The Federal Court of Justice has made an important decision for the practice of GmbH & Co. KG with regard to the discharge of the managing director of the general partner GmbH (BGH, BB 2020, p.2433).
The unconditional discharge of the general partner of a GmbH & Co. KG also results in the discharge of the managing director of the general partner GmbH.
In a ruling dated 22.09.2020 (II ZR 151/19), the BGH had to decide on the effect of a resolution by the limited partners to exonerate the general partner in favour of its managing director. The managing director had caused damage to the KG in the course of his management, which the plaintiff (limited partner) considered to be in breach of duty. The partners of the KG nevertheless exonerated the general partner GmbH. The plaintiff challenged the resolution and was successful at the Higher Regional Court of Frankfurt am Main. The resolution was declared null and void there due to a breach of the shareholder's duty of loyalty. The Federal Court of Justice opposed this for the following reasons:
- The discharge resolution in favour of the general partner GmbH also works in favour of its managing director. With the discharge of the general partner, its management is approved, which necessarily also includes the approval of the management of its managing director.
- Both the managing director of the GmbH and the GmbH are liable to the KG in accordance with the standard of care set out in Section 43 GmbHG. This applies regardless of whether it is a public KG or a personally structured KG or whether the managing director is a limited partner or not.
Contrary to the assumption of the Frankfurt Higher Regional Court, a separate discharge resolution is not required to discharge the managing director of the general partner, even if this is nevertheless recommended in practice.
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