In terms of commercial law, “crisis” constitutes a new concept introduced in an amendment to the Commercial Code on 1 January 2016. A company is said to be “in crisis” when it is insolvent or threatened with insolvency. A company is deemed to be threatened with insolvency if its equity to debt ratio is less than 4:100 (the ratio set for 2016, while in 2007 it will be 6:100 and 8:100 in 2018).
New provisions and restrictions apply to a company in crisis, in particular concerning a ban on the return of any legally prescribed external financing. In this context, the Commercial Code provides, among other things, that if a company’s statutory body discovers or could have discovered by taking into account all circumstances that the company is in crisis, it is required in compliance with the requirements of professional due diligence to do everything that any other reasonably diligent person in a similar position would do in a similar situation to overcome the crisis.
The Bankruptcy and Restructuring Act requires a company that is overleveraged to file a declaration of bankruptcy within thirty days of learning or could have learned through due diligence about having become overleveraged, where the company’s statutory body has this obligation on behalf of the company. If the statutory body fails to file a declaration of bankruptcy in a timely manner, it will be obliged to pay a fine of €12,500 (any agreement between the company and its statutory body that would limit or exclude the payment of such fines is thereby prohibited).
The Bankruptcy and Reconstruction Act defines an entity as overleveraged if it is required to maintain accounting records, has more than one creditor and its liabilities exceed its assets, where liabilities and assets are ascertained also from expectable results from further asset management or expectable results from any obligations associated with subordinated debt and any obligations which would in bankruptcy be satisfied in the order of settlement with subordinated claims.
