Which notice periods apply to managing directors?
When managing directors are dismissed, many important legal questions arise. These begin with the question in which court to file a lawsuit against the dismissal and which notice periods apply.
On November 5, 2024 (II ZR 35/23), the Federal Court of Justice (BGH) ruled that Section 622 of the German Civil Code (BGB) continues to apply analogously to the termination of managing directors of GmbHs – not Section 621 of the German Civil Code (BGB). In doing so, the BGH expressly contradicts the recent case law of the Federal Labor Court (BAG).
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Legal Situation at a glance
1. Employees (Section 622 of the German Civil Code):
• Notice periods depend on the duration of the employment relationship (up to 7 months to the end of the month).
2. Managing Directors:
• Not employees in the sense of labor law (but they can still have an employment contract in addition to their status as MD).
• Nevertheless, they can be protected analogously to Section 622 of the German Civil Code – according to the BGH.
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Case Law Development
Previous BGH Case Law:
• Analogous application of Section 622 of the German Civil Code to external managing directors (non-shareholder managing directors).
• Reason: unintended regulatory gap.
Federal Labor Court ruling of June 11, 2020 (2 AZR 374/19):
• U-turn: Section 621 of the German Civil Code (BGB) is applicable.
• Notice period is based on the compensation period (e.g., monthly salary → half a month’s notice period).
• No unintended gap, as the legislature deliberately limited Section 622 of the German Civil Code (BGB) to employees in 1993.
Federal Court of Justice ruling of November 5, 2024:
• Upholds the analogous application of Section 622 of the German Civil Code (BGB).
Federal Court of Justice ruling of November 5, 2024:
• Upholds the analogous application of Section 622 of the German Civil Code (BGB).
• Despite knowledge of the earlier BGH case law, the legislature has not made any deviating provisions → Section 622 of the BGB remains applicable analogously.
• These deadlines may not be shortened contractually to the detriment of the managing director (Section 622 Paras. 4 and 5 of the BGB).
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Practical significance
• Legal uncertainty: The Federal Labor Court (BAG) and the Federal Court of Justice (BGH) hold opposing views.
• Consequence: Different outcomes depending on whether the proceedings end up before a labor or civil court.
• Only the Joint Senate of the Supreme Federal Courts can provide legal certainty – but this has not yet been called upon.
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Conclusion
• According to the BGH: analogous application of Section 622 of the BGB → longer notice periods.
• According to the BAG: application of Section 621 of the BGB → significantly shorter notice periods.
• Until the Joint Senate clarifies the matter, the legal situation remains inconsistent.