI for the whole corporate group, to the contrary rather establishing the obligation to determine each affiliated company´s COMI individually.

Interventions in third-party securites offered by one affiliate in favour of the other affiliates imposed on the basis of § 2 Abs. 4 StaRUG will consequently not be recognised in other Member States on the basis of the EIR or the Brusels-1a regulation. However, to be on the safe side, this allegation should not only be made during eventual enforcement proceedings, but rather in the previous stage of the corresponding preventive restructruring framework in accordance with the StaRUG in order to ensure that such illegal interventions are prevented. Due to ist expertise in the law of cross-border corporate groups and the familiarity with the cross-border corporate groups´ legal framework of Union law, LEXPORTATEU is well prepared to resolve in a proactive manner such critical issues evidently ignored by the German legislator, even before legal scholars have reached to develop a theoretical solution for it.

Florian Deck, 21. February 2021