Seite - 197 - in Austrian Law Journal, Band 2/2021

ALJ 2021 From debt to discharge 197 collective of creditors who receive aliquot satisfaction in the sense of the pari passu principle.144 Regarding insolvency creditors, the Austrian insolvency regime has established the principle of classless bankruptcy ("klassenloser Konkurs") in 1982. This means that, in general, neither public-law creditors nor employees of the debtor are given preferential treatment in insolvency proceedings.145 Insolvency claims with priority still exist only in certain areas of law, for example concerning the tenant's deposit in the insolvency of the landlord (§ 16b [3] MRG) or concerning those assets which can be allocated to an investment and risk community in the insolvency of a pension fund (§ 37 [4] PKG). B. Creditors with preferential treatment Creditors with a claim for segregation of property ("Aussonderungsgläubiger") have a right in rem or a personal right for segregation of an asset which is de facto in the insolvency estate but does not belong to the debtor in full or in part (§ 44 [1] IO). Grounds for segregation are, in particular, ownership and co-ownership.146 Pursuant to § 11 (1) IO, claims for segregation of property are in principle not affected by the initiation of insolvency proceedings (but see § 11 [2, 3] IO). Therefore, such claims do not qualify to participate in the insolvency proceedings; accordingly, persons entitled to segregation of property do not have the right to vote on a reorganisation plan or a settlement plan.147 Secured creditors ("Absonderungsgläubiger") have claims for preferential satisfaction from the sale of specific items that are part of the insolvency estate (so-called “separate estates”).148 Therefore insolvency creditors are excluded from the proceeds from such items up to the value of the claims of secured creditors; they participate only insofar as there is a surplus (so- called "Hyperocha") after the payment of the costs for the separate managing, realizing and distributing of the asset (“Sondermassekosten”) as well as the satisfaction of the secured creditors. Secured claims are in particular liens or withholding rights.149 In principle, these claims are not affected by the opening of insolvency proceedings (but see § 11 [2, 3] IO). In some cases, however, even secured creditors can be affected by insolvency proceedings: According to § 12 (1) IO, preferential claims for secured creditors newly acquired within the last 60 days prior to the opening of insolvency proceedings through enforcement for payment or for providing a security expire with the opening of insolvency proceedings; they are only 144 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 170; Nunner-Krautgasser in Nunner-Krautgasser/Reissner 1 (4). 145 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 179. 146 Kodek, Insolvenzrecht2 Rz 114; Mohr, Privatinsolvenz3 Rz 200; Schneider, Privatinsolvenz3 36; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 199 et seq; cf. Spitzer, Das persönliche Recht auf Aussonderung (2017) 13 et seq. 147 Mohr, Privatinsolvenz3 Rz 201; cf. Schneider, Privatinsolvenz3 37. 148 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 172; Kodek, Insolvenzrecht2 Rz 121; Mohr, Privatinsolvenz3 Rz 207; Schneider, Privatinsolvenz3 38. 149 Mohr, Privatinsolvenz3 Rz 207 et seq; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 212; Kodek, Insolvenzrecht2 Rz 121 et seq; cf. Schneider, Privatinsolvenz3 38 et seq.