I. Introduction and background

Pursuant to § 43 para. 2 Act on Limited Liability Companies (Gesetz betreffend die Gesellschaften mit beschränkter Haftung – GmbHG), the managing director of a limited liability company (Gesellschaft mit beschränkter Haftung – GmbH) is liable for damages incurred by the company as a result of a breach of his or her duties.
Such a claim for damages is excluded if the shareholders’ meeting discharges the managing director pursuant to § 46 no. 5 GmbHG. The discharge represents a past-related approval of the management. In addition, it has a preclusive effect such that the company is precluded from asserting claims against its managing director to the extent of the discharge. For the discharge to be effective, the declaring shareholders must have been aware of what they were discharging the managing director for. Consequently, all circumstances from which a possible claim for damages could result must have been recognizable from the reporting of the managing director. The decisive factor for effectiveness is that it was possible for all shareholders to clarify the circumstances from which the claim under § 43 para. 2 GmbHG arises by recalculating, inquiring or exercising their right for information. In this context, the discharge is generally at the discretion of the shareholders in accordance with their duties. In exceptional cases, the discharge resolution may be contested on the grounds of a breach of the duty of loyalty to the company if the managing director to be discharged has clearly committed a serious breach of the law or the articles of association.
Like the discharge, the annual financial statements adopted by the shareholders are binding with regard to the relationship between the company and its shareholders, and therefore have a binding effect in the internal relationship. In the external relationship, i.e. with regard to legal transactions which do not result from the relationship between the company and its shareholders (so-called third party transactions), the annual financial statements, on the other hand, fundamentally lack a discharge effect for the managing director (Federal Court of Justice (BGH), judgment dated 22 March 2009 – II ZR 264/07).

II. Current case

A case recently decided by the Brandenburg Higher Regional Court (ruling dated 29 June 2022 – 7 U 133/21) deals with the scope of the resolution on the annual financial statements and the discharge of a GmbH. Since 2015, the former managing director of a GmbH has been paying himself a monthly salary that is more than twice as high as stipulated in his employment contract. Until the shareholders became aware of this circumstance in January 2020, the resulting total loss to the company amounted to EUR 142,177.00. The company then unsuccessfully demanded repayment of the overpaid amounts from the managing director. The shareholders’ meeting had discharged the managing director for the years 2016 and 2017 and adopted the annual financial statements for all fiscal years since 2015. The Potsdam Regional Court ordered the managing director to make full repayment, whereupon the managing director appealed.

III. Discharge Effect of the Approval of the Annual Financial Statements

The competent Brandenburg Higher Regional Court ruled in favor of the managing director in part. The Higher Regional Court found that for the years 2016 and 2017, for which a resolution had been passed to approve the actions of the managing director in addition to the annual financial statements, the amount of the managing director’s salary paid was deemed appropriate, as the approval of the actions excluded all claims for damages that were apparent to the shareholders. Since the balance sheets were available to the shareholders, it would have been apparent to them in the course of a thorough examination that the managing director was paying himself a significantly higher salary. According to the Higher Regional Court, this breach of contract or law alone does not lead to the invalidity of the discharge resolution.
In addition, i.e. with regard to the financial years in which only the annual financial statements had been adopted, but not the discharge resolution, the Higher Regional Court affirmed an obligation on the part of the managing director to repay the overpaid managing director’s salary. The former managing director had argued that the resolution on the approval of the annual financial statements also had a discharging effect, so that a claim for repayment was also excluded for the years 2015 and 2018 to 2020. According to the Higher Regional Court, the adoption of the annual financial statements constitutes a constitutive act of approval in the internal relationship between the company and its shareholders. However, this does not include any legal relationships of a shareholder with the company that do not result solely from his shareholder position. As a third-party transaction, the employment contract of the managing director is therefore not affected by the binding effect of the annual financial statements. Therefore, the annual financial statements alone do not imply approval of the amount of the managing director’s salary. Since the parties did not reach any agreement regarding the exoneration effect, there was no exclusion of liability on the part of the former managing director. As a result, the company was therefore able to assert a claim for damages for the years 2015 and 2018 to 2020.

IV. Outlook and consequences for the practice

The ruling of the Brandenburg Higher Regional Court distinguishes the discharge from the adoption of the annual financial statements with regard to its significance for the managing director and his liability to the company. Without additional agreements, it cannot be assumed that the adoption of the annual financial statements automatically results in a waiver by the company of claims against the managing director that are not recognizable. The managing director of a GmbH can therefore not rely solely on the adoption of a balance sheet item to exclude all claims for damages by the company. For this purpose, an agreement is required stating that the approval represents in particular an acknowledgement of the appropriateness of this balance sheet item, i.e. a discharge resolution.
At first glance, it may seem contradictory to deny the approval of the annual financial statements their legitimizing effect of discharging the company from liability, since all balance sheets are also regularly available (just as in the case of discharge) and the shareholders therefore had the opportunity to take note, for example, of an overpaid salary. The decision of the Higher Regional Court is nevertheless plausible: The adoption of the annual financial statements is an internal corporate act which, unlike the discharge, does not intend to have any legal effect on the company vis-à-vis its managing director. For this purpose, the discharge is the more specific legal institution explicitly provided for in the law, which is why an appeal by the managing director to the annual financial statements is not convincing.
The case decided underscores the tendency in case law to take greater account of the shareholders’ opportunities for control when interpreting discharge resolutions. It is therefore increasingly important which circumstances formed the basis of the decision or could have been taken into account by the shareholders due to their recognizability. From the point of view of managing directors, the decision once again underlines the importance of the discharge for their liability towards the company.