Contributed By POTAMITISVEKRIS
Greece has only recently started to compile statistics on insolvency proceedings. The data available to date provides only a very basic understanding of the frequency of use, and the timeframe for completion, of the respective processes. One undeniable finding is that the bankruptcy proceeding is used very rarely, in fact there have been fewer than 200 declarations of bankruptcy in Greece for each of the past five years. By contrast, a recent study estimates that there are thousands of zombie companies, entities that are in cessation of payments that have not been submitted to formal insolvency proceedings. The recovery proceeding has been used sparingly but is generally perceived as relatively effective in producing viable recoveries. Nevertheless, the evidence on this is anecdotal rather than based on comprehensive data.
There is no evidence of a significant increase in either insolvency petitions or restructuring agreements intended for court ratification as a result of COVID-19; it is possible that such an increase will develop after the emergency measures adopted by Parliament run their course.
Greece adopted, on 26 October 2020, a new integrated Insolvency Code (the new Law) that covers preventive tools, in and out-of-court restructuring tools and liquidation proceedings. The new Law, styled the Law for the Settlement of Debts and the Provision of a Second Chance, also promises increased data collection as it is based on an electronic registry. To the extent that market participants will perceive the new tools and proceedings as more efficient and transparent, one could expect an increase in the frequency of their use and an acceleration of outcomes compared to the situation at present.
Under the current regime, which will remain in force until the end of 2020, there are three basic laws that apply to the restructuring and liquidation of business entities and partnerships that are in distress.
The basic law is the Bankruptcy Code (Law 3588/2007), which includes the recovery proceeding, an in-court restructuring proceeding that includes the ratification of an agreement reached between the debtor (not required if the debtor is in cessation of payments) and creditors that hold at least 60% of its debt and 40% of its secured debt. The Bankruptcy Code also provides for a post-commencement restructuring proceeding, the reorganisation proceeding, which requires the approval of creditors by the same percentages as the recovery proceeding and court ratification. The Bankruptcy Code also provides for a liquidation proceeding that may convert into a sale of the business or parts of the business as a going concern.
The Dendias Law (Law 4307/2014) provides for an expedited sale of the business, or parts of the business, as a going concern provided that the debtor is in cessation of payments and the application is supported by creditors that hold at least 40% of total claims against the debtor, including at least one financial institution.
Out-of-court workout (OCW)
Finally, there an Out-of-court workout (OCW) proceeding (Law 4469/2017) that provides for the multilateral negotiation, between a debtor and its creditors, of a restructuring agreement that can receive court ratification. This OCW agreement involves an automated-platform-assisted negotiation that is open to all creditors whose claims are disclosed by the debtor.
Some partnerships may also be allowed to participate in a proceeding intended for over-indebted households that permits the judge to provide haircuts to, and rescheduling of, the debt, as well as protection from enforcement for primary residences that form part of the partnership’s estate (especially for general partnerships, to which legal partnerships under Greek law are akin).
The New Law
The new Law, which will come into force on 1 January 2021, introduces a wholly new regime in the place of the above, all of which are terminated effective that same day (but pending actions will continue under the previous rules).
Out-of-court workout (OCW)
The first available tool is the new OCW, which now forms part of the new Law, which is entirely out of court. It is in fact a framework for the debtor to ask for a proposal from its creditors, when those creditors are financial institutions. That proposal may be formulated on the basis of an automatic tool specified by a ministerial decision. If a majority of the financial institutions elect to make a proposal and the debtor agrees, then both the revenue office and the social security fund automatically participate in the settlement, as determined by the same automatic tool. The only relief that can be provided under the OCW is a haircut or a rescheduling of the payment. The process is confidential and leaves all other creditors unaffected.
The second proceeding is the recovery proceeding, which now incorporates the requirements of EU Directive 1023/2019 on restructuring and insolvency. This requires an agreement by the creditors, organised on the basis of two classes, the secured and the unsecured. The agreement of the debtor may not be required in circumstances such as the cessation of its payments.
The third proceeding is bankruptcy liquidation. This is a bifurcated proceeding for larger bankruptcies (everything except microenterprise bankruptcies and most consumer bankruptcies). At the time as the bankruptcy is declared, the court can decide whether to follow a going-concern sale of the business (or businesses) or to proceed with a piecemeal liquidation. For individuals, the law also provides for a three-year automatic debt discharge (in some cases reduced to one year).
As outlined in 2.1 Overview of Laws and Statutory Regimes, the new Law provides for financial restructuring for debts to financial institutions and the state (both tax and social security arrears) by means of the OCW procedure.
Moreover, the new Law provides for a recovery proceeding that requires both creditor (and usually debtor) consent as well as court ratification.
Finally, the bankruptcy proceeding provides for piecemeal or going-concern liquidation of the debtor. The Greek Code of Civil Procedure (Article 1034 et seq) provides for a receivership procedure if all other individual enforcement routes have proved ineffective.
The triggering event for the compulsory filing is the cessation of payments by the debtor. Upon the occurrence of cessation of payments, the debtor’s management is required to file for bankruptcy within 30 calendar days.
Failure to file timely entails the civil liability of the members of the debtor’s management who are responsible for the delay (or even third parties that have contributed to that delay) to indemnify the damage caused to creditors by the delay, both in terms of the diminution of their recovery, as well as due to their contracting with the debtor during the latter’s insolvency.
The requirement to indemnify damages to counterparties for trading while insolvent is introduced by the new Law. The new Law also provides that delays due to an attempt to secure a recovery agreement or an OCW settlement may be excused.
The period of limitation for this liability is three years from its emergence; if, however, the delay is intentional or fraudulent, the prescription period is ten years.
Any creditor has standing to sue for the bankruptcy of the debtor.
As set out in 2.3 Obligation to Commence Formal Insolvency Proceedings, the triggering event for involuntary proceeding by either the debtor or any of its creditors is the former’s cessation of payments. The debtor is held to be in cessation of payments if it is generally and finally unable to meets in monetary liabilities as they fall due.
The new Law provides two additional points of guidance. A debtor that is in default on its debts to a financial institution, the tax authorities or a social security fund – for at least 40% of its total liabilities to that entity, for a period of at least six months and where the unpaid portion is at least EUR30,000 – is presumed to be in cessation of payments. Moreover, the new Law specifies that the selective satisfaction of debts does not preclude cessation of payments, which may be evidenced by the failure to meet even one significant debt that has fallen due.
A debtor can file for voluntary bankruptcy if it is in imminent cessation of payments (ie, if its general and final inability to pay its monetary debts as they fall due is imminent). There is no precise definition of “imminence” but presumably it has to be shown that it will happen within the immediate future.
The current Code also provides for the ability of the debtor to file for bankruptcy on a showing of the likely cessation of payments, provided it also presents to its creditors a reorganisation proposal, but this option has not been maintained in the new Law.
The following special provisions apply to insurance companies, banks and investment services companies.
As the statutory restructuring processes are perceived as being time consuming and procedurally complex, the development of out-of-court restructuring processes has long been identified as critical for the handling of private debt.
Institutions under the supervision of the Bank of Greece (banks, leasing and factoring companies, servicers, special liquidators) are required to enter into bilateral debt restructuring negotiations with their co-operative debtors when those debtors are facing difficulties. This process has produced modest results.
The authorities (as well international lenders under the bail-out agreements with the Greek state) have also recognised that a multilateral out-of-court settlement framework could facilitate financial and other debt restructuring. This led to the introduction of Law 4469/2017, which created a negotiation framework supported by an electronic platform. Agreements reached via this process could be court ratified. However, this process proved unwieldy and found little use.
The new Law replaces Law 4469/2017 and introduces a new electronic negotiation platform that is limited only to the debtor, financial institutions, the tax authorities and social security funds. This new process allows financial creditors to discount or reschedule existing debt (the majority binds any dissenting minority). If such a settlement is also approved by the debtor, then the tax and social security liabilities are automatically affected on the basis of a formula set by ministerial decision. In this way, the law provides for the participation of the state in an out-of-court restructuring as an inducement to a settlement offer by creditors that are financial institutions.
While there have been some cases of consensual restructurings, they are too few to allow the establishment of what constitutes a typical process or timeline. One would certainly expect to see the adoption of a standstill agreement. One would also expect the appointment of an expert to establish the elements of the necessary restructuring as well as the establishment of a creditor committee and, possibly, the engagement of counsel for the committee. It is unlikely, however, that there would be any impact on priorities, even on a consensual basis.
Super-priority is accorded to new-money investors in connection with a formal restructuring proceeding. However, new security can be provided for new money outside a formal proceeding and if provided by a bank it may not be set aside in the case of a bankruptcy.
The only constraint on the creditors is imposed by the Civil Code provision that rights may not be exercised abusively. In addition to that, one must be mindful of the prohibitions, in both the new Law and the current one, against preferential treatment of a creditor and of transfers (as in the case of a debt for equity swap) that may be seen as defrauding other creditors (if they render the debtor incapable of satisfying its other debts).
The new Law includes an OCW process that allows the majority of financial institutions to bind dissenting lenders to haircuts or rescheduling of repayment of debt. This cram-down feature is projected in the new Law as a provision in the agreement to which financial institutions must accede if they wish to be part of the OCW process.
Otherwise, it is not at all typical for credit agreements to provide for the majority to amend the terms of the agreement.
Security is generally divided between security for immovable property and security for movables, which also includes claims such as accounts or shares and intangible property.
The following types of security are available for immovable property.
This is the basic form of security in relation to immovable property. In order to create a mortgage, a creditor must hold a title provided by law, final court decision or a notarial deed. A mortgage is perfected by its registration in the Land Registry.
Pre-notation of mortgage
This is the most common form of security on real property and is created by a court order in the nature of an injunction. It can be viewed as a conditional mortgage that can be converted into a full mortgage upon the debtor’s default with retroactive effect as of the issuance of the pre-notation order. Pre-notations are far more common than mortgages because court fees are significantly lower than the notarial fees that would be payable for the mortgage deed.
The following types of security are available for movable assets.
This is the most common form of security. A pledge on a movable asset ensures the preferential satisfaction of the creditor through a forced sale of that movable asset in execution proceedings. A pledge requires physical delivery of the movable asset to the pledgee.
A chattel mortgage
Pursuant to Articles 1 and 3 of Law 2844/2000, and also known as a non-possessory pledge, a chattel mortgage allows the debtor to retain possession and use of the movable asset, and to freely dispose of it, but it attaches to the asset and ensures that the creditor is preferentially satisfied through the asset’s forced sale, following the commencement of execution proceedings.
Pursuant to Article 16 of Law 2844/2000, a floating charge enables the debtor to deal with (and dispose of) the charged assets (as specified in the agreement) in the ordinary course of business until the occurrence of either a default or an agreed event that causes the floating charge to crystallise. Following crystallisation, a floating charge becomes a fixed charge (similar to a pledge) attaching to whatever movable assets are available at that time.
Retention or fiduciary transfer of ownership
This allows the creditor, until fully paid, to retain ownership of property or have ownership of property transferred to him or her, but not to dispose of that property. This occurs in two situations.
The enforcement of security rights is governed by the Code of Civil Procedure. The creditor must have an enforceable title against the debtor in order to initiate enforcement proceedings. Enforceable titles are, among others, a payment order and a final and enforceable judgment. In general terms, a secured creditor has the right to force an auction of its security. The same can be done by any other creditor that proceeds to attach the asset that forms its security; however, the secured creditor is satisfied by priority by the proceeds of that auction.
The new Law provides for three different cases where enforcement is temporarily or finally blocked.
An application under the OCW process will temporarily block enforcement for up to the two-month period that is the maximum duration of this process (this may extend to two and a half months in special cases). Enforcement may also be suspended due to an application filed in anticipation of an agreement for the reorganisation of the debtor under the recovery proceeding or upon the filing of such an agreement for ratification. In both cases, the duration of this stay may initially be set at up to four months but the stay pending the conclusion of a recovery agreement, in special circumstances, may be further extended up to six months, if:
If the stay is provided in connection with a filing of a recovery agreement for ratification, the stay usually stays in place until the issuance of the court’s decision. A filing for the first time of a recovery agreement leads to an automatic stay for four months, which may be extended by a new order of the bankruptcy court.
Enforcement may also be suspended in the event of an application for bankruptcy if the application provides for a going-concern sale. In all other cases, the application for, or declaration of, bankruptcy will not suspend enforcement by secured creditors. However, if enforcement has not commenced within a nine-month period after the bankruptcy declaration, then enforcement by secured creditors will no longer be possible and the securities will be liquidated by the bankruptcy administrator.
Stays generally do not affect the enforcement of financial collateral.
Secured creditors enjoy both procedural protections and rights in statutory restructuring and insolvency proceedings.
The ratification of a recovery agreement requires the approval by a majority of each of the classes. The new Law provides for the formation of two classes; that of the secured and that of the unsecured creditors (which also includes state claims and those of employees). The new Law also allows the secured creditor class to impose a cross-class cram-down in approving the recovery agreement, even without the consent of the majority of the unsecured creditors, if 60% of all creditors in terms of the value of their claims consent to the agreement. Moreover, a recovery agreement may only be ratified if it serves the best interests of creditors (ie, if dissenting creditors, including dissenting secured creditors receive at least the same recovery as in bankruptcy liquidation). Accordingly, they benefit, in terms of their treatment under a recovery agreement, from their priority ranking regarding distributions of the proceeds of the bankruptcy liquidation.
An application for bankruptcy may not provide for a going-concern sale (which will have the effect of suspending enforcement by secured creditors) if not supported by at least 20% of secured creditors (in terms of the value of their secured claims).
The new Law follows the Code of Civil Procedure in determining the ranking of claims. In broad terms, for securities created prior to 1 January 2018, secured creditors as a group are entitled to receive 65% of the proceeds of liquidation (and they are subject to the rule of absolute priority within that group). For securities created for new debt incurred after 17 January 2018 on assets previously unencumbered, secured creditors will be satisfied in priority to all other creditors except for certain employee claims.
The Code of Civil Procedure provides that for secured debts created prior to 17 January 2018, the proceeds from the disposition of the collateral, after the satisfaction of super-priority claims, are distributed 65% among secured creditors, 25% among creditors characterised as having general privilege (for tax claims, social security arrears and employee compensation arrears) and 10% to all other unsecured creditors.
For secured debts created thereafter, and provided that the collateral was unencumbered prior to the creation of the new security, certain employee claims are satisfied in priority, followed by the claims of secured creditors. In each case, the claims within each category are satisfied in accordance with the rule of absolute priority (under Greek law, securities are ranked in terms of their temporal priority). The priority applicable to satisfaction of general privilege creditors is set out in the statute, while unsecured creditors are satisfied pari passu.
A restructuring process in Greece would usually involve haircuts for unsecured creditors, although there have been cases where suppliers who were deemed essential for the continuation of the business have recovered their claim in whole (but usually in instalments over time). Those essential suppliers take advantage of an exception to the equal treatment or fairness test that allow more favourable treatment of certain creditors for significant commercial or social reasons.
Unsecured creditors are entitled to not being placed, by the terms of recovery agreement, in a worse position than they would have been in the case of the debtor’s bankruptcy. They also form one of the classes whose consent is required for an agreement to qualify for ratification, although the law also provides that if an agreement secures the approval of a majority of the secured creditors and of at least 60% of all creditors (inclusive of the secured) then it would qualify even if it did not secure the approval of the majority of unsecured creditors.
As a class, unsecured creditors do not have any particular rights in the context of a bankruptcy application of proceeding. Nevertheless, each unsecured creditor enjoys the same rights to intervene, seek information and participate in the creditors’ assembly, that belong to creditors in general.
The filing of a bankruptcy application gives the bankruptcy court the power, on the application of any stakeholder, to provide a stay for the preservation of the estate. That stay will normally preclude pre-judgment attachments by creditors.
New and interim financing provided to a debtor in a restructuring of bankruptcy proceeding can enjoy priority status. They rank prior to secured creditor claims, except for those created after 17 January 2018 and secured by assets previously unencumbered.
The new Law provides for the ratification of a recovery agreement entered into between the debtor and its creditors.
Such an agreement will be ratified by the bankruptcy court if it has the consent of the majority of creditors in each of the two classes formed in accordance with the new Law. These classes respectively include secured and unsecured creditors (they also include tax, social security and employee claims). The agreement may also be ratified if agreed only among creditors in the event that the debtor is in cessation of payments (but also where it has insufficient share capital or has failed for two consecutive terms to publish financial statements). Ratification makes the agreement binding on all creditors.
The new Law provides that 50% secured creditors can cram-down on the unsecured if they obtain the consent of 60% of all creditors (in terms of the value of their claims).
These percentages are based on a list of creditors compiled by an expert and based on the debtor’s books with a reference date not earlier than three months from the date of filing the agreement for ratification.
The agreement can include a rearrangement of the assets and liabilities of the debtor according to the new Law, which provides certain examples as guidance. For example, it mentions the reprioritisation of claims but only in favour of new money.
The object of the proceeding is to preserve the going concern (but not necessarily the entity of the debtor) in order to preserve value for the benefit of creditors and well as jobs, and to minimise disruption to the market (eg, to suppliers and other counterparties).
The application is followed (usually after several months) by a hearing in which other stakeholders may intervene. The time to issuance of the ratification decision varies but is usually not less than six months.
Even though unknown claims are not taken into account for the calculation of the requisite majorities, the agreement can affect them as well as contingent claims and claims that will arise up to the date of ratification. The new Law expressly exempts claims secured by financial collateral from the effects of a ratified recovery agreement.
Creditors may be called to vote on a proposed agreement, but the usual process is for the necessary majority approval to be reflected in the executed agreement, which is then filed for ratification.
The procedure concludes with the ratification; however, the agreement can set conditions precedent for its coming into effect (eg, the approval by the debtor’s shareholders of debt capitalisation).
Prior to the filing of a recovery agreement for ratification, the debtor (with the support of at least 20% of the creditors in terms of the value of their claims and upon a showing that the protection is necessary as a matter of urgency) can ask for a stay of enforcement actions. Such a stay may be provided for up to four months and can be further extended to a maximum total duration of six months. Upon the filing, provided that the agreement has not been filed previously, the debtor is entitled to an automatic stay of four months that can be further extended (usually to the date of issuance of the decision on the ratification application).
The debtor remains in possession during the pendency of an application for the ratification of a recovery agreement. To the extent protected by a stay, the court may impose limits on disposal of real estate or machinery (with certain exceptions). If extended, the stay may also include other measures that, in the view of the court, will preserve its value. In other respects, the debtor can continue to operate its business.
Management of the debtor remains with its incumbent manager; however, upon the application of an interested party, the court can appoint a special agent to carry out some or all of the functions and responsibilities of management.
The debtor is free to borrow money during the pendency of an application for ratification of a recovery agreement.
As already noted, creditors are divided into two classes: secured and unsecured creditors. The second class include those creditors that, while being unsecured, enjoy a statutory privilege (ie, tax, social security funds and employees).
Otherwise there are no statutory requirements for the formation of creditor committees or for reporting by the debtor to the creditors, although these may be part of the recovery agreement or of an interim financing agreement.
If the recovery agreement is ratified, then its provisions apply to all creditors, even those that dissent (including the cramming-down of the unsecured as a class if they dissent but the majority requirements for ratification are otherwise satisfied).
There are no restrictions on the trading of claims against the debtor during the pendency of an application for the ratification of a recovery agreement. Accordingly, the rules generally applicable to an assignment of claims would also apply in this case.
The recovery process applies to entities on a standalone and not on a group basis. Applications relating to more than one affiliate could be joined and tried together, as separate but related applications.
As noted in 6.2 Position of the Company, a stay issued for the protection of the debtor can also impose restrictions on the use of its assets. An automatic stay will also prevent a debtor from disposing of its real estate or machinery, except if replaced by other similar assets of equal value, or if used as collateral for interim financing that is expressly provided for in the recovery agreement that has been filed.
The manner of the disposal of assets under a recovery agreement is provided for in that agreement. Usually the transfer is on a pre-negotiated basis and there is no bidding process. Outstanding creditor claims can be used as consideration for the transfer of assets to entities to which such claims are contributed (or to the creditors themselves).
The possibility of secured creditor liens and security arrangements being released is not excluded provided that, if the secured creditor dissents, its recovery under the agreement is consistent with the no creditor worse off principle.
Interim and new financing can be provided to a debtor in a recovery proceeding for the purpose of preserving its viability or keeping it as a going concern. Outside of changes brought about by a ratified recovery agreement, or consensually outside such an agreement, security on encumbered assets is possible but only as security of lower priority.
The value of claims is an issue in the agreement, while the economic interest of a creditor is critical to assessing whether the no creditor worse off test imposed by law is respected in any given case.
The fairness or equal treatment of creditors test is one of the two major tests for the ratification of a recovery agreement. Whether an agreement provides all creditors in the same position with the same treatment, except for discrepancies dictated by important commercial or social reasons, is up to the judgment of the bankruptcy court that is vested with the ratification of a recovery agreement.
Non-debtor parties, such as co-obligors or guarantors, can be released from liabilities under the agreement, but such a release cannot be imposed on dissenting creditors. Release of other parties, such as debtor management, is not foreseen as part of the recovery agreement.
A court may provide temporary suspension of set-off rights but not their termination. The rule under bankruptcy, which probably also applies in a recovery proceeding, is that the declaration of bankruptcy does not affect the right to set-off provided that the conditions for its exercise existed prior to the declaration of bankruptcy. There are special protective provisions in Greek law for set-off under financial collateral and netting of position in listed derivatives (eg, they are not affected by a stay).
The failure to observe the terms of the contract are governed by the rules applicable to contractual default, including as may be provided under the contract itself.
The law does not preclude existing equity owners receiving or retaining any ownership or other property.
Declaration of Bankruptcy
A debtor can apply to be declared bankrupt in the event that it faces imminent cessation of payments. It is required to file in the event of actual cessation of payments. The debtor’s cessation of payments in a necessary prerequisite for a bankruptcy filing by a creditor.
If the application is accepted, then the sum total of the debtor’s assets will constitute the bankruptcy estate and will be liquidated for the satisfaction of its creditors’ claims. Bankruptcies are distinguished between large and small regardless of whether the debtor is a merchant or a consumer, a legal person or an individual. For natural persons the categorisation is based on the value of the debtor’s assets. If the debtor is a legal person, then if it is a microenterprise it will follow the small-scale bankruptcy procedure.
Small scale bankruptcies are tried by the Magistrates' Court while larger scale bankruptcies are tried by the Multi-member Court of First Instance, in each case in the appropriate venue. For enterprises, venue is determined by reference to the centre of main interest (COMI), while for consumers the venue is their place of residence.
A bankruptcy petition will include the nomination of an administrator (except for applications filed by natural persons, which will be heard even without such a nomination) as well as the acceptance of such appointment by the nominee. The person nominated for that function must be an insolvency professional. At the petition hearing, other stakeholders may object to the nomination and nominate other professionals. The court is expected to defer to the nomination made by the largest creditor, but has the discretion to appoint another person if they are more suitable in its reasoned opinion.
Administration of the Bankrupt Estate
Once installed the administrator will conduct an inventory of the assets and call for the announcement of creditors’ claims. The administrator is charged with the verification of such claims on the basis of the evidence received from the debtor (such as books and records) or such evidence as it may receive from the debtors upon its request. This table will then be used for the purposes of distributing liquidation proceeds and it will be subject to objections and corrections at a hearing to be held at a later point in time (indeed, more than once depending on how the assets are liquidated). There is no express exclusion of contingent claims from the verification process.
A declaration of bankruptcy stays all enforcement actions against the debtor, except for individual enforcement by secured creditors. The new Law provides them with a nine-month window post-declaration to commence such enforcement. If they fail to do so, then the stay applies to them as well.
A declaration of bankruptcy will normally divest the debtor from control of its assets. The new Law provides that in special cases the debtor may remain in possession but, at least in the past, that option was rarely (if ever) applied. Responsibility for the estate is vested with the administrator (or syndic). An administrator is a certified insolvency professional (either a natural person that has obtained the requisite certification or a professional firm that employs such certified professionals). The administrator is responsible for all matters relating to the development of the bankruptcy process and its timely conclusion, under the control of a reporting judge (also appointed by the bankruptcy court); the bankruptcy court itself for important matters and, for matters that are of particular significance to the creditors as a body, the creditors’ assembly.
Piecemeal and Going-Concern Liquidations
The declaration of a piecemeal bankruptcy will lead to the automatic cancellation of all contracts, except for those that the administrator opts to maintain in force in the interests of the bankruptcy process or the maximisation of the value of the estate. In the case of going-concern liquidations, the bankruptcy does not entail the automatic termination of pending contracts, but the counterparty has 30 days to provide the administrator with the option to elect whether to continue performance or not. If the administrator fails to respond timely, or elects not to continue, then the counterparty may terminate and seek damages, if applicable, as a bankruptcy creditor. The administrator may also elect to assign the debtor’s performance and benefits to a third party and the court may oblige a dissenting counterparty to continue its performance upon a showing that there is no harm to the counterparty and that the assignee has the ability to perform as required by the agreement.
Set-Off and Netting
The right of set-off is not affected by a declaration of bankruptcy if the set-off requirements were satisfied prior to such declaration. Netting of positions relating to trading in listed derivatives is governed by the rules of that exchange. Similarly, netting under a financial collateral arrangement is governed by the rules of that contract.
Creditors are entitled to a semester report by the administrator. In addition, the creditors’ assembly may compel the administrator to provide it with additional information, while individual creditors cannot also directly request information from the administrator.
Estate Value Distribution
The proceeds of liquidation are distributed to the creditors in one or more distributions until all assets have been disposed. At that time, the administrator will give a final accounting to the creditors’ assembly, which can release the administrator from any liability for the conduct of the process. The process terminates by a court decision or upon the lapse of five years from the date of declaration for larger bankruptcies or 12 months for the small-scale bankruptcies. For larger bankruptcies, the five-year term may be extended by the court if there are pending decisions on creditor objections relating to the distribution of proceeds, or by a decisions of the creditors’ assembly for one time and up to two more years.
For larger bankruptcies, the bankruptcy petition, if supported by 30% of the creditors in terms of the value of their claims, including 20% of the secured creditors, may include an application to sell the debtor’s business as a going concern (this may also be done in more than one constituent part, at the administrator’s discretion, subject to approval by the creditors’ assembly). In all other cases, a declaration of bankruptcy leads to the sale of the debtor’s assets piecemeal.
A going-concern liquidation is a public sale conducted by the administrator, on the e-auction platform provided for by law, that has no minimum price. The highest bid is then submitted to the approval of the creditor’s assembly. The assembly may decide to seek an improved offer or ask for the sale to be repeated. Assets that remain unsold after the lapse of 18 months are then sold piecemeal.
A piecemeal sale is always conducted on the e-auction platform (by a notary public) at a minimum price per lot (set by two certified valuators or one, depending on the value of the assets being liquidated). If the auction fails to produce a qualifying bid, the price is automatically reduced to ⅔ of the original price and a repeat action is held 20 days after the first one. If that auction is also unsuccessful, then there is a third attempt at a minimum price set at ½ of the original. If that also fails to produce a qualifying bid, the administrator is given three months to attempt to secure a negotiated sale at a price to be approved by the court. If that also fails, then there is a final auction at no minimum and any unsold assets revert to the debtor or are handed over to the state.
The only party that is excluded from participating in an auction or public sale is the debtor. There is no provision for credit bidding. There are also no provisions to either facilitate or pre-empt a stalking horse bid by a creditor. The purchase price at all auctions is payable in cash.
A pre-negotiated sale transaction is not possible in a bankruptcy liquidation. However, creditors that wish to effect pre-negotiated sales may opt for a recovery agreement as opposed to a bankruptcy petition in order to do so.
The creditors constitute an assembly, which is one of the organs of the bankruptcy proceeding. Initially, this assembly is constituted on the basis of the list of creditors that accompanies the bankruptcy petition. After the verification of claims and the posting of the table of verified claims, the assembly is reconstituted on the basis of that verification table, and it will also reflect any amendments that may arise as a result of creditor objections at the time of the distribution of liquidation proceeds.
The assembly is convened by the reporting judge and is quorate if at least 50% in terms of value participate. Decisions are taken by majority of the creditors represented at the meeting(s). They have the right to follow the development of the process leading up to the final accounting by the administrator at the time of closure of the proceeding and to compel the provision of information by the administrator. The assembly has the final word on going concern sales and can ask for the extension of the process at the five-year term.
There is no provision for the reimbursement of creditor expenses relating to their participation in the assembly. In addition, there is no provision to constitute creditor committees.
Law 3858/2010, which implemented most of the UNCITRAL Model Law, introduces the prospect of recognition of foreign insolvency proceedings as well as co-operation between Greek courts, foreign courts and liquidators of different jurisdictions. To our knowledge, there are no reported cases in which the court refused to recognise foreign proceedings. On the other hand, there are judgments reported in which Greek courts recognised foreign main proceedings and initiated secondary bankruptcy proceedings in Greece according to the provisions of the European Insolvency Regulation applicable to proceedings commenced in other EU member states.
There are no reported protocols or other co-ordination arrangements reported for cross-border proceedings.
Governing law as well as the treatment of foreign decisions or rulings are determined by Law 3858/2010 or the Insolvency Regulation, as may be applicable.
Foreign creditors are not treated in a different way than domestic creditors in Greek proceedings.
The main role in bankruptcy is that of the administrator. The administrator must be a registered insolvency professional. In the context of recovery, the court may also appoint a special agent to perform specific duties. That person (legal or natural) must also be a registered insolvency professional.
The administrator is responsible for the management of the bankruptcy estate from the time of declaration of bankruptcy to its closure. Among other things, it is tasked with:
A special agent in a recovery proceeding may be appointed to assist the debtor with the implementation of the agreement or to monitor the conduct of the business during the pendency of a stay order. A special agent may also be appointed by order of the bankruptcy court to vote in place of shareholders who hold out abusively against the implementation of the plan.
A bankruptcy administrator is appointed through the decision of the court declaring a bankruptcy, or, if the appointment does not take the form of an application or of an intervention at the hearing of the bankruptcy application, then the administrator will be appointed by the supervising judge.
The bankruptcy court, or the supervising judge in small scale bankruptcies, can remove the administrator for cause. The creditors’ assembly can also remove the administrator and appoint its replacement.
In a bankruptcy, the administrator takes over the debtor’s management, if the debtor is a legal entity, and assumes all its power and authority in respect of the debtor’s business and affairs.
The administrator is selected among registered insolvency professionals. Individuals can be certified as possessing the necessary skills for assuming the role of administrator or special agent (ie, to assume an office reserved for an insolvency professional). In the alternative, a professional firm can register as an insolvency professional if it engages certified individuals. Its appointment to a statutory office is conditional on using, for that purpose, a team that includes certified individuals. The law specifically refers to law firms, auditing firms and consulting firms as qualified to be registered as insolvency professionals (provided some additional requirements are also satisfied).
Greek company law provides that the duty of the members of the board of directors of a joint stock company is owed to the company itself. The duty is to act exclusively in the interests of the company, and for the pursuit of the company’s long-term economic well-being. The duties that directors owe to the corporation do not shift to the creditors when an insolvency or recovery proceeding is likely.
However, Article 127 of the new Law provides that a company’s management cannot ignore the interests of creditors when the company becomes insolvent, meaning that they must promptly file a petition for the declaration of bankruptcy so as to minimise further detriment to creditors as well as to new counterparties. The members of the board of directors who are responsible for any delay are severally liable for the damages caused to corporate creditors. The law provides that the damages are of two different types:
Members of the debtor’s management may also be liable to creditors if the cessation of payments is due to their gross negligence or intent. That liability may also be extended to any third party that procured such grossly negligent or intentional acts or omissions.
The law provides that a delay in filing may be excusable if it is due to an attempt to negotiate an OCW (the new Law process) or a recovery agreement in furtherance of the interests of creditors and other stakeholders.
Claims against management for liability arising from a delay in filing for bankruptcy are asserted by the bankruptcy administrator. This does not apply to claims for damages suffered by creditors due to the cessation of payments if it is due to management’s gross negligence or intent.
There are two categories of historical transactions, which precede the declaration of bankruptcy and can be annulled:
Automatically Voided Transfers
Gratuitous transfers, or transfers in which the consideration is disproportionately small by comparison to the value of the transferred asset, are considered adverse to the creditors and are voided automatically. The same treatment is extended to:
Optionally Voided Transfers
Any other transaction may be voided if the counterparty was aware that the transferor was in cessation of payments and it was detrimental to the interests of the debtor’s creditors.
Nevertheless, certain transactions are not subject to annulment.
The law also exempts listed derivative transactions as well as transactions in connection with the grant of financial collateral from annulment under the insolvency provisions.
Historical transactions that preceded the declaration of bankruptcy can be set aside or annulled if they occurred during the suspect period. In the case of transactions that are automatically voided, that look-back period extends also to the six-month period prior to the commencement of the suspect period.
In principle, the setting aside of a transaction is the responsibility of the insolvency administrator who must apply for that purpose to the bankruptcy court. Nevertheless, creditors are not deprived of their right to claim the annulment of a transaction provided that the administrator fails to act within two months from receipt of notice. The claw-back action becomes time-barred one year from the day the administrator obtained knowledge of the transaction or, if this is sooner, two years from the declaration of bankruptcy.
Annulment claims may only be brought in connection with a declared bankruptcy and are not available in connection with the recovery proceeding.