Who is responsible in the event of a warning to the GmbH?

As soon as a company has more than one employee, the owner or CEO is no longer involved in all business processes. Unlike the lone fighter, the CEO or owner of larger companies knows little or nothing about things like Google Ads, newsletters, or product descriptions. So who is responsible for violations, such as individual managers or employees? GmbH only, employee or CEO? Spoilers: It depends.

Principle: corporate responsibility

Anyone who engages in business activities that are classified as unacceptable under competition law may be subject to exclusion or injunction proceedings based on the principle of competition law, which is implemented through the classic warning. However, in the case of a GmbH, as a legal entity, it cannot act on its own, but only through its organs.

Therefore, the following principle applies in company law: the GmbH is liable for the anti-competitive actions of its body (e.g. the CEO). If a company body has committed a violation of competition law, the company behind it is always liable if the general director acted in the performance of his duties. Even if the CEO is not involved in the operational activities of the company or has, for example, used his account for a fraudulent post on social media, it is possible that the company is classified as a company and liable to the GmbH. cf. OLG Düsseldorf, 2019 September 12 decision – 15 U 48/19). Reason: To an outsider, he cares about the company’s concerns, and the target group of the post interprets such a statement as the company’s own communication.

Those who are smart build bridges

Thus, if a body in the performance of its tasks has violated competition law, the GmbH is responsible for it (the so-called liability of the bodies). As a result, the GmbH is initially liable with its company assets to the warning party (creditor) for the violation of competition law and its consequences, i.e.

The general director’s personal liability is limited

However, in practice, mutual attribution of violations often occurs, which leads to further legal disputes. As in the previous example, the CEO’s personal liability must also be verified.

According to the GmbH Act, the CEO of a GmbH must exercise “the diligence of a prudent businessman” in the performance of his duties. However, the CEO is only personally liable if he has intentionally or negligently breached this duty of care. Case law has often debated how this should be interpreted, and eventually a clear direction was established.

For a long time, the representative of a legal entity was personally responsible for violations of competition law committed by the company, even without doing anything on his own. These were cases where he was aware of the infringement of competition and did not prevent it. For example, during this process, the CEO was also required to undertake not to do so. However, in 2014 The Federal Court of Justice has limited this: bodies representing legal entities (e.g. CEOs of GmbHs) are only personally liable to a limited extent for infringements of company competition law (BGH, judgment of 18 June 2014). , Az. I ZR 242/12).

Personal liability of the CEO may exist, for example, if the CEO knowingly applies an unfair business model. He must also be personally responsible for all measures normally decided at management level. This includes the company’s customer acquisition concept, the content of the company’s press release in which the CEO expresses his opinion, and the general website of the GmbH. If there are violations here, the personal liability of the joint venture is obvious and he must personally undertake to refrain from it. As before, it remains so: he is personally responsible for every statement he makes.

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