Poland: Insolvency and restructuring proceedings
APPLICABLE LEGAL STATUS CONCERNING BANKRUPTCY AND RESTRUCTURING PROCEEDINGS
Declaring bankruptcy: The basis for declaring bankruptcy is the debtor’s insolvency, understood as the loss of the debtor’s ability to meet its due financial liabilities.
Inability to meet liabilities: It is presumed that the debtor has lost the ability to meet its due financial liabilities if the delay in meeting such exceeds 3 months. A debtor that is a legal person is also insolvent if its financial liabilities exceed the value of its assets, and this condition persists for a period exceeding 24 months.
Insolvency vs. restructuring: Unlike insolvency proceedings, restructuring proceedings may be conducted against an insolvent debtor or debtor threatened with insolvency. Insolvency under the Restructuring Act is understood in the same way as in the Bankruptcy Act. A debtor threatened with insolvency should be understood, for that matter, as a debtor whose economic situation indicates that he or she may soon become insolvent.
Filing bankruptcy petition:
- The time limit for filing a bankruptcy petition is 30 days from the date on which the reason for declaring bankruptcy arose.
- Where the debtor is a legal person, the obligation to file such a petition lies with anyone who, under the law, articles of association or statutes, has the right to manage and represent the debtor, alone or together with other persons.
- As a rule, the court will issue a decision on the declaration of bankruptcy within two months of the petition being filed. However, this is a non-binding, instructional deadline.
- The type of petition submitted (i.e. for bankruptcy or for the opening of restructuring proceedings) depends on the level of a debtor’s liabilities and the value of their assets.
Dismissal of bankruptcy petition:
- The court may dismiss a bankruptcy petition where it has been established that the assets of the debtor are encumbered by a mortgage, pledge, registered pledge, treasury pledge, or a ship’s mortgage to such an extent that the residual assets do not suffice to cover the costs of the proceedings.
- Moreover, the court may dismiss a bankruptcy petition if the debtor is not in danger of imminent loss of the ability to meet its due financial liabilities.
- The court will dismiss a bankruptcy petition where the assets of the insolvent debtor do not suffice to cover the costs of the proceedings or suffice merely to cover those costs.
DECLARATION OF BANKRUPTCY DURING THE COVID-19 EPIDEMIC
The Act amending the Act on special arrangements for the prevention of COVID-19, which is part of what is referred to as the “anti-crisis shield”, provides that during the period of an epidemic emergency or epidemic status associated with COVID-19, judicial and procedural deadlines do not start and those that have already started are suspended. In addition, the time limits laid down in the Act provided for in administrative law are suspended.
- The suspended periods remain “open”, which means that a party may take legal action during the suspension period.
- Suspension of judicial and procedural deadlines should also be understood as meaning that the suspension applies also to deadlines resulting from bankruptcy law, in particular the deadline for filing a petition for bankruptcy or for the opening of restructuring proceedings.
The legislative package constituting the “anti-crisis shield” does not provide for special solutions for the regulations of bankruptcy and restructuring law.
- The suspension of deadlines does not mean that the courts have completely stopped working. The provisions on the effects of the COVID-19 epidemic do not preclude taking action in closed session, if this is permissible in accordance with the relevant procedure. There are no legal obstacles to the handling of applications for bankruptcy and petitions for commencing restructuring proceedings.
- Taking into account the lack of specific regulations on bankruptcy and restructuring proceedings during the COVID-19 epidemic, it should be assumed that if the conditions for declaring bankruptcy/commencing restructuring proceedings have occurred, an appropriate petition should be filed with the court, as it may be reviewed by the court.
PLANNED CHANGES IN THE AREA OF BANKRUPTCY PROCEEDINGS
In recent days, an amendment to the Act on special arrangements for preventing COVID-19, other infectious diseases and crisis situations caused by them has been prepared, which constitutes the “anti-crisis shield 2.0”.
Under the above-mentioned law, the deadline for filing a bankruptcy petition during an imminent or actual epidemic does not start, but it is interrupted and runs anew after the situation passes.
If the basis for bankruptcy arises during an imminent or actual epidemic, the deadline for filing a bankruptcy petition is three months and the bankruptcy is presumed to be due to COVID-19.
The periods relating to the ineffectiveness of the bankrupt’s actions (under the current legal status one year prior to the filing the petition) are extended by the time when, due to emergency (epidemic) status, the periods for filing petitions are extended.
In our opinion, possible changes to the scope of bankruptcy and restructuring proceedings should also provide for formal simplifications for debtors (e.g. with regard to annexes to a bankruptcy petition, which may be difficult to obtain in the current circumstances) and changes to the scope of presumptions (e.g. extension of the period of delay in payment of liabilities when assessing insolvency), bankruptcy and restructuring cases should also be considered as urgent cases, which under the applicable laws constituting the “anti-crisis shield” are not prohibited from being heard by the courts.
Practice group: Restructuring & Insolvency