What does this mean for the management?New adjustments in the StaRUG

F&P Blog

The StaRUG has been in force since 01.01.2021, now there are changes

The StaRUG is a law that was passed through the legislature within a few months. It not only contains adjustments for preventive restructuring, but also for insolvency law, GmbH law and changes to civil and criminal law.

Paragraphs have been eliminated, modified and supplemented. Due to the high speed at which the StaRUG was adopted, the special provisions of the coronavirus exceptions have also been added. All of this makes the StaRUG a complex piece of legislation for entrepreneurs, making it almost impossible for them to keep track of the options, obligations and consequences.

At present, whole armies of lawyers, insolvency administrators, auditors and tax consultants are busy working their way through the jungle of changed laws and developing appropriate measures and behavioral options.

Managing directors must now make immediate adjustments to avoid liability.

One of the most important rules is the so-called paradigm shift for companies that are heading towards a crisis. If a crisis is recognizable, the management must focus on the interests of the creditors and the interests of the company must take a back seat if they conflict with the interests of the creditors.

In practical terms, this means preserving the value of the company rather than maximizing profits, because ultimately the creditor is satisfied from the remaining insolvency assets if insolvency occurs. The sticking point here is the statement on the recognizability of a crisis.

Since the StaRUG, the management has been obliged to establish early warning systems (key figures, liquidity planning, etc.) for a period of 24 months in advance. This is to be updated regularly. It is therefore assumed that the management must be able to predict within a period of 2 years whether the company will enter a crisis or not. This alone is a requirement that is almost impossible to meet, especially for SMEs.

How can the management avoid liability for delay in filing for insolvency?

There are seven rules that must be implemented:

1. The company must establish an awareness that the welfare of creditors is now the priority for companies in crisis.
2. Ensuring transparent and clean accounting that is updated on a daily basis.
3. Introduction of integrated corporate planning over 24 months, which naturally includes the corresponding liquidity planning.
4. Ensure that all information on expected income and expenses is documented in detail, in particular why these assumptions were made in this amount.
5. Monthly review and supplementation of planning figures and documentation of changes.
6. Introduction of key figures that enable changes and potential for improvement to be identified.
7. Reviewing the company’s strategies and competitiveness.

Of course, these rules cannot always prevent a crisis or even insolvency, as all too often external factors play a decisive role (technological developments, changes in the market, etc.), but they allow the company to react at an early stage, avert a crisis and be protected against liability claims if insolvency does occur.

F&P AG has specialized in pre-insolvency measures and not only advises companies on these issues, but also supports them with the introduction of these systems. The focus here is on the entrepreneurial view of the situation. We identify short-term measures to stabilize the financial situation, create space for efficient restructuring measures, sustainability and lasting entrepreneurial success. We are not only experts in legal requirements such as the StaRUG, but also implement them in an entrepreneurial manner.

Find out more about our restructuring & reorganization experts here.

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