Recently, German gazettes have been well-filled with reports of corruption in involving German companies: the former director of the Sparkasse / Bonn (among others) faces bribery charges surrounding the subsequent use of the Cologne exhibition halls for the tv-channel-group RTL (here). Furthermore, several (!) high-ranking managers of Adidas seems to have promised US-high-school athletes money to convince them to play at certain universities (here). However, the current highlight of the discoveries is undoubtedly Airbus: the group is said to be involved in bribery payments in connection with aircraft sales (here). In the public, and also in the aforementioned press reports, the main focus is on the offenders. This should not obscure the fact that the companies concerned can also suffer severe economic damages. However, a recent ruling by the Federal Court of Justice (BGH) could at least point to a risk-minimization …
The German people have elected their new Parliament on 24 September, at least the predictions of one week before were not totally off, with the right-wing “Alternative für Deutschland” gaining 94 seats, the liberal democrats (“FDP”) being back in the seats and everybody else not really achieving the results so badly wished for. The reactions range from “Germany is becoming a normal” to warnings before a new Nazi-Deutschland. Wow!
A recent decision by the lower regional court of Düsseldorf (LG Düsseldorf) in the context of the investigation into the criminal insolvency of Dresden-based ponzi-scheme Future Business (Infinus) provides an opportunity to shed some light on the continuous evolving legal situation regarding contractual debt-subordination.
In the light of current cases, I would like to explain some basic principles regarding a managing director’s personal liability for unfulfilled tax obligations. Early in 2017, the Munster Financial Court had succinctly summarized the current state of the jurisprudence and put a particular emphasis on the fact that even the observation of the German insolvency filing requirements might not prevent the managing director’s personal liability.
Recently, the case of Infinus AG, as before the cases “Comroad” or “Enron“, again proved that criminal employees or managing directors can get companies into a life-threatening crisis. To date, however, especially medium-sized enterprises are often not aware of the fact that the German Criminal Procedure Code provides tools to help victims of criminal offenses to enforce their civil-law claims against the offender(s). The Legislator is now seeking a simplified enforcement of these rights by means of a fundamental reform of the corresponding regulations, which entered into force on 1 July 2017.
Like the weather, which at least in Germany sent some mixed messages about “summer”, the German economy currently sends mixed signals as to its status:
With its judgment of 19 October 2016, the OLG Frankfurt (Frankfurt Higher Regional Court) upheld a ruling by the LG Frankfurt am Main (Frankfurt Lower Regional Court) from 2015 on the avoidance of advisors’ fees in the insolvency of the photovoltaic company Q-Cells.