Insolvency money claim

Employees are creditors in insolvency or restructuring proceedings with open claims against their employer. They are neither better nor worse off than the other creditors. However, employees are entitled to insolvency money for up to three months of arrears, which is secured by the solidarity community.

Claims which are not settled by the payment of insolvency money must be filed for insolvency proceedings.

We have collected the most frequently asked questions to us here.

How do the demands of the employees differ?

There are three groups of demands:

Group 1
Insolvency (table) receivables pursuant to section 38 InsO
These are receivables whose performance is to be assigned before the opening of proceedings.

Group 2
Liabilities from insolvency pursuant to § 55 InsO
These are receivables whose services are attributable to the period from the opening of the proceedings.

Group 3
Social plan creditor according to § 123 InsO
These are claims arising from the conclusion of a social plan in accordance with section 123 InsO between the insolvency administrator and the works council.

What can be insolvency (table) claims according to § 38 InsO?

Table claims pursuant to section 38 InsO are claims arising prior to the opening of proceedings. These include, for example, salaries above the income threshold for unemployment insurance, unpaid premiums, commissions and royalties for periods prior to the opening of the proceedings, the existence of overtime accounts up to the time of the opening of the proceedings, contributions not paid to the company pension scheme which have not been settled by re-conversion due to insolvency money, outstanding travel costs and expenses and, where applicable, pro rata Christmas and holiday bonuses. If your employment relationship ends before the opening of insolvency proceedings, any holiday compensation is also one of the claims of this rank. Early damages due to the shortening of notice periods pursuant to section 113 InsO are also included in the claims in the tables or insolvency claims pursuant to section 38 InsO.

The claims should be declared as gross amounts, since in the event of a quoted payment at the end of the procedure, the tax must be withheld. If overdue remuneration is declared net, it is usually assumed that it is a partial gross amount.

Does the registration according to § 38 InsO have to be made in writing?

Yes, the registration according to § 38 InsO must be made in writing. It can be done informally or with a registration form (Form Center). In the notification, the amount of the claim (preferably in €/gross) must be quantified and the reason for the claim stated. As a rule, delivery to the insolvency administrator/property administrator may be effected by post, fax or e-mail. If the application is delivered by e-mail, please note that it must be scanned and signed by the creditor before it is delivered.

Up to which date claims should be filled?

The application must be submitted to the insolvency administrator/professional administrator by the closing date for applications. If the registration is received at a later date, it will be subject to a fee. The claims lodged will be examined at a hearing. A separate examination date will be scheduled for late claims (therefore subject to a fee). If the claims are disputed or are disputed until further clarification, you will receive a certified extract from the table after the examination date. However, if the claim is established (= acknowledged), you will receive no further information (section 179 (3) sentence 3 InsO). They then participate in the final distribution of the assets at the end of the proceedings. No statement can be made about the actual amount at the time of registration or examination.

What can be the liabilities from the insolvency proceedings according to § 55 InsO?

Liabilities in the event of insolvency pursuant to section 55 InsO are, for example, run-off wages for the period from the opening of the proceedings, holiday compensation claims if the employment relationship ends only after the opening of the proceedings, overtime compensation, but only for the provision of services from the opening of the proceedings. Pro rata holiday pay and Christmas bonus payments attributable to the period from the opening of the proceedings. Early damage due to shortening of the notice periods (§113 InsO) does not, however, constitute a claim under §55 InsO but a claim under §38 InsO.

Are the insolvency liabilities pursuant to § 55 InsO paid equally?

If your work is taken up after the proceedings have been opened, it can generally be assumed that you will also receive remuneration for it, unless it is foreseeable that there will be an inadequacy in the assets involved. If your work is not taken up, payment may not be made due to the prevailing lack of funds. Here we leave it up to you to file your claim in writing with the responsible insolvency administrator/professional administrator. This can be done informally or using a registration form (Form Center). Your claim must be quantified in €/gross and the reason for the claim must be stated.

Are debts from the insolvency proceedings subject to the statute of limitations pursuant to § 55 InsO?

As long as as the responsible administrator does not declare the waiver of the plea of statute of limitations, the liabilities in insolvency are subject to the statute of limitations in accordance with section 55 InsO.

Is there a social plan according to § 123 InsO in every insolvency proceeding?

No, a works agreement is required between the insolvency administrator (including the own administrator) and the works council. If there is no works council in the company, no social plan can be connected.

To what extent can a social plan entitlement exist?

The maximum sum of a social plan consists of the sum of 2. 5 times the gross remuneration of each employee entitled to social plan. As a rule, individual entitlement is determined using a points system based on age and length of service during social plan negotiations with the works council. Maintenance obligations, severe disabilities and weekly working hours can also influence the calculation.

The liabilities from such a redundancy plan are mass liabilities. However, in the absence of an insolvency plan, no more than one third of the assets that would be available for distribution to the creditors of the insolvency proceedings without a social plan may be used for the correction of social plan claims. If the total amount of all social plan claims exceeds this limit, the individual claims shall be reduced proportionately.