SMP
April 14, 2020

Do the fund and/or board members representing the fund face the risk of a personal liability?

Legal obligations which arise in a crisis and in the vicinity of an insolvency primarily address the management of the company. Therefore, only the management (i.e., the directors) is subject to a strict liability regime for compliance with such legal obligations whereas the fund, as shareholder, is not.

Also, board members who have a mere advisory function are not addressed by the insolvency related legal obligations and do, thus, not face the threat of personal liability for a breach of such obligation. If, however, a board member, though not formally appointed as director, acts as a director through excessive advisory board interventions (which should be avoided for tax reason as discussed above under no. 3), such board member may qualify as a de factor manager (faktischer Geschäftsführer) and become subject to the strict liability regime applicable to directors.