On 13 July 2010 the Federal Ministry of Justice and Finance (Bundesministerien für Justiz und Finanzen) published a discussion draft of an Act for the Restructuring and Orderly Liquidation of Credit Institutions, for the Establishment of a Restructuring Fund for Credit Institutions and for the Extension of the Limitation Period of Corporate Law Management Liability (Restructuring Act) (Referentenentwurf eines Gesetzes zur Restrukturierung und geordneten Abwicklung von Kreditinstituten, zur Errichtung eines Restrukturierungsfonds für Kreditinstitute und zur Verlängerung der Verjährungsfrist der aktienrechtlichen Organhaftung [Restrukturierungsgesetz]).
The discussion draft relates on the one hand to new pre-insolvency measures that aim to prevent insolvency through the restructuring or reorganization of endangered banks in Germany as contemplated in the Key Points on Financial Markets Regulation (Eckpunkte zur Finanzmarktregulierung) of the German Federal Cabinet, issued on 31 March 2010. As another key point, the Restructuring Act introduces measures that obligate banks to transfer all or parts of their assets to another bank by order of Germany’s Federal Financial Supervisory Authority (Bundesanstalt für Finazdienstleistungsaufsicht, or BaFin) if the bank’s existence is endangered and the result of its closing would pose a potential systemic risk to the financial system.
In the future the BaFin will be empowered to manage the restructuring or reorganizing of the endangered banks, to issue the transfer order and to cooperate with Germany’s Federal Authority for Financial Market Stabilization (Bundesanstaltt für Finanzmarktstabilisierung, or FMSA) (Article 4).
Bank Reorganization Act
The Restructuring Act contains in particular the Bank Reorganization Act (Gesetz zur Reorganisation von Kreditinstituten), which introduces three different measures for restructuring:
- Restructuring proceedings (Sanierungsverfahren) would require the appointment of a restructuring adviser (Sanierungsberater) to implement the restructuring plan in close cooperation with the BaFin (Article 1, Sections 2 to 6);
- If such restructuring measures cannot be implemented successfully, reorganization proceedings (Reorgnisationsverfahren) shall be initiated that will affect the rights of the bank’s shareholders and its creditors (Article 1, Sections 7 to 23);
- If the BaFin decides that the bank’s existence is endangered, which might cause systemic risk for the financial system, the BaFin is empowered to issue a transfer order (Übertragungsanordnung) forcing the bank to transfer all or part of its business to a public or private bank (Article 2, Sections 48a to 48s of the draft German Banking Act).
Establishment of a Restructuring Fund (Article 3)
Further, the Restructuring Act introduces a restructuring fund based on the Act for the Establishment of a Restructuring Fund for Credit Institutions (Gesetz zur Errichtung eines Restrukturierungsfonds für Kreditinstitute), which shall be administered by the FMSA. The restructuring fund shall be financed through a bank levy (Bankenabgabe), whereby the specific amount of the annual contributions shall be calculated in relation to the systemic risk of the bank’s failure. The payment obligations relate only to banks in accordance with Section 1 Clause 1 of the German Banking Act (Kreditwesengesetz) and not to financial institutions (Finanzdienstleistungsinstitute) pursuant to Section 1 Clause 1a of the German Banking Act. The amount of the annual contributions shall be calculated based on figures from the bank’s most recent financial statements, in particular the subscription relevant liabilities (beitragsrelevenate Passiva) and the nominal value of the bank’s off-balance sheet derivative transactions. As stated in the Restructuring Act, even if the bank does not make any profit, it must pay a minimum contribution as a percentage of the regular contribution. The bank levy is therefore discussed extensively by the involved parties.
Extension of the Limitation Period of Corporate Law Management Liability (Article 5)
Finally, the Restructuring Act introduces an extension of the limitation period for liability claims against management board members (Vorstände and Aufsichsträte) of Germany-based banks from five years to a maximum of 10 years (Article 5).
Alternative Bank Restructuring Procedures
Generally, the initiation of restructuring procedures or reorganization procedures (Article 1, Sections 2 to 7 and 7 to 23 of the proposed Restructuring Act) or the transfer of certain or all assets or business areas to another institution on the basis of a transfer order issued by the BaFin under Sections 48a et seq. of the amended German Banking Act can be summarized as follows:
In principle, the restructuring procedures can be applied by the bank itself if there is a need for restructuring. However, if financial stabilization measures are needed and the bank does not apply such procedures, the BaFin can put pressure on the bank to do so by issuing supervisory measures (e.g., order the bank to reduce risk positions or dismiss managers). If the bank applies for restructuring procedures, it has to submit a restructuring plan that contains the respective restructuring measures and the nomination of a restructuring adviser. If the BaFin agrees with the proposed measures, the BaFin will file for the opening of restructuring proceedings with the Higher Regional Court (Oberlandesgericht). Following the application, the court has to approve the implementation of restructuring procedures and appoint a restructuring adviser. The restructuring adviser must implement the restructuring plan in close cooperation with the BAFin. The BaFin is entitled to issue further measures (e.g., dismissal of managers or appointment of the restructuring adviser to the board) as necessary to protect the interests of creditors.
A bank may apply for the commencement of reorganization procedures with the BaFin if restructuring procedures fail or are expected to fail. The bank must submit a reorganization plan (Reorganisationsplan) to the BaFin. Alternatively, the BaFin may file the commencement of reorganization proceedings with the competent court if it considers such measures to be necessary. Ultimately, the commencement of reorganization procedures will be initiated if the existence of the bank is endangered and such a failure could endanger the stability of the financial system. After formal approval by the court of the underlying aspects, the reorganization procedures will commence.
The reorganization will be based on a reorganization plan, the legal structure of which is similar to an insolvency plan under the German Insolvency Code (Insolvenzordnung). Consequently, the reorganization plan has to contain measures (e.g., capital or corporate measures, limitations of creditors rights or debt-equity swaps) for the reorganization and liquidation of the bank, as well as limitations of the rights of shareholders or creditors. The measures described in the reorganization plan have to be approved by each group of creditors and the court.
Under the Restructuring Act, the BaFin is entitled to order a bank to transfer all or part of its assets to another entity. Preconditions for such an order are that the credit institution’s existence is endangered (Bestandsgefährdung) and the result of its closing would post a potential systemic risk for the financial system (Systemgefährdung). Furthermore, the transfer order may be issued only if the systemic risk cannot be alleviated through other, less severe measures. For example, the BaFin may set a deadline for the credit institution to present a recovery plan (Wiederherstellungsplan) to give the bank, its shareholders and creditors the opportunity to solve the crisis. Shareholders may add further capital in accordance with a capital increase or other measures that could change the financial situation of the bank. If the bank has initiated restructuring or reorganization procedures, the BaFin has to prove that the plan is sufficient to solve the crisis. In such a case, the reorganization plan can also be regarded as a recovery plan.
The transfer order can be issued only if the assuming entity has declared its consent, which must be notarized. As further preconditions for the transfer order, the assuming entity must have its seat in Germany, have two trustworthy and qualified managers, and have sufficient capital. The transfer order is effective from the day the endangered bank and the assuming entity are notified. Generally, the endangered bank will receive a contribution in equity from the assuming entity as consideration for the transfer of assets and liabilities. Further details of the transfer of the liabilities and assets are outlined in detail in the Restructuring Act.
Under the Restructuring Act, the BaFin has extensive rights against the assuming entity in order to safeguard the transferred assets or business units. The reason for this is to enable the BaFin to restructure the systemically risky part of the business without having to manage the insolvency risk of the endangered bank.
Limitation of Termination Rights
The Restructuring Act also provides for the limitation of the rights of counterparties to terminate contractual relationships with banks that enter into reorganization proceedings or that receive a transfer order from the BaFin. However, the consequences of such limitations of termination rights are being discussed among various parties to find solutions - for example, in relation to close-out netting provisions in master agreements (e.g., a ISDA Master Agreement).
The discussion draft lists the proposed implementation date for the Restructuring Act as 31 December 2010. However, whether this date can be achieved mainly depends on the legislative process for the remainder of the year.
For further information on the proposed draft, please contact your principal Squire Sanders lawyer or the lawyer listed in this Alert.