{"id":3472,"date":"2024-11-08T10:12:09","date_gmt":"2024-11-08T09:12:09","guid":{"rendered":"https:\/\/andrelang-law.de\/?p=3472"},"modified":"2024-11-08T10:16:17","modified_gmt":"2024-11-08T09:16:17","slug":"the-liability-of-the-de-facto-managing-director","status":"publish","type":"post","link":"https:\/\/andrelang-law.de\/en\/die-haftung-des-faktischen-geschaeftsfuehrers\/","title":{"rendered":"The liability of the de facto managing director"},"content":{"rendered":"

The respective Managing director of a GmbH is liable for damages<\/a>if 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.<\/p>\n\n\n\n

I. Appointed vs. de facto managing director<\/h3>\n\n\n\n

The \u201clegal\u201d managing director of a GmbH<\/a> 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.<\/p>\n\n\n\n

In contrast, a de facto managing director is a person who actually or \u201cde facto\u201d acts like a managing director of a GmbH, but without being formally appointed as managing director by a shareholders\u2019 resolution of the shareholders\u2019 meeting. There is therefore no effective shareholders\u2019 resolution. This may be because the appointment resolution is invalid, for example because not all shareholders were invited to the shareholders\u2019 meeting.<\/p>\n\n\n\n

Often, the de facto management also arises from \u201cthe circumstances\u201d, 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.<\/p>\n\n\n\n

II. Consent of the appointed managing director and shareholder<\/h3>\n\n\n\n

However, the lack of appointment by a shareholders' resolution is only a prerequisite for de facto management and the legal consequences resulting from this.<\/p>\n\n\n\n

In addition, it is necessary that the \u201cde facto\u201d 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 \u2013 II ZR 194\/87, NJW 1988, 1789; BGH, judgment of February 25, 2002 \u2013 II ZR 196\/00, NZG 2002, 520; BGH, judgment of June 27, 2005 \u2013 II ZR 113\/03, NZG 2005, 755; BGH judgment of July 11, 2005 \u2013 II ZR 235\/03, NZG 2005, 816).<\/p>\n\n\n\n

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).<\/p>\n\n\n\n

III. Indications of de facto management<\/h3>\n\n\n\n

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.<\/p>\n\n\n\n

According to case law, the following are particularly indicative:<\/p>\n\n\n\n