Filing claims in insolvency proceedings

A creditor who wants to be satisfied from the insolvency estate must file the claim in the insolvency proceedings, even if litigation about it is pending or a judgment has already been handed down. In insolvency proceedings concerning the assets of natural persons, not filing can have further adverse consequences for the creditor, namely where a payment plan is adopted or the income-attachment procedure is initiated.

The invitation to file concerns insolvency claims. These are pecuniary claims that already belonged to the creditor at the time the insolvency proceedings were opened.

This is not altered by the fact that a claim is covered by a right to separate satisfaction (Absonderungsrecht, e.g. a pledge or security ownership). It can still be asserted as an insolvency claim. If such a secured claim is not filed, this has no effect on the existence of the security right itself.

Claims must be filed within the filing deadline stated in the insolvency edict. In the case of a late filing, the creditor bears the costs of a special examination hearing caused by it. This does not apply only where an earlier filing was impossible and the creditor asserts this in the filing and substantiates it at the subsequent examination hearing at the latest. Claims filed later than fourteen days before the hearing on the examination of the final account are no longer taken into account in the proceedings.

In insolvency proceedings concerning the assets of natural persons, creditors who did not file their claims by the vote on the payment plan have, where the application for adoption of the payment plan reached the court after 16 July 2021, only a limited entitlement to the quota payable under the payment plan, and only provided they were not notified of the opening of the proceedings (section 197(1) IO).

Claims must be filed with the court that issued the decision opening the insolvency proceedings (the insolvency court).

Insolvency claims must be filed in writing. The filing must be made in domestic currency (euro); for conversion, the day the insolvency proceedings were opened is decisive. The filing must state the amount of the claim, the facts on which it is based and the evidence that can be provided to prove the asserted claim.

Where possible, the template “Anmeldung einer Forderung im Insolvenzverfahren” published on the website of the Austrian Federal Ministry of Justice, www.justiz.gv.at, should be used. A creditor filing in another way must include the information required by that template.

The filing and any enclosures must be submitted in duplicate. Creditors must bring the documents substantiating their claim, unless already sent with the filing, to the first creditors' meeting. (Foreign creditors: see also point 9.)

The filing fee is 33 euros. It can be paid by transfer to the account of the insolvency court, by direct debit, by cash payment at the insolvency court or by debit or credit card at the insolvency court. The account numbers of the courts can be found in the court database on the website of the Austrian Federal Ministry of Justice at www.justiz.gv.at.

Rights (e.g. pledges) in income from an employment relationship or in other recurring benefits with an income-replacement function must be asserted with the insolvency court within the filing deadline. They lapse if they have not been asserted by the vote on a payment plan. If the payment-plan hearing has to be adjourned because such a right was asserted late, the creditor bears the costs of the adjourned hearing.

Claims to insolvency pay (Insolvenz-Entgelt) must be asserted, on pain of exclusion, within six months of the opening of the insolvency proceedings with the competent office of IEF-Service GmbH or with the insolvency court.

The filing must be drawn up in German. Only creditors whose habitual residence, domicile or registered office is in an EU member state (except Denmark) may also file the claim in the official language of their state. Further details are set out in Article 55 of Regulation (EU) 2015/848 (EuInsVO).

Even in that case, however, the court or the insolvency administrator may require a translation into German (Article 55(5) EuInsVO). It is therefore strongly recommended to file the claim in German as well in any event.

Information on the progress of the proceedings can be accessed free of charge in the insolvency database available online at www.edikte.justiz.gv.at.