Former managing directors are obliged to provide infor-mation to the company even after their departure. The obligation will exist even if the information reveals mis-conduct on the part of the managing director.
Managing directors of a limited liability company (German GmbH) are subject to various obligations during their management activities. Among other things, the company is entitled to comprehensive claims for information against the managing director by law (thus, even without explicit contractual agreement). No particular interest in information, specific reason or suspicion of a breach of duty is required for such a request for information of the company. Sufficient for this is the general and unfounded interest to control the activities of the management.
This obligation to provide information continues to apply to the managing director even after his recall and even after termination of his managing director service agreement to a certain extent. Scope and content of this post-contractual obligation to provide information are determined by the need for information of the company and by the scope and content of the managing director activities at that time. What information a former managing director must provide depends on what can be demanded in good faith in view of his previous tasks, the customs in business transactions and the purpose pursued by the company with the request for information.
If the company needs information of the former managing director to initiate liability proceedings against him, a need for clarification and information of the company already results from the justified suspicion of a breach of duty and the probability of resulting damage. The obligation to provide information of the managing director is also not restricted by the fact that the managing director would reveal his own breach of duty with the requested information.
The Brandenburg Higher Regional Court has recently addressed this issue.
In the proceedings decided by the Brandenburg Higher Regional Court, the plaintiff limited liability company (German GmbH) asserted comprehensive claims for information against its former managing director on the grounds of violations of the non-competition clause incumbent upon him and further breaches of duty. The information served to enforce claims for damages and liability of the company against the former managing director.
The Brandenburg Higher Regional Court ruled that the former managing director remains under a comprehensive obligation to provide information even after his recall and termination of the managing director service agreement. According to the decision of the Brandenburg Higher Regional Court, however, the obligation to provide information is not unlimited, but essentially depends on the need for information of the company. If the information is requested - as in the present case - to assert any main claims (here: claims for damages against the former managing director), the claim for information is determined by the need for clarification of the company. A need for clarification of the company can already be assumed if the justified suspicion of a breach of duty by the managing director exists and it is probable that the company is therefore entitled to claims. In the present case, there were sufficient grounds to suspect that the former managing director had breached his duties in several respects: in addition to breaches of the contractual and statutory non-competition obligation, the former managing director had also demonstrably withdrawn business opportunities from the company on several occasions and had used them for himself personally. It was also sufficiently probable that the company incurred damages to be compensated by the former managing director due to the aforementioned breaches of duty.
The obligation to provide information was also not restricted by the fact that the managing director would reveal his own breach of duty with the requested information. The unlimited obligation to provide information does not infringe the fundamental rights of the former managing director at least if a self-incrimination enforced outside the criminal proceedings is accompanied by a prohibition of exploitation under criminal law. This was true for the present case. For the same reasons, the constitutional principle of freedom from self-incrimination did not preclude the claim for information.
In contrast, the former managing director was not obliged to provide information, insofar as the company was not dependent on the requested information, as the company itself possessed the information.
If a managing director behaves unlawfully towards the company, the company may enforce comprehensive claims for information - by compulsory measures if necessary - against the former managing director even after termination of the status as executive body and the managing director service agreement. The claim for information also includes the obligation of the former managing director to submit documents and records relating to the obligation to provide information. On this basis, the company is then in a position to claim damages from the former managing director. In terms of process tactics, it is recommended to assert claims for information and damages together in an action by stages (Stufenklage) against the former managing director.
Gerhard Manz
Lisa Werle
This post also appears in the Haufe Wirtschaftsrechtsnewsletter.
