05.10.2016

Attribution of an authorised representative´s knowledge obtained from his work as member of the Supervisory Board (with comment by BLD)


FCJ, judgement of 26 April 2016 - XI ZR 108/15 (full text judgement - in German)

1. The knowledge that a bank’s authorised representative has obtained while being a member of the supervisory board of a stock corporation cannot be attributed to the bank, as long as the knowledge is subject to the representative’s duty to confidentiality pursuant to s. 116 sentence 1 in conjunction with s. 93 para. 1 sentence 3 Stock Corporation Act (AktG).

2. A member of a stock corporation's supervisory board cannot in advance be generally relieved from its duty to confidentiality with regard to certain topics.

3. The general meeting of a stock corporation is not authorised to decide about the disclosure of confidential information and secrets.

Comment
The plaintiffs claimed damages from a bank, with which they had opened a custody account via a meanwhile insolvent company trading in securities that had allegedly systematically given flawed advice to its clients. The peculiarity of this case is that an authorised representative of the bank had at the same time been a member of the supervisory board of the company trading in securities and that he shall have obtained knowledge of the flawed advice in the course of a meeting, which shall at least have been evident.

The FCJ deems the action to be unjustified.

A possible knowledge of its authorised representative may not be attributed to the bank: the information given in the course of the meeting of the supervisory board of the company trading in securities had been confidential. Regarding such circumstances, which were subject to the duty to confidentiality pursuant to s. 116 sentence 1 in conjunction with s. 93 para. 1 sentence 3 AktG and which could not have been passed on by the member of the supervisory board without breaching his duty to confidentiality, an attribution of knowledge was excluded from the start. A conflict of duties that a member of the supervisory board has towards the company and his employer does not justify a breach of the duty to confidentiality. The legislator has seen this conflict and has decided it in favour of the company that is protected by the duty to confidentiality. Firstly, the legislator – knowing that being a member of the supervisory board is mostly part-time work - has anticipated this area of conflict and in light of this created the duty of confidentiality. Secondly, it can be deducted from the criminal offence in s. 404 para. 1 no. 1 AktG that the legislator has decided this conflict in favour of the company that is protected by the duty to confidentiality. The duty to confidentiality is not disposable and neither may the general meeting of a stock corporation decide about the disclosure of confidential information and secrets. It is rather up to the board of management to decide about this carefully after considering the conflicting interests of the individual case.

The judgement is comprehensibly justified and meets the law’s purpose to protect the interests of the stock company when its members of executive bodies handle confidential information.

Contact
Bastian Finkel, Cologne
bastian.finkel@bld.de