StaRUG: The plan offer


Before a restructuring plan can be accepted, it must be presented for voting. The minimum requirements applicable to this “plan offer” are set out in section 17 StaRUG. The debtor can choose to organise voting on the restructuring plan itself. If it decides to do this, plan voting does not follow the channels and formal requirements set out in procedural law. It is up to the debtor to determine the voting procedure itself.

Pursuant to 17 (1) StaRUG, the plan offer must expressly indicate that if the plan is accepted by a majority of parties affected by it, it will also be effective with respect to parties who do not accept the offer. Here the German legislator is complying with Article 10 (2) of the Directive on preventive restructuring frameworks (Directive EU 2019/1023 of 20 June 2019). Hence, a notification of the restructuring plan to all affected parties is a precondition for subsequent plan confirmation. .

As a further precondition, section 17 (1) StaRUG provides that together with the plan offer, the parties affected by the plan must also receive the complete restructuring plan together with attachments and a description of the costs of the restructuring procedure already incurred and still expected, including the remuneration of the restructuring practitioner. It is not necessary for the plan offer itself to give any indication of the situation that the debtor finds itself in. Thus there is no need for the plan offer to state that the debtor is not overindebted or illiquid. It is also not mandatory to make reference to any imminent illiquidity.

This information can be revealed when the affected parties read the plan itself. The requirements applicable to the restructuring plan are set out in section 5 et seq. StaRUG.

In addition, section 17 (2) StaRUG stipulates that the plan offer must set forth the claims or rights with which each party affected by the plan has been included in the plan. The plan offer must also clearly set out the group to which each party affected by the plan has been assigned and the voting rights to which the party is entitled.

Where the debtor has decided not to hold a meeting of the parties affected by the plan or a court-supervised discussion and voting meeting, section 17 (3) StaRUG provides that the plan offer must indicate that at the request of one or more parties affected by the plan, a meeting of the parties affected by the plan will be convened for the purpose of discussing the plan. This provision ensures that if a party affected by the plan so requests, the plan will be discussed by all affected parties together at least once.

The aim of the plan offer is to arrive at a binding arrangement for all parties affected by the plan. To achieve this, section 18 StaRUG contains a rule of interpretation. In case of doubt, it is to be presumed that the plan is not intended to bind the debtor only vis-à-vis individual parties who have accepted the offer. Rather, in line with the rule of interpretation provided for in section 18 StaRUG, the presumption is that the debtor wishes to be bound by the plan only if all parties affected by the plan vote to accept it, or if the plan is confirmed by the court after it has been accepted by a sufficient majority of those parties.

It is important to note that section 17 StaRUG imposes only a few requirements in relation to the plan offer. However, if the debtor’s plan offer does not comply with them, confirmation of the plan must be refused ex officio pursuant to section 63 (1) No. 2 StaRUG.

Dr Annerose Tashiro, Attorney at Law in Germany, Registered Foreign Lawyer (SRA)

More newsletters about StaRUG are available at https://www.schultze-braun.de/newsroom/newsletter/internationales/


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