Federal Court of Justice emphasizes supervisory board's duty to actively gather information
Update Compliance 1/2026
On October 14, 2025 (II ZR 78/24), the Federal Court of Justice clarified that supervisory boards only fulfill their monitoring duties if they actively gather information and do not accept inadequate reporting by the management board. If they fail to do so, they may be liable under Section 116 AktG in conjunction with Section 93 AktG.
Supervisory board office – not a passive supporting role
Many supervisory board members still see their position as a "well-paid leisure activity." However, this understanding of their role contradicts the legal obligations under Section 111 AktG. The supervisory board must inform itself about its control tasks and may not limit itself to passive acknowledgment. It must ask questions, request reports, and critically examine the information provided by the management board. This applies in particular to the area of compliance, where omissions can quickly lead to corporate liability.
Scope of the monitoring obligation
The supervisory board monitors the management (Section 111 (1) AktG). The limitation to a maximum of ten mandates (Section 100 (2) sentence 1 no. 1 AktG) and the obligation to hold two meetings per year (Section 110 (3) AktG) do indicate that this is a secondary activity. Nevertheless, monitoring the original management tasks of the management board remains its core task (BGH, judgment of July 4, 1977 – II ZR 150/75).
New Federal Court of Justice ruling: Duty to inquire and investigate
The Federal Court of Justice emphasizes that the supervisory board may not accept inadequate reporting pursuant to Section 90 AktG (Federal Court of Justice, judgment of October 14, 2025 – II ZR 78/24, para. 21). It must actively inquire and, if necessary, conduct its own investigations. If it fails to do so, it is liable.
Even in the case of a dormant company, the supervisory board may not wait for the management board to report. It must request reports at least quarterly in accordance with Section 90 (2) No. 3 AktG (Federal Court of Justice, judgment of October 14, 2025 – II ZR 78/24, para. 25).
Monitoring also includes measures for the early detection of developments that could jeopardize the company's existence (Section 91 (2) AktG) and the establishment of a compliance management system/CMS (LG Munich I, judgment of December 10, 2013 – 5 HKO 1387/10). The supervisory board must obtain information, review reports, document its measures, and convene the annual general meeting if necessary (Sections 90, 111 AktG). It must also ensure that the management board does not exceed the scope of the company's purpose (Federal Court of Justice, judgment of October 14, 2025 – II ZR 78/24, para. 18).
Compliance and distribution of tasks in GmbHs and AGs
The decision of the Federal Court of Justice shows that compliance obligations do not only apply to listed stock corporations. In limited liability companies and smaller corporate structures, too, the question arises as to how responsibility for compliance is distributed. The legal requirements differ, but the principle remains the same: managers must identify risks at an early stage, prevent legal violations, and ensure a functioning organization.
Compliance in limited liability companies
In a GmbH, the management bears the central responsibility for the organization of the company (Section 43 GmbHG). This also includes the obligation to set up an appropriate CMS. The management must analyze risks, create internal guidelines, establish whistleblower systems, and ensure that employees are trained.
The shareholders' meeting has no operational management function, but can influence compliance structures by issuing instructions or appointing additional managing directors.
If there is a supervisory board – for example, in a co-determined limited liability company (GmbH) – it assumes a monitoring function similar to that in stock corporation law. Here, too, the following applies: A supervisory board may not rely on reports, but must actively inquire, obtain information, and initiate external audits if necessary.
Compliance and distribution of tasks in the AG
In an AG, the distribution of tasks is more clearly structured. The management board bears overall responsibility for the organization of the company (Section 76 (1) AktG). This necessarily includes the establishment of an effective CMS that prevents legal violations and identifies risks at an early stage.
The supervisory board monitors these measures (Section 111 AktG). It must ensure that the management board fulfills its organizational duties and intervene if any deficiencies are identified. Current case law – in particular the ruling of the Federal Court of Justice (BGH) of October 14, 2025 (II ZR 78/24) – makes it clear that the supervisory board not only receives reports, but must also actively check whether the compliance structures are appropriate.
This also includes the duty to monitor compliance with the company's purpose and to stop undesirable developments at an early stage. Compliance is therefore an integral part of good corporate governance, regardless of the size or activity of the company.
Practical note
The new ruling makes it clear to supervisory boards that they are obliged to actively gather information and monitor the company. Even "dormant" companies need lean but effective reporting: quarterly reports that provide transparency on liquidity, obligations, pending projects, and any plans to resume business. This structure reduces liability risks and makes it easier for the supervisory board to fulfill its duties. As a result, impermissible business activities (e.g., expansion into unrelated business areas) are identified and stopped at an earlier stage. In this regard, the Federal Court of Justice (BGH) has emphasized that the supervisory board must prevent the company from exceeding its corporate purpose (BGH, judgment of October 14, 2025 – II ZR 78/24, para. 18). With regard to the obligation to establish an effective CMS, it follows that the management board may be liable for damages for a lack of an internal control system, even during the period of suspended business activity, if this leads to administrative offenses or criminal offenses within the company.
