Liability of the GmbH managing director for administrative offences

As a rule, it is known about a limited liability company (GmbH) that the liability of the partners - as the name of this legal form already indicates - is limited, as a rule to the capital contribution made. In other words, the shareholder pays his capital contribution into the company at the time of the company formation (or later), thus capitalising it and henceforth no longer being liable for the company's debts with his private assets. 

It is often forgotten that the law treats the shareholder and the managing director, who is authorised to manage and represent the company, differently, even if the same natural person fulfils both roles at the same time. The managing director is subject to a higher standard of liability, first and foremost, of course, towards the company. However - and this is often overlooked - some legal provisions also provide for personal liability of the managing director for certain payment obligations of the GmbH. 

Administrative fines

An important special case is liability for administrative offences committed through the company's business activities. The addressee of an administrative penalty is always a natural person. According to section 9 of the Administrative Penalty Act (VStG), therefore, as a rule, the person who is appointed to represent the company externally is liable for compliance with administrative regulations by legal entities or registered partnerships. And in case of doubt, this is the managing director, because according to the intention of the legislator, it would be up to the managing director to ensure that precisely no administrative offences are committed in the company managed by him. 

Whether or to what extent the managing director receives compensation for the administrative penalty he has to pay is irrelevant. The fact is that the managing director is liable for administrative offences committed by the company, unless a "responsible officer" has been appointed for the relevant area of the company. 

Taxes

Similar regulations are found in section 9 in connection with section 80 of the Federal Tax Code (BAO). According to this, the persons appointed to represent legal persons (i.e. again the managing directors) must ensure that the levies are paid from the funds they administer. Otherwise, they are liable alongside the company they represent for its tax debts to the extent that the taxes cannot be collected as a result of culpable breach of their duties. Thus, for example, the managing director is liable in case of doubt for a tax debt of the company in case of insolvency of the company.

Social insurance

An almost word-for-word regulation for contributions to statutory social insurance is contained in section 67 para 10 General Social Insurance Act (ASVG): The persons appointed to represent legal entity or commercial partnerships (general partnership, limited partnership) are liable, within the scope of their power of representation, for the contributions to be paid by the entity, in addition to the contribution debtors (= companies) represented by them, to the extent that the contributions cannot be paid as a result of culpable violation of the duties imposed on the representatives. 

Therefore, before taking on a task as a managing director, one should be aware of these liability risks. It is always better - and cheaper - to obtain legal advice and information in advance than to avert the threat of liability afterwards.