Conviction can force managing directors or board members to resign

Since January 1st, 2024, managing directors of GmbHs (companies with limited liability) or board members of AGs (stock corporations) or of cooperatives must expect far-reaching professional consequences if they are convicted. New provisions (section 15 para. 1a in conjunction with section 16a para. 3 GmbHG; section 75 para. 2a and 2c AktG; section 15 para. 2a and 2c GenG) provide that they must resign immediately after receiving a sentence of more than six months imprisonment for certain white-collar offenses.

This disqualification applies regardless of whether the punishment was imposed unconditionally or conditionally and takes effect automatically when the judgment becomes final. From this point on, there is a substantive obstacle to the appointment or further exercise of this function. This legal consequence is temporally limited to three years from the date the conviction becomes final. Only after the expiration of this period may the convicted person be reappointed as managing director or board member.

The only ray of hope: If there are no special or general preventive reasons against this, the disqualification can be conditionally suspended (see section 44 para. 2 StGB). Once again, it is clear that in the event of criminal proceedings, the early involvement of a defense lawyer is essential. This may help to avoid far-reaching professional consequences.

Our expert Laura Viechtbauer from the Criminal Defense & White-Collar Crime Law team will be happy to answer any further questions you may have on this topic.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.

 

2. April 2024

 

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