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.
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.
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.
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.
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.
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