In its ruling of July 27, 2023 (VI-6 U 1/22), the 6th Cartel Senate of the Düsseldorf Higher Regional Court (OLG) confirmed that neither the board of directors of a company nor the management must assume personal liability for antitrust fines.
According to antitrust regulations, different fine standards are provided for acting persons and the involved company, including the amount of the fine. However, concerns have been raised that companies are evading their antitrust responsibility for fines by referring to managing directors and board members. This is particularly present when a so-called “D&O insurance” (also called manager liability insurance) is in place. This provides liability protection for the company’s boards and managers, but not for the company itself. By relying on the managing director or the board of directors of a company, there is also a risk that the sanctioning purpose of a corporate fine is jeopardized, as the amount of coverage is significantly higher than the fine imposed on the company.
The ruling is not yet final. In addition, the OLG has allowed an appeal to the Federal Court of Justice (BGH), but a decision by the highest court on the highly controversial issue of the personal liability of executive board members and managing directors for corporate fines has not yet been issued.
If you are facing claims based on alleged personal liability of board members and managing directors, we will be pleased to help you. MSP has an outstanding reputation and excellent expertise in this area.