Are managing directors liable for cartel fines against the company? – Federal Court of Justice refers the question of recourse to the ECJ

Two German companies are trying to recover cartel fines of 4.1 million euros from their former managing director and CEO. They have largely failed in the instances, and the Federal Court of Justice (Bundesgerichtshof) is now referring the matter to the European Court of Justice (ECJ).

Starting situation

In the specific case, the former managing director of a group of companies in stainless steel production had participated in a price cartel from 2002 to 2015. The Federal Cartell Authority (Bundeskartellamt) then imposed fines of 4.1 million euros on the companies and 126,000 euros on the defendant personally.

The plaintiff companies demanded from the defendant, inter alia, reimbursement of the fine imposed on the GmbH. In the lower courts (Düsseldorf Regional Court and Düsseldorf Higher Regional Court), the lawsuits had been dismissed. The Cartel Senate of the Federal Court of Justice (Bundesgerichtshof) is now asking the ECJ whether EU law requires a restrictive interpretation of the liability provisions for corporate bodies (Sec. 43 para. 2 Limited Liability Companies Act (GmbHG) or Sec. 93 para. 2 sentence 1 Stock Corporation Act  (AktG)) to the effect that corporate sanctions are not covered by them.

Practical note

The question of the recourse of corporate fines is of the highest practical relevance. In any case, corporate fines for business-related violations are "felt" to be growing in popularity with law enforcement authorities and criminal courts. It is therefore not surprising that companies try to pass on these sanctions to the culpable persons.

Dr. André-M. Szesny, LL.M. provides a detailed analysis of the legal situation on Legal Tribune Online (in German language).