Management (Germany)

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Under management (or management ) are understood in company law one or more natural persons who at company or other body of persons of the management business entrusted and the society as a body and out of court organschaftlich represented . The activity of managing directors is also called management.


The management without an order (GoA; § 677 BGB ), known in civil law , occurs when someone (the managing director) conducts a business for the principal without being commissioned to do so . This civil law term of the managing director does not meet the requirements that are to be made of a company law and organizational one. Rather, the management is a function that is performed by the managing director. He has been entrusted with tasks for which he has the highest competencies of all employees in the company and for which he must assume the greatest responsibility . The management affects the internal relationship of a company and its external relationship . The term "management" is a corporate law in the individual legal forms used undefined legal term . The title "managing director" does not represent a protected professional title in the sense of § 132a StGB.


The management is the highest management position of a company, which is responsible for the formation of the will and the definition of the company goals and has to make the corresponding decisions . It forms the top management that the company policy ( English policy ) formulated as a special management task: "The guide makes the business policies that lead causes their execution" and decide on the strategy . Original management tasks are also organization , control and corporate planning , with the latter focusing on strategic planning .

As early as 1951, the business economist Erich Gutenberg ensured that corporate management established itself as an independent, original production factor (with the derivative factors of corporate planning, organization and control). The management includes all legal and factual actions that are suitable to promote the business purpose . In 1962, Gutenberg established various criteria for management decisions. According to this, management tasks are those that are, on the one hand, of direct importance for the existence and future of the company and, on the other hand, can only be performed by the entire company, which is why they cannot be delegated. The managing director must delegate the non-original tasks .

Corporate law

The company law has decided, the supreme body of the GmbH to speak of management, whose incumbents as managing the company in court and out of court ( § 35 para. 1 GmbHG ). The managing directors must be named on business letters in accordance with Section 35a (1) GmbHG.

The organ of a company as such has no capacity to act , so that ultimately natural persons have to be appointed as administrators . Only through them does an organ - and thus society - become capable of acting. The persons authorized by a body to lead are called board members or managing directors. These are the people who actually perform the task of managing the company. You are the legal representative of the company.

In corporate law, the managing director has eight classic characteristics in the core area of ​​management. From this, the distinction between formal and factual managing director is derived, which occupies a large space in specialist literature and jurisprudence . A formal managing director is someone who is registered as such in the commercial register ( Section 39 (1) GmbHG), more factually someone who fulfills at least six of the eight classic characteristics and does not exclusively perform internal tasks. "For the position and responsibility as the de facto managing director of a GmbH, it is necessary that the person concerned, according to the overall appearance of his appearance, the fortunes of the company [...] beyond the internal influence on the statutory management [...] through his own actions in the external relationship, which the The activity of the legal management body has a lasting impact, has significantly taken in hand ".

Management authority

Management authority is the legal and company law framework within which a managing director internally has the right and the duty to control the course of a company through orders. Separately, the he added endorsed mostly parallel power of representation . It states the extent to which he can legally authorize and oblige a company externally. The scope of company activity at the GmbH is determined by the company's purpose ( Section 3 (1) No. 2 GmbHG). Within these limits, the managing director is entitled and obliged to take all measures to achieve this business purpose. The GmbHG did not regulate the management authority centrally, rather individual tasks are spread over the entire law. The management authority can be limited by instructions from the shareholders' meeting ( Section 37 (1) GmbHG).

According to Section 77 (1) AktG, the management authority lies with the board of directors of the stock corporation (AG). The supervisory board may restrict the management powers of individual board members. In the OHG , the management authority extends to actions that the operation of the commercial trade of the company entails ( Section 116 (1) HGB). According to the dispositive regulation in § 114 HGB, every partner in the OHG is authorized to manage the company. The management authority only states that someone may act for the company, but not that he can do it. If the management authority results from a shareholder status , one speaks of organizational management authority .


The company law names the supreme organ of the public limited company (AG) Board and used for him both the term "line" ( § 76 para. 1 AktG ) and that of "management" ( § 77 para. 1 AktG). The prevailing opinion sees the management as part of the management. The board of directors is the organ, the board members are the administrators.

Management board members of an AG are generally not employees within the meaning of Section 7 (1) SGB ​​IV . The board of directors is the body authorized and obliged to manage the business and is responsible for managing the company. When making decisions about goals and guidelines of the company and regarding questions of business policy, he acts independently and, in particular, independent of instructions. The Supervisory Board monitors and controls the management in accordance with Section 111 of the AktG, without being authorized to manage the company itself (Section 111, Paragraph 4, Clause 1 of the AktG). At the general meeting, the shareholders only decide on management measures if requested by the management board ( Section 119 (2) AktG). The management is the responsibility of the board of directors, the supervision of the management is the responsibility of the supervisory board, fundamental decisions are a matter for the general meeting.

GmbH managing director

The GmbH managing director has a statutory area of ​​responsibility that is to be carried out independently, because he must ensure proper bookkeeping ( Section 41 GmbHG), he must present the annual financial statements and the management report to the shareholders immediately after they have been drawn up for the purpose of establishing the annual financial statements ( Section 42a Para. 1 GmbHG), he must exercise the care of a prudent businessman ( Section 43 (1) GmbHG) and is liable for payments made by the company after insolvency ( Section 64 GmbHG). According to § 43a GmbHG, the managing directors and other relevant representatives of the GmbH may not be granted credit from the company's assets required to maintain the share capital . For breaches of duty resulting from this, he is subject to the GmbH managing director liability .

A distinction is to be made between whether the GmbH managing director is a mere managing director within the framework of the external organization or whether he also participates in the share capital of the GmbH as a “shareholder managing director” and can therefore also exercise influence in the shareholders' meeting. The (GmbH) managing director represents the company in and out of court. In relation to third parties (i.e. in an external relationship), his power of representation is unlimited (possibly together with another managing director; sole power of representation is a special case, which is often provided for in the articles of association or in the articles of association and is accordingly entered in the commercial register). In the internal relationship, however, he has to follow the decisions of the shareholders' meeting.

Open trading company and limited partnership

The shareholders of the general partnership called CEO as of § 110 HGB can be found. All shareholders are entitled and obliged to manage the company's business ( Section 114 HGB). If the management is entitled to all or several partners, each of them is entitled to act alone and thus has the power to manage the company individually . However, if another managing partner objects to the performance of an action, this must be omitted. Different regulations in the articles of association are possible.

In the case of a limited partnership , Section 164 of the German Commercial Code (HGB) states that the limited partners are excluded from “conducting business” of the limited partnership because this is the sole responsibility of the general partners . The latter managing directors are also shareholders, which is why we speak of self-organization . In the KGaA , the management board is made up of the general partners (Section 161 (2) HGB in conjunction with Section 278 (2) AktG), while the limited partners are treated like shareholders in a stock corporation ( Section 278 (3) AktG) and only with are liable to their subscribed capital.

Other management

The managing directors must ensure that the company's purpose is achieved and that the actions required to achieve it are specified and carried out. To do this, they must take all organizational, commercial and personnel measures that are necessary to carry out the company's tasks. The managing director is tasked with looking after the legal interests of a company or another association of persons.

At the BGB-Gesellschaft , the management is jointly due to the shareholders; The consent of all shareholders is required for every transaction ( Section 709 (1) BGB). Different regulations in the articles of association are possible. Unless otherwise regulated in the articles of association, the managing partners are also entitled to represent the company ( Section 714 BGB).

In the partnership , all partners are obliged to manage the business; individual partners can only be excluded from conducting other business in the partnership agreement ( Section 6 (3 ) of the PartGG ).

The colloquial language uses the word management and for the management of clubs (although they have a board of directors, § 26 , Section 1 of the Civil Code.), Especially in corporations (also: CEO ) as associations , chambers of commerce , chambers of trade , professional associations to Term managing director. In German politics, a parliamentary faction has the parliamentary managing director , who is responsible for the party's business between parliament and the faction; in the case of political parties, the federal manager does this at the federal level. In theaters , operas and on public broadcasting , the term director is usually used .

Management contract

According to § 46 No. 5 GmbHG, managing directors are appointed by the shareholders' meeting , whereby managing directors acquire their position as a body. In addition to this function, managing directors receive another function if they conclude a managing director contract ( employment contract ) with the GmbH . This employment contract qualifies as a service contract in accordance with Section 611 BGB. The Federal Court of Justice (BGH) and the Federal Labor Court (BAG) classify the employment contract as a free service contract, but in individual cases an employment relationship or an employment relationship similar to an employee may exist. The employee-like employment relationship characterizes people who are not personally dependent like a real employee , but who are economically dependent. The employment relationship is always not an employment relationship. The contractual function must be strictly separated from the organizational function, which is reflected in the status of the managing director.


The case law and specialist literature deal very intensively with the dismissal of a managing director. Based on GmbH law, a distinction is made between ordinary and extraordinary dismissal for an important reason . According to Section 38 (1) GmbHG, the appointment of the managing director can be revoked at any time by a majority resolution of the shareholders. In accordance with Section 38 (2) GmbHG, the articles of association can restrict this free recall to important reasons. An important reason for the dismissal exists according to Section 38 (2) sentence 2 GmbHG in particular if there is a gross breach of duty or the managing director proves to be incapable of proper business management. The same reasons are given by Section 84 (3) AktG for the dismissal (revocation) of the board of directors of an AG and adds the factually justified withdrawal of confidence by the general meeting.

Status: employee or employer?

The legal question of whether the managing director is an employee or employer is answered differently in different areas of law .

Employment Law

By virtue of his position as a body, the managing director is an employer under labor law - regardless of his own employment contract with the company; because he exercises the right of direction in the internal relationship . According to Section 5 (1) of the ArbGG , persons are not deemed to be employees who, by virtue of the law , the articles of association or the articles of association, are appointed alone or as members of the representative body to represent the legal person or the group of persons. This prevented the managing directors from going through the labor courts . However, if the legal relationship is to be classified as an employment relationship and if it continued to exist as such after the effective termination of the organ position or was revived, legal recourse to the labor courts is permissible. The members of the body of a legal person that is appointed to legally represent the legal person (like the managing directors) are not employees ( Section 5 (2) No. 1 BetrVG ).

Corporate law

In terms of company law , the managing director, as an organ of the GmbH, is not an employee, but performs an employer function. According to the BGH, the managing director exercises the functions of the employer vis-à-vis workers and employees ; in relation to the company, however, he is in an employment relationship that obliges him to serve, that can be terminated and by which he is more or less economically dependent on the company depending on the amount of his salary. The European Court of Justice (ECJ) opposed the legal opinion that managing directors are employers in two judgments. The sole manager of a Latvian company was dismissed during her pregnancy. On the other hand, she complained, among other things, with reference to the maternity protection directive and was right. According to the opinion of the ECJ of November 2010, the managing director is regularly classified as an employee in the sense of Union law. This was confirmed by the ECJ in July 2015, according to which the body of a corporation (if it provides services to the company for a fee) is subject to the instructions of another body of the company and can be dismissed from office at any time without restriction, as an "employee" within the meaning of Union law is to be dealt with. He thus rejected the opinion of the referring labor court in Verden, according to which, when assessing the question of whether members of company managements in general and managing directors of a GmbH in particular are to be regarded as employees in the sense of Union law, it should also be taken into account that this group of people - especially with regard to the others Employees - usually perform typical entrepreneurial and employer functions.

civil right

Under civil law, as is § 611a BGB by the employment obligation of workers in the service of another bound by instructions for performance, externally imposed work in personal dependence. The right to issue instructions can concern the content, implementation, time and place of the activity. Those who are not essentially free to organize their activities and determine their working hours are bound by instructions . The degree of personal dependence is also determined by the nature of the respective activity. To determine whether there is an employment contract, an overall view of all circumstances must be made. If the actual implementation of the contractual relationship shows that it is an employment relationship, the designation in the contract is irrelevant. In its case law, the BGH is of the opinion that the managing director of a GmbH is, by definition, on the employer's side. The legal representative of a legal person, as its organ, cannot also be an employee.

Social security and social law

In social security law , the treatment of the managing director as an employee depends on whether he has a significant share in the share capital of the GmbH or whether he can actually exercise significant influence in the company. The Federal Social Court (BSG) is of the opinion that the GmbH, as a legal person, is the sole employer of the employees. According to the judgment, the sole shareholder and sole managing director of a GmbH will not become another employer with regard to the employees of the GmbH. According to the case law, a partner-managing director with a controlling influence on the GmbH is not in an employment relationship with regard to the activities performed for the company . An activity for a company could not only take place in the context of an employment relationship or as an entrepreneur, but also on the basis of an independent employment relationship. In social law , the managing director of the GmbH is subject to social security if he has little or no shares in the company. The so-called external managing director of a GmbH, "who does not have a share in the share capital (external managing director), is generally dependent on the GmbH and is subject to insurance".

Tax law

The income tax law treats the CEO as an employee, when acting on the basis of a service contract; his income as managing director is income from non-self-employed work according to § 19 EStG . However, the managing director in his employee function does not benefit from employee protection ( collective bargaining law , works constitution law : Section 5 (2) No. 1 BetrVG or protection against dismissal : Section 14 (1) No. 1 KSchG ). He has no employee rights in the area of collective labor law . From a tax point of view, an appropriateness check of the salary of the managing director takes place by the tax office. The shareholder-managing director could set his salary at will under purely civil law. From a tax point of view, however, it is only accepted as a business expense up to the amount in which the managing director's salary would have been paid to a third party. This is based on the standard of what is customary (arm's length principle ). Even the partner-managing director can - with tax recognition - only receive a salary within these limits.

Since the managing director of a GmbH always earns income from non-self-employed work with his managing director's salary in accordance with § 2 Paragraph 1 Clause 1 No. 4, § 19 EStG, his salary is therefore subject to wage tax deduction and shown in a wage tax certificate. However, regardless of the amount of the salary, he is not liable for social security if he also holds shares in the GmbH and can exercise significant influence on the company. Under certain circumstances, the GmbH managing director can be an entrepreneur i. S. d. § 2 UStG , so instead of receiving a salary, bill his GmbH for his managing director services. This also applies to the managing director of a partnership who is not also a personally liable partner. However, if the managing director of a partnership is also a personally liable partner, then he does not earn income from non-self-employed work, but income from the type of income to which the activity of the partnership can be assigned. This results from the fact that the manager's salary is to be understood as a special form of profit distribution in this case. All types of income ( income from agriculture and forestry , income from commercial operations , income from self-employed work , income from capital assets , income from renting and leasing as well as other income within the meaning of Section 22 EStG) come into question, with the exception of income from employment. The managing director of a partnership cannot, in his capacity as managing director, be an entrepreneur i. S. d. § 2 UStG, because his manager's salary is also not sales taxable. Since the tax object i. S. d. § 2 GewStG is the company, the managing director's salary of the GmbH managing director is not subject to trade tax . Likewise, the salary of a managing director of a partnership is not subject to trade tax who is not involved in the company. If the managing director of a partnership has a stake in the company, his managing director's salary is part of the profit and may therefore not reduce the tax base of trade tax.


In terms of banking supervisory law , the manager is spoken of when it comes to suitability for managing credit institutions . Only in the case of credit institutions does a manager have to prove special qualifications in accordance with Section 33 of the German Banking Act (KWG) (and the interpretations issued on this) in order to be allowed to exercise the function as a board member or managing director. In addition to the reliability ( certificate of authority , extract from the central trade register ), the BAFin must also prove professional suitability by means of suitable documents. Managers cannot be appointed autonomously by the responsible bodies of a credit institute (supervisory board, general meeting), but require the permission of BAFin. Use is made here of what is known as intervention supervision .

Uniform management

The term “uniform management” is often used in company law, but it is not defined. For the consolidation of several legally independent companies under "uniform management", two presumption rules are set out in Section 18 (1) AktG :

  • If there is a dependency in accordance with Section 17 (1) AktG, it is (refutable) presumed that there is uniform management.
  • In accordance with Section 18 (1) sentence 2 of the AktG, uniform management is irrefutably presumed,
    • if the dependent company has signed a domination agreement in favor of the controlling company or
    • there is an integration, according to which a stock corporation is incorporated into another which holds at least 95% of the capital of the incorporated company.

Notes on how the legislature wants the term "uniform management" to be understood can be found in the reasons given in the government draft of the AktG 1965:

“As a summary under uniform management, it must already be seen when the group management coordinates the business policy of the group companies and other fundamental issues of their management. This vote does not require the right to issue instructions. Rather, it can also take place in the loose form of joint consultations or result from a personal integration of the administrations. A legal stipulation of the requirements to be placed on the uniform management does not appear possible in view of the diverse forms that the economy has developed for the corporate management. "

In this sense, there is “uniform management” if top management tasks (at least one in the area of ​​the operational functions of procurement , production , financing , sales , organization or personnel ) are performed by the same group of people in several companies. Uniform management is then a constituent feature of a group according to Section 18 AktG .

Proper management

In the AktG and GmbHG, the legal figure of "proper business management" is used. In the case of corporations, it was of particular concern to the legislature to specify the duties of the executive bodies in more detail. The duties of proper business management ( Section 43 (1) GmbHG, Section 93 (1) sentence 1 AktG), which are incumbent on the managing director of a GmbH or the members of the management board of an AG due to their position as a body, also include the obligation to ensure that society behaves lawfully and meets its legal obligations. The aforementioned provisions regulate solely the duties of the managing director or member of the board of directors from his legal relationship with the company established by his appointment. However, they do not serve the purpose of protecting corporate creditors from the indirect consequences of negligent management. A breach of the duties of proper business management only leads to claims for damages by the company, not the creditors. The position as managing director of a GmbH or a member of the board of directors of an AG does not result in a guarantee obligation towards outside third parties to prevent damage to their assets. External liability on the part of the managing director or member of the board of directors is only possible to a limited extent due to particular claims . Managing directors or board members are personally liable if they caused the damage themselves through an unlawful act . Proper business management includes when the managing director establishes liabilities "for which the business assets can pay." A direct claim against the managing director by creditors of the company occurs in the event of a breach of the obligation to submit an application for insolvency immediately in accordance with Section 15a InsO , because this provision is a protection law within the meaning of Section 823 (2) BGB.


Web links

Individual evidence

  1. Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, introduction before Section 677, Rn. 1
  2. Working group Dr. Krähe der Schmalenbach-Gesellschaft, The Organization of the Management: Management Organization , 1971, p. 12
  3. Working group Dr. Krähe der Schmalenbach-Gesellschaft, The Organization of the Management: Management Organization , 1971, p. 13
  4. Erich Gutenberg, Corporate Management: Organization and Decisions , 1962, p. 73
  5. Markus Ebert: Duties and liability risks of the managing director in the crisis of the GmbH . 2008, p. 6 ( limited preview in Google Book search).
  6. BGH NJW 1997, 66 f.
  7. ^ BGH, judgment of July 11, 2005, Az .: II ZR 235/03
  8. ^ Barbara Grunewald: Corporate Law . 2008, p. 25 ( limited preview in Google Book search).
  9. Klaus J. Hopt / Herbert Wiedemann, Aktiengesetz: Großkommentar , §§ 76-94, 2004, p. 79
  10. Hagen Prühs, GmbH managing director: rights and obligations , 2004, p. 47
  11. ^ Bernhard Riemer, Daniela Huemer: Corporate Law . 2009, p. 101 ( limited preview in Google Book search).
  12. Rocco Jula, The GmbH Managing Director in Labor and Social Insurance Law , 2003, p. 28
  13. Rocco Jula, The GmbH managing director in labor and social security law , 2003, p. 34
  14. ^ BGH, judgment of July 14, 1980, Az .: II ZR 161/79
  15. Thomas F. Jehle / Csaba Láng / Wolfgang Meier-Rudolph, Check Book for GmbH managing directors , 2009, p. 36
  16. BAG, decision of October 22, 2014, Az .: 10 AZB 46/14
  17. BGHZ 79, 291 , 292
  18. ECJ, judgment of November 11, 2010, Az .: C-232/09, Dita Danosa
  19. ECJ, judgment of 9 July 2015, Az .: C-229/14, Ender Balkaya
  20. ^ AG Verden, order for reference dated May 6, 2014, Az .: 1 Ca 35/13
  21. Thomas F. Jehle / Csaba Láng / Wolfgang Meier-Rudolph, Check Book for GmbH managing directors , 2009, p. 37
  22. BSGE 66, 168 = BSG, judgment of January 30, 1990, Az .: 11 RAr 47/88
  23. BSG, judgment of December 18, 2001, Az .: B 12 KR 10/01 R
  24. Jens Heyll, The Application of Labor Law to Board Members, 1994, p. 191 f.
  25. ^ BFH, judgment of March 10, 2005, Az .: VR 29/03
  26. BAFin, interpretation decision of November 1, 2006, qualification as manager of a credit institution ( Memento of April 23, 2013 in the Internet Archive )
  27. BAFin, information sheet for checking the professional suitability and reliability of managers according to VAG, KWG, ZAG and InvG of February 20, 2013 ( Memento of the original of March 22, 2013 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot /
  28. quoted from Bruno Kropff: Aktiengesetz (texts and materials) . 1965, p. 33 .
  29. BGH, judgment of July 10, 2012, Az .: VI ZR 341/10 = BGHZ 194, 26
  30. BGHZ 86, 122
  31. ^ Higher Regional Court Brandenburg , judgment of January 11, 2017, Az .: 7 U 87/14; with reference to BGH, judgment of June 6, 1994, Az .: II ZR 292/91