When companies find themselves in crisis, the spheres of insolvency law and public law often overlap. Approvals, licences and obligations under public law – such as those required under environmental, construction or commercial regulations – generally remain in force even during insolvency proceedings and can pose a significant threat to the success of a reorganisation. The increasing volume of regulations, coupled with stricter regulatory practices by the authorities, has made it crucial to consider the implications of insolvency and administrative law at an early stage in any restructuring process.
Your challenges
Our solutions
- Consulting with the relevant approval authorities at an early stage to prevent operating licences, concessions and permits from being revoked or expiring; structuring the reorganisation plan in such a way that licences are transferred to the acquirer or can be reissued quickly – particularly in the case of a going-concern sale
- Strategic classification of official remediation orders as insolvency claims or liabilities of the insolvency estate, taking into account the case law from the Federal Administrative Court (BVerwG) and the Federal Court of Justice (BGH); negotiating restructuring agreements with environmental authorities and developing liability limitation strategies to protect the estate and facilitate business continuity
- Challenging unlawful regulatory orders, bans on commercial activity and repayment notices by filing objections and actions for annulment; seeking interim relief under Sections 80, 80a and 123 of the German Code of Administrative Court Procedure (VwGO) to secure suspensive effect and protect restructuring measures
- Ensuring equal treatment under insolvency law in relation to tax authorities and social security agencies, particularly by defending against unlawful set-offs (Section 96 (1) no. 3 of the German Insolvency Code (InsO)) and ensuring that any claims under public law are correctly classified as insolvency claims or liabilities of the insolvency estate
- Advice on avoiding and defending against claims for the recovery of public funding that has already been awarded, assessing the compatibility of state restructuring aid with state aid law and supporting applications for new funding while taking into account the European Commission’s guidelines on rescue and restructuring aid
- Ensuring eligibility to participate in public procurement procedures, even in the midst of insolvency proceedings, by making use of the self-reorganisation options under Section 125 of the German Act Against Restraints of Competition (GWB) and demonstrating financial viability in debtor-in-possession or “protective shield” proceedings – a key factor for companies with a significant volume of public contracts