Judgments on the law of management board liability (stock corporation, AG)

to the competence area Business and Economy

Below you will find one of the most comprehensive and up-to-date collections of interesting judgments of recent years on the law of management board liability at stock corporations (AG). You will find further judgments in corporate law on other corporate law topics on the overview page.

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Judgment of the LG Frankfurt a. M. of 29.04.2021

According to general principles, the burden of presentation and proof regarding the facts giving rise to the claim lies with the company or, in this case, with the plaintiff as insolvency administrator.

Judgement of the OLG Brandenburg from 01.07.2020

Judgment of the Regional Court of Cologne of 10.01.2019

In the case of cartel penalty notices, the receipt of the penalty notice is to be taken into account, taking into account the established case law of the Federal Supreme Court in the area of tax advisor liability. It is not evident why anything else should apply to penalty notices in cartel law.

Decision of the OLG Cologne from 20.02.2019

Section 142 (2) AktG is justified if a decision that is already economically significant in terms of its volume is made on a manifestly inadequate factual basis and under influence motivated by local politics that is not in the best interests of the company.

Decision of the BGH of 15.10.2015

(1) If a personal claim is made against an insolvency administrator under section 60 InsO, the claimant shall have the burden of proof and presentation with regard to the prerequisites for liability.

Partial judgment of the OLG Dresden of 18.02.2015

(1) The advisor commissioned to provide general tax advice to a company is not obliged to point out to the managing director that the company may be ready for insolvency and that there may be an obligation to file for insolvency in accordance with section 15a of the German Insolvency Code (InsO), as this would considerably extend his responsibility beyond the mandate given. A duty to examine and point out a possible maturity for insolvency cannot be derived from the secondary contractual obligation to protect the client from damage either.

Judgment of the LG Heidelberg of 21.03.2017

If no claims arising from the formation of the company are involved, special representatives cannot be appointed on the basis of § 147 AktG to assert claims against shareholders other than under § 117 AktG.

Judgment of the VG Berlin of 13.11.2013

(1) The press has no right to information regarding the minutes of supervisory boards from the administration of shareholdings of the Federal Government and the Länder, because these are subject to the duty of confidentiality pursuant to Sections 93 I 3, 116 of the German Stock Corporation Act (AktG).

Judgment of the Regional Court of Cologne of 29.11.2019

According to the protective purpose of Sections 113 et seq. AktG, it is the total amount of the remuneration paid that matters and not the scope of the individual consulting contract (BGH, ruling of 10 July 2012 - li ZR 48/11).

Judgement of the OLG Cologne of 25.10.2012

(1) Even an implied or informal consent of the sole shareholder is not equivalent to a resolution of the general meeting within the meaning of section 93 IV sentence 1 AktG and does not exclude the liability of the management board pursuant to section 93 AktG.

Judgment of the OLG Cologne of 28.02.2013

(1) It cannot be successfully objected to a claim of the stock corporation against the management board for intentional breach of duty that a discharge of residual debt was granted under English law.

Decision of the OLG Cologne of 15.10.2020

It is a breach of the managing director's duties if the managing director fails to check the plausibility of the development and production of a tea-like soft drink brought onto the market before it has caused considerable costs for the company, at least the documents sent to the authorised signatory concerning the admissibility of the product under food law.

The mere reliance on one's own erroneous legal opinion to act in accordance with one's duty does not constitute a significant legal error. Even if the legal situation with regard to food law permissibility is not clear for the managing director, a managing director can at most be granted to be able to take the risk of a legal violation within certain limits in the case of an unclear legal situation, if he has duly fulfilled his duty to investigate the law and in doing so has received trustworthy advice which identifies the legality of the intended measure as uncertain because the legal situation has not been conclusively clarified.

Decision of the BGH of 17.12.2020

The principle of economy is a general principle of budgetary management applicable to the public sector as a whole and must be observed by all public authorities, irrespective of the basis on which they operate.

If the person obliged to look after assets within the meaning of section 266 (1) of the Criminal Code performs entrepreneurial management and structuring tasks, he or she regularly has a wide margin of appreciation and discretion. The scope is only exceeded if the willingness to take entrepreneurial risks is irresponsibly overstretched or the conduct of the person obliged to look after assets must be regarded as being in breach of duty for other reasons. This breach of duties under company law constitutes a breach of duty pursuant to § 266 (1) StGB.

A breach of the principle of economy in breach of duty within the meaning of Section 266 (1) of the Criminal Code is generally only present if a consideration is granted which can no longer be objectively justified and is therefore - obviously - inappropriate.

The case law on § 266 para. 1 StGB correlates with the assessment under company law, which is codified as the so-called Business Judgement Rule in § 93 para. 1 sentence 2 AktG (German Stock Corporation Act) for members of the management boards of stock corporations, but is also generally applicable insofar as entrepreneurial action in the interests of others is assessed.

Final judgment of the LG Munich I of 27.07.2017

Judgment of the OLG Frankfurt a.M. of 01.10.2013

1. a serious and clear violation of the law or the articles of association cannot be seen in the information provided to the supervisory board about the planned stock exchange function.

Judgment of the OLG Düsseldorf of 19.07.2018

In the absence of an express provision in the managing director's service agreement and if an annual bonus has been agreed, the former managing director is entitled to this bonus even if the termination of the employment relationship was terminated by extraordinary notice. Violations of the law on which the extraordinary termination is based give rise to claims for damages under the conditions provided for in the law and give the other party statutory powers, but only lead to a lapse of the creditor's claims in exceptional cases.

Insofar as claims are asserted against an executive body pursuant to Sec. 93 AktG or Sec. 43 GmbHG due to damages incurred by an associated company, the principle of capital maintenance and the purpose of the company's assets generally preclude a claim by the shareholder for payment of damages to himself personally due to a reduction in the value of his shareholding resulting from damage to the company. This indirect damage can only be compensated by the shareholder demanding the payment of damages to the damaged company.

The transferability of a claim arising out of a tort or delict is also governed by Article 14(2) of the Rome I Regulation, because the law applicable to the claim is generally to be regarded as the law closest to the matter in question, also with regard to the transferability of a claim, the transferability of claims is generally governed by Article 14(2) of the Rome I Regulation under conflict-of-law rules, and the Rome II Regulation does not contain any rules on the transfer of claims.

A breach of duty within the meaning of Sec. 43 GmbHG within the group towards the parent company also managed by the delegate may also be that the controlled company is managed in a manner that (also) runs counter to the interests of the delegating parent company. When making decisions, the dual mandate holder must always safeguard the interests of the respective area of responsibility.

Final judgment of the OLG Munich of 21.07.2021

The claim to default of acceptance pay after termination without notice does not presuppose an offer of services in an executive body employment relationship if the company indicates by dismissal of the obligated person as an executive body and appointment of a new executive body that it will not continue to employ the obligated person under any circumstances (connection to BGH BeckRS 2000, 9490).

The invalidity under general terms and conditions law of a forfeiture clause in an Executive Board service agreement cannot be derived from a shortening of the five-year limitation period under Section 93 (6) AktG.

Parallel decision to OLG Munich BeckRS 2020, 20648.

Final judgment of the LG Munich I of 20.12.2018

Every shareholder has a right under the law of associations that the company respects his membership rights and refrains from anything that impairs these rights beyond what is covered by the law and the articles of association. This right is violated if the Management Board excludes the Annual General Meeting, and thus also the individual shareholder, from participating in a decision as required by the facts of the case.

An agreement between two companies which contains an acquisition of shares by means of an exchange in accordance with the provisions of the WpÜG with the associated change of shareholder position away from the company to the new parent company of the group does not constitute a mediatisation within the meaning of the case law of the BGH and the corresponding measure therefore does not require the approval of the general meeting of the company, even if a possibly necessary amendment to the articles of association exists.

The conclusion cannot be drawn from the WpÜG provisions on the competence of the general meeting that there is a general requirement for the general meeting's approval in the context of takeover transactions.

The fact that a monistic organisation of the Board of Directors and its composition as well as the establishment of a Presiding Committee and a Management Committee are agreed in the contract does not constitute a disguised control agreement, as a right to issue instructions to the future parent company cannot be derived from this.

Ruling of the BGH from 27.01.2021

If there are no detailed guidelines for granting loans or if they are complied with, a breach of duty by a member of the management board of a bank in granting a loan is - in accordance with the liability regulations under company law - in principle only to be affirmed if, in an overall view of all the relevant circumstances, the actions of the member of the management board appear to be unjustifiable and thus the management error appears to be evident.

Members of the management board of a savings bank must exercise the due care and diligence of a prudent and conscientious manager in their management activities. If this is not expressly stated in the savings bank law of a federal state (here: North Rhine-Westphalia), the provision of section 93 AktG applies analogously.

If a member of the management board of a savings bank disregards internal rules of competence which at least also serve to protect the assets of the credit institution, for example by disregarding fixed credit or lending limits, waiving prescribed collateral or acting without the necessary consent of another body, he is in breach of his duty to look after assets without further ado.

On the duties of care of members of the board of directors of a savings bank and members of the bank when granting a loan.

Acknowledgement judgement of the LG Heidelberg from 09.08.2019

If the attorney of record declares an acknowledgement "subject to the existence of the prerequisites for the conduct of the proceedings, i.e. the legal representation by the special representative", this constitutes a permissible intra-procedural condition.

The special representative appointed in accordance with § 147 II 1 AktG is the legal representative and organ of the company to the extent that his authority extends to pursuing claims for damages on behalf of the company.

Reference decision of the BGH of 15.09.2014

Section 93 AktG applies mutatis mutandis to the liability of savings bank management boards, including within the scope of the Savings Bank Act of North Rhine-Westphalia. In particular, the application of § 93 I 2 AktG does not lead, contrary to the opinion of the revision, to savings banks becoming banks in violation of § 107 VI GO NW.

Ruling of the BGH from 12.10.2016

The application of the offence of breach of trust is to be limited to "clear and distinct" cases of breach of duty; serious breaches of duty can only be affirmed if the breach of duty is evident (continuation of BGH NStZ 2013, 715).

In the event of a breach of Section 93 (1) sentence 1 AktG, there is always a "serious" or "evident" breach of duty within the meaning of Section 266 StGB.

Compliance with the requirements of Section 93 (1) sentence 2 AktG (so-called business judgement rule) precludes a breach of duty pursuant to Section 93 (1) sentence 1 AktG and thus also pursuant to Section 266 StGB. Conversely, exceeding its limits through a breach of information duties alone does not constitute a breach of duty. The violation of § 93 para. 1 sentence 2 AktG, however, indicates a breach of duty, which is always given in the case of board of directors acting in a manner that is clearly unjustifiable.

The abstract endangering offence of Section 400 (1) no. 1 AktG requires a restrictive interpretation. Declarations are therefore to be excluded from the elements of the offence which, when viewed in the abstract, are not relevant to a decision by the protected persons to enter into legal or economic relations with the company (confirmation of OLG Frankfurt NStZ-RR 2002, 275, 276).

Judgment of the OLG Düsseldorf of 07.04.2017

In the special constellation that a member of the supervisory board, who is also a shareholder, is accused of having been the beneficiary of an inadmissible return of contributions, conduct in breach of duty lies not only in the failure to assert claims for compensation against the management board of the AG, but already in the acceptance of the payment, so that the statute of limitations already begins at this point in time, also due to the failure to assert claims for compensation against the management board.

A claim for damages against a member of the supervisory board for failing to assert claims for compensation against the management board due to payments made to this member of the supervisory board in breach of duty is ruled out because, in order to avoid the breach of duty with which he is charged, he would have had to incriminate himself, which cannot be required of him according to general principles.

Ruling of the BGH from 26.04.2016

A duty to warn (as an ancillary duty) only exists for a discount broker in cases where the latter is either positively aware of the actual incorrect advice given to the customer in the securities transaction commissioned or if this incorrect advice is objectively evident due to massive suspicious facts (continuation of BGH BGH BeckRS 2013, 06896). If a customer is advised faultlessly and thus properly by the company closer to the customer, there is no duty to warn on the part of the direct bank further away from the customer. (red. LS Andy Schmidt)

A supervisory board member cannot be generally released from the duty of confidentiality in advance for a specific subject area. The obligation to maintain secrecy is a conclusive statutory provision (Section 116 sentence 1 in conjunction with Section 93 (1) sentence 3 AktG), which cannot be mitigated or tightened by the articles of association or the rules of procedure. Only the objectively assessed interest of the company in secrecy determines the scope and content of the duty of confidentiality. (red. LS Andy Schmidt)

The general meeting of a stock corporation is not authorized to decide on the disclosure of confidential information and secrets. A confidential statement or secret is subject to the obligation of secrecy until it has become generally known or has been disclosed by the management board voluntarily or on the basis of a legal obligation. (red. LS Andy Schmidt)

Decision of the OLG Hamm from 19.08.2019

If the company asserts claims for damages against members of the supervisory board (in this case: delayed approval of a management board proposal), the D&O insurance of the supervisory board members may join the legal dispute as an intervening party, as there is a legal interest in the outcome of the liability proceedings within the meaning of § 66 (1) ZPO due to the binding effect of the final decision in the liability proceedings for any subsequent coverage proceedings.

An (additionally existing) contractual right of the D&O insurance company to conduct legal proceedings on behalf of the supported member of the Supervisory Board does not preclude this.

Final judgment of the OLG Munich of 08.02.2018

In the case of pure pecuniary loss, the admissibility of the action for a declaratory judgment depends on the probability of a loss attributable to the act of infringement. It is sufficient that, according to life experience and the usual course of events, it can be assumed with sufficient probability that damage will only arise in the future from the legal relationship.

In the case of a single-member company, no formal shareholders' resolution is required; it is sufficient if the will of the sole shareholder is sufficiently clear.

The conclusion of the new framework agreement without a customer protection clause as in the old framework agreement constitutes conduct in breach of duty on the part of the managing director pursuant to Section 43 (2) of the German Limited Liability Companies Act (GmbHG), as this constitutes an overstepping of the entrepreneurial discretion.

Ruling of the BGH from 26.04.2016

If a discount broker manages a "custody account including a financial services provider", a duty to warn exists for him as a secondary duty only if he is either positively aware of the actual misadvice of the customer in the securities transaction commissioned or if this misadvice is objectively evident due to massive suspicious facts (continuation BGH BeckRS 2013, 06896). (red. LS Christoph Syrbe)

A bank representative elected to the supervisory board of a company has a duty of confidentiality towards all persons not belonging to the executive bodies of this company, i.e. in particular also towards his own employer (= bank). (red. LS Christoph Syrbe)

For such circumstances which fall under the duty of confidentiality under section 116 sentence 1 in conjunction with section 93 (1) sentence 3 AktG and by the disclosure of which the supervisory board member would breach his duty of confidentiality, an attribution of knowledge by a bank representative appointed to the supervisory board to the bank appointing him - irrespective of the legal basis - is excluded from the outset. (red. LS Christoph Syrbe)

A member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a certain subject area, since the duty of confidentiality in § 116, sentence 1 in conjunction with § 93, subsection 1, sentence 3 of the German Stock Corporation Act (AktG) is a conclusive provision that cannot be mitigated or tightened by the articles of association or the rules of procedure (following BGHZ 64, 325 = NJW 1975, 1412) (red. LS Christoph Syrbe).

Final judgment of the LG Munich II of 28.07.2017

If the current management board of a public limited company in insolvency and the insolvency administrator conclude an assignment agreement on all claims of the company against a former management board member for damages under all legal aspects, whereby the assignee has to assert all claims at his own expense and at his own risk and - after deduction of corresponding costs - the insolvency administrator and the assignee are each entitled to 50% of the remaining proceeds, an authorisation to assert the claims contained in the assignment agreement is void and thus invalid due to a violation of section 2 para. 2 S. 1 RDG is void and therefore ineffective (not so in the following OLG Munich BeckRS 2018, 14085).

If the parties agree in an (interim) settlement to obtain an arbitrator's expert opinion, it is an implicit agreement that the creditor will not proceed against the debtor from the claim for the duration of the provision of the expert opinion.

Ruling of the BGH from 26.04.2016

On the duty of confidentiality of a bank representative elected to the supervisory board of a company vis-à-vis all persons not belonging to the executive bodies of this company, i.e. in particular also vis-à-vis the own employer (= bank) cf. the parallel decision of the same day BGH BeckRS 2016, 10412. (red. LS Christoph Syrbe)

The collision of the duties of the supervisory board member vis-à-vis his employer and the company to whose supervisory board he was elected or delegated is quite deliberately inherent in the system, seen by the legislator and decided in favour of the company protected by the duty of confidentiality. (red. LS Christoph Syrbe)

Judgment of the OLG Düsseldorf from 06.06.2019

Damage cannot be denied because the injured party is entitled to another claim against a third party, through the realisation of which the loss of assets culpably caused by the tortfeasor could be compensated, since the injured party is free to choose the debtor to sue and it is up to the debtors to agree among themselves which of them must ultimately pay for the damage and with which share. This right of choice of the creditor exists irrespective of whether the compensation of the debtors among themselves takes place according to § 255 BGB or according to § 426 BGB.

In the case of unequal liability, only the debtor who is further away from the damage in terms of value can invoke § 255 BGB, because he merely bears the liquidity risk for the fully liable tortfeasor. Who is fully liable is not regulated by § 255 BGB, but is to be determined on the basis of the liability principles.

Pursuant to § 46 no. 8 GmbHG, the shareholders' meeting is responsible for deciding whether claims for damages should be asserted against a managing director, because it is to be reserved for the supreme corporate body and not left to the decision of the managing directors whether a managing director should be prosecuted for breach of duty and whether the associated disclosure of internal corporate relationships should be accepted despite the potentially detrimental effect on the company's reputation and credit. For this normative evaluation, it is irrelevant whether the managing director is still in office or has already left.

The objection of lawful alternative conduct is also possible in the case of violations of competence in the GmbH. In the event that the prior consent of the supervisory board is not obtained, it must therefore be proven that the supervisory board would have consented to the measure in question by a majority if prior consent had been obtained. If, however, the entrepreneurial room for manoeuvre existing pursuant to Sections 52 (1), 116 (1), 93 (1) sentence 2 AktG narrows to the obligation to withhold consent, the manager cannot exonerate himself pursuant to Section 93 (4) sentence 4 AktG with a hypothetical consent of the supervisory board which is, however, in breach of duty, because this does not eliminate his responsibility for the transaction.

The subsequent insertion of reasons for termination is permissible if the reasons for termination objectively existed at the time of the termination and became known to the terminating party at the earliest 2 weeks before the termination or only afterwards. Knowledge of the facts relevant for the termination shall be deemed to exist if everything has been learned which is to be regarded as a necessary basis for a decision on the continuation or termination of the employment relationship. With regard to this knowledge, only the level of knowledge of the body of the company that is appointed and prepared to decide on the termination without notice is relevant.

Decision of the OLG Cologne of 19.10.2018

In the proceedings for the admission of an action pursuant to section 148 of the German Stock Corporation Act, the prospects of success of the action for which admission is sought must be examined, for which section 148 (1) sentence 2 no. 3 of the German Stock Corporation Act sets the standard.

The powers of the executive board of an AG are not determined by the actual line of business, but by the statutory object of the company (contrary to OLG Frankfurt BeckRS 9998, 42517).

An action which is to have as its object the right of subrogation pursuant to Section 88 (2) sentence 2 AktG cannot be admitted within the scope of Section 148 AktG.

Ruling of the BGH from 26.04.2016

The investment services company further away from the customer is obliged to warn its customer if the latter is misadvised by the company closer to the customer and the company further away from the customer is either positively aware of the misadvice or this is objectively evident due to massive suspicious facts (continuation of BGH BeckRS 2013, 06896).

The knowledge of an employee cannot be attributed to the investment services company further away from the customer for the purpose of establishing the duty to warn if the employee acquired the knowledge as a member of the supervisory board of a public limited company and is subject to the statutory duty of confidentiality.

The supervisory board member cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorized to decide on the disclosure of confidential information and secrets (parallel decision to BGH BeckRS 2016, 09507, 09509, 09510).

Judgment of the LG Munich I of 26.08.2014

It is not possible to focus only on the advertising with the number of subscribers in the sense of an isolated consideration; this would not do justice to the overall context of the prospectus. Rather, the defendant's strategy at the time must be taken into account, which was aimed at gaining or retaining as many subscribers as possible, even if these may only have generated a very small contribution to sales per capita, which is also made clear in the prospectus. (red. LS Andy Schmidt)

An ad hoc announcement within the meaning of Section 37c (1) WpHG is untrue if its content is incorrect, i.e. if the information in the announcement does not correspond to reality at the time of its publication, i.e. if it is made-up information, exaggerations or commercially unreasonable forecasts or value judgements. An ad hoc announcement is incomplete if it does not contain all the information that the issuer would have to publish pursuant to Section 15 (1) of the German Securities Trading Act (WpHG) in order to provide the public with an accurate picture of the insider information that is subject to publication; in other words, the public must not be misled. (red. LS Andy Schmidt)

The provision of Section 15 of the German Securities Trading Act (WpHG) as the connecting factor for liability serves exclusively to protect the functioning of the capital markets, but not to protect the company. (red. LS Andy Schmidt)

In his external relationship, a member of the management board must comply with all regulations that affect the company as a legal object; this includes, in particular, the provisions of accounting law. (red. LS Andy Schmidt)

Ruling of the BGH from 26.04.2016

Judgment of the OLG Düsseldorf of 08.09.2015

(1) The protectability of a work is removed from the dispositional power of the parties; for either the subject matter to be judged attains the requirements for protection required by copyright law or it does not.

2. the interior and exterior design of a building must each be considered separately with regard to copyrightability.

Judgment of the OLG Düsseldorf of 26.08.2016

Pursuant to Section 57 (1) sentence 1 AktG, any payment from the assets of the stock corporation made to a shareholder is inadmissible if it is made outside the proper distribution of the balance sheet profit and is not exceptionally permitted on the basis of a special statutory provision, unless it is made under conditions equivalent to those of third parties.

Third-party payments that directly or indirectly reduce the assets of the stock corporation are covered by Section 57 AktG and are therefore only permissible if the transaction is either at arm's length or if, in any case, the interests of the other shareholders and the creditors of the AG are not impaired. If the third party acts for its own account, Section 57 AktG applies if the third party is a company that is majority-owned by the stock corporation.

Transcripts of judicial hearings of witnesses are not suitable evidence in proceedings for documentary evidence.

Ruling of the BGH from 26.04.2016

Final judgment of the LG Munich I of 11.07.2013

If a stock corporation has been created from a limited liability company by way of a change in legal form, the supervisory board has exclusive power of representation in legal disputes between the company and the former managing director of the GmbH pursuant to § 112 AktG.

If the GmbH asserts claims for damages against its managing director under § 43, Subsection 2, GmbHG, it bears the burden of presentation and proof that and to what extent it has suffered damage as a result of the managing director's conduct in the scope of his duties (also BGH BeckRS 2002, 30291254).

In contrast, the managing director must demonstrate and prove that he has fulfilled his duties of care pursuant to § 43, Subsection 1, GmbHG, or that he is not at fault, or that the damage would also have occurred in the event of lawful alternative conduct (also BGH BeckRS 2002, 30291254).

Judgment of the OLG Düsseldorf of 06.11.2014

Pursuant to § 171 I 1 AktG, the supervisory board is obliged to audit the annual financial statements itself. This also applies if the adoption of the annual financial statements is transferred to the general meeting.

A new member of the Supervisory Board shall be obliged to obtain a report on the activities of the Supervisory Board to date, in particular by submitting the minutes of the Supervisory Board. The examination of the minutes of the Supervisory Board is mandatory if the previous members of the Supervisory Board have resigned as a whole.

Ruling of the BGH from 14.05.2013

A remittal by the Court of Appeal is not justified because the parties are to be given the opportunity to make further submissions due to a procedural defect in the proceedings at first instance and because an evidentiary hearing may then be required.

Ruling of the BGH from 26.04.2016

The knowledge of its authorised signatory that the latter has acquired as a member of the supervisory board of a stock corporation and that is subject to the latter's duty of confidentiality pursuant to section 116 sentence 1 in conjunction with section 93 (1) sentence 3 AktG cannot be attributed to a bank. Section 93 (1) sentence 3 AktG cannot be attributed to a bank.

A member of a supervisory board of a stock corporation cannot be generally released from the duty of confidentiality in advance for a specific subject area.

The general meeting of a joint-stock company is not authorised to decide on the disclosure of confidential information and secrets.

Ruling of the BGH of 18.09.2018

The statute of limitations for claims for damages of a stock corporation against a member of the supervisory board pursuant to Sec. 116 Sentence 1, Sec. 93 (2), (6) AktG due to the statute of limitations for claims for damages of the company against a member of the management board begins pursuant to Sec. 200 Sentence 1 BGB at the time of the statute of limitations for the claim for damages of the company against the member of the management board.

This also applies if the Company's claim for compensation against the member of the Management Board is based on the fact that the latter has returned contributions to the member of the Supervisory Board.

Judgment of the OLG Frankfurt a. M. of 26.03.2015

The management board of a stock corporation violates its obligations arising from Section 93 AktG if it secures bank loans with assets of the company that serve to finance the acquisition of shares by third parties. It follows from Section 71a (1) sentence 1 AktG that legal transactions are inadmissible which - with the exception of the acquisition of own shares by the AG - economically enable or promote the acquisition of shares by third parties.

Judgment of the OLG Hamm of 07.02.2017

Disregarding a request for an expert medical report to prove that the type of injury could only have been caused by gross foul play is an error of procedure and leads to a remittal if the court is not able to demonstrate its particular expertise in this area.

Decision of the OLG Munich of 28.05.2021

According to the case law of the Federal Court of Justice, any knowledge of representatives of VW AG cannot be attributed to Audi AG, the sole defendant in this case, in accordance with Sections 31 and 166 of the German Civil Code. This also applies to the so-called "representative liability". Liability of Audi AG for the EA189 engine manufactured by VW AG could therefore only be considered if Audi AG or its representatives had themselves fully realised the liability facts of § 826 BGB.

Corresponding new submissions are no longer admissible in the appeal proceedings due to negligence within the meaning of § 282 ZPO pursuant to §§ 530 et seq. ZPO no longer admissible.

a) Since the Federal Court of Justice had already ruled in 2016 that the liability of a legal person under § 826 in conjunction with § 31 BGB requires that one of its constitutionally appointed representatives has personally realised the objective and subjective facts of § 826 BGB. Section 31 of the German Civil Code (BGB) requires that one of its constitutionally appointed representatives has personally realised the objective and subjective facts of Section 826 of the German Civil Code (BGB), the plaintiff could not expect to prevail with a claim against the defendant here already at the time of filing the action in 2019 on the basis of its previous statement of claim.

b) If the appellant claims that new facts or evidence only became known to him after the conclusion of the first instance, he must, if necessary, also explain why he did not seek such knowledge earlier in order to avoid the accusation of negligence.

The assertion that various persons with allegedly changing or parallel management functions at VW AG and Audi AG have acquired corresponding knowledge in the course of their work at the former would have required the presentation of corresponding evidence according to the case law of the Federal Supreme Court. Prior to this, the defendant also does not have a secondary burden of proof according to the case law of the Federal Supreme Court.

An attribution of knowledge acquired at VW AG to the defendant Audi AG would also fail for legal reasons. Pursuant to Section 93, Paragraph 1, Sentence 3 of the German Stock Corporation Act, members of the Board of Management must maintain confidentiality about confidential information and secrets of the Company, namely trade or business secrets, which have become known to the members of the Board of Management through their activities on the Board of Management. Members of executive bodies who have left the company must also continue to maintain confidentiality about confidential information and business secrets that became known to them during their term of office. Therefore, according to the case law of the Federal Court of Justice, the imputation of knowledge cannot be considered in these cases.

Judgment of the VG Bremen of 29.06.2018

Private-law companies that are controlled by the public sector are public authorities within the meaning of Section 9a (1) RStV.

A suitable subject of information can also be an internal fact if it has manifested itself in the official space.

3 Sections 93, 116, 404 of the German Stock Corporation Act (AktG), data protection regulations and contractual confidentiality agreements do not constitute confidentiality provisions within the meaning of Section 9a (1) sentence 2 no. 2 of the German Broadcasting Treaty (RStV).

4.on the balancing of the information interest and private interests of a private company and its former board member.

Ruling of the BGH from 16.03.2017

The concept of a public authority within the meaning of the right to information under press law pursuant to Section 4 (1) LPresseG NW also covers legal entities under private law which are controlled by the public sector and are used to fulfil public tasks, for example in the area of services of general interest.

Control in this sense is generally assumed if more than half of the shares of the legal entity under private law are directly or indirectly owned by the public sector (continuation of BGH, judgment of 10 February 2005 - III ZR 294/04, NJW 2005, 1720).

Provisions on secrecy within the meaning of Paragraph 4(2)(2) of the LPresseG NW, which preclude a right to information under Paragraph 4(1) of the LPresse NW, are provisions which are intended to protect public secrets and as such prohibit the disclosure of the information in question by the public authority which is obliged to provide the information.

When examining the reason for exclusion pursuant to Section 4 (2) no. 3 LPresseG NW, the public's interest in information protected by Article 5 (1) of the Basic Law and the confidentiality interest of the public authority and the third parties affected by the information must be comprehensively weighed against each other in the individual case and appropriately balanced. The suspicion of indirect party or election campaign financing by a public authority affects public interests of considerable weight.

Decision of the BGH of 10.07.2018

Whether a former member of the board of directors has violated his duties is a legal assessment which, as an expression of opinion, is not a fact in the absence of evidence.

For the interpretation of the concept of effects on the assets and liabilities or financial position or the general course of business, the facts to be disclosed in the context of the issuer's regular publicity must be taken into account.

The pursuit of claims for damages against a former member of the management board for breach of duty of care and loyalty may be relevant to the share price because of the result created by the conduct or the assessment of the quality of management derived from the conduct, if this assessment is still relevant after the departure.

The decision of the Higher Regional Court rejecting an application for extension of the model proceedings is final and is therefore not subject to review by the Court of Appeal.

Judgment of the LG Saarbrücken of 15.09.2020

On the statute of limitations for recourse claims against members of the management board of a stock corporation in respect of damages arising from participation in a cartel

Judgment of the LG Munich I of 10.12.2013

As part of his duty of legality, a member of the management board must ensure that the company is organized and supervised in such a way that no violations of the law occur, such as bribes paid to public officials of a foreign state or to foreign private individuals. In the event of a corresponding risk situation, a member of the management board only satisfies his or her duty to organize if he or she establishes a compliance organization based on loss prevention and risk control. Decisive for the scope in detail are the type, size and organization of the company, the regulations to be observed, the geographical presence as well as suspicious cases from the past.

Adherence to the principle of legality and, accordingly, the establishment of a functioning compliance system is part of the overall responsibility of the Management Board.

If the breach of duty of a member of the Management Board lies in an omission, the statute of limitations does not begin to run in the event that the omitted act can be made up for at the latest when the preventive act should have taken place, but only when the ability to make up for the omitted act ends.

Negotiations within the meaning of section 203 of the German Civil Code concern a specific fact of life from which one side derives rights, whereby the fact of life is negotiated in its entirety as a matter of principle. The commencement of negotiations results in this circumstance having an effect back to the time of the first letter of claim.

Judgment of the OLG Stuttgart of 08.07.2015

There is no need for legal protection for an isolated challenge of a resolution of the general meeting by which the motion for the removal of the chairman of the meeting was rejected. In contrast, an action for annulment against the rejection of the resolution in combination with a positive declaratory action for a declaratory judgment that the chairman of the meeting has been voted out of office would be admissible.

Events which do not relate to the activities of the chairman of the meeting, such as possible misconduct outside the general meeting as well as character deficits which do not affect the chairmanship of the general meeting, are generally not suitable as good cause for the removal of the chairman of the meeting. A fortiori, conduct outside the general meeting does not regularly constitute a reason that could justify the rejection of the motion to dismiss by the majority in breach of good faith and oblige the majority of the shareholders to approve a motion to dismiss for reasons of the duty of loyalty towards the minority.

The contestability of a discharge resolution is excluded if the factual circumstances which are to justify the accusation of a serious and clear breach of duty have not been clarified from the perspective of the Annual General Meeting. A challenge cannot be based on circumstances that are only to be clarified in the context of a challenge process.

In principle, the discharge only approves the conduct of the person to be discharged in the period on which the discharge is based. Accordingly, an obligation to refuse discharge can, as a rule, only arise on the basis of clear and serious violations of the law committed during the discharge period. Therefore, a challenge to the discharge resolution cannot, in principle, be based on acts committed in earlier periods.

The procedural costs of a legal challenge against a discharge resolution, which is successful due to discharge despite a clear and serious breach of duty of the body to be discharged, which is recognizable to the shareholders' meeting, do not constitute damage which is attributable to the breach of duty of the body. The intervening decision of the shareholders' meeting interrupts the attribution context.

In principle, the Supervisory Board is not obliged to repeatedly review self-contained decisions of the Supervisory Board of previous years to determine whether they were lawful. In the absence of a special reason, the supervisory board does not have to decide again each year whether executive board compensation and severance payments made several years ago on the basis of a supervisory board decision were rightly paid at that time. This does not apply if the supervisory board was aware of the invalidity of the agreements concluded at the time or if it was forced to do so - also on the basis of more recent findings.

Reference order of the OLG Nuremberg of 23.09.2014

Despite the burden of proof of the members of the management board pursuant to Sec. 93 II, Sec. 116 AktG "to have exercised the diligence of a prudent and conscientious manager", the company bears the burden of proof for the alleged damage and its causation by a conduct of the manager within the scope of his duties which can be considered as being in breach of duty in the first place, thus "possibly" constituting a breach of duty.

If the company succeeds in presenting and, if necessary, proving these circumstances, it is up to the sued member of the management board to present and, if necessary, prove that his conduct was not in breach of duty or culpable or that the damage would also have occurred in the event of dutiful conduct (following BGH, judgment of 4.11.2002 - II ZR 224/00, BGHZ 152, 280 = WM 2002, 2509).

In the case of a neutral act (here: reimbursement of travel expenses for a business trip), which in itself does not provide sufficient evidence that the member of the management board even "possibly" violated his duties as a manager when performing the act, the company must present and, if necessary, prove further circumstances and circumstantial facts which at least give the appearance that the conduct of the member of the management board could have been in breach of duty.

Decision of the OVG Berlin-Brandenburg of 01.04.2014

A right to inspect documents of the (former) Minister President of the State of Brandenburg held by the State Chancellery, which reached him in his capacity as a member of the supervisory board of Flughafen Berlin-Brandenburg GmbH, does not exist with the high degree of probability required for anticipation of the main issue in preliminary legal protection proceedings.

Final judgment of the LG Munich I of 23.11.2018

The defendant does not have a secondary burden of proof with regard to the intentional actions of its constitutionally appointed representatives. Otherwise, it would have to show that the management board was unaware of the use of the software, i.e. a negative fact. Here, however, it applies that the aspect of possibility and reasonableness, which is decisive for the presentation of negative facts, is not limited to the party obliged to present and prove the case, but must also be taken into account on the side of the other party - here the defendant.

As with all claims in tort, the scope of liability under § 826 BGB must be limited in accordance with the protective purpose of the standard. Since neither the property nor the free formation of will are covered by the protective purpose of Regulation (EC) 715/2007, neither a claim for rescission of the contract nor compensation for a reduction in assets can be demanded in response to a breach of the technical standards.

The question under which conditions an infringement of a standard based on a European directive triggers claims for damages is subject to national law, subject to the principles of equivalence and effectiveness (ECJ, judgment of 16.02.2017 - C-219/15 - TÜV, para.60). The purpose of Directive 2007/46/EC is the completion of the internal market and its proper functioning, not the protection of the individual vehicle purchaser or owner.

Judgment of the OLG Hamburg of 06.03.2015

The collection of receivables on an account with a debit balance does not lead to a reduction in the assets of the insolvent company if these receivables are covered by a global assignment.

On the liability of the supervisory board for unlawful payments.

Partial judgment of the OLG Munich of 20.07.2016

The Prospectus Liability Insurer bears the burden of proof that the conditions for the grounds for exclusion of insurance cover set out in the General Conditions of Insurance included in the contract exist on the part of the Policyholder.

The insurer cannot invoke the prohibition of settlement excluding insurance cover and, consequently, a breach of obligation in the case of general terms and conditions of insurance, according to which a breach of obligation only leads to exemption from benefits by the insurance company if it was committed intentionally or through gross negligence and the insurer is unable to provide evidence of this.

A clause in the General Insurance Conditions of a prospectus liability agreement, according to which such advantages are deducted from the insurer's obligation to indemnify which the insured has obtained in connection with the alleged breach of duty, is invalid if, on the one hand, it is not sufficiently defined what is to be understood by "alleged breach of duty" and, on the other hand, the breach of duty resulting from the issuance of a defective prospectus opens up systemic advantages for the policyholder due to the insured risk.

Judgment of the LG Heidelberg of 28.07.2016

An action for a declaratory judgment of the nullity of resolutions of a protective association of shareholders in a stock corporation structured as an internal company under the German Civil Code (BGB) concerning the exercise of the voting rights of the members of the protective association in the general meeting of the stock corporation regularly lacks legal interest if the resolutions adopted at the subsequent general meeting of the stock corporation have become final.

The invocation by a shareholder of the protective association of a breach of the duty to provide information constitutes an impermissible exercise of rights (Sec. 242 BGB) if it is based on the non-answering of an extensive list of questions which is submitted for the first time at the meeting of the protective association convened in due time, cannot be answered without adequate preparation and the obtaining of information from third parties and relates to circumstances about which the shareholder had in any case already formed an opinion some time before the meeting of the protective association, so that the answering of the questions had no influence on his voting behaviour.

Even in the case of family ties between the members of a protective association of shareholders in a stock corporation, the duty of loyalty under company law does not give rise to a claim of a minority shareholder to representation on the supervisory board of the stock corporation. This is because the duty of loyalty of the shareholders of the protective association cannot give rise to any more extensive rights than the duty of loyalty of the shareholders of the public limited company. However, the majority shareholders do not violate their fiduciary duty if they do not provide for representation of minority shareholders.

The duty of loyalty under company law may give rise to an obligation on the part of the members of a protective association of shareholders in a stock corporation to agree to a shareholder's motion for a resolution on the voting behaviour of the members of the protective association at the stock corporation's general meeting which has as its object the appointment of a special auditor pursuant to Section 142 (1) AktG. However, this presupposes that the shareholder requesting the special audit specifically presents the material requirements of § 142 (2) sentence 1 AktG, namely facts justifying the suspicion that dishonesty or gross violations of the law or the articles of association occurred during the formation of the company or during a management process, and that there are no overriding reasons in the best interests of the stock corporation against the appointment of a special auditor. The facts presented must give rise to sufficient suspicion of dishonesty or a serious breach of duty, i.e. they must be logically probable and not merely possible.

For the question of whether a shareholder of the Protective Association is subject to a voting ban when passing resolutions, recourse can be made to the statutory provisions of stock corporation law on voting bans for shareholders. It follows that a partner who is not subject to a voting ban as a shareholder is also not subject to a voting ban when the Protective Association adopts resolutions on voting behaviour in the stock corporation.

If the partnership agreement of the joint stock company contains a provision which, in order to secure the voting right commitment agreed in the partnership agreement, provides for a contractual penalty in the event that a shareholder does not exercise his voting right in the shareholders' meeting of the joint stock company in accordance with the resolutions previously adopted in the joint stock company, the contractual penalty shall not be forfeited if the shareholder, when voting in the shareholders' meeting of the joint stock company, has complied with the voting behaviour previously adopted by the joint stock company but has subsequently contested the resolution adopted by the joint stock company also with his vote.

Decision of the LG Frankfurt a.M. of 27.05.2014

The determination of a (mathematical) probability of error in the valuation in the award proceedings is not to be carried out. The valuation is not subject to a correctness judgement, but only to a reasonableness judgement.

There is no constitutional requirement for most-favoured-nation treatment in the case of valuations using the capitalised earnings value method or the use of stock market prices.

The adjustments to the corporate planning made by the valuation expert are to be regarded as new planning by the Management Board if the latter has approved them.

The principle of autonomy of corporate decisions also applies in appraisal proceedings. Due to the majority situation, it is generally not possible for the minority shareholder to actively influence the business policy of his company. Rather, he must normally accept such decisions, even if they prove to be suboptimal. This also applies to the retention ratio, as the majority shareholder can bring about a corresponding resolution on the appropriation of profits within the limits of Section 254 AktG.

Judgment of the OVG Koblenz of 10.06.2016

Public tasks within the meaning of the second sentence of Section 3(2) of the Rhineland-Palatinate Land Transparency Act are administrative tasks rooted in public law; there is no need for a statutory allocation of the task performance.

If a local authority uses a public limited company to fulfil such a task, in this case the supply of energy as part of the provision of services of general interest, there is in principle a right to access to information; however, this may be prevented, inter alia, by the obligations of confidentiality under company law.

Ruling of the BGH from 15.01.2013

An executive body which conducts business which is not covered by the purpose of the company acts in breach of duty (connection to BGHZ 119, 305 [332] = NJW 1993, 57).

Until 30.6.2002, the conclusion of interest rate derivative transactions which did not serve to hedge interest rate risks from the main business or the permissible ancillary business of a mortgage bank was not covered by the corporate purpose of a mortgage bank and was a speculative transaction impermissible for a mortgage bank.

If a series of similar unlawful speculative transactions by an executive body gives rise to both profits and losses, the company must, in principle, allow the profits to be offset against a claim for damages on account of the losses incurred.

Judgement of the BAG of 20.03.2014

For a so-called trustee liability of board members according to § 311 III BGB (German Civil Code), the self-economic interest in maintaining a board or managing director position is not sufficient.

Beyond the recognised groups of cases for exceptional relief from the burden of proof, the previous principles for the burden of proof of an insolvency delay, i.e. for the proof of insolvency or over-indebtedness without filing for insolvency, remain unchanged.

Decision of the OVG Berlin-Brandenburg of 07.03.2014

Press-legal information claims refer in principle only to the answer of concrete questions, not however to file use by inspection or copy of authority files.

Public undertakings cannot invoke the right to refuse information on the grounds of conflicting provisions on secrecy under Section 5 II No. 2 BbgPG. Their interests in the protection of their trade and business secrets are taken into account by the provision in Section 5 II No. 3 BbgPG, which serves to protect overriding public and private interests.

Judgments on the law of management board liability (stock corporation, AG)

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