Managing directors are personally liable if they violate their duty of care — and this applies to their personal assets. The liability limitation of the GmbH protects the shareholders, not the management.
Managing directors are personally liable if they violate their duty of care — and this applies to their personal assets. The liability limitation of the GmbH protects the shareholders, not the management.
Clience.Legal analyzes your personal liability risk, implements protective measures, and defends you if claims are already being asserted.
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Managing director liability has three levels: internal liability towards the company itself, external liability towards third parties, and, where applicable, the liability of the shareholders. While external liability towards third parties is usually limited to the company’s assets (§ 13, paragraph 2 of the GmbHG), the managing director can certainly be held personally liable internally.
The prerequisite is that the managing director acts without due care or breaches their management duties (§ 43, paragraph 1, GmbHG). If they breach their duty of care and thereby cause damage to the GmbH, the GmbH can claim damages. Particularly unpleasant: contrary to common expectation, the managing director must prove that they were not at fault — the burden of proof is reversed.
In addition, there is a discernible trend in case law to allow claims against managing directors and shareholders personally, alongside classic managing director liability. Any managing director who assumes that the legal form alone protects them is underestimating their risk.
If a GmbH becomes illiquid or over-indebted, the managing director must file for insolvency without undue delay; the duty to file is governed by § 15a InsO and is linked to the grounds for insolvency set out in §§ 17 and 19 InsO. If the managing director fails to comply with this duty or does so too late, criminal liability for delayed filing for insolvency may arise.
It is irrelevant whether the managing director knew of the grounds for insolvency. It is part of their duties to be informed of such facts — criminal liability can therefore arise even without knowledge. In addition, once the company is insolvent, payment prohibitions apply; payments made in breach of them may lead to personal liability for reimbursement under § 15b InsO.
There are also obligations towards tax authorities and social security institutions: timely advance VAT and payroll tax returns, payment of social security contributions, proper bookkeeping and accounting. If contributions and taxes are not declared and paid on time, this may constitute a breach of duty for which managing directors are personally liable.
This usually applies even when the managing director does not perform these tasks himself but has delegated them to employees. Managing directors lead the company and bear responsibility for the legal compliance of the employees’ actions. Only in exceptional cases is personal liability excluded. The withholding of employee contributions is also punishable under § 266a StGB.
Managing directors are personally liable for any breaches of duty or unlawful acts throughout their entire term of office. Liability continues even after leaving the GmbH: claims in this regard become time-barred after five years (§ 43, para. 4 of the GmbHG).
What has proven effective in practice: continuously keeping an eye on finances, knowing and minimizing risks, obtaining sufficient information and liability assessments before important decisions, securing risky decisions with a shareholders’ resolution, documenting shareholders’ instructions in writing for evidentiary purposes, defining areas of responsibility in the articles of association, agreeing on limitations of liability, observing the rules on signing authority, and considering D&O insurance coverage.
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Table of Contents
You take responsibility for actions that you were not responsible for yourself.
You manage on behalf of shareholders whose instructions you do not always agree with.
Liquidity shortages dramatically increase the risk of liability.
Even after leaving the company, claims are still possible for years to come.
Allocating areas of responsibility only reduces liability if it is properly regulated and monitored.
Systematic examination of your personal risk based on structure, departments, and processes.
Service contract, allocation of responsibilities, consent requirements, limitations of liability.
Documentation of instructions, resolutions and the basis for decisions.
Duty to file, payment prohibitions and immediate measures once the company is insolvent.
Organizing filings and payments to avoid liability and criminal liability.
Defending against claims by the company, the insolvency administrator or third parties.
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Yes. Managing directors are required to conduct business properly and in accordance with the law. If they commit any violations of their duties, they are liable personally for any resulting damages.
In particular, if they breach their duties through gross negligence or intent — for example, by concealing illiquidity and failing to file for, or delaying, the opening of insolvency proceedings. Contracts concluded after the company has become insolvent and payments still authorized at that point can also trigger personal liability.
Claims in this context become time-barred after five years (§ 43, paragraph 4 of the GmbHG). Liability does not end upon leaving office — the former managing director can still be held liable even after that.
As a rule, yes. The managing director is responsible for the lawful conduct of the employees. This applies in particular to taxes and social security contributions, even if these tasks have been delegated. Only in exceptional cases can personal liability be excluded.
Act immediately: carefully monitor the financial situation, review restructuring measures, and, if necessary, file for insolvency. Delaying the filing of a petition can lead to personal liability.
No. A D&O insurance is a useful component, but it does not cover every case — intentional violations of duty, for example, are regularly excluded. It does not replace compliance or documentation.
Attorney, Certified Specialist in Commercial and Corporate Law
Darius Dubiel is a Certified Specialist in Commercial and Corporate Law with a particular focus on compliance advisory, restructuring, insolvency law, digitalization and the use of artificial intelligence (AI) in a corporate context. He specializes in corporate law, legal support for coaches and questions of insolvency and restructuring law. Another focus is representing coaches and educational providers in proceedings concerning the Distance Learning Protection Act (FernUSG), ZFU approval and refund claims by customers.
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