German law insolvency proceedings may be initiated by an application by creditors of the allegedly insolvent company. However, there has been uncertainty if such an application by a creditor is abusive if that creditor's claims are subordinated and if therefore that creditor cannot expect to receive any payment from the insolvency proceedings. Some sources have compared this situation to s. 174 (3) of the German Insolvency Code (Insolvenzordnung (InsO) which provides that in ongoing insolvency proceedings, claims of subordinated creditors should only registered in the table of claims if the insolvency court specifically asked for such claims to be filed and concluded that such subordinated claims only respect consideration if they at least bear some chance of partial fulfilment. Had the court found that the application was in abuse of the creditor's rights, it might have found the application to be void and reject the opening of insolvency proceedings.

However, the BGH ruled that the fact a subordinated creditor could not expect to receive payment from insolvency proceedings does not rule out a just, legal interest of the subordinated creditor to apply for the opening of insolvency proceedings. It found that s. 174 (3) InsO was merely intended to facilitate and unburden ongoing insolvency proceedings, but did not contain any further meaning. In particular, s. 174 (3) InsO could not be read as excluding a right of subordinated creditors to file for insolvency.

Instead, the BGH argued that s. 38 InsO provided that subordinated creditors were included in the group of creditors that take part in insolvency proceedings (Insolvenzgläubiger) and that the law intends to include subordinated creditors in the proceedings in principle while avoiding delays to the proceedings by allowing them to file unpromising claims to the table of claims. The court further argued that the hopelessness of claims generally did not exclude applications for insolvency proceedings. Instead, s. 26 InsO provides that insolvency proceedings have to be opened even if the insolvent estate are in a very bad financial condition if only the costs of the proceedings are being covered. The court could not see any reason why subordinated creditors should be banned from filing for insolvency proceedings that would not lead to a payout if first ranking creditors were allowed to file under the same circumstances.