The board of an AG cannot simply appoint itself as the managing director of a wholly-owned subsidiary. This has been decided by the BGH (Case No.: II ZB 6/22).
When creating structures within a group, legal framework conditions must be observed. Even if it may be sensible to consolidate competencies in one hand, this can be legally challenging, explains Attorney Michael Rainer, contact person for corporate law at the commercial law firm MTR Legal Rechtsanwälte.
In groups, board members are regularly also managing directors of subsidiaries. In corporate law, the question of who is competent to appoint managing directors is controversial. In particular, it was debated whether the board of an AG can appoint itself as the managing director of a wholly-owned subsidiary. On January 17, 2023, the Federal Court of Justice provided more clarity on this point, deciding that the board of an AG cannot simply appoint itself as the managing director of the subsidiary (Case No.: II ZB 6/22). Here, its representative power is restricted. According to the BGH, this is not changed by the detour of using an authorized representative. However, the appointment of the managing director is also not the responsibility of the supervisory board.
In the underlying case, two of the three board members of an AG appointed an authorized representative who founded a subsidiary GmbH and appointed the three board members of the AG as managing directors of the GmbH. The registry court subsequently refused to register the company in the commercial register. The appointment of the managing directors was defective since it involved a so-called self-dealing according to § 181 BGB. Furthermore, the registry court required the approval of the supervisory board for the appointment.
The Frankfurt Higher Regional Court also saw a conflict of interest in the appointment of the board members, and so the case ended up before the BGH. The Karlsruhe judges confirmed that the appointment of the managing directors was provisionally invalid and had to be approved. Thus, a remediable obstacle to the registration of the GmbH in the commercial register existed. According to the BGH, however, the supervisory board is not responsible for approving the appointment of the managing directors. The approval could, for example, also be granted by the third board member of the AG, who was not involved in the appointment of the authorized representative, possibly together with an authorized signatory.
Attorneys experienced in corporate law provide counsel at MTR Legal Rechtsanwälte.
