I. The Role of the Supervisory Board in a Stock Corporation

The Supervisory Board (Aufsichtsrat) is – alongside the General Meeting (Hauptversammlung) and the Management Board (Vorstand) – one of the three governing bodies of a stock corporation (Aktiengesellschaft). While the Management Board manages the company and conducts its business, the Supervisory Board serves as the control and oversight body. This legally mandated role encompasses both ex post (repressive) and ex ante (preventive) oversight of the Management Board.
Repressive control is aimed at reviewing actions already taken by the Management Board. It may result, for example, in findings, objections, or – where appropriate – in the examination and enforcement of claims for damages against members of the Management Board (see Section 93 of the German Stock Corporation Act (AktG)). Preventive oversight, on the other hand, aims – to the extent necessary and appropriate – to enable the Supervisory Board to influence future decisions and actions of the Management Board. Within the framework of preventive oversight, the legislature thus also assigns to the Supervisory Board the function of advising the Management Board on decisions regarding future corporate policy.

II. The Supervisory Board’s Duty to Obtain Information

To enable the Supervisory Board to effectively fulfil the aforementioned review and advisory duties, the Management Board is obligated to provide the Supervisory Board with comprehensive and regular information on the basis of which the Supervisory Board can exercise repressive and preventive control.
Thus, Section 90 para. 1 of the German Stock Corporation Act (AktG) requires the Management Board to report to the Supervisory Board, among other aspects, on the intended business policy, other fundamental issues of corporate planning, the course of business, and the company’s financial position. Section 90 para. 2 of the German Stock Corporation Act (AktG) specifies the minimum frequency with which the Management Board must submit these reports. For example, the Management Board must report to the Supervisory Board at least quarterly on the course of business, in particular revenue, and the company’s financial position (see Section 90 para. 2 no. 3, para. 1 sent. 1 no. 3 of the German Stock Corporation Act (AktG)).
It is undisputed that these reporting and information obligations constitute “obligations to provide” on the part of the Management Board. However, it is also generally recognized that if the Management Board fails to fulfil its obligation to provide information at all or at least not to a sufficient extent, the Supervisory Board must independently obtain the information necessary for its oversight. The duty to urge the Management Board to report applies not only to the Supervisory Board as a whole, but to each individual member of the Supervisory Board. Even if the Management Board does submit a report, but it appears unclear or incomplete, the Supervisory Board must ask follow-up questions and, if necessary, conduct its own investigations.
If a member of the Supervisory Board culpably breaches their duties, they are generally liable to the stock corporation for damages (see Sections 116 and 93 para. 2 of the German Stock Corporation Act (AktG)). In this context, the burden of proof is reversed, such that both the existence of a breach of duty and the fault of the respective Supervisory Board member are presumed.
The Supervisory Board member in question must therefore exonerate themselves in order to avoid liability. If a liability claim by the company against a Supervisory Board member is under consideration, that Supervisory Board member must present specific facts and, in the event of a dispute, prove them, which exclude the existence of a breach of duty or their fault. If the Supervisory Board member is accused of breaching their duty of supervision based on a failure to fulfil their duty to obtain information, they should, in particular, be able to demonstrate the existence of an appropriate information and reporting system, as well as its proper design and implementation.

III. Facts

In the decision under discussion dated October 14, 2025 (Case No.: II ZR 78/24), the Federal Court of Justice clarifies the requirements regarding the Supervisory Board’s duty to obtain information.
The case originated from a lawsuit filed by a creditor of a stock corporation (AG) against a member of its Supervisory Board. The creditor had obtained an enforcement order against the AG and subsequently attached a claim for damages that the AG allegedly had against the Supervisory Board member.
To substantiate the AG’s claim for damages against the defendant Supervisory Board member, the plaintiff argued that the Supervisory Board member had not sufficiently fulfilled his duty to supervise the executive board (see Section 90 of the German Stock Corporation Act (AktG)). After the company had temporarily ceased business operations, it had begun engaging in real estate transactions that were undisputedly not covered by the company’s statutory purpose. Nevertheless, the defendant member of the Supervisory Board limited his efforts to gather information about the Management Board’s actions and the company’s situation to occasional verbal inquiries to the Management Board, which took place only during chance personal encounters. The reporting by the Management Board required by law pursuant to Section 90 para. 1 sent. 1 no. 3 of the German Stock Corporation Act (AktG) ceased upon the suspension of the AG’s business operations and thus also did not occur during the period in which the AG engaged in real estate transactions.

IV. Decision of the Federal Court of Justice

In its decision, the Federal Court of Justice specifies the requirements for the collection of information and the related supervision of the Management Board by the Supervisory Board.
In the court’s view, the defendant Supervisory Board member failed to sufficiently demonstrate and prove that an information system existed within the AG and was properly structured. A breach of duty must therefore be assumed: The Supervisory Board member had not taken sufficient care to ensure that the Management Board fulfilled its statutory reporting obligation under Section 90 para. 1 sent. 1 no. 3 of the German Stock Corporation Act (AktG) (report on the company’s situation and the course of business).
The Federal Court of Justice clarifies that this reporting obligation – and thus also the Supervisory Board’s duty to ensure compliance with it – does not lapse merely because the company is temporarily not conducting business. A modification or reduction of the Supervisory Board’s supervisory duties solely due to a suspension of business operations is generally out of the question. The Supervisory Board member should therefore have ensured at least quarterly reporting even during this phase.
Admittedly, the scope of the quarterly reports may be more limited depending on the circumstances of the individual case – for example, in the event of restricted or suspended business operations. However, in terms of content, the “course of business” and the “situation of the company” within the meaning of Section 90 para. 1 sent. 1 no. 3 of the German Stock Corporation Act (AktG) specifically include the question of whether the company has suspended its operations, whether and when it will resume them, and whether it is expanding its activities into other business areas. The Supervisory Board may therefore not, in the absence of reporting, rely on the Management Board to provide information “when the opportunity arises” should business operations resume. Rather, it should have obtained reports at least quarterly as to whether operations remain suspended or whether a resumption has taken place or is being specifically considered.
Occasional verbal inquiries during chance encounters do not satisfy these requirements. They do not constitute a consistent demand for the reports required by law; furthermore, under the given circumstances, it did not have to be sufficiently clear to the Management Board member that such an informal “report” did not meet the legal requirements, which the Supervisory Board member, in turn, should have recognized.
Finally, the Federal Court of Justice emphasizes that the monitoring duty of the individual Supervisory Board member does not lapse even if the Supervisory Board is unable to pass resolutions due to an incomplete quorum. Rather, the remaining members are subject to an increased duty of care, and the enforcement of reporting obligations must be ensured by each individual Supervisory Board member.

V. Implications for Practice

The Federal Court of Justice’s decision once again brings the Supervisory Board’s central monitoring duty into focus and underscores the importance of active, structured information gathering.
Particularly in light of the burden of proof resting on the Supervisory Board member, the Supervisory Board – and thus each of its individual members – should ensure at all times that a functioning reporting system that complies with legal requirements is established within the company and is actually implemented. In practice, it is advisable for each Supervisory Board member to make a binding note of the statutory deadlines for quarterly reports and to monitor compliance with them. If the Management Board fails to fulfil its quarterly reporting obligation within one month of the end of the quarter, the regular reports must be requested immediately. If the Supervisory Board as a whole remains inactive, each individual Supervisory Board member is obligated to independently and without delay remind the Management Board of the reports and obtain them.