In summer 2023, the Higher Regional Court of Düsseldorf ruled that board members and managing directors are not personally liable for fines imposed on a company.
The Decision of the OLG Düsseldorf
The case in question concerned recourse claims by two stainless steel companies against their former board member due to his involvement in a stainless steel cartel.
After official investigations revealed that a board member of both companies had been involved in the exchange of competitively sensitive information for several years, the German Federal Cartel Office imposed a fine of EUR 4.1 million on one of the companies. In addition, a further fine was imposed personally on the board member himself.
Besides the reimbursement of the fine, the suing companies also demanded compensation for the legal defense costs incurred in connection with the fine proceedings.
The Higher Regional Court of Düsseldorf rejected the recourse claims of the companies against their managing director in its entirety and, with regard to the fine imposed on one of the companies, determined that recourse against the acting body was not eligible.
The Higher Regional Court of Düsseldorf justified its decision by stating that in the alternative the assessment under antitrust law would be undermined, according to which (as in the present case) separate fines are imposed on the acting person and the company itself. Recourse to the managing director also poses the risk of jeopardizing the purpose of a corporate fine. Thus, by taking recourse to managing directors and board members, companies could in fact evade their liability for fines under antitrust law.
What are the Practical Implications of this Decision?
Overall, the judgment of the Higher Regional Court of Düsseldorf provides considerable material for discussion. The question of the recoverability of cartel fines is the subject of much controversy in German literature and jurisprudence of the courts. This issue not only raises questions between companies and their board members/managing directors, but also regarding directors’ and officers’ (D&O) liability insurers, who will be following these developments just as closely.
It therefore remains to be seen how the German Federal Court of Justice will rule in the pending appeal and whether further clarification can be expected on this controversial issue of personal liability. It is currently not known when a decision will be issued by the Federal Court of Justice.
