Judgments on the Law of Managing Director Liability

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Below you will find one of the most comprehensive and up-to-date collections of interesting judgments of recent years on the law of managing director liability. You will find further judgments in corporate law on other corporate law topics on the overview page.

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Business Judgment Rule, weighing of evidence, falsity of records, accounting firm, economic significance.

Supreme Court Austria 2021

(1) With regard to the standard of care of a managing director when making discretionary decisions regarding various possibilities of designing control systems, it is appropriate to follow the "Business Judgment Rule" (cf. Section 84 (1a) AktG). According to this rule, when making business decisions, the managing director must not be guided by irrelevant interests, decisions must be made on the basis of appropriate information, such as conclusive expert opinions, they must clearly serve the best interests of the legal entity when viewed ex ante, and the managing director must be reasonably entitled to assume that he is acting in the best interests of the legal entity, i.e. he must be acting in good faith with regard to the other criteria. If these conditions are cumulatively met within the discretionary power granted, he is free from liability. Decisions may not give rise to liability merely because they have turned out to be disadvantageous ex post (RS0130656; RS0130657 a.o.; Torggler, Business Judgment Rule und unternehmerische Ermessensentscheidungen, ZfRV 2002/9, 133; cf. BGH II ZR 175/95, BGHZ 135, 244, 253 f).

The objective of an internal control system is to safeguard assets, to ensure the accuracy and reliability of accounting and to support compliance with business policy (Unger in WK-GmbHG § 22 Rz 23 with reference to 734 BlgNR 20. GP 63; also Mollnhuber/Suesserott in U. Torggler, GmbHG § 22 Rz 8). The aim is safety, regularity and efficiency (Mollnhuber/Suesserott aaO mwN). As a rule, it is probably based on monitoring measures of an organisational and IT nature, such as signature regulations, IT access restrictions or work instructions and control measures, which are carried out manually or with the support of automation, such as plausibility checks in the accounting software. In addition, there are guidelines and rules for the definition of standard processes as well as their documentation and an internal audit department, which in this context has the task of monitoring the efficiency of an ICS during recurring audits.

 

Düsseldorf Higher Regional Court 2021

Insofar as the refusal of an application by the former managing director of the bankrupt GmbH for inspection of files pursuant to § 4 InsO in conjunction with § 299 (1) ZPO on the grounds of his position as a party to the insolvency proceedings is not based on an act of judicial administration, an application against §§ 23 et seq. If the request for inspection of the file justified by his position as a party in the insolvency proceedings is not based on an act of administration of justice pursuant to section 299 (1) ZPO, an application pursuant to sections 23 et seq. EGGVG is not admissible. margin no. 18 - 20

The former managing director of the bankrupt GmbH, against whom the insolvency administrator is bringing an action for payment for breach of duties to keep accounts and to prepare the annual financial statements properly in accordance with section 43 (2) GmbHG, may, as a third person, demand inspection of the files in accordance with section 4 InsO in conjunction with section 299 (2) ZPO. Section 299 (2) of the Code of Civil Procedure (ZPO) into the insolvency files only if he requires information from the insolvency file, e.g. with regard to the insolvency petition, the preliminary insolvency administrator's opening opinion, the insolvency administrator's report on the reporting date and the insolvency administrator's subsequent periodic reports, the filing of claims by other insolvency creditors and the insolvency table, in order to defend himself against the claim in the action. margin no. 23 - 25

 

BGH 2021

In legal disputes concerning claims for damages against its managing director, the company bears the burden of proof only for the fact that and to what extent it has suffered damage as a result of the managing director's conduct within the scope of his duties; the managing director must state and, if necessary, prove that he has fulfilled his duties of care, that he is not at fault or that the damage would also have occurred in the event of dutiful alternative conduct.  para. 8

The managing director of a limited liability company is obliged to provide information to the company pursuant to § 666 BGB in conjunction with §§ 675, 611 BGB. This obligation continues to exist even after his dismissal and termination of the managing director's employment contract; it is not restricted by the fact that the managing director would disclose a breach of duty by providing the requested information.  margin no. 11 - 13

 

OLG Brandenburg 2021

Within the framework of § 242 BGB it is recognised that the creditor's breach of his own duties in principle only leads to counterclaims by the debtor and in principle does not prevent the creditor from asserting his claim. However, the creditor is precluded from invoking his own claim in good faith if the claim is based on a substantial breach by the creditor of duties which are intrinsically connected with his claim.  para. 20

A bonus claim is not intrinsically linked to your possibly fraudulent expense claim, in particular it was not earned through it. In the context of employment relationships, the principle must be assumed that breaches of contract or duty do not in principle lead to the forfeiture of the remuneration accrued up to the legally effective end of the employment relationship, because the employer can offset the resulting claims for damages.  margin no. 20 - 22

Since entrepreneurial transactions are unavoidably risky, the managing director is not per se precluded from taking risks; therefore, the conclusion of every transaction in which risks exist is not in itself a breach of the duty of care, and not every risky transaction leads to liability for damages after the risk has materialised.  Para. 28

 

LG Potsdam 2020

 

BGH 2020

The unconditional discharge of the general partner of a GmbH & Co. KG by its co-partners also has the effect of discharging the managing director of the general partner GmbH in relation to the limited partnership. margin no. 20 - 26

The managing director of the general partner of a GmbH & Co. KG with a personalistic structure must exercise the care of a prudent businessman when managing the company's business even if he is a partner in the limited partnership. margin no. 33 - 43

 

OLG Brandenburg 2020

If an insolvency administrator states when filing an appeal that he has partially released the claim at issue and pursues the appeal only to the extent not released, the debtor may file an appeal independently with respect to the released part.  margin no. 56 - 57

A book value clause for the determination of the settlement credit of a shareholder is generally to be interpreted to the effect that the hidden reserves and the goodwill are not to be included in the calculation of the "book" capital shares, but that the open reserves are to be included, as are all items of a reserve nature shown in the balance sheet Connection to BGH NJW 1979, 104. para. 61

The assignment of a titled claim results in a transfer of an attachment lien on the claim that has already arisen, so that the assignor can assert the collected claim and set it off against the attached claim with a claim to which he is additionally entitled. Para. 65

 

OLG Brandenburg 2020

 

LG Paderborn 2019

 

LG Freiburg 2019

 

OLG Düsseldorf 2019

 

LG Potsdam 2019

 

OLG Düsseldorf 2019

 

VG Minden 2019

 

LG Paderborn 2019

 

BGH 2019

In the case of indirect damage, a claim for damages on the grounds of intentional immoral damage pursuant to § 826 BGB requires that the wrongdoer is guilty of having acted immorally, precisely also with regard to the damage suffered by the party asserting claims under § 826 BGB. February 1979 - VI ZR 189/78, NJW 1979, 1599, 1600, juris marginal no. 16 et seq.; BGH, judgement of 11 November 1985 - II ZR 109/84, BGHZ 96, 231, 236 et seq, juris marginal no. 15.

The obligation of the managing director of a GmbH under Section 43 (1) GmbHG to ensure that the company behaves lawfully and complies with its legal obligations exists in principle only vis-à-vis the company, but not in relation to external third parties Confirmation Senate judgment of 10 July 2012 - VI ZR 341/10, BGHZ 194, 26 marginal no. 22 f.; furthermore BGH, judgment of 18 June 2014 - I ZR 242/12, BGHZ 201, 344 marginal no. 23 - Geschäftsführerhaftung.

The liability of the managing director of a GmbH towards the company's creditors due to a "grab into the till" leading to the company's insolvency.

 

BGH 2019

For claims arising from § 130a (1) and (2) sentence 1 of the German Commercial Code (HGB), a place of jurisdiction is established at the registered office of the Company in accordance with § 29 (1) of the German Code of Civil Procedure (ZPO).

36 (3) sentence 1 ZPO it is sufficient if there is a divergence with regard to a question of law that concerns one of the prerequisites under which a determination of the place of jurisdiction pursuant to § 36 (1) no. 3 ZPO is admissible at all. This condition is also fulfilled if two courts have different opinions with regard to the question whether in a certain factual constellation a determination of the place of jurisdiction is excluded with regard to the possible existence of a common special place of jurisdiction.  Para. 7

 

OLG Frankfurt a. M. 2019

If initially not all other partners are sued in an action for a defective resolution of a KG, an extension of the action to the partners not yet sued is only permissible in the appellate instance.  Para. 43

The discharge decision, which has the effect of waiver in the case of a limited partnership, concerns the internal area of company law and is therefore fundamentally subject to the rights and obligations of the partners with and to each other, which is why the partners' meeting is also fundamentally authorised to waive the claim to which the company may be entitled, which can be asserted by an individual partner by way of actio pro socio. Para. 49

Discharging a general partner GmbH managing director is contrary to good faith if the shareholders would have been obliged on the basis of their fiduciary duty to resolve the assertion of claims for compensation against the managing director in accordance with § 46 no. 8 GmbHG.  margin no. 53

 

OLG Brandenburg 2019

Section 253 (2) no. 2 ZPO requires the specific indication of the subject-matter and the reason of the claim raised as well as a specific request. This also applies to an action for a declaratory judgement that suspends the statute of limitations, because these details delimit the subject matter of the dispute. The plaintiff must therefore designate the legal relationship whose existence or non-existence is to be established so precisely that there is no uncertainty whatsoever as to its identity and thus as to the extent of the validity of the declaratory relief sought. In this context, the designation for the concretisation of the subject-matter of the dispute can also be made in the factual submission.  para. 28

Therefore, in determining whether service of process was "prompt" within the meaning of § 167 of the Code of Civil Procedure, the plaintiff can only be charged with omissions to the extent that it can be determined that the required action would have shortened the course of the proceedings. Such delays are to be attributed to a party which he or his attorney could have avoided if the proceedings had been conducted properly. This usually applies to defects in the statement of claim, such as, inter alia, the giving of an incorrect or inadequate address of the defendant, unless the plaintiff could have relied on the accuracy of the address given in the statement of claim.  para. 75

Insofar as a company pursues claims of its subsidiaries against its managing director from assigned rights, a resolution § 46 No. 8 Alt. 1 GmbHG is not required because it does not concern claims for compensation arising from the formation of the plaintiff or the management.  margin no. 50

 

OLG Munich 2019

The provision of information in a lawyer's pleading in this case is sufficient for compliance if it is apparent from the wording that the lawyer is acting as a messenger to make known a statement by the party required to provide information. para. 23

De facto management can be assumed if the managing director entered in the commercial register does not actually perform any management activity, no business activity of any kind on the part of the registered managing director is apparent from the accounting documents, only the "de facto managing director" always appears and the nominal managing director leaves the management to the "de facto managing director" and does not concern himself with it any further. para. 29

On the question when the reference to the annexes attached to a pleading is sufficient for the submission of facts further substantiating an allegation under section 130 no. 3 ZPO. para. 30

 

OLG Düsseldorf 2019

On the scope of the binding effect of a judgment in a liability suit against a GmbH managing director for the coverage suit against the D& O insurer. margin no. 70 - 84

If the terms of a D&O insurance policy exclude liability for knowing breaches of duty on the part of the executive body, the findings in the liability proceedings are only binding if knowing was a prerequisite for the claim; this is not the case for a claim under Section 43 (2) GmbHG.  margin no. 107 - 114

Also a managing director who changes the general partner of the KG in breach of duty, because without the consent of the shareholders, acts "in the exercise of an organ activity" in the sense of the conditions of a D& O insurance Distinction to OLG Munich BeckRS 2017, 124850. marginal no. 85 - 90

 

BGH 2019

A managing director against whom a claim is made in accordance with § 64 sentence 1 GmbHG cannot rely on the principles of internal compensation for damages. margin no. 16

The managing director who has determined that the company is arithmetically overindebted may not consider a going concern recommendation to be plausible to the effect that there is indeed overindebtedness but that he would be "on the safe side" if he paid attention to liquidity and commissioned a further going concern forecast. para. 22

 

OLG Munich 2019

The rule in Article 3 (1) EC No. 1346/2000 on the international jurisdiction of the courts of the Member State in which insolvency proceedings have been opened in respect of the assets of a company also applies to actions brought by the company's insolvency administrator against the managing director for the repayment of sums paid after the company became insolvent Connection ECJ BeckRS 2014, 82509. para. 29

A payment within the meaning of Section 64 (1) GmbHG also exists if the managing director does not prevent a third party from paying into a debit account of the company Connection BGH BeckRS 2016, 09241. marginal no. 33

If the delay in service was caused solely by the operation of the court and was not attributable to the plaintiff, service may still be "prompt" within the meaning of § 167 of the Code of Civil Procedure even if it occurred more than 3 years after the statute of limitations had run. para. 63

 

OLG Hamm 2019

Section 26 AktG applies by analogy to a public partnership. margin no. 72

Taking into account the peculiarities of publicly traded companies, it must be required that, as a general rule, all obligations imposed on the company vis-à-vis founding shareholders and intended to confer advantages on the latter must be included in the written articles of association or in a duly concluded and recorded shareholders' resolution. Para. 124

In a GmbH & Co. KG the personally liable partners are in principle entitled and obliged to manage the company, but so-called basic transactions are excluded from this. These include structural and organisational measures if they lead to a de facto and fundamental change in the company's circumstances, for example in the case of a transfer of all the company's assets or significant parts of them (margin no. 134 - 138).

 

OLG Düsseldorf 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 creditor exists irrespective of whether the compensation of the debtors among themselves takes place according to § 255 BGB or according to § 426 BGB.  margin no. 29

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 bases of liability.  marginal no. 29

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.  para. 30

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, it is only the level of knowledge of the body of the company which is appointed and prepared to decide on the termination without notice which is relevant.  para. 69

 

LG Munich II 2019

The effectiveness of the power of attorney and its legal acts performed on behalf of the party is in any case abstract and independent of the conclusion and effectiveness of a lawyer's contract.  BGH IX ZR 60/08 with further references.

 

OLG Frankfurt a. M. 2019

§ 64 GmbHG, the place of jurisdiction is the registered office of the company pursuant to § 29 (1) ZPO.  margin no. 15

 

LG Hamburg 2018

(1) The managing board of a cooperative is guilty of breach of trust if, contrary to the articles of association, it has agreed a loan that is effective in relation to third parties without consulting other members of the board and without the consent of the supervisory board and has arranged for the loan to be paid out, even though the granting of the loan was not part of the decisions arising in the ordinary course of business that it was entitled to make alone in accordance with the content of its service contract.

 

LG Wuppertal 2018

 

LAG Düsseldorf 2018

 

OLG Munich 2018

At least in the case of a GmbH & Co. KG, § 256 AktG is applicable accordingly to resolutions on the adoption of annual financial statements, cf.  margin no. 46

If the articles of association of a GmbH & Co. KG contain a provision based on § 246 AktG, the ground for nullity must be presented within the time limit agreed in the articles of association, at least in its factual core, even if no distinction is made in partnership law between the nullity and contestability of resolutions cf.  para. 53

 

BGH 2018

Section 73 (3) GmbHG is not a protective law within the meaning of Section 823 (2) BGB. margin no. 15 - 28

A liquidator of a GmbH who, in distributing the company's assets to the shareholders, has not taken into account a liability of the company towards a creditor, is directly obliged to compensate the creditor up to the amount of the distributed amounts by analogy with § 268 (2) sentence 1, § 93 (5) AktG, if the company has already been deleted from the commercial register. margin no. 30 - 60

 

OLG Rostock 2018

The possibility for the insolvency debtor to obtain short-term loan funds from its sister company with the same managing director and shareholder on the basis of a framework agreement cannot be treated differently from a letter of comfort BGH judgment of 19 May 2011 - IX.In application of the principles for the examination of the existence of an insolvency as at the balance sheet date, it is only important that the insolvency debtor actually procures the liquid loan funds in the short term, i.e. usually within three weeks. margin no. 109 - 110

If it turns out during the forecast period that the expected liquid funds are not available, the debtor will become insolvent immediately. margin no. 106 - 108

On the rebuttal of the presumption in dispute against the managing director in the context of § 64 (2) sentence 1 GmbHG old version that he acted culpably. margin no. 124 - 125

 

OLG Düsseldorf 2018

In order to substantiate the sufficiently certain legal existence necessary for the issuance of an interlocutory injunction, a positive decision on the legal existence is exceptionally not required if exceptional circumstances exist. In this situation it is sufficient if, from the point of view of the infringement court, the patentability is to be positively affirmed or - with regard to the distribution of evidence applicable in the state of the law proceedings - the question of patentability remains at least unresolved, so that the infringement court, if it had to decide on the merits, would have to affirm the legal existence. para. 45 - 58

The managing director, who is not responsible for the production and/or distribution of the contested embodiment according to the internal distribution of responsibilities of the company, is obliged, from the time of positive knowledge of the infringement, to undertake everything actually and legally possible to prevent the now known infringement of the patent for invalidity in the future. He cannot avoid this obligation by merely referring to the internal allocation of competence. margin no. 129 - 143

Statements made by the plaintiff for the injunction in the preceding invalidity proceedings are not admissible material for interpretation and can at most indicatively prove the understanding of the skilled person BGH BeckRS 2016, 13031 - Permetrexed.  Paras. 33 and 34

 

BGH 2018

A distribution of business or division of responsibilities at the level of the management requires a clear and unambiguous delimitation of the management tasks on the basis of an allocation of tasks supported by all members of the body, which ensures the complete performance of the management tasks by persons who are professionally and personally suitable for this and, irrespective of the departmental responsibility of an individual managing director, preserves the responsibility of the entire body, in particular for non-delegable matters of management. An allocation of tasks that satisfies these requirements does not necessarily require written documentation. Distinction from BFH, judgement of 26 April 1984 - V R 128/79, BFHE 141, 443. marginal no. 17

 

BGH 2018

If an order dismissing an appeal is subject to challenge, it must, like an appeal judgment, indicate what the appellant sought by his appeal.  para. 6

 

BGH 2018

If the total amount of the claims stated in the application for an order for payment is slightly lower than the total amount stated in a pre-litigation letter of claim which is referred to without attaching it in order to individualise the claims, this is harmless if it is readily apparent to the defendant that it is a clerical error.  para. 13

 

BGH 2018

If self-administration is ordered in insolvency proceedings relating to the assets of a company, the managing director is liable to the parties involved by analogy with sections 60 and 61 InsO. margin no. 47 and 64

 

OLG Brandenburg 2018

If a claim is made against the tax advisor due to defective preparation of annual financial statements from the point of view of accounting according to going concern values despite an existing reason for insolvency, the claimant must show concrete circumstances which show that the tax advisor already had knowledge at the time of preparation of the annual financial statements on the basis of which he could have recognised and known that the presumption of going concern pursuant to section 252 (1) no. 2 HGB no longer applies Connection to BGH BeckRS 2017, 101939. marginal no. 27 - 31

An enquiry by the client's managing director to the tax advisor commissioned with the preparation of annual financial statements as to whether the latter has prepared an over-indebtedness status for the company or has been commissioned to do so and whether there are indications of a reason for insolvency does not constitute an offer to conclude a separate agency agreement with the managing director personally or the client on the assessment of the company's readiness for insolvency. Rather, from the point of view of the tax adviser, it is important for the enquirer to obtain any information already known to him from the existing mandate.  margin no. 4 and 37

According to § 63 S. 2 StBerG, the tax advisor must place the requesting client in the position he would have been in if he had complied with his duty to immediately notify the client of the rejection of the mandate. Therefore, the damage suffered by the client as a result of the fact that he did not take any other measures to check the readiness for insolvency and did not file for insolvency in due time despite the fact that he did not receive the immediately requested notification and is therefore held liable by the insolvency administrator of the insolvent company on the basis of managing director liability pursuant to § 43 (2), § 64 sentence 1 GmbHG is not compensable. margin no. 38 - 39

 

OLG Munich 2018

In a lawsuit against the GmbH managing director, the company pursuing a claim pursuant to Sec. 43 (2) GmbHG must state and prove that and to what extent it has suffered damage as a result of the managing director's conduct in the scope of his duties which may have been in breach of his duties, whereby the company may benefit from the relief provided by Sec. 287 ZPO; on the other hand, the managing director must state and, if necessary, prove that he has complied with his duties of care or that he is not at fault or that the damage would also have occurred in the event of alternative conduct in accordance with his duties. para. 30

By concluding a lease agreement in a state of over-indebtedness, the GmbH managing director violates the duties incumbent upon him pursuant to Section 43 (2) GmbHG. margin no. 41 - 44

An action or omission on the part of the GmbH managing director with the - also tacit - agreement of all shareholders does not in principle constitute a breach of duty within the meaning of § 43 (2) GmbHG. margin no. 49

The claims under Sec. 43 (2) GmbHG and Sec. 64 GmbHG are two different matters in dispute.

 

OLG Brandenburg 2018

If building owners base claims for damages asserted by them personally against the managing director of the construction company GmbH, which has become insolvent, on the fact that the company was already ready for insolvency before the building contract was concluded, so that they would not have concluded it if the application had been made in good time, it is not sufficient to refer to payments made to the company and to third parties in order to demonstrate damage, but it must also be included in the context of the comparison of assets that the building owners have thereby become the owners of a residential building which embodies a value. para. 31

The limitation period for claims for damages due to improperly used construction funds begins as soon as the building owners have obtained the necessary information about this improper use, even if at this point in time neither insolvency proceedings have been opened against the company's assets nor its suspension of payments has been ascertained.   margin no. 39 - 40

The wording in an order to pay "damages for intentional tortious damage, including misappropriation of building funds, delay in filing for insolvency" does not indicate, from the relevant point of view of the addressee, that claims are being asserted on the basis of assigned rights of the building tradesmen. para. 44

 

OLG Düsseldorf 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. Infringements 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.  margin no. 41 - 43

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. Compensation for this indirect loss can only be made by the shareholder demanding payment of damages to the company which has suffered the loss. Para. 51

The transferability of a claim in tort is also governed by Article 14 (2) Rome I Regulation, because the law governing the claim is in principle 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 has generally been regulated under conflict of laws in Article 14 (2) Rome I Regulation and the Rome II Regulation does not contain any provisions on the transfer of claims.  Para. 60

 

LG Munich I 2018

Improper public service of process does not suspend the statute of limitations.   para. 52

If the ineffectiveness of a public service is based on an incorrect handling of the matter by the court, a suspension of the limitation period on grounds of force majeure can in principle be considered. However, force majeure only applies if the effect of the service of a document does not suspend the limitation period as a result of a judicial error which is unavoidable for the creditor. The appeal to an application for public service of the statement of claim that was unavoidable for him due to the conduct of the court presupposes that the plaintiff for his part has done everything reasonable for him to find out an address of the defendant that is capable of being served, likewise BGH BeckRS 2016, 112137. marginal no. 62

 

OLG Munich 2018

Acting in the interest of the company may generally exclude the breach of duty of a managing director's actions; however, this construction does not help with regard to concrete contractually regulated duties such as the observance of representation restrictions in the internal relationship.  margin no. 14

The social duty of loyalty exists between the shareholders or between the company and the shareholders. An external managing director cannot derive from this an exculpation of actions explicitly in breach of duty if the limitation of representation is exceeded in the internal relationship.  margin no. 15

The employee is precluded from invoking a compensation clause in a termination agreement in good faith even with regard to a fraudulently concealed loss incurred by the employer as a result of dishonest conduct.  para. 23

 

OLG Munich 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.  para. 9

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.   Para. 13

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) GmbHG, as this constitutes an overstepping of the entrepreneurial discretion. margin no. 15 - 22

 

OLG Brandenburg 2018

A liability of the managing director on the basis of a claim in tort or on the basis of unjust enrichment does not exist if the company has concluded contracts with the wife of the managing director and the latter has performed services for the company thereon, i.e. sham contracts do not exist. para. 19

Since the selection of a suitable service provider for the implementation of the corporate concept supported by the shareholders' will and the drafting of a related service agreement is based on an entrepreneurial decision, the managing director does not act in breach of duty if he may reasonably assume that he is acting for the benefit of the company with the fee agreement on the basis of appropriate information. The fact that the contracting party is his wife is irrelevant. margin no. 43 - 44

The limitation period for claims for damages against a GmbH managing director pursuant to § 43 (2), (4) GmbHG begins with the accrual of the claim, i.e. with the occurrence of the damage on the merits, without the damage already having to be quantifiable at this stage; the possibility of an action for a declaratory judgment is sufficient. The knowledge of the shareholders or the company of the facts giving rise to the claim - even if concealed by the managing director - is irrelevant. The subjective connection of the commencement of the limitation period in § 199 (1) BGB only applies to the regular § 195 BGB, but not to the special statutory limitation period pursuant to § 43 (4) GmbHG, which begins to run when the claim arises. margin no. 47

 

BGH 2018

138.3 of the Code of Civil Procedure as undisputed amounts to a procedurally inadmissible anticipatory assessment of the evidence by the trial judge and violates Article 103.1 of the Basic Law.

 

OLG Munich 2018

64 GmbHG against the former managing director is to be fulfilled at the registered office of the company, since creditors of the claim according to the law are not the insolvency creditors, but expressly the company having contractual relations with the managing director by virtue of the employment contract.  para. 11

 

OLG Hamburg 2018

43 (2) GmbHG, section 287 ZPO applies to the causal connection between breach of duty and damage. According to this, a preponderant probability, admittedly based on a sound foundation, is sufficient for the judicial conviction.

 

LG Cologne 2017

 

LG Stade 2017

 

LG Düsseldorf 2017

 

OLG Cologne 2017

 

OLG Hamburg 2017

 

LG Cologne 2017

 

BAG 2017

Section 87 of the ARC establishes exclusive jurisdiction of the regional cartel courts, which must also be taken into account ex officio by the labour courts.

If the decision of a civil law dispute depends wholly or partly on a preliminary question under cartel law within the meaning of Section 87 sentence 2 ARC, the dispute must be referred by the labour courts to the competent regional cartel court. If the decision of a civil law dispute depends, in whole or in part, on a preliminary question under cartel law within the meaning of Section 87 sentence 2 GWB, the dispute is to be referred by the labour courts to the competent regional cartel court.

 

OLG Munich 2017

The liability of the executive body for payments that reduce the company's assets pursuant to § 64 sentence 1 GmbHG can only be waived if the company receives an asset that is subject to creditor access. marginal no. 41

In particular, payments with which work performances are compensated are mass-reducing payments within the meaning of Section 64 sentence 1 GmbHG, contrary to OLG Düsseldorf, judgment of 1 October 2015, 6 U 169/14. marginal no. 42

Payments from the assets of a GmbH that is ready for insolvency cannot be compensated by advance payments made by the recipient of the payment with the consequence that the very fact of a payment within the meaning of section 64 sentence 1 GmbHG does not apply. margin no. 48

 

OLG Düsseldorf 2017

There is no increased personal liability of the newly appointed reorganisation managing director of a GmbH towards third parties beyond the special liability of trust pursuant to §§ 280 I, 311 BGB, even if the company is continued in the context of an insolvency in self-administration pursuant to §§ 270 et seq. InsO for the purpose of its reorganisation. An analogous application of the liability provisions §§ 60, 61 InsO is ruled out. In this case, there is already no unplanned regulatory gap and no comparability between the managing director and the insolvency administrator.

 

BGH 2017

A limited partner of a GmbH & Co. KG cannot assert claims of the limited partnership against the third-party managing director of the general partner GmbH.  marginal no. 9 ff.

 

BGH 2017

A prohibited disbursement within the meaning of § 30 (1) sentence 1 GmbHG to the detriment of the assets required to maintain the share capital exists with the provision of collateral in rem for a loan repayment claim of a collateral taker against the shareholder if the shareholder is not expected to be in a position to repay and, in addition, an underbalance arises or is deepened. With this and not only with the realisation of the security the limitation of the reimbursement claims of the company according to § 31 para. 5 sentence 2 GmbHG begins.

 

OLG Munich 2017

The insolvency administrator's action for compensation for quota reduction damages is inadmissible for lack of capacity to bring proceedings if the administrator fails to show that the injured creditors are old creditors. margin no. 21 - 24

The claim for reimbursement of payments after maturity of insolvency arises with the respective payment; the arising does not depend on the opening of insolvency proceedings or the rejection of the insolvency petition for lack of cost-covering assets. margin no. 33 - 35

The claim for compensation for quota reduction damages and the claim for reimbursement of payments after maturity for insolvency do not form a uniform subject matter of the dispute at any rate if they do not coincide in terms of amount. margin no. 40 - 45

 

OLG Brandenburg 2017

A partial judgment is inadmissible because of the possibility of a divergent decision in the course of appeal if the relevant legal questions have not yet been decided by the highest court.  Para. 22

If a shareholder with sole power of representation grants a loan to a private limited company whose shares are held by a public limited company of which he is a shareholder and a member of the management board with sole power of representation, he is economically equivalent to a shareholder within the meaning of the former equity substitution rules. margin no. 18 - 21

 

KG 2017

An action or omission by the managing director with the - also tacit - agreement of all shareholders does not constitute a breach of duty giving rise to liability within the meaning of § 43 Paragraph 2 GmbHG. This also applies to the disbursement of company assets with the consent of all shareholders - insofar as there is no breach of duty towards the company - insofar as the limits of §§ 30 f., § 33, § 43 Paragraph 3, § 64 Paragraph 2 GmbHG or the indispensable protection of the GmbH from interventions that destroy its existence are not exceeded.  margin no. 26 - 27

Since the company must grant the former managing director access to the relevant documents, insofar as this is necessary for his defence, his specific assertion that the documents referred to show circumstances that would destroy liability is not considered to be substantially disputed as long as all the documents referred to have not been made accessible to the managing directors sued for liability in the proceedings. margin no. 31 - 32

 

LG Traunstein 2017

In the opinion of the court, a ground for attachment is given, as it is undisputed that the defendant in the attachment has requested that a larger sum of money be paid out not to his own account, but to an account of his wife. In this respect, there is a realistic risk of the seizure of assets from the access of creditors.

The right to seizure exists because the defendant in the seizure has violated to a considerable extent his obligation as de facto managing director pursuant to § 43 GmbHG as well as the management contract.

 

FG Berlin-Brandenburg 2017

For the question of a liability claim of the former managing director according to § 69 in connection with § 34 AO it does not depend on the actual financial capability of the GmbH at the time of the maturity of the tax liabilities, but on its financial capability at the time of the positive knowledge of the GmbH managing director of the existence of the tax liabilities concerned.

Within the scope of the GmbH managing director's liability pursuant to § 69 in conjunction with § 34 (1) AO, the former managing director as the liable debtor has a particularly intensive duty to cooperate in the clarification of the facts with regard to the determination of the company's financial capacity. Lack of cooperation on the part of the liable debtor is procedurally to his detriment.

 

LG Munich II 2017

If the sole shareholder of a GmbH simultaneously acts as the managing director of the company and practically carries out his own instructions, no formal shareholder resolution is required for this; compliance with such an "instruction" cannot lead to liability under § 43, Subsection 2, GmbHG, for compensation for the damage caused thereby.

An exception to these principles is only conceivable if the managing director violates mandatory provisions on the preservation of share capital or § 64 GmbHG or if he issues instructions for or consents to interventions in the company's assets that would destroy its existence.

If the debtor for enrichment has presented the circumstances from which he deduces that he is entitled to keep what he has obtained, in this case the managing director's salary, the creditor must prove that the legal grounds put forward by the debtor do not exist: Managing Director's salary, the creditor must prove that the legal grounds put forward by the debtor do not exist.

 

OLG Cologne 2017

The statute of limitations for claims for damages due to delay in insolvency is governed by section 195 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) both for the damages of the old creditors and for those of the new creditors; an analogous application of section 43 (4) of the German Limited Liability Companies Act (GmbHG) is out of the question.  margin no. 37

The lack of conclusion of a police investigation does not in itself prevent the occurrence of knowledge relevant to the commencement of the regular limitation period; the only relevant factor is whether the creditor can sue for the claim on the basis of the facts known to him. para. 51

 

LG Munich I 2017

 

OLG Bamberg 2017

An abuse of rights regularly exists if the managing director who resigns from office is the only one, if he is at the same time the sole shareholder and if he refrains from appointing a new managing director for the company.

 

OLG Frankfurt a. M. 2017

 

KG 2016

 

LG Saarbrücken 2016

 

LG Duisburg 2016

 

OLG Hamburg 2016

 

LG Hamburg 2016

 

LG Hamburg 2016

 

LG Düsseldorf 2016

 

LG Cologne 2016

 

LG Bonn 2016

 

LG Frankfurt Oder 2016

 

OLG Düsseldorf 2016

 

LG Essen 2016

 

LG Kiel 2016

 

LG Verden 2016

 

LG Hamburg 2016

 

BVerwG 2016

The professional duty of independence pursuant to § 72 (1) in conjunction with § 57 (1) StBerG. Section 57 (1) StBerG applies to the managing director of a tax consulting company irrespective of whether his internal company responsibility extends to consulting tasks.

The rebuttal of the threat to professional duties required for the admission of an exception to the prohibition of commercial activity pursuant to section 57 (4) sentence 1 no. 1 half-sentence 2 StBerG does not only fail if there is a demonstrable concrete danger of individual breaches of duty. The rebuttal already fails if a risk to professional duties cannot be ruled out because conflicts of interest between professional and commercial activity are clearly emerging which cannot be banished by professional practice regulations Continuation of BVerwG, judgement of 26 September 2012 - 8 C 26.11 - BVerwGE 144, 211.

The managing director of a tax consulting company cannot avoid conflicts of interest arising from his simultaneous activity as head of commercial enterprises by limiting his duties as managing director of the tax consulting company within the company to human resources, marketing and other administrative tasks.

 

LSG Baden-Württemberg 2016

On the status under social security law of the shareholder-director of a GmbH with a capital minority and a blocking minority with regard to instructions of the shareholders' meeting here: self-employment.

The voting prohibition of § 47 (4) sentence 2 GmbHG does not apply to resolutions of the shareholders' meeting on instructions to the managing director.

 

BAG 2016

The personal liability of the representatives of the executive bodies pursuant to § 7e VII 2 SGB IV does not apply to the insolvency protection of credit balances from partial retirement in the block model pursuant to § 8a I 1 half-sentence 2 AltTZG.

 

BGH 2016

If two managing directors of a general partner GmbH, who are the sole shareholders of the GmbH and the sole limited partners of the limited partnership, grant each other remuneration for activities to be paid by the limited partnership, to which they are entitled on the merits according to the partnership agreement of the limited partnership, while the determination of the exact amount is left to the decision of the partners' meeting, this agreement is in principle effective, even if the managing directors are not exempt from the prohibition of § 181 BGB.

The remuneration of a managing partner can also be agreed in the articles of association independently of the conclusion of an employment contract, whereby the exact amount does not have to be specified in the articles of association, but can be left to be determined "on a case-by-case basis" by resolution of the shareholders' meeting.

 

OLG Munich 2016

If, according to the articles of association of the limited partnership, the general partner requires the consent of the partners' meeting for extraordinary transactions, such transactions of an exceptional nature are to be understood in terms of their nature and content, in particular drastic changes in organisation or distribution, taking into account the particular circumstances of the partnership.

The introduction of a further level in the sales structure represents a drastic change in the sales organisation, which then requires the approval of the shareholders' meeting.

No factual argument is required for the inclusion of the reservation of the limited liability of the heir in the judgment; it is sufficient to raise the plea under § 780 of the Code of Civil Procedure.

 

OLG Dresden 2016

The legal interest required for an intervening party to intervene exists if the decision of the legal dispute has a legally favourable or unfavourable effect, either directly or indirectly, on the private or public-law circumstances by virtue of its content or execution. Admission is granted in this case even if the interest of the intervening party is limited to a part of the main action. The law opens up the possibility for the intervener to join a party for its support without limiting this support to the part to which the intervener's interest extends. para. 106

If it is possible to establish a legal interest in both the one and the other party prevailing within the meaning of § 66 (1) ZPO, for example because each outcome of the proceedings brings possible legal advantages and disadvantages for the intervening party, it is up to the intervening party to choose which party he wishes to support; he merely cannot join both sides at the same time. Para. 108

The relevance of a second-instance amendment or extension of the action is to be assessed objectively from the point of view of procedural economy. The decisive factor is whether allowing the amendment to the action will eliminate the matter in dispute in the pending litigation and prevent further litigation. From the standpoint of procedural economy, what matters is not the expedited disposition of this litigation, but the disposition of the issues between the parties. Relevance can therefore only be denied if a completely new matter is to be introduced into the litigation, in the assessment of which the result of the previous litigation cannot be utilized.  Para. 112

 

OLG Hamm 2016

The conversion of an auxiliary claim into a main claim constitutes an amendment of the claim which is admissible in appeal proceedings only under the conditions of § 533 ZPO.  Para. 36

A binding resolution opening the action for rescission/annulment pursuant to Sections 246, 249 AktG against a resolution adopted by a shareholders' meeting of a GmbH is to be assumed, if such a resolution has not already been adopted by the chairman of the meeting, if the shareholders involved agree on the result of the vote at the time the resolution is adopted. margin no. 43

Managing directors of a GmbH must immediately follow up on indications of violations of the law or irregularities on the part of company employees. If there are tangible indications of infringements, sufficient precautions must be taken against further breaches of the law. margin no. 66

 

OLG Cologne 2016

The principal debtor may also claim against the principal claim transferred to the guarantor that the guarantor is denied recourse because the guarantee was taken out for a debt which actually concerns the guarantor and was taken out in his interest here: Influx of loan proceeds from a bridging loan to the guarantor. para. 26

Liability of the GmbH managing director pursuant to §§ 43 (3), 31 (1), 30 (1) GmbHG due to the collateralization of a bridging loan cannot be considered if the company itself has benefited from the performance of the collateral taker. margin no. 40

If the GmbH managing director uses parts of the loan proceeds raised in his favour for the benefit of the GmbH in the context of an intervention that destroys the GmbH's existence, the company will not be compensated for the damage. margin no. 62

 

OLG Hamm 2016

The individually negotiated agreement of a preclusion period for mutual claims arising from the employment relationship of six months is in principle permissible and is not subject to any reservations.  margin no. 55

The expiry clause is not invalid pursuant to § 305c, Subsection 1, BGB, as it is not surprising or unusual.

The duty to make a claim does not contain any exclusion or limitation of liability. margin no. 64

A party who relies on circumstances outside the document, in particular to show that the parties had a concurring intention different from the text of the document, bears the burden of proving these conditions. para. 91

A request for evidence - insofar as it concerns the internal fact of another person, such as the understanding with regard to a contractual clause - is only relevant and a witness is only to be examined with regard to such internal fact if it is conclusively shown on the basis of which circumstances the witness became aware of the internal fact. para. 94

 

OLG Schleswig 2016

 

OLG Koblenz 2016

 

BAG 2016

68161: The personal liability of the organs pursuant to § 7e, Subsection 7, Sentence 2, SGB IV does not apply to the insolvency protection of credit balances from partial retirement in the block model pursuant to § 8a, Subsection 1, Sentence 1, Hs. 2, AltTZG; this is not unconstitutional. red. LS Ulf Kortstock

 

BAG 2016

68161: The personal liability of executive bodies pursuant to § 7e, Subsection 7, Sentence 2, SGB IV, does not apply to the insolvency protection of credit balances from partial retirement in the block model pursuant to § 8a, Subsection 1, Sentence 1, Hs. 2, AltTZG; this is also not unconstitutional. red. LS Ulf Kortstock

 

LG Hanover 2016

(1) For the assessment of the question whether someone has de facto acted like a member of a governing body and, as a consequence of his conduct, has to answer for himself like a member of a governing body appointed according to law, the overall appearance of his conduct is decisive. According to this, it is not necessary that the person acting completely displaces the statutory management. Rather, it is decisive that the person concerned has taken the fate of the company - beyond the internal influence on the statutory management - decisively into his own hands through his own actions in the external relationship, which have a lasting effect on the activities of the legal management body.

 

OLG Koblenz 2015

 

LG Duisburg 2015

 

LG Duisburg 2015

 

LG Berlin 2015

 

OLG Hamm 2015

 

AG Ratzeburg 2015

 

OLG Hamm 2015

 

LG Bonn 2015

 

LG Dortmund 2015

 

LAG Hesse 2015

 

LAG Hesse 2015

 

LAG Hesse 2015

 

LAG Hesse 2015

 

LAG Hesse 2015

 

LAG Düsseldorf 2015

 

LAG Düsseldorf 2015

 

LAG Düsseldorf 2015

 

ECJ 2015

Article 1(I)(a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as precluding a national rule or practice which, for the purposes of calculating the number of employees referred to in that provision, does not take into account a member of the management of a capital company, such as that at issue in the main proceedings, who carries out his duties under the direction and supervision of another body of that company, receives remuneration in return for his services and does not himself hold shares in that company.

Article 1(I)(a) of Directive 98/59 must be interpreted as meaning that a person, such as that at issue in the main proceedings, who, in the context of a traineeship without remuneration from his employer but financially supported and recognised by the public authorities responsible for employment promotion, works in an undertaking on a practical basis in order to acquire or improve knowledge or to undergo vocational training, must be regarded as a worker within the meaning of that provision.

 

OLG Celle 2015

The liability of the de facto managing director of a GmbH is subject to the standards of § 43, Subsection 2, GmbHG.

The de facto managing director is liable for withdrawals from the GmbH's account if it is established that he made the cash withdrawals but he is unable to prove his assertion that he deposited the money in the company's cash box.

A former managing director is still to be regarded as a de facto managing director after his dismissal if he is present on the business premises on a daily basis, is always at the side of the new managing director, who does not speak German well enough, in order to ensure the liquidity of the company and withdraws large amounts in cash from the company's accounts by virtue of his continuing power of attorney.

 

OLG Naumburg 2015

If a certified copy of the judgment appealed against is attached to the notice of appeal pursuant to § 519 III ZPO, the appellant shall, in case of doubt, appeal against that decision, even if the notice of appeal indicates a different file number.

A GmbH with a supervisory board is also represented by the supervisory board vis-à-vis the retired managing director.

The Managing Director may not purchase a new vehicle on similar terms before the expiry of the leasing contract concluded for his company car and burden the Company with the costs of premature termination of the contract.

 

LAG Mecklenburg-Western Pomerania 2015

The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the executive bodies of a legal entity does not apply to the statutory provision on insolvency protection of credit balances from partial retirement agreements under § 8a, AltTZG.

 

LAG Mecklenburg-Western Pomerania 2015

The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the executive bodies of a legal entity does not apply to the statutory provision on insolvency protection of credit balances from partial retirement agreements under § 8a, AltTZG.

 

LAG Düsseldorf 2015

A fine imposed on a GmbH pursuant to Section 81 GWB cannot be claimed by the company from the managing director pursuant to Section 43 II GmbHG. The separation between sanctioning under regulatory law and bearing the burden under civil law does not indicate that a fine is always a compensable damage. The legislative assessment that the norm addressee of the fine is the company and not the persons acting on its behalf must also be taken into account in civil law. This applies at least to cartel fines imposed by the Bundeskartellamt, which according to Section 81 V GWB can optionally include the skimming off of the advantage gained by the undertaking and according to Section 81 IV GWB can be imposed on the undertaking itself as well as on the persons acting on behalf of the undertaking, taking into account a different range of fines.

 

OLG Munich 2015

The managing director of a GmbH is liable pursuant to § 43 II GmbHG if he does not prevent or stop salary payments of a co-managing director to himself which are recognisable to him as being in breach of his duties.

If a managing director transfers an excessive salary to himself on the basis of an invalid agreement, a claim for damages in this respect - which is recognisable to the discharging body on the basis of the rendering of accounts including all documents made accessible when applying the due diligence required in the course of business - can no longer be asserted if the company has validly granted him discharge for this period.

If there is a dispute as to whether a payment made by the managing director to himself was in accordance with his duties, the company only has to show that the managing director made payment in respect of a claim which may not have existed, whereas it is up to the managing director to show and, if necessary, prove that he had a claim to payment, also BGH BeckRS 2009, 20294.

 

FG Munich 2015

A pension entitlement of a controlling shareholder-director can only withstand an arm's length comparison if there is a period of at least 10 years between the granting of the pension commitment and the planned retirement.

If the managing director's employment contract is terminated before the expiry of the 10-year period, these conditions are not met, even if the position as managing director continues, so that the pension paid to the managing director is to be treated as a hidden profit distribution.

 

FG Munich 2015

For the withdrawing shareholder whose share is withdrawn pursuant to § 34 GmbHG, the withdrawal becomes effective upon receipt of the withdrawal declaration. A possible loss pursuant to § 17 EStG would therefore have arisen and been recognised in this assessment period.

In the case in dispute, it could be left open whether § 24 No. 2 EStG is superseded in the case of subsequent expenses within the scope of § 17 EStG by the special provision on the determination of profits in § 17, para. 2 EStG.

 

Düsseldorf Higher Regional Court 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.

 

OLG Munich 2015

(1) The company bringing an action under Sec. 43 II GmbHG bears the burden of proof that and to what extent it has suffered damage due to a possible breach of duty by the managing director. It bears the burden of proof that the conduct of the managing director which is the cause of the damage falls within the scope of his duties. The company must demonstrate the occurrence of the damage and its causation by conduct of the managing director that is "possibly in breach of duty" and prove this in the event of a dispute.

Beyond the wording of Section 93 (2) sentence 2 AktG, the managing director may be subject to a presumption of causality if the nature of the damage provides a clear indication that it has its roots in an action or omission of the defendant managing director.  For his part, the managing director must present and prove evidence that the conduct causing the damage was not in breach of duty or at least that he cannot be blamed for the breach of duty.

A claim from § 311 AktG analogously in the GmbH group is to be denied. The provisions on liability in the absence of a control agreement, so-called factual group, §§ 311 - 318 AktG, the protective tendency of which is only related to the shareholding company, only cover the GmbH as the controlling company and only if the controlled company is an AG or KG aA.

 

FG Saarland 2015

An "agreement on the accumulation of credit balances in time value accounts" concluded by the controlling shareholder-director with the GmbH, according to which, by way of a cash salary conversion, a part of the agreed managing director's salary, combined with the formation of a profit-reducing provision for time value accounts, is transferred free of wage tax to an investment account of the GmbH at a bank and is thus to serve the financing of an early retirement and/or for the retirement provision of the shareholder-director, does not stand up to an arm's length comparison if, among other things, the agreements do not contain clear and unambiguous provisions regarding the amount of the deferred compensation or the provision for second value accounts, and if it is solely up to the controlling shareholder-director to determine whether he wishes to shorten his working life or prefers the conversion of the salary provisions into a company pension plan, and if the corporation has no means of influencing this and is completely dependent on the decision of the shareholder-director, e.g. with regard to a gradual induction of a successor or the point in time of a complete retirement of the shareholder-director.

With regard to this agreement under 1., however, a vGA of the GmbH only exists to the extent that the reduction in profit due to the formation of the provision exceeds the salary expenses of the GmbH saved by the cash salary conversion and incurred without the conversion. If the current salary of the shareholder managing director is increased in connection with the plans for the cash salary conversion so that the managing director should not experience any disadvantage in his livelihood due to the reduced salary to be paid to him as a result of the cash salary conversion, and if no operational reasons for this salary increase are apparent, then this salary increase is to be taken into account in the vGA.

In cases of so-called deferred compensation, in which instead of salary payments, savings are made, for example in the form of a pension entitlement or in a separate account for later "time value models", and the posting of a certain amount as an addition to provisions, e.g. for pension or time value accounts, proves not to be customary for third parties. for pension or time value accounts proves not to be customary, for example, because the written form requirement is not fulfilled in the case of a controlling shareholder-managing director, the corporation saves the salary expense that would otherwise have to be paid; this saving is to be taken into account in the calculation of the reduction in assets that is decisive for the amount of a vGA.

 

OLG Jena 2015

As a rule, the GmbH may not be deleted from the commercial register before the end of the blocking year, even if the known creditors have been satisfied and the remaining assets have already been distributed in breach of the prohibition; this is because all creditors should have the opportunity to report and, if necessary, assist in locating assets, e.g. claims of the company under sections 73, 43 GmbHG. The registration of the deletion before the end of the blocking year can only be considered in exceptional cases: if the company no longer has any distributable assets. If assets cannot be determined, it is irrelevant under civil law principles whether the tax authorities still have tax claims against the company concerned; they do not prevent the registration of the deletion of the company filed in the course of the liquidation from being ready for execution.

 

OLG Hamm 2015

1. missing reference in the folder of a capital investment to the possible liability risk of the investor as a trustor limited partner of a GmbH & CO KG after §§ 30, 31 GmbHG is not a folder error obligating to the payment of damages.

 

OLG Brandenburg 2015

(1) A breach of duty of the managing director within the meaning of § 43 II GmbH that gives rise to liability is regularly excluded if the shareholders' meeting instructs the managing director to act in a manner that is later objected to. Insofar as the managing director does not violate legal obligations through such instructed conduct, such as in particular from the provisions of §§ 30, 64 GmbHG, he must follow the instructions of the shareholders' meeting. Since he acts in this case in agreement with the highest will-forming organ of the society, a adhesion is impossible opposite the society according to § 43 II GmbH on replacement of the damage caused thereby. The execution of an instruction, to which the managing director is obliged vis-à-vis the GmbH, is therefore not in breach of duty in relation to the company even if company assets are reduced as a result. In the case of instructions from the sole shareholder of a one-person company, no formal shareholder resolution is required for this.

 

OLG Brandenburg 2015

(1) On the assets side of the over-indebtedness status, all assets are to be recognised which, in the event of the opening of insolvency proceedings pursuant to section 35 InsO, are part of the realisable assets; on the liabilities side, all liabilities are to be recognised which - irrespective of their maturity - are to be satisfied from the company's assets. Within the framework of the secondary burden of proof incumbent upon him, the defendant managing director must state in detail in which points hidden reserves or other values relevant for an over-indebtedness balance sheet are not shown.

 

OLG Munich 2014

 

LG Cologne 2014

 

OLG Hamburg 2014

 

LG Mainz 2014

 

OLG Koblenz 2014

 

LG Mainz 2014

 

ArbG Stralsund 2014

 

ArbG Stralsund 2014

 

OLG Brandenburg 2014

 

LG Berlin 2014

 

LG Berlin 2014

 

OLG Koblenz 2014

A GmbH or, after its insolvency, the insolvency administrator, in the legal dispute about claims for damages against its managing director pursuant to § 43 II GmbHG - in accordance with the principles of §§ 93 II AktG, 34 II GenG - only has the burden of presentation and proof that and to what extent it has suffered damage due to the conduct of the managing director within the scope of his duties, whereby it can benefit from the facilitations of § 287 ZPO. On the other hand, the managing director has to explain and prove that he has fulfilled his duties of care pursuant to § 43 I GmbHG or that he is not at fault, or that the damage would also have occurred in the event of dutiful alternative conduct in connection with BGHZ 152, 280 ff = NZG 2003, 81.

In the case of entrepreneurial decisions, the managing directors are generally entitled to a liability-free scope of action, an entrepreneurial discretion, within the scope of the object of the company. The conscious taking of business risks, which is an essential feature of entrepreneurial activity, also includes, in principle, misjudgements in connection with BGHZ 135, 244, 253 = NJW 1997, 1926. If a business transaction fails and the company is damaged as a result, then liability under § 43 GmbHG, which does not justify liability for economic failure, is excluded insofar as the managing directors have exercised their discretion without error. On the other hand, an erroneous exercise of entrepreneurial discretion is to be assumed if, from an ex ante perspective, the actions of the managing director with regard to the information obtained appear to be unjustifiable as a basis for decision-making. A judicial review of entrepreneurial actions therefore only takes place as to whether the managing director was granted a margin of discretion in the respective situation and whether this discretion was exercised properly. Thus, the court has to judge independently from later gained knowledge and must not appear as a "subsequent know-it-all".

If the managing director of a GmbH makes down payments to a GmbH in the start-up stage for a motor vehicle sale without securing them by means of surety bonds or performance bonds, this does not comply with the duties of care of a prudent businessman.

 

BGH 2014

In the case of a GmbH & Co. KG, a payment from the assets of the limited partnership to a shareholder of the general partner GmbH or a limited partner is a payment prohibited under § 30 I GmbHG if, as a result, the assets of the GmbH fall below the nominal capital figure or a balance sheet over-indebtedness is deepened. If the recipient of the payment is also a shareholder of the general partner GmbH, it is basically irrelevant for his liability under § 30 I GmbHG whether a natural person also has unlimited liability as a general partner.

The managing director of the general partner GmbH is liable to the limited partnership pursuant to § 43 III GmbHG for payments from the assets of the limited partnership to a shareholder of the general partner GmbH which are prohibited pursuant to § 30 I GmbHG.

 

ArbG Verden 2014

The following questions are referred to the ECJ pursuant to Article 267 TFEU: Is the relevant European Union law, in particular Article 1(I)(a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, to be interpreted as precluding national legislation or practice which, for the purposes of calculating the number of employees provided for in that provision, does not take into account a member of the management of a capital company, even if he carries out his activities under the direction and supervision of another body of that company, receives remuneration in return for those activities and does not himself hold shares in the company?

Must the relevant European Union law, in particular Article 1(I)(a) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies1998 on the approximation of the laws of the Member States relating to collective redundancies, to be interpreted as meaning that it is mandatory for the calculation of the number of employees provided for in that provision to include as employees those persons who, without being remunerated by the employer but financially supported and recognised by the public bodies responsible for employment promotion, work on a practical basis in order to acquire or improve knowledge or to undergo vocational training 'trainees', or is it left to the Member States to establish national legal provisions or practices in that regard?

 

OLG Naumburg 2014

The exclusive internal competence of the shareholders' meeting for all agreements concerning the employment relationship of the managing director also includes - subject to deviating individual provisions in the articles of association - other legal transactions which are directly related to the position of the managing director.

If the managing director of a GmbH concludes a contract with himself or with a company in which he acts as shareholder-managing director for services which are typically regulated in a managing director's employment contract or are at least directly related to the management of the company, e.g. analysis of the operating processes in the company and advice on their optimisation, this contract falls within the original competence of the shareholders' meeting in the same way as a managing director's employment contract itself.

A managing director who, in contradiction to the asset interests of the company, claims remuneration services at the company's expense on the basis of a contract concluded with himself without providing equivalent consideration for this, violates the duties to refrain arising from his position as a member of the executive body and is liable to pay damages pursuant to § 43 II GmbHG.

 

LG Deggendorf 2014

Pursuant to § 43 GmbHG, the managing director of a GmbH owes the company repayment of an overpayment of his remuneration if there is no corresponding shareholder resolution for the amendment of the employment contract with the increased remuneration pursuant to § 46 GmbHG. The fundamental competence of the shareholders' meeting also applies to amendments to the employment contract.

The co-managing director is also liable under § 43 GmbHG for the overpayment of remuneration to the other managing director if he signs the amended employment contract for the other managing director and he has not made sure that there is no corresponding shareholder resolution.

 

OLG Munich 2014

If the original counterclaim is inadmissible due to the absence of the prerequisites of a voluntary litigation status, the counterclaim must be dismissed.  The restatement of a claim for a declaratory judgment in the counterclaim constitutes an amendment of the action which, however, is not admissible on appeal in the absence of a cross-appeal by the counterclaimant.

A disregard of the company's order of competence can in principle constitute a serious breach of the duties of the managing director. This applies regardless of whether the measures taken were in the interest of the company.

If the business service agreement expressly provides for extraordinary termination based on the fact that the company suffers damage, no concrete calculation of damage is required for the termination and it also includes disadvantageous transactions.

 

OLG Munich 2014

The manager of a property development company may be required to give notice of construction delays to the company if this results in significant cost overruns.

However, liability of the managing director vis-à-vis the company pursuant to Sec. 43 (2) GmbHG can only be considered if the damage suffered by the company as a result was caused causally, which the company must prove in the proceedings.

The managing director is deemed to have acted in breach of his duties towards the company if he awards contracts to preferred companies at excessive prices to the detriment of the company, whereby he must prove his lack of fault in the proceedings.

 

OLG Munich 2014

The insolvency administrator is entitled to reimbursement of expenses in the absence of an accounting by the debtor's former managing director.

The claim for settlement and, if applicable, reimbursement of advances for expenses against the former managing director arises with the end of the assignment or the management of the business, i.e. here with the discontinuation of the debtor's business.

 

OLG Munich 2014

The no-vote of a GmbH shareholder against a resolution proposal by which a planned management measure is to be approved is ineffective due to a breach of fiduciary duty if the shareholder has no objections to the content of the measure. The shareholder's interest in wanting to maintain the managing director's own responsibility for the management measure in question in accordance with the company agreement's order of competences is not worthy of protection.

 

BGH 2014

(1) The wording of Article 3(1) of the Eulns Regulation does not require that the facts to be determined have links to two or more Member States, and the purpose of the Regulation, namely to improve the efficiency and effectiveness of insolvency proceedings with cross-border effects, and in particular the objective of Article 3 of the Eulns Regulation, namely to promote the predictability of jurisdiction and thus legal certainty, cover all cross-border situations.

 

LG Stuttgart 2013

 

Higher Regional Court Hamm 2013

 

OLG Brandenburg 2013

 

OLG Koblenz 2013

 

Stuttgart Higher Regional Court 2013

 

LG Kassel 2013

 

LG Essen 2013

 

OLG Karlsruhe 2013

 

BGH 2013

If a security provided for a shareholder loan which is subject to avoidance is realised, the avoidance shall also apply in the absence of a blocking effect of the fact of satisfaction if the realisation took place more than one year prior to the filing of the application.

An assignment of claims granted by the debtor as security for a loan is voidable if the debtor's shareholder holds a 50% interest in the lending company and is also its managing director with sole power of representation.

 

BGH 2013

In any case, if the sole or essential task of a general partner GmbH is to manage the business of a limited partnership, the scope of protection of the special legal relationship between the general partner GmbH and its managing director established by the appointment extends to the limited partnership with regard to the managing director's liability under § 43 II GmbHG in the event of negligent management.

With regard to the need for protection of the limited partnership necessary for the extension of liability pursuant to § 43 II GmbHG, an act in breach of duty which gives rise to liability cannot be assumed as a rule if all partners of the limited partnership agreed with the actions of the managing director of the general partner GmbH.

 

LG Wiesbaden 2013

On liability pursuant to § 43 II GmbHG due to omission of the claim for contribution of the general partner of a GmbH Co. KG by limitation.

A payment on the time-barred contribution claim does not have the effect of reducing damages within the scope of § 43, Subsection 2, GmbHG, if it is passed on to the KG as a loan.

If the action brought against two litigants is withdrawn against one of them, the plaintiff who otherwise prevails bears only the extrajudicial costs of the defendant against whom the action was withdrawn, following OLG Frankfurt am Main, judgment of 16.12.1999 - 12 U 172/98.

 

Hamburg Higher Regional Court 2013

The managing director of a GmbH, who is responsible for the operational business according to the internal allocation of duties, is not liable under the aspect of the risk of repetition for the trademark infringement of the company, if he neither acted himself nor participated in the act of a principal perpetrator nor - in the absence of knowledge of the infringement - is responsible according to the rules of "Stoererhaftung" (Breach of Duty of Care) and he is also not charged with any organisational fault. The question of whether an alleged ignorance is only pretended in order to avoid liability must be answered by assessing all the circumstances of the individual case. There is no initial risk of future violations attributable to the managing director if he defends his conduct in the lawsuit as lawful after the company has already submitted to punishment beforehand.

Other managing directors, who are not responsible for the operational business of the company according to the internal business distribution, are not liable for the trademark infringement of the company with regard to the domestic presence of the operationally responsible managing director, even if they are permanently abroad.

 

OLG Celle 2013

The company can no longer successfully enforce a post-contractual non-competition clause of the managing director under the employment contract if the managing director has justifiably resigned from office for good cause.

 

OLG Munich 2013

The managing director of the general partner GmbH of a public KG can be liable to the KG pursuant to § 43 II GmbHG if he files an application for the opening of insolvency proceedings on the assets of the KG due to impending insolvency § 18 InsO without the consent of the KG shareholders.

 

FG Saarland 2013

The requirements for the recognition of a pension provision as a liability in the balance sheet of the GmbH do not apply if the controlling shareholder-managing director terminates his activity as managing director approximately five and a half years after issuing the pension commitment and thus before the expiry of the ten-year vesting period and from then on only waives his current managing director's salary, but not his pension entitlement.

If a 57-year-old controlling shareholder-managing director was promised a pension - to be recognized for tax purposes - beginning with his 68th birthday, and if he actually leaves the company after just over five years as managing director, the retention of the pension provision is not to be treated in full as a vGA even if the pension commitment does not contain any provision for the pro rata reduction of pension entitlements in the event of premature departure.

However, a vGA exists insofar as the pension commitment contains an adjustment clause in the event of a significant change in circumstances and no use is made of this in the event of the premature termination of the managing director's activity. A prudent manager would have reduced the amount of the promised monthly retirement pension to the amount actually "earned" by the departing shareholder-managing director on the basis of his previous activities after granting the pension commitment until his departure and would have ensured a correspondingly lower recognition of the pension provision in the balance sheet of the GmbH.

 

LG Munich I 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 conduct of the managing director in his area of responsibility, as does BGH BeckRS 2002, 30291254.

In contrast, the managing director must demonstrate and prove that he has fulfilled his duty of care in accordance with § 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.

 

LG Traunstein 2013

For the commencement of the period of notice for the extraordinary termination of a GmbH managing director pursuant to § 626, Subsection 2, BGB, the knowledge of the members of the shareholders' meeting is generally decisive.

If, according to the articles of association, the "conclusion of lease, rental, license or similar contracts establishing a continuing obligation if the anticipated obligations of the company under the contract exceed the total amount of DM 300,000.00 during its minimum term" by the managing director requires the prior consent of the shareholders' meeting, a worldwide and exclusive distribution agreement for the "independent aftermarket" concluded by the managing director without such consent with an annual sales volume of more than € 6 million constitutes a breach of duty obliging him to pay damages.

 

OLG Munich 2013

If the managing director arranges for the payment of unauthorised - not business-related - expenses, this constitutes a breach of duty giving rise to a claim for damages pursuant to Sec. 43 (2) GmbHG.

The discharge of the managing director has the effect of precluding the company from asserting claims against the managing director, provided that the conditions for the claim were known to the shareholders or were recognisable on careful examination and the managing director made the necessary documents and information available to them.

The possibility of a breach of duty by the managing director is not sufficiently demonstrated by the blanket assertion that the rent for premises rented by the managing director is overpriced.

 

ArbG Essen 2013

(1) Despite the general responsibility of a managing director of a GmbH, a managing director is not liable for cartel violations committed by employees of the GmbH if these were either examined by the compliance department responsible within the group and not objected to or if they were outside his internal responsibility and were not known to him. The claim of a managing director for the fine imposed on the company, which can amount to up to 10 % of the turnover, would also be abusive in view of the fact that according to Section 81 IV GWB the fine against a natural person can amount to a maximum of EUR 1 million.

 

OLG Frankfurt a.M. 2013

(1) In the event of the insolvency of the Subsidiary, the relevant reason for the introduction of the Limitation Language, i.e. the protection of the managing directors from liability for improper repayments to the shareholders, ceases to exist. Therefore, there is no longer an objective reason for the Limitation Language.

 

Audiencia Provincial de Barcelona 2013

The administrator of main proceedings is permitted to proceed in other Member States in principle in the same way as he could in his own country. Because a corresponding liability action could be brought in Germany before the German courts, it can also be brought in Spain before the Spanish courts.

 

Düsseldorf Higher Regional Court 2012

 

LG Münster 2012

 

OLG Frankfurt 2012

 

OLG Frankfurt 2012

 

OLG Koblenz 2012

 

LG Berlin 2012

 

BPatG 2012

 

BGH 2012

If the shareholder-managing directors of a GmbH sell the company assets in liquidation to a company which is dependent on them, this can only constitute an intervention which destroys the company's existence if the assets are transferred below their value.

If a distribution to the shareholder of a GmbH leads to an underbalance because a loan repayment claim of the company against the shareholder must be value-adjusted according to balance sheet principles, the claim from § 31 I, § 30 I GmbHG does not already expire through the repayment of the loan.

Section 43a GmbHG only covers the granting of a loan. If the company subsequently enters into an underbalance, § 43a GmbHG is not applicable.

 

OLG Naumburg 2012

The dissolution of a GmbH pursued by means of an action pursuant to §§ 60, Subsection 1, No. 3, 61, Subsection 1, GmbHG, is generally out of the question if milder means are available to eliminate any significant corporate problems that may exist.

As a rule, personal reasons in the person of the shareholders themselves are not suitable to support an action for dissolution. If, however, there is a profound and obviously irremediable discord between the shareholders which has prevented the unanimous shareholders' resolutions required under the articles of association from being passed in recent years, this constitutes an important reason for dissolution.

If the plaintiff has no measurable economic advantages through the action for dissolution, which does not provide an enforceable title to the settlement assets, and if the plaintiff also does not claim any measurable economic disadvantages through a possible continuation of the GmbH, the amount in dispute of the action for dissolution is measured according to the nominal value of his share in the business.

 

OLG Dresden 2012

A concealment of adverse facts within the meaning of § 264a StGB requires a conscious "not telling" or concealment. Therefore, a civil action of the management board of a record company responsible for the prospectus pursuant to § 823 (2) BGB in conjunction with § 264a StGB does not exist if the disadvantageous facts - even if difficult to understand and find - are contained in a sales prospectus on bearer bonds.

 

BGH 2012

The position as managing director of a GmbH or member of the executive board of a stock corporation alone does not give rise to a guarantor obligation vis-à-vis outside third parties to prevent damage to their assets. The duties arising from the position as a corporate body to properly manage the company's business under § 43 I GmbHG, § 93 I 1 AktG, which also include the duty to ensure the lawfulness of the company's actions, exist in principle only vis-à-vis the company and, in the event of their violation, give rise to claims for damages in principle only for the company.

 

LG Berlin 2012

1 The managing director of a general partner GmbH can be liable to the GmbH & Co KG for conduct in breach of duty in accordance with § 43Â II GmbHG according to the principles of the contract with protective effect in favour of third parties.

(2) Breaches of duty by the managing director of a general partner GmbH vis-à-vis the GmbH & Co KG may lead to dismissal as managing director of the sole shareholder of the general partner.

 

BGH 2012

Since the purpose of the offence of breach of trust is to protect the assets entrusted to the person obliged to act in trust, dispositions made in agreement with the owner of the assets are in principle not in breach of duty within the meaning of section 266 (1) of the Criminal Code, unless the agreement is invalid for certain reasons. margin no. 15

In the case of a GmbH, the asset owner is replaced by the entirety of its shareholders, who must consent to a disposition. If, however, a holding company is the sole shareholder of the GmbH, the latter constitutes the entirety of the shareholders. margin no. 15

The denial of "special circumstances" within the meaning of § 56.2 sentence 1 of the Criminal Code may not be based on the fact that a defendant has denied the offence or has not commented on it. Para. 21

 

OLG Munich 2012

If several shareholders have a direct and indirect interest in a corporation, the company's loss of profit does not have to be reflected in the shareholders' assets, since the value of shares in the company cannot be equated with a share in the company's assets. As a consequence, the company's own claim for damages has priority over the claim of the merely indirectly injured shareholders of an investment company.

If the shareholders' resolution required for the company to pursue a claim pursuant to § 46 no. 8 GmbHG is missing, the claim is unfounded. This also applies to the actio pro socio unless, exceptionally, a reference to the lack of a shareholders' resolution is inadmissible from the point of view of fiduciary duty.

 

FG Saxony-Anhalt 2012

The regular vesting period for pension commitments to controlling shareholder-managing directors is also ten years for pension commitments made from January 2001 - irrespective of the reduction of the vesting period in the BetrAVG through the insertion of § 1b, para. 1, sentence 1 of the BetrAVG with the Act to Reform the Statutory Pension Insurance and to Promote Funded Retirement Assets - Retirement Assets Act - of 26 June 2001, Federal Law Gazette I 2001, 1310 to five years. 26.6.2001 BGBl I 2001, 1310 to five years - further ten years, whereby the granting of the pension commitment and the envisaged occurrence of the pension event are decisive for the determination of the time limit Connection to BFH v. 19.11.2008, I B 108/08. This applies not only to an initial commitment, but also to subsequent amendments or increases to the commitment.

In the case in dispute: The allocations to the pension provision in favour of the shareholder-manager of a GmbH constitute vGA if the beneficiary only has seven years and seven months left to earn the pension entitlement at the time of the first pension commitment.

 

OLG Hamburg 2011

 

OLG Brandenburg 2011

 

LG Bielefeld 2011

 

OLG Cologne 2011

 

LG Duisburg 2011

 

OLG Naumburg 2011

 

OLG Schleswig 2011

 

LG Aachen 2011

 

OLG Düsseldorf 2011

Even if the company is undercapitalised for accounting purposes, transactions with shareholders are not prohibited per se if they are justified by operational reasons, i.e. if they would also have been concluded with a third party in the same way and on corresponding terms.

The remuneration for the activities of a shareholder-manager must be appropriate, i.e. it must not be disproportionate to the remunerated performance and thus to the remuneration that an external manager would have received for the same activity.

The shareholders, who are best placed to judge for themselves what it is worth to them and their business to attract a particular director, are left with a discretionary power removed from review by the court.

The liability of the managing director pursuant to § 64 GmbHG requires an economic collapse of the company, which cannot be assumed in the event of an interim economic recovery of the company from loss-making years.

 

KG 2011

The managing director of the general partner GmbH is liable to the limited partnership, irrespective of the existence of an employment relationship, at least solely on the basis of the third party protective effect of his position as a member of the executive body in accordance with § 43 II GmbHG, if the sole or essential task of the general partner GmbH is to manage the business of the limited partnership.

The assertion of claims for damages of the limited partnership against the managing director of the general partner GmbH does not require a prior resolution of the shareholders pursuant to § 46 no. 8 GmbHG.

The managing director of the general partner GmbH violates the due diligence of a prudent businessman to be observed by him pursuant to § 43 I GmbHG if he concludes fee agreements after the commissioned legal services have been rendered despite having previously verbally commissioned a law firm in connection with the preparation of an offering prospectus, which oblige the limited partnership to pay EUR 375000 and EUR 150,000 to the law firm, without first obtaining legal advice as to whether the limited partnership is obliged to - subsequently - conclude the fee agreements and whether it suffers an economic disadvantage, if any, from the amount of the agreed fees. in what amount, if any.

The managing director is not liable if his actions are based on instructions from the shareholders or have been approved by them. However, this only applies if the managing director has sufficiently communicated the factual basis for the decision to be made to the shareholders prior to their instruction or approval, has sufficiently informed them about risks or other concerns regarding the measure in question and has refrained from influencing the formation of the will in breach of duty.

In the case of the conclusion of a fee agreement for legal services already rendered by the managing director of the general partner GmbH at the expense of the limited partnership without prior legal advice, the damage incurred by the latter is calculated from the difference between the agreed and paid fees as well as the statutory maximum fees already incurred for the remunerated legal services. The partnership has to present and prove the damage; in doing so, it benefits from facilitations of presentation and proof via § 287 ZPO.

 

 

OLG Jena 2011

On the criminal liability for breach of trust of the sole managing director of a wholly-owned company of a Thuringian municipality because of an assumption of liability declared in agreement with its mayor in favour of another financially distressed limited liability company in which the municipality also holds a share:

The managing director of a GmbH does not objectively act in breach of duty even in the case of economically disadvantageous dispositions which are not in line with the purpose of the company if he acts on the basis of an - effective - agreement of the shareholders.

However, the consent of the shareholders of the GmbH to the actions of its managing director is irrelevant under criminal law if it is based on a lack of will or was given contrary to the law or in an abusive manner. The latter is the case if the economic existence of the company is endangered in violation of legal provisions that also serve the interests of creditors, for example by disregarding the capital maintenance rule of § 30 (1) GmbHG, by causing or deepening the over-indebtedness of the company or by directly endangering its liquidity in a manner that threatens its existence.

Whether an effective consent of the sole shareholder of a GmbH, which excludes the liability of the managing director for breach of trust, exists, is in principle not to be assessed differently for a 100% municipal proprietary company, i.e. a GmbH whose sole shareholder is a city, than for a GmbH whose sole shareholder is a natural person or a legal entity under private law.

The effect of the agreement of the Lord Mayor as the sole legal external representative of the city with the assumption of liability by the municipal limited liability company, which excludes a serious breach of duty within the meaning of § 266 StGB, is not nullified by the fact that the city council would have had to agree to this under municipal law.

 

 

OLG Celle 2011

A general partner who receives remuneration of DM 150,000 per annum for the management of the KG may not transfer to herself a paid commercial service and consultancy contract originally concluded with her parent company and, as it were, support herself in the management from this point onwards in return for a further fee which must be borne by the KG. It has to pay back the remuneration received from the additional contract to the limited partnership.

 

OLG Frankfurt 2011

For the concept of damage in the sense of § 43 II GmbHG no special features apply in principle, but § 249 et seq. BGB, so that according to general principles a damage exists if a reduction of the company's assets has occurred without this being at least compensated by a related increase in assets.

 

BGH 2011

The claim for compensation of the new creditor damage pursuant to § 823 II BGB, § 64 I GmbHG old version now: § 823 II BGB, § 15a I InsO is subject to the statute of limitations in accordance with the provisions generally applicable to tortious claims; § 43 IV GmbHG does not apply accordingly.

 

OLG Koblenz 2011

On the question of whether the managing director of a shareholder who effects the continued supply of the GmbH by means of a personal guarantee can be personally held liable by the supplier for payment in excess of the amount of the guarantee because he has simulated the solvency of the company by providing the securities.

 

OLG Munich 2011

The retroactive amendment of a severance payment provision specifically applicable to managing director-shareholders under the company's articles of association by means of an amendment to the articles of association adopted without the participation of the managing director-shareholder concerned is not possible. Para. 27

If a managing director's employment contract is not validly concluded, but neither the supervisory board nor the shareholders' meeting have any doubts about the validity of the contract, the principles of a defective employment relationship are applicable mutatis mutandis. margin no. 43 - 44

The application of the principles of a defective employment relationship to a managing director's employment contract is not precluded if a termination agreement - which is also invalid - is subsequently concluded between the parties. margin no. 47

 

LG Bonn 2010

 

LG Hamburg 2010

 

OLG Munich 2010

 

OLG Munich 2010

 

LG Saarbrücken 2010

 

OLG Hamm 2010

 

OLG Koblenz 2010

 

LG Berlin 2010

 

LG Kiel 2010

 

LG Waldshut-Tiengen 2010

 

LG Kiel 2010

 

OLG Celle 2010

 

OLG Brandenburg 2010

 

OLG Brandenburg 2010

 

OLG Munich 2010

The institute of de facto management and the resulting liability consequences are to be applied restrictively in case constellations in which there are few outwardly apparent actions of the person concerned that are normally attributable to management, but which are undertaken for the purpose of consolidating/rescuing a financially ailing company.

 

OLG Koblenz 2010

Loan of the general partner GmbH to the KG to the extent of the paid-in share capital as entitled management under special conditions of the start-up phase.

 

KG 2010

The managing director of a GmbH may not exploit profit opportunities for himself, but only for the company and, if he violates this, he must compensate the company for any resulting damage BGH of 23.9.1985, NJW 1989, 584. Above all, a managing director may not take over or assign to third parties any business which falls within the company's area of business and is already assigned to it on the basis of certain concrete circumstances.

 

LAG Rhineland-Palatinate 2009

 

OLG Hamburg 2009

 

OLG Dresden 2009

 

OLG Brandenburg 2009

 

OLG Zweibrücken 2009

 

OLG Frankfurt 2009

 

LG Dortmund 2009

 

LG Hamburg 2009

 

OLG Cologne 2009

 

KG 2009

 

OLG Koblenz 2009

 

OLG Frankfurt a. M. 2009

 

BGH 2009

A disposal of the company's assets by a sole shareholder-director of a GmbH can only trigger a liability for damages under § 43 II GmbHG if the director thereby violates a prohibition which - such as § 30 or § 64 GmbHG - cannot be overridden by an instruction of the shareholders' meeting.

A waiver by contract in favour of third parties is not possible.

 

OLG Rostock 2009

The concept of a joint place of business covers, beyond the cases of a working community, operational activities of insured persons of several enterprises which consciously and intentionally interlock in individual measures, are interlinked, complement or support each other, whereby it is sufficient that the mutual understanding takes place tacitly by mere action. What is required is a conscious cooperation in the course of work, which at least actually presents itself as an interrelated operational cooperation of several enterprises. The activity of the participants must be related to each other in the factual cooperation of the participants, linked to each other or oriented towards mutual supplementation or support.

The erection of a scaffold in violation of the accident prevention regulations is grossly negligent. If a worker falls when using such a scaffold in the area of an inadequately secured site, he shall benefit from prima facie evidence of the causality of the breach of the accident prevention regulations.

An employee of a contractor working on a construction site who is injured by a fall from the roof must allow his employer's contributory negligence to be offset in the context of claims for damages against the scaffolder in order to avoid a disturbed overall obligation.

 

OLG Rostock 2009

The concept of a joint place of business covers, beyond the cases of a working community, operational activities of insured persons of several companies which consciously and intentionally interlock in individual measures, are interlinked, complement or support each other, whereby it is sufficient that the mutual understanding takes place tacitly through mere action. What is required is a conscious cooperation in the work process which at least actually presents itself as an interrelated operational cooperation of several companies. The activity of the participants must be related to each other in the factual cooperation of the participants, linked to each other or oriented towards mutual supplementation or support.

The erection of a scaffold in violation of the accident prevention regulations is grossly negligent. If a worker falls when using such a scaffold in the area of an inadequately secured site, he shall benefit from prima facie evidence of the causality of the breach of the accident prevention regulations.

An employee of a contractor working on a construction site who is injured by a fall from the roof must allow his employer's contributory negligence to be offset in the context of claims for damages against the scaffolder in order to avoid a disturbed overall obligation.

 

BGH 2009

If there is a dispute as to whether a payment made by the managing director to himself was in accordance with his duty, the company only has to show that the managing director made payment in respect of a claim that may not have existed. It is then up to the managing director to show and, if necessary, prove that he had a claim for payment.

 

OLG Jena 2009

1. it shall be the responsibility of the manager to establish an effective control system to prevent bogus invoices.

2. this obligation to set up efficient control systems in the accounting area as managing director also applies to the management of the group parent company with respect to the dependent group companies.

3. for accounting as a basic management duty, there is a mutual duty of supervision of all managing directors.

5. the managing director is obliged to set up a suitable control system in the accounting department, which can prevent fictitious entries in the parent company as well as in the subsidiaries of a group.

6. even in the case of a division of responsibilities between two managing directors, there is a duty for both of them to check the accounts as well as a reciprocal duty of control.

 

 

BGH 2009

1. the client's claim for damages in the case of prohibited legal advice and a null and void consultancy contract.

 

FG Baden-Württemberg 2009

The salary of a shareholder-managing director of a limited liability company, which is calculated on the basis of regular and overtime hours, does not stand up to an arm's length comparison, since the managing director of a corporation, as an organ of the company, is on duty 24 hours a day, seven days a week.

Separate remuneration for overtime work paid to the shareholder-manager of a GmbH regularly constitutes vGA, although the BFH has ruled for certain special constellations that remuneration for Sunday, holiday and night work is not always to be regarded as vGA BFH v. 14.7.2004 I R 111/03, BStBl II 2005, 307; v. 3.8.2005 I R 7/05, BFH/NV 2006, 131.

The principles of vGA in the case of a controlling shareholder also apply if several shareholders with similar interests work together to bring about a uniform formation of the shareholders' will corresponding to their interests.

 

KG 2009

1) According to its protective purpose, § 43 II GmbHG requires the managing director to act against the will or against the instructions of the shareholders. However, this is lacking in the case of personal identity between the managing director and the sole shareholder, so that there is basically no room for a liability-triggering breach of obligation.

 

OLG Cologne 2009

The managing director of a general partner GmbH is liable towards the GmbH & Co KG according to § 43 II GmbHG for a guarantee declaration issued contrary to the articles of association without the consent of the shareholders' meeting. A prior resolution in accordance with § 46 no. 8 GmbHG on the recourse to the managing director is not required.

 

Düsseldorf Higher Regional Court 2008

 

OLG Cologne 2008

 

KG 2008

 

OLG Brandenburg 2008

 

LG Frankfurt/Oder 2008

 

OLG Munich 2008

 

OLG Dresden 2008

 

OLG Brandenburg 2008

 

OLG Saarbrücken 2008

 

OLG Dresden 2008

 

BFH 2008

 

Düsseldorf Higher Regional Court 2008

 

Düsseldorf Higher Regional Court 2008

 

LG Frankfurt 2008

 

BGH 2008

The company assets tied up pursuant to § 30 I GmbHG are to be determined in accordance with the general accounting principles applicable to the annual balance sheet; in this context, shareholder loans are always to be carried as liabilities even in the case of subordination.

Claims for damages against a GmbH managing director due to payments prohibited according to § 30 I GmbHG § 43 III GmbHG become time-barred according to § 43 IV GmbHG in five years from the respective payment. If the managing director fails to assert the company's claims for restitution against the recipient of the payment § 31 I GmbHG until these claims become time-barred here § 31 V 1 GmbHG old, this does not trigger a further obligation to pay damages according to § 43 II GmbHG with a limitation period according to § 43 IV GmbHG which only starts to run from then on.

 

OLG Saarbrücken 2008

The statute of limitations for the claim for damages due to delay in insolvency § 823 II BGB i.V. with § 64 I GmbHG is based on § 852 BGB a.F., now therefore on §§ 195, 199 I BGB.

On the requirements of grossly negligent ignorance according to § 199 I No. 2 BGB.

 

OLG Cologne 2008

A shareholder within the meaning of § 32a GmbHG is also a person who only indirectly holds an interest in the GmbH via another company controlled by him.

The realisation of collateral provided by the company to secure a loan is not to be assessed differently from the repayment of the loan by the company.

If the shareholder who has guaranteed the loan debt acquires the collateral from the lender at the nominal value of the loan claim, he can limit his liability in accordance with § 32b GmbHG to the surrender of the acquired collateral.

 

OLG Frankfurt 2008

No further information

 

FG Hamburg 2008

The claiming of the appointed straw man managing director and the de facto managing director of the GmbH as joint and several liable debtors for the wage tax not paid corresponds to an appropriate exercise of discretion.

The liability of the appointed managing director is not dependent on his - declaratory - entry or deletion in the commercial register.

For the external appearance of a de facto managing director, it is not important in which function, e.g. as shareholder, advisory board, lawyer, consultant, notary, he has pretended to act in the respective individual case; what is decisive are the "facts" created by his actions vis-à-vis third parties in the overall appearance.

 

OLG Frankfurt 2008

The personal liability of the managing director of a GmbH is a legal standard from which no deviation is possible; it directly affects each managing director personally and is unlimited in amount, which can represent a considerable economic risk for the managing director.

 

OLG Cologne 2008

The resignation from office declared by the sole managing director and majority shareholder of a GmbH may be an abuse of rights and thus invalid if he does not appoint a new managing director at the same time.

 

OLG Cologne 2008

Claims against the managing director of a general partner GmbH due to the violation of a non-competition clause are subject to the short limitation period of § 113 (3) HGB. Nothing else applies to claims arising from the so-called business opportunity doctrine.

 

FG Bremen 2008

If a GmbH grants a pension commitment to its two shareholder-managing directors, each of whom holds a 50% interest, it is to be assumed that the shareholder-managing directors are pursuing interests that are aligned in this respect and that, with regard to the existence of a hidden profit distribution vGA, the principles of case law for controlling shareholder-managing directors are to be applied.

The controlling shareholder-managing director can no longer "earn" the pension promised to him by the GmbH even if the period from the written granting of the pension commitment to his 65th birthday as the expected start of the old-age pension is 9 years, 4 months and 7 days, which is only slightly less than the 10 years required by the BFH case law, so that the pension commitment leads to a vGA. The active activity of the controlling shareholder-director in the period prior to the granting of the pension commitment cannot be counted towards the required 10-year vesting period.

If a controlling shareholder-managing director satisfies the normal requirements to be met by any GmbH managing director, even an above-average working week of up to 70 hours does not constitute a special operational reason for the tax recognition of a pension commitment in which the ten-year vesting period is not met.

 

FG Saxony-Anhalt 2008

A vGA can also exist if an agreement is favourable to the company but a contractual partner outside the company would not have entered into it in his own interest; this is because it is not only the company's view that is to be taken into account but also the position of the recipient of the service.

Thus, if the co-managing director of a GmbH transfers the goodwill of his previously managed sole proprietorship free of charge, if the GmbH waives a probationary period in the managing director employment contracts as well as an ordinary right of termination for the entire anticipated term of the contract and if the managing directors are only bound for a period of five and a half years, the managing director contracts as a whole are not at arm's length and lead to a hidden profit distribution to be added outside the balance sheet.

 

FG Saxony-Anhalt 2008

It is not seriously doubtful that an employment contract concluded by the newly founded GmbH with its shareholder managing director would not have been concluded by a prudent and conscientious managing director and thus leads to a hidden distribution of profits if it not only does not provide for a probationary period, but also excludes the right of ordinary termination for the GmbH for five and a half years until the managing director reaches the age limit and thus for the entire anticipated term of the contract, and before that only permits termination for good cause.

 

FG Saxony-Anhalt 2008

Whether or not the loan interest rate agreed for a shareholder loan to a corporation is appropriate cannot be determined by comparing it with a fixed average value derived from the standard bank credit and debit interest rates "mean value method". Rather, the "appropriate" interest rate lies within a certain range; the examination as to whether the concretely agreed interest rate leads to a hidden profit distribution must therefore be based on the value from the range that is most favourable for the taxpayers.

If no suitable statistical comparative values are available, the tax court must, if necessary, estimate, taking into account all the circumstances of the individual case, the range within which an interest rate agreed by the shareholder with the corporation for the granting of the loan is still to be regarded as appropriate - in the case of the dispute: no hidden profit distribution in the case of an agreement on an interest rate of 12% in 1996 and 10% in 1997 and 1998 for unsecured loans which the three shareholder-managing directors with equal shares granted to "their" GmbH.

 

FG Saxony-Anhalt 2008

Whether or not the loan interest rate agreed for a shareholder loan to a corporation is appropriate cannot be determined by comparing it with a fixed average value derived from the standard bank credit and debit interest rates "mean value method". Rather, the "appropriate" interest rate lies within a certain range; the examination as to whether the concretely agreed interest rate leads to a hidden profit distribution must therefore be based on the value from the range that is most favourable for the taxpayers.

If no suitable statistical comparative values are available, the tax court must, if necessary, estimate, taking into account all the circumstances of the individual case, the range within which an interest rate agreed by the shareholder with the corporation for the granting of the loan is still to be regarded as appropriate - in the case of the dispute: no hidden profit distribution in the case of an agreement on an interest rate of 12% in 1996 and 10% in 1997 and 1998 for unsecured loans which the three shareholder-managing directors with equal shares granted to "their" GmbH.

 

OLG Hamm 2007

 

Düsseldorf Regional Court 2007

 

LG Hamburg 2007

 

OLG Munich 2007

 

BGH 2007

 

OLG Jena 2007

 

BGH 2007

 

OLG Cologne 2007

 

OLG Brandenburg 2007

 

BGH 2007

The claim of the GmbH against its managing director for repayment of remuneration not owed also includes the wage tax paid. margin no. 9

The managing director is liable according to § 43 II GmbHG if he works towards having the company pay him a remuneration to which he is not entitled according to the contract of employment. margin no. 10

 

OLG Koblenz 2007

A discharge resolution of the shareholders' meeting is not void without further ado in the case of self-discharge of supervisory board members. Only the wrongly cast votes are invalid. It must therefore be examined whether the result of the vote changes after deduction of the invalid votes. A final court decision on the invalidity of the discharge resolution is effective for and against everyone. A party not involved in the contestation proceedings who is affected by the res judicata effect of the declaration of nullity may, in the event of a decision-relevant violation of his or her right to be heard before the court, subsequently raise the hearing complaint or a constitutional complaint.

The managing director of a bank who is involved in the preparation of decisions of internal supervisory bodies in the granting of large loans, but who cannot decide on his own, has no discretionary power with regard to the information on the entrepreneurial decision in the run-up to the decision of the body. He must inform the supervisory board completely and accurately.

The managing director is also in breach of duty if he exceeds his authority. This applies in particular if the responsible supervisory body is not called in contrary to instructions. In this case, there is no possibility of exoneration for the managing director.

There is no limitation of the Managing Director's fault to intent or gross negligence in accordance with the employment law principles of risk-related activity. There is also no claim of the managing director against the company for the conclusion of a special liability insurance policy directors and officers insurance.

 

LG Hagen 2007

If a managing director files for insolvency without consulting the company's shareholders on the grounds of impending insolvency and then withdraws the application a few days later, the company may under certain circumstances be entitled to claim damages for filing for insolvency.

If the managing director expressly files an application for insolvency with the insolvency court due to impending insolvency, the managing director can defend himself against the company's subsequent action for damages due to allegedly unjustified filing of an application for insolvency with the argument that the insolvency grounds of insolvency and overindebtedness existed when the application for insolvency was filed.

If the company claims that the insolvency grounds of insolvency and overindebtedness did not exist, the company bears the burden of proof and presentation for a breach of duty by the managing director. The company must show that the insolvency grounds of insolvency and/or overindebtedness did not exist.

 

OLG Brandenburg 2007

The unauthorized extensive use of the company credit card for private purposes is just as much a reason for extraordinary termination of the employment relationship of the external managing director as the fact that he does not reimburse the amounts spent by the GmbH at all or does not reimburse them promptly.

The managing director who unjustifiably pays private expenses from the assets of the GmbH must reimburse the amounts spent. If documents necessary for his legal defence are in the possession of the public prosecutor's office, the managing director must make an effort to inspect the files there. A suspension of the proceedings until the conclusion of the criminal proceedings is out of the question.

 

FG Hamburg 2007

The liable debtor who, as the sole representative of a company, was in a position to contest the tax assessments made against it, is excluded in the liability proceedings pursuant to § 166 AO with procedural or substantive objections against the tax assessments if he allowed these to become final without filing an objection.

Invoking a duty to follow instructions vis-à-vis the majority shareholder does not lead to the exclusion of liability. The only decisive factor is the possibility of contestation opened up by the law. In the interest of a smooth processing of the tax assessment and the tax collection, it is incumbent on the group of persons mentioned in § 166 AO to ensure themselves how they want to ensure this right of appeal.

If a shareholder-managing director pays unspecified invoices according to the content and scope of services which he has provided to the company in his capacity as a sole proprietor, especially without written contracts having been concluded or at least without minutes having been taken in accordance with Sec. 35 (4) Sentence 2 GmbHG, he violates his duties as managing director and causes hidden profit distributions. If the company is thereby prevented from paying the taxes foreseeably becoming due later for this reason, this already constitutes a breach of duty within the meaning of § 69 AO. § 69 AO.

 

OLG Koblenz 2007

The rules otherwise existing in the law of legal persons regarding the distribution of the burden of presentation and proof in proceedings regarding the liability of managing directors also apply to the GmbH managing director. According to these rules, members of executive bodies bear the burden of proof that they have exercised the due care and diligence of a prudent and conscientious manager. This is not the case if, during the economic transfer of all material and personnel resources of a GmbH to a successor company, the latter is not invoiced for the agreed and due payments for months.

 

FG Baden-Württemberg 2007

Even if a GmbH, in addition to its main purpose, also manufactures pond control systems for fish ponds to a subordinate extent, the GmbH's expenses for a koi fish pond, koi fish, plants, pond system, etc. on a property rented by the wife of the GmbH's sole shareholder and built, inter alia, with a single-family house, are to be treated as hidden profit distributions if they are not caused by the GmbH's operational requirements but exclusively by the personal interests of the GmbH's shareholder-manager as a koi lover. The expenses incurred by the GmbH for a koi fish pond, koi fish, plants, pond system etc. on a plot of land rented by the wife of the sole shareholder of the GmbH and built on with a single-family house, among other things, are to be treated as hidden profit distributions if they are not caused by operational requirements of the GmbH but exclusively by the personal interests of the shareholder-managing director as a koi lover and koi breeder.

One argument in favour of an inducement by the personal interests of the shareholder-managing director is, if the GmbH has only made losses in the "pond control systems" sub-segment over a period of years, there is no clear and unambiguous separation of the private interests of the shareholder-managing director of the GmbH as a koi enthusiast and as a prominent, active member of an association associated with koi breeding on the one hand, and the GmbH as a commercial enterprise on the other, if a clear and undoubted connection of the disputed expenses with the company of the GmbH could not be demonstrated to the conviction of the senate and if, in an overall assessment of all circumstances, a proper and conscientious businessman would not engage in such cost-intensive and loss-making expenditure for fish and ponds.

The BFH dismissed the plaintiff's appeal for non-admission as unfounded in its decision of 17 July 2008, I B 27/08.

 

FG Baden-Württemberg 2007

Even if a GmbH, in addition to its main purpose, also manufactures pond control systems for fish ponds to a subordinate extent, it is nevertheless not seriously doubtful that the GmbH's expenses for a koi fish pond, koi fish, plants, pond system, etc. on a plot of land rented by the wife of the GmbH's sole shareholder and built on, inter alia, with a detached house, are to be treated as hidden profit distributions if they are not caused by the GmbH's operational requirements but exclusively by the personal interests of the shareholder-manager as a koi lover.The GmbH's expenses for a koi fish pond, plants, pond system etc. on a plot of land rented by the wife of the sole shareholder of the GmbH and built on, inter alia, with a single-family house are to be treated as hidden profit distributions if they are not caused by operational requirements of the GmbH but exclusively by the personal interests of the shareholder-managing director as a koi lover and koi breeder.

It speaks for an inducement by the personal interests of the partner managing director among other things, if the GmbH in the subrange "pond control plants" so far over years only losses obtained, on the business property of the GmbH besides anyway already over a Koi pond has and if a tidy and conscientious businessman would not operate such cost-intensive and loss-causing expenditure for fish and ponds.

 

FG Mecklenburg-Western Pomerania 2007

Within the scope of the examination of the appropriateness of a GmbH shareholder managing director's salary on the basis of external salary structure investigations, the most favourable value for the GmbH is to be taken for various remuneration tables under consideration here, depending on the number of employees, capital participation, turnover. A mean value-oriented estimate is not justified.

If one of the shareholder-managing directors of a GmbH is also the sole shareholder of another GmbH and the former takes over, among other things, management tasks for the other GmbH in return for the payment of an expense allowance on the basis of an agency agreement, the remuneration of the multiple managing director - which is considered appropriate after a salary structure study - is not to be reduced if, on the one hand, the loss of the time spent as managing director is compensated for by remuneration and, on the other hand, there is an advantage because the managing director's activity serves a company in the same sector.

No deduction is to be made from the sum of a managing director's remuneration considered appropriate because of a plurality of managing directors, if the managing directors do not take on tasks of executive employees to a greater extent, because all managing directors are almost exclusively involved in managing director activities here: Establishment of a new law firm after the merger of several independent tax consulting firms, acquisition and training of employees.

 

FG Mecklenburg-Western Pomerania 2007

If the examination of the appropriateness of the remuneration of the sole shareholder managing director of a GmbH is carried out within the scope of an external salary structure investigation, a hidden profit distribution can only be assumed to the extent that the upper edge of the value derived from the investigation is exceeded to such an extent that it is possible to speak of a blatant disproportion of the total remuneration. For this purpose, a safety margin of 20% is to be added to the arm's length value determined from the investigation.

 

FG Munich 2007

The managing director of a GmbH acts with gross negligence if he does not check the accuracy of the annual VAT return prepared by the tax advisor.

 

FG Munich 2007

A sales bonus promised to the shareholder-managing director of the GmbH does not exceptionally lead to a hidden profit distribution if there are convincing operational and/or entrepreneurial reasons for granting a sales bonus to the shareholder-managing director, e.g. if the company is in the development and/or conversion phase.

Even if there are valid reasons for the promise of a sales bonus in the start-up phase after the formation of a GmbH, the sales bonus nevertheless leads to a hidden distribution of profits if it has not been contractually limited in time with the shareholder-manager. This also applies if the agreed sales bonus is not unreasonable in terms of the amount, was actually only paid in one year after the formation of the GmbH and it could be assumed under the circumstances of the individual case that third parties, e.g. cooperation partners of the GmbH, public figures responsible for the control of the GmbH, would ensure that the sales bonus was limited in time.

 

LG Frankfurt/Oder 2006

 

OLG Naumburg 2006

 

OLG Schleswig 2006

 

OLG Brandenburg 2006

 

LG Heidelberg 2006

 

Düsseldorf Higher Regional Court 2006

 

OLG Oldenburg 2006

With regard to the liability of the managing director pursuant to Sec. 43 GmbHG, it must be taken into account that the managing director is entitled to a considerable discretion to act in entrepreneurial decisions, following BGHZ 135, 244 [257] = NJW 1997, 1926; BGH, DB 2002, 473. These principles also apply in the case of personnel measures, in this case in the case of a salary increase for a senior employee, which fall within the area of competence of the managing director and which are in any case subjectively undertaken in the interest of the company and are not supported by extraneous considerations.

The broad discretion to be granted to the managing director in entrepreneurial decisions is exceeded in the acquisition of another company, in this case another hospital operation, if the fundamentals, opportunities and risks of the investment decision have not been sufficiently clarified. At least if there is insufficient, reliable knowledge about the company to be acquired or if existing information is unclear, a comprehensive "due diligence" will have to be carried out. If this is not done, the managing director may be liable in the event of a bad investment leading to substantial losses.

If, in the case of a GmbH, an existing supervisory board is involved in the decision on the acquisition of the company, the managing directors must inform the supervisory board in a complete and factually correct manner about the circumstances material to the acquisition decision. A violation of this duty may also be that the course of the preceding purchase agreement negotiations as well as the own considerations for an initially fundamental rejection of the investment decision have been presented to the supervisory board incompletely and incorrectly.

If necessary entrepreneurial decisions to limit the damage in the form of continuously accumulating annual losses in the millions are omitted, the GmbH does not have to accept any possible contributory negligence, be it via the person of the co-managing director, via the supervisory board or the shareholders' meeting, in relation to the managing director liable for damages, insofar as it concerns a possible contributory negligence in the period in which the managing director against whom a claim is made continued to be in office and bore responsibility for the GmbH. A contributory negligence attributable to the GmbH in relation to the managing director against whom a claim for damages has been asserted can only be considered for the period after his resignation as managing director.

 

BGH 2006

The insolvency administrator of a GmbH has to explain and prove the prerequisites for a liability of the managing director according to § 43 III GmbHG due to illegal payments to the shareholders.

The managing director has a secondary burden of proof in this respect. This also applies if the managing director left office prior to the commencement of insolvency proceedings but - unlike the insolvency administrator - has access to relevant documents or information or has relevant knowledge.

 

Stuttgart Higher Regional Court 2006

As a rule, the managing director of a GmbH is not liable on the basis of a protective effect of the employment contract vis-à-vis individual shareholders if the latter claim that the managing director has concluded a settlement that is disadvantageous for the GmbH. The case law of the BGH on the protective effect of the employment contract if the function of the GmbH is limited to the management of a GmbH & Co KG or a silent partnership is not applicable in favour of a minority shareholder of a GmbH.

A possible damage to the company can only be asserted by a minority shareholder who is not authorised to manage the company under narrow conditions, but the application must then be for payment to the GmbH.

The shareholder is not injured in the core of his membership rights within the meaning of § 823 I BGB by the conclusion of the settlement, cf. BGHZ 110, 323, if the shareholder has assumed guarantees after the conclusion of the settlement, from which he is later claimed by the financing bank.

 

KG 2006

According to the established case law of the Federal Court of Justice (BGH), the managing director of a limited liability company (GmbH) that brokers stock exchange options transactions must ensure that the GmbH's customers are properly informed. He has to ensure that his employees are trained accordingly and has to monitor this. A managing director who concludes options transactions without proper information of the customers, who causes the conclusion or who deliberately does not prevent it, abuses his business superiority in an immoral way and is liable for damages to the investors according to § 826 BGB.

2. the brokerage of stock exchange futures transactions, in particular to private persons, is a business area which the managing directors of a GmbH cannot, without asserting their rights to information and control, place under the exclusive responsibility of a managing director without remaining fully responsible for the brokerage activity, this in any case if he is newly included in the GmbH with an entire business area.

 

FG Saxony 2006

The obligation of the managing director of a GmbH under public law to pay tax pursuant to § 69 AO does not cease to apply because it may compete with obligations to pay damages to the GmbH pursuant to §§ 43, 64 para. 2 GmbHG or § 823 para. 2 BGB in conjunction with § 266 StGB.

The managing director of a GmbH is also liable for the wage taxes not paid during the period of insolvency within the meaning of § 130, Subsection 1, Sentence 1, No. 1, InsO, because the mere potential possibility of contestation by the insolvency administrator in the hypothetical case of the opening of insolvency proceedings does not exempt the managing director from paying the withheld wage tax to the FA already in the case of insolvency.

The managing director of a GmbH is only then no longer liable for the tax debts of the GmbH according to § 69 AO if he can no longer dispose of the assets of the GmbH, so that a liability period does not already end with the filing of the insolvency petition.

 

FG Düsseldorf 2006

If the managing director of a GmbH forwards a tax refund that is obviously incorrect due to an input error to the shareholders, although the over-indebtedness or insolvency of the company is becoming apparent, the uncollectability of the reclaim due 6 months later justifies his claim as a liable debtor due to an intentional breach of duty.

The liability for the surcharges for late payment forfeited as a result of the breach of duty is limited to the amounts forfeited up to the time of the over-indebtedness and insolvency of the principal debtor. In all other respects, the liable debtor is also entitled to a remission for reasons of material equity.

 

LG Münster 2006

(1) If the managing director fails to issue a public VOB/A invitation to tender, the necessity of which results from the ancillary provisions underlying a subsidy approval Here: ANBest-P No. 3, he is liable to the company for the damage resulting from his breach of obligation under § 43 II GmbHG.

 

Stuttgart Regional Court 2005

 

LG Dortmund 2005

 

Stuttgart Higher Regional Court 2005

 

LAG Düsseldorf 2005

 

OLG Braunschweig 2005

 

Magdeburg Regional Court 2005

 

Düsseldorf Regional Court 2005

 

LAG Hamm 2005

 

BGH 2005

The de facto managing director of a GmbH is not only obliged to file the insolvency petition in due time pursuant to § 64 I GmbHG, but also has to bear the consequences under liability law of failing to do so here: Compensation of payments according to § 64 II GmbHG to bear following Senate, BGHZ 104, 44 = NJW 1988, 1789; BGHZ 150, 61 = NJW 2002, 1803 = NZI 2002, 395.

For the position and responsibility of a person as de facto managing director of a GmbH, it is necessary that the person concerned, according to the overall appearance of his appearance, has taken the fate of the company - beyond the internal influence on the management according to the articles of association - decisively into his own hands through his own actions in the external relationship, which have a lasting effect on the activity of the legal management body.

In the decision by which the de facto managing director is ordered to reimburse payments within the meaning of § 64 II GmbHG, the reservation with regard to his right of prosecution against the insolvency administrator with regard to his counterclaims after reimbursement to the estate is to be included ex officio Supplement to BGHZ 146, 264 = NJW 2001, 1280 = NZI 2001, 196.

 

LG Koblenz 2004

 

LG Hamburg 2004

 

OLG Celle 2004

A good cause within the meaning of § 626 I BGB for the termination of a managing director's employment contract exists if the managing director, by resigning from office which is effective but qualifies as unjustified, relinquishes the possibility of performing the managing director's duties for the company, particularly in the external relationship, and thus narrows the company's scope of legal action in a manner which is unreasonable for the company. Such a resignation from office is also to be qualified as unjustified if the managing director fears a negative development for the company as a result of the implementation of instructions addressed to him by the shareholders' meeting and even anticipates an imminent collapse of the company; even in such cases the managing director remains obliged to his task of doing everything required by the interests of the company with the diligence of a prudent businessman and at the same time to fulfil the duties under public law attached to his office.

The extraordinary termination of the employment contract with the managing director is also justified if the managing director, by his refusal to implement a resolution of the shareholders' meeting which is binding on him, expresses that he no longer agrees with its business policy and thus ultimately blocks the implementation of the will of the shareholders' meeting which is superior to him, so that the company must assume that a trusting cooperation with the managing director in a responsible position will no longer be possible. This also applies if the company is able to enforce the measures it has in mind through other bodies because, due to the conduct of the managing director, it must expect that the managing director will only "half-heartedly" implement the ideas of the shareholders' meeting - possibly only after receiving corresponding concrete instructions in individual cases; the company cannot reasonably be expected to constantly have this risk in mind as it must be able to rely on the loyalty of its managing director.

 

LG Hildesheim 2003

 

LG Hildesheim 2003

 

BGH 2003

 

LG Rostock 2003

 

BGH 2002

 

BGH 2002

In legal disputes concerning claims for damages against its executive director pursuant to § 43 Paragraph 2 GmbHG, a GmbH - in accordance with the principles of § 93 Paragraph 2 AktG, 34 Paragraph 2 GenG - only has the burden of presentation and proof that and to what extent it has suffered damage as a result of the executive director's conduct within the scope of his duties, whereby it can benefit from the simplifications of § 287 ZPO. On the other hand, the managing director has to explain and, if necessary, prove that he has fulfilled his duties of care pursuant to § 43 (1) GmbHG or that he is not at fault or that the damage would also have occurred in the event of dutiful alternative conduct.

 

BGH 2002

The period for the limitation of the claim under § 43 (2) GmbHG can be shortened as long as the breach of duty by the managing director does not consist in the fact that, contrary to § 43 (3) GmbHG, he participated in the disbursement of tied capital of the GmbH to shareholders. 15 November 1999 - II ZR 122/98, ZIP 2000, 135.

 

BGH 2002

On the question of the inclusion of a KG in the protective effects of the employment relationship existing between its general partner GmbH and the managing director.

 

BGH 2002

a The default liability of § 31, Subsection 3, GmbHG, does not cover the entire deficit not covered by equity capital, but is limited to the amount of the share capital figure.

b The default liability from the point of view of the intervention that destroys the existence of the company BGH, Urt. v. 17 September 2001 - II ZR 178/99, ZIP 2001, 1874, 1876 also applies to those co-partners who, without having received anything themselves, have contributed to the destruction of the company's existence by agreeing to the asset withdrawal.

c For the liability of a person who acts like a de facto managing director pursuant to § 43 (2) GmbHG, it is not sufficient that he/she influences the statutory managing directors within the company. It is also necessary for the person to act externally in a way that is usually attributable to the management, following BGHZ 104, 44, 48.

 

FG Düsseldorf 2002

Whether an alleged theft of money is to be treated as a non-deductible operating expense in the taxation of a GmbH can be left open if the extraordinary expense booked could in any case be compensated by the capitalisation of a claim for damages with an effect on income. This is the case if the shareholder-managing director violates the duty of care incumbent upon him by storing company cash proceeds in the amount of DM 21,000.00 in a car parked unattended outside the company premises for several days.

 

FG Düsseldorf 2002

Whether an alleged theft of money is to be treated as a non-deductible operating expense in the taxation of a GmbH can be left open if the booked extraordinary expense could in any case be compensated by the capitalisation of a claim for damages with an effect on income. This is the case if the shareholder-managing director stores the entire cash balance of DM 2,635.74 over the weekend in a car parked unattended outside the company premises without any comprehensible business reason and thus breaches the duty of care incumbent upon him.

 

BGH 2001

 

Cologne Higher Regional Court 2001

 

BGH 2001

The protection of a dependent GmbH against interventions by its sole shareholder does not follow the liability system of the group law of stock corporation law §§ 291 et seq. AktG, but is limited to the preservation of its share capital and the guarantee of its protection as a going concern, which requires appropriate consideration for the GmbH's own interests. Such consideration is lacking if the GmbH can no longer meet its liabilities as a result of the intervention of its sole shareholder.

If the sole shareholder causes the GmbH dependent on him to contribute its liquid funds to a grouped liquidity association controlled by him, he is under a duty, when disposing of its assets, to give due consideration to its self-interest in maintaining its ability to meet its liabilities and not to jeopardise its existence. If he fails to comply with this obligation, he may be guilty of a breach of trust within the meaning of section 266(1) StGB.

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not regularly socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

(5) Collectively agreed permanency does not preclude extraordinary dismissal with a period of social notice if, due to the complete closure of a plant section, there is no job available for the employee in the remaining plant where he or she could be employed.

(6) The social selection pursuant to Sec. 1 (3) KSchG is company-related. The comparability of the affected employees required for the social selection cannot be brought about by a change in the contract. This is because it is to be regarded as an inadmissible circumvention of the mandatory principles of social selection if the employment contract is changed in the run-up to a termination in order to change the area of comparability.

 

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not regularly socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not normally socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not regularly socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not regularly socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

(5) Collectively agreed permanency does not preclude extraordinary dismissal with a period of social notice if, due to the complete closure of a plant section, there is no job available for the employee in the remaining plant where he or she could be employed.

(6) The social selection pursuant to Sec. 1 (3) KSchG is company-related. The comparability of the affected employees required for the social selection cannot be brought about by a change in the contract. This is because it is to be regarded as an inadmissible circumvention of the mandatory principles of social selection if the employment contract is changed in the run-up to a termination in order to change the area of comparability.

 

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not regularly socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

 

LAG Schleswig-Holstein 2001

If, after years of unfavourable economic development - with annual deficits of DM 2.6 - 4.5 million - a hospital assigns the activities of the kitchen area, the serving area and the cleaning area to a third company while closing down the corresponding areas, a dismissal is not regularly socially unjustified if the employer decides on an organisational measure in the company area, the internal implementation of which eliminates the need for the continued employment of one or more employees.

2. the need for continued employment does not apply if the employer has outsourced the kitchen operations and the cleaning work for economic reasons within the framework of a restructuring concept and has transferred them to a third party with the comprehensible aim of reducing its activities to its core competences.

(3) A decision by the employer to give up the formal position of employer does not constitute a decision by the employer to terminate the employment relationship if the employer can in fact continue to issue the instructions to the employees which are necessary for the performance of the work, because in that case the possibility of employment in the enterprise does not cease to exist, but only the company's own employees are to be replaced by other employees, following BAG, Urteil v. 26 September 1996 - 2 AZR 200/96 -. This is the case if the employer has largely reserved the exercise of the right of direction because the right of direction characterises the personal dependence of the employees which is typical of an employment relationship.

(5) Collectively agreed permanency does not preclude extraordinary dismissal with a period of social notice if, due to the complete closure of a plant section, there is no job available for the employee in the remaining plant where he or she could be employed.

(6) The social selection pursuant to Sec. 1 (3) KSchG is company-related. The comparability of the affected employees required for the social selection cannot be brought about by a change in the contract. This is because it is to be regarded as an inadmissible circumvention of the mandatory principles of social selection if the employment contract is changed in the run-up to a termination in order to change the area of comparability.

 

 

BGH 2001

a The prohibition of disbursement under § 30 GmbHG is directed only against managing directors, not against authorised signatories or other employees of a GmbH with power of disposal.

b An authorised signatory may, however, be liable for a positive breach of his employment contract if he makes a payment to a shareholder that is covered by § 30 GmbHG contrary to an instruction from the managing director; likewise if he acts "past him" without the latter's instruction, although he knows or it is apparent to him from the circumstances that a claim will be made against him by the recipient of the payment for dishonest machinations bypassing the managing director to the considerable detriment of the company. On the other hand, he is not liable if he acts on the instructions or with the declared consent of the managing director and the conditions of tortious liability pursuant to §§ 826, 823 (2) BGB in conjunction with § 266 StGB, which also apply, are met.    § 266 StGB, which remain otherwise unaffected, do not apply to him. His liability is limited in accordance with § 43 (3) sentence 3 if he has acted without instructions from the managing director but in compliance with a shareholders' resolution.

 

OLG Stuttgart 2000

The statute of limitations for direct claims of a company creditor against a managing director of a GmbH that has become insolvent under § 823, Subsection 2, BGB, is in any case based on § 852, BGB, and not on § 43, Subsection 4, GmbHG, if the managing directors have violated both § 64, Subsection 1, GmbHG, and § 263, StGB, according to the pleadings.

 

Court of Appeal 2000

1. a managing director acts in breach of duty if he transfers rental agreements for premises which the company can profitably sublet to a third company of which he is the authorised signatory without consideration.

(2) Irrespective of whether an interim managing director of a GmbH is obliged to actively exploit all business opportunities, he is in any case obliged not to thwart any business opportunities of the company. His actions are limited to measures that cannot be postponed.

 

BGH 2000

The basis of the right of recourse of the Treuhandanstalt/Bundesanstalt für vereinigungsbedingte Sonderaufgaben (Federal Agency for Special Tasks Arising from Unification) pursuant to § 16 (2) sentence 3 of the TreuhG is the special legal relationship established between the Treuhandanstalt/Bundesanstalt für vereinigungsbedingte Sonderaufgaben (Federal Agency for Special Tasks Arising from Unification) and the provisional managing director by the latter's appointment, to which the special provisions of the law of obligations of the BGB, in particular the liability provisions, are to be applied accordingly.

The limitation period for such recourse claims is five years in accordance with § 43 (4) GmbHG.

 

BGH 2000

 

BGH 2000

GmbHG §§ 30, 43 para. 2, 3

The managing sole shareholder of a GmbH is in principle not liable to the GmbH for the burdening of the company's assets with an obligation to pay damages caused by a breach of duty towards third parties. This also applies if this results in an impairment of the share capital or the insolvency of the GmbH.

BGH, judgement of 31 January 2000 - II ZR 189/99 - OLG Karlsruhe LG Freiburg

 

OLG Schleswig 2000

1) The claims for damages against the managing director of a GmbH due to a delayed filing for bankruptcy are subject to the three-year limitation period of § 852 I BGB and not to the five-year limitation period according to § 64 II, § 43 IV GmbHG, since the legislator has expressly regulated different limitation periods for the liability in the internal relationship and in the external relationship.

 

OLG Düsseldorf 1999

As a rule, the managing director of a GmbH is not obliged to disclose previously undiscovered misconduct entitling him to termination without notice during negotiations on the termination of his employment contract. The concealment of such circumstances therefore does not generally justify the contestation of a severance agreement and the reclaiming of the severance payment.

(2) The managing director of a GmbH is prohibited by virtue of his duty of loyalty from deriving personal benefits for himself from the business activities of the company. If he accepts commissions or bribes when concluding legal transactions between the company and third parties, he must return them to the company without having to prove any damage. Moreover, prima facie evidence suggests that the transaction would have been concluded with a different content, in particular a higher consideration, without the inducements.

and the company thus suffered a loss of at least the amount of the benefit granted.

(4) The invocation of a vested pension commitment - also in the form of an indirect pension commitment through the conclusion of a direct insurance policy - may be an abuse of rights if the most serious misconduct makes the remunerated company loyalty appear retroactively worthless taking into account all circumstances. The principle of proportionality may require that the "revocation" of the pension commitment be limited to the part of the pension entitlements acquired during the period of the breach of duty.

 

OLG Hamm 1999

1. a For a claim for damages under § 43 II GmbHG, the company must present and, in the event of denial, prove the facts from which it results that the conduct of the managing director has led to damage. It is therefore incumbent on the company to demonstrate the damage and the causality between the conduct of the managing director and the occurrence of the damage.b The managing director must demonstrate and prove that he exercised due care and therefore did not breach his duties through his conduct. He therefore bears the risk of inexplicability.

 

KG 1999

1. participation in the transfer ruble procedure XTR procedure is only permissible if an export transaction actually takes place.

2. the managing director of a limited liability company cannot refer to common business practices in the former GDR or to his lack of knowledge of the law in the event of violations of export licence regulations; unlawful conduct is also inadmissible as a defence against damages.

(3) In the event of a claim for damages, a retired managing director has the right to inspect the documents of the GmbH to the extent that this is necessary for the conduct of the lawsuit.

(5) The managing director of a GmbH who does not acquire his position by means of a compulsory conversion in accordance with the TreuhG, but by means of a legal transaction.

is not to be regarded as a provisional GF within the meaning of § 16 II TreuhG, even on a broad interpretation.

 

 

OLG Cologne 1999

 

OLG Hamm 1999

 

OLG Hamm 1998

(1) The service contract concluded between the managing director and the general partner GmbH is a contract for the benefit of the limited partnership if its management is the essential task of the GmbH.

2 The GmbH director is therefore also subject to the standard of care of § 43 I GmbHG in the affairs of the KG.

 

KG 1998

 

BGH 1997

(1) The earlier lis pendens of proceedings pending before a foreign court leads to the corresponding application of section 261 of the Code of Civil Procedure. The absence of other international lis pendens is not a matter for the domestic court to determine of its own motion; it is only required to examine this question of its own motion if it is shown in a comprehensible manner that the same subject-matter of the dispute between the same parties was previously pending before a foreign court.

(2) If the GmbH wishes to set off a claim for damages directed against the managing director, albeit one which is time-barred, under § 390 sentence 2 BGB, this does not require that the resolution of the shareholders' meeting required under § 46 no. 8 GmbHG for the pursuit of this claim has already been passed in the time which is not time-barred.

 

OLG Karlsruhe 1997

1) The authority to dispose of the assets of a GmbH by the sole shareholder or the entirety of all shareholders also encounters the protectable self-interest of the company beyond the protection of assets granted by § 30 GmbHG when it comes to liability for the withdrawal of liquidity necessary for the company's existence.

The shareholder's disposition of the GmbH's assets is also limited by law and moral order outside of the rules of company law. Even the single-member GmbH is included in the scope of protection of § 826 BGB in the event of immoral disposal of its assets by the sole shareholder.

 

BFH 1994

The treatment of the "waiver" of the assertion of a claim for damages by a GmbH against its shareholder-managing director as a hidden profit distribution presupposes the accrual of a claim for damages under civil law which - without the waiver - would have to be capitalised in accordance with the principles of proper accounting.

The assumption of risk transactions does not give rise to a claim for damages against the managing director even in the event of a loss in the case of a two-man GmbH if the shareholders had agreed to the conclusion of the risk transaction.

The mere failure of a GmbH to assert a claim against its shareholder does not constitute an outflow within the meaning of § 27 (1) KStG 1984 as long as the claim continues to exist under civil law and can be enforced.

 

Cologne Higher Regional Court 1992

 

BFH 1989

A shareholder-managing director is subject to a non-competition clause vis-à-vis his corporation both as a shareholder and as a managing director, unless he has been granted a valid dispensation from compliance under civil law.

A violation of the non-competition clause is already to be assumed if the shareholder-managing director offers services from the business area of the corporation on the market in return for payment.

If the shareholder-director violates the non-competition clause, the corporation has a claim against him either for damages or for surrender of the remuneration earned.

 

Stuttgart Higher Regional Court 1981

(1) The extraordinary termination of a GmbH managing director is justified if the business decline of the company leaves no room for a genuine managing director's activity in the agreed manner.

(2) The mere shutdown of operations does not generally justify the extraordinary termination of a GmbH managing director, unless the shareholders have withdrawn their confidence in the managing director due to a culpable breach of his duties.

 

BGH 1981

(1) If the essential task of a general partner GmbH consists in the management of the business of a KG, the GmbH & Co KG can make a direct claim for damages against the managing director.

2. whoever sells goods on credit to an unknown company without checking the circumstances and business opportunities of this company and without obtaining sufficient securities violates the duties of care incumbent on him as managing director and is liable to pay damages pursuant to § 43 II GmbHG.

 

BGH 1977

a A shareholder with whom the managing director has concluded a legal transaction for the GmbH in the discharge period may vote on the discharge of the managing director in any case if the resolution does not concern this particular transaction but expresses the discharge in general.

b A discharge resolution does not generally release the managing director from the duty to endeavour to avert disadvantages which have arisen or threaten to arise for the company as a result of conduct in breach of duty which preceded the discharge.

c If the managing director has breached this duty, shareholders who agree to his renewed discharge abuse their voting rights if they have acted in concert with the managing director to the detriment of the company and to their own advantage.

 

BFH 1974

Rules of company law do not in themselves prevent a controlling shareholder-director of a GmbH, who is permitted to contract with himself, from increasing his remuneration as a director.

The exemption from the prohibition of self-dealing only concerns the power of representation related to the external relationship. In the relationship with the GmbH, the managing director is obliged to exercise the due care of a prudent businessman.

 

BGH 1967

If a managing director takes advantage of his position to conclude an advantageous transaction for his own account, which is only offered to him with regard to this position, without informing the other corporate bodies, this usually means a serious breach of trust which can justify the extraordinary termination of the employment contract even if the transaction itself has not impaired the interests of the company.

 

OLG Frankfurt a. M. 2019

An action based on § 64 GmbHG is subject to the jurisdiction of the court at the registered office of the company pursuant to § 29 (1) ZPO. margin no. 15

 

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