In certain crisis situations, the management of a limited liability commercial entity has the right and indeed the obligation to file for bankruptcy. If something goes wrong at this point, we are ready to step in: either as consultants to defend against such claims or as insolvency administrators to assert and enforce them.
The previous regulations regarding the liability of managing directors were confusing and characterized by exceptions that had been developed by judicial decisions. The regulation found in Section 15b InsO has been in effect since January 1, 2021. One element is that exceptions to liability have been abolished (for example, payment of employee contributions and payments to fiscal authorities); another is that payments may still be made in the ordinary course of business if the insolvency petition is filed in good time.
The regulation is supplemented by Sections 1 and 102 Act for the Stabilization and Restructuring of Companies [Gesetz über den Stabilisierungs- und Restrukturierungsrahmen für Unternehmen; StaRUG], which provide that management has a duty to carry out early crisis detection and crisis management and that the consultants designated in this context must call management’s attention to any imminent insolvency.
The decision of the Federal Court of Justice [Bundesgerichtshof; BGH] of January 26, 2017 (IX ZR 285/14, BGHZ [Decisions of the Federal Court of Justice (Civil Cases)] 213, 374 et seqq.) takes up the issue of the obligation of any accountant preparing financial statements as set forth in Section 102 StaRUG. A breach by the accountant preparing the financial statements may result in liability claims.