Below you will find one of the most comprehensive and up-to-date collections of interesting judgments of recent years on the law of advisory board liability. You will find further corporate law judgments on other corporate law topics on the overview page.
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Discharge of the managing director does not have a limited overall effect on the jointly and severally liable advisory council
LG Koblenz 2021
The Chamber does not assume a "limited overall effect" of the exonerations of the defendant's intervener. The discharge resolution concerned the managing director personally (see BGH judgement of 10 February 1977 - II ZR 79/75 - with further references). The waiver associated with the exonerations to subsequently "hold the managing director accountable" for individual events "during the past period" included all claims against him arising from his activity as managing director of the aggrieved limited liability company, insofar as the prerequisites for the claim were known to the shareholders or were recognisable upon careful examination on the basis of the documents and information made available to them (cf. BGH ruling of 21 April 1986 - II ZR 165/85 -). A "limited overall effect" of these individual reliefs is therefore ruled out (a. A. Koch WuB 2016, 282, 283; left open by OLG Köln Urt. v. 22 Jan. 2009 - 18 U 142/07 -).
The liability of members of the advisory board corresponds to the liability of a member of the supervisory board.
LG Koblenz 2021
If a supervisory board is to be appointed according to the articles of association, § 52 (1) GmbHG provides, inter alia, that § 116 AktG in conjunction with § 93 (1), (2) sentence 1 and (2) AktG shall apply mutatis mutandis, unless otherwise provided in the articles of association. Pursuant to § 93 para. 1 sentence 1 AktG, the members of the executive board must exercise the due care and diligence of a prudent and conscientious manager. Pursuant to § 93 para. 1 sentence 2 AktG, a breach of duty does not exist if, when making an entrepreneurial decision, the executive board member could reasonably assume that he or she was acting in the best interests of the company on the basis of adequate information.
to act in the best interests of the company. Pursuant to section 93 (2) sentence 1 AktG, executive board members who violate their duties are jointly and severally liable to compensate the company for the resulting damage. If it is disputed whether they exercised the due care and diligence of a prudent and conscientious manager, they bear the burden of proof pursuant to section 93 (2) sentence 2 AktG. These provisions apply accordingly to the defendant former members of the advisory boards (cf. Altmeppen, GmbHG, 10th ed. 2021, § 52 marginal no. 93; Giedinghagen in: Michalski/Heidinger/Leible/J. Schmidt, GmbHG, 3rd ed. 2017, § 52 marginal no. 422; Diekmann in: Münchener Handbuch des Gesellschaftsrechts Vol. 3, 5th ed. 2018, § 49 marginal no. 28 with the remainder. N.; Schnorbus/Ganzer BB 2017, 1795 m. w. N.).
As members of the corporate bodies, the defendant advisory board members each had a special legal relationship with the aggrieved GmbH (cf. BGH judgment of 4 July 1977 - II ZR 150/75 -), which gave rise to a responsibility for them as corporate bodies (cf. Altmeppen loc. cit., marginal no. 93 with further references) and a duty of care and loyalty (cf. Giedinghagen loc. cit., marginal no. 414). They were obliged to look after the interests of the companies (cf. BGH judgement of 7 March 1983 - II ZR 11/82 -) and to exercise the diligence of a prudent and conscientious member of the advisory board (cf. Altmeppen loc. cit., marginal no. 94 with the remainder of the text; Lutter/Hommel). Lutter/Hommelhoff, GmbHG, 20th ed. 2020, § 52 marginal no. 123; Giedinghagen loc.cit., marginal no. 423).
Advisory board members must follow up on indications of misconduct on the part of the managing director even if they are not subject to a duty of supervision.
LG Koblenz 2021
Notwithstanding the fact that the articles of association did not expressly assign them the task of supervising the managing directors, they had to follow up on indications of misconduct on the part of these persons (cf. Schnorbus/Ganzer loc. cit., p. 1796; see also BGH Urt. v. 26 Nov. 2015 - 3 StR 17/15 -: duty as a member of the supervisory board of a GmbH to "avert erroneous or business-damaging conduct by the management body").
