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.


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.

For ques­ti­ons: Cont­act us.


Stay up-to-date

We use your email address exclusively for sending our newsletter. You have the right to revoke your consent at any time with effect for the future. For further information, please refer to our privacy policy.