Crisis early warning system (KFS)
It is a statutory duty (§ 1 StaRUG) of the managing director to address early risk detection. Otherwise, he or she is liable with his or her personal assets.
There are several ways to detect a corporate crisis early in order to avert an insolvency filing.
In the lead-up
Prior to establishing a crisis early warning plan, early warning indicators must be monitored in good time, data must be analyzed regularly, and periodic reporting must take place. Professional external advice during the preparatory stage or restructuring moderation is also crucial.
Early warning indicators are figures that point to poor liquidity or profitability. The key figures to include are the equity ratio and the debt ratio, to keep an overview of creditworthiness and financing structure. It is also important to know exactly how much capital is spent on material procurement and personnel. In addition, do not forget to monitor the return, so you know how the company’s earning power is developing, as well as the cash flow, to keep an eye on its internal financing capacity.
Even before considering restructuring moderation or the appointment of a restructuring officer, it is advisable to seek preventive legal advice. In this case, clience.legal will advise you with professional expertise, years of experience, and clear language.
Data analysis involves regularly examining current economic trends, the overall economic situation, supply chain information, and customer reviews.
In addition, restructuring moderation – a mediation with the company’s creditors conducted by a restructuring moderator – is a useful option at an early stage.
Establishing a crisis early detection system
Important points also need to be considered in establishing a risk early detection system.
The appointment of a restructuring officer can be voluntary or mandatory. If small or medium-sized enterprises (and in particular consumer rights of end customers) are affected, the appointment of a restructuring officer is mandatory. The appointment of a restructuring officer is comparable to that of an insolvency administrator or custodian. In this context, a three-month stay of enforcement and realization should also be considered, which must be applied for at the restructuring court. Furthermore, it is important to know the individual risks for the company in order to counteract them in a targeted manner. The business model and the organizational structure of your company should also be adapted accordingly. Documentation and communication are key! It is also advisable to restructure claims that would entitle the holder to separate satisfaction in insolvency proceedings, in particular land charges and mortgages, transfers of ownership by way of security, blanket assignments, and extended retention of title. A debt-to-equity swap can be a further option.
However, some modifications in the course of restructuring are strictly prohibited, e.g. employee claims such as salary claims, including social security contributions. Existing contractual relationships cannot be changed unilaterally, and attempts to adjust contracts by mutual agreement are often futile.
It is necessary to conduct a stress test by simulating possible crisis situations in order to confirm the effectiveness of the plan developed and to make any final changes if necessary.
In the end, the creditors affected by the restructuring vote on the risk early detection plan that has been drawn up. If the restructuring court confirms the plan, it becomes effective and legally binding.
If the managing director fails to address potential crises early, he or she may be liable to the shareholders and the company for damages should the company get into a crisis. A direct Liability cannot be derived from § 1 StaRUG.
A successful early risk detection system secures the long-term success and competitiveness of your company and protects you from insolvency. This makes it all the more important to rely on professional expertise and to implement the elements of the system rigorously and properly.
