Analysis: Prokon managers under suspicion of fraud

GERMANY: It could take a year for a decision to be made on whether to charge managers at insolvent developer Prokon Regenerative Energien with delayed filing of insolvency and fraud, according to the public prosecution of the German city of Lübeck.

The Prokon P3000 turbine is unlikely to go into production
The Prokon P3000 turbine is unlikely to go into production

In all cases of suspected business fraud, there are large amounts of digital and paper records and information that have to be investigated, the spokeswoman for the public prosecution told Windpower Monthly.

Back in March 2011, the Itzehoe court convicted Prokon for misleading advertising in marketing its profit-share rights. The judgement was confirmed after appeal in September 2012 by the Higher Schleswig-Holstein Court.

This concluded that the public was led to believe its investments flowed directly into project construction, which in turn served as security for the credit. Yet the funds actually flowed to other Prokon group companies for their investments, in return for interest-bearing loan repayment claims of fluctuating value.

By the time the public prosecution has finished its investigation, the insolvency administrator may have restructured the company into a healthy operation. Employing around 489 people, 330 at headquarters in Itzehoe, Prokon operates over 300 wind projects, and also has biomass, electricity trading and wood processing activities. It has also developed a 3MW wind turbine dubbed "P3000".

Speaking before before insolvency proceedings began 1 May, insolvency administrator Dietmar Penzlin said: "I am impressed by the company and its employees. The main pillars for continuing the company are wind park operation and wind park development."

The company develops, finances, builds and operates renewables plants, mainly onshore wind projects and has financed them almost entirely by selling profit-share rights (Genussrechte). When the company applied to open insolvency proceedings in January 2014, 75,000 certificate holders had certificates adding up to EUR 1.4 billion.

A large share of the holders are older people who bought the certificates as part of their provisions for old age and to support the expansion of renewable energies, according to the Itzehoe court on 29 July. After media warnings on Prokon's business in late 2013, many of them sought to terminate their profit-share rights and have their capital returned. Prokon was unable to pay back the sums involved and applied for insolvency, the court said.

Creditor uncertainty increased when managing director Carsten Rodbertus demanded they retain their profit-share rights so as not to jeopardize the company, but the insolvency administrator expelled him from his post on 31 March.

In May 2014, the Itzehoe court said the profit-share right contracts were invalid because they did not conform with transparency requirements. This transformed the profit-share right holders from second tier creditors, due their money back after other creditors like employees and banks, into normal creditors.

Later attempts by Rodbertus to persuade the creditors to agree to a new business structure and to grant him, indirectly (through his former head of marketing, who had also been expelled from his post) the power to represent them in the insolvency proceedings came to nothing. On 22nd July 2014, the court of Itzehoe annulled the voting rights of the creditors that had made over their power of attorney because Rodbertus could not represent both the creditors and the insolvent company.

Prenzlin stressed in a statement on 25 July that this had no effect on the outcome of a meeting of creditors on 22nd July which was attended by 2,350 people representing 29,800 creditors and EUR 704.85 million in capital.

They voted overwhelmingly in favour of Penzlin drawing up an insolvency plan by 31.01.2015 with the aim of a turnaround for the core activities - which look unlikely to include turbine manufacture - of Prokon Regenerative Energien.

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