If a GmbH is successfully accused of an infringement of competition law, the managing director(s) may also be personally liable under certain circumstances.
Liability of the managing director as perpetrator or guarantor
The BGH has once again stated this in recent decisions. The highest civil court ruled in 2014 (BGH, judgment of 18.06.2014, ref.: I ZR 242/12 – Managing director liability):
The managing director is liable for an infringement of competition law by the company he represents if he has committed the infringement himself or commissioned it.
Liability is also possible if the managing director
„was involved through positive action or if it should have prevented the competition law infringements on the basis of a guarantor position established under general principles of tort law. […] This is the case, for example, with the infringing use of a certain company name and the general advertising presence of a company, which is typically decided at management level. „
Knowledge of competition law infringement not sufficient for liability of managing director
In order to prevent liability from getting out of hand, the BGH also states that mere knowledge of anti-competitive behavior is not sufficient for a claim to be made:
„If the managing director merely becomes aware that competition law infringements are being committed or are about to be committed in the course of the business activities under his management, he is generally not personally subject to any duty under competition law in relation to external third parties to prevent (further) infringement of the interests of market participants protected by competition law.“
Limitation of liability is not a free pass
The decision of the BGH deviates from previous case law. Liability for mere knowledge is denied.
However, there are still various constellations in which the managing director cannot escape liability. In particular, there are cases in which he himself actively influenced the company’s public image or even committed the infringement himself.