2 March 2021

R&I update – March 2021 – 4 of 5 Insights

New restructuring legislation in Germany – what was planned but not implemented?

  • Quick read

The Further Development Act on Restructuring and Insolvency Law (Sanierungsrechtsfortentwicklungsgesetz, or SanInsFoG2) came into force at the beginning of 2021, marking the final implementation of Germany's latest insolvency law innovations.

Here, we outline how the original, more extensive plans and draft laws from autumn 2020 compare with what was ultimately implemented.

Which provisions weren't implemented?

The SanInsFoG introduces the possibility of early risk identification and preventive restructuring before the stage of insolvency maturity.

It was originally intended that the threat of imminent insolvency (drohende Zahlungsunfähigkeit) would impose strict obligations on a company's management to engage in risk identification and, where possible, preventive restructuring. This would also allow management to maintain control over the company and safeguarding the interests of creditors. 

Due to massive dissenting votes, however, the SanInsFoG was significantly amended compared to the original draft. Significant provisions not implemented were:

  • express directors’ duties and liability in the event of imminent insolvency, and
  • regulations on the termination of contracts

What next?

Now that The Further Development Act on Restructuring and Insolvency Law has come into force, it will need to be closely monitored to determine how the codified reforms affect actual restructuring practice. From there, the next logical step will be to analyse whether this new framework needs to be revised and adapted further (and to what extent, and which innovations have proved particularly successful.

Find out more

To discuss any of the issues raised in this article in more detail, please reach out to a member of our Restructuring & Insolvency team.

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