Presentation by Niklas Cordes, Institute of International Business Law, University of Muenster, Germany
Two actual court decisions regarding the liability of management board members for company fines are currently receiving a lot of attention in Germany. In 2011 the Siemens AG had been involved in a corruption scandal and therefore the regulatory authorities in Germany and in the USA imposed multi-million dollar fines against the company. Later in 2014 the district court of Munich (Landgericht München) decided in the so called ‘Siemens-case’ that the management board breached their duties and consequently was obliged to compensate the Siemens AG for all suffered damages, including the fines imposed on the company.
Meanwhile, in 2015 the district labour court of Düsseldorf (Landesarbeitsgericht Düsseldorf) reached a conclusion, under comparable circumstances, directly opposite to the Siemens-case. In the so called ‘TyssenKrupp-case’ the court judged that the company’s cartel fine in amount of EUR 300 million is not recoverable. The management board were completely exempted from the obligation to pay.
Now legal researchers are in demand to achieve legal clarity: Are management board members obliged to compensate companies for fines based on a breach of their duties? This question not only poses a national legal problem in Germany but also applies to other jurisdictions like Australia. Opinions on this important legal issue differ. Some authors follow the decision of the Court of Düsseldorf and reject any recourse of company fines from management board members. It is argued that such compensation might frustrate the purpose of 'fines' as a sanction in the case of companies. Nevertheless other authors agree with the court of Munich and affirm recourse because there are no provisions limiting companies’ claims for damages against the management board.
Nevertheless, in so far recourse is affirmed the question now arises whether and under which conditions the liability of management board members should or could be limited.
In this Seminar different approaches will be analysed and based on this analysis, an attempt will be made to propose legislation to deal with this important issue.