The Federal Court of Justice (BGH ) clarified in several rulings dated 27.01.2021 (Ref. StB 43, 44 and 48/20) that insolvency administrators are entitled to exempt professional secrecy holders such as auditors, tax consultants and lawyers from the duty of confidentiality insofar as the matter concerns the insolvency estate. The background to this decision was the fines imposed by the Wirecard investigation committee on the auditors who had refused to testify with reference to the professional duty of confidentiality. The Wirecard insolvency administrator had previously released the auditors from their duty of confidentiality.
The question of whether and under what conditions an insolvency administrator is entitled to release professional secrecy officers commissioned by the insolvent company from their duty of confidentiality has not yet been clarified by the highest court. Several higher regional courts have taken different views on this issue. In some cases, it was argued that the duty of confidentiality should also protect (former) board members. The BGH now points out that the only decisive factor is the contractual relationship at the time of the witness statement. In the event of insolvency, the authority to make decisions is transferred to the insolvency administrator when insolvency proceedings are opened.
Conclusion
The decision essentially concerns any criminal proceedings brought against (former) board members of an insolvent company. It is to be welcomed, as the interests of the company concerned are important and the protection of individual board members must justifiably take a back seat.
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Dr. Jan Hermeling
hermeling@tigges.legal
+49 211 8687 138