{"id":555,"date":"2023-12-05T11:04:06","date_gmt":"2023-12-05T10:04:06","guid":{"rendered":"https:\/\/www.clience.legal\/geschaeftsfuehrerhaftung\/"},"modified":"2026-10-15T13:09:53","modified_gmt":"2026-10-15T11:09:53","slug":"geschaeftsfuehrerhaftung","status":"publish","type":"post","link":"https:\/\/www.clience.legal\/en\/geschaeftsfuehrerhaftung\/","title":{"rendered":"Managing director liability: Current developments"},"content":{"rendered":"

Managing directors of a company face a great deal of responsibility and many decisions. Managing a company brings not only many rights but also obligations.<\/p>\n\n\n\n

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Do you still have questions about managing director liability? We are here for you. Get in Contact<\/a> with our law firm.<\/figcaption><\/figure>\n\n\n\n

These give rise to managing director liability<\/strong>, which poses a major legal risk for managing directors.<\/p>\n\n\n\n

In principle, managing directors are obliged to conduct the company\u2019s business properly and in accordance with applicable law. If mistakes are made, mere negligence is often enough to trigger managing director liability. In addition, under certain circumstances, managing directors may also be held personally liable<\/strong> .<\/p>\n\n\n\n

In this article, we show you when exactly managing director liability applies and how you can protect yourself.<\/p>\n\n\n\n

Do you need legal support or want to put your company on a legally sound footing?<\/strong> With years of experience, our law firm assists many clients in resolving liability issues and minimizing legal risks. Please feel free to contact us for a non-binding initial consultation.<\/p>\n\n\n\n

Contact us now!<\/a><\/p>\n\n\n\n

What does managing director liability mean in a GmbH?<\/h2>\n\n\n\n

The GmbH<\/strong> is a legal form that is often chosen to avoid personal liability. However, managing directors of a GmbH should not rely on the limitation of liability when it really matters. With regard to liability in a GmbH, a distinction must always be made between:<\/p>\n\n\n\n

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  1. Internal liability:<\/strong> Liability of the managing director to the GmbH<\/li>\n\n\n
  2. External liability:<\/strong> Liability of the managing director to third parties<\/li>\n\n\n
  3. Liability of the shareholders, where applicable<\/li>\n<\/ol>\n\n\n\n

    While the managing director\u2019s liability toward third parties in external relations<\/strong> is generally limited to the company\u2019s assets (\u00a7 13(2) GmbHG), in internal relations<\/strong> the managing director may well be held personally liable<\/strong>. A prerequisite for liability is, in particular, that managing directors act in breach of their duty of care<\/strong> or that their management duties<\/strong> are violated.<\/p>\n\n\n\n

    If the managing director breaches his duty of care<\/strong> and thereby causes damage to the GmbH, the GmbH can claim damages<\/strong> from him. Contrary to general expectation, the managing director must prove that he bears no fault<\/strong> and thus has the burden of proof<\/strong> of his innocence (so-called reversal of the burden of proof).<\/p>\n\n\n\n

    In addition, there is a growing tendency for the courts to allow, alongside managing director liability, claims against the managing directors and shareholders <\/strong>personally.<\/p>\n\n\n\n

    Managing director liability in insolvency proceedings<\/h2>\n\n\n\n

    If a GmbH becomes insolvent, i.e., it is over-indebted or no longer able to pay its debts, the managing director must, without undue delay, but at the latest within 3 weeks<\/strong> after the grounds for insolvency have been established, file an insolvency petition<\/strong> with the competent authority. If he fails to meet this obligation or does so too late, he may commit the criminal offense of delayed filing for insolvency<\/strong> (\u00a7\u00a7 17, 19 InsO).<\/p>\n\n\n\n

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    Illiquidity<\/strong> exists when the company is no longer able to meet its payment obligations as they fall due. According to the Federal Court of Justice (BGH), this is always the case if less than 90% of the liabilities can be met within 3 weeks after the reference date. Over-indebtedness<\/strong> , on the other hand, means that the company\u2019s assets no longer cover its liabilities at all.<\/p>\n<\/blockquote>\n\n\n\n

    It is irrelevant<\/strong>whether the grounds for insolvency (illiquidity or over-indebtedness of the GmbH) were known<\/strong> to the managing director or not. It is one of his duties to be informed about such matters concerning the company. Criminal liability can therefore also arise if, due to ignorance<\/strong> , insolvency proceedings are opened too late or not at all.<\/p>\n\n\n\n

    If the opening of the insolvency proceedings is knowingly or unknowingly omitted or delayed, the managing director is liable for all resulting damage<\/strong> with his personal assets. Personal liability can also arise toward creditors or the GmbH, for example if contracts were concluded or payments ordered after the company became insolvent.<\/p>\n\n\n\n

    Managing director liability for taxes and social security contributions<\/h2>\n\n\n\n

    Obligations to be met arise not only from contracts with suppliers and customers. Toward the state as well, in particular toward the tax authorities<\/strong> and social security agencies<\/strong>, managing directors have duties.<\/p>\n\n\n\n

    This includes, in particular, submitting the advance VAT and payroll tax returns<\/strong> on time, paying the social security contributions<\/strong> and ensuring that bookkeeping and accounting<\/strong> are carried out correctly, whether by themselves or by others. If these contributions and taxes are not reported and paid on time, there may be a breach of duty<\/strong> for which managing directors may also be held personally liable<\/strong> . This usually also applies if managing directors are not responsible for these tasks themselves but have delegated them to an employee.<\/p>\n\n\n\n

    Managing directors lead the company and are responsible for the lawful conduct of its employees. Only in exceptional cases can personal liability be excluded.<\/p>\n\n\n\n

    Darius Dubiel \u2013 insolvency advisor and business attorney for crisis management \u2013 helps companies in existential crises not only to survive but to become successful again.<\/p>\n\n\n\n

    Find out more now<\/a><\/p>\n\n\n\n

    When does managing director liability become time-barred?<\/h2>\n\n\n\n

    Managing directors are liable throughout their entire term of office<\/strong> personally for breaches of duty and unlawful acts. This covers the entire period during which they serve as managing directors of the company.<\/p>\n\n\n\n

    However, managing directors can still be held liable even after leaving the GmbH. The limitation period for claims in this context is 5 years<\/strong> (\u00a7 43(4) GmbHG<\/a>).<\/p>\n\n\n\n

    Current developments in managing director liability<\/h2>\n\n\n\n

    In recent years, several new laws have been added to the general rules on managing director liability that may expand liability risks<\/strong> and should therefore be given special consideration.<\/p>\n\n\n\n

    This includes, in particular, the Whistleblower Protection Act<\/a> (HinSchG), which was introduced on the basis of the EU Whistleblower Directive and came into force on July 2, 2023. Among other things, this law protects employees<\/strong>, who uncover and report internal wrongdoing<\/strong> (so-called whistleblowers). In the future, companies must provide reporting systems to protect whistleblowers within their own ranks from reprisals or other disadvantages.<\/p>\n\n\n\n

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    As a law firm experienced in corporate law, we support you in implementing protective measures against managing director liability. Contact<\/a> us now.<\/figcaption><\/figure>\n\n\n\n

    Companies with 250+ employees<\/strong> must implement the rules immediately upon the entry into force of the HinSchG. For companies with 50+ employees<\/strong> an extended implementation deadline of December 17, 2023 applies. Managing directors should start implementation as soon as possible so that a violation of the law<\/strong> and the associated revenue-related fines<\/strong> are avoided. It is also in the company\u2019s interest to be alerted to internal wrongdoing before it develops into a public scandal.<\/p>\n\n\n\n

    What is also new is the Supply Chain Due Diligence Act<\/a> (LkSG), which comes into force on January 1, 2024. Under this law, companies can be held liable for environmental damage<\/strong> and human rights violations<\/strong> that occur within their supply chain<\/strong> . This can have significant consequences for the managing director\u2019s personal liability.<\/p>\n\n\n\n

    In addition, under the new Stabilization and Restructuring Act<\/a> (StaRUG), companies have the option of drawing up and implementing a restructuring plan on their own responsibility. In the event of impending insolvency, managing directors can now choose whether to file an insolvency petition<\/strong> or first initiate restructuring proceedings<\/strong> or restructuring measures<\/strong> in order to prevent insolvency.<\/p>\n\n\n\n

    What should managing directors pay attention to?<\/h2>\n\n\n\n

    To avoid personal liability, managing directors should always act dutifully and in compliance with the law. In addition, general practical guidance is provided below. However, it is in no way a substitute for individual advice from an experienced attorney.<\/p>\n\n\n\n