Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 45

1.1. Indebtedness

To assess the indebtedness of the company, directors have to establish a special balance with special rules with regard to assess the values of assets. Thus, this balance is not identical with the balance of trade3). Assets have to be valued according to the scenario of liquidation, not with going concern values4). Even though, indebtedness has to be separated from a negative prognosis about the company, the interdependences are evident as evaluating assets depend exactly on that prognosis. Only if the prognosis is negative, assets have to be valued according to liquidation5).

1.2. Prognosis

Hence, the requirements for a positive or negative prognosis of going concern is crucial for duties of directors to file for an insolvency procedure. Usually, three elements are distinguished: sufficient facts in order to do the prognosis, the procedure of prognosis and the consequences deducted from that prognosis6). To assume the survival of the company it is necessary that liquidation is not likely7). Essential for that probability is a plan for future cash flow and for profits8) that allow at least for a two years prognosis of going concern9). Future cash flow has to be sufficient in order to cover all debts and to pay out creditors10) – what does not necessary imply that the company will be profitable. Facts that support the prognosis have to be true11), valid and reliable12). Directors have to take into account future chances of the company on the relevant markets13), the likelihood of enforcing claims14), getting new orders by clients15) or any other negative potential evolutions16).

The German Institute of Auditors (Institute der Wirtschaftsprüfer) has adopted standards to audit the prognosis, in particular if a positive prognosis is justified17). According to those standards, directors usually can assume a going concern prognosis if the company made profits regularly in the past and can have recourse to financial funds18). If third parties declared their intention to assist a restructuring, it is sufficient that such a restructuring is probable19).

In practice so-called schemes of arrangement (following the British example) play a crucial role for restructuring as an alternative to a regular insolvency procedure20) - this has obviously been adopted by the upcoming EC Directive (see below). Under German law, a scheme of arrangement is a procedure outside (and sometimes before) the formal insolvency procedure21). Such a scheme of arrangement may serve as base for positive going concern prognosis as they render restructuring more probable than before22).

Part of the (positive) prognosis is a substantial plan for finance and profits for the future. It is not sufficient just to carry on existing data23) rather than integrating the financial plan into the overall strategic planning of the company24). The financial plan has to be complete, exact and not netted25), it should integrate all expenses and income like a cash-flow-calculation26), according to the recommendation of the Institute of Auditors27). Moreover, the plan should cover at least the next twelve months28). However, a financial plan is superfluous if there are already clear signs that the company cannot meet its obligations29).

1.3. Application of business judgement rule

Every prognosis contains a subjective element concerning the likelihood of coming events and evolutions. Hence, the business judgement rule (Sec. 93 German Stock Corporation Act) should apply so that directors may benefit of a safe harbour if their prognosis was based upon adequate information and free from conflict of interests30). However, the business judgement rule cannot be applied directly as legal duties are usually not covered by it31). Hence, judicial control should be more intense concerning the subjective part of the prognosis than as usual concerning the business judgement rule32).

1.4. Time frame and duties

After the company is indebted, directors have to file for an insolvency procedure as soon as possible, at the latest within three weeks (sec. 15a Abs. 1 S. 1 German Insolvency Act). The time span starts at the moment when directors can recognise the indebtedness from an objective perspective33). The burden of proof is upon directors if they claim that indebtedness could not be recognised34). Efforts to restructure the company do not discharge directors from duty to file for an insolvency procedure35), also not from any kind of negotiations36).

Directors are obliged to constantly monitor the economic situation of the company37), to establish an internal reporting system and adequate organisation structures38). In case of any sign for a crisis such as a sales slump39) or major bad debts, directors have to check if the company is indebted40) by establishing a balance sheet for indebtedness41). Moreover, in case of first signs for a crisis, directors are obliged to collect information and to document any critical events42).

All directors have to comply each and separately with the duty to file for an insolvency procedure, also those who are not in charge of financial affairs43). However, directors outside the financial area can rely upon external consultation, such as auditors, in order to check the economic status of the company44).