Greece

The Greek Bankruptcy Code (GrBC), as amended by L4446/2016, L4442/2017, L4472/2017, L4512/2018 and L4548/2018, aims to enforce modern rules of law, influenced and in a way ‘imposed’ by the economic and social reality of contemporary Greece.

The maximisation of the distressed debtor’s value of assets, a balanced – ‘single’ – system of liquidation and reorganisation, the equal treatment of creditors of a similar legal state and a fast outcome^[1] constitute the principal objectives of the GrBC, to be attained by the application of fast, flexible and efficient clauses that favour all participants (ie, the distressed debtor, creditors, bankruptcy organs).

In addition to reviewing ordinary bankruptcy proceedings (which include both the basic and the simplified procedure), the following restructuring procedures will also be analysed in this chapter, which follow an approach of maintaining the debtor’s enterprise as an ongoing business:

• pre-bankruptcy restructuring rehabilitation proceedings (RehP); and
• a reorganisation plan (RP), which may only be utilised within the standard bankruptcy proceedings.

Furthermore, with effect from 1 January 2017, the insolvency administrator exercises all powers vested to the insolvency administrator and the special liquidator, facilitating faster and more efficient proceedings. Presidential Decree 133/29.12.2016 regulates the insolvency administrator’s scope of powers, as well as minimum appointment requirements (business and finance knowledge, governmental examination and certification).

Rehabilitation proceedings

Introduction

Owing to the resounding failure of the former Code’s pre-bankruptcy proceedings to fulfil the target of preventing bankruptcies, amendments L4336/2015 and L4446/2016 have radically reformed the RehP, aiming to simplify the proceedings while making them less vulnerable to abuses.

Objective

Following the European Union’s guidelines for a new approach to business failure, it is of vital importance for the Greek economy to enable the continuance of potentially viable enterprises by offering them a second chance, through reinforcing and improving the efficiency of this pre-bankruptcy ‘repairing formula’, as the RehP is often called, which would ultimately benefit society at large, as well as the distressed debtor and creditors.

Following the latest amendments, a pre-packaged agreement can be signed both by the distressed debtors fulfilling the prerequisites of article 3 of GrBC (core bankruptcy requirements) and the required and qualified majority of creditors (60 per cent, of which 40 per cent should be secured).

Creditors themselves have the right to draft and file the relevant petition before the court and, subject to court’s approval, mandatorily engage the non-collaborative debtor in the pre-packaged agreement, provided that the debtor has officially ceased payments to creditors. Furthermore, in order to prevent abusive delays of the procedure, if the shareholder’s approval is required, an authorised representative may be appointed to substitute the non-collaborative shareholders when exercising their respective powers and effectively acting on their behalf.

Ratification of the signed pre-packaged plan by the court

The aforementioned agreement is enacted by the court’s ratification and the debtor’s rights are limited.

The petition filed should be detailed, describing the updated corporate and financial status of the debtor, proving the financial distress and proposing the proper structural measures, in order to recover and preserve both the business and the claims value (business plan). In addition, an expert’s report on the debtor’s financial condition must be submitted by the applicant.

Rehabilitation petitions suspend the hearing of any pending bankruptcy petition before the competent court.

Following recent legislative amendments, the ability to modify the validated plan is introduced, subject to the presence of new crucial factors.

Suspension of enforcement proceedings

To promote the efficiency of the RehP, filing of the pre-packaged agreement automatically suspends all enforcement measures for four months, subject to a judicial extension. In addition to that, according to article 106a GrBC, and prior to the initiation of the RehP, the court may, upon the request of anyone having a legitimate interest, grant the suspension of individual and collective enforcement actions throughout the negotiation period, provided creditors holding a minimum of 20 per cent of the debtor’s claims concur.

Following a long-lasting abusive implementation of the RehP that often resulted in maintaining ‘on-hold’ companies of limited recovery possibilities, RehP proceedings now offer a quick revival opportunity to distressed entities and an efficient tool for creditors facing non-collaborative distressed debtors.

Ordinary bankruptcy proceedings^[2]

Conditions of bankruptcy (articles 2–3 GrBC)

Two substantial and two procedural conditions need to be in place for the initiation of a bankruptcy proceeding:

• Substantial conditions:
  • eligibility of the debtor as a merchant or as a union of persons with legal personality engaged in economic activities (eg, companies limited by shares, limited liability companies, private companies, general partnerships); and
  • permanent, general or imminent cessation of payments – or the likelihood of these – along with the filing of an RP on behalf of the debtor.
• Procedural conditions:
  • the declaration of bankruptcy by judgment of a court that has jurisdiction over the commencement (declaration) of bankruptcy proceedings. The competent court is the first instance court of the place where the debtor maintains its statutory or vital interests; and
  • the likely existence of adequate assets of the debtor to cover the bankruptcy costs.
• Subject, however, to certain criteria, in accordance to the newly adopted article 24 of L4549/2018 and the relevant Circular 1118/21.6.2018, if a debtor’s petition has been rejected by the court on the basis of inadequacy of their assets, the debtor is eligible to submit a petition before the court to be relieved of their debts; this option will be enforced from 1 October 2019 retroactively for debtors whose rejected petitions have been registered from 1 October 2016 onwards, as well as for pending bankruptcy petitions as of 14 June 2018.

Application and substantial effects of bankruptcy declaration

Bankruptcy proceedings may be initiated by:

• the distressed debtor, through a petition filed within one month of cessation of payments (or prior to that, if cessation is imminent or likely) – if the debtor’s managerial decisions had either eluded or provoked their bankruptcy, directors’ personal civil liability towards the creditors (including the public sector (tax and social security organisations)) might be triggered;
• any creditor; or
• the district attorney (in cases of public interest).

After the debtor is declared bankrupt by the competent court, all of the following are immediately enforced and applied erga omnes:

• the debtor is forbidden from managing its business, assets and liabilities. Although, following the filing of a special petition by the debtor, the court could allow it to withhold the general management, along with the guidance, involvement and final approval of the insolvency administrator, as long as it is proved that this would be in favour of the business;
• all transfers of assets that took place by the debtor within the two years preceding the bankruptcy declaration can be annulled;
• creditors’ claims against the debtor are considered overdue; and
• creditors are not allowed to take individual enforcement measures against the debtor, unless certain conditions are fulfilled.

Procedural effects of bankruptcy

The effects of bankruptcy, arising after the debtor’s declaration as bankrupt and the initiation of the bankruptcy proceedings, are as follows.

Effects as regards the debtor

The fundamental effect with respect to the debtor’s estate is bankruptcy divestment in relation to all assets found in the bankruptcy estate.

Effects as regards the creditors

Creditors in bankruptcy proceedings are divided into three types:

• Bankruptcy creditors, which have accrued monetary claims against the debtor at the commencement of proceedings, are divided into four categories (article 21 GrBC):
  • unsecured creditors, whose claims are not secured by a privilege or real security and may, under certain conditions, claim up to 10 per cent of the bankruptcy estate;
  • priority creditors, whose claims have a general privilege (eg, claims of the public financial authorities for the collection of VAT and income tax, claims of the social security sector, claims of the debtor’s employees) and shall be satisfied from the debtor’s estate;
  • secured creditors, whose claims are secured by special privilege or real security on a specific asset of the debtor’s estate; and
  • creditors of reduced protection, also called ‘last resort’, whose claims will be satisfied from the debtor’s estate after satisfaction of the unsecured creditors.
• Post-bankruptcy commencement creditors, whose claims against the debtor arise out of its post-bankruptcy acquired property and are satisfied by it. Post-bankruptcy acquired property contains, indicatively, property inherited by the debtor (natural person or legal entity) as well as movable property acquired by the debtor (natural person) from the execution and closing of contracts between the debtor as an independent contractor and the principal (consideration or compensation).
• Mass creditors, whose claims against the debtor are generated from the administration of the debtor’s estate by the insolvency administrator (eg, claims of employees assisting the insolvency administrator’s work at the post-commencement period, court fees and other administrative costs), and are satisfied prior to the claims of the bankruptcy creditors from the bankruptcy estate; these claims are classified as costs incurred during bankruptcy proceedings.

Post-bankruptcy declaration proceedings

The bankruptcy declaration is followed by proceedings divided into two stages: preparatory and final proceedings.

Preparatory proceedings

The principal requirements for the progress of preparatory proceedings are:

• The establishment of the bankruptcy organisation, consisting of:
  • the bankruptcy court with supreme supervision over bankruptcy and jurisdiction in all trials in relation thereto;
  • the insolvency administrator;
  • the supervisory judge, with an enhanced role in comparison with the past provisions, who supervises the entire bankruptcy and oversees the insolvency administrator; and
  • the creditors’ assembly, which decides on crucial matters regarding the proceeding’s progress. (With a view to a quicker and more flexible procedure, L4446/2016 abolished the creditors’ committee, which under the previous legislative framework played an assisting role to support the insolvency administrator during the performance of their duties.)
• The execution of acts that safeguard and preserve the assets of the debtor’s estate, such as sealing and unsealing of the debtor’s estate.
• The submission of creditors’ claims, and the verification and admission thereof.

Final proceedings

The aim of this stage is to satisfy the creditors, whether by liquidation and distribution or by restructuring. According to the GrBC, a maximisation of the possible eventual return to creditors, resulting in their adequate satisfaction, can be attained through a post-bankruptcy RP submitted to the bankruptcy court by the debtor or the creditors, which also results in the preservation of a viable debtor’s business. The court may accept or reject the plan.

If the court rejects the RP or it is later nullified, despite its principal approval by the court, creditors are satisfied through liquidation of the debtor’s assets and distribution (article 132 et seq GrBC). A subsequent report of the insolvency administrator is given to the creditors and the proceedings are terminated.

Termination of bankruptcy proceedings

Bankruptcy is terminated (article 164 GrBC) if:

• all bankruptcy estate assets are liquidated;
• the RP is ratified by the court;
• assets may no longer cover bankruptcy expenses or time lapses as specified in article 166(3) GrBC, (ie, 10 years starting from the commencement of the creditors’ union or 15 years from the declaration of bankruptcy); or
• all creditors’ claims (in capital and interests) prior to the bankruptcy declaration date are paid in full.

By virtue of recent legislative amendments and subject to certain criteria, the debtor may – as a final stage in the bankruptcy proceedings – file before the court a petition requesting to be released from any outstanding debt and, as such, be given a second chance.

Significant change in allocation of bankruptcy payments towards creditors

Until 31 December 2015, public sector claims (taxes, social insurance, etc) ranked highly and resulted in a very low satisfaction level (if any) of all other creditors from the bankruptcy estate.

Amendments to the Greek Civil Procedure Code^[3] and the GrBC,^[4] which entered into force on 1 January 2016, have changed the allocation of the bankruptcy estate to the creditors as follows: creditors with a general privilege (eg, public and social security sector) will be satisfied up to 25 per cent of the distributed bankruptcy estate; secured creditors (real estate collateral, etc) will be satisfied up to 65 per cent of the estate; and unsecured creditors may now be satisfied up to 10 per cent of the estate. If a RehP or an RP includes specially allocated amounts, paid by creditors, to be invested within the scope of the continuation of the business (article 154(a) GrBC), the creditors’ claims would be preferably satisfied.

Bankruptcy RP

What is it?

Reorganisation is a bankruptcy procedure within the GrBC, providing a last resort for the distressed debtor to keep the business running.

The reorganisation process is divided into four stages:

• Submission of the plan: during the bankruptcy process, the distressed debtor or qualified creditors (60 per cent of the creditors, of which 40 per cent should be secured) have the right to submit an RP, either upon filing for bankruptcy or within three months of the declaration of bankruptcy. Under the newly adopted provisions, creditors also preserve the right to simultaneously submit an RP even without the debtor’s approval, provided that the debtor faces present cessation of payments and a bankruptcy petition is co-submitted. The RP consists of three parts: (i) an accurate description of the distressed debtor’s financial condition; (ii) an evaluation of advantages compared to standard liquidation proceedings; and (iii) a detailed description of the effects to creditors’ claims.
• Judicial review: the RP must be approved by the bankruptcy court. The court can reject the RP if: (i) the procedure followed did not comply with the law; (ii) the plan’s approval by the creditors’ assembly is the result of fraud or any other wrongful act, or is the result of bad faith on behalf of the distressed debtor, the creditors, the insolvency administrator or any other third party acting; (iii) there are public interest grounds; or (iv) the plan did not adequately protect claims of the creditors who voted against the plan.
• Discussion and voting by the assembly of creditors: within two months of the court’s approval, the creditors’ assembly discusses and votes on the RP, allowing certain amendments to take place. For the RP to be implemented, a majority of creditors must be present, and it has to be voted on by creditors representing 60 per cent of all claims, of which 40 per cent must represent secured or privileged claims.
• Judicial ratification: following approval from the creditors’ assembly, the bankruptcy court should ratify the final RP unless any of the reasons mentioned above in the judicial review stage are present.

Consequences

Following ratification, the RP becomes binding against all creditors and the debtor maintains management of the business to execute it.

Conclusion

In practice, the RP procedure can be complicated and relatively few plans have been fully approved. In addition, it is usually too late for an RP to be approved at the bankruptcy stage.

Simplified bankruptcy procedure for small companies

Objective

The complexity, the delays and the high cost of the proceedings for the conclusion of bankruptcy have facilitated the legislation of a special, simplified and expedited procedure for small-value bankruptcies by virtue of articles 162 and 163(c) of the GrBC.

Criteria

The procedure is initiated upon a court’s decision, provided that the distressed debtor meets the criteria regarding the evaluation of the assets (up to €150,000), the turnover (up to €200,000) and the median number of employees (five) in the last financial year. Real estate assets will not prevent the initiation of the procedure (contrary to previously applicable provisions). The procedure in its entirety cannot exceed six years from the initial court’s ruling.

Conclusion

This simplified procedure has helped to create a more welcoming environment for small businesses that face bankruptcy, of which there are many in Greece.

Notes