15.03.2019
It is widely known that (Section 25 GmbHG) managing directors are obliged to exercise the care of a prudent businessman. According to the recently introduced "business judgment rule" (Section 25 Para. 1a GmbHG and Section 84 Para. 1a AktG), the care of a prudent businessman requires an "entrepreneurial decision" that is not determined by extraneous interests and is made on the basis of appropriate information that allows one to assume that the decision is for the good of the company (Section 25 Para. 1a GmbHG).
What is less well known is that in cases where the managing director's compensation is necessary to satisfy creditors (because the GmbH itself does not have sufficient funds), the management's obligation to compensate for this damage is not exempted by the fact that it acted in compliance with a resolution of the shareholders. In other words: if creditors have been harmed, the instructions of the shareholder/shareholders' meeting do not exculpate the liability, and the following applies: the management/managing director must compensate for the damage regardless of any instructions. Such claims for compensation only expire after five years, and the "exoneration" - generally perceived as a panacea - is only helpful to a limited extent, because the exonerating effect only occurs if the shareholder knew about the circumstances that could justify a possible claim for damages. Accordingly, it is also quite common opinion that the managing director of a GmbH has no enforceable claim against the company for the granting of discharge, but that this discharge is rather at the discretion of the shareholders.
However, a decision by the Supreme Court from 2017 (6 Ob 84/16 w) is rather unknown, according to which, on the one hand, a managing director cannot generally invoke the contributory negligence of a co-managing director when it comes to the question of his liability towards the GmbH, and the managing director is personally liable for the negligence of subordinate employees if the managing director has violated organizational or supervisory duties. The subject of the decision 6 Ob 84/16 w was that the defendant managing director - according to the plaintiff's allegations - had not exercised the required level of care when selling a property, and as a result a property (which had belonged to the GmbH) had been sold significantly below its market value. The plaintiff GmbH estimated the claim for damages at € 292,000.00. In the end, the GmbH's claim was upheld in full, although the underlying facts were by no means trivial: the property valuation underlying the sales order was based only on a capitalization of the annual construction interest at an interest rate of 6%, while the rental income from the rental of an above-ground bus terminal located on the property was not taken into account for no comprehensible reason (according to the Supreme Court). It should have been clear to the managing director that the property valuation determined by the employee was incorrect or at least incomplete, and that it was an inadequate valuation. A managing director can be required to question the capitalization interest rate and, in case of doubt, to insist on an objective sales process. Even more serious, however, is the fact that the Supreme Court clearly rejected the managing director's objection that the GmbH employee who wrote the incorrect assessment was partly to blame, which the GmbH must take into account (which is why the managing director cannot be required to pay the entire amount of damages): The literature argues that a managing director of a GmbH can claim the fault of the GmbH's employees as partly to blame; otherwise the GmbH's entrepreneurial risk (which is also borne by the employees) would be passed on to the managing director alone. However, the 6th Senate of the Supreme Court agreed with the view (which is also held in German legal theory after the ruling) that a managing director cannot invoke the fault of subordinate employees if he is personally liable for breach of supervisory duties. This is the case here.
The Supreme Court's decision ultimately makes it clear that the managing director's liability is very far-reaching and can also arise from the activities of subordinate employees, at least in the case of obvious errors. This means that the managing director must take responsibility for errors that were not committed by him but by employees of the GmbH if the managing director is to blame for a breach of the duty of supervision.