Duty of care and responsibility of members of the management board

(1) The members of the management board must apply, in their conduct of business, the care of an ordinary and conscientious manager of a cooperative. A breach of duty does not exist where the member of the management board, in an entrepreneurial decision, could reasonably assume that it was acting, on the basis of adequate information, for the benefit of the cooperative. They must maintain silence about confidential particulars and secrets of the cooperative, in particular trade or business secrets, that have become known to them through their activity on the management board.
(2) Members of the management board who breach their duties are obliged, as joint and several debtors, to compensate the cooperative for the resulting damage. Where it is disputed whether they applied the care of an ordinary and conscientious manager of a cooperative, they bear the burden of proof. Where a member of the management board acts substantially without remuneration, this must be taken into account in his or her favour in assessing his or her care.
(3) The members of the management board are in particular obliged to compensate where, contrary to this Act or the statutes,
1. credit balances are paid out,
2. interest or shares of profit are granted to the members,
3. cooperative assets are distributed,
4. payments are made after the cooperative has become unable to pay its debts, or an over-indebtedness has arisen that is, under section 98, a ground for the opening of insolvency proceedings for the cooperative,
5. credit is granted.
(4) The obligation to compensate does not arise towards the cooperative where the act rests on a lawful resolution of the general meeting. The obligation to compensate is not excluded by the fact that the supervisory board has approved the act.
(5) In the cases of subsection (3), the claim for compensation may also be asserted by the creditors of the cooperative, insofar as they cannot obtain satisfaction from it. Towards the creditors, the obligation to compensate is set aside neither by a waiver or settlement of the cooperative, nor by the fact that the act rests on a resolution of the general meeting. Where insolvency proceedings over the assets of the cooperative are opened, the insolvency administrator or trustee exercises, during their duration, the right of the creditors against the members of the management board.
(6) The claims under these provisions become time-barred in five years.