Despite all efforts, it is often not possible to get your company around the curve. If all else fails, the next step is bankruptcy. We have put together for you here who can file for insolvency with a GmbH, when you have to do it and which requirements apply.
Declared insolvency by creditors or the board of directors?
Basically, there are two ways to file for insolvency: On the one hand, you can do it yourself (self-application), on the other hand, one or more creditors can also file for insolvency. In the event of a self-declaration, the following applies for the GmbH: Only the managing director or board members may file for insolvency. Typically, the CEO handles the application, but members of the board of directors can also do so.
Creditors can and may even file for insolvency. In practice, social security institutions are often the first to notice. In principle, however, any creditor can appeal to the court if the requirements are met.
Requirements for self-application
You can file for insolvency only if there are actually sufficient reasons for the insolvency.
These can be:
- company insolvency
- imminent insolvency of the company
- Restructuring measures which will most likely prove hopeless (= subsequent inevitable insolvency)
If you file your claim, you must be able to make the situation credible to the court and, if possible, you should also be able to clearly demonstrate that there is imminent or existing insolvency, or that there is excessive debt. There are some recognized criteria for this, such as how to define over-indebtedness. These criteria should be met.
Requirements for a creditor to file for bankruptcy
In any case, the obligee must have a claim against the GmbH which is not satisfied. This claim must be credibly proven to the court, but if the court alone comes to the conclusion that the existence of such a claim is highly probable, that is usually sufficient.
Then comes the tricky part: As a creditor, you have to convince the court that the company (the GmbH) is either insolvent or over-indebted. This is often difficult because you only know the company “from the outside”, i.e. from the business relationship. In many cases it is therefore difficult to convince the court that the company is actually insolvent. Concrete proof could be, for example, a statement by the debtor that he cannot pay (in this case a written statement is absolutely necessary). A mere unpaid claim is in no case sufficient to file for the insolvency of a GmbH as creditor.
Note to administrators
If you discover a default or overindebtedness, you must act IMMEDIATELY. The law gives you only three weeks to file for insolvency, and often only if you are able to credibly demonstrate the appropriate restructuring measures during this period. Otherwise, as CEO, you risk being guilty of delaying insolvency – and this is after all a punishable offense and one of no small legal significance.