Facts
The case concerns the liability of shareholders of a limited liability company (GmbH) for unpaid social security contributions. The Compensation Fund of the Canton of St. Gallen sued S., a shareholder of the GmbH, for compensation of the damages incurred by the Fund due to unpaid federal social security contributions.
The Federal Supreme Court had to decide under what conditions shareholders of a GmbH can be held liable for such contribution defaults.
Considerations
The Federal Supreme Court states that the mere status as a shareholder of a GmbH alone does not establish any control or supervisory duties. This follows from Art. 819 para. 1 CO, which only provides for a right of inspection for shareholders excluded from management.
Only if a shareholder is statutorily obligated to control or supervise the management activities, can he be held liable for omitted or insufficient control. Likewise, a shareholder who de facto exercises the function of a…