When the rules were introduced in 2022, the ambition was to enable viable companies in financial difficulties to turn things around before it was too late. Three years later, the reality has become more nuanced. Many have found the process to be technically complex and lacking in transparency, especially for small and medium-sized enterprises.
With the Ministry of Justice's ongoing evaluation, now is a good time to take a closer look at: What distinguishes preventive Restructuring ordinary Restructuring? What pitfalls and opportunities does the model present? And how can upcoming legislative changes make the rules more practical?
Den 17. juli 2022 trådte reglerne om forebyggende rekonstruktion i kraft som en del af implementeringen af EU’s rekonstruktions- og insolvensdirektiv (EU-direktiv 2019/1023). Formålet var at give nødlidende, men levedygtige virksomheder mulighed for at blive rekonstrueret, inden virksomheden blev insolvent – og dermed undgå konkurs.
I denne artikel ser vi nærmere på:
- (i) reglerne og indledning af forebyggende rekonstruktion,
- (ii) hvordan de adskiller sig fra ”almindelig” rekonstruktion, og
- (iii) hvilke ændringer der kan være på vej som følge af Justitsministeriets høring.
Preventive Restructuring what are the rules?
Preventive Restructuring a set of rules that allows companies to restructure and restore their finances before they become insolvent. This typically takes place through agreements with creditors, restructuring, or the sale of assets—all while the company continues to operate.
The rules can be applied by businesses – typically companies – and preventive Restructuring only be initiated by the debtor itself.
In order to initiate preventive Restructuring , one of two conditions under section 9a of the Bankruptcy Act Restructuring be met:
- The debtor is insolvent, or
- Due to financial difficulties, the debtor must be likely to become insolvent.
The latter is a significant difference from bankruptcy and ordinary Restructuring, where the debtor must be insolvent.
Two models: with or without prohibition of compensation
Preventive Restructuring include a stay of enforcement if requested by the debtor either at the outset or during the process, or without a stay of enforcement.
Et fyldestgørelsesforbud betyder, at skyldneren opnår beskyttelse mod individualforfølgning fra enkelte kreditorer, og at der skal udpeges en rekonstruktør (typisk en advokat) til at bistå med rekonstruktionen. Derudover skal skyldnerens kreditorer underrettes, ligesom der indkaldes til møde i skifteretten senest fire uger efter mhp. fremlæggelse af en rekonstruktionsplan.
Hvis der ikke begæres fyldestgørelsesforbud, orienteres kreditorerne ikke om den forebyggende rekonstruktion, og der kan fortsat foretages udlæg og ske inddrivelse hos skyldneren via fogedretten. Der er ikke pligt til at udpege en rekonstruktør, (selvom der, typisk og mest hensigtsmæssigt vil blive udpeget en også i sager uden fyldestgørelsesforbud) og først når rekonstruktionsforslaget fremsættes, orienteres kreditorerne og indkaldes til møde.
The latter model allows for a more discreet process, but with the risk that creditors may take legal action against the debtor.
The establishment of a prohibition on satisfaction means that a deadline is set in accordance with section 1 of the Bankruptcy Act, and debts incurred with the consent of the reconstructor are given the status of claims against the estate in accordance with section 94 of the Bankruptcy Act.
The reconstruction proposal
Uanset hvilken model der anvendes, skal skyldneren fremsætte et rekonstruktionsforslag. Forslaget skal sendes til kreditorerne senest fem hverdage før det skifteretsmøde, hvor forslaget behandles. Forslaget kan indeholde forskellige rekonstruktionsskridt – fx tvangsakkord, kapitaltilførsel eller virksomhedsoverdragelse, som det kendes fra det almindelige rekonstruktionsinstitut.
Special voting rules for larger companies
For larger companies, special rules apply when voting on the reconstruction proposal. A company is considered "large" if it meets two of the following three criteria:
- Balance sheet total exceeding DKK 156 million.
- Net revenue exceeding DKK 313 million.
- More than 250 full-time employees.
In such cases, creditors must be divided into voting classes with overlapping interests, e.g., suppliers, employee claims, public sector debt, etc. Each class votes separately, and the proposal is adopted if a majority of the classes vote in favor, regardless of the size of the debt in the creditor class in question.
If the debtor company does not meet the above criteria, it may request that the aforementioned voting rules, whereby votes are cast according to creditor classes, be applied.
Preventive Restructuring . Restructuring
The rules governing preventive Restructuring , in many respects, the same legal effects as ordinary Restructuring, but offer a more discreet option for dealing with the debtor's financial situation.
However Restructuring unlike in ordinary Restructuring proceedings Restructuring in preventive Restructuring proceedings there Restructuring no vote on the restructuring plan proposed by the debtor, but only on the final restructuring proposal.
In addition, the legal effects of preventive Restructuring are less intrusive Restructuring certain respects for the debtor's creditors and co-contractors, as there is no certainty during preventive restructuring proceedings that the debtor is insolvent, but only a risk that the debtor will become insolvent.
The rules are up for review – what might change?
In August 2025, the Ministry of Justice initiated an evaluation of the rules. In their joint consultation response, the Danish Bar and Law Society and the Danish Association of Insolvency Lawyers highlighted several key points, some of which are mentioned below.
In October 2025, the Ministry of Justice submitted a consultation paper and consultation responses to the Danish Parliament's Legal Affairs Committee. Any changes are expected to be presented as a bill during 2026.
Increased creditor orientation
I dag kan kreditorerne i sager uden fuldbyrdelsesforbud risikere, at de først bliver orienteret fem dage før forslagsmødet. Det kan skabe forvirring, når skifteretten allerede har indkaldt til møde 14 dage før.
Mass claims without a deadline
Under the current rules, new debt can only obtain mass claim status under section 94 of the Bankruptcy Act if a prohibition on satisfaction has been imposed and a deadline has thus been set. This means that suppliers, lenders, and other creditors in cases without a prohibition on satisfaction risk losing their priority rights, even if the debt has been approved by a reconstructor.
It has been proposed that section 94 be amended so that mass claims may arise regardless of the establishment of a deadline for satisfaction in the event of a prohibition on satisfaction if the debt has been approved by the reconstructor.
Simplification and adaptation
Even when they were adopted, the rules were criticized for being too complex and opaque. The consultation responses express a desire for simplification to make the scheme more usable, especially for small and medium-sized enterprises.
At CLEMENS, we follow developments closely and help companies assess when and how preventive Restructuring sense – and how to navigate the process safely.
We often hear this about preventive Restructuring:
Preventive Restructuring be a relevant solution when a company is under financial pressure but still has a sustainable business foundation.
The model makes it possible to intervene before the company becomes insolvent and thus potentially avoid bankruptcy. It creates opportunities to restructure debt, adapt the organization, or enter into agreements with creditors in a timely manner.
Yes. One of the prerequisites for initiating preventive Restructuring that there is a likelihood of future insolvency as a result of the company's financial difficulties.
The company does not need to be insolvent in the traditional sense, but must be in a situation where there is a real risk that it will become so.
The difference lies in the degree of protection and visibility in the process:
With prohibition of satisfaction:
- Creditors may not collect their claims or take legal action, such as attachment or foreclosure.
- Creditors are informed early in the process.
- The bankruptcy court appoints a reconstructor, and the process becomes more formal and structured.
- The ban gives the company peace of mind and an overview of its obligations.
Without prohibition of satisfaction:
- Creditors may continue to attempt to collect their claims.
- Creditors are only informed late in the process, and there is no obligation to appoint a reconstructor.
- The process can be organized more discreetly, but without the same level of protection.
The choice between the two models depends, among other things, on the company's situation and whether it wants peace of mind to act or discretion during the process.
The reconstruction plan is drawn up early in the process and serves as a strategy for how the company will handle its financial situation. It forms the basis for further work, but does not require approval by creditors.
The reconstruction proposal is the final solution presented to creditors for a vote. The proposal may include, for example, composition agreements, capital injections, or divestment of assets, and is the document that the bankruptcy court ultimately considers.
As a rule, the company can continue its operations throughout the process. Preventive Restructuring less intrusive than traditional Restructuring because the debtor is not necessarily insolvent.
However, contracts and collaborations may be affected, for example if counterparties assess that their legal position has changed. It is therefore important to have a clear plan for communication and handling key suppliers and customers in the process.
Mass claims mean that certain claims take precedence if a company later goes bankrupt.
Today, new debt can only obtain this priority if a stay of enforcement has been imposed – and thus a deadline set. This may deter banks and suppliers from providing support in the process if they are not adequately protected.
A proposed amendment suggests that debt approved by a reconstructor can also obtain mass claim status, even without a prohibition on satisfaction. This would potentially strengthen the company's opportunities to obtain necessary credit and deliveries along the way.
Management should respond as soon as there are clear signs of financial challenges—such as liquidity problems, pressure from creditors, or declining earnings.
If the company first becomes insolvent, it can no longer use the rules on preventive Restructuring. Therefore, timely and proactive action is crucial to whether the company can take advantage of the scheme and avoid bankruptcy.
