OGH on service in insolvency proceedings

Oct 27, 2021 Benn-Ibler Rechtsanwälte

According to Section 257 para 2 of the Insolvency Code (Insolvenzordnung, IO), the consequences of the service already come into effect through the public announcement, even if the specific service has been omitted. Notwithstanding the individual service takes place before the public announcement, the time limits for appeal only start to run with the public announcement.

In the case at hand, the court of first instance initiated absorption proceedings. Upon application of a creditor, the court of first instance discontinued the absorption proceedings by order. This order was served individually to the appointed trustee, the debtor's representative, the creditor's representative and the two other creditors. A publication in the insolvency file was initially omitted and only took place five weeks after the individual service.

The debtor finally filed an appeal against the order for early discontinuation of the absorption proceedings. However, the appellate court dismissed the appeal as being too late, as the appeal period had already begun with the individual service.

The law determines whether individual service or service by public announcement is to be chosen. Sec. 211 para 4 IO provides for public announcement of the early termination of the absorption proceedings. According to case law, public announcement has the effect of service and sets the time limit for appeal in motion.

Sec. 257 para 2 IO expressly provides that if a special service is prescribed in addition to the public announcement, the consequences of the service "already" occur through the public announcement. The purpose of this provision is to allow the effect of the decisions to occur uniformly at a point in time recognisable to each party, in view of the nature of the insolvency proceedings as multi-party proceedings. In doing so, the legislature has also accepted that individual service will usually only take place after the public announcement and that this will in fact shorten the time for execution of the appeal somewhat. However, this is accepted because of the undeniable advantage of a uniform start of the appeal period.

In the opinion of the Supreme Court (Oberster Gerichthof), this interpretation of the law also applies to cases in which individual notifications have exceptionally been made before the public announcement. In any case, the time limit for appeal begins to run with the public announcement.

OGH 8 Ob 100/20v (14.09.2021)