From 1 September 2023: Observe ‘Überschuldungsprüfung’

Within the scope of the over-indebtedness test (Überschuldungsprüfung), companies must document whether their assets continue to cover the existing debts. If this is not the case, it must be examined whether a “positive prognosis for continued existence” can be given. A period of twelve months is prescribed for this. In the wake of the Ukraine war and the resulting energy costs, which can hardly be estimated, the federal government shortened the forecast period to four months in November 2022.

Although this adjustment to the Insolvency Code (SanInsKG) is factually valid until 31 December 2023, in practice companies must already observe the following from September: If it is already clear less than four months before the end of the year that the company will not be fully financed for the twelve months that will then apply again at the beginning of 2024, this must be taken into account when examining the obligation to file for insolvency.

By the way: The maximum period for filing for insolvency in the case of over-indebtedness will also change from eight to six weeks from 2024.

So be sure to pay attention to the legally prescribed monitoring mechanisms!