Regulatory & Compliance 22. March 2020

Germany: COVID-19 – Decisions based on proper factual basis

22. March 2020
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Dr. Thomas Altenbach
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act legal Germany

The rapidly expanding Corona-19 pandemic puts significant pressure on companies of all sizes in each segment. Entrepreneurs, managing directors and board members have to make far-reaching decisions in the shortest possible time with considerable uncertainty about forecasting in a situation that has hitherto been completely unknown. It is clear that many decisions will not have the desired success; some will do even more harm than good in hindsight.

This also raises the question of civil or even criminal liability risks for decision-makers.

Now and in the upcoming months, many entrepreneurs and board members will have to make many atypical risk decisions. The object of their actions is not the ordinary course of business activity, which, in addition to new opportunities, also entails known and unknown risks. What is needed is action to reduce risks arising from a sudden and dynamic change in the business environment that is hardly predictable. The cushioning of these risks may require measures that were unthinkable a few days ago – from the termination of a transaction to the deferred investment to the temporary closure of plants or the application for state aid.

Business leaders operate in a black box in crisis management as well as politicians: whether the drastic measures are ultimately necessary and successful will only tell the future – but action must be taken now. Unlike politics, managers and entrepreneurs carry a significant personal liability risk. If they are wrong, they threaten not only existential consequences for the company, but also personal reputation and, at worst, loss of office, as well as tangible legal consequences.

As a result, corporate leaders find themselves in a dilemma where both options for action – immediate action and further waiting – are risky, and in which any decision made can prove to be wrong in retrospect. It would therefore be highly unfair to make the occurrence of legal consequences dependent on the outcome of the decision. In order to prevent this, the German corporate (§ 93 German Stock Corporation Act) and case law limits the risks of liability. A breach of due diligence is only due to “totally unacceptable action“.  For example, if the error is already obvious to an outsider, as in the case of insufficient collection and evaluation of information prior to a decision.

It is necessary, but also sufficient, for management to establish an ‘appropriate factual basis’ in the specific situation and for the decision-makers to assume this ‘reasonably‘ at the time of the decision. It does not matter whether a subsequent review concludes that the decision was in fact based on appropriate information or was to the benefit of the company.

These criteria, which are admittedly soft, give decision-makers in companies what they need most now: a sufficiently broad basis for decision-making.

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Dr. Thomas Altenbach
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act legal - AC Tischendorf Rechtsanwälte
About the authors

Dr. Thomas Altenbach

Attorney at law

Advisor to prestigious technology, manufacturing companies, but also financial services companies on complex issues of corporate law, compliance and corporate defense. Conception and implementation of compliance management systems. Antitrust compliance. Digitization consulting, in particular consulting for the implementation of LegalTech tools with artificial intelligence. Guidance and supervision of global M&A transactions.

Dr. Marco Loesche, Notary

Attorney at law

Broad experience in advising medium-sized companies on all day-to-day issues of corporate law. Tailor-made reorganization of corporate structures. Renowned in the industry for working out acceptable negotiating options even in complex configurations and conflict situations. Particular expertise in providing legal support alongside tax consultant-driven topics. Acceptance of supervisory and advisory board seats including the duties of the chairman. “Unreservedly recommended” by clients and praised for his “profound knowledge” (JUVE Directory of German Commercial Law Firms).

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