Supervisory bodies in the corporate crisis

“The crisis of the company is the
hour of the supervisory board.”
v. Schenck

While legal literature is unanimous on the catalog of duties of the supervisory bodies, especially in a corporate crisis, rulings by higher courts in this area remain sparse and are mostly of an older nature. In view of the recent scandals, such as Wirecard or RBB (for the latter see here), which are currently being dealt with by the courts, it is probably only a matter of time before the courts also start to ask questions about the respective responsibility of supervisory bodies again and in greater depth. The following article therefore outlines the current status in theory and practice and derives some practical tips from current cases.

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Whistleblower protection – all wrapped up in Germany?

After some political wrangling, the German Bundesrat approved the so-called “Whistleblower Protection Act” on May 12, 2023 (here, in German), thus clearing the way for the implementation of the corresponding EU directive. The practical need for such a law is obvious, not only in view of the events at the Berlin-Brandenburg broadcasting service RBB (see here for more details). However, it is not only larger companies that are likely to be under increased pressure to implement the law, as it is expected to come into force in mid-June and only very short implementation periods are envisaged. This is reason enough to supplement the previous explanations (see here) by highlighting some of the important points of the upcoming law, particularly for small and medium-sized enterprises.

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Early risk detection in SME’s

One and a half years after the German StaRUG (the Geman implementation of the EU-Regulation on the “preventive restructuring framework, for more information, cf. here) came into force, the German Federal Ministry of Justice (BMJ) has fulfilled its obligation under § 101 StaRUG and has actually made “tools provided by public authorities for the early … more

The German economy in February 2023 – the light at the end of the tunnel…

…might indeed prove to be from an incoming train and not – as I summised the previous months (While I thought in the summer 2022 that we were nearing a recession in 2023, a silver-lining already occured in October (here) which got even brighter in November (here) and December 2022 (here)) – and not the silver lining of a “promising start” I made out in January (here). But hey, let’s take a closer look on how the German economy fared in February 2023 to find out more:

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The German economy in January 2023 – of(f) to a promising start?

It is quite interesting how fast situations and perceptions can change: While I thought in the summer 2022 that we were nearing a recession in 2023, a silver-lining already occured in October (here) which got even brighter in November (here) and December 2022 (here). Hence, the question now is, will we be able to avoid a recession alltogether? In order to assess the situation, let’s take a closer look on how the German economy fared in January 2023:

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Annual accounts 2022: the crux of the polycrisis

From a legal perspective, the management of corporations is obliged under § 264 of the German Commercial Code (HGB) to prepare annual financial statements (annual accounts) after the end of the financial year (often December 31 of a given year) within certain deadlines – staggered by the respective company`’s size. Against the background of the current economic development, which is difficult to predict (see here), the annual accounts for 2022 are likely to be of particular importance. Especially as these deadlines – irrespective of size (!) – can be considerably shortened in the event of a (foreseeable) crisis of the company.

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Germany in 2023 – the murky chrystal ball?

“Germany had outsourced its security
to the United States, its energy needs to Russia
and its export-led growth to China.“
Constance Stelzenmüller (here)

Even more so than in previous years, which were in some cases full of corona, a look into the chrystal ball regarding Germany’s economic development in 2023 turns into a strained poking in the fog. Too many factors can drive developments in one direction or the other. But even if 2023 turns out to be more positive than expected – moderate economic growth with easing inflation – the signs for the years thereafter are not positive. As the following post will show, in just over twenty years Germany has merely gone around in circles once – at least as far as political goal-setting and economic resilience are concerned – without solving the problems of the time in a sustainable way.

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