With regard to their responsibility and liability, managing directors believe they are safe in view of an existing allocation of responsibilities because they assume that the allocation of competences associated with the allocation of responsibilities limits their personal responsibility to their own area of responsibility and leads to correspondingly limited liability only for personal errors in the assigned area of responsibility. As the decision of the Second Civil Senate of the BGH of 6 November 2018 (II ZR 11/17) shows, this can prove to be a fallacy - at least with regard to the obligation to assume liability under Section 64 GmbHG (liability of the managing director for payments following insolvency or over-indebtedness).
The decision of the Federal Court of Justice gives rise to the following fundamental statement:
A (departmental) division of the functions and tasks of the management only has the effect of limiting liability if, in accordance with the requirements of the BGH, a (i) clear and unambiguous allocation of all tasks has taken place and these tasks are (ii) is supported by all managing directors by mutual agreement. Furthermore, despite the allocation of certain tasks within the scope of the allocation of responsibilities, each managing director is responsible for (iii) duty to co-ordinated and collegial cooperation with his managing director colleagues, who (iv) obligation to provide mutual information and the (v) Obligation to monitor the activities of the co-managing directors on an ongoing basis.
In practice, this means that even if there is a sufficiently clear and unambiguous allocation of responsibilities in individual cases, even if there is only a verbal agreement or merely a factual handling of the allocation of responsibilities, problems of demarcation and proof can very easily arise in practice with regard to the allocation of responsibilities due to possible disputes over responsibilities or misunderstandings. The implementation of a limitation of liability to the activities of one's own department is therefore legally possible, but not easy to realise in practice.
Compare: Judgement of the BGH of 6 November 2018 - II ZR 11/17, in GmbHR 2019, p. 209 et seq.
by Dr Gerhard K. Balz
