Annex: § 15b Payments in event of insolvency and overindebtedness; period of limitation

(1) The members of the representative entity and the liquidators of a legal entity who, under section 15a (1) sentence 1, are obliged to file a request may, following the commencement of insolvency or of overindebtedness of the legal entity, no longer make any payments on its behalf. This does not apply to payments which are consistent with the due care of a prudent and conscientious manager.

(2) Payments made in the ordinary course of business, in particular those payments which serve to maintain business operations, are, subject to subsection (3), deemed consistent with the due care of a prudent and conscientious manager. During the period laid down in section 15a (1) sentence 1 and 2 within which a request is deemed to have been filed in good time, this applies only for as long as those obliged to file the request implement measures to permanently eliminate the insolvency or to prepare a request for insolvency with the due care of a prudent and conscientious manager. Payments made in the period between the filing of a request and the opening of proceedings are also deemed to be consistent with the due care of a prudent and conscientious manager if they were made with the consent of the provisional insolvency administrator.

(3) If the period laid down in section 15a (1) sentence 1 within which a request is deemed to have been filed in good time has elapsed and those obliged to file the request have filed no request, payments are generally not consistent with the due care of a prudent and conscientious manager.

(4) Where payments are made contrary to subsection (1), those in the legal entity obliged to file a request are obliged to refund the payments made. If the legal entity’s creditors have incurred little damage, then the obligation to refund payments made is limited to compensating for that damage. Where the refund or the compensation is necessary to satisfy the legal entity’s creditors, the obligation is not ruled out on account of the fact that payment was made on the basis of a decision taken by one of the legal entity’s bodies. Any waiver on the part of the legal entity to claims to a refund or to compensation or a settlement with the legal entity concerning these claims is ineffective. This does not apply where the entity obliged to pay the refund or compensation is insolvent and settles with its creditors in order to avert insolvency proceedings being opened if the obligation to refund a payment or pay compensation is regulated in an insolvency plan or if an insolvency administrator acts on behalf of the legal entity.

(5) Subsection (1) sentence 1 and subsection (4) also apply to payments made to those holding a participating interest in the legal entity insofar as these had to lead to the insolvency of the legal entity, unless this was not recognisable even though the due care described in subsection (1) sentence 2 was applied. Sentence 1 does not apply to cooperatives.

(6) Subsections (1) to (5) also apply to the representative bodies of the partners authorised to represent the company which are obliged to file a request under section 15a (1) sentence 3 and (2).

(7) The period of limitation on claims arising from the aforementioned provisions is five years. If the company is listed at the point in time at which the breach of an obligation occurs, the period of limitation on claims is 10 years.

(8) There has been no breach of obligations to pay tax liabilities where claims resulting from those tax liabilities are not met or not met in good time between the commencement of insolvency as per section 17 or of overindebtedness as per section 19 and the insolvency court’s decision on the request to open insolvency proceedings, insofar as those obliged to file a request meet their obligations under section 15a. If, contrary to the obligation under section 15a, a request to open insolvency proceedings is filed too late, this only applies to claims resulting from the obligation which become due after the appointment of a provisional insolvency administration or the ordering of provisional debtor-in-possession management. Where insolvency proceedings are not opened owing to a breach of obligation on the part of those obliged to make the request, sentences 1 and 2 do not apply.