Some weeks ago, as I was watching a new British movie, I heard one accountant say something to his client, which surprised me considerably. He said: "Don't look at me! I am an accountant. I don't give advice. I just do the accounts." If this is the reality in the UK I do not know. But here in Germany, the accountants not only give advice, they have a so-called "duty to inspect and notify" (Hinweis- und Prüfpflicht). In case they don't meet their obligation to inform the client, they could be considered to be liable for possible losses. Simply put: the accountant must pay attention to irregularities or errors in the accounting and warn the client of possible undesirable consequences. Recently, in a judgement of 26 January 2017 (IX ZR 285/14), the Federal Supreme Court of Germany ruled, in relation to the duties of an accountant against a GmbH, that the accountant is obliged:
(1) on the basis of his entire knowledge of the GmbH, to examine whether there is a debt overload of the GmbH, in the accounting or an actual one (Insolvenzreife = likely to be soon bankrupt/insolvent); (2) to point out a possible insolvency to the managing director of the GmbH and the related obligations of the managing director. Obviously, the general obligation of the accountants to inspect and notify had to be expanded, since many managing directors of GmbHs are not in a position, or simply lack the ability, to recognise the complete over-indebtedness (debt overload) of their own companies. In Germany, accountants don't just "do the accounts" but fulfil a higher service, since recognising the insolvency of a company in good time protects third companies and persons from financial damages, which can be quite substantial. And last but not least, the accountant protects the managing director of the company against personal liability for possible insolvency of the company.
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