Facts
The defendant [D.] was the managing director of [F. AG] from 25 February 1987 to 1 March 1991. On 24 November 1988, [F. AG] acquired all shares of E. Holding AG, which in turn held all shares of E. AG. In 1990, bankruptcy proceedings were opened against [E. AG] and E. Holding AG. The plaintiffs, Bank A. and B., are creditors of [E. AG] and had the liability claims against the corporate bodies of the bankrupt [E. AG] assigned to them. Among other things, they demanded the conviction of the defendant [D.] to pay CHF 3,000,000.- based on Art. 754 para. 1 and Art. 759 former CO. The District Court of Lucerne-City and the High Court of the Canton of Lucerne dismissed the claim against [D.], as they denied his passive legitimacy as a de facto corporate body of E. AG.Considerations
The Federal Supreme Court confirmed the decisions of the lower courts. It stated that the liability of corporate bodies under Art. 754 former CO not only covers the members of the board of directors, but all persons entrusted with the management or administration. However, not only decision-making bodies expressly appointed as such are considered to be entrusted with the management or administration, but also persons who actually make decisions reserved for corporate bodies or who effectively manage the business and thus significantly influence the company's decision-making.
In the present case, the defendant [D.] was formally the managing director of [F. AG], but not of E. AG. According to the binding findings of the lower court, his area of responsibility was limited to developing alternative business concepts and submitting them to the executive committee of [F. AG] for decision.…