GER: Antitrust Fines: Are Managers Personally Liable?

Sept 15, 2023 Benn-Ibler Rechtsanwälte

Managing directors are not personally liable for cartel fines imposed on a company. This was recently confirmed by the German Duesseldorf Higher Regional Court. There are separate rules on fines in the provisions of cartel law, the court says.

The defendant had been the managing director of the plaintiff GmbH and the chairman of the board of the plaintiff AG, two stainless steel companies which were part of a group. In these functions and as chairman of a relevant industry association, the defendant had regularly participated in the exchange of competitively sensitive information between 2002 and 2015. The German Bundeskartellamt fined ten stainless steel companies, two industry associations and 17 responsible persons a total of EUR 355 million in the subsequent fine proceedings. The Bundeskartellamt also fined the plaintiff GmbH EUR 4.1 million as well as the defendant. The plaintiff GmbH is now suing its former managing director, claiming damages from the defendant amounting to the fine imposed on the company. In addition, both plaintiffs are seeking a declaration that the defendant is liable for all future damages arising from the cartel.

The Duesseldorf Regional Court dismissed the action as regards the corporate fine, but found that the defendant was obliged to compensate the plaintiffs for all further future damage caused by the competition infringement. The Cartel Senate of the Higher Regional Court has now confirmed the lower court’s decision.

Personal liability is excluded in this case because the antitrust law is interpreted to mean that separate fines are imposed on the acting person and the company itself. The antitrust rules would provide for separate fines in each case. In addition, recourse would jeopardise the sanctioning purpose of the corporate fine. In this way, companies could de facto evade their responsibility to pay fines under antitrust law.

The judgement is not final. An appeal to the German Federal Supreme Court (Bundesgerichtshof) has been granted. The question of the personal liability of board members and managing directors for the fines of a company, which is disputed in literature and case law, has not yet been decided by the highest court.

OLG Duesseldorf, VI-6 U 1/22 (27 May 2023)