Updates regarding the personal liability of managing directors in Germany

Updates regarding the personal liability of managing directors in Germany

It is probably already sufficiently well known that managing directors are personally liable pursuant to Sec. 43 (2) GmbHG if they do not exercise the “due care of a businessman” pursuant to Sec. 43 (1) GmbHG.

The “due care of a businessman” is an undefined legal term and is based on the fact that managing directors are obliged to prevent damage to a corporation. Accordingly, this also obliges managing directors to ensure that the provisions of the legislator are implemented and observed (by all employees).

The OLG Nuremberg has made some interesting statements in this regard in a decision dated March 30, 2022 (external link ) (OLG Nuremberg, final judgment dated March 30, 2022 – 12 U 1520/19).

For example, according to para. 77 of the judgment, the – previously quite generous – scope of action of a managing director is exhausted as soon as a high risk of damage is unavoidable.

According to case law, the scope of action granted by the business judgment rule is exceeded if, from the point of view of a prudent and conscientious businessman, the high risk of damage is unavoidable and there are no reasonable business reasons for accepting it nevertheless.

Para. 77 – OLG Nuremberg, final judgment of 30.03.2022 – 12 U 1520/19

In para. 79, however, the court makes further interesting assumptions, such as the assumption that a compliance management system must be introduced.

From the duty of legality follows the obligation of the managing director to establish a compliance management system, i.e. organizational precautions that prevent the commission of legal violations by the company or its employees.

Margin no. 79 – OLG Nuremberg, final judgment v. 30.03.2022 – 12 U 1520/19

If such a system is not in place and/or it cannot be expected under normal circumstances that business will be conducted properly (inadequate compliance management), the managing directors will be held personally liable pursuant to Section 43 (2) GmbHG.

But that is not all, because in para. 80 the court also speaks of a duty of supervision, which may not only commence when grievances have been discovered. Accordingly, even if a compliance management system is in place, a managing director is required to continuously monitor the correct application of this system and the statutory provisions.

The duty to monitor also includes sufficient control, which may not only begin when grievances have been discovered. Depending on the hazardous nature of the work and the weight of the regulations to be observed, its intensity must not be limited to occasional checks.

Margin no. 80 – OLG Nuremberg, final judgment of 30.03.2022 – 12 U 1520/19

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