Читать книгу Las reestructuraciones de las sociedades de capital en crisis - Aurora Martínez Flórez - Страница 46

2.1. Precontractual responsibility

Sometimes courts in Germany accepted the idea that directors could be held liable for not disclosing to contracting parties that the company faced an economic crisis. The reason behind this approach was the assumption that the director had its own economic interests in the deal and the information asymmetry put creditors at a disadvantage45). However, after the mid 90s, jurisdiction dropped this approach by reducing obligations to more or less extreme cases of personal union of major shareholder of a company and the director. Only in these cases of “egocentric” interests of the director, German courts accepted a precontractual obligation to disclose economic problems of the company to contracting parties or to warn them –not even in ongoing contractual relations.

2.2. General duties of loyalty to creditors?

In general, German law ignores universal duties of debtors to their creditors concerning disclosure of economic crisis. The general rule “caveat creditor” applies so that creditors have to calculate risks and protect themselves against insolvency risks of debtors. Concerning directors of a company German corporate law assumes duty of loyalty to the company rather than to shareholders, in particular not for public corporations. However, in small close corporations (limited liability company) directors may owe a duty of loyalty to their shareholders.

With regard to creditors, including employees, directors do not owe any duty of loyalty as they are responsible only to the company. However, German corporate law does acknowledge at least for companies with co-determination of workers that directors should consider interests of workers. Also, directors are entitled to respect interests of other stakeholders such as the state or creditor when taking decisions which could affect them, the so-called “interest of the enterprise” (Unternehmensinteresse). Although directors are entitled to respect interests other than those of the shareholders, they are not obliged to do so; rather they benefit from an extended scope of discretion. Up to now, no German court has obliged directors to take decisions in benefit of workers or directors; hence, the notion of “interest of enterprise” may justify such decisions, but does not oblige directors to take them, so that no duty of loyalty can be assumed.

The same is true for obligations of directors in the vicinity of insolvency: Apart from duties to file for an insolvency procedure, directors do not have any individual obligation to warn creditors including employees about the economic status of the company. Regarding employees, however, their representatives in worker councils or (of course) in supervisory committees of the company (co-determination) have to be informed about signs of crisis. Hence, in general, directors usually benefit from a large scope of managerial discretion (business judgement rule) as long as they do not waste and dilute the assets of the corporation.

2.3. Damages

As only duties to file for an insolvency procedure are accepted as serving creditors interests, they may file claims against directors based upon tort law [so-called protecting acts “Schutzgesetz”, sec. 823 (2) German Civil Code]. Courts have acknowledged the quality of being a “Schutzgesetz” for decades and apply the same doctrine to the Insolvency Act46).

Regarding damages, German courts distinguish on the one hand between contractual claims and those based upon tort law, on the other hand between “old” creditors (before indebtedness of the company) and “new” creditors (after the company has become indebted):

Concerning “old” creditors courts grant them as damages only the difference between the hypothetical quota in insolvency47) which they would have received if directors would have acted in due time and the real quota realised in the (delayed) insolvency. However, creditors are only entitled to claim their damages directly against directors if there is no insolvency administrator48). In practice it turned out difficult for creditors to calculate their damages as the hypothetical quota has to be proved in the civil procedure49).

“New” creditors, however, receive as damages the whole amount of their claim as their trust in the going concern of the company has been frustrated50). Also, employees are being treated as “new creditors” if they could terminate their contract at the time of indebtedness51). According to German courts, the director’s obligation to file for an insolvency procedure should serve the interests of creditors in order to take out those companies of the market which cannot fulfil their obligations in the future. As this argument largely builds upon frustrated trust –and thus contractual relations– other creditors who did not enter into contact with the company (respectively the directors) are exempted from receiving all damages, in particular creditors whose claims are based upon tort law52). This group of creditors is treated the same way as “old” creditors.