Lodging a claim in insolvency proceedings

A creditor who wants to be satisfied from the insolvency estate must lodge 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 lodging it can have further adverse consequences for the creditor, namely where a payment plan is accepted or the so-called skim-off proceedings (Abschöpfungs­verfahren) are initiated.

Lodging the claim also makes the creditor a participant in the proceedings: voting rights in the creditors’ meeting follow from admitted insolvency claims (section 93(1) of the Austrian Insolvency Code, Insolvenz­ordnung, ‘IO’); creditors whose claims have not yet been verified or are disputed take part in the vote provisionally (section 93(3) IO). If a claim is disputed, the creditor has to bring an action to establish it within the time limit set by the insolvency court; otherwise it is left out of the distribution (sections 110(1) and (4) and 131(3) IO). If the claim is enforceable, for instance under a judgment, it is instead for the party disputing it to bring the action; if that party does not do so within the time limit, the claim is not treated as disputed (sections 110(2) and 131(4) IO).

The invitation to lodge claims 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 a transfer of ownership by way of security). It can still be asserted as an insolvency claim. If such a secured claim is not lodged, this has no effect on the existence of the security right itself.

Claims must be lodged within the time limit for lodging claims stated in the insolvency edict. In the case of a late lodgement, the creditor has to reimburse the insolvency administrator for the costs of the special verification hearing; under section 107(2) IO this amounts to EUR 50 plus value added tax. This obligation lapses only where an earlier lodgement was not possible for the creditor and the creditor asserts this in the lodgement and shows it prima facie at the special verification hearing at the latest. Claims lodged 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, where the application for acceptance of the payment plan reached the court after 16 July 2021, creditors who did not lodge their claims by the vote on the payment plan have only a limited entitlement to the quota (the percentage of their claims) payable under the payment plan, and only if they were not notified of the opening of the proceedings (section 197(1) IO).

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

Insolvency claims must be lodged in writing. The lodgement must be made in domestic currency (euro); for conversion, the day the insolvency proceedings were opened is decisive. The lodgement 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 lodging the claim in another way must include the information required by that template.

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

The fee for lodging a claim is EUR 33. 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 time limit for lodging claims. They lapse if they have not been asserted by the vote on a payment plan. If the hearing on the payment plan has to be adjourned because such a right was asserted late, the creditor bears the costs of the adjourned hearing. Under section 113a(2) in conjunction with section 107(2) IO, this amounts to EUR 50 plus value added tax, payable to the insolvency administrator.

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 lodgement 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 lodge the claim in any official language of the institutions of the Union (Article 55(5) EIR). For these creditors the time limit for lodging claims is at least 30 days following the publication of the opening of the insolvency proceedings in the insolvency register of the State of the opening of proceedings (Article 55(6) EIR); in Austria that is the insolvency database (Insolvenz­datei). They may also use the standard claims form “Lodgement of claims”, available in all official languages of the institutions of the Union on the European e-Justice Portal (Article 55(1) EIR; Implementing Regulation (EU) 2017/1105).

Even in that case, however, the court, the insolvency administrator or the debtor in possession may require a translation into German (Article 55(5) EIR). It is therefore strongly recommended to lodge 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.