a:2:{s:4:"unit";s:2:"h1";s:5:"value";s:252:"German Federal Court of Justice (BGH): The shareholder of a civil-law-partnership under German Law (“Gesellschaft bürgerlichen Rechts”) is not personally liable for a breach of the cease-and-desist declaration a
In a much considered ruling, the Federal Court of Justice (BGH) endorsed the legal capacity of the civil-law-partnership ("Gesellschaft bürgerlichen Rechts", "BGB-Gesellschaft) and stated that in principle, the civil-law-partnership can adopt any legal position once special reasons do not prevent this, and in this sense is legally capable without being a legal person (Dec. of 29.01.2001, II ZR 331/00). The legal capacity of the civil-law-partnership has an impact on the rules in the area of fair trading law as a current ruling of the BGH shows (BGH, Urt. v. 20.06.2013, I ZR 201/11). The BGH decided that the shareholder of a civil-law-partnership in principle is not personally liable for a breach of the cease-and-desist declaration accepted by the civil-law-partnership. Shareholders of civil-law-partnerships can breathe a sigh of relief; those who want to enforce claims for injunction against civil-law-partnerships need to ensure to correctly formulate the wording of the cease-and-desist declaration so that the contractual penalty can be properly enforced.
The defendant has been a partner of a civil-law-partnership; the partnership in question has accepted a cease-and-desist declaration for the benefit of the plaintiff in 1998. The defendant is no longer a shareholder of the partnership, but now is permanently employed by third party as a sales manager. As part of this employment relationship the defendant was primarily responsible for certain promotional activities, which - if the civil-law-partnership had acted - would have breached the cease and desist obligation. With respect to this situation, the plaintiff raised a claim against the defendant on the grounds of a breach against the cease and desist obligation. Unlike the lower-instance courts, the BGH dismissed the action and considers that the shareholder of a civil-law-partnership is not personally liable for a breach of the cease-and-desist declaration accepted by the civil-law-partnership.
If you want the shareholder of a civil-law-partnership to be responsible for a cease and desist obligation, you have to issue a warning against the partnership and (!) the shareholder. Whether or not a claim against the shareholder is justified must decided on a case-by-case basis. In general, this will be the case, if the shareholder acts by himself or if he has the possibility to terminate or prevent the infringement.
Dr. Robert Kazemi