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Discharge of the Managing Director Only if Adequate Accounting of Personal Management Activities Is Provided

21.11.2022

(updated on

07.04.2026

)

Min. read

The judgment of the higher regional court of Brandenburg concerned the discharge of a managing director of a GmbH. The former managing director and co shareholder (the defendant) had been removed from office as managing director for cause by shareholders resolution and his shares had been redeemed. It was further resolved that the company should pursue its claims against the defendant. The background was that in 2016 the defendant had purchased a motorhome at the expense of the company and had subsequently made further acquisitions for the motorhome on the company’s account. The company (the claimant) then sued the defendant for payment of the purchase price for the motorhome and the other acquisitions. The regional court dismissed the action because it considered that the defendant had been validly granted discharge for the period in which the motorhome was acquired and that claims for damages were therefore excluded. The claimant’s appeal to the higher regional court of Celle was largely successful.The higher regional court of Celle held that the disputed matter relating to the motorhome was not covered by the discharge. The purpose of granting discharge is to express confidence in the management. Under section 46 number 5 of the Limited Liability Companies Act, discharge generally has the effect that claims for damages against the managing director are excluded. According to the higher regional court of Celle, however, this only applies if the management has provided adequate accounting of its own management activities before discharge is granted. This means that all circumstances that could give rise to claims for damages by the company against the management must be disclosed. Only once that has been done can the discharge cover claims for damages arising from the disputed matter. The higher regional court of Celle did not consider this to be the case here. The circumstances surrounding the motorhome were not readily apparent to the shareholders and the defendant was unable to prove that he had adequately informed his co shareholders about the motorhome. Although the defendant had disclosed all the company’s figures for the year in question at the shareholders meeting, it could not be inferred from those figures that the defendant had purchased a motorhome for private use at the expense of the company.The higher regional court of Celle therefore granted the claimant a claim for compensation under section 43 paragraph 2 of the Limited Liability Companies Act. As managing director of the claimant, the defendant had not exercised the care of a prudent businessman and the discharge did not cover the matter of the motorhome.

Discharge of the Managing Director Only if Adequate Accounting of Personal Management Activities Is Provided

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