(2) The management board is to take suitable measures, and in particular is to institute a monitoring system, in order to allow developments jeopardising the company’s continued existence to be identified at an early point in time.
This Section of the German Stock Corporation Act requires the executive board of a public limited company (irrespective of the stock exchange listing) to establish an effective risk management system. According to this provision, the executive board is obliged to take appropriate measures in order to be able to recognise at an early stage developments that could jeopardise the company’s continued existence. Are they talking about a compliance system? A compliance system is characterised by the fact that preventive measures are taken in order to avoid liability risks and intervene in the structure of the company, which overall ensure conformity with the rules. Compliance is therefore more comprehensive than the risk management system addressed in this section, which only addresses the recognition of risks that threaten the existence of the company. Compliance turns the company into a sort of “learning system” that constantly improves its handling of external and internal rules and also starts below risks that threaten the existence of the company. This is not explicitly required by section 91 (2) AktG.
Are you unsure about a compliance structure you would like to build for your company?