The direction of case law
The courts are continuously sharpening the requirements on the duty of care of managing directors — with consequences for practice well beyond the individual case. Three lines of development are particularly relevant for day-to-day management.
Allocation of responsibilities only protects with clear documentation
In a multi-member management board, the allocation of responsibilities is often understood as protecting against liability — rightly so, but only under strict conditions. An effective allocation requires a written, clear and genuinely practised assignment. If the allocation remains informal or actual practice departs from the written document, all managing directors are again jointly liable — and the residual duty of supervision of non-responsible directors remains in any event.
The business judgement rule requires an adequate information basis
Business decisions enjoy liability privilege where they were made on an adequate information basis and in the interests of the company (Section 93 (1) sentence 2 AktG, applied by analogy to the GmbH). Case law increasingly requires traceable documentation of the decision-making basis — those who cannot subsequently demonstrate what information was available and what weighing of interests took place tend to lose the privilege even where the decision itself was defensible on the merits.
Heightened duties in crisis
On the onset of illiquidity or over-indebtedness, duties intensify significantly: the payment prohibition under Section 15b InsO covers payments not consistent with the care of a prudent manager, and personal liability for unpaid taxes and social security contributions remains regardless of the GmbH liability cap. Case law increasingly emphasises that early crisis detection is itself part of the management duty — those who ignore warning signals are also liable for failing to conduct timely review.
Practical consequences
Three measures materially reduce the liability risk: a written, up-to-date rules of procedure with a clear allocation of responsibilities; systematic documentation of material business decisions including the underlying information; and ongoing liquidity and crisis monitoring that acts earlier than necessary rather than later than permissible.
This article presents a simplified overview of the legal position and does not replace advice in individual cases.