Corporate liability

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The term group liability describes the internal and external liability of legally independent companies , which are united in an economic unit under a uniform management, towards disadvantaged creditors or minority shareholders.

General

In principle, the existence of a group does not change the principle of the own and exclusive liability of an affiliated company for the obligations entered into by it. However, the enormous economic interdependence of the companies is important here. In Germany alone, 40 to 50% of all GmbHs and even 75% of all AGs are group-affiliated. This relatively high degree of interdependence increases the likelihood that a creditor will have a claim against a group-dependent company. Then the question for the creditor could arise whether not only the group-dependent company itself, but rather the group or its parent company is also liable for his claim.

In order to make a group company liable for the liabilities entered into for another controlled group company, a legal agreement in the form of an assumption of debt , an assumption of guarantee , a surety or a letter of comfort is required . However, there are exceptions to this in the area of product and environmental liability . In addition to these voluntary forms of liability based on a contractual basis, there are also statutory forms of liability at company law level resulting from the highest court rulings of the BGH. The central term for such liability issues of affiliated companies is not majority ownership, but the fact of a dependency relationship. This is followed by law outside the contract group

Group liability in the equal order group and subordinate group

The AktG, which only applies to stock corporations and limited partnerships on shares, provides for some forms of liability that apply as soon as the requirements under stock corporation law are met. For this purpose, a distinction must first be made between the subordinate group and the group of equal order; this can be found in section 18 of the AktG , which separates the subordinate group ( section 18 (1) of the AktG) from the group of equal order ( section 18 (2) of the AktG). In both cases, the companies have a uniform management, but in the case of an equal order group, in contrast to the subordinate group, the companies combined under a uniform management are not dependent on each other, but are usually interlinked in terms of capital.

Group liability in corporations with equal order

In the case of equal order groups, the uniform management is mostly based on a contract that was concluded between the parties involved. However, these are not corporate contracts within the meaning of the AktG. In most cases, however, the uniform management is also combined in a joint venture z. B. Joint ventures with management body duties, holdings or other central companies. However, the interlinking of personnel and / or the creation of joint bodies (joint advisory boards , supervisory boards ) can be seen as evidence of uniform management.

A central question with the equal order group in the sense of liability law is that of loss compensation . Assume a company is divided into two GmbH & Co. KGs , with the GmbH being the general partner of both limited partnerships . The Federal Labor Court (BAG) has accepted a direct liability for the liability of debts of the limited partnerships due to a business split. A business split presupposes that a company is split up into a holding company and an operating company, or a typical parent company - subsidiary relationship exists. According to the judgment of the BAG, the uniform management is sufficient to assume a horizontal loss compensation obligation between affiliates in the group. However, this is rejected in various legal publications. There is no decision by the Federal Court of Justice on this.

Group liability in the case of subordinate groups

A contract group (so-called qualified group) is defined by a domination agreement i. S. d. § 291 AktG justified. A domination agreement entitles the controlling company to issue instructions to the management board of the dependent company with regard to the management of the company. This right to issue instructions is comprehensive and therefore also applies to disadvantageous instructions, unless they contradict the interests of the group or represent a threat to the existence of the dependent company. The comprehensive right to issue instructions gives the ruling company legal full management of the dependent company ( Section 308 AktG ). With the conclusion of such a contract, a profit transfer agreement is often concluded for tax reasons . In accordance with Section 277, Paragraph 3, Clause 2 of the German Commercial Code ( HGB) , if the above contracts exist, no net loss for the year can arise on the balance sheet date , since the loss absorption is included in the profit and loss account of the controlling company. The assumption of loss compensation in the contract group is therefore only imputed and, in accordance with Section 275 (2) No. 20 and No. 19 of the German Commercial Code, is the negative balance that would have to be shown without the obligation to assume the loss. With the loss assumption obligation of the controlling company, the controlling company is also liable with regard to claims for damages by the controlled company if the controlling company has exceeded or abused its contractual and / or statutory rights of instruction or has failed to observe the appropriate care of a prudent and conscientious manager.

Without a domination agreement or integration agreement , one speaks of a de facto group. There is a dependent relationship within the meaning of Section 17 AktG, the dependent company is an AG or KGaA (the overwhelming opinion is that an analogous application to the GmbH is rejected) and the controlling company has the opportunity to exert influence on the dependent company. The basis for the influence of the dominant company is basically a majority stake, which means the capital and / or majority of votes. If this factual group influence is used to induce the subsidiary to enter into disadvantageous (i.e. loss-making) legal transactions by its parent company, the parent company must compensate for this damage in the same financial year ( Section 317 AktG).

Inclusion

If a company is incorporated into a group, the controlling company must provide the creditors of the integrated company with security for their claims justified prior to the integration if the creditors can no longer obtain satisfaction from the integrated company ( Section 321 AktG). In addition, the controlling company is liable for all other liabilities of the integrated company to its creditors as joint and several debtors ( Section 322 (1) AktG).

Liability in the GmbH group

The Companies Act - in contrast to the above described AktG - no specific group liability rules before. The increased founding of pure GmbH groups from the 1970s and subsequent GmbH bankruptcies have led to a case law of the Federal Court of Justice (BGH), which has gradually closed the legal loopholes. The consequences of liability in the GmbH group are derived from the provisions of the BGH case law. The group liability in the GmbH group was developed primarily to protect the creditors and minority shareholders of the controlled GmbH. Since 1985 some sensational judgments by the BGH have partially eliminated the existing legal uncertainty. Beginning with the "truck crane" decision, the BGH granted the creditors of a GmbH a claim for damages under stock corporation law based on § 302 , § 322 Paragraph 1 and Paragraph 3 AktG. The BGH maintained and developed this permanent case law up to the "Bremer-Vulkan" ruling.

In 2007, the BGH changed its case law on the liability of a GmbH partner due to an interference that destroyed the existence of the company. The supreme court has given up its previous concept of an independent liability figure of the partner's "penetration (external) liability". From now on it will be replaced by the "Existential Destruction Liability" of the GmbH shareholder, which represents an improper damage to the company assets - earmarked in the creditor's interest - and is classified as a sub-case of immoral intentional damage ( § 826 BGB ). If this proof is not successful, a judicial review of forbidden payments within the meaning of § 30 , § 31 GmbHG is still possible.

Group liability of natural persons

According to the established case law of the BGH, the legal form does not play a role in the application of corporate liability rules if a legal person or a natural person either runs another company himself in addition to their dominant position or has a significant share in it. Under this condition, a natural person is also liable for the liabilities of their dependent companies within the framework of the "existence destruction liability" described above, because they meet the corporate definition of a company .

literature

  • Christian Caracas: Responsibility in international corporate structures according to Section 130 OWiG - Using the example of bribery in business dealings abroad, which is punishable abroad. Nomos Verlag, Baden-Baden 2014, ISBN 978-3-8487-0992-2 ; ders. Corporate Compliance Journal. 2015, p. 167 ff. And 2016, p. 44 ff.

Individual evidence

  1. ^ Alfons Kraft, Peter Kreuz: Corporate Law. 1990, p. 57.
  2. ^ A b c S. Wimmer-Leonhardt: corporate liability law. Mohr Siebeck, 2004, ISBN 3-16-148238-7 .
  3. ^ W. Oehler In: Journal for Business Law . (ZIP) 1990, pp. 1445, 1450ff.
  4. ^ I. Ossenbühl: Environmental risk liability in the group. Verlag Duncker & Humblot, 1999, p. 31ff.
  5. ^ K. Schmidt: Environmental protection in the company, environmental and technical law. Volume 26, 1994, p. 69, p. 80ff.
  6. ↑ Christian Cornett: Faithful binding against the self-interest of dependent companies. 2003, ISBN 3-86504-011-X , p. 226.
  7. ^ HG Gromann: The equal order groups in group and competition law. Cologne 1979, ISBN 3-452-18636-9 .
  8. ↑ so z. B. in the merger of Koninklijke Nederlandse Hoogovens en Staalfabrieken NV in 1972 with Hoesch AG in Dortmund to form the Estel Group. Cf. MW Kübler: The uniform management of equal merger-like corporate relationships ("dual headed structures") - with special consideration of the effects of a comprehensive group integration in the course of the coordinative quasi-merger under German stock corporation law. Constance 2005.
  9. ↑ K. Eschenbruch: Group liability. Liability of companies and managers. Werner, Neuwied 1996, ISBN 3-8041-1438-5 .
  10. ↑ H. Altmeppen, S. Brandes, M. Fischer, M. Habersack, U. Hüffer, M. Jacobs, S. Kalss, B. Kropff, D. Kubis, F. Kübler, J. Oechsler, J. Reichert, HJ Schaal, C. Schäfer: Munich Commentary on the Stock Corporation Act. Volume 9/2, CH Beck, 2006, ISBN 3-406-51588-6 .
  11. ↑ BGH NJW 1998, 968
  12. ^ BGH WM 1985, 1263
  13. ↑ BGH NJW 2001, 3622
  14. ↑ BGH DB 2007, 1802.
  15. ↑ BGH, judgment of October 13, 1977, BGHZ 69, 334 (337) “VEBA”;
  16. ^ BGH, judgment of March 29, 1993, BGHZ 122, 123 (127)