Seite - 191 - in Austrian Law Journal, Band 2/2021

ALJ 2021 From debt to discharge 191 under § 190 (2) IO for individual activities that are associated with particular difficulties. This could include, for example, the conduct of proceedings regarding the submitted claims.83 Otherwise, the court has no possibility to extend or (additionally) limit the debtor's powers in self-administration; it can only withdraw self-administration.84 This decision has to be made by the insolvency court.85 Pursuant to § 186 (2) IO, the court can only withdraw the debtor's self-administration in the following cases: (1) If the debtor's financial circumstances are not transparent, (2) if it is to be expected that the (continuation of) self-administration will lead to a disadvantage for the creditors or (3) if the debtor does not submit an exact inventory of assets. In case of doubt, the court shall not withdraw self-administration from the debtor.86 The appointment of an insolvency administrator takes effect on the date of the announcement of the appointment decision. If the debtor's self-administration is withdrawn, the power of disposition over the insolvency estate is transferred to the insolvency administrator.87 All activities that are not covered by the debtor's self-administration are carried out by the insolvency court pursuant to § 190 (3) IO.88 The only exception is the power of avoidance which can neither be given to the court nor to the debtor himself;89 so in the absence of an insolvency administrator the creditors have the power of avoidance pursuant to § 189 IO. In the proceedings for income levy, the court must appoint a trustee ("Treuhänder").90 Pursuant to § 203 (1) IO, the trustee has to invest and distribute the amount he obtains to the creditors; however, the trustee may instead instruct the debtor to realise the assets him- or herself (§ 203 [2] IO). In addition to the realisation of assets, the trustee may also be instructed by the court to check whether the debtor is fulfilling his obligations.91 E. Requirements to enter into consumer insolvency proceedings Insolvency proceedings may only be initiated upon application, which can be submitted by a creditor or by the debtor, the latter being obliged to file for insolvency pursuant to § 69 (2) IO.92 The initiation of insolvency proceedings requires the debtor's insolvency ("Zahlungsunfähigkeit") as well as (in principle) cost-covering assets ("kostendeckendes Vermögen").93 Impending insolvency is only a reason for initiating reorganisation proceedings 83 Mohr, Privatinsolvenz3 Rz 91; Kodek, Insolvenzrecht2 Rz 574. 84 Cf. Schneider in Koller/Lovrek/Spitzer, IO § 186 Rz 4; Mohr, Privatinsolvenz3 Rz 144. 85 Kodek, Insolvenzrecht2 Rz 573; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 498; Mohr, Privatinsolvenz3 Rz 134; Schneider, Privatinsolvenz3 29. 86 OGH 8 Ob 114/16x ZIK 2017/49 = ecolex 2017/99; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 498. 87 Mohr, Privatinsolvenz3 Rz 137 et seq. 88 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 500; Kodek, Privatkonkurs2 Rz 125; Kodek, Insolvenzrecht2 Rz 562. 89 Kodek, Insolvenzrecht2 Rz 571. 90 Schneider, Privatinsolvenz3 193; Mohr, Privatinsolvenz3 Rz 557. 91 Kodek, Insolvenzrecht2 Rz 649. 92 Mohr, Privatinsolvenz3 Rz 45; Kodek, Insolvenzrecht2 Rz 208. 93 Rechberger/Seeber/Thurner, Insolvenzrecht3 Rz 68; Mohr, Privatinsolvenz3 Rz 38; Schneider, Privatinsolvenz3 10.