BOARD OF DIRECTORS’ LIABILITY (Section 93 AktG [German Stock Corporation Act]): In its judgement dated 12/10/2016, the Federal Court of Justice raised the statutory liability requirements for a public limited company’s board member, however, concurrently exacerbated the consequences of such liability. A breach of duty pursuant to Section 93 (1) sentence 1 AktG will only be accepted by the Federal Court of Justice if it is “serious” or “evident”. In this respect, the requirements for becoming liable are higher. However, the Federal Court of Justice at the same time decided that, if a breach of duty pursuant to Section 93 (1) sentence 1 AktG existed, it simultaneously justified a breach of an obligation as defined in Section 266 StGB [German Criminal Code]. In this respect, the consequences of the liability have become exacerbated. The decision was made by the criminal division of the Federal Court of Justice. The extent to which the civil divisions will incorporate this case law remains to be seen.
