Overview of the topic (Overview)
Filing claims in Polish insolvency proceedings is of central importance for German entrepreneurs and companies that maintain business relationships with Polish partners. This article provides a detailed, practice-oriented overview of the legal framework, procedural steps, and specific features of Polish insolvency law, particularly with regard to filing claims by foreign creditors. The focus is on documentation requirements, deadlines, types of proceedings (liquidation and restructuring), claim classification, tax aspects, and the practical challenges faced by German companies. The article is supplemented by concrete examples from practice, practical tips, an expanded FAQ section, and information on the costs of the proceedings, specifically tailored to the needs of German companies. The aim is to provide German entrepreneurs with the necessary information and tools to effectively assert their claims.
Fundamentals of Polish insolvency law
Polish insolvency law is governed by the Bankruptcy Law of February 28, 2003 (Prawo upadłościowe). Its aim is to collectively satisfy the creditors of an insolvent debtor while simultaneously allowing for the possibility of corporate restructuring. In Poland, a company is considered insolvent if it is either unable to pay its debts or over-indebted, with over-indebtedness being relevant only for limited liability companies. Insolvency occurs when a company can no longer meet its due obligations. Over-indebtedness exists when a company's assets have not covered its liabilities for at least 24 months.
Insolvency proceedings have two main forms: liquidation (likwidacja), in which the debtor's assets are liquidated, and restructuring (postępowanie restrukturyzacyjne), which aims at reorganizing the company. For German creditors, it is crucial to understand the differences between these procedures, as they significantly influence the chances of success, the priority of claims, and the process of filing claims.
Requirements for filing a claim
Filing a claim (zgłoszenie wierzytelności) is a key step in Polish insolvency proceedings. It serves to assert a creditor's claims against the insolvent debtor. According to Article 236 of the Polish Insolvency Code, a creditor wishing to participate in the proceedings must file their claim with the competent insolvency court within the prescribed time limit. Since 2021, filing has been exclusively electronic via the Polish online system KRZ (Krajowy Rejestr Zadłużonych). Written submissions are generally no longer permitted. The claim must meet certain requirements, including:
- Details of the creditor's identity (name, business or residence),
- Amount of the claim and any ancillary claims (e.g. interest),
- Indication of the value of non-monetary claims,
- Evidence of existing security interests (e.g. mortgages or liens),
- Attachment of evidence such as contracts, invoices or other documents in electronic form (PDF) or as an electronically signed document with a qualified signature (in accordance with the eIDAS Regulation).
Documents not written in Polish must be translated into Polish by a sworn translator. This is particularly important for German companies, as contracts and invoices are often written in German or English.
💡 Tip : Engage a certified translator early to avoid delays in filing your claim. Translation costs are part of the legal fees and may be reimbursable.
🔷 Practical advice : Make sure you have access to the KRZ system or hire a Polish lawyer to handle the electronic application for you, as paper-based submissions have not been accepted since 2021.
Classification of claims
Polish insolvency law divides claims into different classes, which determine the order of their satisfaction (Art. 342 Prawo upadłościowe). This classification is crucial for the prospects of success for German creditors:
a) Preferential claims (wierzytelności uprzywilejowane) : These include, for example, claims arising from employment relationships, tax debts, or certain secured claims (e.g., by mortgages or liens). These have priority and are satisfied first.
b) Unsecured claims : Most claims of German companies fall into this category. They are settled after preferred claims, which often results in a lower repayment rate.
c) Conditional claims (wierzytelności warunkowe) : Claims that depend on a condition (e.g., claims that are not yet due) are treated separately and can only be taken into account under certain circumstances.
d) Disputed claims : Claims whose amount or validity is disputed must be examined by the insolvency court. This can delay the proceedings.
The classification significantly influences the priority and the repayment rate. German creditors should therefore carefully examine which category their claim falls into and, if necessary, provide evidence of collateral or other privileges.
Types of legal proceedings and their significance for German creditors
Liquidation versus restructuring
Polish insolvency proceedings offer two main paths: liquidation and restructuring. Liquidation involves realizing the debtor's assets to proportionally satisfy creditors. This is often the case when restructuring the company is no longer feasible. The recovery rate for unsecured claims is frequently low in such cases, as preferential claims take precedence.
Restructuring proceedings, on the other hand, aim to continue the business and comprise four types of restructuring: the agreement confirmation procedure (postępowanie o zatwierdzenie układu), the accelerated agreement procedure (przyspieszone postępowanie układowe), the regular agreement procedure (postępowanie układowe), and the reorganization procedure (postępowanie sanacyjne). Each of these forms has specific rules for filing claims, and the deadline is not always 30 days. The exact timeframe depends on the type of procedure. These procedures require the approval of a majority of creditors and offer the chance of a higher repayment rate because the business continues to operate.
For German creditors, the choice of procedure is crucial, as it affects the amount of potential repayment, the priority of the claim, and the duration of the proceedings. In practice, restructuring proceedings often prove to be a better option for creditors, as they offer the possibility of achieving higher recovery rates in the long term.
Practical example: Restructuring of a Polish construction company
A German construction company had outstanding claims of PLN 150,000 against a Polish construction company that had run into financial difficulties. After restructuring proceedings were initiated, the German company filed its claim on time via the KRZ system and participated in the creditors' meeting. Through negotiations within the proceedings, a settlement was reached that provided for repayment of 70% of the claim within two years. Without participating in the proceedings, the German company might have received only a fraction of its claim.
🛠 Practical tip : Regularly check the Polish Insolvency Register (Krajowy Rejestr Sądowy) for entries concerning your business partner to be informed early about potential insolvency. Access is free and partially available in English: European e-Justice Portal.
Deadlines and notification in insolvency proceedings
The deadline for filing claims is a critical point for German creditors. According to Article 51, Paragraph 1, Point 4 of the Polish Insolvency Code, the deadline is generally 30 days from the publication of the opening of insolvency proceedings in the Polish Official Gazette of the Judiciary and Economic Affairs (Monitor Sądowy i Gospodarczy – MSG, the official insolvency publication of Poland), although the exact date may vary depending on the type of proceedings. This publication is also made by posting at the court or in the daily press.
Creditors are generally notified by the insolvency administrator, provided the creditor's address is known (Art. 171 para. 1 Polish Insolvency Code). In an international context, the insolvency administrator is obligated to inform foreign creditors using a European standard form, which also includes information on deadlines and requirements for filing claims. Nevertheless, it is advisable for German companies to proactively check the announcements in the Monitor Sądowy i Gospodarczy (MSG), as missed deadlines can lead to additional costs or the loss of claims.
💡 Tip : Use a professional advisor or lawyer with access to the National Debtors Register (Krajowy Rejestr Zadłużonych) to avoid missing the deadlines for filing claims.
Tax aspects: VAT adjustment for uncollectible receivables
For German companies operating in Poland, the tax treatment of uncollectible receivables is important. Under Polish law (Ustawa o VAT), creditors can, under certain conditions, request a correction of the declared value added tax (VAT) if a receivable is deemed uncollectible. This is generally the case if:
- The claim was recognized within the framework of insolvency proceedings, but could not be settled.
- The debtor's insolvency was confirmed by the court.
- The creditor submits the relevant evidence (e.g. insolvency order, claim registration).
The VAT correction must be applied for within two years of the invoice date. German companies should consult a Polish tax advisor to clarify the exact requirements and deadlines, as errors in the application process can lead to delays or rejections.
💡 Tip : Check the possibility of a VAT adjustment early on to minimize liquidity losses. A Polish tax advisor can help you compile the necessary documents and submit the application correctly.
Costs of filing a claim
The costs for filing a claim vary depending on the complexity of the process and the assistance provided. Typical costs include:
- Court fees : A fee is usually charged for filing a claim, which can range between 100 and 1,000 PLN depending on the type of procedure and the amount of the claim.
- Translation costs : Documents must be translated into Polish by a sworn translator. The costs range from 50 to 500 PLN, depending on the number of documents.
- Legal fees : A Polish lawyer with experience in insolvency law typically charges between 1,000 and 5,000 PLN, depending on the complexity of the case and the duration of the representation.
- Additional costs : If a claim is filed late, additional fees may be incurred for judicial review.
🛠 Practical tip : Factor in the costs for translations and legal support early on. In some cases, these costs can be claimed as part of the insolvency proceedings costs.
Challenges for German companies
Language barriers and legal differences
One of the biggest challenges for German companies is the language barrier, as all documents must be submitted in Polish. This requires not only translations but also an understanding of the formal requirements of Polish insolvency law. Furthermore, the procedures in Poland differ significantly from those in Germany in some respects. While in Germany the offsetting of claims is permitted under certain conditions (§§ 94 ff. InsO), this is more strictly regulated in Poland, and creditors must explicitly register their claims to be considered.
Practical example: Late filing of a claim
A German logistics company had a claim against a Polish freight forwarder for 80,000 PLN. Due to a lack of knowledge of Polish procedural regulations, the company missed the deadline for filing its claim. Although the late claim was accepted, the company had to bear the additional costs, which reduced the repayment rate. Engaging a Polish lawyer earlier would have avoided these costs.
🛠 Practical tip : Hire a Polish lawyer experienced in insolvency law to meet the formal requirements and avoid delays. Lawyers with access to the KRS (National Court Register) and land registry can also efficiently identify the debtor's assets.
Liability of managing directors and alternative solutions
If the insolvency estate is insufficient to satisfy claims, German creditors have the option of suing the managing directors of a Polish limited liability company (spółka z ograniczoną odpowiedzialnością) or the board members of a joint-stock company (spółka akcyjna) for delaying insolvency proceedings. According to Article 299 of the Polish Commercial Companies Code, these individuals are personally liable with their private assets if insolvency was not declared in a timely manner. However, this requires proof of the delay in filing for insolvency, which can be complex in practice.
Practical example: Managing director liability
A German trading company had outstanding claims against a Polish limited liability company (GmbH) whose insolvency assets were insufficient. Upon reviewing the documents, it was discovered that the managing director had failed to file for insolvency within the required timeframe. The German company filed a lawsuit against the managing director and was able to recover part of the claim from his personal assets.
🛠 Practical tip : Before concluding a contract, check the creditworthiness of your Polish business partner by consulting the Commercial Register (KRS) or by obtaining a certificate from the tax office (urząd skarbowy) confirming the absence of outstanding tax debts. This minimizes the risk of payment defaults.
Optimizing the claims filing process for German companies
To maximize their chances of success when filing a claim, German companies should take several strategic steps. First, it is important to assess the financial situation of their Polish business partner early on to identify any payment difficulties. This can be done by consulting the Polish Commercial Register (KRS) or obtaining business information. Furthermore, it is advisable to consult a Polish lawyer or insolvency advisor who is familiar with local conditions.
Working with an experienced consultant can not only ensure timely filing but also support negotiations in restructuring proceedings. Finally, German companies should consider the option of pre-pack liquidation, which has existed in Polish insolvency law since 2016. This allows for the sale of the company or its assets to an investor, potentially increasing the repayment rate for creditors.
FAQ section: Frequently asked questions about filing a claim
What happens if I miss the deadline for filing a claim?
A late claim filing is generally possible, but it incurs additional costs because the court must review the claim. According to Article 237 of the Polish Insolvency Code, the consideration of late claims depends on the filing date and the stage of the creditors' list compiled by the judge-commissioner. Late claims are usually only considered after the insolvency estate has been distributed to creditors who filed on time, which can significantly reduce the repayment rate. Therefore, checking deadlines early and engaging an advisor are essential.
Do I, as a German creditor, have to appear in person before the Polish court?
No, personal attendance is not required. Claims can be filed and communication with the insolvency administrator can be done electronically via the KRZ system. A Polish lawyer can also represent you at creditors' meetings and protect your interests.
What documents are required to file a claim?
In addition to the completed electronic registration form in the KRZ system, you must submit supporting documents such as contracts, invoices, or bank statements in electronic form (PDF) or as an electronically signed document with a qualified electronic signature (in accordance with the eIDAS Regulation). Documents in foreign languages must be translated into Polish by a sworn translator.
What is the difference between the creditors' committee and the creditors' meeting?
The creditors' meeting (zgromadzenie wierzycieli) is a gathering of all creditors who vote on important decisions in the insolvency proceedings, such as a restructuring plan. The creditors' committee (komitet wierzycieli) is a smaller group of creditors appointed to oversee the insolvency administrator and make certain decisions. Participation in the creditors' committee is voluntary but requires active involvement and is often undertaken by creditors with large claims.
Can I withdraw or change my claim?
Yes, a claim can be withdrawn or amended as long as the list of creditors has not yet been definitively confirmed by the insolvency court. Amendments or withdrawals must be submitted and justified via the KRZ system. Please note that this may incur additional costs, especially if the amendment is made after the regular deadline.
What priority does my claim have over other creditors?
The priority of your claim depends on its classification (see section "Classification of Claims"). Privileged claims (e.g., tax debts, wages, secured claims) take precedence over unsecured claims. To determine the exact priority, you should check the nature of your claim (secured, unsecured, conditional, disputed) and, if applicable, provide evidence of collateral.
Conclusion
Filing claims in Polish insolvency proceedings presents German entrepreneurs and companies with legal and organizational challenges. However, losses can be minimized and the chances of success maximized through early due diligence of business partners, engagement of a specialized lawyer, consideration of tax aspects such as VAT adjustments, and adherence to deadlines. The differences between liquidation and restructuring, the classification of claims, and the possibility of holding managing directors personally liable offer additional options for creditors. With a strategic approach and professional support, German companies can effectively enforce their claims and protect their economic interests in Poland.
Should you have any questions regarding the filing of claims in Polish insolvency proceedings, you can contact us by email at kontakt@kancelaria-pozniak.pl or by phone at +48 665 246 969 .