If the managing director acted with the implied consent of the shareholders, he is not liable in the internal relationship to the company, according to the decision of the BGH.
The managing director is obligated to apply the diligence of an ordinary businessman. If he violates this duty, he may be liable to the company, explains lawyer Michael Rainer, MTR Rechtsanwälte. However, internal liability can be waived if there is no need for the company’s protection, as confirmed by the BGH decision on February 8, 2022 (Az. II ZR 18/21).
In the underlying case, a UG & Co. KG sued the former managing director of its general partner for damages. The reason was that the managing director had arranged loan payments of more than 100,000 euros to a subsidiary GmbH. Since the latter had to file for insolvency later, the UG & Co. KG did not recover the loan and held the former managing director accountable. According to the partnership agreement, a shareholder resolution was required for loans over 10,000 euros, which was not in place.
The managing director argued that the loan was granted with the implied consent of the shareholders.
If the managing director violated his duties, he is liable to the company according to § 43 Abs. 2 GmbHG for the resulting damage. However, if the managing director violated his duty on the instructions of the shareholders or the shareholders approved his actions, it is generally assumed that liability is waived.
The BGH has now confirmed that this principle also applies to a limited partnership if its general partner is a GmbH or UG. Liability of the managing director cannot be assumed if the shareholders consented, as there is then no need to protect the limited partnership. However, a shareholder’s knowledge of a managing director’s action does not necessarily imply consent. However, in individual cases, it can be assumed that there is implied consent of the shareholders if the managing director, given the shareholders’ situation and knowledge, could justifiably assume he was acting with their consent until contrary instructions were given.
However, each case must be assessed individually. In cases of doubt, managing directors should request a shareholder resolution or at least obtain declarations of consent from all shareholders.
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