If the managing director acted with the silent consent of the shareholders, he is not liable internally to the company according to the decision of the BGH.
The managing director is obliged to exercise the care of a prudent businessman. If he breaches this duty, he may be liable to the company, explains Rechtsanwalt Michael Rainer, MTR Rechtsanwälte. However, internal liability may be waived if there is no need for protection of the company, as confirmed by the BGH decision of February 8, 2022 (Ref. II ZR 18/21).
In the case at hand, a UG & Co. KG sued the former managing director of its general partner for damages. The reason was that the managing director had arranged for loan payments of more than 100,000 euros to a subsidiary GmbH. Since this later had to file for insolvency, the UG & Co. KG did not recover the loan and held the former managing director liable. According to the Articles of Association, a shareholder resolution was required for loans exceeding 10,000 euros, which was not obtained.
The managing director argued that the silent consent of the shareholders was present for granting the loan.
If the managing director has breached his duties, he is liable to the company pursuant to § 43 paragraph 2 GmbHG for the resulting damage. However, if the managing director breached his duty on instructions from the shareholders or the shareholders agreed with the actions, it is generally assumed that liability is waived.
The BGH has now confirmed that this principle is also applicable to a limited partnership if its general partner is a GmbH or UG. With the consent of the shareholders, the liability of the managing director cannot be assumed, as there is no need for protection of the limited partnership. However, the fact that a shareholder was aware of a managing director’s action does not necessarily indicate their consent. Nonetheless, in individual cases, a silent consent of the shareholders may be assumed if the managing director could reasonably expect to act with their consent based on the shareholders’ situation and knowledge, unless instructed otherwise.
But each case must be considered individually. In case of doubt, managing directors should request a shareholder resolution or at least obtain declarations of consent from all shareholders.
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