For the knowledge of governing the termination of an employment contract manager facts, the two-week period in accordance with § 626 Abs. 2 BGB is in the running, it comes to the knowledge of the appointed to decide on the dismissal committee.

a) For the knowledge of governing the termination of an employment contract manager facts, the two-week period in accordance with § 626 Abs. 2 BGB is in the running, it comes to the knowledge of the appointed to decide on the dismissal and prepare body of the Company.
b) The power, to terminate the employment contract, can be in the partnership agreement as well as by the shareholder to another person transfer-red.
c) Knowledge is then available, when everything is brought into experience, what is considered to be neces-sary basis for a decision about continuation or termination of the employment relationship. Need to know or grossly negligent lack of knowledge is not enough.

BGH II ZR 273/11 from 9. April 2013 – Civil Code § 626 Abs. 2

a) For the knowledge of governing the termination of an employment contract manager facts, the two-week period in accordance with § 626 Abs. 2 BGB is in the running, it comes to the knowledge of the appointed to decide on the dismissal and prepare body of the Company.
b) The power, to terminate the employment contract, can be in the partnership agreement as well as by the shareholder to another person transfer-red.
c) Knowledge is then available, when everything is brought into experience, what is considered to be neces-sary basis for a decision about continuation or termination of the employment relationship. Need to know or grossly negligent lack of knowledge is not enough.

BGH, Judgment of 9. April 2013 – II ZR 273/11 – OLG Dusseldorf

LG Dusseldorf
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There II. Civil Division of the Federal Court dated to the hearing 9. April 2013 by the judge Dr. Strohn as chairman, Judge Dr. Reichart and the judges Dr. Drescher, Born and Sunder
hereby:
On the defendant's appeal is the judgment of the 14. Civil Division of the Court of Appeal of Dusseldorf 24. November 2011 repealed.
The thing is for a new hearing and decision, also about the cost of the revision process, referred back to the Appeals court.
By rights
Facts:
The plaintiff had been 21. More 2002 Managing Director of the defendant GmbH. Sole shareholder of the defendant, the S. D. mbH, whose sole shareholder, the City Savings Bank D. is. The Managing Director of the applicant's contract of employment
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14. More 2003 was an addendum to the 30. August 2006 until 31. December 2012 extended.
To 15. July 2003 the plaintiff was also Managing Director of S. D. mbH. As its director, the applicant end 2000 a consulting agreement with the local politicians M. closed, where this an annual advisory fee of 200.000 DM had been promised. The consulting agreement with M. was on-th bit of the City Savings Bank K. in 2003 to 23. June 2004 extended. An-fang 2004 bat M. to a cancellation of the contract, of the S. D. GmbH with effect from 31. December 2003 in a writing signed by two directors, their letter of 12. February 2004 agreed. In this letter, it is:
“We are happy to follow your suggestion and hereby agree-ner a cancellation of the contract with effect from 31. The-Zember 2003 to. We thank you for trusting cooperation Yours sincerely”.
At the 1. February 2009 Trat M. of all political offices back. In press reports, the presumption had been expressed, that there had been in the consulting agreement with him to form a contract, the former Chairman of the Board of City Savings Bank K. was initiated and only the supply of M. have served. In return for the fees collected have M. never provided. Criminal investigations were discontinued due to occurrence of the limitation period.
At the 16. February 2009 decided on the S. D. mbH, as sole shareholder of the defendant to dismiss the
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Plaintiff as manager of the defendant and the immediate termination of the employment contract for good cause, that the plaintiff was declared on the same day.
The applicant sought, the invalidity of the termination-ing festzustel. The district court dismissed the action, The Court of Appeals upheld her. In contrast, the Senate approved by the sentencing appeal by the Respondent is directed.
Reasons:
The revision is successful. They lead to the repeal of Appeals judgment and remand the case to the Court of Appeal.
I. The Court of Appeal (OLG Dusseldorf, Judgment of 24. November 2011 14 You 27/11, juris) has performed, the plaintiff against the outspoken extraordinary dismissal was invalid, because they are not within the period specified in § 626 Abs. 2 S. 1 and 2 BGB is. Knowledge of the Managing Director of the sole shareholder of defendant, which is relevant, have already been signed by them at the time of approval of the repeal of the consultant contract with M. submitted to. This follows from the letter of 12. February 2004. This letter documenting of itself a confirmation and approval of the consultant contract, the illustrative, that the signatories were already familiar with the essential background and even approved. Other-wise remain absolutely incomprehensible, as the CEO himself might have been led to, to confirm a partial retroactive repeal of a completely unknown consultant contract and M. even to certify a trusting relationship. Even assuming full
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Persistence of certain (Rest-) Confusion about the nature of already at first glance most striking and unusual consulting agreement, and especially of such, in which it should have never given to the representation of the defendant as consultant, would in any case cause existed-the, investigate the acutely intrusive Seriositätsbedenken. Nor any necessary investigations to be carried out with due haste turned-sen.
The further alleged by the defendant disregard of instruc-tions by the applicant in the context of educational activities in 2009 not bear the extraordinary termination without notice. As far as the kündigungsre-relevant circumstances already in 2004 were known or inquiries had been neglected due to the water time anyway, it was missed in the bud, any negligence of the plaintiff in the Aufde cover-up of these processes in 2009 for a quasi-lead resurgence of the right to terminate the field. That would be attributable to the plaintiff beyond comparison with recommendations of the Enlightenment, would bear the ausgesproche-ne termination for themselves, was not detectable.
Finally, there is no Event of Default with respect to the behavior of the applicant for the renewal of the advisory agreement with the K. Ltd. regarding the complex G. .
II. The judgment does not withstand legal scrutiny of the audit.
1. As a result, it is still true, the Court of Appeals for custom-bend considered, whether the manager sole shareholder of the defendant in February 2004 Have arrived-he of the possible grounds for termination knowledge.
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Under § 626 Abs. 2 BGB may be the extraordinary termination of the Ge-schäftsführeranstellungsvertrages only within two weeks. For the two-week run-in period translated knowledge in the sense of § 626 Abs. 2 BGB is only on the knowledge of the appointed to decide on the dismissal and prepare body of the Company to (BGH, Judgment of 10. September 2001 II ZR 14/00, ZIP 2001, 1957, 1958; Judgment of 10. January 2000 II ZR 251/98, ZIP 2000, 508, 510; Judgment of 15. June 1998 II ZR 318/96, BGHZ 139, 89, 92). Notice sign is principally in the GmbH, the general meeting as the analogous § 46 No.. 5 Limited Liability Companies Act competent organ. If the Company has only one member, it comes to its knowledge or. knowledge of the organs being representative of the sole shareholder of. This may at any time a universal meeting pursuant to § 51 Abs. 3 Limited Liability Companies Act and thus prevent a dismissal without convening a formal shareholders' meeting ausspre-chen (BGH, Judgment of 20. October 2008 II ZR 107/07, ZIP 2008, 2260 Rn. 13; Decision of 8. January 2007 II ZR 267/05, ZIP 2007, 910 Rn. 7; Judgment of 27. March 1995 II ZR 140/93, ZIP 1995, 643, 645; Judgment of 24. February 1954 II ZR 88/53, BGHZ 12, 337, 339).
However, the power, to terminate the employment contract, appropriate to be transferred to the opinion of the court in both the social contract as well as by the shareholder to another person (BGH, Judgment of 26. March 1984 II ZR 120/83, BGHZ 91, 217, 218 f.). Of these, the sole shareholder has made use here and a board member of the City Savings Bank D. authorized, S. D. relating to mbH represented in all matters the defendant and to terminate employment contracts with managers in particular. Authorizing a board member of the parent-
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But society does not lead, that the mere knowledge that person is key to the beginning of the notice period. By empowering the authority of the CEO was, for the sole shareholder to han-needles and the decision on the termination of the employment contract to fas-sen, not displaced. After all, the directors have evidenced the Protocol of the General Meeting passed a shareholder resolution of the underlying notice and signed the letter of termination.
Did the CEO of S. D. mbH In addition, before a decision on the termination of the employment contract with the plaintiff, the consent of the General Partner, också der Stadt Sparkasse D. , obtain, Although the two-week statement period began to run only after receipt of approval. In this case, however, the possibility of termination is forfeited, when the Managing Director of S. D. mbH tried not immediately after becoming aware as a condition to the approval of a resolution. If the convening of the shareholders' meeting is unduly delayed the convening of members entitled, the society must be treated as, than the shareholders' meeting would be convened with reasonable acceleration (BGH, Judgment of 15. June 1998 II ZR 318/96, BGHZ 139, 89, 92 f.). This principle also applies, if the decision about another wind Once obstacle as the consent of the shareholder-shareholder counteract gensteht.
2. But the Court of Appeal erred in law imprisonment was the letter of 12. February 2004 taken from a knowledge of the Managing Director of the kündigungsrele-relevant facts. A secure and comprehensive knowledge of the
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the termination is relevant facts then before, when everything is brought into experience, what is to be regarded as a necessary basis for a decision about continuation or termination of the employment relationship (BGH, Judgment of 24. November 1975 II ZR 104/73, World Cup 1976, 77, 78). Need to know or grossly negligent ignorance is not enough (vgl. BAG, NJW 2011, 2231, 2232; AP BGB § 626 No deadline. 46 mwN). Only then, if the facts are already known and substantially additional investiga-tions are required, such as hear the person concerned at a suspicious notice or the determination of facts speaking against dismissal, these are expeditiously (BGH, Judgment of 2. July 1984 II ZR 16/84, ZIP 1984, 1113, 1114; Judgment of 24. November 1975 II ZR 104/73, World Cup 1976, 77, 78).
The letter of 12. February 2004 can not be the positive knowledge of the managing director of the notice relevant facts entneh measures. It is limited to the agreement to terminate the contract and thanks for cooperation. This does not close, that the managing director noted the conclusion of a contract, or note-weighted competency of the alleged infringement had. The lifting of the consulting agreement at the request of the contractor is also, if this has provided consulting services in the past loading, nothing unusual. Was that the contract without the required approval of the Board of the parent company completed, does not follow from his suspension. The stereotyped exemplary thanks for a trusting relationship also does not recognize, that was known to the directors of the illusory character of the contract or a Kompetenzver-shock at his graduation.
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That after writing the directors of S. D. mbH was aware of the existence of the consulting agreement, is not sufficient, for the statement period to put in the running. The know-nis of the existence of a consulting contract with M. is not everything, what is needed as a basis for a decision on the continuation or the termination of that relationship. The directors had to be known on the occasion of the approval to terminate the contract and gratitude for the cooperation not even the contents of the deed. The appellate court has not stated, that from the written agreements between M. and the S. D. mbH is to recognize, that M. should provide advisory services as well as the approval of the Board of City Savings Bank D. was necessary for the conclusion of the contract and lacked. An obligation to determine the key for the termination of facts was not contrary to the opinion of the appellate court on the occasion of the termination of the contract, because a negligent lack of knowledge of the relevant facts is not enough, for the statement period initi-ate.
3. The judgment proves to be no other reason to be correct.
Any dereliction of duty of the plaintiff in his role as Managing Director of S. D. mbH can justify a termination of his employment contract as manager of the defendants than any other group company.
Contrary to the opinion of the statutory response is not missing a termination reason why, because of the plaintiff's alleged breach of competences in any event because of the approval of the Chairman of the City Savings Bank D. appears in a milder light.
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a) Solely on the competence violation, it has many disadvantages to, because the notice is not only based on the accusation, the applicant had the consulting agreement without a required approval by the sole shareholder, der Stadt Sparkasse D. , completed, but above all the pre-draft, the applicant has entered into a contract without consideration, because the payments of the supply of M. should be used and this should not provide consulting services. The district court also relied termination also, that the plaintiff in any case after the failure of the V. -Fund, should be completed for the argument of the plaintiff after the consultancy agreement, Top 2001 the contract has not been terminated despite an early termination of any possibility. Both allegations, with which the revision rejoinder does not address, and which the Court of Appeal has made no findings, suitable, give a reason for termination.
b) Even the alleged violation competence principle, justifies a dismissal (vgl. BGH, Judgment of 25. February 1991 II ZR 76/90, ZIP 1991, 509, 510; Judgment of 28. June 1993 II ZR 119/92, NJW-RR 1993, 1123, 1124). The need for consent for the conclusion of a service contract, which required the company to services over a certain height, accounted for, contrary to the Revisionserwide-tion therefore not been, because the City Savings Bank K. turn the city-sb D. should report to the advisory fee. Compared with M. alone was the City Savings Bank D. committed. If, as the defendant argues the consulting agreement only the supply of M. should te serve and he should not provide advisory services, committed by the competent staff of the City Savings Bank K. with the promise of benefits to which crime- (§ 266 StGB), so that the City Savings Bank K. was not required for performance (§ 134 BGB).
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Contrary to the opinion of the statutory response differs a competence tenzverstoß not therefore from the outset of, because the plaintiff's contract as directed by the Chairman of the City Savings Bank D. has completed. Therein lay the under the Rules of the S. D. mbH consent is not required of the Company General Partner, if the CEO had his part to obtain approval of the full Board was evident for the plaintiff, that this approval was missing. Then the CEO abused his powers for the City Savings Bank. The evidence of a violation of the plaintiff is not to be denied, therefore, already, because the then-rer B Mitgeschäftsfüh. internally at the S. D. mbH was responsible, to ensure compliance with the Rules of Procedure, and no objections filed for.
Termination for breach of a competence is not excluded by the pre-vious findings of the court, because he has to be considered because of the participation of the CEO and the Mitgeschäftsführers the plaintiff in a milder light. Special circumstances can cause in each case, that a competence violation appears in a milder light and no Event of Default has (vgl. BGH, Decision of 4. More 2009 II ZR 169/07, ZIP 2009, 2195 Rn. 12; Decision of 10. December 2007 II ZR 289/06, ZIP 2008, 694 Rn. 2). Whether a particular behavior should be seen as an important reason for extraordinary termination, but has to decide in the first place the trial judge (BGH, Judgment of 9. March 1992 II ZR 102/91, ZIP 1992, 539 f.). As has been met, the Court of Appeal to the alleged violation of his right competence point of no logical findings, the Senate may by § 626 Abs. 1 Not make up the Civil Code required consideration. In the balance, ob s
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the employer can not reasonably be expected, to deal with the indentured further, including in all circumstances relevant to the Parties (st. PRSN., vgl. BGH, Judgment of 23. October 1995 II ZR 130/94, World Cup 1995, 2064, 2065 mwN).
III. The matter is remanded for a new trial and decision of the appellate court, because it is not ripe for final decision (§ 563 Abs. 1 ZPO).
Der klager hat u.å. denied, that the consultant contract merely pretends to supply M. completed, that after the fail-ure of the V. -Funds have not taken any advisory services to employees and that was apparent to him, that the CEO without the approval of the full Board of Sparkasse D. was allowed to act and has acted. The Court of Appeal will have to deal with the assertion of the plaintiff, the CEO of S-equity firm Dusseldorf GmbH had known the illusory character of the contract prior to the retroactive abolition of the consultant contract. As far as the Senate ZEIM out, that the defendant bears the burden of proving, that the declaration deadline is met (BGH, Judgment of 2. June 1997 II ZR 101/96, GmbHR 1997, 998, 999; Judgment of 2. July 1984 II ZR 16/84, ZIP 1984, 1113, 1114).
The rejection of the appeal court is also opportunity, with the objections of the appeal against the denial of further, on the applicant's behavior in 2009 based reasons for termination during the investigation of the circumstances, leading to the conclusion of the consultant contract, and G to the complex. Consultant contract K. GmbH apart-derzusetzen. Contrary to the opinion of the court must be older
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Operations, from those due to expiry of the declaration date, no termination right can be derived, not stay in the overall assessment disregarded. Rather, they can be used to support other grounds for termination, if at least one not yet of completed incident of non-negligible weight is available (vgl. BGH, Judgment of 9. March 1992 II ZR 102/91, ZIP 1992, 539, 540).
Strohn Reichart Drescher
Born Sunder
Lower courts:
LG Dusseldorf, Decision of 02.11.2010 – 35 The 28/09 -
OLG Dusseldorf, Decision of 24.11.2011 – I-14 in 27/11 -

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