Insolvency proceedings of Wirecard AG were opened on August 25, 2020, by the Mu-nich Local Court. What does this mean for the rights of creditors and the enforcement of claims?
Registration of claims
Creditors are required to register their claims against Wirecard with the insolvency administrator by October 26, 2020 the latest. Important: This is not a cut-off deadline. The claim can therefore still be filed after this date. However, since this may cause additional costs, the deadline should be met. The same applies to the likewise insolvent Wirecard companies, namely Wirecard Technologies GmbH, Wirecard Issuing Technologies GmbH, Wirecard Service Technologies GmbH, Wirecard Acceptance Technologies GmbH, Wirecard Sales International Holding GmbH and Wirecard Global Sales GmbH.
Meeting of creditors
The first creditors’ hearing, the so-called “Berichtstermin”, will take place on November 18, 2020. It currently looks as if this creditors’ meeting will take place as a presence date in the Löwenbräukeller in Munich. Due to the COVID-19 pandemic, the current hygiene regulations according to the specifications of the Bavarian State Government will apply. Whether this can lead to restrictions on participation or whether it even has to be cancelled – as a face-to-face event – will depend on these regulations and the development of the number of infections. The creditors’ hearing is not public, i.e. only insolvency creditors are entitled to participate. However, they can be represented. The participation of creditors is not mandatory. The insolvency administrator will provide the creditors with a written report according to his own announcement.
With the opening of the insolvency proceedings, the power of administration and disposal is transferred to the insolvency administrator. In short, this means that the insolvency administrator represents the insolvent company(ies). This has consequences for the assertion of claims for damages. Claims of the company against its organs, i.e. the management board and supervisory board, can only be asserted and enforced by the insolvency administrator. This is the so-called “internal liability”. Irrespective of this, creditors have the right to make direct claims against the executive bodies and, of course, third parties on the basis of other regulations (so-called “external liability”). Against the Executive Board and the Supervisory Board, so-called tort law claims in particular come into consideration here. It remains to be seen what these are worth, i.e. whether in the end they will lead to a payment. It is likely to be almost impossible that the Executive Board and the members of the Supervisory Board will be in a position to actually satisfy the claims of all creditors in the event of their conviction.
The opening of insolvency proceedings has no influence on any existing claims against third parties, such as the already publicly discussed claims against the auditors and/or BaFin.