Aktualisiert am:
Federal Court of Justice, January 25, 2011, Case No.: II ZR 196/09
According to § 64 Sentence 1 of the German Limited Liability Companies Act (GmbHG), the managing directors of a company are liable for payments made after the company’s insolvency or after the determination of its over-indebtedness.
The purpose of this regulation is to ensure that, from the time of insolvency, individual creditors of the company are no longer satisfied, thereby preserving the company’s assets for the benefit of all creditors.
To achieve this goal and apply the necessary pressure, § 64 GmbHG allows the managing director, as the ultimately responsible natural person, to be held liable.
The claim under § 64 GmbHG is not a damage compensation claim for the company, but rather is classified by the Federal Court of Justice (BGH) as a claim of a special nature, since it ultimately concerns not the damage to the company, but the interests of the creditor community.
In the decision mentioned above, the BGH had to rule on whether the managing director is liable under § 64 Sentence 1 GmbHG when, after the insolvency, he makes outstanding VAT and payroll tax payments to the tax office and outstanding employee contributions to social security to the collection agency.
Background of the Case: Insolvency and Payments Made by the Defendant
The defendant was the managing director of a civil engineering company (GmbH) over whose assets insolvency proceedings were initiated in early January 2006. The plaintiff, the insolvency administrator, demanded reimbursement from the defendant for two payments that he had made after the insolvency to the tax office and the AOK (a health insurance company).
Alternatively, the plaintiff based his claim on the fact that, after the insolvency, transfers amounting to €121,212.50 were credited to the GmbH’s business account.
Decision of the District Court and the Appellate Court
The District Court dismissed the claim concerning the payments to the AOK and the tax office. However, it ordered the defendant to pay €18,501.07 to the plaintiff. This amount corresponded to the difference between the credits on the business account and the payments made to the tax office and AOK. The court dismissed the rest of the claim.
Upon appeal by the defendant, and after rejecting the cross-appeal by the plaintiff, the Appellate Court dismissed the claim in full. The plaintiff pursued his claim further in the revision.
Judgment of the Federal Court of Justice: Managing Director Acted Properly
The Federal Court of Justice (BGH) upheld the decision in favor of the defendant. It ruled that the defendant had acted with the diligence of a prudent managing director when making the payments to the tax office and AOK.
The BGH reasoned that a managing director should not be put in a position where they could face criminal liability or be held liable for failing to remit due taxes and social security contributions. This applies both to payments due after the insolvency filing period and to existing arrears.
This decision aligns with previous BGH rulings, which held that a managing director, even after the onset of insolvency, acts with the diligence of a prudent businessman when making payments of employee contributions to social security (BGH, judgments of May 14, 2007 – II ZR 48/06 and June 2, 2008 – II ZR 27/07).
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Source: Federal Court of Justice
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