The duty to file for insolvency sits above every other obligation once a German GmbH — Gesellschaft mit beschränkter Haftung, the German limited-liability company — becomes actually insolvent or over-indebted: § 15a of the Insolvenzordnung (InsO), Germany’s insolvency code, requires management to file without undue delay, with fixed maximum deadlines and with criminal and liability consequences once those deadlines pass. Who exactly is bound by that duty is less obvious than it first appears — it extends beyond the managing directors the moment a company is left with no acting management. The business groundwork behind every one of these deadlines is covered in the guide to cash flow forecasting.
This guide explains who is bound by the duty to file under § 15a InsO, exactly which deadlines apply, what happens when a filing is late — and how management keeps ahead of these deadlines in practice, instead of discovering them only in a crisis.
Legal note: This article explains the underlying business mechanics and sets out the broad statutory framework under German law. It is not legal advice and does not replace it. Whether a duty to file exists in a specific case, and whether a deadline is already running, is a legal assessment — bring in a law firm specialising in German insolvency and restructuring law early. This is specifically a feature of German law: filing duties and the deadlines attached to them differ by jurisdiction.
Who the duty to file binds
§ 15a (1) InsO addresses the duty to file, first, to the members of the representative body of a legal entity, or to its liquidators — for a GmbH, that means every individual managing director, regardless of how responsibilities are divided internally. Each managing director is personally obliged to see that a filing is made; pointing to a co-director’s area of responsibility does not discharge that person’s own duty.
Less widely known is the extension in § 15a (3) InsO for a company left without acting management: if a GmbH has no managing director currently in office — for instance because all directors were removed or resigned without replacements being appointed — the duty to file passes to every shareholder; for a stock corporation (AG) or a cooperative, to every member of the supervisory board. The only exception is for someone who genuinely had no knowledge of the insolvency, the over-indebtedness, or the absence of management. In practice, this means stepping down from management during a crisis shifts the duty — it does not remove it.
The deadlines: without undue delay, at the latest three or six weeks
German law sets two deadlines, depending on which insolvency ground has occurred:
- Actual insolvency (§ 17 InsO): filing at the latest three weeks after it occurs.
- Over-indebtedness (§ 19 InsO): filing at the latest six weeks after it occurs.
The operative phrase is “without undue delay, at the latest”: the three- and six-week periods are maximum deadlines for a genuine, realistic restructuring effort — not a period management is entitled to let run before filing. If it is already clear on day one that no restructuring will succeed within the window, the filing must be made immediately, not on the last possible day. Both deadlines also run from the moment actual insolvency or over-indebtedness actually arises — not from the day management notices it or brings in an advisor. Counting the deadline from the point of discovery rather than occurrence effectively grants extra time the law does not provide.
Consequences of filing late: criminal liability and personal liability
Filing late, not at all, or incorrectly in breach of § 15a InsO is a criminal offence:
- Intentional conduct: up to three years in prison or a fine.
- Negligent conduct: up to one year in prison or a fine.
One nuance applies to the charge that a filing was made “incorrectly”: that is only a criminal offence once the filing has been finally and conclusively rejected by the court as inadmissible — a filing that was merely submitted but deficient is not, on its own, enough for this offence.
Alongside criminal liability sits a second, independent risk: the payment restriction under § 15b InsO. Once actual insolvency or over-indebtedness has occurred, those bound by the duty to file are generally prohibited from making any further payments out of company assets; what remains permitted is essentially limited to payments in the ordinary course of business that keep the company running. If a payment is made anyway, those bound by the duty are personally liable to reimburse the company out of their own assets. And once the filing deadline has passed without a filing being made, payments are generally no longer considered consistent with the diligence of a prudent business leader — at that point, the reimbursement duty effectively catches every further payment. The full interaction between the duty to file and this payment restriction is covered in the guide to GmbH insolvency in Germany.
LiquidityLens builds the 13-week outlook with AI from your real bank transactions and open items — showing exactly when liquidity is heading into the critical range.
See the Liquidity Control SprintWhy § 18 InsO is different: no duty to file for imminent insolvency
A common misunderstanding: that imminent insolvency under § 18 InsO also triggers § 15a InsO. It does not. The duty to file arises exclusively from actual insolvency or over-indebtedness — where only imminent insolvency applies, only the company itself is entitled to file, and even that is a right, not a duty. This distinction has real practical consequences: as long as only a forecast points to possible insolvency months out, no three- or six-week deadline has started running yet. That window — between a visible risk and the actual start of the deadline — is exactly what opens access to preventive restructuring tools such as the StaRUG, which are no longer available once the actual duty to file has taken effect.
Staying ahead of the deadline: a continuous forecast as evidence
Because both deadlines run from the actual — not the noticed — occurrence of insolvency or over-indebtedness, the question management needs answered is not “what do we do when it happens” but “how do we notice it in time.” A continuously updated 13-week cash flow forecast sets expected receipts and payments against the available balance for every week and shows the low point in liquidity before it arrives — often weeks ahead, while there is still room to act.
That forecast is also the most defensible evidence if it comes to it: being able to document which figures were available on which date, and which measures were taken in response, shows the deadline was monitored continuously rather than missed. For a first, one-off read on the coming weeks without setting up ongoing software, the free 13-week forecast generator only needs two CSV exports of open receivables and payables plus the current bank balance to show the low point. For the bank conversation that almost always follows, the financial status view adds bank lines and their utilisation to the forecast.
A weekly grid for receipts and payments with an automatic low-point warning — the basis for your own documented monitoring.
Once a deadline has started running, every day counts. How management uses the weeks before filing, and when involving a lawyer becomes unavoidable, is covered in detail in the guide to GmbH insolvency in Germany.
Frequently asked questions
The most important questions on the duty to file for insolvency under German law are gathered at the end of this page.