The establishment of an appropriate Compliance Management System (CMS) is one of the duties of a managing director, as determined by the judgment of the OLG Nürnberg on March 30, 2022 (Case No.: 12 U 1520/19).
So far, there are no clear legal regulations on the implementation of a Content Management System. However, in its judgment on March 30, 2022, the OLG Nürnberg made it clear that the managing director must ensure the establishment of an effective CMS and may be held liable if he fails to fulfill this obligation, explains the law firm MTR Legal.
In the case in question, a GmbH & Co. KG sued the managing director of its general partner, accusing him of breaching his duties of care and supervision. The company distributed mineral oil products and provides customers with fleets with fuel cards that have a credit limit, allowing drivers to refuel cashlessly at the company’s gas stations. However, there were payment defaults because several customers could not settle the fuel invoices due to economic difficulties. Instead of blocking these customers’ credit cards, the responsible employee attempted to cover up the credit line overdraft. The GmbH & Co. KG demanded compensation from the managing director because he had not taken appropriate measures to prevent this damage, particularly for not adhering to the four-eyes principle.
The OLG initially clarified that a managing director, based on the Business Judgment Rule, has a wide range of discretion in action and assessment outside of mandatory legal requirements. However, according to § 43 Abs. 1 GmbHG, a managing director is also obligated to the welfare of the company. Especially if the managing director does not decide and implement all measures himself, the diligence of an orderly managing director therefore necessitates creating an internal organizational structure that ensures the legality and efficiency of actions. The managing director must organize the company so that he always has an overview of its economic and financial situation. This may occasionally require a monitoring system to capture and control risks, the court further elaborated.
The obligation of the managing director to establish a CMS to prevent legal violations by employees or the company arises from the duty of legality, according to the OLG.
Lawyers experienced in business criminal law can advise on compliance issues.
