COUNTRY-SPECIFIC INFORMATION WHEN INVESTIGATNG THE COMI OF AN INDIVIDUAL WITH A CONNECTION WITH GERMANY
When dealing with the affairs of a bankrupt with a connection with Germany, the official receiver should be concerned to establish that the order ought to have been made in England and Wales. The test to be applied is whether the bankrupt’s COMI is in England and Wales.
This Part of the chapter provides advice and information to assist the official receiver with investigating the veracity of the stated COMI where the bankrupt has a connection with Germany. The Part should be read in conjunction with the aforementioned Parts.
The Service has experienced a rise in the number of bankruptcy petitions presented by German nationals stating that their COMI is, at the date of the presentation of the petition, England and Wales. Typically, it appears that the individuals have been resident in England and Wales for less than 12 months, and there is a significant minority where it appears that there has been no actual change of COMI from Germany and the presentation of the petition is a sham to take advantage of more favourable insolvency legislation.
Personal insolvency proceedings might only be opened in Germany where the debtor can demonstrate that they have sufficient assets available to meet the costs of the administration, although a creditor might open the proceedings. Discharge from bankruptcy is by order of the court and the debtor is not normally released from the proceedings for a minimum of seven years. During the period the debtor is an undischarged bankrupt they are subject to after acquired property provisions where some assets will automatically pass to their bankruptcy estate. Income payments provisions are based upon a minimum subsistence level rather than reasonable domestic needs.
The official receiver should obtain evidence that the bankrupt has informed his/her creditors of his/her move to the UK – including the date of that notice.
The official receiver may also consider making enquiries of the bankrupt’s creditors as to when they were advised of the move to the UK, and also to ask them if they have any information to suggest that the bankrupt is living or working outside the UK. In reality it is more likely that the creditors will take steps to inform the official receiver should they believe that the stated move to the UK is not genuine. The official receiver can seek information by direct correspondence or via the report to creditors.
In Germany, when the resident moves to a new area they are legally required, generally within two weeks of changing residence, to report their new residence to the local registration office (“Meldebehorde” or “Einwohnermeldeamt “). In Germany, this process is known as “Anmeldepflicht”.
When the resident moves abroad, he/she must de-register (this process is known as “Abmeldepficht”). The resident is issued with a certificate confirming that they have informed the relevant authority that they have left the area and stating their new address. The official receiver should consider obtaining a copy of the certificate from the bankrupt or, where necessary, from the authority concerned as evidence of a re-location to the UK. The date of the certificate should be compared to that on the petition.
Where a certificate is required for a former citizen of Germany, application should be made to the local registration office at the last town of residence in Germany:
There is usually a fee of between 2.50 Euros and 25 Euros for each enquiry.
The postcode can be established by reference to http://www.deutschepost.de/dpag?tab=1&skin=hi&check=yes&lang=de_EN&xmlFile=828#$35197. The postcode relates to the town, rather than (as in the UK) a part of a town.
Where the official receiver holds information which suggests that the relocation to the UK has been temporary or not occurred at all he/she should consider making application to the court for a review of the bankruptcy order (see paragraph 43.0.17 for full details of this process).
Where the enquiries of the official receiver into the veracity of the stated COMI leads to an annulment of the bankruptcy order, the official receiver should issue a letter to the (former) bankrupt’s creditors setting out the position.
In most cases there will be insufficient evidence to show that the bankrupt’s COMI is not in the UK.
The letter attached at Annex A7 may be used where enquiries are received from Germany enquiring into the reasons for the bankruptcy order being made in England and Wales. Annex A8 is an English language version of Annex A7.
The following Parts of this chapter give advice and information on dealing with the bankrupt’s affairs in Germany.