Continuing its previous jurisprudence, the Ninth Senate decided in its judgment of February 13, 2007 ( 9 AZR 207/06 ) that the failure of the employer to secure insolvency assets from a part-time retirement employment relationship, although required by the collective agreement, does not automatically result in personal liability for the managing director of a GmbH justified.
However, if the managing director of a GmbH pretends to the employer that the assets have been secured against insolvency, this may affect his liability for damages in accordance with Section 823 Paragraph. 2 BGB i.V.m. § 263 StGB begründen. This also applies if the managing director of the GmbH only untruthfully informs the works council that he has arranged for insolvency protection. A fraud within the meaning of Section 263 Para. 1 StGB can also be committed by deceiving the works council to the detriment of an employee. When it comes to fraud, the person being deceived and the person being deceived do not have to be the same.
It is sufficient if the deceived person has an asset protection function towards the employee. This can result from a works agreement that obliges the employer to provide proof of insolvency protection to the works council. The managing director is then personally liable for the damage suffered by the employee due to the (partial) loss of the assets he has earned in the event of insolvency. The occurrence of such damage is to be expected regularly because the assets worked out before the opening of insolvency pursuant to Section 108 Paragraph. 2 InsO is only corrected proportionately as an insolvency claim.