Update: Ferdinand Piech, Porsche and the Volkswagen Options

Ferdinand Piech has not been granted admission to appeal (Nichtzulassungsbeschwerde) the judgment of the Stuttgart Court of Appeals (Oberlandesgericht) of February 2012.  In this judgment, the Stuttgart court found that Mr. Piech had violated material fiduciary duties (Kardinalpflichten) which he owed to Porsche as a member of its supervisory board: His public statements showed that he failed to exercise proper control over the Volkswagen share option arrangements that were entered into as part of Porsche’s attempt to take over Volkswagen. If Mr. Piech could not understand what was going on, he should have investigated further, and potentially even tried to stop these transactions.

In its order dated November 6, 2012, on which the news broke only earlier this week, the Federal Supreme Court (Bundesgerichtshof) denied the application to admit the appeal (Nichtzulassungsbeschwerde) against the Stuttgart judgment. The Federal Supreme Court held that the requirements of Sec. 543 German Code of Civil Procedure (ZPO) had not been met. The matter was neither of “fundamental significance”, nor did the “further development of the law or the interests in ensuring uniform adjudication” require the Federal Supreme Court to rule on points of law. The holding of the Stuttgart court was found to be in accordance with the established body of case law. Procedural challenges as to how the Stuttgart court had established the facts were also dismissed.

The Stuttgart judgment now has become final. It remains to be seen whether Piech and Porsche will try to invoke extraordinary remedies, such as a constitutional complaint (Verfassungsbeschwerde) to the Federal Constitutional Court (Bundesverfassungsgericht). Technically, the decision of Porsche’s AGM which had granted discharge (Entlastung) to the supervisory board has been declared void (nichtig) and this bar to damage claims has been removed. Whether claims for damages against Piech as a supervisory board member do exist, and whether they will be brought, is an other matter.


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