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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 supervisory board liability. You will find further corporate law judgments on other corporate law topics on the overview page.

The judgments are updated continuously.

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Own application for commencement of insolvency proceedings

LG Frankfurt a. M. 2021

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

Repayment of gross remuneration for support services - Remuneration for holding office of members of the Supervisory Board

LG Cologne 2019

According to the protective purpose of Sections 113 et seq. AktG, it is the total amount of remuneration paid and not the scope of the individual consulting contract that is relevant.

Admissibility of the D&O insurance in the liability suit against an insured member of the supervisory board

OLG Hamm 2019

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

2. a contractual right of the D& O insurance company to conduct legal proceedings on behalf of the supported member of the supervisory board does not preclude this.

Violation of equality of arms prior to prohibition order not grounds for annulment in specialist court proceedings

OLG Cologne 2019

(1) If, when issuing a prohibition order in interim relief, the court violates fundamental procedural rights by not involving the respondent in the proceedings as required, the prohibition order is not to be set aside for this reason alone in the further proceedings before the specialised courts. Objections or appeals remain unsuccessful if no other decision would have had to be made on the merits if the proceedings had been conducted in conformity with the procedural regulation and fundamental rights.

(2) In the law relating to the press and statements, the urgency required for the issuance of a preliminary injunction is to be affirmed in case of doubt if the infringing act continues by constantly making the challenged reporting available on the Internet until the issuance of the preliminary injunction.

3 With regard to Article 5 (1) of the Basic Law, the competition law intentions, commercial action and self-interest required for the factual realisation of Section 17 (2) of the Act against Unfair Competition are lacking in the case of classical editorial press coverage.

(5) A legal person is not, by the very nature of the case, entitled to assert, as administrator, the interests and rights of its supervisory board members in respect of a breach of the confidentiality of a supervisory board meeting and of the words spoken at that meeting through the unauthorised reproduction of tape recordings.

Limitation of claims for damages of a stock corporation against a member of the supervisory board

BGH 2018

1. the limitation period for claims for damages of a stock corporation against a member of the supervisory board pursuant to section 116 sentence 1, section 93 para. 2, para. 6 German Stock Corporation Act (AktG) due to the limitation of claims for damages of the company against a member of the management board shall commence pursuant to section 200 sentence 1 German Civil Code (BGB) at the time of the limitation of the claim for damages of the company against the member of the management board.

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

Subject of information, Authority, Confidentiality rules, Interest in information, Internal fact, Private law companies, Company, Member of the board of directors

VG Bremen 2018

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

2. an internal fact may also be a suitable subject of information if it has manifested itself in the official space.

3. 3.§§ 93, 116, 404 AktG (German Stock Corporation Act), data protection regulations as well as contractual confidentiality agreements are not confidentiality regulations within the meaning of § 9a (1) sentence 2 no. 2 RStV (German Broadcasting Treaty).

Duty to provide information of a stock corporation organized as a labor pool within the meaning of SGB X

LSG North Rhine-Westphalia 2018

A working group organised as a public limited company within the meaning of § 94 SGB X in conjunction with § 219 SGB V is subject to state supervision pursuant to § 94.2 p. 1 SGB X. On the basis of this right of supervision, the working group is obliged under § 94.2 p.1 SGB X in conjunction with §§ 88 SGB IV to provide the supervisory authority with information and to submit documents. This obligation is not excluded or restricted by the duty of confidentiality incumbent on the executive board and the supervisory board of a public limited company. For the latter does not exist if the executive bodies are obliged to provide information pursuant to § 88 SGB IV.

Limitation of a claim for damages against a member of the supervisory board due to a payment made by the management board to this member of the supervisory board in breach of duty

OLG Düsseldorf 2017

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

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

Resolutions of the General Meeting, Special Representative, Assertion of Claims, Assertion of Compensation Claims, Compensation Claims of the Company, Convening of the General Meeting, Joint and Several Liability

LG Heidelberg 2017

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

Right to information under press law against a legal person under private law controlled by the public sector

BGH 2017

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

(2) Control in this sense shall normally be presumed to exist where more than half of the shares of the legal person governed by private law are owned, directly or indirectly, by the public authorities.

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

Repayment of remuneration to a member of the supervisory board of a joint stock company

OLG Nuremberg 2017

1. a partial judgment may be given only if the further progress of the proceedings can under no circumstances affect the decision to be given .

(2) If there has been no interruption of the proceedings under section 239 of the Code of Civil Procedure because the party was represented by a lawyer, a court order declaring the interruption cannot have the effect of interrupting the proceedings.

(3) In the case of an inadmissible partial judgment, the court of appeal may refrain from setting aside and remitting the judgment, "bring up" the part still pending at first instance and decide on the merits in its entirety if its joint settlement does not require any further findings of fact and appears advisable for reasons of procedural economy.

The approval of the Supervisory Board pursuant to Section 114 (1) AktG requires an express formal resolution of the Supervisory Board pursuant to Section 108 (1) AktG. If the supervisory board merely tacitly or impliedly expresses its consent or makes its opinion known, such statements do not have any legal effect.

Supervisory board activity as entrepreneurial activity under turnover tax law

FG Münster 2017

Pursuant to sec. 2 para. 2 no. 1 UStG, a commercial or professional activity is carried out on a non-self-employed basis if a natural person is integrated into a company in such a way that he is obliged to follow the instructions of the company. An obligation of the taxpayer to follow instructions with regard to his supervisory board activity is excluded pursuant to § 111 para. 5 AktG in conjunction with § 116 AktG. § 116 AktG is excluded. Pursuant to Sec. 111 (5) AktG, according to which the members of the supervisory board must perform their office personally, the subjection to the will of others is excluded, although not explicitly, but analogously.

Designation of a competent court

OLG Munich 2016

(1) For claims based on Sections 116 and 93 (2) AktG for breach of duty by members of the Executive Board or Supervisory Board, the place of jurisdiction shall be the place of performance at the registered office of the Company.

2. a determination of the place of jurisdiction pursuant to section 36 subs. 1 No. 3 ZPO can in principle not be made if a joint special place of jurisdiction exists or has existed.

Resolution of the Annual General Meeting, Extraordinary General Meeting, Convening of the Annual General Meeting, Third party defendant, Proceeds of sale, Contractual penalty provision, Appointment of a special auditor, Declaratory action, Supervisory Board and Management Board, Remuneration of the Supervisory Board, Position of the Supervisory Board, Meeting of the Supervisory Board, Discharge of the Supervisory Board, Chairman of the Supervisory Board, Duties of the Supervisory Board, Management Board and Supervisory Board, Election of members of the Supervisory Board, Passing of resolutions, Application for action, Duty of loyalty under company law

LG Heidelberg 2016

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

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

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

(5) With regard to the question of whether a shareholder of the Protective Association is subject to a voting prohibition when adopting resolutions, recourse can be made to the statutory provisions of stock corporation law on voting prohibitions for shareholders. It follows that a partner who is not subject to a voting ban as a shareholder is also not subject to a voting ban when the Protective Association adopts resolutions on voting behaviour in the stock corporation.

Procedure under the State Transparency Act

OVG Koblenz 2016

(1) Public tasks within the meaning of the second sentence of section 3(2) of the Rhineland-Palatinate Land Transparency Act shall be administrative tasks rooted in public law; a statutory allocation of the performance of tasks shall not be required.

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

No claim for damages after systematic faulty investment advice

BGH 2016

(1) A duty to warn exists for a discount broker only in cases in which the discount broker is either positively aware of the actual incorrect advice given to the customer in the securities transaction commissioned or if this incorrect advice is objectively evident due to massive suspicious facts. If a customer is advised faultlessly and thus properly by the company closer to the customer, there is no duty to warn on the part of the direct bank further away from the customer.

A member of the Supervisory Board cannot be generally released from the duty of confidentiality in advance for a specific subject area. The obligation to maintain secrecy is a conclusive statutory provision which cannot be mitigated or tightened by the articles of association or the rules of procedure. Only the objectively assessed interest of the company in confidentiality determines the scope and content of the duty of confidentiality.

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

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

(1) The investment firm which is further away from the client is obliged to warn its client if the latter is given incorrect advice by the firm which is closer to the client and the firm which is further away from the client either has positive knowledge of the incorrect advice or this is objectively evident on the basis of serious suspicions.

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

3. a member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorised to decide on the disclosure of confidential information and secrets .

No attribution of the knowledge acquired there by a bank representative appointed as a member of the supervisory board of a financial services provider

BGH 2016

(1) If a discount broker maintains a "custody account including a financial services provider", a duty to warn exists for him as a secondary duty only if he is either positively aware of the actual erroneous advice given to the customer in the securities transaction commissioned or if this erroneous advice is objectively evident on the basis of massive suspicious facts .

(2) A bank representative elected to the supervisory board of a company has a duty of confidentiality towards all persons who are not members of the governing bodies of that company, including in particular his own employer.

(3) In the case of circumstances which are covered by the duty of confidentiality under section 116 sentence 1 in conjunction with section 93 (1) sentence 3 AktG and the disclosure of which would cause the Supervisory Board member to breach his duty of confidentiality, an attribution of knowledge by a bank representative appointed to the Supervisory Board to the bank appointing him - irrespective of the legal basis - is excluded from the outset.

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

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

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

3. the general meeting of a joint-stock company shall not have the power to decide on the disclosure of confidential information and secrets.

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

(1) The investment firm which is further away from the client is obliged to warn its client if the latter is given incorrect advice by the firm which is closer to the client and the firm which is further away from the client either has positive knowledge of the incorrect advice or this is objectively evident on the basis of serious suspicions.

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

3. a member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorised to decide on the disclosure of confidential information and secrets .

Ancillary contractual duty to warn of a direct bank

BGH 2016

(1) A discount broker has a duty to warn as a secondary duty only if he is either positively aware of the actual erroneous advice given to the customer in the securities transaction commissioned or if this erroneous advice is objectively evident on the basis of massive suspicious facts.

(2) The objective constituent element of a direct bank's duty to warn as an ancillary obligation under the deposit contract is the incorrect advice given to the investor in the specific individual case. The systematic misadvice of investors cannot replace the actual misadvice of the respective claimant.

(3) For circumstances which fall under the duty of confidentiality pursuant to section 116 sentence 1 in conjunction with section 93 I 3 AktG and the disclosure of which would cause the Supervisory Board member to breach his duty of confidentiality, the imputation of knowledge - irrespective of the legal basis - is excluded from the outset.

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

(1) The investment firm which is further away from the client is obliged to warn its client if the latter is given incorrect advice by the firm which is closer to the client and the firm which is further away from the client either has positive knowledge of the incorrect advice or this is objectively evident on the basis of serious suspicions.

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

3. a member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorised to decide on the disclosure of confidential information and secrets .

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

(1) The investment firm which is further away from the client is obliged to warn its client if the latter is given incorrect advice by the firm which is closer to the client and the firm which is further away from the client either has positive knowledge of the incorrect advice or this is objectively evident on the basis of serious suspicions.

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

3. a member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorised to decide on the disclosure of confidential information and secrets .

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

(1) The investment firm which is further away from the client is obliged to warn its client if the latter is given incorrect advice by the firm which is closer to the client and the firm which is further away from the client either has positive knowledge of the incorrect advice or this is objectively evident on the basis of serious suspicions.

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

3. a member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorised to decide on the disclosure of confidential information and secrets .

Duty to warn on the part of the investment service provider further away from the customer

BGH 2016

(1) The investment firm which is further away from the client is obliged to warn its client if the latter is given incorrect advice by the firm which is closer to the client and the firm which is further away from the client either has positive knowledge of the incorrect advice or this is objectively evident on the basis of serious suspicions.

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

3. a member of the supervisory board cannot be generally released from the duty of confidentiality in advance for a specific subject area, nor is the general meeting authorised to decide on the disclosure of confidential information and secrets .

No attribution of the knowledge acquired there by a bank representative appointed as a member of the supervisory board of a financial services provider

BGH 2016

(1) If a discount broker maintains a "custody account including a financial services provider", a duty to warn exists for him as a secondary duty only if he is either positively aware of the actual erroneous advice given to the customer in the securities transaction commissioned or if this erroneous advice is objectively evident on the basis of massive suspicious facts .

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

3 The collision of the duties of the supervisory board member vis-à-vis his employer and the company to whose supervisory board he has been elected or delegated is quite deliberately inherent in the system, seen by the legislator and decided in favour of the company protected by the duty of confidentiality.

Special representative, preliminary injunction, sale, defendant, service of preliminary injunction, scope of duties, executor, attorney at law, action for damages, interim relief, applicant, resolutions of general meeting, member of supervisory board, virtual data room, application for remission, enforcement measure, right to information, right to information, completeness

LG Heidelberg 2016

The special representative's right to information shall be limited by the scope of his duties.

Compensation for damages due to breach of an accessory obligation to the deposit agreement

OLG Munich 2015

Even in the case of staggered involvement of several investment service providers, it remains the case that a duty to warn exists as an ancillary duty in cases where the discount broker is either positively aware of the actual misadvice given to the customer in the securities transaction commissioned or where this misadvice is objectively evident on the basis of massive suspicious facts.

Claim for damages due to evident systematic misadvice from deposit contract

OLG Munich 2015

Even in the case of staggered involvement of several investment service providers, it remains the case that a duty to warn exists as an ancillary duty in cases where the discount broker is either positively aware of the actual incorrect advice given to the customer in the securities transaction commissioned or where this incorrect advice is objectively evident due to massive suspicious facts. Similarly, a duty to warn with liability may exist as an ancillary duty of the execution-only service if the direct bank that is more distant from the customer is either positively aware of the actual misadvice given to the customer in the securities transaction commissioned or if this misadvice is objectively evident due to massive suspicious facts.

Liability of the supervisory board for payments after insolvency maturity

OLG Hamburg 2015

(1) The collection of claims on an account held with a debit balance shall not lead to a reduction in the assets of the insolvent company if such claims are covered by a global assignment.

2. the liability of the supervisory board for unauthorised payments.

Compensation for damages due to breach of an accessory obligation to the deposit agreement

OLG Munich 2015

Even in the case of staggered involvement of several investment service providers, it remains the case that a duty to warn exists as an ancillary duty in cases where the discount broker is either positively aware of the actual misadvice given to the customer in the securities transaction commissioned or where this misadvice is objectively evident on the basis of massive suspicious facts.

Claim for damages due to breach of an accessory obligation to the deposit agreement

OLG Munich 2015

Even in the case of staggered involvement of several investment service providers, it remains the case that a duty to warn exists as an ancillary duty in cases where the discount broker is either positively aware of the actual misadvice given to the customer in the securities transaction commissioned or where this misadvice is objectively evident on the basis of massive suspicious facts.

Systematic incorrect investment advice

OLG Munich 2015

The prerequisites of participation in a tortious act within the meaning of § 830 BGB are based on the principles developed for criminal law. Accordingly, participation requires, in addition to knowledge of the circumstances of the act, at least in broad outline, the respective will of the individual participants to carry out the act jointly with others or to promote it as another's act. From an objective point of view, there must also be participation in the execution of the act, which in some way promotes its commission and is relevant to it. For the individual participant, it must be possible to establish conduct that supported the unlawful encroachment on another's legal interest and that was borne by knowledge of the circumstances of the act and the will directed towards the violation of the legal interest.

Supervisory board, co-determination, right to information, supervisory board minutes, freedom of information, public concerns

OVG Berlin-Brandenburg 2015

(1) If documents of a public undertaking are available to a public authority within the framework of the administration of shareholdings, this constitutes official information within the authority's right of disposal, which is in principle subject to the Freedom of Information Act.

The members of the supervisory board of a co-determined GmbH are subject to secrecy and confidentiality; as the "flip side" of their comprehensive right to information, the authority that administers the federal government's shareholding in the company is also subject to secrecy. The duty of confidentiality imposed on this form of company by Sections 93, 109, 116 of the German Stock Corporation Act (AktG) regularly excludes the right to access to information on supervisory board minutes and documents preparing meetings in accordance with Section 3 no. 4 of the Freedom of Information Act (IFG). This also applies in principle to public companies in the hands of regional authorities.

3 The right to information under press law does not in principle grant a right to inspect official files or a claim to the surrender of copies of official files.

Duty to provide information, annual financial statements, supervisory board

OLG Düsseldorf 2014

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

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

Existence of dependent employment

LSG North Rhine-Westphalia 2014

The standard of assessment for the existence of dependent employment is § 7, Subsection 1, Sentence 1, SGB IV. According to this, employment is non-self-employed work, in particular in an employment relationship. According to the established case law of the BSG, employment requires that the employee is personally dependent on the employer. In the case of employment in an external enterprise, this is the case if the employee is integrated into the enterprise and is subject to the employer's right to issue instructions covering time, duration, place and manner of performance. This right to be bound by instructions can be limited - primarily in the case of services of a higher nature - and refined to "functionally serving participation in the work process". In contrast, a self-employed activity is primarily characterised by the own entrepreneurial risk, the existence of one's own place of business, the possibility of disposing of one's own labour and the essentially freely arranged activity and working time. Whether a person is employed or self-employed is determined on the basis of the aforementioned circumstances according to the overall picture of the work performance and depends on which characteristics predominate.

Management Board, burden of presentation and proof

OLG Nuremberg 2014

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

If the company succeeds in presenting and, if necessary, proving these circumstances, it is up to the sued member of the management board to present and, if necessary, prove that his conduct was not in breach of duty or culpable or that the damage would have occurred even if he had acted dutifully.

(3) In the event of a value-neutral act which in itself does not provide sufficient evidence that the member of the management board even "possibly" violated his duties as a manager when performing the act, the company must present and, if necessary, prove further circumstances and circumstantial facts which at least give rise to the appearance that the conduct of the member of the management board could have been in breach of duty.

Attribution of knowledge of an employee as a member of a supervisory board of another company

OLG Munich 2014

A reference to "its entire submission at first instance together with requests for evidence" does not satisfy the requirements of § 520.3 sentence 2 no. 2 ZPO. For according to this provision, "the statement of grounds for appeal must describe the circumstances from which, in the opinion of the appellant, the infringement of the law and its relevance for the contested decision result". This includes an indication, understandable in itself, of which specific points of the contested judgment the appellant contests and which factual or legal grounds he opposes in detail.

2) The knowledge of a senior employee which he has acquired as a member of the supervisory board of a stock corporation and which is subject to the supervisory board's duty of confidentiality pursuant to section 116 sentence 1 in conjunction with section 93 para. 1 sentence 3 of the German Stock Corporation Act (AktG) cannot be attributed to a bank pursuant to section 166 of the German Civil Code (BGB).

On the question of the claim for damages in the case of possible fraudulent misrepresentation and immorality, in this case deposit contract

LG Ravensburg 2014

1. the assumption of the activity as chairman of a general meeting does not fulfil any duty incumbent upon the supervisory board, so that a member of the supervisory board cannot hold himself personally liable as a result.

No liability of the supervisory board when taking over the chairmanship of the meeting for aborted shareholders' meeting

OLG Munich 2014

(1) Even in the case of staggered involvement of several investment service providers, it remains the case that a duty to warn exists as an ancillary duty if the discount broker is either positively aware of the actual incorrect advice given to the customer in the securities transaction commissioned or if this incorrect advice is objectively evident due to massive suspicious facts. Similarly, a duty to warn with liability may exist as an ancillary duty of the execution-only service if the direct bank that is more distant from the customer either has positive knowledge of the actual incorrect advice given to the customer in the securities transaction commissioned or if this incorrect advice is objectively evident due to massive suspicious facts.

Members of the supervisory board of a stock corporation are subject to the duty of confidentiality pursuant to § 116 AktG and may therefore not disclose to third parties anything about the deliberations and secrets of which they have become aware in this capacity. The application of § 116 AktG is mandatory law, exceptions can only be considered in extreme cases, e.g. in the defence against criminal charges against a member of the supervisory board. However, the general opinion is that it is up to the supervisory board to decide which data should be subject to § 116 AktG.

documents, inspection, state chancellery, prime minister, member of supervisory board, Berlin-Brandenburg airport, anticipation, main issue

OVG Berlin-Brandenburg 2014

(1) A claim for inspection of documents of the Minister President of the Land of Brandenburg held by the State Chancellery which reached him in his capacity as a member of the supervisory board of Flughafen Berlin-Brandenburg GmbH does not have the high degree of probability required for anticipation of the main action in interim relief proceedings.

Personal liability of board members for severance payments not paid out

BAG 2014

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

(2) Beyond the recognised groups of cases for an exceptional easing of the burden of proof, the previous principles for the burden of proof of a delay in filing for insolvency, i.e. for the proof of insolvency or over-indebtedness without filing for insolvency, remain unchanged.

Press law claim to information on BER Airport

OVG Berlin-Brandenburg 2014

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

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

Supervisory Board, right to information

VG Berlin 2013

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

Postponement of Berlin-Brandenburg airport construction: No right to inspect supervisory board minutes

VG Berlin 2013

1. 17 IV IFG Bln excludes access to documents relating to supervisory board meetings which are to be treated confidentially in accordance with the provisions of the German Stock Corporation Act. This also applies insofar as members of the supervisory board are delegated by a regional authority under public law.

Submission of the claim for damages within the contestation period

LG Frankfurt a.M. 2013

(1) If no factual circumstances which are intended to substantiate a ground for avoidance pursuant to section 243 AktG arise either from the application or from the submission of the statement of claim, but only from an annex submitted with the statement of claim and referred to, a ground for avoidance is essentially not shown within the time limit for avoidance pursuant to section 246 I AktG if only the statement of claim by fax without annexes is received by the court within the time limit, but the original of the statement of claim with annexes is received by the court only after the time limit for avoidance.

Burden of proof and presentation of a supervisory board member regarding compliance with due diligence obligations

BGH 2012

(1) The supervisory board of an AG must inform itself about significant risks entered into by the management board. If it does not meet these requirements, it acts in breach of duty. Members of the supervisory board who jeopardize the creditworthiness of the company by publicly expressing "pointed opinions" in the context of an internal conflict are generally in breach of their duty of loyalty towards the company.

Duty of the supervisory board of an AG to provide information regarding significant risks of the management board

OLG Stuttgart 2012

(1) The insolvency administrator of a stock corporation bears the burden of proof and presentation in a lawsuit for damages brought against a member of the supervisory board pursuant to Sections 116, 93 AktG that the company suffered a loss as a result of a possible breach of duty by the supervisory board member in the scope of his duties. The supervisory board member must show and, if necessary, prove that he or she has fulfilled his or her duties of care or that he or she is not at fault or that the damage would have occurred even if he or she had acted in a dutiful alternative manner.

2. the ongoing monitoring of the Management Board in all details is generally not to be expected of the Supervisory Board. As a matter of principle, it is not the Supervisory Board's task to review individual business transactions, incoming payments and accounting records. In times of crisis and in the event of indications of a breach of management duties and, in particular, in the event of indications of management measures that could jeopardize the existence of the company, more intensive monitoring activities are required. The requirements for the supervisory board's monitoring duties may also be increased in the case of a newly founded company.

3. the damage in the case of a claim under sections 116, 93 AktG is to be calculated in accordance with sections 249 et seq. BGB by way of the difference hypothesis. The situation that would have existed without the breach of duty is to be established.

Supervisory Board, Liability

LG Essen 2012

1. the supervisory board may only refrain from pursuing claims for damages against members of the management board if there are weighty reasons in the company's best interests that speak against the pursuit of such claims.

The Company's own shares may not be contributed as a contribution in kind

BGH 2011

(1) The Company's own shares may not be contributed as a contribution in kind. The waiver of the claim to reimbursement of shares provided to the company by way of a loan is equivalent to a contribution in kind if it was agreed in a direct temporal connection with the granting of the loan.

(2) The representative of a company's governing bodies who does not have the necessary expertise himself can only satisfy the strict requirements for an examination of the legal situation incumbent upon him and for compliance with the law and case law if he obtains advice from an independent professional who is professionally qualified for the question to be clarified, giving a comprehensive account of the company's circumstances and disclosing the necessary documents, and subjects the legal advice given to a careful plausibility check.

3. the Supervisory Board member who has acquired specialist professional knowledge is subject to a higher standard of care insofar as his specialist area is concerned.

Liability of the supervisory board in case of fraudulent share issue by the management board

OLG Bamberg 2011

(1) Although a capital increase pursuant to § 202 (2) AktG is a management measure, it is subject to supervision by the supervisory board if approval is required pursuant to § 111 (1) AktG. If fraudulent and/or immoral conduct by the management board occurs in this context, the involvement of a supervisory board chairman in this context cannot be viewed in isolation. Rather, such an act of cooperation constitutes sufficient objective assistance if the fraudulent and immoral conduct of the management board was thereby promoted. The supervisory board must prevent fraudulent share issues and sales by the management board.

2) § 830 para. 1 no. 1, para. 2 BGB requires a tortious participation in the act in the criminal law sense. Therefore, what is required is not only an objective participation in the execution of the act, which in some way promotes its commission and is relevant to it, but also, in addition to the at least broad knowledge of the circumstances of the act, the respective will of the individual participants to carry out the act jointly with others or to promote it as another's act. For the assumption of the intentional participation of the accomplice in a fraudulent and/or immoral damage, however, a conditional intent is sufficient in principle.

(3) A deliberate concealment of the imposing circumstances thus exists in particular if the supervisory board substantially violates the duties of information, consultation and supervision incumbent upon it and, precisely by doing so, wishes to prevent and/or avoid being provided with final certainty with regard to the fraudulent action.

Management Board, Business with Company

BGH 2010

The members of a facultative supervisory board of a GmbH are only liable to pay compensation to the GmbH pursuant to § 93 II, §§ 116 AktG, § 52 GmbHG in the event of a breach of their supervisory duty with regard to the observance of the payment prohibition from § 64 sentence 1 GmbHG if the company has suffered damage to its assets within the meaning of §§ 249 et seq. BGB (German Civil Code). The supervisory board members, on the other hand, are not liable if the payment - as is usually the case - has only led to a reduction in the insolvency estate and thus to a loss for the insolvency creditors alone.

No liability of a member of the management board, a chairman of the supervisory board and a tax advisor with power of attorney to exercise voting rights, although the shares issued by a stock corporation are worthless

LG Aschaffenburg 2010

1. in a more complex public limited company, tasks or areas of responsibility can be divided among individual members of the board of directors.

(2) As a rule, a representative can only be held liable in tort. However, according to the principles developed by case law, the agent is exceptionally personally liable under culpa in contrahendo if he has a direct economic interest of his own in the conclusion of the contract or if he has relied on a special personal trust and thereby significantly influenced the negotiation or conclusion of the contract.

A supervisory board does not have the right to issue instructions in matters of management. The law assumes that the supervisory office has the character of a secondary office, which is to be performed in principle in a manageable number of meetings. It follows from this that supervision does not extend to all matters of the company. The supervisory board does not so much observe individual management measures as the development of the business as a whole.

Concealed distribution of profits in the event of waiver of claims for damages due to securities transactions carried out by the supervisory board in breach of the board's responsibilities

FG Munich 2009

The provision of Section 111 (4) sentence 1 AktG prohibits the transfer of management measures to the Supervisory Board and furthermore states that the Supervisory Board may not deprive the Management Board of the management initiative to which it is entitled and that the Management Board may not allow itself to be deprived of this initiative.

As a corporation, a stock corporation does not have an external sphere to which the provisions of the AktG do not apply.

If a member of the Management Board delegates the independent execution of securities transactions to a member of the Supervisory Board, both the Management Board and the Supervisory Board are in breach of their duties of care by failing to observe the statutory limitation of the board's responsibilities and are obliged to compensate the Company for the resulting damage.

Function as "head" of the AG - Responsibility of KfH

OLG Munich 2009

1) The term "director" in § 95 I no. 4a GVG also includes the supervisory board in the case of a stock corporation.

Eligibility of acquired pecuniary advantages for claims for damages under Sections 93, 116 AktG

OLG Hamburg 2009

(1) Claims for damages arising from breaches of duty by the Board of Management and the Supervisory Board may be offset against pecuniary advantages obtained by the injured party in the form of the fulfilment of obligations under contracts with third parties in accordance with the principles of equalisation of benefits.

Supervisory Board, Liability

OLG Brandenburg 2009

1. as soon as the supervisory board is aware that the company is ready for insolvency, the supervisory board shall notify the management board of the filing of an insolvency petition.

Damages against management board and supervisory board for lack of participation only if there are indications for the assumption of insolvency maturity

OLG Munich 2008

(1) The assignment of a claim for the purpose of collection in its own name to a company which does not have an official licence to act in the legal affairs of third parties pursuant to Paragraph 1 of the RBerG is void on the ground of a breach of the statutory prohibition laid down in Article 1(1)(1) of the RBerG in conjunction with Paragraph 1(1) of the Fifth Regulation on the Implementation of the Law on Legal Advice.

(2) Business within the meaning of Article 1(1), first sentence, of the RBerG in conjunction with Article 1(1) of the 5th AVO is also deemed to exist in the case of first-time action if the assignee's repeated intention is apparent from the object of the business - in this case the assertion of its own rights and the rights of third parties - and the company subsequently pursues rights assigned to it in a similar manner.

3 Article 1(1), first sentence, of the RBerG in conjunction with Article 1(1) of the 5th AVO are also intended to protect the debtor of the assigned claim.

5. on the fiduciary duty of members of the management board and the supervisory board to promote capital increases in a company in crisis.

"Rhine Gull"

BGH 2008

(1) A hidden mixed contribution in kind also exists if an insolvent company participates in the increased capital of a stock corporation as a rescue company for the purpose of its "transferring reorganisation" with the aim of the latter taking over its assets and liabilities. This also applies if the stock corporation carries out a post-formation procedure.

2) The exchange transaction, which is ineffective pursuant to § 183 II 1 AktG, is to be reversed under the law of enrichment applying the balance theory, insofar as claims in rem do not intervene. Sections 57, 62 AktG are not applicable here. The claim of the AG for payment of the issue amount of the shares remains unaffected.

3) Members of the hive-off vehicle's management who are at fault may be liable pursuant to Sections 93 II and 116 of the German Stock Corporation Act for any difference in damages between the assets taken over and the liabilities and pursuant to Sections 93 III No. 4 and 116 of the German Stock Corporation Act for the contribution which was not effectively made.

Timely convening of the supervisory board meeting in the crisis of the AG - compensation for damages

LG Munich I 2007

(1) If the insolvency administrator assigns a claim belonging to the insolvency estate, the provisions of sections 92 and 93 InsO shall not prevent the effectiveness of the assignment in the event of a half distribution of the proceeds and a full risk of bearing the costs on the part of the assignee, since the assignment does not conflict with the purpose of the insolvency to satisfy all creditors equally.

The intensity of the monitoring activities owed by the Supervisory Board depends on the situation of the AG. If the company's situation is tense, the supervisory board's monitoring activities must be intensified in accordance with the respective risk situation.

Judicial dismissal of an employee representative on the supervisory board for breach of the duty of confidentiality - Carl Zeiss SMT AG

Stuttgart Higher Regional Court 2006

1. on the judicial dismissal of an employee representative on the supervisory board for breach of the duty of confidentiality.

It is not for a member of the Supervisory Board to decide for himself which information is to be regarded as confidential and which is not. Rather, the decisive factor is the objective assessment based on the interests of the AG and its company, according to which the disclosure of the information may be detrimental, even if it is not a secret.

3. the requirement of confidentiality not only prohibits clear statements by a member of the supervisory board on confidential matters, it also applies to vague changes from which the content of the confidential matter can be inferred.

Municipal citizens' petition, Admission of a citizens' petition, Duty of confidentiality, Member of the supervisory board, Amendment of the articles of association, Amendments to the articles of association, Duty of confidentiality, Optional supervisory board, Regulations under company law, Supervisory board activity, Municipal supervisory board, Supervisory board meeting, Chairman of the supervisory board, Towards the municipality, Bavarian municipalities, Competent municipal body, Municipal regulations, Municipal council resolution, Municipal council meeting, Need for confidentiality

VG Regensburg 2005

The limit of the restriction of the duty of confidentiality of members of the supervisory board of a municipal GmbH is determined in a balancing between municipal law, which is governed by the principle of publicity, the supervisory board's ability to function and control, as well as the justified claims of private individuals, the general welfare, but also the compelling interests of the company. The tension between federal company law and state municipal law cannot be resolved in the area of § 52.1 GmbHG with the priority in principle of federal company law pursuant to Article 31 GG, since federal law itself contains an opening clause. The opening clause of § 52 Paragraph 1 GmbHG can also be filled with regulations and principles under Land law.