GERMANY Law and Practice Contributed by: Rainer Wilke, Ingo Theusinger and Ralph Schilha, Noerr
to protect public health in the event of pan- demics and infectious diseases. • The Corporate Stabilisation and Restructur- ing Act ( Gesetz über den Stabilisierungs- und Restrukturierungsrahmen für Unternehmen , or StaRUG) provides companies with instru- ments for early restructuring and avoiding insolvency by enabling them to take inde- pendent restructuring measures and involve creditors in the process. • Company owners can be held liable under Section 130 of the German Administrative Offences Act ( Gesetz über Ordnungswidrig- keiten , or OWiG) if they fail to take appropri- ate supervisory measures that could have prevented or significantly impeded a breach of duty. Effective supervision therefore requires a clear understanding of the risks and a constant risk analysis. • The duty to assess risks also arises from the duty of legality ( Legalitätspflicht ) pursuant to Section 93 of the German Stock Corpora- tion Act ( Aktiengesetz , or AktG). Additionally, Section 91 of the AktG mandates a moni- toring system to identify threats at an early stage. The German Federal Court of Justice emphasises that board members fulfil their obligations only by establishing a compliance programme focused on risk prevention. This requires a profound culture of compliance within companies. These laws are enforced by federal, state and local governments and their designated authori- ties. 2.2 Expected Legal Updates In Germany, there have been recent amend- ments to or ongoing discussions about amend- ing the following laws, based on past crises.
• The catastrophic floods in Germany in July 2021 have triggered discussions about enhancing disaster preparedness and response mechanisms in relation to the ZSKG. • Throughout the COVID-19 pandemic, the IfSG was amended multiple times to expand the powers of health authorities. At the same time, a temporary easing of insolvency law was introduced to give companies more room for manoeuvre and to avoid insolvencies – for example, by suspending the obligation to file for insolvency. • There are currently discussions about laws designed to enhance economic crisis resil- ience. These changes aim for a more dynamic crisis management approach, enabling com- panies to respond swiftly and efficiently to challenges. Key aspects include: (a) increased labour market flexibility for adjustable working arrangements; (b) adaptive tax policies for temporary relief; and (c) the simplification of bureaucratic process- es so as to reduce administrative barriers for implementing crisis measures. 2.3 Government Role The Federal Ministry of the Interior ( Bundemi- nisterium des Inneren und für Heimat, or BMI) is responsible for co-ordinating civil protection and disaster management at the federal level. It oversees preparedness actions, develops policies, provides guidelines and supports state authorities. The Federal Office of Civil Protection and Disaster Assistance ( Bundesamt für Bev- ölkerungsschutz und Katastrophenhilfe , or BBK) plays a central role in co-ordinating civil defence measures. It implements civil protection policies, organises training, and provides resources and information for crisis management.
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