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OLG Stuttgart provides specific guidance on auditors’ duties to provide information
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In its order of 10 December 2008 (Ref.: 8 W 429/08), the Higher Regional Court (OLG) of Stuttgart clarified that auditors who act in the role of an insolvency administrator appointed for a limited period may, under certain conditions, be obliged to provide information to a newly appointed insolvency administrator. The decisive issue was the extent to which an auditor is obliged, vis-à-vis a successor in the office of administrator, to surrender documents and provide information relating to his activities.
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Initial situation: dispute over claims for surrender between auditors and insolvency administrators
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In the case in dispute, an auditor had initially been appointed by the insolvency court as a provisional insolvency administrator on the basis of a safeguarding purpose. Upon the appointment of a final insolvency administrator, the question arose whether, and to what extent, the former safeguarding administrator could be held to duties to provide information and surrender items. The core issue was whether the provisions of §§ 666, 667 BGB apply correspondingly to the relationship between an auditor acting as provisional administrator and his successor.
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Decision of the OLG Stuttgart
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Scope of the duty to provide information
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The Higher Regional Court of Stuttgart held that, in principle, the general duties to provide information and surrender under §§ 666, 667 BGB also apply to an auditor who acted as a provisional insolvency administrator for safeguarding purposes. Invoking evidentiary difficulties in individual aspects is not capable of fundamentally excluding this obligation. Accordingly, the outgoing administrator is obliged to provide comprehensive information on the measures taken and to surrender documents obtained, insofar as the final insolvency administrator requires them for the continued conduct of the proceedings.
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Delineation of the scope of cooperation
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At the same time, the court draws a distinction that an obligation to provide information does not exist as a blanket matter, but depends on the nature and scope of the tasks assigned. The cooperation duties of the provisional administrator do not end with his removal from office if information or documents are required to enable the new administrator to conduct a seamless review and handling. The level of detail of the information to be provided is determined by the specific requirements of the individual case.
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Practical significance for insolvency proceedings
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Effects on cooperation in insolvency proceedings
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The OLG Stuttgart’s decision makes clear that members of advisory professions who are entrusted with asset-management tasks in insolvency proceedings must be prepared for contractual duties to provide information. In this way, the court ensures a smooth transition and continuity of the proceedings, so that the estate’s financial interests are comprehensively safeguarded.
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Limits and reach of the decision
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It should be noted that the precedential value of the order relates to the specific individual case decided, in which an auditor acted in the function of a (provisional) insolvency administrator with a safeguarding mandate. Whether and to what extent comparable constellations lead to a duty to act that can be generalized always depends on the design of the respective engagement and the circumstances of the individual case.
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Conclusion
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The OLG Stuttgart’s decision emphasizes the importance of careful transfer of information in the context of insolvency law and strengthens procedural legal certainty for the parties involved. Should further uncertainties arise in connection with duties to provide information and other questions concerning insolvency proceedings, MTR Legal will be pleased to assist you. Under Legal advice on insolvency law you will find further information on our firm’s advisory services in this field.
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