When asserting competition law infringements and other property right infringements, under certain conditions not only the company itself can be held liable, but also the organs of the company (e.g. managing directors and board members). In this case, the organs of a company are liable with their entire private assets. In the case of personal liability of the corporate body, a claimant can therefore assert his claims against two debtors.
In principle, three different cases must be distinguished.
1. corporate body has committed the infringement itself
If the corporate body, e.g. the managing director of a limited liability company, has itself committed the infringement, there is no problem with the personal liability of the corporate body (own perpetrator liability). In this case, the corporate body can be sued for injunctive relief and, in case of fault, also personally for damages.
2. corporate body had knowledge of the infringing act
If the corporate body had knowledge of the infringement and could have avoided the infringement, the Federal Supreme Court (BGH) is of the opinion that the corporate body is also personally liable. In this case, too, the corporate body can thus be held liable for injunctive relief and, in the case of fault, also personally for damages.
3. corporate body had no knowledge of the infringing act
If the corporate body was not aware of the infringement, the corporate body is only personally liable for the infringement if it has contributed to the infringement in an adequately causal manner. This is the case if the organ failed to take reasonable measures to prevent infringements. In this case, the corporate body is liable as a so-called "Stoerer" (interferer). Which measures a corporate body must take to prevent an infringement is a question of the individual case and must therefore be examined separately in each case.
4. conclusion
Claimants should always assert their claims against a company's governing body in the event of an assumed personal liability. This gives the claimants another debtor and, in the case of personal liability, a corporate body will have a considerable interest of its own in ensuring that similar legal violations do not occur in the future.
However, a claimant must always prove whether and how an organ of a company acted in connection with the alleged infringement. This circumstance often poses a problem, as a claimant often cannot establish whether an organ of a company acted itself, whether it had knowledge of the infringement or whether it reproachably failed to prevent the infringement.
In order to prevent personal claims, corporate bodies should therefore structure their companies in such a way that, as a matter of principle, no personal liability of the corporate body can arise.
Please do not hesitate to contact us if you have any questions on this topic.
Goldberg Attorneys at Law 2013 (as of November 2013)
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
