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Restructuring proceedings with the debtor not in possession

General Information

Restructuring proceedings with the debtor not in possession fall under the supervision of a liquidator. 

Caution

In general, these rules also apply to entrepreneurs from EU Member States in Austria.

In order to be eligible: 

  • the restructuring plan must have been submitted before insolvency proceedings are instituted;
  • it must be possible for at least 20 percent of the debt to be paid off within two years; and
  • the majority of creditors must agree to the restructuring plan. This creditor majority must hold more than half of all debts. Only those creditors present at the insolvency meeting will have their votes counted.

Please note

It is also possible to institute such proceedings merely in the event of a risk of insolvency. This increases the company's chance of survival.

The restructuring proceedings are instituted by the court, which appoints a liquidator.

The company cannot be liquidated unless it fails to reach an agreement on its restructuring proposal within 90 days from institution of restructuring proceedings.

The proceedings turn into bankruptcy proceedings (whereby this change of status also appears on the online insolvency register) if:

  • the trader withdraws the restructuring plan;
  • the restructuring plan is rejected by the court;
  • the restructuring plan is rejected by creditors at the insolvency meeting;
  • it becomes apparent that the insolvency assets are insufficient to cover preferential debts.

Once the court has given official confirmation of the restructuring plan, the insolvency proceedings are discontinued and the effects of insolvency cease to apply. The liquidator is relieved of their duties. The debtor regains power of disposition over their assets.

Deadline

Companies must submit an application for institution of insolvency proceedings no later than 60 days after becoming insolvent or excessively indebted.

Competent Authority

The Regional Court (→ BMJ)German Text (in Vienna: the Commercial Court (→ BMJ)German Text)

Documents Required

  • Application for institution of insolvency proceedings
  • Application for acceptance of a restructuring plan
  • Restructuring plan

Additional Information

The institution of restructuring proceedings is announced via the online insolvency register, including whether the proceedings are being instituted with the debtor in possession or not.

Once the restructuring plan has been implemented in full, the debtor has the option to have the mention of insolvency proceedings removed from the insolvency register and the register of companies.

Tip

As the procedural requirements are extremely complex, it is advisable to appoint a lawyer (→ ÖRAK).

Further links

Legal Basis

Sections 140 to 168 of the Insolvenzordnung (IO)

Expert Information

There is no expert information available.

Translated by the European Commission
last update: 29 January 2021

responsible for content: Federal Ministry of Justice

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