Hig­her Regio­nal Court of Nurem­berg: GmbH manage­ment also obli­ged to set up a com­pli­ance manage­ment system

In its ruling of 30 March 2022, Case 12 U 1520/19, the Hig­her Regio­nal Court of Nurem­berg sent an unmist­aka­ble mes­sa­ge to GmbH managements:

“From the lega­li­ty requi­re­ment fol­lows the obli­ga­ti­on of the mana­ging direc­tor to set up a com­pli­ant manage­ment sys­tem, i.e. orga­ni­sa­tio­nal pre­cau­ti­ons that pre­vent the com­mis­si­on of legal vio­la­ti­ons by the com­pa­ny or its employees.” 

Con­ver­se­ly, this means that ina­de­qua­te efforts or insuf­fi­ci­ent ful­fill­ment of duties lead to per­so­nal lia­bi­li­ty on the part of the manage­ment of a GmbH pur­su­ant to § 43(2) of the GmbH Act.

Initi­al situation

A GmbH & Co. KG asser­ted dama­ge com­pen­sa­ti­on claims against the mana­ging direc­tor of its gene­ral part­ner based on § 43 of the GmbH Act. Grounds: The mana­ging direc­tor had vio­la­ted his duties of care and super­vi­si­on. As a result, an employee had suc­cee­ded in dama­ging the com­pa­ny by com­mit­ting acts of embezz­le­ment. The com­pa­ny in ques­ti­on sup­pli­ed petro­le­um pro­ducts to its cus­to­mers, who were pro­vi­ded with fuel cards. Howe­ver, seve­ral of the com­pany’s cus­to­mers were not (or no lon­ger) able to pay their fuel bills as of cer­tain dates. The employee respon­si­ble for cus­to­mer and fuel card sup­port knew this, but did not­hing. He even con­cea­led the over­draft of the cre­dit lines. This was pos­si­ble (only) becau­se no “dual-responsibility prin­ci­ple” for con­trol­ling, which was neces­sa­ry in this respect, was observed.

Decis­i­on

As a result, a breach of the duty to exer­cise due dili­gence and thus (per­so­nal) lia­bi­li­ty on the part of the mana­ging direc­tor was affirm­ed becau­se – despi­te the exis­tence of an increased duty of super­vi­si­on – he had fai­led to set up a con­trol and moni­to­ring sys­tem. The dual-responsibility prin­ci­ple was not obser­ved, nor were the­re any spot checks or even trai­ning cour­ses in this sen­si­ti­ve area. In addi­ti­on, he had fai­led to enforce noti­fi­ca­ti­on and docu­men­ta­ti­on requi­re­ments for employees in the company.

Back­ground

Accor­ding to the Hig­her Regio­nal Court of Nurem­berg, the due dili­gence of a mana­ging direc­tor “requi­res the crea­ti­on of an inter­nal orga­ni­sa­tio­nal struc­tu­re that ensu­res the lega­li­ty and effi­ci­en­cy of the com­pany’s actions”. The court uses the pro­vi­si­ons of § 43 of the GmbH Act as jus­ti­fi­ca­ti­on. The jud­ges explain this fur­ther: “This requi­res a moni­to­ring sys­tem by which risks are recor­ded and con­trol­led”[…] “The duty to moni­tor includes suf­fi­ci­ent con­trol, which should not start only when grie­van­ces are dis­co­ver­ed”[…] “Occa­sio­nal checks” are not sufficient.

This gene­ral “com­pli­ance obli­ga­ti­on” of manage­ment results in various indi­vi­du­al obli­ga­ti­ons: e.g. moni­to­ring obli­ga­ti­ons, pre­cau­ti­ons of an orga­ni­sa­tio­nal natu­re and plans for as well as inter­ven­ti­on mecha­nisms in the event of mis­con­duct. This includes appro­pria­te con­trol by con­duc­ting ran­dom, unan­noun­ced audits. Accor­ding to the ruling, over­ri­ding super­vi­si­on remains the respon­si­bi­li­ty of manage­ment even if super­vi­so­ry duties are dis­tri­bu­ted. The obli­ga­ti­ons can thus at most be redu­ced by means of delegation.

Sus­taina­bi­li­ty in the sup­p­ly chain and con­for­mi­ty of pro­ducts manu­fac­tu­red and pla­ced on the mar­ket play a spe­cial, liability-relevant role in this light, not least due to cur­rent legal deve­lo­p­ments such as the start­ing date of the Sup­p­ly Chain Due Dili­gence Act and the Die­sel Affair.

Con­clu­si­on

The decis­i­on of the Hig­her Regio­nal Court of Nurem­berg is of con­sidera­ble importance for all com­pa­nies. It high­lights the importance of effec­ti­ve com­pli­ance mea­su­res for (pre­ven­ti­ve) con­trol, avo­id­ance and detec­tion of any brea­ches of duty. The­se must not only be set up in a sen­si­ble fashion, but also lived, review­ed and adjus­ted if neces­sa­ry. The scope, struc­tu­re and direc­tion of such struc­tures should always be goal-oriented and mea­su­red in terms of the struc­tu­re of the respec­ti­ve com­pa­ny and its fields of acti­vi­ty. Are­as to be pro­tec­ted and/or obser­ved by law do not always affect all com­pa­nies in the same way. One-size-fits-all sys­tems are rare­ly successful.

For ques­ti­ons: Cont­act us.

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