Ten years after the diesel scandal became known, Volkswagen must accept another defeat in court. On Tuesday, the Federal Court of Justice (BGH) declared a decision of the Annual General Meeting of 2021 due to a violation of the law. This formed the basis for a 270 million euro coverage amount that paid a number of manager liability insurers (D&O) to the group. Now Volkswagen has to negotiate the contract and get the shareholders’ consent (Az. II ZR 154/23). In early summer 2021, VW had agreed to compensate a total of 288 million euros in liability compared to his former CEO Martin Winterkorn, the long-time Audi CEO Rupert Stadler and with a D&O consortium. In the cover comparison, VW, Winterkorn and Stadler undertook to release third -party claims. In addition, the group explained to refrain from liability against other former or incumbent members of the board and the supervisory board. The protective community of investors (SDK) and other shareholders explained an objection and went to court with the void and contestation lawsuits. The procedure supported by the corporate governance specialist Christian Strenger was unsuccessful in the lower courts. Non the BGH agreed to the plaintiffs in “essential points”. In comparison with the D&O insurers, the civil senate criticized a lack of transparency. From the agenda, the waiver of the enforcement of claims against a large number of organ members was not recognizable; In this context, the plaintiff SDK speaks of up to 170 people. In its judgment, the civil senate states that the average shareholder does not have to expect that the information on a resolution about a multitude of other organ members is contained in the further information on the relevant agenda points. Declaration of the property liability comparisons with Winterkorn – he should pay 11.2 million euros – and Stadler recognized the BGH a possible violation of the questionnaire of shareholders. According to a report by the board of directors and the supervisory board, Winterkorn and Stadler’s “lack of economic performance” with a view to the sum insured for the comparisons was decisive. Information about the financial situation was necessary for an informed decision on the consent. Since the Senate could not reliably make such findings, it opened the previous judgments and rejected the legal dispute back to the OLG instance. The SDK speaks of a “fundamental decision”. Markus Kienle, the residual board of the investor association, said that only the knowledge of the financial situation enables shareholders enable shareholders to assess the HV resolutions properly. With a view to self -contributions to the board members and possible foregoing salary components, he warned for transparency. Without an investigation, the liability for the board in German stock law remains a “theoretical construct”, which in practice is a farce. Tickets comparisons with Winterkorn and Stadler? A VW spokesman said that the group and the other parties of the comparison agreements were in discussions about possible consequences of the judgment. “As a precaution, it has been agreed in particular with the insurers that any claims for recovery will not be asserted for the time being and that the talks will continue after analysis of the judgment.” Volkswagen’s intentions are to complete the comparisons made again in 2021, the spokesman explained. Liability experts also see the comparisons with winter grain and Co. on the brink. “According to the Karlsruhe judge, VW would have had to check more precisely how much to get the managers,” says the lawyer Mark Wilhelm, which specializes in manager liability. The question of liability of the former VW managers must be re-rolled up. “Ultimately, it is about the simple question of whether shareholders have to be satisfied with a half -cooked comparison, while those responsible in their early retirement in the villa remain almost undisturbed in the green,” said Wilhelm, more on the topic of decision from Karlsruhe on Tuesday. For example, the German Protection Association for Securities (DSW) sees quite a positive effect for its years of demand to carry out a special examination at Volkswagen – against which the Wolfsburg -based company had even drawn before the Federal Constitutional Court. Dispute Special examination only the protection against possible claims for damages by the insurers was ineffective, the shareholders’ association from Düsseldorf said. Rather, the last efforts of VW are also cut against the DSW special examination, according to which due to the waiver of liability of the Annual General Meeting in 2021, the special examination no longer has a need for legal protection. “With today’s decision of the BGH, the BGH, which we have pursued, there is undoubtedly a need for legal protection, because the liability compared to the proceedings is thus possible,” Ulrich Hocker, President of the DSW, cited in a message. Because even without recourse claims against the managers responsible, it has argued that it is not only about recourse, but also about personnel consequences and teachings in the VW group, for example by way of disciplinary measures or necessary adjustments to the risk and control system. “We assume that this back door of Volkswagen is now closed against the special exam,” said Hocker.
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