{"id":10865,"date":"2025-01-28T09:04:00","date_gmt":"2025-01-28T09:04:00","guid":{"rendered":"https:\/\/pmrsa.pl\/?p=10865"},"modified":"2025-03-17T13:17:49","modified_gmt":"2025-03-17T13:17:49","slug":"private-creditor-test-in-restructuring-proceedings-what-it-is-what-it-contains-what-functions-it-performs","status":"publish","type":"post","link":"https:\/\/pmrsa.pl\/en\/private-creditor-test-in-restructuring-proceedings-what-it-is-what-it-contains-what-functions-it-performs\/","title":{"rendered":"Private creditor test in restructuring proceedings \u2013 what is it? what does it contain? what functions does it perform?"},"content":{"rendered":"<p class=\"wp-block-paragraph\">The private creditor test is a document prepared as part of<a href=\"https:\/\/pmrsa.pl\/en\/company-restructuring\/\" title=\"\"> restructuring proceedings<\/a>, which is mandatory in a situation where, during the proceedings or during the implementation of the arrangement, the entrepreneur may be provided with support by the state or using public resources in any form. Although this document is dedicated primarily to public-law creditors, it is also a valuable source of information for other creditors, especially in the context of making decisions regarding the acceptance of arrangement proposals.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In this article, we will try to explain to you what the private creditor test actually is and what its significance is for the broadly understood participants in the proceedings.<\/p>\n\n\n\n<div class=\"wp-block-aioseo-table-of-contents\"><ul><li><a href=\"#aioseo-kilka-slow-o-artykule-posluchaj\">A few words about the article - Listen<\/a><\/li><li><a href=\"#aioseo-czym-jest-test-prywatnego-wierzyciela\">What is the private creditor test?<\/a><\/li><li><a href=\"#aioseo-kiedy-sporzadzany-jest-test-prywatnego-wierzyciela-i-czy-jest-on-obligatoryjny-w-kazdym-postepowaniu\">When is the private creditor test prepared and is it mandatory in all proceedings?<\/a><\/li><li><a href=\"#aioseo-co-zawiera-test-prywatnego-wierzyciela\">What does the private creditor test involve?<\/a><\/li><li><a href=\"#aioseo-odbiorcy-dokumentu\">Recipients of the document.<\/a><\/li><li><a href=\"#aioseo-wynik-testu-prywatnego-wierzyciela\">Private Creditor Test Result<\/a><\/li><\/ul><\/div>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<h4 class=\"wp-block-heading has-text-align-center\" id=\"aioseo-kilka-slow-o-artykule-posluchaj\">A few words about the article - Listen<\/h4>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<figure class=\"wp-block-audio\"><audio controls src=\"https:\/\/pmrsa.pl\/wp-content\/uploads\/2025\/01\/Test-prywatnego-wierzyciela-w-postepowaniu-restruk.mp3\"><\/audio><\/figure>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<h4 class=\"wp-block-heading\" id=\"aioseo-czym-jest-test-prywatnego-wierzyciela\">What is the private creditor test?<\/h4>\n\n\n\n<p class=\"wp-block-paragraph\">The private creditor test, as defined in the Restructuring Law, is an assessment, prepared in the restructuring proceedings, of the actions of a public creditor planned in the restructuring proceedings and during and as part of the implementation of the arrangement, made in order to determine whether the public creditor behaves in a given case like a private creditor operating under normal market conditions, in particular whether the private creditor would accept the terms of repayment of liabilities provided for in the arrangement proposals.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The key question is therefore whether a private creditor would accept the same conditions <a href=\"https:\/\/pmrsa.pl\/en\/how-we-can-help-you\/\" title=\"\">repayment of liabilities<\/a>, which were provided for in the arrangement proposals for the public-law creditor. In practice, this means that the public creditor should make decisions based on market criteria, which is to prevent situations in which public support could lead to unjustified benefits at the expense of other entities operating on the market.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\" id=\"aioseo-kiedy-sporzadzany-jest-test-prywatnego-wierzyciela-i-czy-jest-on-obligatoryjny-w-kazdym-postepowaniu\"><strong>When is the private creditor test prepared and is it mandatory in all proceedings?<\/strong><\/h4>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<figure class=\"wp-block-image size-large\"><img fetchpriority=\"high\" decoding=\"async\" width=\"1024\" height=\"421\" src=\"https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/11\/bh3-1024x421.jpg\" alt=\"\" class=\"wp-image-7903\" title=\"\" srcset=\"https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/11\/bh3-1024x421.jpg 1024w, https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/11\/bh3-300x123.jpg 300w, https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/11\/bh3-768x316.jpg 768w, https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/11\/bh3.jpg 1337w\" sizes=\"(max-width: 1024px) 100vw, 1024px\" \/><\/figure>\n\n\n\n<p class=\"wp-block-paragraph\">The private creditor test is mandatory if, during the proceedings or at the stage of implementation of the arrangement, the debtor may receive support from the state as part of the restructuring proceedings, i.e., in principle, whenever public-law creditors participate in the proceedings. These provisions aim to ensure that all forms of support that may be granted to the entrepreneur are consistent with the principles of state aid and do not lead to distortion of competition on the market. This support may take various forms, including:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Reduction of liabilities through an arrangement, which means that the entrepreneur&#039;s debt may be reduced as a result of an agreement with creditors.<\/li>\n\n\n\n<li>Spreading the repayment into instalments, which allows the entrepreneur to settle their obligations in a more affordable way, instead of paying the entire amount at once.<\/li>\n\n\n\n<li>Postponement of the deadline for fulfilling obligations, thanks to which the entrepreneur gains additional time to fulfill his financial obligations.<\/li>\n\n\n\n<li>Suspension of enforcement proceedings, which is intended to protect the entrepreneur against immediate actions by creditors that could threaten his further activity.<\/li>\n\n\n\n<li>Granting loans, credits, guarantees or sureties, which may support the financial liquidity of the entrepreneur.<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\">In the context of the above forms of support, the restructuring plan must additionally contain a private creditor test, the purpose of which is to assess whether the support provided during the restructuring proceedings may be considered state aid, and therefore it should be drawn up within the deadlines specified for this document, i.e. as follows:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 in accelerated arrangement proceedings, within 2 weeks of their opening;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 in composition proceedings, within 30 days of their opening;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 in restructuring proceedings, within 30 days of their opening, which period may be extended by the judge-commissioner up to three months in justified cases;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">- in the proceedings for approval of the arrangement <a href=\"https:\/\/pmrsa.pl\/en\/what-is-the-restructuring-plan-and-what-does-it-contain\/\" title=\"\">restructuring plan <\/a>it is submitted only together with the application for approval of the arrangement \u2013 i.e. after the votes have been collected. Due to the fact that the private creditor test is a document necessary for public-law creditors to assess the issue of the occurrence of state aid and they will often not be able to vote without it, it is postulated that the document be delivered to them\/made available in the electronic system at the latest together with the ballot papers.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\" id=\"aioseo-co-zawiera-test-prywatnego-wierzyciela\"><strong>What does the private creditor test involve?<\/strong><\/h4>\n\n\n\n<p class=\"wp-block-paragraph\">The information capacity of the document is specified in Article 140 paragraph 3 of the Law, according to which the private creditor test includes:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 information on the expected degree of satisfaction of individual public creditors under the arrangement, based on data on the amount of the debtor&#039;s liabilities to individual public creditors covered by the arrangement and the content <a href=\"https:\/\/pmrsa.pl\/en\/arrangement-proposals-the-most-important-document-in-restructuring-proceedings\/\" title=\"\">arrangement proposals <\/a>towards individual public-law creditors;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 information on the expected degree of satisfaction of individual public creditors in bankruptcy proceedings, which would be conducted against the debtor based on an analysis of the value of the debtor\u2019s assets with an indication of encumbrances, the expected amount of costs of bankruptcy proceedings, the category in which individual public creditors would be satisfied in bankruptcy proceedings.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The result of the analysis is an assessment of whether the public creditor&#039;s claims will be satisfied to a greater extent in the event of concluding and implementing an arrangement or in bankruptcy proceedings.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\" id=\"aioseo-odbiorcy-dokumentu\"><strong>Document recipients<\/strong>.<\/h4>\n\n\n\n<p class=\"wp-block-paragraph\">Despite the fact that the Act indicates public-law entities as the dedicated recipients of the private creditor test, practice has shown that this is a document that fulfills an important informational role also for other participants in the proceedings, who can be divided into groups with specific interests and expectations towards the restructuring or bankruptcy process. In addition to public-law entities, the following should be mentioned:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 secured creditors \u2013 they have the right to satisfy their claims from the debtor\u2019s assets that have been secured. The key issue is the assessment of the value of the assets secured and the justification for entering into an arrangement. In a situation where the value of the security exceeds the value of the claim, the creditor may not be willing to conclude an arrangement that provides for a lower degree of satisfaction;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 other creditors who do not have security \u2013 based on the document, they can assess their chances of satisfying their claims under restructuring proceedings compared to potential bankruptcy proceedings. In the case of restructuring, it is possible to negotiate the terms of repayment and obtain a better position compared to bankruptcy proceedings, which often leads to a significant reduction in the value of satisfaction due to the liquidation discount.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">\u2013 other creditors who are not covered by the arrangement by operation of law (e.g. employees, FGSP) \u2013 based on the analysis, they may decide on the justification for giving consent to the coverage of their receivables by the arrangement. If the debtor is in a difficult financial situation, creditors must consider the consequences of their decision, including the possibility of losing claims and the impact on their further actions in the context of enforcement.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\" id=\"aioseo-wynik-testu-prywatnego-wierzyciela\"><strong>Private Creditor Test Result<\/strong><\/h4>\n\n\n\n<p class=\"wp-block-paragraph\">Support granted to an entrepreneur that meets the private creditor test does not violate the Community principle of fair competition and is not treated as public aid. The assessment of whether a given support meets the private creditor criteria is objective in nature and is based solely on market principles. For this reason, the issue of public aid in the context of restructuring proceedings only arises when any form of support does not meet the private creditor test. Only in such a case can the support be considered as qualified public aid.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><a href=\"https:\/\/pmrsa.pl\/en\/about-us\/\" title=\"\">To sum up<\/a>, these provisions aim to ensure transparency and equality in access to public support and to protect competition rules, which are key to the functioning of markets. These actions also aim to minimize the risk of abuse in the use of public aid, which is particularly important in the context of enterprise restructuring.<\/p>","protected":false},"excerpt":{"rendered":"<p>The private creditor test is a document prepared as part of restructuring proceedings. It is mandatory in situations where, during the proceedings or during the implementation of an arrangement, the entrepreneur may be provided with support from the state or through the use of public resources in any form. Although this document is primarily intended for public creditors, it also serves as a valuable source of information for other creditors, particularly in the context of making decisions regarding the acceptance of arrangement proposals. In this article, we will try to explain what the private creditor test actually is and its importance for the broadly understood participants in the proceedings. A few words about the article - Listen. What is the private creditor test? The private creditor test, as defined in the Restructuring Law, is an assessment, prepared during restructuring proceedings, of the actions of a public creditor planned during the restructuring proceedings and as part of the implementation of the arrangement. The purpose of this assessment is to determine whether the public creditor behaves in a given case like a private creditor operating under normal market conditions, in particular whether a private creditor would accept the repayment terms provided for in the arrangement proposals. The key question, therefore, is whether a private creditor would accept the same repayment terms as those provided for in the arrangement proposals for the public creditor. In practice, this means that public creditors should make decisions based on market criteria, thereby preventing situations in which public support could lead to unjustified benefits at the expense of other market players. When is the private creditor test developed and is it mandatory in all proceedings? The private creditor test is mandatory if, during the proceedings or at the stage of arrangement implementation, the debtor may receive state support as part of restructuring proceedings, which is generally always the case when public creditors are involved. These provisions are intended to ensure that all forms of support that may be provided to entrepreneurs comply with state aid rules and do not distort market competition. This support can take various forms, including: In the context of the above forms of support, the restructuring plan must additionally include a private creditor test, the purpose of which is to assess whether support provided during restructuring proceedings can be considered state aid. Therefore, it should be prepared within the deadlines specified for this document, i.e., in the following order: \u2013 in accelerated arrangement proceedings, within two weeks of their opening; \u2013 in arrangement proceedings, within 30 days of their opening; \u2013 in remedial proceedings, within 30 days of their opening, which may be extended by the judge-commissioner in justified cases up to three months; \u2013 in arrangement approval proceedings, the restructuring plan is submitted only together with the application for arrangement approval \u2013 i.e., after the votes have been collected. Due to the fact that the private creditor test is a document necessary for public creditors to assess the issue of state aid, and without it they will often be unable to vote, it is recommended that the document be delivered to them\/made available in the IT system at the latest together with the ballots. What does the private creditor test include? The document&#039;s information capacity is defined by Article 140 paragraph 3 of the Bankruptcy Law, according to which the private creditor test includes: \u2013 information on the expected degree of satisfaction of individual public creditors under the arrangement, based on data regarding the amount of the debtor&#039;s liabilities to individual public creditors covered by the arrangement and the content of arrangement proposals for individual public creditors; \u2013 information on the expected degree of satisfaction of individual public creditors in bankruptcy proceedings, which would be conducted against the debtor, based on an analysis of the value of the debtor&#039;s assets, indicating encumbrances, the expected amount of bankruptcy costs, and the category in which individual public creditors would be satisfied in bankruptcy proceedings. The result of the analysis is an assessment of whether the public creditor&#039;s claims would be satisfied to a greater extent in the event of the conclusion and execution of the arrangement or in bankruptcy proceedings. Recipients of the document. Although the Act designates public-law entities as the designated recipients of the private creditor test, practice has shown that this document also serves as a significant informational tool for other participants in the proceedings, who can be divided into groups with specific interests and expectations regarding the restructuring or bankruptcy process. In addition to public-law entities, the following should be mentioned: \u2013 secured creditors \u2013 they have the right to satisfy their claims from the debtor&#039;s assets, which are secured. A key issue is assessing the value of the secured assets and the advisability of entering into an arrangement. If the value of the security exceeds the value of the claim, the creditor may be reluctant to enter into an arrangement providing for a lower degree of satisfaction; \u2013 other creditors who do not have security \u2013 based on the document, they can assess their chances of satisfying their claims under restructuring proceedings compared to potential bankruptcy proceedings. In the case of restructuring, it is possible to negotiate repayment terms and obtain a better position compared to bankruptcy proceedings, which often leads to a significant reduction in the value of the satisfaction due to the liquidation discount. \u2013 Other creditors who are not legally covered by the arrangement (e.g., employees, FGSP) \u2013 based on the analysis, they may decide whether to consent to the inclusion of their claims in the arrangement. If the debtor is in financial difficulty, creditors must consider the consequences of their decision, including the possibility of losing their claims and the impact on their further actions in the context of enforcement. Result of the private creditor test: Support provided to entrepreneurs that meets the private creditor test does not violate the Community principle of fair competition and is not treated as state aid. The assessment of whether a given support meets the private creditor criteria is objective and based solely on market principles. Therefore, the issue of state aid in the context of restructuring proceedings arises only if any form of support fails the private creditor test. Only then can the support be considered qualified state aid. In summary, these provisions aim to ensure transparency and equal access to public support and protect the principles of competition, which are crucial for the functioning of markets. These activities are also aimed at minimizing the risk of abuse in the use of public aid, which is particularly important in the context of enterprise restructuring.<\/p>","protected":false},"author":14,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"categories":[19],"tags":[],"ppma_author":[33],"class_list":["post-10865","post","type-post","status-publish","format-standard","hentry","category-blog"],"authors":[{"term_id":33,"user_id":14,"is_guest":0,"slug":"m-zarownapmr-restructuring-pl","display_name":"Marta Zar\u00f3wna","avatar_url":{"url":"https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/09\/user03-1.jpg","url2x":"https:\/\/pmrsa.pl\/wp-content\/uploads\/2024\/09\/user03-1.jpg"},"0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/posts\/10865","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/users\/14"}],"replies":[{"embeddable":true,"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/comments?post=10865"}],"version-history":[{"count":0,"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/posts\/10865\/revisions"}],"wp:attachment":[{"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/media?parent=10865"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/categories?post=10865"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/tags?post=10865"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/pmrsa.pl\/en\/wp-json\/wp\/v2\/ppma_author?post=10865"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}