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Düsseldorf Higher Regional Court on Creditors’ Disclosure Duties in Insolvency Avoidance
The Higher Regional Court of Düsseldorf recently published an advisory order issued on June 8, 2026, to the parties in an appeal proceeding pending there (I-12 U 48/25) (ZRI 2026, 717–720). In the underlying proceedings giving rise to the appeal, the insolvency administrator had requested information from a creditor regarding transactions with which he intended to prove the prerequisites for the insolvency avoidance action filed against that creditor. The Regional Court had granted the request for information, and in its advisory decision, the Higher Regional Court indicated that it would likely dismiss the appeal filed against this decision, thereby effectively upholding the Regional Court’s ruling. At first glance, this could easily give the false impression that the court had, as it were, compelled the creditor to “incriminate himself.”
Decision Can Easily Be Misunderstood
In fact, however, the opposite is true: With its decision, the Higher Regional Court of Düsseldorf reaffirms its adherence to the case law of the Federal Court of Justice on this issue and states that such access to third parties is not permitted based on mere suspicion:
“The insolvency administrator’s right to information against the debtor’s creditors regarding potential avoidance claims—which arises from Section 242 of the German Civil Code (BGB) in the absence of specific statutory provisions—presupposes that an avoidance claim, and thus an obligation to return property pursuant to Section 143 of the Insolvency Code (InsO) is established on the merits, and the only remaining issue is the precise determination of the nature and scope of the claim. There is no right to information against persons who are merely suspected of having acquired something from the debtor in a manner subject to avoidance”. (Higher Regional Court of Düsseldorf, loc. cit., 2nd headnote; BGH, see also judgment of August 13, 2009 – IX ZR 58/06).
Creditors who have come under the insolvency administrator’s scrutiny should therefore not be unsettled by the decision. The Senate is not, for example, expanding the scope of access, but rather deliberately drawing a narrow line regarding requests for information.
No Carte Blanche for Fishing Expeditions
This is the crucial core of the decision: The trustee cannot act on mere suspicion and compel the affected creditors to cooperate in substantiating a claim against themselves. This can only occur in very exceptional cases and only if the administrator has already obtained credible information from other sources or if the creditor, through careless handling of its internal information, has placed itself in the predicament where the claim arising from the insolvency challenge is already substantiated on its merits.
Even if this condition is met, however, the trustee must first exhaust all other available sources of information before he can assert the right to information derived from the general principle of good faith introduced into the law via § 242 BGB.
Silence Is Golden
The message to creditors is therefore clear: Do not let yourself be unsettled; there is no general obligation to disclose internal information to the insolvency administrator. Under no circumstances should you, as a creditor, grant access to your internal information regarding the receipt of payments from contractual partners who later became insolvent without first consulting a qualified expert. Whether—as in the case heard before the Higher Regional Court of Düsseldorf—one of the rare exceptions applies in which information must be disclosed can then be carefully examined together.
The expert members of the PASCHEN Insolvency Law Team are happy to assist you in such cases.