Stabilization and Restructuring Framework for Companies (StaRUG 2021)

Background & Motivations

The 2020 financial year and the restructuring and insolvency law sector are directly affected by the consequences of the Covid-19 pandemic. This results in the need to adapt restructuring and insolvency law to the currently special circumstances as a result of the Corona pandemic.

At the beginning of November 2020, the Federal Government published a draft law for the further development of restructuring and insolvency law (SanInsFoG). On December 17, 2020, the Bundestag adopted the Federal Government’s draft law with a version revised by the Legal Affairs Committee. The Stabilization and Restructuring Framework for Companies – StaRUG for short – forms the foundation of the SanInsFoG. The SanInsFoG came into force predominantly on January 1, 2021.

The SanInsFoG primarily affects companies that are threatened with insolvency but are not yet insolvent. The imminent insolvency is specified in the SanInsFoG according to § 18 Para. 2 InsO n.F. by including the forecast period “as a rule” of 24 months. The disadvantages of insolvency, such as loss of reputation when filing for insolvency, should be avoided and the management’s freedom of decision should be maintained.

Restructuring plan

The centerpiece of the StaRUG is the restructuring plan. Despite payment difficulties, this makes it possible to avoid reputational damage by filing for insolvency and to rehabilitate with the approval of a majority of creditors (75% from each group of creditors; not the approval of all creditors). This implies that the restructuring can also work if individual creditors reject the plan. In the restructuring plan, the economic circumstances are disclosed and restructuring measures (financial and operational) are shown in this plan that can eliminate the imminent insolvency.

Restructuring instruments

The respective creditors of the company are divided into groups. The criterion for the classification is the legal and economic interests of the creditors. Each group must approve the restructuring plan with a majority of 75%. The amount of the respective claim of the creditor is decisive here. The members of a group of creditors can refuse their consent, but only if they are not worse off as a result of the plan than without it. If the company expects resistance from individual creditors, the restructuring court can be involved. It is therefore a sensible option to run the restructuring plan as a court procedure. In addition, the company can apply for a ban on foreclosures and suspensions of the realization of secured items for a period of 3 months as a stabilization measure.

An overview of the different forms of restructuring and our services in the area of restructuring can be found on our website under the following link:

https://starkpartners.de/sanierungsformen/

Restructuring Officer

The restructuring officer is appointed to assess the restructuring plan. If a creditors’ advisory board is used, it can make a binding proposal for the restructuring officer.

A mandatory appointment of the restructuring officer only takes place if it is to be expected that one or more groups will not agree with the required majority, so that it will depend on the existence of the requirement of a cross-group majority decision. For smaller companies, there is the possibility of using a restructuring moderation. The company incurs costs for the preparation of a restructuring plan for the commissioned consultants and, if applicable, for the restructuring officer.

You are welcome to find out more about our team and its references under the following link:

https://starkpartners.de/team/

Creditors’ Advisory Board

A so-called creditors’ advisory board is appointed by the court if the restructuring plan provides for the structuring of the claims of all creditors (with the exception of creditors generally excluded from the plan) and if the restructuring matter has overall procedural features. The main task of the creditors’ advisory board is to support and monitor the management by the debtor. As already described above, the creditors’ advisory board can, under certain conditions, submit a proposal for the restructuring officer, whereby the restructuring court may not deviate from this proposal in principle.

Not only creditors affected by the plan must be represented on the creditors’ advisory board, but also parties not affected by the plan (e.g. employees) can influence the restructuring matter through membership on the creditors’ advisory board.

Personal liability of managing directors in the event of imminent insolvency

From the occurrence of imminent insolvency, the management usually no longer has to protect the interests of the shareholders, but the interests of all creditors. In the event of a violation of this principle, the management is personally liable. However, this maxim was removed in the StaRUG.

No possibility of contract termination

In the StaRUG, the widely discussed possibility of the debtor to terminate mutually not yet fully fulfilled contracts (especially continuing obligations) with the help of the restructuring court upon corresponding application of the debtor was removed.

Opportunities and challenges

Opportunities	Challenges
Maintaining control over the company with the management	Lack of intervention in employee rights (wage and salary claims as well as pension claims remain existing)
Lower reputational losses compared to an insolvency application	Costs for the restructur- ing officer
Use of individual sanierungs- instruments of insolvency- order	Costs for the commissioned consultants to create the restructuring plan

Application of the StaRUG

After almost 100 days of StaRUG and SanInsFoG, the experts at the recent restructuring roundtable at Latham & Watkins observe only a few actively driven restructuring and transformation processes on the market despite the tense economic situation. Due to government aid and the possibility of using short-time work benefits for companies, the current number of StaRUG cases is limited to a few individual cases. However, this circumstance only conceals the current area of tension in which the companies find themselves. The liquidity and the time gained through the use of bridging aid serve as a starting signal for the initiation of operational and strategic measures that are necessary for your company to further develop it and maneuver it into a secure future.

We – the team of starkpartners will be happy to advise you on the topic of StaRUG and keep you informed about new developments!

Together we will find a way and make you strong for your future! Feel free to contact us!

You can reach us by phone at 02150 7058 210, by e-mail at office@starkpartners.de or on the web at www.starkpartners.de.