AUSTRIA Law and Practice Contributed by: Markus Fellner, Florian Kranebitter, Elisabeth Fischer-Schwarz and Florian Henöckl, Fellner Wratzfeld & Partners
Fellner Wratzfeld & Partners Schottenring 12 1010 Vienna Austria
Tel: +43 1 537 700 Email: office@fwp.at Web: www.fwp.at/en
cial difficulties can apply for statutory restructuring of their business under the Business Reorganisation Act ( Unternehmensreorganisationsgesetz ). However, the Business Reorganisation Act is effectively “dead law”, as entities do not make use of this. 1.2 Types of Insolvency The Insolvency Act provides for three different types of proceedings: • reorganisation proceedings with debtor-in-pos - session (the debtor retains, basically and subject to certain restrictions, control over the estate’s assets); • reorganisation proceedings without debtor-in-pos - session (a court-appointed insolvency administra - tor takes control); and • liquidation (bankruptcy) proceedings (a court- appointed insolvency administrator takes control of the task of selling the estate’s assets at a maxi - mum value, with the proceeds being paid out to the creditors). In addition to the foregoing, since July 2021, the new Restructuring Act has provided Austria with a pre- insolvency restructuring regime in line with Directive (EU) 2019/1023 on restructuring and insolvency. 1.3 Statutory Officers Types of Statutory Officers Where insolvency proceedings under the Insolvency Act are initiated by the debtor and are conducted as reorganisation proceedings with debtor-in-pos - session, the management remains in place and the debtor retains control over the estate’s assets within the scope of ordinary business. Nonetheless, a court-
1. Overview of Legal and Regulatory System for Insolvency/Restructuring/ Liquidation 1.1 Legal Framework The legal framework for insolvencies of business enti - ties (as well as individuals) in Austria is codified in the Austrian Insolvency Act. Besides that, since July 2021, the new Restructuring Act ( Restrukturierungsor- dnung ) has provided a regime for restructuring (for details, see 1.2 Types of Insolvency ). Specific Statutory Restructuring and Insolvency Regimes In principle, legal entities as well as individuals can be subject to insolvency proceedings under the Austrian Insolvency Act (reorganisation proceedings or bank - ruptcy proceedings). However, neither reorganisation proceedings with nor reorganisation proceedings without debtor-in-possession apply to credit institu - tions, insurance companies and pension funds, as there are specific provisions for these entities (under the Banking Act, the Insurance Company Supervision Act and the Pension Fund Act). With regard to credit institutions, the Bank Recovery and Resolution Directive (BRRD) was implemented in Austria through the Austrian Recovery Bank and Res - olution Act ( Sanierungs- und Abwicklungsgesetz , or BaSAG), which came into force in January 2015. The resolution process of former Hypo Alpe-Adria-Bank was the first to take place in Austria under this regime. Apart from the options provided by the Restructuring Act, entities that are not insolvent but are having finan -
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