New stock corporation law: Audit by an auditor in the event of capital loss

The new company law has tightened the obligations for both the Board of Directors (BoD) and the auditors in the event of a loss of capital and over-indebtedness.

Companies without auditors, i.e. with an opting-out, in the event of a capital loss must now subject their last annual financial statements to a limited audit before approval by the General Meeting. The Board of Directors must appoint an authorised auditor to carry out this audit. Subordination agreements do not release the Board of Directors from its duties.

In the event of over-indebtedness, a limited audit must also be carried out. This also applies if there is a well-founded suspicion of over-indebtedness or if over-indebtedness is evident in the accounts. The BoD must then immediately prepare interim financial statements at realisable and going concern values. If over-indebtedness is only evident in the accounts, no notification to the court is required if there are sufficient subordinations.