D&O insurance and antitrust law-"A Never Ending Story"
BGH hands over the "baton" to the European Court of Justice
A long -awaited clarification of recourse issues by the Federal Court of Justice (BGH) failed to materialize on February 11, 2025. It remains exciting for D&O insurers and insurance brokers as well as managing director. Because the BGH has the crucial question of whether the European antitrust ban from Art. 101 TFE with a national regulation, according to which a company, against which a fine was imposed due to a anti -antitrust law, can take recourse to its managing directors or board members, submitted to the European Court of Justice (ECJ) for clarification.
This means that it is not finally clear whether managers for the company imposed on the company can be used in recourse. Such fines can quickly reach two to three-digit million sums. The decision of the BGH was opposed to the direction because corresponding recourse issues with a view to considerable fines have also become a popular sanction instrument in other areas such as data protection or the supply chain law. Due to the corresponding peculiarities, whether the clarification of the application and interpretation question will now also bring legal clarity outside of antitrust law sanctions will still have to be examined.
In the underlying legal dispute, the plaintiffs wanted two group -loving steel companies (GmbH and AG), which against them due to their participation in the stainless steel cartel of around EUR 4.1 million (as well as their defense costs) from their former managing director/board member, who was personally involved in the cartel. The applicants also demanded that the defendant have to compensate for all further damage from the antitrust violation.
The regional court dismissed the lawsuit regarding the requested reimbursement of fines/defense costs, the OLG Düsseldorf as an appellate court then dismissed the lawsuit as a whole.
Even if the BGH seems to be personal liability of the managing directors, it has now submitted the question to the ECJ whether it would run counter to the effectiveness of antitrust sanctions if companies could recover from fines. According to German law, a managing director or board member who violates his duties is generally liable to the company for the damage incurred. So far, it has so far been extremely controversial whether this also applies to society (antitrust) fines.
Legal issues: A look at the controversy
Some courts (OLG Düsseldorf, judgment of 27.07.2023-VI-6 U 1/22 [Kart]; LG Saarbrücken judgment of 15.09.2020 (OBITER DICTUM)-HK O 6/16) Länen a liability of the decision-makers for corporate levels. The (sanction) purpose of the corporate fine would be undercut if companies could pass on their fines to managers and thus indirectly to their D&O insurers. The decision -maker could not be burdened by the decision -making company that was originally intended for the company. There would also be a double punishment.
However, other courts, such as the Dortmund Regional Court (judgment of 14.08.2023 - 8 O 5/22 (kart)), support such a recent liability in order to ensure the deterrent effects of corporate losses. Otherwise, an incentive for misconduct would be justified by the decision -makers. On the other hand, there would be no full relief for the company, because the fines could often not be returned in full by the managing director and the cover amounts of the D&O insurance should also be exceeded regularly. Finally, an amount of the recourse is also discussed.
Possible consequences for D&O insurance
should be affirmed a recourse liability of the managers for corporate levels, this would have significant consequences for D&O insurance. The existing insurance contracts are often not prepared for such a scenario, which could lead to increased liability risks for managers and need for adjustment in the insurance conditions. Premature increases would also be conceivable. As a rule, fines under certain conditions are determined in the D&O insurance conditions by fines imposed on the managing director. However, the transfer of corporate money losses has often been disregarded. Nevertheless, different brokerage conditions include the fines as insurable.
In this respect, the ECJ declaration can be expected for the recourse of antitrust bussels. Against the background of these liability risks, the obligation to (antitrust) compliance and liability avoidance remains an essential aspect for managers and D&O insurers. In any case, the recourse of the legal fees and the other claims for damages should lead to the use of D&O insurance in the antitrust constellation. In this respect, sufficient (antitrust) right-wing sensitization through an experienced compliance training can offer the necessary compensation between risk education and avoidance of complete incapacity to act through incorrectly-reached risk aversion.
Dr. Christian H. Müller, LL.M. EUR, EMBA
