{"id":3480,"date":"2025-10-29T10:28:00","date_gmt":"2025-10-29T09:28:00","guid":{"rendered":"https:\/\/www.ra-moellenhoff.de\/?p=3480"},"modified":"2026-08-31T10:51:27","modified_gmt":"2026-08-31T09:51:27","slug":"compliance-as-a-mandatory-programme-cologne-higher-regional-court-clarifies-the-requirements-for-managing-directors-liability-for-damages-towards-the-company-also-putting-export-complianc","status":"publish","type":"post","link":"https:\/\/www.ra-moellenhoff.de\/en\/foreign-trade\/compliance-as-a-mandatory-programme-cologne-higher-regional-court-clarifies-the-requirements-for-managing-directors-liability-for-damages-towards-the-company-also-putting-export-complianc","title":{"rendered":"Compliance as a Mandatory Programme: Cologne Higher Regional Court Clarifies the Requirements for Managing Directors’ Liability for Damages towards the Company \u2013 Also Putting Export Compliance Officers in Focus"},"content":{"rendered":"\n

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By judgment of 2 May 2024 (case no. 18 U 190\/22)<\/a><\/strong>, the Cologne Higher Regional Court (OLG K\u00f6ln) clarified the evidentiary requirements applicable to managing directors’ liability under Section 43(2) of the Act on Limited Liability Companies (GmbHG), thereby sending a clear warning signal to those responsible for exports in the field of export control. Although the case concerned shortfalls in ammunition stock at a shooting range, the legal principles discussed are directly transferable to export control.<\/p>\n\n\n\n

Key findings of the judgment<\/strong>
The OLG K\u00f6ln made clear that a managing director cannot rely on lack of knowledge or a blanket denial. Rather, they must demonstrate, by means of a functioning and documented compliance and control system, that they have fulfilled their organisational and supervisory duties. Where a robust Compliance Management System is lacking, or internal controls are deficient, the managing director bears the risk: an organisational failure results directly in personal liability.<\/strong><\/p>\n\n\n\n

In the case decided, no specific negligent act relating to the stock shortfalls could be proven <\/strong>against the managing director. Nevertheless, he was held liable because, in the absence of adequate compliance measures, he could not exculpate himself.<\/strong> Applying the principles of settled case law of the highest courts, the court stated, in essence:<\/p>\n\n\n\n

“The managing director of a GmbH is not only obliged to supervise, or have supervised, the ordinary course of business in such a way that, under normal circumstances, they can expect business to be conducted properly. Rather, they must, beyond this, intervene immediately where indications of misconduct emerge (Federal Court of Justice, judgment of 8 October 1984, case no. II ZR 175\/83). There is, admittedly, the possibility of delegating corporate tasks to employees of the company and to third parties. In such a case, however, the managing director is obliged to exercise care in selecting, instructing, and supervising the employees and third parties concerned, and must establish an organisational structure that prevents breaches of duty by the persons to whom tasks are delegated (see Frankfurt am Main Higher Regional Court, judgment of 23 May 2019, case no. 5 U 21\/18, with further references).<\/em>“<\/p>\n\n\n\n

Transferability to export control<\/strong>
For those responsible for exports, this case law carries considerable risks. As members of the management board or executive management, they bear personal liability for violations of foreign trade law arising from organisational shortcomings. Under the Federal Government’s reliability principles, the position of export compliance officer cannot be delegated: export control is a matter for top management.<\/p>\n\n\n\n

The standards clarified by the OLG K\u00f6ln apply directly here.<\/p>\n\n\n\n

Specific obligations and liability risks<\/strong>
The managing director thus bears the burden of pleading and proof to show that they have complied with their duty of care, or that no fault attaches to them. For those responsible for exports, this specifically means: anyone acting as export compliance officer who has not implemented a suitable, risk-appropriate, documented Internal Compliance Programme (ICP) bears the full personal liability risk, regardless of whether a specific individual breach of duty can be proven against them.<\/strong><\/p>\n\n\n\n