The establishment of an adequate Compliance Management System (CMS) is one of the duties of a managing director according to a ruling of the Higher Regional Court of Nuremberg on March 30, 2022 (Case No.: 12 U 1520/19).
So far, there is a lack of clear legal regulations regarding the implementation of a Content Management System. However, in its ruling on March 30, 2022, the Higher Regional Court of Nuremberg clarified that the managing director must ensure the establishment of an effective CMS and may be liable if he fails to meet this obligation, explains the commercial law firm MTR Rechtsanwälte.
In the underlying case, a GmbH & Co. KG filed a lawsuit against the managing director of its general partner, accusing him of violating his duties of care and supervision. The company distributed petroleum products and issued tank cards with a credit limit to customers with a fleet, allowing drivers to refuel cashlessly at the company’s gas stations. However, there were defaults in payment because several customers, due to economic difficulties, were unable to settle the fuel bills. Instead of blocking these customers’ credit cards, the responsible employee attempted to cover up the overdrafts. The GmbH & Co. KG demanded compensation from the managing director because he had not taken appropriate measures to prevent this damage, especially by not complying with the four-eyes principle.
The court first clarified that a managing director, in line with the Business Judgment Rule, has a wide scope of action and judgment 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 when the managing director does not decide and implement all measures himself, due diligence of an ordinary managing director therefore requires the creation of an internal organizational structure that ensures the legality and efficiency of their actions. The managing director must organize the company so that he always has an overview of the economic and financial situation. This may require a monitoring system to capture and control risks, the court further explained.
The obligation of the managing director to set up a CMS to prevent legal violations by employees or the company already arises from the legality obligation, according to the Higher Regional Court.
Attorneys experienced in economic criminal law can advise on compliance issues.
