Federal Court Favors Bavarian Pharmacist in AvP Payment Dispute

The Federal Court of Justice (BGH) has issued a landmark decision in the ongoing legal proceedings surrounding the insolvency of AvP, a major pharmacy payment service provider. The case in question involved a Bavarian pharmacist who received an advance payment of approximately 36,000 euros from AvP after the regulatory authority, BaFin, had imposed restrictions on outgoing payments in September 2020 due to concerns about the institution's financial stability.

Following the BaFin directive, which required AvP's management to prevent any disbursements that could harm creditors or the insolvency estate, a special representative from the Deutsche Bundesbank was appointed to oversee compliance. Despite these measures, AvP continued to make partial payments to about 800 clients in the lead-up to the formal initiation of insolvency proceedings. Jan-Philipp Hoos was subsequently appointed as the insolvency administrator and began seeking the return of funds distributed after the BaFin order.

While the majority of affected pharmacies reached settlements with the insolvency administrator, a handful of cases, including that of the Bavarian pharmacist, proceeded to court. Initial rulings by the Regional Court of Regensburg and the Higher Regional Court of Nuremberg determined that the pharmacist was required to repay the funds, arguing that the payments violated the BaFin directive and constituted an improper preferential treatment under insolvency law. These courts interpreted the BaFin order as a general prohibition on payments, which would render any subsequent payment to creditors invalid.

However, the Federal Court of Justice overturned the previous judgments, finding that the payments made to the pharmacy were contractually obligated and did not constitute a legal impossibility. The BGH clarified that the BaFin's instruction was not an absolute ban on all payments but rather targeted only those that would be detrimental to creditors or the insolvency estate. The court emphasized that the explicit wording of the BaFin notice--limiting restrictions to harmful payments--demonstrated that not every disbursement was prohibited, and contractual obligations could still be fulfilled if they did not negatively impact the insolvency estate.

This interpretation has significant implications for other unresolved cases involving payments made by AvP after the regulatory order. The insolvency administrator had previously offered affected pharmacies the option to offset payments through settlement agreements, which was intended to minimize lengthy and costly litigation. These arrangements aimed to ensure that pharmacies who received interim payments would ultimately be treated more favorably than those who did not, while also reducing administrative expenses for the insolvency estate.

The full scope of outstanding cases and the total sums involved remain unclear, though the administrator has previously indicated that only a small number of matters require judicial clarification. The BGH's ruling is expected to serve as a guiding precedent for similar disputes arising from the AvP insolvency and could influence the handling of related claims in the future.

The AvP insolvency has had wide-reaching effects on the German pharmacy sector, with significant sums involved and many pharmacies impacted by delayed or withheld payments. In August of the previous year, creditors collectively received a partial payout totaling over 76 million euros. Nonetheless, the insolvency process is ongoing, and further developments are anticipated as remaining disputes are resolved in accordance with the BGH's guidance.