Recourse against managing directors for fines – Federal Court of Justice and Frankfurt Higher Regional Court set new standards

On October 21, 2025, the Frankfurt Higher Regional Court  (OLG) ruled (Ref. 31 U 3/25) that members of the executive board are personally liable for fines imposed on associations under capital market law. Previously, on February 11, 2025, the Federal Court of Justice (BGH) had referred the question to the European Court of Justice (ECJ) as to whether Article 101 TFEU precludes recourse by the company against its management bodies for an antitrust fine (Ref. KZR 74/23). This means that one of the most controversial issues of directors' and officers' liability will soon be clarified by the highest court.

The initial situations

The proceedings before the BGH are based on a decision of the Higher Regional Court of Düsseldorf of July 27, 2023 (6 U 1/22) (see Update Compliance 7/2023 – Higher Regional Court of Düsseldorf: No recourse against managing directors for antitrust fines), in which the Higher Regional Court of Düsseldorf rejected recourse against managing directors for antitrust fines. In these proceedings, a limited liability company (GmbH) is demanding compensation from its former managing director for an antitrust fine of EUR 4.1 million imposed by the Federal Cartel Office for a price cartel.

The OLG Frankfurt (judgment of October 21, 2025 – 31 U 3/25), on the other hand, dealt with a case involving a fine under capital market law. The Federal Financial Supervisory Authority (BaFin) had imposed a fine of EUR 290,000 on a listed stock corporation because its half-yearly financial report did not contain a so-called balance sheet oath. The sole member of the management board at the time was responsible for failing to issue the declaration required under Section 115 (2) of the German Securities Trading Act (WpHG). The company sought recourse against the former member of the management board for reimbursement of the fine and legal costs. The appeal is pending before the BGH´s Second Civil Law Senate – not the Antitrust Law Senate.

The decisions

At the time, the BGH suspended the antitrust proceedings and referred the case to the ECJ for a preliminary ruling. The ECJ is to clarify whether Article 101 TFEU precludes a provision in national law under which a legal entity can claim compensation from its management body for damage caused by a cartel fine. The Cartel Senate considers both an affirmative and a negative answer to the question of recourse to be justifiable. The effectiveness of the fine could be impaired if the company were able to relieve itself of the financial burden through recourse. At the same time, however, the Senate emphasizes the behavior-controlling effect of recourse: without the threat of personal recourse, the managing director would not have to pay the fine, which would contradict the control function of Section 43 (2) of the German Act on Limited Liability Companies (GmbHG).

The OLG Frankfurt also affirms the fundamental recourseability of association fines with explicit reference to the preliminary ruling of the BGH. The wording of section 93 (2) sentence 1 AktG does not provide for any restriction. The meaning and purpose of directors' and officers' liability also argue in favor of recourse: in addition to compensation for damages, the threat of personal liability encourages members of the executive board to exercise greater care. 

The court rejects a teleological reduction of the provision. Neither the punitive nor the preventive purpose of the association fine is thwarted by the possibility of recourse. Limited D&O coverage, the personal financial capacity of the body, and the risk of litigation and insolvency ensure that an effective portion of the fine can remain with the company.

Practical note

A significant legal development is emerging for companies and their management bodies. The BGH and the OLG Frankfurt have sent a clear signal in favor of the recourseability of fines imposed on companies. If this view prevails, the affirmation of the recourseability of fines would be expected to lead to an increase in cases of directors' and officers' liability in the future. Members of the executive board and managing directors should therefore review their personal liability situation with regard to the risk of fines. The coverage amounts of existing D&O insurance policies deserve special attention, as the insurance can only cover the liability risk to a limited extent in the case of high fines.

Outlook

It remains to be seen how the ECJ will rule on the recoverability of antitrust fines. In its referral decision, the Antitrust Law Senate of the BGH has already indicated that it will affirm recoverability on the basis of national law. A corresponding decision by the Second Civil Division of the BGH is also expected for the capital markets law proceedings.