OLG München on the Duty to Provide Information in De Facto Management
The Oberlandesgericht München (OLG München, Munich Higher Regional Court) ruled in its judgment of 12 August 2026 – 7 U 472/22 – on the duties of a person alleged to have acted for a GmbH (German limited liability company) in the same way as a managing director, although the validity of her corporate appointment was not undisputed. The decision was handed down by the 7th Civil Senate of the OLG München.
At the centre of the case was the question of whether a de facto managing director of the GmbH must provide information about management measures initiated by her and surrender business documents received. The court answered this in the affirmative by analogous application of § 666 BGB (German Civil Code) and § 667 BGB. According to the decision, liability for default under §§ 280, 286 BGB may also be considered in the event of delayed performance.
Background to the Proceedings
Invalid Appointment by the Sole Shareholder Lacking Legal Capacity
The claimant was a GmbH. Its sole shareholder, who was also the husband of the defendant, became legally incapacitated. Nevertheless, he removed the managing director at the time and appointed the defendant as managing director. This appointment was undisputedly invalid due to the sole shareholder’s lack of legal capacity.
No managing director service agreement was concluded. There was therefore no contractual basis from which the asserted duties to provide information could have arisen directly.
Further Appointment as Legal Custodian and Dispute over Validity
In Austria, the defendant was temporarily appointed by a court as the sole shareholder’s legal custodian. In this capacity, she again appointed herself as managing director of the GmbH. Whether this further appointment resolution was valid remained disputed between the parties.
The defendant was later removed from her office as legal custodian. The newly appointed legal custodian subsequently removed her as managing director.
Dispositions of Assets and the GmbH’s Claims
According to the findings and reports on the proceedings, the defendant initiated several dispositions of the GmbH’s assets over the following two years. These involved transfers from the business current account as well as credit card payments. The background to these payments remained unclear.
According to reports, the disputed dispositions of assets are said to have totalled around EUR 6.1 million. The items mentioned included, among others, credit card statements for January to November 2017 amounting to EUR 99,800.39 and several larger transfers, including two payments of EUR 250,000 each.
The GmbH sought, among other things:
- information about the circumstances underlying the dispositions of assets,
- surrender or provision of documents connected with the dispositions,
- further claims in connection with the events.
The Landgericht München I (Munich I Regional Court) largely upheld the action. The defendant appealed against this decision.
Subject Matter of the Appeal Proceedings
According to the procedural keywords, the proceedings concerned not only the claim for information. They also covered international jurisdiction, a staged action, the interest in obtaining declaratory relief, the surrender of business documents and a claim for damages.
The key issue relevant here was whether the defendant, even without a valid appointment and without a service agreement, could be obliged to account to the GmbH for the management measures she had taken and to surrender the documents obtained in this context.
Decision of the OLG München
Appeal Unsuccessful with Regard to the Information Claims
The OLG München dismissed the defendant’s appeal with regard to the asserted information claims. In the court’s view, there was no contractual basis because no service agreement had been concluded.
Nor could a direct claim under § 666 BGB on the basis of the first corporate appointment be considered. This appointment by the sole shareholder lacking legal capacity was invalid.
Claim Based on De Facto Management
For the period before the renewed appointment, a claim for information could therefore arise only from the de facto management carried out for the claimant. The OLG München affirmed such a claim by analogous application of § 666 BGB.
In its reasoning, the court referred to the case law on the equal treatment of de facto and duly appointed managing directors. The decisive concept was responsibility assumed by taking action: anyone who in fact performs management duties may be exposed not only to insolvency-law duties and liability risks. In the view of the OLG München, this also gives rise to a duty to provide the company with information about the management measures carried out.
Surrender of Documents Received under § 667 BGB by Analogy
For the same reasons, the OLG München also held that § 667 BGB applies by analogy. Accordingly, the GmbH may demand the surrender of documents that the de facto managing director received from third parties in connection with the relevant management measures.
The claim therefore did not relate to arbitrary documents, but to those documents that were connected with the management measures carried out and that had been received by the defendant from third parties in that respect.
Assessment of the Decision
Continuation of the Case Law on De Facto Management
The decision forms part of a line of judgments in which de facto managing directors are equated with duly appointed managing directors in certain constellations. Such equal treatment has been recognised, for example, in connection with duties under § 15a InsO (German Insolvency Code).
For duly appointed managing directors, a duty to provide information on the basis of § 666 BGB had already been recognised. The OLG München now extends this duty, as far as can be seen, to the de facto managing director as well.
GmbH’s Interest in Information Despite Unresolved Appointment
For practice, it is significant that the court placed the company’s interest in information at the forefront. This interest also exists where the invalidity of a managing director’s appointment was not initially recognised or the validity of a later appointment resolution is disputed.
The OLG München therefore did not have to finally clarify the validity of the defendant’s renewed appointment. The decisive factor was that the defendant had in fact carried out management measures for the GmbH.
Information Not Only for Preparing Claims
The court also clarified that the information sought does not necessarily have to serve the preparation of a claim. The company’s general interest in oversight is sufficient.
Consequently, a request for information may also exist where an action for performance has already been brought against the de facto managing director in relation to the same events. However, the claim remains limited by the criteria of necessity and reasonableness.
Scope and Limits of the Duties
The decision does not mean that every actual influence exerted on a GmbH automatically triggers all corporate-organ duties. The OLG München based its reasoning on the de facto performance of management duties and the resulting responsibility assumed by taking action.
The duty to provide information relates to the management measures carried out. The duty to surrender documents concerns documents received from third parties in this context. At the same time, the scope of the duties remains limited according to the standards of necessity and reasonableness.
Frequently Asked Questions
OLG München 7 U 472/22: Must a de facto managing director of a GmbH provide information?
According to the judgment of the OLG München, a de facto managing director may be obliged vis-à-vis the GmbH, by analogous application of § 666 BGB, to provide information about management measures carried out. According to the decision, this also applies where there is no valid appointment and no service agreement.
§ 667 BGB by Analogy: Which Documents Must a De Facto Managing Director Surrender?
The OLG München affirmed a claim to the surrender of documents that the de facto managing director received from third parties in connection with the relevant management measures. The claim therefore does not cover arbitrary documents, but is tied to the specific connection with the management activity.
What Practical Consequences Does the OLG München Judgment on De Facto GmbH Management Have for Companies?
The decision strengthens the GmbH’s interest in information and oversight where management measures were in fact carried out, even though the appointment was invalid or disputed. At the same time, information and surrender obligations remain limited by necessity and reasonableness.
Corporate Law Advice from MTR Legal
The decision of the OLG München shows the significance that the legal classification of de facto management measures can have for GmbHs, shareholders and persons acting on their behalf. Particularly in cases involving unclear appointment circumstances, disputed corporate-organ positions and extensive movements of assets, a precise review of the corporate-law starting point is essential. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth private individuals on issues of corporate-organ liability, information claims and corporate-law disputes; further information can be found under Legal advice in corporate law.
