Liability of managing directors and executive board members

Management must translate legal requirements into a functioning corporate organisation. These include clear responsibilities, adequate information and control as well as an appropriate response to warning signals. We advise companies and management bodies on the prevention of liability risks and the assessment of specific infringements. Identify possible conflicts of interest for whom a mandate can be assumed.

Typical situations

• A management takes over a company with unclear responsibilities or incomplete documentation.
• Compliance tasks are transferred to employees, group units or external service providers.
• A damage, a public authority measure or an internal notice raises questions about the responsibility of the management.
• Decisions with significant economic risks must be prepared and documented.
• Shareholders, Supervisory Board or insolvency administrators claim compensation.

Legal starting point

For GmbH managing director § 43 GmbHG regulates the duty of care and liability towards the company. In particular, § 93 AktG is decisive for members of the board of directors of a public limited liability company. Whether a claim for compensation exists depends, among other things, on breach of duty, fault, damage and causality; The rules on burden of proof shall be taken into account separately.

Organisational obligations can be specified by special regulations. § 91 AktG concerns, among other things, the early detection of existence-prone developments and an appropriate and effective internal control and risk management system for listed companies. § 1 StaRUG contains obligations for early detection of crises and for crisis management for the companies covered there. § 130 OWiG may become relevant in case of insufficient supervision of operational infringements. These rules have different conditions and may not be transferred to any company at a flat rate.

Business discretion and legal obligation

Not every commercially unsuccessful decision is a breach of duty. Subject to its conditions, the Business Judgment Rule in § 93 Abs. 1 Satz 2 AktG protects business decisions made on an adequate information basis in the company’s interests. It does not permit deliberate breaches of the law. Reliance on legal advice also requires appropriate selection of the adviser, complete information and critical assessment.

In particular, alternatives, risks, sources of information and potential conflicts of interest should be clearly documented before important decisions are taken. A subsequent statement of reasons does not replace a timely decision basis.

Delegation relieves the burden only in case of appropriate organisation

Tasks can be distributed. To this end, appropriate technical personnel must be selected, powers and resources must be defined and adequate reporting and control channels established. The management must not rely solely on formal competence in the event of obvious problems. Warning signals can require more intensive control and own measures.

A departmental distribution, the appointment of a compliance officer or a service provider contract do not automatically eliminate the overriding organisational and supervisory obligations. The decisive factor is how the division of tasks is actually lived.

Dealing with a claim for liability

First, claimants, affected periods, concrete allegations and the basis for decision at that time must be clarified. Documents and communication must be secured in an orderly manner. The limitation period, insurance conditions and possible disclosure obligations shall be examined at an early stage. The defence of an organ member and the enforcement of claims of the company may require separate representation.

Our services

• Examination of organisational structures, portfolio distributions and reporting requirements.
• Legal monitoring of delegation and the establishment of internal control processes.
• Design of decision-making and documentation standards for high-risk operations.
• Assessment of liability claims and preparation of further legal steps.
• Examination of interfaces to D&O insurances and other consultants.
• Training for management, executives and control bodies.

Common questions

Does a shareholder decision protect against any liability?

Nope. The effect of a decision depends on the legal form, legality and entitlement concerned. Mandatory law, creditor protection and criminal or regulatory responsibility cannot be waived at will.

Is it enough to appoint a Compliance Officer?

A mere designation is not enough. Tasks, powers, access to information, resources and control must match the risk situation. The management remains responsible for its own duties.

Does the D&O insurance take over any damage?

This depends on the concrete contract. Insured persons, types of entitlement, exclusions, self-defence, temporal protection and obligations must be checked. A cover commitment shall not be required.

What documents do you need?

Regularly, the company contract or articles of association, rules of procedure, division of portfolios, relevant decisions, reports and documents relating to the contested operation are helpful. In the event of an ongoing dispute, letters of claim and insurance conditions are added.

Legal basis and further official information

• § 43 GmbHG
• Article 93 of the Act
• Article 91 of the Act
• § 1 StaRUG
• § 130 OWiG

Legal status: 1 November 2026. The classification of concrete facts requires an examination of the applicable regulations and circumstances.

Related topics and next steps

• Compliance management systems
• Compliance for SMEs
• Internal investigations
• Training and workshops

Request advice on the contact page. Briefly describe your request and, if necessary, specify existing deadlines. Scope and remuneration will be agreed prior to commissioning.