Friday, 12 April 2019

Orth Kluth successfully achieves no attribution of the political statement of a politician who is also the chairman of the supervisory board of a company to this company.

Orth Kluth achieved success in a lawsuit on the question of whether the statement of a politician who also holds a position as chairman of a company's supervisory board can be attributed to this company. As a result, the statement of a chairman of the supervisory board cannot in any case be attributed to the company if it is made as a predominantly political statement in the exercise of a political office.

This was the subject of legal proceedings between Rhein-Erft-Verkehrsgesellschaft mbH (REVG) (represented by Orth Kluth) and Regional-Bus Rheinland GmbH (RBR) together with Regionalverkehr Köln GmbH.

The background to the legal dispute was an apparent statement by the Chairman of the Supervisory Board of REVG. In addition to his position at REVG, the Chairman of the Supervisory Board also serves as Chairman of the CDU parliamentary group of the Rhein-Erft district. The CDU parliamentary group is part of the so-called Jamaica coalition of the political parties CDU, FDP and the Greens, which is in power in the Rhine-Erft district during this term of office. In November 2017, the political parties of this Jamaica coalition held a press conference on the Jamaica coalition's plans to have REVG operate bus services in the Rhine-Erft district from 2019. So far, this has been carried out by the RBR. On the occasion of the press conference, a flyer was published summarizing the topic and position from the point of view of the political parties. The CDU faction leader was also included in the leaflet with the controversial statement ("We will pay them properly according to the tariff. The wage dumping of RBR and the like has come to an end") and in this context also referred to his position as Chairman of the Supervisory Board of REVG.

On the basis of this flyer, RBR and Regionalverkehr Köln GmbH jointly obtained an interim injunction before the Cologne Regional Court in December 2017, which was upheld in opposition proceedings. The Cologne Regional Court justified its decision by stating that the statement made by the Chairman of the Supervisory Board was attributable to REVG. REVG appealed against this decision. In the oral hearing of the appellate court, the Higher Regional Court of Cologne stated that the statement was in any case a predominantly political one. It was made in the exercise of political office and could not be attributed to REVG as a statement by the Chairman of the Supervisory Board. Claims against REVG were thus completely rejected by the Higher Regional Court of Cologne in the oral hearing. The RBR then withdrew both the application for an injunction and the main action pending before the Cologne Regional Court.

Claire Jablonka
T +49 211 60035-578