The respective Managing director of a GmbH is liable for damagesif he violates his statutory duty of care. In order for such duties of care to exist, the person must be appointed as managing director. However, a so-called de facto managing director can, under certain circumstances, be liable for breaches of duty of care like a normal managing director.
I. Appointed vs. de facto managing director
The “legal” managing director of a GmbH is duly appointed as a so-called organ by a resolution of the shareholders' meeting. He is thus endowed with all legal powers and duties under the GmbHG. He can act alone or together with another managing director for the GmbH and take all management measures. The mere shareholders' resolution is sufficient for this. The entry of the managing director in the commercial register only has a declaratory effect.
In contrast, a de facto managing director is a person who actually or “de facto” acts like a managing director of a GmbH, but without being formally appointed as managing director by a shareholders’ resolution of the shareholders’ meeting. There is therefore no effective shareholders’ resolution. This may be because the appointment resolution is invalid, for example because not all shareholders were invited to the shareholders’ meeting.
Often, the de facto management also arises from “the circumstances”, for example because the majority shareholder also works for the GmbH alongside the appointed managing director. If credit institutions have secured significant influence over a company that is in financial difficulty, their employees can even be considered as de facto managing directors if the conditions for de facto management set out in case law are met.
II. Consent of the appointed managing director and shareholder
However, the lack of appointment by a shareholders' resolution is only a prerequisite for de facto management and the legal consequences resulting from this.
In addition, it is necessary that the “de facto” managing director actually carries out management tasks with the knowledge of the shareholders and with the consent of the duly appointed managing director (BGH, judgment of March 21, 1988 – II ZR 194/87, NJW 1988, 1789; BGH, judgment of February 25, 2002 – II ZR 196/00, NZG 2002, 520; BGH, judgment of June 27, 2005 – II ZR 113/03, NZG 2005, 755; BGH judgment of July 11, 2005 – II ZR 235/03, NZG 2005, 816).
It is also necessary to act "like a managing director" in legal and business transactions. Actual management is therefore not every action in the name of the company. According to the case law of the Federal Court of Justice, this requires external action that is usually attributable to management (BGH, judgment of March 21, 1988 - II ZR 194/87, NJW 1988, 1789; confirming BGH, judgment of February 25, 2002 - II ZR 196/00, NJW 2002, 1803).
III. Indications of de facto management
There is a certain degree of uncertainty about the indications and criteria for determining when a de facto management exists. Because there is no legal model for a managing director, it is generally not possible to use legal standards to assess the extent to which someone acts "like" a managing director. It is therefore necessary to examine each individual case using economic criteria and indications and to determine whether the activities of the "de facto managing director" are functionally comparable to those of an appointed managing director. The decisive factor is then whether and which "management tasks" the de facto managing director has performed and how the extent and intensity of the company management he has assumed can be objectively assessed.
According to case law, the following are particularly indicative:
- The person acting is not only within the GmbH, but especially in relation to its employees, the dominant and dominant personality in the management who takes care of everything.
- The person in charge makes all essential decisions that are important for the management of the company.
- The person acting acts as a “boss” towards the ordinary managing directors, so that they submit themselves.
- The acting person acts externally in relation to the company's customers, visits them regularly and conducts contract negotiations with them.
- The acting person takes over one or more business areas that are crucial for the company of the GmbH, excluding the managing directors.
- The person acting hires the staff on his own responsibility.
- The acting person conducts credit negotiations with important creditors of the company on his own responsibility without involving the ordinary managing directors.
- The fact that the acting person is only “sporadically” present at the place of business does not preclude his qualification as a de facto managing director.
A purely internal influence on the statutory managing directors is not sufficient for de facto management. It depends on the “external appearance” of the acting de facto managing director (BGH, judgment of 21.3.1988 – II ZR 194/87, NJW 1988, 1789; BGH, judgment of 25.2.2002 – II ZR 196/00, NJW 2002, 1803; BGH, decision of 11.2.2008 – II ZR 291/06, NZG 2008, 468; OLG Munich, judgment of 23.01.2019 – 7 U 2822/17; NZG 2019, 544; OLG Munich, judgment of 8.9.2010 – 7 U 2568/10, ZIP 2010, 2295). The following actions are primarily assigned to the sphere of the shareholders and therefore, for example, are not sufficient in themselves to affirm de facto management
- The sole power of disposal over the account (BGH, decision of February 11, 2008 – II ZR 291/06, NZG 2008, 468). However, if there is an independent, external action that is usually attributable to the management in addition to the power of disposal over the account, there is de facto management (OLG Munich, judgment of January 23, 2019 – 7 U 2822/17, GWR 2019, 107),
- (co-)determination of the basic principles of corporate policy,
- (co-)decision-making on restructuring concepts,
- (co-)decision on unusual or extraordinary corporate measures, or
- Influence on the selection and hiring of senior employees (Higher Regional Court of Munich, judgment of 8 September 2010 – 7 U 2568/10, ZIP 2010, 2295).
IV. Relationship between de facto managing director and appointed managing director
A de facto management can be assumed if the managing director registered in the commercial register does not actually carry out any management activity, the accounting documents do not show any business activity of the registered managing director, only the "de facto managing director" appears at all times and the nominal managing director leaves the management to the "de facto managing director" and does not take care of it any further (Higher Regional Court of Munich, judgment of 23 January 2019 - 7 U 2822/17; NZG 2019, 544).
The existence of a properly appointed managing director does not exclude a parallel de facto managing director. Coexistence is possible (BGH, judgment of February 25, 2002 - II ZR 196/00, NZG 2002, 520; BGH, judgment of March 21, 1988 - II ZR 194/87, NJW 1988, 1789). Jurisprudence also does not require permanent, uninterrupted involvement by the de facto managing director. Taking over or carrying out individual management measures would be sufficient for coexistence. However, if a properly appointed managing director is active, the de facto managing director must hold a “preeminent position” (BGH, judgment of 22.9.1982 – 3 StR 287/82, NJW 1983, 240; OLG Düsseldorf, decision of 16.10.1987 – 5 Ss 193/87 200/87 I, NJW 1988, 3166), in that he has taken over the tasks of the management “to a significant extent” (cf. BGH NJW 1988, 1789; OLG Cologne BeckRS 2023, 40199 para. 31; BayObLG NJW 1997, 1936; OLG Saarbrücken NZI 2002, 130). The mere possibility of the “de facto managing director” influencing the management would not be sufficient.
V. Legal consequences of de facto management
- Statements for and towards society
Since a de facto managing director is not an effectively appointed body within the meaning of the GmbHG, he cannot legally represent the GmbH on a statutory basis. However, his declarations of intent will often have an effect for and against the GmbH due to (implied) power of attorney or due to acquiescence or apparent authority. Due to his lack of an organ status, the de facto managing director cannot be notified of any declarations or administrative acts intended for the GmbH by law. An implied power of attorney to receive or acquiescence or apparent authority is also required for this. - Attribution of knowledge and other actions
However, the actions and knowledge of the de facto managing director are attributed to the GmbH in the same way as those of the duly appointed managing director (OLG Jena, decision of 20.11.2001 – 6 W 678/01, NJOZ 2002, 1558).
VI. Liability of the de facto managing director
Every duly appointed managing director is liable to the GmbH for the violation of his corporate duty of care, Section 43 Paragraph 2 GmbHG. This personal liability can also affect the de facto managing director, although he or she has no statutory duty of care due to the lack of an act of appointment.
However, the case law of the Federal Court of Justice (BGH, judgment of 21 March 1988 – II ZR 194/87, NJW 1988, 1789) affirms that the de facto managing director is personally liable for breach of duty of care towards the GmbH only if the de facto managing director has taken the fate of the company into his own hands – not only through internal influence on the statutory managing directors, but also through his own actions, which are also external and are usually attributable to the management – whereby it is not necessary that the statutory management is completely displaced.
The reason for the liability of the actual managing director is based on this (BGH, judgment of 21.3.1988 – II ZR 194/87, NJW 1988, 1789),
“that anyone who acts as a managing director without being appointed to do so must also bear the responsibility of a managing director and be liable as such if the protective purpose of the law is not to be jeopardized. However, it is not necessary for this to be the case that he has completely displaced the statutory management. In any case, in the case of a GmbH, which is based on external bodies and can always have several managing directors, it must be sufficient that the person concerned has taken on management functions to a significant extent, as are characteristic of the managing director or co-managing director under the law and the articles of association.”
A de facto managing director may therefore also be obliged to file an insolvency application in a timely manner. The de facto managing director is also liable for unlawful acts arising from tort. The principles described above also apply here (BGH, judgment of June 27, 2005 – II ZR 113/03, NZG 2005, 755):
“For the tortious liability (here: § 823 II BGB in conjunction with § 266 StGB) of a person as the de facto managing director of a GmbH, it is necessary that the person concerned, according to the overall appearance of his behavior, has taken the fate of the company into his own hands - beyond the internal influence on the statutory management - through his own actions in external relations, which have a lasting impact on the activities of the legal management body (following BGH, judgment of 25 February 2002 - II ZR 196/00, NZG 2002, 520)
VII. Summary
According to the case law of the Federal Court of Justice, in order for the de facto managing director to be liable, it is not necessary that the de facto managing director completely displaces the statutory management. What is crucial, but also necessary, is that the person concerned has taken the company's fortunes into his own hands with the knowledge and consent of the shareholders and appointed managing directors. For this, purely internal influence on the statutory managing directors is not sufficient. There must also be an independent, external action that is usually attributable to the management.
If these requirements are met, the de facto managing director is liable for damages for the breach of the duty of care that applies to a properly appointed managing director.
