The COVInsAG of 27 March 2020 suspends the obligation to file for insolvency for legal entities with limited liability pursuant to section 15a InsO and for associations until 30 September 2020 in the event of insolvency caused by the COVID 19 pandemic.
This is intended to avoid the threat of a wave of insolvencies among companies and start-ups that have fallen into financial difficulties as a result of the corona pandemic.
Thus, contrary to the usual legal situation and until 30 September 2020, companies that have become insolvent or overindebted as a result of the pandemic do not have to respect the legal obligation to file for insolvency within three weeks of the occurrence of the reason to open insolvency proceedings. This means that managing directors and board members as well as board members of an association do not risk being held criminally or civilly liable for delaying insolvency if they do not file an application for the opening of insolvency proceedings due to an insolvency caused by the current pandemic.
However, it should be noted that the obligation to file for insolvency is not suspended if the insolvency maturity is not based on the consequences of the COVID 19 pandemic or if there is no prospect of eliminating an existing insolvency. The law provides for a legal presumption that the insolvency maturity is based on the effects of the Corona pandemic and that there are prospects of eliminating an existing insolvency if the debtor was not insolvent on 31 December 2019.
In concrete terms, under the conditions described before, no insolvency application has to be filed by 30 September 2020. The closer this deadline approaches, the more closely the financial situation of the company and the legal situation must be monitored: If the financial imbalance has not been eliminated by then and the legislator does not extend this “protected period”, the executive bodies must file for insolvency in good time.
